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Report No. 59

7.24. Section 13A (New).-

We have finished the grounds of divorce, and have now to deal with a point concerning relief. We propose to recommend a general provision to the effect that where the relief desired is divorce the court may (except in certain cases) grant judicial separation instead. The desirability of such a provision can be established even under the present scheme, because, since the court has a discretion, or rather a duty, to refuse the desired relief in certain circumstances,1 it should have the lesser power of granting the milder relief. It would be convenient if the court is given a discretion not to dismiss the proceedings in toto, but to grant a lesser relief instead.

Since we propose to recommend expansion of the grounds of divorce,2 and also propose to modify the requirement as to the period for which a particular ground of divorce should have been in existence,3 we think it is necessary that some such power should be conferred on the court in express terms. This discretion will be exercised where, in view of the special circumstances of the case, the court is of the opinion that in the interest of justice the marriage should not be immediately dissolved. We do not propose to confine this discretion only to cases where the grant of divorce is the alleged adultery of the respondent. Guidance in the exercise of the discretion could, of course, be drawn from the decisions relating to exercise of the discretion of the court where adultery is a ground of divorce.

1. Section 23(1), H.M.A.

2. See discussion as to section 13, H.M.A. and cruelty.

3. See, for example, recommendation as to section 13 and venereal disease, (Hindu Marriage Act).

7.25. The new section could be inserted as section 13A, on the following lines, in the Hindu Marriage Act:-

"13A. In any proceeding on a petition for a decree of divorce, except where the petition is founded on the ground1 mentioned in clause (ii), clause (vi) or clause (vii) of sub-section (1) of section 13, the court may, if it considers it just to do so having regard to the circumstances of the case, pass instead a decree for judicial separation."

1. The references are to the existing clauses.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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