19. [Court to which petition shall be presented]

Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction

• The marriage was solemnized, or

• The respondent, at the time of the presentation of the petition, resides, or

• The parties to the marriage last resided together, or

• The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period o f seven years or more by those persons who would naturally have heard of him if he were alive.]

20. Contents and verification of petitions.

1. Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded ²[and, except in a petition under section 1 1, shall also state] that there is no collusion between the petitioner and the other party to the marriage.

    

2. The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, he referred to as evidence.

21. Application of Act 5 of 1908.

Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.

21A. ³[Power to transfer petitions in certain cases.]

1. Where 

• A petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13, and

• Another petition under this Act has been presented there after by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground,whether in the same district court or in a different district court, in the same State or in a different State, the petitions shall be dealt with as specified in sub-section (2).

2. In a case where sub-section 1 applies, 

• If the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court;

• If the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

3.In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.

21B. Special provision relating to trial and disposal of petitions under the Act  

1. The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

2. Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.

3. Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.

21C. Documentary evidence

Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.

22. 4[ Proceedings to be in camera and may not be printed or published.]

1. Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.

2. If any person prints or publishes any matter in contravention of the provisions contained in sub-section(1),he shall be punishable with fine which may extend to one thousand rupees.

23. Decree in proceedings 

• In any proceeding under this Act, whether defended or not, if the court is satisfied that-

• Any of the grounds for granting relief exists and the petitioner 4[except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause

• Of clause (ii) of section 51 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

• where the ground of the petition is the ground specified 5[* * *] in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

• 5[ When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and]

• 5[the petition (not being a petition presented under section 1 l)] is not presented or prosecuted in collusion with the respondent, and

• There has not been any unnecessary or improper delay in instituting the proceeding, and

• There is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise,
  the court shall decree such relief accordingly.

• Before proceeding to grant any relief under this Act,it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:

  6[Provided that nothing contained in this sub-section shall apply to any proceeding where in relief is sought on any of the grounds specified in clause(ii),clause (iii),clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13]

• 6[ For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do,adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing ,of the proceeding have due regard to the report.]

• In every case where a marriage is dissolved by a decree of divorce, the court Passing the decree shall give a copy there of free of cost to each of the parties.

Comments

Under section 23 of the Act the expression 'satisfied means satisfied preponderance of probabilities which is the test in civil matter, and not satisfied beyond reasonable doubt which is the test in criminal matter.; Vimlesh V. Prakash Chand Sharma, AIR 1992 All 261.

23A. 7[Relief for respondent in divorce and other proceedings.]

In any proceeding for divorce or judicial separation or restitution of conjugal fights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counterclaim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief oil that ground.

24. Maintenance pendent We and expenses of proceedings.

Where ill ally proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable

Comments

1. Section 24 of Hindu Marriage Act, 1955 is not a code of rigid and inflexible rules arbitrarily ordained to be blindly obeyed, it does not enact any mathematical formulas, it gives wide power, flexible and elastic to do justice in a given case and leaves every thing to the Judge's discretion. In the instant case held that since the husband was a chartered accountant having a good office and also a share in joint family business, the award of Rs.2000/- per month as interim maintenance to the wife was justified; Neelam Malhotra V. Rajinder Malhotra, AIR 1994 Del 234.

2. Section 24 of Hindu Marriage Act, 1955 entitles not only the wife but also the husband to claim maintenance pendent lite on showing that he has no independent source of income. However, the husband will haw to satisfy the court either due to physical or mental disability he is handicapped to earn and support his livelihood. Held that since the husband able-bodied and was not mentally ill and only because his business had closed down, he could not be granted any maintenance, it being opposed to spirit of section 24 of the Act; Kanchan v. Kama lendra, AI R 1993 Born 493.

3. The decision of the court declaring the wife to be indigent and then not awarding her maintenance pendent lite and litigation expenses was held to be inconsistent and incorrect; Lata v. Civil Judge, Bulandshahr, AIR 1993 All 133.

4. Pending an application either under Rule 5 of Order 9 or Rule 9 of Order 9 or Rule 13 of Order 9 of Code of Civil Procedure a spouse is entitled to maintain an application under section 24 of Hindu Marriage Act, 1955. The expression "proceedings under the Act" appearing in section 24 cannot be given a narrow and restrictive meaning; Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bom 168.

5. There is no inconsistency between the provisions at section 24 of Hindu Marriage Act and the provisions of section 18 of Hindu Adoptions and Maintenance Act, 1956; Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, AIR 1993 Bom 168. 

25. Permanent alimony and maintenance.

1. Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent there to, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall 8[***]pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant 9[,the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent

2. If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

3. If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, 8[it may at the instance of the other party vary, modify or rescind any such order ill such manner as the court may deem just].

Comments

1. The amount of Rs.60,000/- to the wife as permanent alimony taking into consideration the husband's income and other property was held to be justified; Ajay Kapoor v. Pramila Kapoor, AIR 1992 All 283.

2. The award by the arbitrators that the respondent should he paid Rs.5,251/- as alimony is not binding as arbitrators have no authority. This can be done only by a competent court; V. V. Pushpa Karan v. P-K. Sarojni, AIR 1992 Ker 9.

In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.

27. Disposal of property.

ln any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

Comments

Section 27 of the Act is attracted only when the property is presented at or about the time of marriage is alleged to belong jointly to both the spouses. Section 27 can only relate to a limited class of property that is owned jointly by the spouses which has been presented at or about the time of marriage. It is not permissible to bring in property brought after marriage as it would expand the scope of section 27. Held that jewelery presented at the time of marriage comes within section 27 of the Act but furniture brought after the marriage would not come within section 27 of the Act; Subhash Lata. V, V.N. Khanna, AIR 1992 Del 14. See also Sangeeta Balkrishna Kadam V. Balkrishna Ramchandra Kadam, AIR 1994 Bom 3.

28. 9[Appeals from decrees and orders.]

1. All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appeal able as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction.

2. Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), he appeal able if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

3. There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred with in a period of thirty days from the date of the decree or order.

28A. Enforcement of decrees and orders.

All decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being are enforced.

Comments

In the context of the prevailing circumstances, the payment of interim alimony and litigation expenses, pendent lite to a spouse, who is financially weaker than the other, with a view to enable him or her to conduct the proceedings in a matrimonial cause and secure speedy justice, should be regarded as a sine qua non of justice and the argument that resort to execution proceedings can be had against the defaulting spouse or that other proceedings can he taken cannot be countenanced, especially when enforcement of such orders otherwise than by execution is neither prohibited nor excluded by section 28A of the Act. It was held that the deliberate default on the part of respondent husband to pay the maintenance and litigation expenses to the wife, his defence of divorce should be struck down; C.S. Mangalam V. Velayudhan Asari, AIR 1993 Ker 181.

1. Subs. by Act 68 of 1976, see. 12, for section 19.

2. Subs. by Act 68 of 1976, see. 13, for "and shall also state".

3. 5. Ins. by Act 68 of 1976, sec. 14.

4. Subs. by Act 68 of 1976, see. 15, fq! section 22.

5. Ins. by Act 68 of 1976, see. 17.

6. The words "while the applicant remains unmarried" omitted by Act

7. 68 of 1976, sec. 18.

8. Subs. by Act 68 of 1976, see. 18, for certain words

9. Subs. by Act 68 of 1976, sec. 19.