Section 23 HMA: Decree in proceedings
Hindu Marriage Act, 1955
Section 23 HMA at a Glance
Section 23 HMA sets the conditions a court must verify before granting a decree under the Hindu Marriage Act, 1955, even in undefended cases. Section 23 HMA also governs reconciliation efforts (up to 15 days) and free divorce decree copies.
Section 23 HMA Bare Act Text
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 *** or 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.
Amendments to this section
- Ins. by s. 16, ibid. (w.e.f. 27-5-1976).
- The words, brackets, letter of figure "in clause (f) of sub-section (1) of section 10, or" omitted by Act 68 of 1976, s. 16 (w.e.f. 27-5-1976).
- Subs. by s. 16, ibid., for "the petition" (w.e.f. 27-5-1976).
- Added by s. 16, ibid. (w.e.f. 27-5-1976).
Section 23 HMA in Simple Words
Section 23 HMA lays down what a court must check before passing any decree under the Hindu Marriage Act, 1955, whether the respondent defends the petition or not. Under Section 23(1)(a) HMA, a legal ground for relief must exist and the petitioner must not be taking advantage of the petitioner's own wrong or disability, except where the petitioner seeks relief on the mental capacity grounds in Section 5(ii)(a), (b), or (c) HMA. Under Section 23(1)(b) HMA, where the petition relies on voluntary sexual intercourse outside marriage under Section 13(1)(i) HMA, the petitioner must not have been accessory to, connived at, or condoned the act, and where the petition relies on cruelty, the petitioner must not have condoned the cruelty.
Under Section 23(1)(bb) HMA, if divorce is sought on the ground of mutual consent, that consent must not have been obtained by force, fraud, or undue influence. Under Section 23(1)(c), (d), and (e) HMA, the petition (unless filed under Section 11 HMA for a void marriage) must not be presented or prosecuted in collusion with the respondent, there must be no unnecessary or improper delay in instituting the proceeding, and there must be no other legal ground against granting relief. Only when all applicable conditions are satisfied, and not otherwise, does the court decree the relief.
Before granting any relief, Section 23(2) HMA places a duty on the court in the first instance to make every endeavour to bring about reconciliation between the parties, wherever possible consistently with the nature and circumstances of the case. Under the proviso to Section 23(2) HMA, reconciliation efforts do not apply where relief is sought on any ground in Section 13(1)(ii), (iii), (iv), (v), (vi), or (vii) HMA, covering conversion from Hinduism, specified incurable unsoundness of mind or mental disorder, the omitted clause (iv), communicable venereal disease, renouncing the world by entering a religious order, or not being heard of as alive for 7 years or more.
To assist with reconciliation, Section 23(3) HMA allows the court, if the parties so desire or if the court thinks it just and proper, to adjourn the proceeding for a reasonable period not exceeding 15 days. The court may refer the matter to a person named by the parties, or to a court nominee if the parties fail to name anyone, with directions to report whether reconciliation can be and has been effected, and the court must give due regard to that report when disposing of the proceeding.
Under Section 23(4) HMA, whenever a marriage is dissolved by a decree of divorce, the court passing the decree must give a copy of the decree free of cost to each party. Act 68 of 1976 (section 16) amended Section 23 HMA with effect from 27 May 1976.
When Section 23 HMA Applies
- A ground for relief exists and the petitioner is not taking advantage of the petitioner's own wrong or disability (except under Section 5(ii)(a), (b), or (c) HMA).
- No accessory role, connivance, or condonation under Section 13(1)(i) HMA, and no condonation where the ground is cruelty.
- Mutual consent (where applicable) is free from force, fraud, or undue influence, and there is no collusion (except in Section 11 HMA petitions).
- There is no unnecessary or improper delay in instituting the proceeding and no other legal ground against granting relief.
- The court first endeavours to bring about reconciliation where possible (unless excluded by the Section 23(2) HMA proviso), with optional adjournment up to 15 days.
- On passing a decree of divorce, the court gives each party a copy of the decree free of cost.
Example of Section 23 HMA
When Section 23 HMA Does Not Apply
- The rule in Section 23(1)(a) HMA barring a petitioner from taking advantage of the petitioner's own wrong or disability does not apply where the petitioner seeks relief on a ground in Section 5(ii)(a), (b), or (c) HMA.
- The bar against collusion with the respondent in Section 23(1)(c) HMA does not apply to a petition presented under Section 11 HMA (void marriages).
- The court's duty to endeavour to bring about reconciliation under Section 23(2) HMA does not apply where relief is sought on any ground in Section 13(1)(ii), (iii), (iv), (v), (vi), or (vii) HMA.
FAQs on Section 23 HMA
What is Section 23 HMA?▼
Section 23 HMA governs when and how a court grants a decree in any proceeding under the Hindu Marriage Act, 1955. Section 23 HMA requires the court to verify statutory bars even in undefended cases, attempt reconciliation where applicable, and supply free copies of divorce decrees to both parties.
Does a court grant an HMA decree automatically if the respondent does not contest the case?▼
No. Section 23(1) HMA applies whether a proceeding is defended or not, so the court grants relief only if satisfied that every applicable condition in Section 23(1) HMA is met.
For how long can the court adjourn a case for reconciliation under Section 23(3) HMA?▼
Up to 15 days. Under Section 23(3) HMA, the court may adjourn the proceedings for a reasonable period not exceeding 15 days and refer the matter to a person named by the parties or nominated by the court.
When is the court not required to attempt reconciliation under Section 23(2) HMA?▼
In petitions under Section 13(1)(ii), (iii), (iv), (v), (vi), or (vii) HMA. The proviso to Section 23(2) HMA excludes those grounds from the reconciliation duty.
Do parties have to pay for the copy of a divorce decree given under Section 23(4) HMA?▼
No. Under Section 23(4) HMA, in every case where a marriage is dissolved by a decree of divorce, the court passing the decree must give a copy of the decree free of cost to each party.
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Sources: Bare Act Text, Hindu Marriage Act, 1955 ·