Powers and Duties of a Court in a Proceeding under the Hindu Marriage Act, 1955

The powers of the courts are the following:

(i) Conducting the proceeding in camera and not in open court. Matters in relation to proceedings cannot be published except with the previous permission of the court (s. 22).

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(ii) Ordering payment of maintenance pending the disposal of the proceedings. Such maintenance may be ordered to be paid monthly when one of the parties (whether it is husband or the wife) has no independent income sufficient for support (s. 24).

(iii) Ordering payment of permanent alimony while passing the final order. The order may be rescinded when the party to whom alimony was ordered to be paid remarries or when such party being the wife has ceased to be chaste or being the husband has had sexual intercourse outside wedlock. The order may also be modified when there is change in circumstances (s. 25).

(iv) Making suitable provision in regard to the custody, maintenance and education of the minor children. The wishes of such children should also be taken into account (s. 26).

(v) Making suitable provisions in regard to the property’ which has been presented to the husband or wife.

The duties of the court are:

(a) To try to effect a reconciliation between the parties (s. 23 (2)).

(b) To see that the parties are not acting collusively; that the party seeking relief is not taking advantage of his or her own wrongs or has been guilty of improper delay in seeking relief.

(c) As far as possible, to act consistently with the wishes of minor children in regard to their custody (s. 26).

Scope:

Section 27 does not convert the striahana property of the wife into joint property of the husband and the wife. Some courts thought that such was the effect of this section. The correct view was propounded by the Supreme Court in Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628. In that case at the time of the marriage the parents of bride gave her ornaments worth about Rs. 60,000/-.

The wife entrusted them to her husband and in-laws. She was driven out of the matrimonial home after a few years but the ornaments were not returned to her. So she prosecuted them under s. 405 of the IPC for criminal breach of trust. The High Court of Punjab and Haryana was of the opinion that her remedy was only the civil remedy under s. 27 of this Act.

This was because they thought that in the matrimonial home the property was no longer the separate or exclusive property of the wife. The Supreme Court reversed this decision by a majority. They held that what was stridhana of the wife does not lose that character simply because she is living in the matrimonial home.

The entrustment was proved. So the misappropriation constitutes a breach of trust punishable under s. 405 of the IPC. Accordingly it was directed that the lower court should proceed with the criminal case.

On dissolution of marriage by mutual consent the flat in which they were living at the time of divorce was in the name of both husband and wife, the wife is entitled to 50 percent of the share of that property by putting into sale in accordance with law when it cannot be equitably distributed, otherwise. Sunita Shankar Salvi v. Shankar Laxman Salvi, AIR 2003 Bom 431.