(a) Neither party should be suffering from mental disorder, though falling short of unsoundness of mind.
(b) Neither party should have been subject to recurrent attacks of epilepsy or insanity.
(ii) Restitution of Conjugal Rights:
The burden of proving that there was reasonable excuse for withdrawal of conjugal rights is placed upon the person who has withdrawn from such society.
(iii) Judicial Separation:
The elaborate enunciation of grounds for judicial separation has been omitted. Now the grounds for judicial separation are identical with those for a petition for divorce.
This has considerably simplified the law on this subject. This remedy can be given as an alternative to divorce in several cases (s. 13-A). Discretion is conferred upon the court for this purpose.
(iv) Voidable Marriage:
(a) Impotency is a ground for annulling the marriage. It is not necessary now to show that the disability existed at the time of the marriage. What is to be proved is that the marriage has not been successfully consummated.
(b) Fraud is a ground of annulment. It is clarified that such fraud may be as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent.
(v) Status of Children of Void and Voidable Marriage:
In the case of a void marriage the previous state of the law as reflected in some judicial decisions was that unless a decree of nullity was obtained, the children of the marriage were illegitimate. Now by a fiction legitimacy is conferred upon such children irrespective of the passing of such a decree. The effect of the fiction is to clothe them with rights of inheritance to their parents though not to other relations.
(vi) Jurisdiction of Courts:
(a) The amendment of 1976 makes it clear that a petition for matrimonial relief can be filed in the District Court within whose jurisdiction the respondent resides. Further, it has been clarified that when the respondent is outside the territory of India or has not been heard of for 7 years the petition can be filed within the jurisdiction of the District Court where the petitioner resides.
(b) Power to Transfer:
Since both parties to the marriage can concurrently pursue their remedies, there may be two petitions at the same time if both petitions are in the same court, they should be clubbed together. If they are pending in different courts the later filed petition should be transferred to the file of the court where the earlier filed petition was pending. The idea is that both petitions should be heard and disposed of together.
(c) Time-Limits for Disposal:
To ensure speedy disposal, it is provided that a petition should be disposed of within 6 months from the date of service of notice on the respondent. An appeal should be disposed of within 3 months from the date of service of notice of appeal on the respondent.
(d) Relief for Respondent:
When a petition was opposed on the ground of the petitioner’s cruelty, adultery or desertion, the court may grant appropriate relief to the respondent in the same proceeding without driving him or her to the necessity of filing a separate petition.
(e) Power to Vary, Modify or Rescind Decree:
A decree for permanent alimony and maintenance ensured only till the marriage of the decree-holder. Such decree had to be rescinded if the decree- holder being the husband had sexual intercourse outside wedlock. Now the 1976 amendment provides that these are changed circumstances and the court has discretion to vary, modify or rescind the decree as it deems fit.
(f) Provision for Appeals:
The Act did not contain specific provision for appeals. This has now been remedied and explicit provision is made in the legislation of 1976 for appeals from orders or decrees passed under this Act. There can be no appeal merely from an order as to costs or from an interim order.
Such are the vital changes effected by the legislation of 1976 in the law as to marriage. It would be observed that the Amending legislation reflects a progressive outlook, and the changes are designed to simplify and liberalize the provisions relating to matrimonial relief’s. The occasion has been utilised for resolving conflicts of judicial opinion, clarifying certain points and providing for expediting the disposal of proceedings under the Hindu Marriage Act of 1955.