Report No. 59
8.21A. Section 23(1)(a).-
We have already recommended that1 an express exception removing the bar under section 23(1)(a) of the Hindu Marriage Act, should be made where a marriage is sought to be avoided on the ground of unsoundness of mind.
1. Para. 3.15, supra.
8.22. Section 23(1)(c) of the Hindu Marriage Act provides that the court shall decree relief under the Act only if it is satisfied that "the petition is not presented or prosecuted in collusion with the respondent." It is difficult to understand the applicability of this provision in relation to a proceeding for setting aside a void marriage under section 11, under which a marriage can be set aside on the ground of polygamy, prohibited degrees, or sapinda relationship. No matrimonial offence is involved here, and the only questions of fact to be decided are questions concerning the subsistence of a prior marriage or the existence of the prohibited relationship.
At the most, it can be said that parties who wish to avoid their marriage may invent some set of facts to mislead the court that such prior marriage or prohibited relationship existed. This is very unlikely. On the other hand, where the parties discover that they are related within the prohibited degrees, they would often like to act in cooperation with each other, rather than in opposition to each other. It may be noted that in England1, it was expressly provided that "collusion shall not be a bar to the granting of a decree of nullity whether the marriage took place, or the proceedings were instituted, before or after the commencement of this Act."
We are of the view that a similar provision (as to nullity) should be incorporated, and recommend that section 23(1) should be amended accordingly.
1. Section 6(1), Nullity of Marriage Act, 1971 (Eng).