Thursday, 27 June 2019

Case Law on Hindu Marriage Act


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*Hindu Marriage Act, 1955*, Act came into force on 25.8.1956 - It has no retrospective effect.
1995(2) Civil Court Cases 487 (A.P.)

*Hindu Marriage Act, 1955, Civil Procedure Code, 1908* - Applicability of Civil Procedure Code to proceedings under Hindu Marriage Act, 1955 - Hindu Marriage Act is an independent Act and is not governed by the provisions of CPC - Procedure prescribed in CPC is applicable to all civil proceedings - Even if it presumed that CPC is not strictly applicable still the broad principles of provisions of CPC are applicable to proceedings under Hindu Marriage Act.
2018(3) Civil Court Cases 492 (P&H) (DB)

*Hindu Marriage Act, 1955, Civil Procedure Code, 1908, Order 9 Rules 8, 9* - Civil Procedure Code, 1908 - Applicability to proceedings under Hindu Marriage Act - Provisions of Civil Procedure Code, 1908 are not in any manner in conflict with or repugnant to any of the provisions of Hindu Marriage Act - Therefore provisions of Order 9 Rules 8 & 9 are applicable to proceedings under Hindu Marriage Act.
2006(4) Civil Court Cases 30 (Delhi)

*Hindu Marriage Act, 1955, Arbitration and Conciliation Act, 1996, S.8* - Marriage - Dispute relating to marriage cannot be referred to Arbitration as Arbitration Act contemplates an arbitration agreement as a condition precedent for referring any dispute to arbitration and Hindu Marriage is not a contact and ordinarily there is no agreement in marriage ruling out the possibility of an arbitration clause therein which may authorize the parties to refer their dispute to arbitration. 2014(2) Civil Court Cases 597 (Allahabad)

*Hindu Marriage Act, 1955, S.1(2)* - Applicability of the Act - Domicile of India is a condition precedent for invoking the provisions of Hindu Marriage Act - Principles governing domicile are: (a) Domicile of origin i.e. by birth and domicile of choice i.e. residing in a country other than that of his domicile of origin with intention of continuing to reside there indefinitely; (b) A domicile of origin continues and does not get divested until a domicile of choice is acquired by conscious act; (c) For acquiring a domicile of choice one must not only give up a country/domicile of his origin but he must make up his mind to stay for an indefinite period where he desires to acquire a domicile of choice; (d) The intention to acquire a new domicile must be manifest and carried into execution - The two constituent elements that are necessary for the existence of domicile law are : (i) a residence of a particular kind; and (ii) an intention of a particular kind - There must be a factum and there must be the animus; (e) The onus of proving that a domicile has been chosen in substitution for the domicile of origin lies upon one who asserts that the domicile of origin has been lost; (f) In order to determine a domicile of a person at a particular time, the course of his conduct and facts and circumstances before and after that time are relevant; (g) It must be established that an individual, who claims change of his domicile of origin, has voluntarily fixed the habitation of himself and his family in a new country and not for a mere special or temporary purpose but with a present intention of making it his permanent home; (h) The fact of residing in a country other than that of his domicile of origin even with the intention of continuing to reside there for long time, is not sufficient - A residence is a mere physical fact, and means no more than personal presence in a locality; (i) Citizenship and domicile represent two different conceptions - Citizenship has reference to political status of a person and domicile to his civil rights - A person may have one nationality and different domicile; (j) A domicile of a married woman does not follow that of her husband - She is capable of having an independent domicile; (k) If the domicile of origin is displaced as a result of the acquisition of a domicile of choice, the domicile of origin is merely placed in abeyance for the time being - It remains in the background ever ready to revive and to fasten upon the propositus immediately he abandons his domicile of choice.
Civil Court Cases 756 (Bombay) (DB)

*Hindu Marriage Act, 1955, S.1(2)* - Domicile in India is a condition precedent for invoking the provisions of Hindu Marriage Act - Domicile is to be determined when parties tie nuptial knot under the Hindu Marriage Act and not the date when an application is made for matrimonial relief - Even if a party establishes that after marriage he acquired domicile of some other country, it would not take away the jurisdiction of Court in India if on the date of the marriage he was domiciled in India.
2006(3) Civil Court Cases 756 (Bombay) (DB)

*Hindu Marriage Act, 1955, S.1(2)* - Hindu Marriage Act applies only to Hindus domiciled in the territories to which the Act applies - Act applies to the whole of India except the State of Jammu and Kashmir.
2010(2) Civil Court Cases 338 (Bombay)

*Hindu Marriage Act, 1955, S.1(2)* - Parties domiciled in the US - Hindu Marriage Act does not apply to them. (Kashmira Kale Vs Kishorekumar Mohan Kale) 2010(2) Civil Court Cases 338 (Bombay)
S.1(2) - Scope - Act applies to Hindus domiciled in India, even if they reside outside India.
2017(2) Civil Court Cases 723 (P&H) (DB)

*Hindu Marriage Act, 1955, S.1(2)* - Scope - Husband stated to be citizen of Canada - However, objection/pleading relating to status as domicile of India or jurisdiction of Court has been raised by husband - In the absence of filing written statement by husband, it cannot be assumed that he was not a Hindu domiciled in India by origin and residing outside the territory of India.
2017(2) Civil Court Cases 723 (P&H) (DB)

*Hindu Marriage Act, 1955, S.2* - Marriage between two Hindus performed within territory of Goa - Contention that marriage performed within the territory of Goa unless registered should be void - Contention not tenable - Two Hindus can perform a marriage according to Hindu religious rites or by way of a civil marriage.
2010(3) Civil Court Cases 222 (S.C.)

*Hindu Marriage Act, 1955, S.2* - Nullity of marriage - Wife seeking declaration of marriage as null and void - Wife Hindu and husband Christian at the time of marriage - Marriage performed as per Hindu rites and rituals - Both of them continued to profess their respective religion till filing of petition - To avail remedy under the provisions of Act it is necessary that (i) both the spouses are Hindus and (2) their marriage is a valid marriage within the meaning of S.5 of the Act; (3) at the time of filing of petition, both the spouses are Hindus by religion except for seeking remedy of divorce u/s 13(1)(c) of the Act i.e. on the ground of person ceases to be Hindu due to conversion to another religion - Held, petition is not maintainable.
2015(1) Civil Court Cases 607 (Bombay) (DB)


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