Report No. 71
8.3. Amendment of section 23(1)(a).-
Attention may also be drawn to section 23(1)(a) of the Hindu Marriage Act which relates to decree in the proceedings. Section 23(1)(a), in so far as it is material reads as follows:-
"23. (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and."
then and in such a case, but not otherwise, the court shall decree such relief accordingly."
In our opinion, it is desirable that the petition under the new section 13C would be excluded from the scope of section 23(1)(a). Once divorce is decided to be granted on the basis of irretrievable breakdown of the marriage, any allegation that the fault of a party contributed to the conditions leading to the breakdown should be regarded as irrelevant. To allow section 23(1)(a) to operate in all its severity in such cases might defeat the object of the recommended amendment. The general and categorical prohibition contained in section 23(1)(a) would thus be inappropriate in a case of irretrievable breakdown.
Accordingly, we recommend that in section 23(1)(a), after the word and figure "section 5", the words, figure and letter "and except in cases where the petition is presented under section 13C" should be inserted. The added matter will, of course, appear before the closing rectangular bracket in section 23(1)(a).
H.R. Khanna, Chairman
P.M. Bakshi, Member-Secretary
Dated: 7th April, 1978