Section 23 of The Hindu Marriage Act (HMA) | Decree in proceedings

Synopsis

Bare Act: The exact text of Section 23 and Section 23A of the Hindu Marriage Act, 1955.
Introduction: Overview of Section 23 and its role in ensuring fair matrimonial proceedings.
Meaning/Definition/Explanation: Detailed explanation of Section 23 and its clauses.
Interpretation: How courts interpret and apply Section 23, with judicial perspectives.
Types/Classifications: Different clauses under Section 23 and their implications.
Case Laws: Landmark judgments illustrating the application of Section 23.
Multiple Choice Questions: Practice questions for All India Bar Exam preparation.
Questions to Think About: Reflective questions to deepen understanding.

Bare Act

Section 23. Decree in proceedings.—

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that
(a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified 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
(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and
(c) the petition (not being a petition presented under section 11) is not presented or prosecuted in collusion with the respondent, and
(d) there has not been any unnecessary or improper delay in instituting the proceeding, and
(e) 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.

(2) 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 reconciliation between the parties:
Provided that nothing contained in this sub-section shall apply to any proceeding wherein 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.

(3) 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.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.

Section 23A. Relief for respondent in divorce and other proceedings.—
In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim 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 on that ground.

Introduction

In any legal marriage dispute under the Hindu Marriage Act—whether it’s divorce, judicial separation, or restitution of conjugal rights—the final decision lies in the hands of the court. But before giving any judgment, the court must check whether everything is fair and lawful.

Section 23 of the Act plays this very important role. It sets out the conditions the court must check before passing a decree (final order). It also ensures that the legal process is not misused. It protects both parties and keeps the spirit of justice alive.

Meaning / Definition / Explanation

Section 23 of the Hindu Marriage Act, 1955 is all about ensuring fairness in matrimonial proceedings under The Hindu Marriage Act. It says that a court can only grant relief (like divorce or judicial separation, or restitution of conjugal rights) if certain conditions are met.. The idea is to ensure fairness and prevent misuse of the legal process. Here’s what each part means:

Section 23(1): The court will only grant relief if: In any case under this Act—whether it’s contested or not—
- Clause 1(a): If the Court is satisfied that there’s a valid reason to grant the relief, and the person who filed the petition (unless they’re relying on the specific grounds mentioned in section 5, clause (ii), sub-clauses (a), (b), or (c)) is not trying to take advantage of their own mistake or wrongdoing, and
- Clause 1(b): If the reason for divorce on the ground of adultery, cruelty and desertion (as per Section 13(1)(i)), the court must check if the petitioner must not have supported, helped, ignored, or forgiven those acts, or quietly accept (condone) the act of adultery.
  - In simple words, if your spouse cheated on you and you forgave them or even encouraged the act, you cannot later ask for a divorce on that same ground. Similarly, if the divorce is based on cruelty, and the petitioner already forgave the cruel behavior and continued to live with the spouse peacefully, then the court may not allow the divorce on that basis.
- Clause 1(bb): When a couple files for divorce with mutual consent, the court must make sure that both husband and wife have willingly agreed to divorce. Their consent should not be the result of force, cheating (fraud), or pressure (undue influence).
- Clause 1(c): The petition (not under Section 11, which deals with void marriages) should not be a secret deal or agreement between the husband and wife to get a divorce or some other relief from the court.
- Clause 1(d): The petitioner should not have waited too long to file the case without a valid reason. Delay in taking legal action can sometimes harm the case because it raises doubts about the seriousness of the issue. So, if there’s a long and unjustified delay, the court might deny the relief.
- Clause 1(e): Even if all the above points are satisfied, the court must also see if there is any other legal obstacle that stops it from granting the relief. There should be no other legal reason to deny the relief.
Section 23(2): The court must try to help the couple reconcile before granting any relief, unless the grounds for relief involve serious issues like desertion, conversion, serious communicable disease or mental disorder, where reconciliation isn’t required.
Section 23(3): To help with reconciliation, the court can adjourn the proceedings for a reasonable period not exceeding fifteen days and appoint someone (chosen by the couple or the court) to try and resolve the dispute.
Section 23(4): If a divorce is granted, both parties get a free copy of the court’s order.
Section 23A: If the respondent believes the petitioner is guilty of adultery, cruelty, or desertion, they can not only defend themselves but also ask for their own relief (like divorce or judicial separation) based on those grounds.

Interpretation

Section 23 is designed to prevent misuse of the law. The courts interpret it as a safeguard to ensure that only deserving parties get relief. For example:

The Supreme Court in Dharmendra Kumar v. Usha Kumar (1977) clarified that condoning cruelty means forgiving it explicitly or through actions, like living together happily after the cruel act. If the petitioner has forgiven the cruelty, they can’t later use it as a ground for divorce.
Similarly, in Hirachand Srinivas Managaonkar v. Sunanda (2001), the court emphasized that mutual consent for divorce must be free from force, fraud, or undue influence.
If someone is cruel to their spouse and then files for divorce claiming the spouse’s behavior, the court won’t allow it. The petitioner must have “clean hands.” In Dastane v. Dastane (AIR 1975 SC 1534), the Supreme Court said that if the petitioner’s actions contributed to the breakdown of the marriage, they can’t get relief.
If a spouse forgives or ignores the other’s wrong behavior (like cruelty or adultery), they can’t later use it as a ground for divorce. For instance, in N.G. Dastane v. S. Dastane, the court ruled that condonation means forgiving the offense, and it bars the petitioner from using that offense later.
For mutual consent divorce, the court ensures that both parties genuinely agree. If there’s any hint of force, fraud, or pressure, the divorce won’t be granted. In Sureshta Devi v. Om Prakash (AIR 1992 SC 1904), the Supreme Court emphasized that consent must be free and voluntary.
Courts take reconciliation seriously. They may involve counselors or mediators to help the couple resolve their issues. However, in cases of serious grounds like desertion or conversion, reconciliation isn’t mandatory.
This gives the respondent a chance to fight back. If the petitioner is at fault, the respondent can ask for their own relief. In Jagdish Lal v. Shyama Madan (AIR 1966 All 150), the court allowed the respondent to claim relief based on the petitioner’s cruelty.

Section 23(2) reflects the legislative intent to preserve marriages where possible. The court’s duty to attempt reconciliation shows that divorce is seen as a last resort. However, this doesn’t apply to serious grounds like leprosy or mental disorder, as listed in Section 13(1).

Types / Classifications

Section 23 can be broken down into different clauses, each addressing a specific aspect of fairness in matrimonial proceedings:

Section 23(1)(a) – No Advantage of Own Wrong: Prevents petitioners from benefiting from their own misconduct.
Section 23(1)(b) – No Condonation or Connivance: Ensures the petitioner hasn’t forgiven or supported the respondent’s wrongs.
Section 23(1)(bb) – Genuine Mutual Consent: Checks that mutual consent for divorce is free from force, fraud, or undue influence.
Section 23(1)(c) – No Collusion: Ensures the petition isn’t a secret agreement between the parties.
Section 23(1)(d) – No Unnecessary Delay: Checks that the petitioner didn’t delay filing the case unnecessarily.
Section 23(1)(e) – No Other Legal Bar: Ensures there’s no other legal reason to deny relief.
Section 23(2) – Reconciliation: Mandates the court witch try to reconcile the couple, except in certain cases.
Section 23(3) – Reconciliation Process: Allows adjournment with valid reason and appointment of a mediator for reconciliation.
Section 23(4) – Free Copy of Decree: Ensures both parties get a free copy of the divorce decree.
Section 23A – Counter-Claim by Respondent: Allows the respondent to seek relief based on the petitioner’s wrongs.

Each clause serves a unique purpose in ensuring justice and fairness.

Case Laws

Here are some key cases that explain how Section 23 is applied:

Dastane v. Dastane (AIR 1975 SC 1534): A husband filed for judicial separation, claiming his wife’s cruelty. The wife argued the husband was also cruel. The Supreme Court held that under Section 23(1)(a), the petitioner must not take advantage of their own wrong. Since the husband’s behavior contributed to the conflict, relief was denied.
Sureshta Devi v. Om Prakash (AIR 1992 SC 1904): A couple filed for mutual consent divorce, but the wife later withdrew her consent, claiming pressure. The Supreme Court emphasized that under Section 23(1)(bb), mutual consent must be free and voluntary. The divorce was not granted due to lack of genuine consent.
Hirachand Srinivas Managaonkar v. Sunanda (AIR 2001 SC 1285): The husband sought divorce, but the wife claimed he had condoned her alleged cruelty by continuing to live with her. The court held that under Section 23(1)(b), condonation bars the petitioner from using the condoned act as a ground for divorce.
Jagdish Lal v. Shyama Madan (AIR 1966 All 150): The respondent claimed the petitioner was guilty of cruelty and sought relief under Section 23A. The court allowed the respondent to make a counter-claim, showing how Section 23A protects respondents.
Savitri Pandey v. Prem Chandra Pandey (2002): Supreme Court said that mutual consent divorce should be free and voluntary, not due to pressure or fraud.
Gollins v. Gollins (UK case often cited): Court ruled that even if the ground exists, petitioner must come with clean hands (i.e., should not have done wrong himself/herself).
Saroj Rani v. Sudarshan Kumar Chadha (1984): Reconciliation efforts by the court are a duty, not just a formality.
Darshan Gupta v. Radhika Gupta (2013): Court refused divorce even though ground was proved, as petitioner had taken advantage of own wrong.

These cases show how courts carefully apply Section 23 to ensure fairness.

Multiple Choice Questions (for All India Bar Exam Preparation)

Under Section 23(1)(a) of the Hindu Marriage Act, 1955, what must the court ensure before granting relief?
a) The petitioner is not taking advantage of their own wrong.
b) The respondent agrees to the relief.
c) The marriage is at least one year old.
d) The petitioner has paid court fees.
Answer: a) The petitioner is not taking advantage of their own wrong.
When is reconciliation not mandatory under Section 23(2)?
a) In cases of mutual consent divorce.
b) In cases of cruelty or adultery.
c) In cases listed under Section 13(1)(ii) to (vii).
d) In all divorce cases.
Answer: c) In cases listed under Section 13(1)(ii) to (vii).
What does Section 23A allow the respondent to do?
a) File a separate divorce petition only.
b) Oppose the petitioner’s relief and make a counter-claim.
c) Demand alimony without defending the case.
d) Withdraw the petitioner’s petition.
Answer: b) Oppose the petitioner’s relief and make a counter-claim.
What is the maximum period for adjournment for reconciliation under Section 23(3)?
a) 7 days
b) 15 days
c) 30 days
d) 60 days
Answer: b) 15 days
If a divorce decree is passed, what must the court do under Section 23(4)?
a) Charge both parties for the decree copy.
b) Provide a free copy of the decree to both parties.
c) Send the decree only to the petitioner.
d) Publish the decree in a newspaper.
Answer: b) Provide a free copy of the decree to both parties.
Can a divorce be granted if both parties agree but are colluding to misuse the law?
a) Yes
b) Only with the court’s permission
c) No
d) Only if one party is at fault
Answer: c) No
Which of the following is not a requirement under Section 23(1)?
a) Proper ground exists
b) Petitioner paid court fees
c) No undue delay
d) Petition is not in collusion
Answer: b) Petitioner paid court fees
What is the primary duty of the court under Section 23(2)?
a) To dismiss the case
b) To order maintenance
c) To attempt reconciliation between parties
d) To punish the guilty party
Answer: c) To attempt reconciliation between parties

Questions to Think About

Why do you think the law prevents someone from benefiting from their own wrong under Section 23(1)(a)? How does this protect the institution of marriage?
Why is it important to ensure that mutual consent in divorce cases is free from force or fraud?
How does Section 23A empower the respondent in a matrimonial dispute?
Can you think of a situation where a delay in filing a petition might be considered “unnecessary” or “improper”? Why would that matter?
Do you think reconciliation should always be tried before divorce? Why or why not?
How can courts detect if parties are colluding secretly?