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Report No. 136

First Recommendation

5.2. Removal of existing conflicts.-

In this context we recommend that existing anomalies in the area of Hindu Marriage Act and Hindu Succession Act are removed by legislative measures on the indicated lines as suggested in Chapter IV. As a result thereof, throughout the country in all the States to which the concerned Central Act applies, uniformity of law will be secured in the relevant area, and in all such States instead of only in some States:

1. The matrimonial court, in a petition for restitution of conjugal rights, will have jurisdiction to entertain a defence raising the plea to the effect that the marriage had already been dissolved as per custom prior to the institution of the petition.

(See Chapter IV, para. 4.2)

2. One of the two spouses who have presented a joint petition for divorce by consent can withdraw his or her consent before the Court passes" the final order.

(See Chapter IV, para. 4.3)

3. The objectionable or cruel conduct of the other spouse 'subsequent' to the institution of a matrimonial petition will be open to examination in the same proceeding.

(See Chapter IV, paras. 4.4 to 4.10)

4. An order granting maintenance can be passed by any matrimonial court under section 25(1) of Hindu Marriage Act at the time of passing a decree regardless of whether the petitioner's prayer for relief is granted or not and regardless of whether the petition is allowed or dismissed.

(See Chapter IV, para. 4.11)

5. An application claiming maintenance or permanent alimony can be entertained by any of the courts having jurisdiction in the context of section 19 of the Hindu Marriage Act instead of only the court passing the decree.

(See Chapter IV, para. 4.12)

6. A litigant against whom an ex parte decree is passed under the Hindu Marriage Act can apply to the same court for setting aside the decree on sufficient cause being shown instead of being driven to an appellate court.

(See Chapter IV, para. 4.13)

7. An appeal against a decree for divorce or a proceeding to set aside an ex parte divorce decree is not considered as having abated on the death of the spouse obtaining the decree.

(See Chapter IV, para. 4.14)

8. Whilst disposing of a substantive proceeding under the Hindu Marriage Act, the concerned matrimonial court will be empowered to pass appropriate orders also regarding the individual property belonging to one spouse lying with the other spouse instead of obliging such a spouse to undergo another round of litigation, and incur further time-cost, money-cost and effort-cost.

(See Chapter IV, para. 4.15)

9. The bar against a female co-owner claiming partition of her share in a dwelling-house inherited along with other male heirs will not operate even in a situation where there is one male co-owner so that her right is not rendered virtually unexercisable and valueless.

(See Chapter IV, para. 4,16)



Conflicts in High Court Decisions on Central Laws - How to Foreclose and how to Resolve Back




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