Court : Gujarat
Reported in : II(2003)DMC428; (2003)1GLR865
..... appeal the question of law formulated by this court as under :'wheather the respondent wife's insistence of not leaving job (service) to join her husband's matrimonial home amounts to desertion and whether the appellant husband is entitled for decree of divorce on this ground as provided under section 13(1)(i-b) of the hindu marriage act, 1955'6.13 in that case, the court considered the provisions of hindu law, judgments of the hon'ble supreme court in the case adhyatma bhattar alwar v. ..... from the explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage, therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). ..... cannot be construed as an expression of her desire to forsake her husband permanently; but after the birth of her child when attempts were made by the husband appellant, his parents and relations, she had laid down a condition that the appellant should live in a separate house from his parents taking the plea that her father-in-law had attempted to molest her, which explanation she signally failed to establish. .....
Tag this Judgment!Court : Gujarat
Reported in : (2003)1GLR309
..... committed any wrong.14.6 in my view, the respondent wife's insistence of not leaving the job and to join her matrimonial home amounts to desertion and the appellant-husband is entitled for a decree of divorce on the ground provided under section 13(1)(ib) of the hindu marriage act, 1955.14.7 i have considered the entire aspect and there is no useful purpose to have kept the parties as husband and wife particularly from 1993 both husband and wife have not stayed ..... case, the husband has filed petition somewhere in the year 1998 under section 13 of the hindu marriage act and on that day two years* period was over, and therefore, all the three conditions are fulfilled for desertion. ..... as an expression of her desire to forsake her husband permanently; but after the birth of her child when attempts were made by the husband appellant, his parents and relations, she had laid down a condition that the appellant should live in a separate house from his parents taking the plea that her father-in-law had attempted to molest her, which explanation she signally failed to establish. ..... the essential ingredients of this offence in order that it may furnish a ground for relief are :(a) the factum of separation; and (b) the intention to bring cohabitation permanently to an end - animus deserendi (c) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period.14.2 desertion in short means a total repudiation .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1970Guj137; 1970CriLJ962; (1970)0GLR581
..... of the hindu marriage act, 1955. ..... contention is that at the time when the applicant contracted re-marriage with the opponent, her previous husband was alive, and if that were so, her marriage that took place with the opponent was null and void under section 11 of the act inasmuch as it was in violation of the condition specified in cl (i) of section 5 of the act. ..... voidable marriage remains no doubt valid and it continues to subsist for all purposes unless a decree is passed by the court annulling the same on any of the grounds mentioned in section 12. ..... for the purpose of introducing this statement on record, it is difficult to see how it could not be admitted in evidence in view of section 129 or even under section 126 of the indian evidence act ..... upheld by the court and consequently it was found in agreement with the trial court, that she was not entitled to claim any maintenance for herself from the opponent as his wife under section 488 of the criminal procedure code. ..... ' for conferring the status of 'wife' on the woman, marriage must be valid ..... would certainly be expected to safeguard the interest of his client and if his client had chosen to engage some other advocate and obtain time for filing the written statement, it would be difficult to understand why mr. ..... if the intention of the legislature was that provision is to be made for even the illegitimate wife just as in the case of children where the expression 'legitimate' or 'illegitimate' is used similar expression would have been .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1974Guj111; (1973)GLR620
..... shah, learned advocate , appearing on behalf of the respondent, who has relied upon the madras full bench decision and on nagpur, bombay and the calcutta high court decisions is right when he contends that section 10 of the general clauses act will not be attracted in the instant case especially when i am here concerned with a case falling under section 12(1)(d) read with section 12(2)(b)(ii) of the hindu marriage act, 1955. ..... hariprasad vishnuprasad : air1956bom650 , has taken the view that section 9(1)(c) of provincial insolvency act, 1920, does not prescribe a period of limitation for presentation of a petition by a creditor for adjudication but sets out a condition precedent, and by applying the rule contained in section 14 of the limitation act a petition filed after the expiry of three months cannot be made to conform to the strict requirement of section 9(1)(c) of the provincial insolvency act. ..... the bombay high court in : air1962bom190 (supra) has dealt with a similar situation and has taken the view that the condition laid down in section 12(2)(b)(ii)of the act does not prescribe a period of limitation for filing a petition by the plaintiffs, it is in terms mandatory and prohibitory and provides that the court shall not entertain the petition. .....
Tag this Judgment!Court : Gujarat
Reported in : (1976)17GLR422
..... the english principle, followed in matrimonial causes, of staying the suit in such circu nstances is the best way of dealing with such a situation and the said principle should be applied in proceedings under the hindu marriage act, 1955, as a rule of justice, equity and good conscience.there is nothing in the scheme of the hindu marriage act which is opposed to the staying of a matrimonial action, for example, for non-compliance with an order made under section 24 of the act, in exercise of the inherent power of the court.9. ..... (as he then was), has also taken a view, that for non-payment of such interim alimony and costs, the suit filed under section 12 of the hindu marriage act, 1955, by the husband against the wife for a declaration that the marriage was null and void, cannot be dismissed. ..... 1963 madhya pradesh 759, and with the enunciation made in these decisions i respectfully agree.it is true that in that case, it was the husband who had filed the petition for restitution of conjugal rights under section 9 of the hindu marriage act, 1955.7. ..... the object and purpose of this provision is to enable the court to see that the indigent spouse is put in a financial condition in which the party concerned may produce proper material and evidence in the case and that a party is not handicapped in or prevented from bringing all, the relevant facts before the court for decision of the case because of his or her poverty. .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1971Guj33
..... to be discharged in matter falling within the scope of sections 10, 13 and 23 of the hindu marriage act, 1955, one of them being that in matrimonial proceedings the court had to be vigilant that the burden of proof is satisfactorily established and properly discharged by the applicant and the proof adduced is of a high degree. ..... section 21 of the hindu marriage act, 1955 deals with the procedure to be adopted, and further provides that matrimonial proceedings being of a special nature, provisions made under the act and the rules made by the high court are to be observed. ..... the high court of bombay has framed rules under sections 14 and 21 of the hindu marriage act (xxv of 1955) for carrying out the purposes of the act. ..... the rules are called the hindu marriage and divorce rules, 1955 which are contained in para 279 in chapter xv at pages 110 to 115 of the civil manual 1960 volume i. ..... it has also been laid down in the aforesaid ruling of the supreme court that:'the admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the court of fact to contend before the high court in second appeal that the said evidence is not sufficient to justify the ..... it is also laid down that in cases of this type the court must have due regard to the social conditions and the manner in which the parties are accustomed to live. .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1961Guj202; (1961)GLR536
..... on 11th april, 1957, the respondent made an application purporting to do so under the provisions contained in section 25 of the hindu marriage act, 1955, for permanent alimony. ..... used in section 28 'may be appealed from under any law for the time being in force' mean that an appeal would only lie in these cases where some other law lays down that such appeal can be preferred, then the result would be that we would have to look to the provisions of the civil procedure code in order to consider whether any appeal is provided under the code in respect of decrees and orders passed under the hindu marriage act, 1955. ..... it was there held that section 28 of the hindu marriage act, 1955, did not provide any appeal against every order made by a court in proceedings under the act, 'but against only such of them as fall within the definition of the term 'decree' as defined in section 2, sub-section (2) of the civil procedure code, 1908, or with legard to which an appeal is provided under the code. ..... he says that the words 'while the applicant remains unmarried' indicate the period during which the amount of alimony or maintenance is required to, be paid and indicate the condition subject to which such alimony and maintenance is required to be paid. ..... in such cases the order must be made conditional, its operation being dependent upon the applicant remaining unmarried. .....
Tag this Judgment!Court : Gujarat
Reported in : I(2000)DMC431
..... there might be cases wherein prior to the 1978 amendment parents might have given a minor girl in marriage quite within the validity criteria as appearing in section 5 of the hindu marriage act, 1955. ..... section 5 deals with conditions for a hindu marriage and clause (iii) in the context says that a marriage may be solemnized between any two hindus, if the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage. ..... section 5 prescribes six conditions for valid marriage. ..... the statute thus prescribes conditions for valid marriage and also does not leave it to inference that each one of such conditions is mandatory and a contravention, violation or breach of any one of them would be treated as a breach of a prerequisite for a valid marriage rendering it void. ..... the law while prescribing conditions for valid marriage simultaneously prescribes that breach of some of the conditions but not all would render the marriage void. ..... two incontrovertible propositions emerge from a combined reading of sections 5 and 11 and other provisions of the act, that the act specifies conditions for valid marriage and a marriage contracted in breach of some but not all of them renders the marriage void. ..... section 18 prescribes punishment for contravention of some of the conditions prescribed for valid marriage in s. 5. .....
Tag this Judgment!Court : Gujarat
Reported in : (1999)2GLR1422
..... there might be cases wherein prior to the 1978 amendment parents might have given a minor girl in marriage quite within the validity criteria as appearing in section 5 of the hindu marriage act, 1955. ..... section 5 deals with conditions for a hindu marriage and clause (iii) in the context says that a marriage may be solemnized between any two hindus, if the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage. ..... section 5 prescribes six conditions for valid marriage. ..... the statute thus prescribes conditions for valid marriage and also does not leave it to inference that each one of such conditions is mandatory and a contravention, violation or breach of any one of them would be treated as a breach of a prerequisite for a valid marriage rendering it void. ..... the law while prescribing conditions for valid marriage simultaneously prescribes that breach of some of the conditions but not all would render the marriage void. ..... two incontrovertible propositions emerge from a combined reading of sections 5 and 11 and other provisions of the act, that the act specifies conditions for valid marriage and a marriage contracted in breach of some but not all of them renders the marriage void. .....
Tag this Judgment!Court : Gujarat
Reported in : (1992)2GLR1317
..... contention which was raised before the calcutta high court was that any person who was a hindu by religion or a buddhist or a jain or a sikh by religion must necessarily be domiciled in india for the purpose of application of the hindu marriage act, 1955. ..... before the calcutta high court was under the hindu marriage act, 1955. ..... would not change merely because the words to the effect that the act applied also to hindus domicile in territories to which the act extended but were outside such territories are not incorporated in section 1(2) of the hindu adoptions and maintenance act unlike section 1(2) of the hindu marriage act. ..... high court held that, from a closer examination of the material provisions it followed that a hindu as defined by section 2 of the hindu marriage act, would be governed by the provisions of that act irrespective of the question whether he had at the same time acquired a domicile in india. ..... to be taken to his adoptive parents in the united states by an interim relief granted by this court on 6-12-1989 requiring the regional passport officer to issue passport in the new name of the minor child gaurangkumar on the condition that the petitioner who is the natural grandfather of the child wiil produce the minor before the court as and when required. ..... held that citizenship was not a necessary or imperative qualification for application of that act when the legislature itself had omitted to make such a qualification a condition precedent to hindus residing in india. .....
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