M AT R I M O N I A L R E L I E F

A. Divorce
B. Judicial Separation
C. Restitution Of Conjugal Rights

DIVORCE
Section 13 (1) of the Hindu Marriage Act, 1955 provides for divorce as under:
Any marriage solemnised, whether before or after the commencement of this
Act, may, on a petition presented by either the husband or the wife, be dissolved
by a decree of divorce on the ground that the other party:
(i) Adultery: has, after the solemnisation of the marriage, had voluntary
sexual intercourse with any person other than his or her spouse; or
(ia) Cruelty: has, after the solemnisation of the marriage, treated the
petitioner with cruelty; or
(ib) Desertion: has deserted the petitioner for a continuous period of not
less than two years immediately preceding the presentation of the
petition; or
(ii) Conversion: has ceased to be a Hindu by conversion to another
religion; or
(iii) Unsound Mind: has been incurably of unsound mind, or has been
suffering continuously or intermittently from mental disorder of such a
kind and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent.
(iv) Now stands deleted. ----- It dealt with incurable form of leprosy -----
(v) Venereal Disease: has been suffering from venereal disease in a
communicable form; or
(vi) Renunciation of World: has renounced the world by entering any
religious order; or
(vii) Presumed Dead: has not been heard of as being alive for a period of
seven years or more by those persons who would naturally have heard
of it, had that party been alive.
After the coming into force of this Act, a marriage can be dissolved only under
the provisions of the Act or, exceptionally, under the custom permitting divorce.
No marriage can be dissolved by "an arrangement to live separately".

"A marriage in law can be dissolved only by a method recognised in law and not
otherwise"
There can be no divorce for consideration even if the parties agree to it. In
Sanjeeta Das vs. Tapan Kumar Mohanty (2010), where there were no
grounds for divorce u/s 13 nor was there a petition for divorce by mutual
consent u/s 13-B. The order of Orissa High Court dissolving a marriage on the
husband paying Rs. 10 lakhs to the wife and the wife consenting to it, was set
aside in appeal by the Supreme Court.

However, in Hema Jha v. Rajiv Ranjan, (2010) there was a joint compromise
petition for divorce with parties agreeing to certain terms and conditions
without any reference to section 13-B or to divorce by mutual consent and the
marriage was dissolved.
Dissolution of marriage through panchayat as per custom prevailing in that area
and in that community cannot be a ground for granting a divorce decree u/s 13
of the Act.

Adultery:
Under Section 13(1)(i) and Section 10(1) of the Hindu Marriage Act, 1955,
either the husband or the wife may file a petition for the dissolution of marriage
or judicial separation, respectively, on the ground that the other party has, after
the solemnisation of the marriage, had voluntary sexual intercourse with any
other person other than his or her spouse.
Prior to the 1976 Amendment, there were two categories of adultery recognized
which provided different relief to the petitioner. These two reliefs were:
a. Single act of Adultery: Here, the Petitioner could only pray for the relief
of judicial separation and NOT divorce
b. Continuous living in Adultery: Here the petitioner could seek divorce as
this act was of a more serious nature.
In Smt. Pushpa Devi vs, Radheshyam, AIR 1972, it was held that it is not
necessary to prove the fact that Adultery by direct evidence and even if such
evidence is produced, it would either be fabricated or would be suspectful.
Adultery is normally proved by circumstantial evidence.
In Hargovinda Soni vs, Ram Dulari AIR 1986 the Court observed that it was
no longer required that adultery must be proved beyond all reasonable doubt. It
may be established by preponderance of probabilities.

Cruelty:
This Clause was introduced by the Amendment Act of 1976. The term ‘Cruelty’
has not been defined anywhere in the Act and it’s meaning varies from case to
case. However, for the purposes of establishing the act of Cruelty, it should be
serious enough so that the cohabitation becomes impossible. It should be more
serious than the normal wear and tear of routine marital life.
In Indira Gangele vs. S.K. Gangele AIR 1993, it was held that only some
misunderstandings between the spouses was not reason enough to grant divorce
under this head. The Court further observed that merely stating that the parties
are unhappy is not a sufficient reason for the grant of divorce nor even unruly
temper or whimsical nature of a spouse is a valid reason for the grant of divorce.
Section 13 (2) of the Hindu Marriage Act, 1955 provides:
A wife may present a petition for the dissolution of her marriage by a decree of
divorce on the ground,
i. in the case of any marriage solemnised before the commencement of
this Act, that the husband had married again before such
commencement or that any other wife of the husband married before
such commencement was alive at the time of the solemnisation of the
marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the
presentation of the petition; or
ii. that the husband has, since the solemnisation of the marriage, been
guilty of rape, sodomy or bestiality; or
iii. that in a suit u/s 18 of the Hindu Adoptions and Maintenance Act,
1956, or in a proceeding u/s 125 of the CrPC, 1973 or u/s 488 of the
CrPC, 1898 a decree or order, as the case may be, has been passed
against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since the passing of
such decree or order, cohabitation between the parties has not been
resumed for one year or more; or
iv. that her marriage (whether consummated or not) was solemnised
before she attained the age of fifteen years and she has repudiated the
marriage after attaining that age but before attaining the age of
eighteen years.
Explanation: This clause applies whether the marriage was solemnised
before or after the commencement of the Marriage Laws
(Amendment) Act, 1976.
13B. Divorce by mutual consent.
1. Subject to the provisions of this Act a petition for dissolution of marriage
by a decree of divorce may be presented to the district court by both the
parties to a marriage together, whether such marriage was solemnised
before or after the commencement of the Marriage Laws (Amendment)
Act, 1976 (68 of 1976), on the ground that they have been living
separately for a period of one year or more, that they have not been able
to live together and that they have mutually agreed that the marriage
should be dissolved.

2. On the motion of both the parties made not earlier than six months after
the date of the presentation of the petition referred to in sub-section (1)
and not later than eighteen months after the said date, if the petition is not
withdrawn in the meantime, the court shall, on being satisfied, after
hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnised and that the averments in the petition are
true, pass a decree of divorce declaring the marriage to be dissolved with
effect from the date of the decree.
Divorce theories
The various types of divorce theories are as follows:

Divorce at Will theory

According to this type of theory, a person may choose to divorce their spouse at
their own free will. However, this concept is not recognized under Hindu law or
the Act. In contrast, Muslim law does acknowledge this approach, permitting a
husband to divorce his wife at his discretion without requiring consultation.

Offence or Guilt or Fault theory

The fault theory of divorce is also known as the offence theory or guilt theory. It
provides that dissolution of marriage through divorce can take place in case one
party commits a ‘matrimonial offence’ against the other party, who is deemed
innocent. Offence theory shows a clear comparison between the guilty and
innocent parties, with only the innocent party being eligible to seek a divorce. In
case both the husband and wife are at fault, neither of them could take recourse
under this theory.

‘Matrimonial offences’ recognised under the Act are as follows :

Desertion: Desertion is the negation of living together, which is the essence of

matrimony; it is unjustifiable; it constitutes a ground for matrimonial relief. The
essence of the dissertation lies in the forsaking or abandonment of one of the
spouses by the other. It is a total repudiation of the obligations of marriage.
Divorce may be granted if the respondent has deserted the petitioner for a
continuous period of not less than two years immediately preceding the
presentation of the petition.
Cruelty: To constitute cruelty in the matrimonial law, the conduct complained of
should be “grave and weighty” so as to come to the conclusion that the
petitioner cannot be reasonably expected to live with the other spouse. It must
be something more than the “ordinary wear and tear of married life.”
Rape: Rape is defined as sexual intercourse or other forms of sexual penetration
carried out by a perpetrator without the victim’s consent. If the husband has
been found guilty of the offence of rape, it constitutes a matrimonial offence.
Sodomy: The husband has since the solemnisation of marriage been guilty of
sodomy. Sodomy is the offence of forcing another person to perform oral or
anal sex.
Bestiality: In case the husband has been found guilty of bestiality, it constitutes
a matrimonial offence. Bestiality is the offence of making sexual relations
between a human being and a lower animal.
Failing to follow the court’s order for providing maintenance to wife: In a suit
under Section 18 of the Hindu Adoption and Maintenance Act, 1956 or in a
proceeding under Section 125 of the Code of Criminal Procedure, 1973, a
decree or order has been passed against the husband awarding maintenance to
wife, and since the passing of such a decree or order, cohabitation between the
parties has not been resumed for one year or upwards.
Getting married to someone who does not come under the legal age to get
married: The wife’s marriage (whether consummated or not) was solemnised
before she attained the age of fifteen years and she repudiated the marriage after
attaining the age but before attaining the age of eighteen years.
Based on the aforementioned matrimonial offences, it can be concluded that a
personal injury to the marital relationship between spouses must be evident to
fall under this theory. If the innocent partner forgives the wrongdoing of the
guilty partner, a divorce cannot be granted in such a case.

Frustration of marriage theory

In the absence of any matrimonial offence if the marriage is frustrated, it is
when one of the spouses is suffering from any physical ailment, mental
unsoundness of mind, or change of religion, or has renounced the world or has
not been known for a very long period. In this case, the other spouse has the
right to put an end to the marriage by getting divorce. This theory has been
followed by the Act as follows:
Incurably of unsound mind: Section 13(1)(iii) provides that the petitioner has to
establish that the respondent has been incurably of unsound mind or has been
suffering continuously from mental disorder of such a kind and to such an
extent that the petitioner cannot reasonably be expected to live with the
respondent.
Venereal disease in a communicable form: Section 13(1)(v) provides for
venereal disease in a communicable form. A “communicable disease” is one that
passes from one person to another through touch, using each other’s objects and
also through intimate physical relationships. In order to succeed on this ground,
the petitioner must establish, along with medical evidence, that the venereal
disease that the respondent is suffering from is communicable.
Renouncing the world by entering any religious order: Section 13(1)(vi) has
been made a ground of dissolution of marriage by a decree of divorce for the
husband or wife if the other party to the marriage has renounced the world. In a
petition for divorce under this clause, the petitioner has to satisfy firstly that the
respondent has entered any religious order and secondly that he has renounced
the world.

Mutual consent theory

This type of divorce theory is different from other theories of divorce. Divorce
by mutual consent means that the case is not like usual ones, wherein one party
petitions against the other party for divorce and the other party resists the same.
Here, both parties file a joint petition with the court for divorce between them.
They have an intent to get rid of each other and they part amicably for mutual
good. If a divorce is not granted, their lives would be severely impacted, leading
to moral decline.

There are unproven objections against this type of divorce that the consent of
the unwilling party might be obtained by force, fraud, or some other tactic, and
this is a divorce by collusion. While collusion involves consent, not every
instance of consent amounts to collusion. Collusion refers to a secret agreement
done between two or more persons that results in achieving a fraudulent
outcome. This secret agreement is done to accomplish a lawful goal through a
mode of deception. Collusion differs from compulsion because, in the latter, one
party imposes their will on another.

Divorce by mutual consent was added by the Marriage Act of 1976. This
amendment has brought about a shift from the traditional practices of Hindu
marriage as an unbreakable bond, as outlined in the Smritis, to a more
consensual union under the Act. This theory has faced criticism for potentially
encouraging immorality, as it might lead to premature divorces. It is argued by
the critics that divorce by mutual consent encourages parties to bring their
marriage to an end over relatively minor disagreements.

Irretrievable breakdown of marriage theory

Marriage, as mentioned a number of times, is a lifelong bond between husband
and wife, but there are instances when the relationship may worsen to the point
where separation is required. The theory of irretrievable breakdown of marriage
situations arises when the marital relationship between the spouses has come to
an end because of circumstances that make reconciliation unlikely. At this point,
it becomes impossible for the husband and wife to continue to live together.
When a marriage has collapsed to the level that there are no chances of
repairing the marriage, it should be brought to an end without looking into the
causes of the breakdown or assigning blame to either of the parties or both of
them. In these situations, the need to separate the spouses takes precedence over
the traditional values of love, affection, and loyalty that ideally should exist
between spouses. The principle underlying the irretrievable breakdown theory
of marriage is that if one party no longer wishes to remain in the marriage, it
should be dissolved. The aim is to end the relationship with maximum fairness
and minimal bitterness, pain, and humiliation. The Hon’ble Kerala High Court
in the case of A. Yousuf Rawther vs. Sowramma (1971) stated in the context
of this theory that “while there is no rose which has no thorns but if what you
hold is all thorns and no rose, better throw it away. The ground for divorce is
not conjugal guilt but breakdown of marriage.”
In some countries, additional grounds such as “incompatibility of temperament”
and “profound and lasting disruption” have been introduced to support divorce
claims based on the breakdown theory. The court has the responsibility to check
whether a marriage has actually broken down or not. Some of the cases involve
the legislature setting certain criterias for assessing the breakdown of a
marriage. If, in the opinion of the court, those criteria are met, then a divorce
can be granted. For instance, Section 13(1A)(i) of the Act requires the petitioner
to show that they have been living separately from the respondent for at least
one year or more after a decree for judicial separation or restitution of conjugal
rights in a proceeding involving both parties.

Merits of Irretrievable breakdown of marriage theory

If the individuals, tied within the matrimonial bond, feel that the marriage is not
working out, then mutually, it may give the right to both of them to stay and live
life separately and happily without any botheration on either part. As there is no
reasonable probability of staying together, it gives both of them the opportunity
to start their lives as per their own wishes, both independently and separately.

Demerits of Irretrievable breakdown of marriage theory

Irretrievable breakdown of the marriage may become an excuse where the
married couples may always feel that little arguments are unreasonable as a
result of which there is no probability of them staying together. Therefore, in my
opinion, the process of divorce following the irretrievable breakdown of
marriage theory is not justified.
It may also result from sudden arbitrary unreasonable decisions.
It sometimes happens based on temporary emotions such as anger, humiliation,
etc. which a couple may go through during the heat of the argument.
It fosters no communication procedure between the partners.
It is not just the breakdown of marriage; it is also the wreckage of two united
families at the time of marriage.
If children are born out of that marriage when the parents ‘now’ think that there
is no reasonable probability of staying together, such broken families could be a
matter of stress for the child born out of the marriage as well.
Types of divorce recognised under the Act
Statutory divorce
The above-mentioned theories of divorce are recognized in contemporary Hindu
law, allowing divorce to be pursued under any of the grounds. Initially, the Act
established divorce on the basis of fault theory, which specified nine grounds for
either of the spouses under Section 13(1) and two additional grounds for the
wife under Section 13(2) for a divorce to take place. In the year 1964, Section
13(1A) was further added with two more grounds for divorce. The 1976
amendment further expanded the grounds by including two additional fault-
based grounds for wives and introducing Section 13B, which allows for divorce
by mutual consent.

Under the Act of 1955, the grounds for divorce included adultery, cruelty,
desertion, conversion, insanity, venereal disease, and renunciation, as well as the
presumption of death. For wives, additional grounds included the husband’s
multiple marriages or if he committed the offence of rape, sodomy, or bestiality
after marriage. Notably, on August 5, 2021, the Hon’ble Kerala High Court in
the case of XXX vs. XXX (2021), recognized marital rape as a valid ground for
divorce, despite it not being criminalized in India.

In the case of a statutory divorce taking place between a couple by mutual

consent, both parties must jointly file a petition in the Family Court. It must be
stated in the petition that they have either been living separately for at least a
period of one year or have mutually agreed to dissolve the marriage. In that
case, the court shall review the petition and check the supporting documents.
The court may also make an attempt at mediation between the couple. If efforts
at reconciliation do not turn out to be successful, the court will continue with
the process of divorce without any delay.

Following the court’s review of the petition, the parties’ statements are recorded
under oath, and the first motion is granted. The parties to the marriage then have
a six-month time period to file the subsequent motion, with a maximum filing
period of eighteen months from the date of the initial petition for divorce. Once
both parties are prepared, hearings can commence. In the case of Amardeep
Singh vs. Harveen Kaur (2017), the Hon’ble Supreme Court held that the six-
month waiting period for divorce by mutual consent is not a mandate. In cases
relating to divorce by mutual consent, both the husband and wife typically reach
an agreement on matters such as divorce settlements, child custody, and
property, provided they have a comprehensive understanding before finalising
the dissolution of the marriage.

Customary divorce
In the very first place, Hindu law traditionally did not recognize the concept of
divorce. It was only accepted by custom in certain communities, and courts
acknowledged these customs as long as they did not oppose public policy. The
intent of the Act is not to override customs validated by its provisions. It is
permissible in certain cases for the spouses to not appear in court to obtain a
divorce because of the existing customary grounds.

Section 29(2) of the Act protects customary divorce, stating that the Act’s
provisions do not affect any rights granted by custom or any special law related
to the dissolution of a Hindu marriage. In the case of Sanjana Kumari vs. Vijay
Kumar (2023), the Hon’ble Supreme Court of India held that a Hindu marriage
can be dissolved through a customary divorce deed if the customary right to do
so is proven in the court of law. A specific claim regarding the existence of such
a customary right must be presented to the court and supported by sufficient and
appropriate evidence. Determining whether the parties are governed by a
custom allowing divorce without invoking Sections 11 and 13 of the Act is a
matter of fact that must be pleaded clearly before the judges and validated with
convincing evidence. Such cases are generally tried by courts with civil
jurisdiction. The burden of proving the customary divorce rests on the party
relying on such a customary divorce.
Before the Act of 1955, Hindus could obtain a divorce only if a community-
specific custom allowed it. The said Act acknowledged customary divorces and
specified that its provisions do not apply to them. The following provisions of
the Act do not pertain to customary divorces:

Void marriages: A void marriage is one that is considered invalid or illegitimate

from the outset, known as void ab initio. A decree of void marriage is essentially
a judicial acknowledgment of an existing fact. According to Section 11 of the
Act, a marriage will be deemed null and void by a decree of nullity if it
contravenes the conditions outlined in Sections 5 (i), (iv), and (v) of the Act.
Remarriage of a divorced person: Section 15 of the Act addresses the remarriage
of individuals who have been divorced. It specifies that a person who has
received a divorce decree can remarry once the decree is finalised either after
the appeal period has ended or after any appeal has been dismissed.
Decree in proceedings: Section 23 of the Act specifies that a marriage cannot be
declared void or voidable due to any defects in consent unless it is proven that
such consent was obtained through force, fraud, or undue influence. In other
words, if both parties have willingly given their consent, the marriage is
considered valid and cannot be challenged on the grounds of any consent-
related defects.
Maintenance pendente lite and expenses of proceedings: Section 24 of the Act
addresses the provision of temporary financial support to a dependent spouse
during ongoing legal proceedings. In other words, it ensures that the wife or
husband receives necessary living expenses and financial aid while their legal
case is still being heard. This support is intended to help the dependent spouse
cover their basic needs throughout the litigation process.
Permanent alimony and maintenance: Section 25 of the Act authorises the court
to award permanent alimony and maintenance to either spouse. The court can
determine the amount of alimony or maintenance either at the time of issuing a
decree or at any point thereafter.
Custody of children: Section 26 of the Act grants the court the authority to issue
orders or make arrangements regarding the custody, maintenance, and education
of children either during the ongoing proceedings or after a decree has been
issued in cases involving the children’s parents. In cases where no such
proceedings are taking place, only the Guardian Courts have the power to make
these decisions.
Historically, many lower-caste Hindus practised divorce through custom,
viewing the sacramental aspect of marriage as a formality rather than a
substantive reality. However, there is no universal Hindu tradition of divorce,
and practices vary on the basis of different castes and regions. When seeking a
customary divorce, it must be proven that the parties are bound to fulfil such a
tradition. Customary divorces can still be pursued as before the Act of 1955
through village panchayats, caste panchayats, private agreements, or written
declarations like a tyaga-patra. A custom allowing one partner to unilaterally
divorce the other is invalid if it is deemed unreasonable and contrary to public
policy. Customary divorce constitutes an exception to general divorce laws. But
it is necessary that it be substantiated and proven. Customs recognize various
forms of divorce, which can occur with mutual consent or, in some cases, for
questionable reasons by one party. The range of accepted divorce types is
complex and diverse.

In Yamanji H. Jadhav vs. Nirmala (2002), the Hon’ble Supreme Court ruled that
a customary divorce is valid only if it is allowed by the relevant custom or if the
divorce is a recognized practice within that tradition. Once the existence of such
a custom is demonstrated, the parties may file a declaratory action in court to
affirm that their divorce deed is lawful, valid, and appropriate.
 Restitution Of Conjugal Rights
The term “conjugal rights” refers to each spouse’s right to stay in
companionship and marital intimacy with each other. “Restitution of conjugal
rights,” on the other hand, denotes the restoration of these rights that the parties
once enjoyed. Section 9 of the Act formally recognizes the right to
companionship within marriage. Where a spouse leaves the other spouse
without a justifiable reason, the aggrieved party may seek a court decree for the
restitution of conjugal rights. This provision is adapted from the English law. It
is the only affirmative remedy available under the Act because the other
available remedies may undermine or disrupt the marriage.

According to Section 9 of the Hindu Marriage Act, 1955, "where either the
husband or the wife has without reasonable excuse, withdrawn from the society
of the other, the aggrieved party may apply by a petition to the District Court for
restitution conjugal rights and the court, on being satisfied of the truth of the
statements made in such petition and that there is no legal ground why the
application should not be granted, may pass a decree restitution of conjugal
rights accordingly.

In Shanti Devi Vs. Ramesh Chandra, A.I.R. 1964, the Patna High Court
observed that in an application for the restitution of conjugal rights the court
must. give serious consideration to the evidence of the wife and her parents and
cannot refuse to do so on the ground of their being interested witnesses.

In Tularam Vs. Snit. Mishri, 1979, the MP High Court, held that plea of the
marriage being in contravention of the provisions of section 5 (iii) of the Hindu
Marriage Act, was not found to be an excuse and it was held that decree of
restitution of conjugal rights could not be refused.

Grounds on the Basis of which a Decree for Restitution 'of Conjugal Rights
cannot be Granted—The courts in their decisions have held the following to be
valid grounds for separate living disentitling the other spouse to a decree for
restitution of conjugal rights:—
(i) Grossly indecent behaviour.
 (ii) Extravagance of living on the part of wife affecting the financial
position and prospect of the husband.
(iii) Excessive drinking carried to such a degree' as to render it impossible
for the duties of married life to continue or to be discharged.
(iv) Persistence in a false charge against the respondent of having
committed an unnatural offence,
(v) Refusal of marital intercourse without sufficient reason.
(vi) Apprehension of violence due to development of insanity in the
petitioner.
(vii) Agreement to live separate.
(viii) Misconduct approaching 'cruelty but falling short of it. (Mst. Gurdev
vs. Sarwan Singh, A.I.R. 1959,).
(ix) Imputation of unchastity persistently by the husband. (Sarah vs. Pyli
Abraham, 1959, Ker.)
Restitution of conjugal rights can be granted if the following conditions are
fulfilled:
i) The respondent is now living without the petitioner.
ii) The departure of the respondent occurred without a valid reason.
iii) The court is satisfied that the claims of the petitioner are valid.
iv) There exists no legal grounds to deny the application for restitution of
conjugal rights.
According to Section 9, the burden of proving the justification or reasonable
excuse for the withdrawal lies upon the party against whom the accusation is
made. This section stipulates that once withdrawal from the side of the
petitioner is established, the withdrawing spouse must give reasonable
justification for their actions.

Effect of Decree of Conjugal Rights

The Decree of Restitution of Conjugal Rights, if passed, makes it obligatory for
the Respondent to resume cohabitation with the Plaintiff and if this is not done
within one year from the date of degree either party is entitled to see divorce.
 Judicial Separation
“Judicial separation” can be described as a legal process in which a married
couple is officially separated but still holds the status of being legally married.
This concept is described in Section 10 of the Act. Either spouse, whether the
marriage occurred before or after the Act’s commencement, can file a petition
for judicial separation on any of the grounds specified in subsection (1) of
Section 13, and, for the wife, also on any grounds listed in subsection (2) of
Section 13.

Section 10(2) provides that once a decree for judicial separation is allowed by
the court, the petitioner is no longer under an obligation to live with the
respondent together. However, the court has the authority to dismiss or revoke
the decree if, upon reviewing the petitioner’s application and verifying the
statements, it finds it just and reasonable to do so.
 Section 11 and petition for nullity after death of spouse

The question whether a declaration can be obtained u/s 11 of the Hindu

Marriage Act after the death of either party came up for consideration in a case
of Kishni Devi v. Tulsani Devi, 1972 Pun. In this case, a petition u/s 11 was
filed after the death of the husband by Kishni Devi, one of the widows,
impleading the (other) widow of her husband as a respondent, and claiming a
declaration that the petitioner's marriage with her (late) husband was a nullity.
The ground for seeking such declaration was that the petitioner's husband had
been already married to the respondent. The petition was dismissed on the
ground that it was not maintainable in view of the husband's death.

On appeal, the High Court set aside the dismissal, emphasising that in the case
of a void marriage, there is no marriage in the eye of law. The High Court held
that one of the spouses in such a marriage can obtain a declaration from the
court about her status quo even after the death of the other spouse. The High
Court dissented from the contrary view taken by the Madras High Court in
Gowri Ammal And Another v. Thulasi Ammal (Minor) And Another, AIR
1962.

However, in such a case, the proper remedy is a suit u/s 34 of the Specific Relief
Act. A petition u/s 11 of the Hindu Marriage Act cannot be appropriate, because
the other spouse is an essential party to any such petition.