In an ideal world, marriage is a consensual relationship with a lifetime commitment to one another. However, there is no relationship that is perpetual and perfect.
Therefore, it is understood that there will be matrimonial problems and that being the case, there are different legal solutions available to a spouse from their partner accordingly. One such sought-after relief is “Divorce” and other remedies widely available are “Judicial Separation” and “Restitution of Conjugal Rights”.
Nevertheless, nothing in the legal world comes without a condition thus matrimonial reliefs too come with certain bars and they are explained in detail as follows.
The bars of matrimonial relief:
“One Who Comes to Equity Must Come with Clean Hands” is the legal maxim on which the bars of matrimonial relief is based.
Our courts do not wish to entertain a petitioner with the malafide intention of taking advantage of his/her own disability or wrong, against the claimed matrimonial remedy. In order to avoid such misrepresentation, there exist bars of matrimonial relief.
Under section 23 of the Hindu Marriage Act, the bars to matrimonial relief have been defined. This provision states that if the aggrieved party seeking relief under any of the bars mentioned from clause (a) to (e) of section 23(1) of the Hindu Marriage Act is in contravention to any of these clauses, then such grant for relief shall be quashed. Any order passed by the Court against these bars will be null. These bars are mentioned below:
● Burden of Proof
● Taking advantage of one’s own wrong
● Other legal ground
The decree passed in disregard of the above bars is of nullity.
1. Doctrine of Strict Proof: (Burden and standard proof)
There are 3 situations that usually arise in matrimonial laws just like in ordinary civil law case proceedings:
The defendant appears in court and contests the claims of the plaintiff.
If the defendant won’t appear before the court even after the service of summons, the court may decide it as an ex-parte. The defendant appears in the court of justice and admits the claims made by the plaintiff.
In a matrimonial proceeding, the petitioner must establish the ground of matrimonial remedies beyond all reasonable doubts in all the 3 situations.
Case law: Dasthane vs Dasthane
The court laid down that the untrue statement of proof was not beyond all reasonable doubt. The petitioner must prove to this ground (mental harassment by the spouse) against the respondent beyond all reasonable grounds.
2. Taking Advantage of one own wrong/Disability:
There is no legal ground as to why relief should be granted.
If a petitioner is directly or indirectly responsible for the respondent’s wrongful act then, the petitioner cannot be granted.
According to section 23 (1)(a) of the Hindu Marriage Act, the court bars the grant of relief if the petitioner is in any way taking advantage of his or her own wrong or disability for the purpose of such relief.
For example: When a husband is guilty of his wife’s adultery then he cannot appeal for divorce.
Under the Hindu Marriage Act, Special Marriage Act, and Indian Divorce Act, when a petition is filed on the ground of the respondent’s adultery accessory may be the trend.
It is a term of criminal law if a husband promotes people to have intercourse with his wife or keep a watch while his wife is having sex with another third person, or fetch his wife’s name from the place where she had gone to commit adultery, he is an accessory. In India, not a single case is reported on accessories. No single case is yet reported on “accessory” in India.
It is the same as an accessory.
The difference between the two is that in accessory there is active participation by the petitioner in the guilt of the respondent while in connivance there is no such participation.
To constitute connivance, express, or implied consent is necessary. When the petitioner agrees with the proposal of the respondent to earn money by illicit intercourse, then the petitioner is guilty of the connivance.
It is a bar for matrimonial relief to the offense of adultery only. In this indirect husband gives an opportunity or gives consent to his wife.
Condonation is the reinstatement of the partners who have committed a matrimonial offense with the intention to repeat it in the future of or her matrimonial position. It is a consequence of the acts.
Case law: Hearn v. Hearn
The spouse continued to cohabit for ten years after the adultery of the respondent though sexual intercourse did not take place even once it was considered condonation.
Women are suffering from cruelty and after that also they are living or cohabiting in the same house with their husbands and being subjected to humiliation against their wish in the hope that there will be an improvement in the behavior of the husband and their relationship. They prefer silence to exposure.
Under Sec.23 (1)(c) of the Hindu Marriage Act, Under Sec. 34 (1) (d) of the Special Marriage Act collusion was a bar to all matrimonial reliefs.
The act abolished collusion as a bar to the petitions for a declaration that a marriage is null and void under the Hindu Marriage Act but not in Special Marriage Act.
7. Improper and unnecessary delay:
In Hindu Marriage Act, under Sec.23 (1)(d) Improper and unnecessary delay is a bar to relief in respect of all matrimonial causes
Case law: Niromo v. Nikka
There is an 11 year delay in filing the petition by the wife.
She gave an explanation that she kept quiet all along and had no intention to file the suit for her husband’s harassment which began soon after she had got the property in inheritance from her father. This was accepted as a reasonable explanation for the delay.
8. Other legal grounds:
Under Sec.23 (1)(e) of the Hindu Marriage Act, it is a general bar that is applicable to all matrimonial remedies. If the act of cruelty done without any intention is which causes injury or hurt to the victim then it is considered cruelty.
The Marriage law not only gives matrimonial reliefs, but it also has the provision to bar the matrimonial relief to the persons who are immoral in nature. The provision is to be used with due diligence in order not to leave behind anyone.
This article is written by Shreya Kabra of IFIM Law School.