Friday, November 29, 2024

SECTION 12 (1)(a) HMA –IMPOTENCY AND NULLITY OF MARRIAGE

 


SECTION 12 (1)(a) HMA –IMPOTENCY AND Nullity of marriage

That the Hindu Marriage Act (HMA) 1955 contains different grounds for seeking divorce as contained in section 13 of the said Act and even divorce by mutual consent is enshrined in Section 13 B of HMA. However, the marriage could be declared as nullity if one of the spouse is impotent or infertile. The grant of nullity of marriage is distinct from grant of divorce in as much as the existing marriage is annulled by decree of divorce as per the provisions of Section 13 of HMA and on account of various parameters laid down under that provision. The declaration of nullity of marriage however hits the root of marriage and it generally predicates upon no marriage-since the marriage is alleged to be not consummated right from inception. The aspect of nullity is contained in section 12 (1)9a) of HMA 1955 and shall be deliberated at length here-in-below while also analyzing the provisions of section 13 (1)(ia) of HMA.      

The Delhi High Court had the occasion to deal with the issue in a matter captioned as RM Vs M K AIR 2015 DELHI 197 ( The complete name withheld).  

(1) In RM (Supra), the ld Additional District Judge had granted decree of divorce under section 13 (1)(1a) of HMA, whereas relief sought under Section 12 (1)(a) of the HMA on the ground of alleged impotency of husband was declined. The wife was thus aggrieved on account of the fact that order u/s 12 (1) (a) for nullity of marriage was not granted.   The moot point raised was whether even after granting of decree of divorce in favour of wife, could a wife, still insists on seeking nullity of marriage u/s 12 (1)(a) of HMA? Moreover, whether appeal against declining the relief u/s 12 (1) 9a) of HMA 1955 shall be maintainable is another angle requiring deliberation. According to respondent husband, an appeal would only lie against the decree passed under HMA, as provided for under Section 28 of the HMA. The reliance was placed on Ganga Bai Vs.Vijay Kumar 1974 AIR (SC) 1126 and in Sanjay Chahal Vs Narendra Singh (2007) 97 DRJ 91, in support of the submission that the appeal is not maintainable. It was also urged by the respondent husband that the wife in her original petition shall reflect that only a decree of divorce was sought not a decree of nullity. The title of the petition reads "Petition under Section 13 (1)(ia) read with section 12 (1) (a) of the Hindu Marriage Act for divorce on the ground of cruelty".  According to respondent husband even the prayer made in the petition did not contain prayer for a decree of nullity on the ground that the marriage is voidable at the instance of the petitioner, on account of the alleged impotence of the respondent.  It was thus contended that a prayer, which was not made before the learned ADJ, cannot be sought before the high court in appellate jurisdiction.

(2) The Delhi High Court however in the above case has held that it is a settled preposition in law that the pleadings of the parties have to be read in their entirety, and cannot be read in piecemeal manner. The reliance was placed on Ponnala Lakshmaiah Vs Kommuri Pratap Reddy & Ors, (2012) 7 SCC 788, where the Supreme Court observed as follows:

"5. ... ... ... ... The averments made in the plaint or petition cannot be read out of context or in isolation. They must be taken in totality for a true and proper understanding of the case set up by the Plaintiff.

6. This Court has in Udhav Singh Vs Madhav Rao Scindia, (1977) 1 SCC 511 given a timely reminder of the principle in the following words:

"33. We are afraid, this ingenious method of construction after compartmentalisation, dissection, segregation and inversion of the language of the paragraph, suggested by Counsel, runs counter to the cardinal canon of interpretation, according to which, a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole.""

(3) Thus, the Delhi High Court in RM (Supra) has held that merely, because, the heading of the petition does not contain the words, such as, "A petition to seek a decree of nullity", it shall not imply that the petition was preferred only under Section 13 (1)(ia). It was also noted that in the heading itself the petitioner had invoked Section 12 (1)(a) of the HMA. Moreover, the averments were made by the petitioner/ appellant about alleged impotence of the respondent. It was alleged that the marriage was not consummated because the Respondent never offered himself for a complete sexual intercourse with the Petitioner. It was also alleged that the petitioner was not aware that the respondent was impotent and thus the very foundation of the marriage was based on false and incorrect information given by the respondent.

(4)  It is further held by Delhi High Court that averments in clear terms has alleged impotence of the respondent and even the prayer clause shows that under prayer (b) the petitioner appellant had sought nullity of the marriage on account of non- consummation of marriage under Section  12 (1)(a)  of the HMA. In any case, if in pith and substance the relief sought is evident, the inept drafting of the petition by the counsel shall not take away from it, the substance of the prayer, which essentially was to seek a decree of nullity of the marriage under Section 12 (1) (a) of the HMA. What is borne out from above that the petitioner had preferred a composite petition, instead of preferring two separate petitions - one under Section 12 (1) (a) of the HMA, and the other under Section 13 (1) (ia) of the HMA..

(5) The impugned judgment shows that the learned ADJ that the ld ADJ was aware about the fact two separate and independent causes of action, i.e. one under Section 12 (1(a) and the other under Section 13 (1(ia) of the HMA had been clubbed in the same petition by the petitioner/ appellant. The learned ADJ however while dismissed the petition on the ground of impotence under Section 12 (1)(a), whereas a decree of divorce under Section 13 (1)(ia) of the HMA was granted.

(6) According to Delhi High Court in RM (Supra) the reliance on Ganga Bai (supra), which has been followed in Sanjay Chahal (Supra) is misplaced. The aforesaid cases relied upon by the respondent were held to be of no help to the respondent , because these cases related to assailing in appeal some finding returned by the original Court and the appeal was not directed against the judgment & decree deciding the proceeding one way or another. However, in the present case, the petition of the petitioner/ appellant under Section 12 (1)(a) of the HMA was rejected by the impugned judgment. The petitioner cannot be penalized , merely because, a composite petition was preferred, and the petition for divorce was allowed. The dismissal of Section 12 (1)(a) in the circumstances shall not render a petitioner/ appellant, remediless.

                    ANALYSIS of SECTION 123 (1)(a) and 13 (1) (ia) of HMA

S.N

Section 12 (1) (a)

Section 13 (1(ia)

1.

Deals with separate cause of action

Deals with separate cause of action

2.

Nature of relief sought under it is separate and qualitatively different

Nature of relief sought under it is separate and qualitatively different

3.

The petitioner is entitled to seek a decree of nullity of the marriage i.e for a declaration that there was no marriage in the eyes of law

The decree seeks to dissolve a valid marriage on one of the grounds specified under it

4.

The relief of annulment of the marriage impinges on the marital status of the petitioner. A decree of nullity would mean that she/ he was never legally married to the respondent

The decree of divorce merely grants the status of a divorcee to the petitioner,

5.

Alleged impotence of the respondent, leading to alleged non-consummation of marriage, is a ground to seek a decree of nullity under this section

The alleged impotence is not a ground to seek a decree of divorce.

 

(7) According to the respondent, since the appellant wife has already been granted divorce under Section 13 (1)(ia) of the HMA, and as the marriage already stands dissolved by decree of divorce, therefore, the marriage cannot be annulled at this point of time. In order to annul a marriage, there has to be a subsisting marriage, which is not the case. Moreover, it was also contended that the appeal is not maintainable, as an appeal under Section 28 of the HMA would lie only against a decree. The Section 28(1) uses the expression: "All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction". Therefore, it was submitted that the dismissal of the petition under Section 12 (1)(a) of the HMA does not tantamount to a decree. It is only when a petition is allowed, that it culminates into a decree. 

(8) The hon’ble Delhi High Court in RM (Supra) has observed that in his written statement, the respondent did not lead any evidence to substantiate the claim against impotency. Thus, there was no basis for the Court to accept the ipsi dixit of the respondent. Significantly, a bare reading of Section 12 (1)(a) and Section 12 (2) shows that the ground of impotence of the respondent, which has resulted in the marriage not being consummated, is an absolute ground, which enables the petitioner to avoid the marriage and seek a decree of nullity. It may be noted that Section 12 (2) sets out circumstances in which a petition to seek nullity of marriage on grounds set up in Section 12 (1)(c) and Section 12 (1)(d). However, in relation to the grounds set up in clause (a) of Section 12 (1) of the HMA, there are no such limitations. What shall further be evident that the respondent has not established that his incapacity was known to the appellant/ petitioner even prior to the marriage. It cannot be said or alleged that that a normal sexual life cannot be the basis of marriage, as  it is altogether against the very grain of a marriage.

(9) The respondent failed to contest the petition seeking annulment of the marriage under Section 12 (1)(a)  and he further avoided getting himself examined by a Medical Board as directed by the court. The Delhi High Court therefore, in RM (Supra) in para 27 has held as under:

“27. There is no merit in this submission of learned counsel for the respondent that the present is an academic exercise. Merely because the appellant has already been granted divorce under Section 13 (1)(ia) of the HMA and the marriage stands dissolved by a decree of divorce, it cannot be said that the marriage could not be annulled on the grounds given under Section 12 (1)(a) of the HMA. As noticed hereinabove, the two provisions deal with separate causes of action, and are premised upon qualitatively and materially different fact situations. Even the relief granted is qualitatively and materially different inasmuch, as, by a decree of divorce, a valid marriage is dissolved; whereas a decree under Section 12 (1)(a) declares the marriage to be a nullity, i.e. there was no marriage in the eyes of law. The status of the petitioner in the first case - post the decree, is that of a divorcee, whereas in the second case, it is that of an unmarried person. The said status has different connotations for the petitioner in the society, and the future marriage prospects of the petitioner hinge on the nature of relief granted by the Court, in case he/ she wishes to re-marry. A decree of annulment of the marriage under Section 12 (1)(a) relates back to the date of marriage, since the marriage is held to be a nullity. On the other hand, the decree of divorce operates only prospectively. Thus, it is not merely an academic exercise when the petitioner/ appellant seeks a decree of nullity of marriage under Section 12 (1) (a), even though a decree of divorce under Section 13 (1)(ia) has already been granted”.

Thus, in view of the foregoing, a decree of nullity of the marriage between the appellant and the respondent was passed under Section 12 (1)(a) of the HMA on the ground that the marriage has not been consummated on account of the impotence of the respondent.

                                  --------

                                  Anil K Khaware

Founder & Senior Associate

                          Societylawandjustice.com

 

Wednesday, November 20, 2024

LAW ON GRANTING OF PRE-AWARD INTEREST BY ARBITRATOR

 


LAW ON granting OF PRE-AWARD interest by arbitrator

 

The arbitrator is a creature of the agreement and the power of the arbitrator in a dispute emanates from the terms of the agreement and what is prohibited in the agreement, generally speaking cannot be provided by the Arbitrator. However, if there has not been specific prohibition, how the issues should be dealt with is a moot point and therefore law courts have dealt with the matter and the issue is now well settled. The present write up in the aforesaid canvas is relating to grant of interest. Whether Arbitrator can grant interest, if not specified in the agreement and if so, whether pre-award or post award interest can be granted by the Arbitrator?  

To reiterate the power of the Arbitrator to award pre-reference and pendente lite interest is not restricted when the agreement is silent, on whether interest can be awarded7 or does not contain a specific term that prohibits the same. The section 31(7) of the Arbitration & Conciliation Act 1996 deals with grant of interest. The relevant provision is extracted hereunder for ready reference.

 

31. Form and contents of arbitral award.—

(7) (a) Unless otherwise agreed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.

(b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of two per cent higher than the current rate of interest prevalent on the date of award, from the date of award to the date of payment.

Explanation.—The expression “current rate of interest” shall have the same meaning as assigned to it under clause (b) of section 2 of the Interest Act, 1978 (14 of 1978).”

 

 

1940 Act and 1996 Act: Comparison

 

 

The wording of Section 31(7) (a) marks a departure from Arbitration Act, 1940 in two ways: first, it does not make an explicit distinction between pre-reference and pendente lite interest, as both of them are provided for under this subsection;

second, it sanctifies party autonomy and restricts the power to grant pre-reference and pendente lite interest, the moment, the agreement bars payment of interest, even if it is not a specific bar against the Arbitrator.(Ref: Sayeed Ahmed and Company v. State of Uttar Pradesh, (2009) 12 SCC 26).

The power of the Arbitrator to grant pre-reference interest, pendente lite interest, and post-award interest, under Section 31(7) of the Act is fairly well-settled. The judicial determinations also highlight the difference in the position of law under the Arbitration Act, 1940. The following propositions can be summarized from a survey of these cases:

 

(i)   Under the Arbitration Act, 1940, there was no specific provision that empowered an Arbitrator to grant interest. However, through judicial pronouncements, this Court has affirmed the power of the Arbitrator to grant pre-reference, pendente lite, and post-award interest on the rationale that a person who has been deprived of the use of money to which he is legitimately entitled has a right to be compensated for the same.

 

(ii) When the agreement does not prohibit the grant of interest and a party claims interest, it is presumed that interest is an implied term of the agreement, and therefore, the Arbitrator has the power to decide the same.

(iii)      The Supreme Court has consistently  taken  strict view under the 1940 Act, whereby strict construction of contractual clauses that prohibit the grant of interest were held to be the norm and it is construed that that the Arbitrator has the power to award interest, unless, there is an express, specific provision that excludes the jurisdiction of the Arbitrator from awarding interest for the dispute in question (ref: Board of Trustees for the Port of Calcutta v. Engineers-de-Space-Age, (1996) 1 SCC 516 . State of U.P. v. Harish Chandra and Co., (1999) 1 SCC 63

 

Under the 1996 Act, the power of the Arbitrator to grant interest is governed by the statutory provision in Section 31(7). This provision has two parts. Under sub-section (a), the Arbitrator can award interest for the period between the dates of cause of action to the date of the award, unless otherwise agreed by the parties. Sub-section (b) provides that unless the award directs otherwise, the sum directed to be paid by an arbitral award shall carry interest at the rate of 2% higher than the current rate of interest, from the date of the award to the date of payment.

The power of the Arbitrator to award pre-reference and pendente lite interest is not restricted, when, the agreement is silent on whether interest can be awarded Jaiprakash Associates Limited v. Tehri Hydro Development Corporation India Limited, (2019) 17 SCC 786, para 13.2.

In Central Bank of India v. Ravindra (2002) 1 SCC 367, para 39 it is held that While pendente lite interest is a matter of procedural law, pre reference interest is governed by substantive law. Therefore, the grant of pre-reference interest cannot be sourced solely in Section 31(7)(a) (which is a procedural law), but must be based on an agreement between the parties (express or implied), statutory provision (such as Section 3 of the Interest Act, 1978), or proof of mercantile usage.

The basic law is that contract clauses in arbitral proceedings shall speak for themselves. The Arbitrator should examine the contract in totality. It is the duty of every Arbitral Tribunal and Court alike and without exception, for contract is the foundation of the legal relationship. Thus, what is prohibited in the contract cannot be awarded by the arbitrator. If the Arbitrator did not refer to the contractual provisions and publish award contrary to the provisions of contract, and, if the District Court dismissed the objections under Section 34 with a notion that the objection u/s 34 is not an appellate remedy , rather, the periphery of objection is circumscribed, the same shall be the contrary to the terms of contract and prohibition contained therein.

When the agreement does not prohibit the grant of interest and a party claims interest, it is presumed that interest is an implied term of the agreement, and therefore, the Arbitrator has the power to decide the same.

It is held in Secretary, Irrigation Department Government of Orissa Vs. G.C. Ray (1992) 1 SCC 508 that there is no prohibition in the contract for payment of interest on blocked capital. The claimant is otherwise entitled to receive payment on account of interest on blocked capital.

The power of the Arbitrator to grant pre-reference interest, pendente lite interest, and post-award interest under Section 31(7) of the Act is fairly well-settled. The judicial determinations also highlight the difference in the position of law under the Arbitration Act, 1940.

The Supreme Court in the most recent judgment captioned as PAM DEVELOPMENTS PRIVATE LIMITED Vs THE STATE OF WEST BENGAL & ANR bearing Civil Appeal Nos. 9781-9782 of 2024 @ SLP (C) Nos. 8128 -8129 of 2021 has held that the power of the Arbitrator to grant pre-reference interest, pendente lite interest, and post-award interest under Section 31(7) of the Act is fairly well-settled. The judicial determinations also highlight the difference in the position of law under the Arbitration Act, 1940. The following propositions can be summarised from a survey of these cases:

I.      Under the Arbitration Act, 1940, there was no specific provision that empowered an Arbitrator to grant interest. However, through judicial pronouncements, this Court has affirmed the power of the Arbitrator to grant pre-reference, pendente lite, and post-award interest on the rationale that a person who has been deprived of the use of money to which he is legitimately entitled has a right to be compensated for the same. Secretary, Irrigation Department, Government of Orissa v. G.C. Roy, (1992) 1 SCC 508, para 43(i)  When the agreement does not prohibit the grant of interest and a party claims interest, it is presumed that interest is an implied term of the agreement, and therefore, the Arbitrator has the power to decide the same.

II.     Under the 1940 Act, this Court has adopted a strict construction of contractual clauses that prohibit the grant of interest and has held that the Arbitrator has the power to award interest, unless, there is an express, specific provision that excludes the jurisdiction of the Arbitrator4 from awarding interest for the dispute in question (Ref: State of U.P. v. Harish Chandra and Co., (1999) 1 SCC 63).

III.     Under the 1996 Act, the power of the Arbitrator to grant interest is governed by the statutory provision in Section 31(7). This provision has two parts. Under sub-section (a), the Arbitrator can award interest for the period between the date of cause of action to the date of the award, unless otherwise the award directs otherwise, the sum directed to be paid by an arbitral award shall carry interest at the rate of 2% higher than the current rate of interest, from the date of the award to the date of payment.

IV.    The wording of Section 31(7)(a) marks a departure from Arbitration Act, 1940 in two ways: first, it does not make an explicit distinction between pre-reference and pendente lite interest as both of them are provided for under this subsection; second, it sanctifies party autonomy and restricts the power to grant pre-reference and pendente lite interest the moment the agreement bars payment of interest, even if it is not a specific bar against the Arbitrator.

V.      The power of the Arbitrator to award pre-reference and pendente lite interest is not restricted when the agreement is silent on whether interest can be awarded7 or does not contain a specific term that prohibits the same8.

VI.    While pendente lite interest is a matter of procedural law, pre reference interest is governed by substantive law.9 Therefore, the grant of pre-reference interest cannot be sourced solely in Section 31(7)(a) (which is a procedural law), but must be based on an agreement between the parties (express or implied), statutory provision (such as Section 3 of the Interest Act, 1978), or proof of mercantile usage10.

Thus, it is no longer ambiguous that the arbitrator shall be empowered to grant interest as per the terms of the agreement and if there is specific embargo or prohibition, then, no interest can be granted. Yet again, there may be instances, where there may not be prohibition in granting interest in the agreement, but there may not be any speci9ifc mention of that  and I such a situation, the arbitrator can grant interest and the judicial precedents discussed above are a reflection on that.

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                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

 

 

 

 

 

 


 


 

 

 


 

 

SECTION 12 (1)(a) HMA –IMPOTENCY AND NULLITY OF MARRIAGE

  SECTION 12 (1)( a ) HMA –IMPOTENCY AND Nullity of marriage That the Hindu Marriage Act (HMA) 1955 contains different grounds for seeking...