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    The document discusses whether divorce and maintenance can be granted within one year of marriage for non-consummation. It states that while the law does not allow divorce petitions within one year, petitions for annulment due to non-consummation can be filed within one year. The courts have held that non-consummation constitutes mental cruelty and can be grounds for divorce or annulment. However, non-consummation does not affect a wife's right to maintenance from her husband, as she retains her status as a wife regardless of consummation. The courts have upheld that a wife is entitled to maintenance even if the marriage is non-consummated or annulled.

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    The document discusses whether divorce and maintenance can be granted within one year of marriage for non-consummation. It states that while the law does not allow divorce petitions within one year, petitions for annulment due to non-consummation can be filed within one year. The courts have held that non-consummation constitutes mental cruelty and can be grounds for divorce or annulment. However, non-consummation does not affect a wife's right to maintenance from her husband, as she retains her status as a wife regardless of consummation. The courts have upheld that a wife is entitled to maintenance even if the marriage is non-consummated or annulled.

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    46 views3 pages

    Whether Divorce and Maintenance Can Be Granted Within One Year of Marriage For Nonconsummation

    Uploaded by

    Dolphin
    The document discusses whether divorce and maintenance can be granted within one year of marriage for non-consummation. It states that while the law does not allow divorce petitions within one year, petitions for annulment due to non-consummation can be filed within one year. The courts have held that non-consummation constitutes mental cruelty and can be grounds for divorce or annulment. However, non-consummation does not affect a wife's right to maintenance from her husband, as she retains her status as a wife regardless of consummation. The courts have upheld that a wife is entitled to maintenance even if the marriage is non-consummated or annulled.

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    of 3

    Whether Divorce and Maintenance can be granted within one year of marriage for non-

    consummation?

    Vidhik Kumar∗

    Non-Consummation: A Ground for Divorce

    Law is well settled on the issue of whether a person can file divorce within one year of marriage. Section
    141 of the Hindu Marriage Act, 1955 expressly provides that no petition for divorce should be presented
    within one year of marriage. Opening with a non-obstante clause, it states that no court shall be competent
    to entertain a petition, unless on the date of presentation of such petition one year since the date of marriage
    has elapsed. In other words, the marriage should complete one year of duration before divorce can be filed.
    However, if it appears to the court, that the case is of rare nature and there exists extreme hardship to the
    petitioner, it may allow the petition to be presented before the lapse of period of one year after the marriage,
    as provided in provision to section 14(1). Though there exists restriction on filing of a divorce petition within
    one year of marriage, there exists no such limitation on filing a petition for annulment of marriage within one
    year.2 Section 12(1)(a) of the Hindu Marriage Act, 1955, further provides that a decree of nullity can be
    obtained if the marriage is not consummated due to impotency of the respondent.

    Depending upon the facts and circumstances of a case, the court can either declare the marriage
    to be nullity or grant divorce to the couple. The Supreme Court in Sirajmohmedkhan Janmohamadkhan
    v. Hafizunnisa Yasinkhan & Anr3held that the impotence of a husband and his inability to discharge his
    marital duties amounts to mental &legal cruelty and thus is a just reason for the wife to not live with her
    husband. Whereas, in the case of Indu v. Latheesh K.P.4 the husband was potent and had made recurring
    attempts to consummate the marriage but all his efforts turned to be futile due to resistance expressed by

    ∗ National University of Study and Research in Law, Ranchi., VI semester.


    1
    Hindu Marriage Act, 1955, section 14:
    No petition for divorce to be presented within one year of marriage. -
    (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of
    marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the
    marriage: Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court
    in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case
    is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the court
    at the hearing of the petition that petitioner obtained leave to present the petition by any mis-representation or concealment of the
    nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until
    after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be
    brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the
    petition so dismissed.
    (2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from
    the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there
    is a reasonable probability of a reconciliation between the
    2
    Hindu Marriage Act, 1955, Section 11 & 12.
    3
    Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan & Anr, AIR 1981 SC 1972 (1981).
    4
    Indu v. Latheesh K.P. MANU/KE/1510/2017, (2017).

    Published in Article section of www.manupatra.com


    his wife. The wife after being examined by the medical board was declared healthy and free from any
    structural incapacity. In the light of these findings and facts put forward by both the parties the court held
    that the wife’s denial was due to an invincible repugnance to the act of consummation, and thus the husband
    was entitled to a decree of nullity. It was further laid down in Samar Ghosh v. Jaya Ghosh5 that a unilateral
    decision of refusal to have intercourse for considerable period without there being any physical incapacity
    or valid reason may amount to mental cruelty6, and thus is a ground for divorce. The court was also of the
    view that no standard procedure to determine cruelty can be laid down and thus every case should be
    judged on its merits. It further stated that physical intimacy between a married couple is an essential part
    of marriage, and a constant refusal of physical intimacy for a long period strikes at the core of the marriage. 7

    Non_Consummation not a Ground to Reject Maintenance.

    Through a plethora of judgments, Indian courts have observed that non-consummation of marriage neither
    affects the status of spouses as husband and wife nor does it makes a wife unfit for claiming maintenance.
    The Supreme Court in Rohtash Singh v. Ramendri8observed that there exist two distinct rights for
    maintenance with a woman: firstly, she is entitled to maintenance as a wife unless she suffers from any of
    the disabilities mentioned in section 125(4) of Code of Criminal Procedure. Secondly, as a divorced woman,
    she is entitled to claim maintenance from the person to whom she was once married to. The court further
    stated, that if such a woman doesn’t remarry, then she becomes a destitute, and there exists an obligation
    on the husband to provide maintenance. The Madras high court in K.S. Ravichandran v. SivanandaVijaya
    Lakshmi9 rejecting the argument of the petitioner, that due to non-consummation the respondent cannot
    be called the petitioner’s wife and thus is not entitled to maintenance, held: firstly, that there exists no law
    which provides that due to non-consummation of marriage the husband and wife doesn’t acquire/ retain the
    status of husband and wife and secondly, without accepting the status of the petitioner as wife the petitioner
    wouldn’t have filed a petition for divorce. The court further held that a wife is entitled to claim alimony even
    in such cases. Since the ambit of alimony is very wide, it could even be provided for marriages declared as
    nullity, and not just in cases of divorce and judicial separation.

    The Kerala High Court in SheejaKumari R.C. v. Praveen S.R.10 also observed that a wife cannot
    be deprived of maintenance under section 24 11 of the Hindu Marriage Act, 1955 due to non-consummation
    of marriage. The court was of the view that an application for pendente lite maintenance can be filed in any
    proceedings under the Hindu Marriage Act 1955 (sections 9 to 13) and any application made after disposal
    of the main petition has no independent existence. An application which is pending under section 12 of the

    5
    Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, (2007).
    6
    S. Savitha v. Velmurugan, (2017) 3 MWN (Civil) 614, (2017).
    7
    Pushpa Rajai v. Jai Prakash Lalwani, 2013 (138) DRJ 727, (2013).
    8
    Rohtash Singh v. Ramendri, AIR 2000 SC 952, (2000).
    9
    K.S. Ravichandran v. SivanandaVijaya Lakshmi, (2012) 2 LW 551 (DB), (2012).
    10
    SheejaKumari R.C. v. Praveen S.R., AIR 2015 Ker 135, (2015).
    11
    Hindu Marriage Act, 1955, section 24.

    Published in Article section of www.manupatra.com


    Hindu Marriage Act, 1955 cannot be a ground for denying maintenance .Also The Apex court in
    Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan & Anr12quashed the order of the
    Magistrate where he had denied maintenance to a wife not living with his husband due to his impotency
    and non-consummation of marriage. Overruling the Magistrate’s judgement, the court held that impotence
    of a husband and his inability to discharge his marital duties amounts to mental &legal cruelty and thus is
    a just reason for the wife to not live with her husband and such wife is fit for maintenance. In fact, a Single
    Judge Bench of the Karnataka High Court held that a wife is entitled to maintenance even if the marriage
    is not a consummated one and there exists no sexual relationship between the partners. The court while
    resolving the issue regarding permanent alimony and maintenance observed that even if the wife is not
    eligible to claim permanent alimony she is rightly entitled to an interim maintenance till the proceedings are
    ongoing. The court further stated that to be entitled to maintenance, divorce is not a requirement. 13

    Conclusion

    Physical intimacy is a prerequisite of a marital relationship and refusal to non- consummation strikes at the
    root of the marriage. It amounts to mental cruelty and is considered to be a valid ground for divorce or
    decree of nullity for marriage. However, such a decree doesn’t affect the wife’s right to maintenance. The
    courts have clearly established that non-consummation of marriage doesn’t affect the status of spouses as
    husband and wife. A woman is entitled to maintenance even though the marriage is not consummated.
    Even during the pendency of a case and an ongoing proceeding, she can claim maintenance. Also, divorce
    is not the sole requirement for granting alimony. It can also be provided in cases of nullity of marriage. The
    only time a woman is not entitled to maintenance is if she falls in the category as mentioned under section
    125(4) of Code of Criminal Procedure, 1973.

    12
    Supra note 7.
    13
    Supra note 2.

    Published in Article section of www.manupatra.com

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