Hindu Marriage Act Procedure · Section 23 · 2026

Section 23 HMA in 2026: Taking Advantage of Own Wrong, Condonation, Collusion, Delay, Reconciliation and When Matrimonial Relief Can Be Refused

Quick answer: Proving a ground for divorce, judicial separation or another matrimonial relief does not always end the inquiry. Section 23 of the Hindu Marriage Act requires the court to examine additional conditions before granting relief, including whether the petitioner is taking advantage of his or her own wrong, whether adultery or cruelty was condoned where the statute makes that relevant, whether the proceeding is collusive, whether there was unnecessary or improper delay, whether consent to mutual divorce was obtained by force, fraud or undue influence, and whether any other legal ground prevents the decree.

1. Why Section 23 HMA matters

Section 23 is often overlooked because matrimonial pleadings focus heavily on Section 13 grounds such as cruelty, desertion and adultery. But Section 23 acts as a control provision. It tells the court that even when a statutory ground appears to exist, the decree should not be granted mechanically unless the additional statutory safeguards are also satisfied.

The wording is important. Section 23 applies “in any proceeding under this Act, whether defended or not”. This means the court’s duty does not disappear merely because the respondent is ex parte, fails to file a written statement, or chooses not to contest the petition.

2. The statutory checklist under Section 23(1)

The current text of the Hindu Marriage Act, 1955 requires the court to consider several distinct matters before granting relief. In simplified form, the court examines:

whether a ground for relief exists;
whether the petitioner is taking advantage of his or her own wrong or disability for obtaining that relief, subject to the statutory exceptions;
whether adultery was connived at, condoned or assisted in the cases covered by Section 23(1)(b);
whether cruelty relied upon has been condoned;
whether consent to mutual consent divorce was obtained by force, fraud or undue influence;
whether the petition, other than a Section 11 petition, is presented or prosecuted in collusion with the respondent;
whether there was unnecessary or improper delay in instituting the proceeding;
whether any other legal ground exists why relief should not be granted.

3. Section 23 is not a technical afterthought

These requirements are substantive safeguards. A petitioner should address them during drafting, evidence and final arguments. A respondent defending a matrimonial case should identify early whether any Section 23 bar is available, because a successful Section 23 defence may defeat relief even where the underlying matrimonial history is serious.

The strongest approach is to prepare a separate Section 23 analysis in every contested HMA case rather than mention the provision only in final submissions.

4. “Taking advantage of his or her own wrong” under Section 23(1)(a)

The phrase does not mean that any marital fault by the petitioner permanently bars relief. The Supreme Court has treated the expression as requiring a connection between the petitioner’s wrongful conduct and the relief being sought.

The court asks whether the petitioner is relying on a state of affairs that he or she wrongfully created or maintained and is now attempting to use that wrong as the foundation for matrimonial relief.

5. Dharmendra Kumar v. Usha Kumar

The Supreme Court decision in Dharmendra Kumar v. Usha Kumar is a leading authority on Section 23(1)(a) in the context of divorce after a restitution decree. The Court explained that the “wrong” contemplated by Section 23 must be sufficiently serious and related to the relief. Mere unwillingness to resume cohabitation after the decree was not treated as automatically disqualifying in the circumstances considered there.

The decision is frequently cited to resist an overbroad reading under which every imperfect act of a spouse is labelled “taking advantage of own wrong”.

6. Hirachand Srinivas Managaonkar v. Sunanda

The Supreme Court revisited the issue in Hirachand Srinivas Managaonkar v. Sunanda, decided 20 March 2001. There, the Court examined a husband who sought divorce under Section 13(1A) after a decree for judicial separation but had failed to pay maintenance as directed.

The Court held, on the facts, that refusal to pay maintenance could amount to a “wrong” within Section 23 and that existence of a Section 13(1A) ground did not confer a vested right to divorce. The court still had to apply Section 23.

7. Section 13(1A) does not operate automatically

This point is central. A spouse may satisfy the one-year non-resumption or non-restitution condition under Section 13(1A), but the court can still examine whether the spouse seeking divorce is disentitled under Section 23.

For a full treatment of restitution, see our Section 9 HMA restitution guide. The interaction between Section 9, Section 13(1A) and Section 23 is one of the most litigated procedural intersections under the Act.

8. What kinds of conduct may amount to “own wrong”?

There is no exhaustive statutory list. The inquiry is contextual. Depending on facts and precedent, the following may require examination:

deliberately frustrating compliance with a matrimonial decree and then relying on non-compliance;
refusing to honour a maintenance obligation where that conduct is materially connected with resumption of matrimonial life;
creating a situation of separation through serious misconduct and then relying upon the consequence of that misconduct;
actively preventing reconciliation while later invoking the failure of cohabitation as a ground;
obtaining or attempting to obtain advantage through fraud, coercion or abuse of process.

Not every act will satisfy Section 23. The court must examine seriousness, nexus and the statutory relief actually sought.

9. Ordinary marital fault is not automatically a Section 23 bar

If every instance of misconduct barred relief, contested divorce would become impossible because many matrimonial disputes involve allegations against both spouses. Section 23 is not a general moral perfection requirement.

The respondent should therefore identify the particular wrong, explain how it produced or maintained the ground relied upon, and show why granting relief would allow the petitioner to benefit from that wrong.

10. Condonation of cruelty

Section 23(1)(b) expressly requires the court, where cruelty is the ground, to be satisfied that the petitioner has not condoned the cruelty. Condonation is more than mere continuation of the marriage after an incident. It generally involves forgiveness and restoration of the offending spouse to the prior marital position, subject to the established matrimonial law on revival if further misconduct occurs.

A petitioner should therefore plead the post-incident history carefully. Continued residence under the same roof, attempts at reconciliation, sexual relations, counselling, holidays together or resumed domestic life may become relevant evidence, but no single fact automatically proves condonation.

11. Forgiveness versus reconciliation attempt

Courts should distinguish between a genuine attempt to save the marriage and legal condonation. A spouse should not be punished for trying reconciliation. If every temporary reunion permanently destroyed a cruelty case, public policy encouraging settlement would be undermined.

The factual question is whether the injured spouse forgave the conduct and restored the marital relationship, not merely whether the spouses met or attempted counselling.

12. Revival of condoned cruelty

Matrimonial law has long recognised that condoned cruelty may become relevant again if subsequent conduct revives the earlier grievance. The party relying on revival should plead the later conduct and explain the connection rather than simply resurrect every old allegation without context.

13. Adultery, accessory, connivance and condonation

Section 23(1)(b) also addresses adultery-related bars. A petitioner should not be able to engineer, encourage or knowingly accept conduct and later use it as the basis for relief in circumstances covered by the provision.

Connivance is a serious allegation and should be pleaded with particulars. It is different from mere suspicion, passive failure to prevent a spouse’s conduct, or later discovery of the alleged affair.

14. Mutual consent must be free consent

Section 23(1)(bb) requires the court to be satisfied that consent to mutual divorce was not obtained by force, fraud or undue influence. Mutual consent is not a paper formality. It must be real and continuing until the decree is passed.

A settlement signed under pressure, concealment of material terms, threats, coercive financial conditions or misrepresentation can become relevant if one party challenges the voluntariness of consent.

15. Court statements matter more than private paperwork alone

Parties to a mutual consent divorce usually record statements before the court. The judge may ask whether the settlement was voluntary, whether the parties understand the consequences and whether the marriage is being dissolved by free choice.

A private settlement agreement can support the process, but the court’s statutory duty under Section 23 cannot be contracted away.

16. Collusion under Section 23(1)(c)

Except for a petition under Section 11, Section 23 requires that the petition not be presented or prosecuted in collusion with the respondent. Collusion means more than settlement or lack of opposition. Spouses are free to settle genuine disputes and may even decide not to contest a petition. The concern is a sham proceeding designed to obtain a decree by presenting false or manufactured facts to the court.

17. Non-contested does not mean collusive

An uncontested divorce petition on a statutory ground is not automatically collusive. The petitioner must still prove the ground and the court must remain satisfied about the Section 23 requirements.

Where the respondent does not appear, the petitioner should lead clear evidence rather than assume that silence amounts to admission of every allegation.

18. False facts agreed between spouses can create a serious problem

If spouses fabricate cruelty, desertion or another ground merely to obtain a quicker contested decree, the court can refuse relief. Parties should use the mutual consent route where legally available rather than create a fictional adversarial case.

19. Unnecessary or improper delay under Section 23(1)(d)

The court must also consider whether there has been unnecessary or improper delay in instituting the proceeding. Delay is not automatically fatal. Matrimonial relationships are complex, and spouses may attempt reconciliation for years before filing.

The inquiry is whether the delay is legally improper in the circumstances, whether it suggests condonation, acquiescence, manipulation or prejudice, and whether the statutory ground itself contains a specific time requirement.

20. Delay in cruelty cases

A cruelty petition filed years after the last relied-upon incident may attract questions, particularly if the spouses resumed normal married life in the meantime. But delay can be explained by attempts to save the marriage, financial dependence, concern for children, social pressure or ongoing conduct.

The pleading should explain the chronology rather than leave a long unexplained gap.

21. Delay in adultery cases

If the petitioner knew of the adultery and continued marital life for a substantial period, both delay and condonation issues may arise. The date of knowledge becomes important.

22. Delay in annulment cases

Some voidable-marriage grounds under Section 12 have their own statutory time conditions. Section 23’s general delay requirement operates alongside those specific limits. A petition can therefore fail because of a specific statutory bar even before general delay is considered.

23. “No other legal ground why relief should not be granted”

Section 23(1)(e) functions as a broad final safeguard. The court must be satisfied that no other legal ground prevents the relief. This can include jurisdictional defects, statutory bars, lack of a valid marriage where a particular relief presupposes one, failure to satisfy mandatory conditions, or other legal impediments arising from the case.

24. Section 23 applies even in ex parte cases

The opening words “whether defended or not” are crucial. A Family Court cannot grant divorce merely because the respondent is absent. The petitioner must prove the statutory ground, and the judge must still consider Section 23.

Ex parte evidence should therefore be complete, supported by documents where available, and specific enough for the court to make an independent finding.

25. Ex parte decree and false pleading risk

A petitioner who exaggerates or fabricates facts because the respondent is absent risks later challenge if the respondent seeks to set aside the decree or appeals. Section 23 is one reason why matrimonial litigation should never be treated as a default-judgment process.

26. Court’s duty to attempt reconciliation under Section 23(2)

Section 23(2) directs the court, before granting relief, to make every endeavour to bring about reconciliation where it is possible consistently with the nature and circumstances of the case, subject to the statutory exceptions.

This reflects the legislative preference that marriages not be dissolved without exploring reconciliation where a meaningful attempt is possible.

27. Reconciliation is not compulsory in every case

The proviso to Section 23(2) excludes specified Section 13 grounds from this duty. Even where the statutory duty applies, courts should not force parties into unsafe or meaningless reconciliation exercises when the circumstances show that such an attempt would be inappropriate.

28. Referral for reconciliation under Section 23(3)

Section 23(3) allows the court, if the parties desire or the court considers it just and proper, to adjourn the matter for a reasonable period not exceeding fifteen days and refer the matter to a person named by the parties or nominated by the court to explore reconciliation and report back.

This provision is different from modern institutional mediation, though both pursue settlement. Family Courts may also use counselling and mediation mechanisms under the Family Courts Act and local rules.

29. Reconciliation versus mediation

Reconciliation seeks restoration of the marital relationship. Mediation may produce reconciliation, but it may also lead to an orderly separation, mutual consent divorce, maintenance settlement, custody plan or resolution of connected cases.

Lawyers should understand the client’s objective before the mediation session and should not present every settlement effort as an attempt to resume marriage.

30. Free copy of divorce decree under Section 23(4)

Section 23(4) requires the court, in every case where a marriage is dissolved by a decree of divorce, to give a copy of the decree free of cost to each party. The decree should be preserved permanently because it is required for remarriage, immigration, change of records, pension issues and future legal proof of marital status.

31. Section 23 and counterclaims

A respondent who seeks affirmative relief under Section 23A is also a claimant for matrimonial relief. The Section 23 framework can therefore become relevant to the respondent’s counterclaim, not merely the original petition.

See our detailed guide on Section 23A counterclaims in divorce cases.

32. Section 23 and cruelty litigation

In cruelty cases, the Section 23 defence should be developed alongside the merits. A respondent may argue that the alleged incidents were condoned, that later cohabitation restored the marriage, that the petitioner provoked or engineered the events now relied upon, or that the proceeding is based on collusive or false facts.

For the larger trial framework, see our contested divorce guide.

33. Section 23 and privacy

Section 23 issues can involve intimate evidence, especially condonation, reconciliation, adultery and cohabitation. Proceedings under the HMA are in camera under Section 22. Parties should prove what is necessary without publicly circulating private communications.

For document-handling guidance, see our article on privacy in divorce and Family Court proceedings.

34. Evidence for a “taking advantage of own wrong” defence

prior matrimonial decrees and orders;
maintenance orders and payment history;
messages showing refusal or obstruction of reconciliation;
communications offering or refusing cohabitation;
court records showing disobedience of prior directions;
evidence of conduct that created the very circumstance later relied upon;
admissions in connected proceedings.

35. Evidence for condonation

proof of resumed cohabitation;
joint travel and family events after the alleged cruelty;
messages indicating forgiveness or restoration of normal relations;
joint financial or residential arrangements;
evidence of sexual cohabitation where legally relevant and appropriately proved;
counselling records, subject to confidentiality and admissibility;
later misconduct relied upon as revival.

36. Evidence for collusion

Collusion can be difficult to prove directly. Relevant circumstances may include identical fabricated narratives, pre-arranged non-appearance, documents created solely to simulate a statutory ground, admissions that the parties agreed to present false facts, or a petition contradicted by their actual conduct.

Settlement by itself is not collusion. Courts should encourage lawful settlement, not penalise it.

37. How a petitioner should plead Section 23 compliance

A well-drafted petition usually contains a concise paragraph stating that the petitioner is not taking advantage of his or her own wrong, has not condoned the conduct relied upon where relevant, has not colluded with the respondent, and has not filed after improper delay. But boilerplate pleading is not enough if the evidence contradicts it.

38. How a respondent should plead a Section 23 defence

The written statement should identify the exact statutory clause and the material facts supporting it. Avoid merely stating that “the petition is barred by Section 23”. The Family Court needs to know what wrong, condonation, collusion or delay is being alleged.

39. Cross-examination on Section 23

Cross-examination should target the alleged bar. Useful questions may concern dates of resumed cohabitation, maintenance default, reconciliation efforts, knowledge of adultery, continued marital life after alleged cruelty, settlement discussions or the circumstances in which documents were created.

For broader technique, see our guide on cross-examination in divorce cases.

40. Final arguments should separate the ground from the Section 23 bar

A structured final argument can proceed in two stages. First, has the petitioner proved the matrimonial ground? Second, even if so, is relief barred by Section 23? Keeping the questions separate prevents the court from overlooking the statutory safeguard.

Frequently asked questions

Can a court refuse divorce even if a ground is proved?

Yes. Section 23 requires the court to satisfy itself about additional statutory conditions before granting relief.

What does “taking advantage of own wrong” mean?

It refers to a sufficiently serious wrong connected with the relief sought, not every minor marital fault. The Supreme Court has applied the provision contextually.

Can non-payment of maintenance amount to own wrong?

In Hirachand Srinivas Managaonkar v. Sunanda, the Supreme Court held on the facts that refusal to pay maintenance could amount to a Section 23 wrong and could justify refusal of divorce under Section 13(1A).

What is condonation of cruelty?

Condonation generally involves forgiveness and restoration of the offending spouse to the marital relationship. Mere attempts at reconciliation do not automatically establish condonation.

Can an uncontested divorce be collusive?

It can be if the parties manufacture false facts or a sham ground. Mere non-opposition or settlement is not automatically collusion.

Does Section 23 apply if the respondent is ex parte?

Yes. The statute expressly applies whether the proceeding is defended or not.

Must the court attempt reconciliation?

Section 23(2) imposes a duty to endeavour reconciliation where possible, subject to the statutory exceptions and the nature of the case.

Primary sources

Practical takeaway: In every HMA case, ask not only “Is the ground proved?” but also “Is the petitioner legally entitled to relief after Section 23 is applied?” That second question can change the outcome.

Disclaimer: This article provides general legal information. Section 23 is highly fact-sensitive and must be applied with the specific matrimonial ground, pleadings, evidence and binding precedent.

41. Section 23 should be analysed ground by ground

A Section 23 objection is strongest when tied to the exact matrimonial ground. If divorce is sought for cruelty, the respondent should examine condonation and whether the petitioner is relying upon conduct that the petitioner provoked or manufactured. If divorce is sought under Section 13(1A), the focus shifts toward post-decree conduct and whether the petitioner deliberately prevented restoration of the marriage. If mutual consent divorce is sought, the court must be satisfied that consent is free from force, fraud and undue influence.

This ground-specific approach prevents Section 23 from becoming a vague equitable plea. The statute is structured around precise safeguards and should be pleaded with the same precision.

42. The nexus requirement in an “own wrong” defence

The respondent should establish a real connection between the wrong and the relief sought. Misconduct that is unrelated to the statutory ground may be morally objectionable but legally insufficient to bar relief. For example, a financial disagreement occurring years earlier may not defeat a desertion petition unless it explains or causes the separation relied upon.

The practical question is whether granting the relief would allow the petitioner to profit from a wrongful state of affairs that the petitioner substantially created or continued.

43. Own wrong and deliberate exclusion from the matrimonial home

If a spouse excludes the other spouse from the shared home, changes locks, refuses access and then later alleges that the excluded spouse deserted the marriage, Section 23 may become highly relevant. The respondent should preserve messages, police diary entries, building records, notices and witness evidence showing the exclusion.

The result will depend on the full facts, including safety concerns and the conduct of both parties, but the case should not be framed as simple physical absence without explaining who caused it.

44. Own wrong and false representations about reconciliation

A spouse may formally invite the other to return while privately making return impossible through threats, unsafe conditions or contradictory demands. Courts can look beyond the wording of a legal notice to actual conduct. A carefully maintained chronology can expose the difference between a genuine reconciliation effort and a litigation document created only to build a future divorce ground.

45. Own wrong and maintenance default

Hirachand is especially important because it demonstrates that post-decree financial misconduct can be connected to cohabitation. If a spouse ordered to maintain the other deliberately refuses payment despite capacity and then argues that the other spouse did not resume cohabitation, the court may ask whether the petitioner is attempting to benefit from the consequences of that refusal.

The respondent should place the maintenance order, arrears calculation, execution record and evidence of the payer’s capacity before the matrimonial court.

46. Own wrong and breach of a settlement

A breach of settlement does not automatically create a Section 23 bar. The court should examine whether the breached obligation is materially connected to the relief sought. A failure to return an unrelated household item may not affect a divorce ground, while deliberate non-compliance with a settlement term designed to restore cohabitation or provide essential support may be more significant.

47. Own wrong and parental conduct

Disputes over children can influence marital separation, but child custody should not be reduced to a Section 23 weapon. A parent’s obstruction of access may become relevant to matrimonial cruelty in appropriate cases, but the Family Court must separately protect the child’s welfare.

48. Own wrong and criminal litigation

If a petitioner relies on separation that followed criminal complaints, the court may need to examine why the complaints were filed and what they contained. Genuine resort to criminal law should not be characterised as “wrong” merely because it made reconciliation difficult. Conversely, proven malicious misuse of proceedings may be relevant in a cruelty or Section 23 analysis.

49. Own wrong and deliberate evasion of marital obligations

Moving away without disclosure, refusing any communication, concealing the address and then relying on the other spouse’s inability to resume cohabitation can raise Section 23 questions. The material should show deliberate obstruction rather than ordinary relocation or legitimate safety concerns.

50. Own wrong and coercive financial control

A petitioner who cuts off essential financial support, retains the other spouse’s documents or uses money to make continued cohabitation impossible may face a Section 23 argument if the resulting separation is later used as the basis for relief. Again, the issue is connection between the wrongful conduct and the ground asserted.

51. Condonation requires intention as well as conduct

Courts examine whether the injured spouse truly forgave the matrimonial offence and restored the offending spouse to the previous marital position. Continued contact may occur for children, financial necessity, temporary housing or attempts at reconciliation. Those circumstances can rebut an inference of condonation.

A party alleging condonation should therefore prove more than isolated contact.

52. Continued co-residence after cruelty

Spouses may remain in the same home after serious cruelty because neither has alternative accommodation, because children are involved or because financial dependence prevents immediate departure. Co-residence alone should not be assumed to amount to forgiveness.

Evidence of separate bedrooms, separate finances, continued complaints or counselling may show that marital relations were not restored.

53. Sexual relations and condonation

Resumption of sexual relations can be strong evidence of reconciliation in some cases, but the court should consider context, voluntariness and the broader marital relationship. A single incident does not automatically resolve the legal question. Intimate evidence should be pleaded and proved with restraint because HMA proceedings are in camera.

54. Holidays and family functions after alleged cruelty

Photographs of spouses attending a wedding, birthday or holiday together can be relevant but are not conclusive. Families often maintain appearances for children or relatives. The court should examine the surrounding communications and whether normal marital life resumed.

55. Reconciliation attempt should not punish the injured spouse

Public policy supports genuine attempts to save a marriage. If a spouse temporarily returns after cruelty to test whether behaviour has changed, that experiment should not automatically erase the prior cause of action. Whether legal condonation occurred depends on the facts and whether later conduct revived the grievance.

56. Revival after further misconduct

Where cruelty was previously condoned, later misconduct can revive the earlier conduct in appropriate circumstances. The later incident need not always duplicate the earlier one. The pleading should identify the subsequent conduct and explain why it destroyed the basis on which forgiveness had been extended.

57. Condonation should be pleaded by the respondent

If the respondent relies on condonation, the written statement should identify the date or period of alleged forgiveness, the conduct said to show restoration, and the later marital history. A bare plea that “all allegations were condoned” is usually too vague.

58. Petitioner’s reply to condonation

The petitioner should explain why continued contact did not amount to forgiveness. Reasons may include temporary cohabitation for children, lack of financial alternatives, counselling attempts, renewed promises that failed, or fresh cruelty that revived the earlier grievance.

59. Connivance is different from condonation

Condonation concerns forgiveness after the conduct. Connivance involves consent, facilitation or willing acquiescence in the conduct before or while it occurs. The distinction is important in adultery-related litigation.

60. Evidence of connivance

Because connivance is rarely admitted, it may be inferred from communications or conduct. But courts should not infer connivance merely because spouses had an open social arrangement, lived separately or knew each other had friends of the opposite sex. The evidence must address the alleged adulterous conduct and the petitioner’s participation or willing acquiescence.

61. Accessory to adultery

Section 23 prevents a spouse from relying on adultery where the petitioner was an accessory in the circumstances contemplated by the statute. This is an unusual factual situation, but it reflects the broader principle that courts should not reward manufactured matrimonial grounds.

62. Mutual consent and allegations of coercion

Where one party says consent was obtained by threats concerning criminal cases, children, employment or finances, the court must examine whether the pressure crossed from ordinary settlement bargaining into force, fraud or undue influence. Hard negotiation is not automatically unlawful coercion, but consent must remain genuine.

63. Withdrawal of consent is not by itself proof of fraud

A spouse may change his or her mind before the final mutual consent decree. That does not automatically prove that the earlier consent was fraudulent. The court should examine what the party actually understood and agreed to at each stage.

64. Settlement payments and free consent

A staged settlement should identify the purpose and timing of each payment. If a party alleges that consent was induced by concealment or misrepresentation, bank records, settlement drafts and recorded statements can become important. Lawyers should preserve the negotiation history where a serious consent challenge is foreseeable, subject to mediation confidentiality rules.

65. Collusion versus lawful settlement

The law encourages settlement of matrimonial disputes. Collusion should therefore be confined to dishonest cooperation designed to mislead the court. A genuine settlement followed by a lawful mutual consent petition is not collusion. Nor is a respondent’s decision not to contest a case after receiving legal advice necessarily collusive.

66. Fabricated desertion as collusion

If spouses falsely plead that they have been separated for the required statutory period when they have actually continued living together, the proceeding may be collusive and based on false evidence. This can have consequences beyond dismissal of the petition.

67. Fabricated cruelty as collusion

Parties should never invent incidents merely to obtain a divorce decree. If they genuinely agree to dissolve the marriage and satisfy Section 13B, the mutual consent route exists. False contested grounds undermine the integrity of the judicial process.

68. Delay and explanation

Delay becomes less problematic when the petition explains it. A spouse may have remained in the marriage for children, attempted counselling, depended financially on the other spouse or hoped the conduct would improve. The court can distinguish understandable hesitation from strategic delay that undermines the asserted ground.

69. Delay and evidence preservation

Even where delay is legally explainable, it creates evidentiary difficulties. Messages are deleted, witnesses forget dates, CCTV disappears and bank records become harder to obtain. A person considering litigation should preserve contemporaneous material without necessarily rushing to file.

70. Delay and continued matrimonial benefits

The respondent may argue that the petitioner continued to accept normal marital benefits for years after the alleged misconduct. The court will examine whether that conduct shows condonation, whether the relationship remained fractured, or whether practical necessity explains the continuation.

71. Delay in filing after a final incident

A petition filed soon after a final serious incident may rely on a long history of earlier conduct. The earlier incidents are not automatically excluded by age if they form part of a continuing pattern and were not legally condoned.

72. Section 23 and fraud on the court

Fraudulent documents, false affidavits or concealment of a prior decree can trigger the broad Section 23(1)(e) safeguard and other procedural consequences. Matrimonial courts are courts of justice, and parties must approach them with accurate facts.

73. Section 23 and jurisdiction defects

If the petition is filed in a court without territorial or subject-matter jurisdiction, that can be a legal ground preventing relief. Section 23 does not cure jurisdiction. Jurisdiction should be verified before the case is instituted.

74. Section 23 and invalid marriage issues

The relief sought must fit the legal status of the marriage. A petition for divorce may raise a different question if the alleged marriage is void or never legally solemnised. The court must identify the correct statutory remedy rather than grant relief merely because both parties want an order ending the relationship.

75. Section 23 and limitation-like statutory bars

Although matrimonial law does not impose a single general limitation period for divorce, particular remedies such as annulment have specific statutory conditions. Section 23(1)(e) requires the court to respect those legal bars.

76. Reconciliation under Section 23(2) and Family Court counselling

Family Courts commonly use counsellors or mediation centres. These mechanisms complement the statutory reconciliation duty. The goal should be to determine whether a genuine possibility of restoring the marriage exists, not to pressure a party to remain in an unsafe relationship.

77. When reconciliation may be inappropriate

Where there are credible allegations of serious violence, coercive control, sexual abuse or other circumstances making direct negotiation unsafe, the court should structure proceedings carefully. Statutory reconciliation duties must operate consistently with safety and the exceptions written into Section 23.

78. Reconciliation report is not a substitute for judicial findings

A mediator, counsellor or nominated person may report whether reconciliation occurred, but the Family Court remains responsible for deciding the legal issues. A failed reconciliation report does not prove cruelty, desertion or any other ground.

79. Evidence from mediation

Parties should be cautious before attempting to use confidential mediation communications as trial evidence. Mediation law and court rules may protect settlement discussions. The legal team should distinguish admissible pre-existing documents from protected negotiation statements.

80. Section 23 in NRI cases

NRI matrimonial litigation can produce Section 23 issues where a spouse files in India after obtaining or pursuing a foreign decree, conceals foreign proceedings, or uses geographical distance to frustrate reconciliation. The court should receive full disclosure of parallel litigation and foreign orders.

81. Section 23 in high-conflict custody cases

Where children are used as leverage, the conduct may become part of a cruelty or own-wrong argument, but the child’s welfare must remain paramount. A parent should not seek a matrimonial advantage by deliberately defeating lawful access arrangements.

82. Section 23 in restitution proceedings

A petitioner seeking restitution should also come with a genuine willingness to resume matrimonial life. A person who seeks a decree only to create a later Section 13(1A) divorce ground may face scrutiny if conduct shows the petition was never intended to restore cohabitation.

83. Section 23 in judicial separation proceedings

The same general statutory safeguards apply. A spouse who creates the circumstances relied upon for judicial separation may be met with an own-wrong defence. The court also considers reconciliation where required.

84. Section 23 in annulment proceedings

The exact clauses apply differently depending on the relief. Section 23(1)(c) expressly excludes Section 11 petitions from the collusion clause, reflecting the different legal nature of a void marriage. Lawyers should read the precise statutory text rather than assume every subsection applies identically to every remedy.

85. Section 23 and pleadings checklist for petitioner

Identify the statutory ground for relief.
Ask whether any conduct by the petitioner caused the condition relied upon.
Address post-incident cohabitation and possible condonation.
Disclose prior decrees and maintenance orders.
Explain delay.
Disclose connected and foreign proceedings.
Confirm there is no manufactured or collusive ground.
Prepare reconciliation history.
Identify any legal bar before filing.

86. Section 23 defence checklist for respondent

Identify the precise subsection relied upon.
State the alleged wrong and its connection to relief.
Plead facts of condonation where relevant.
Identify collusive or fabricated facts with particulars.
Explain why delay is improper if that is the defence.
Place prior court orders and compliance history on record.
Prepare a post-decree chronology in Section 13(1A) cases.
Preserve reconciliation communications.
Seek specific issues on Section 23 where necessary.

87. Suggested issue framing

Where the defence is material, counsel can request an issue such as whether the petitioner is disentitled to the relief claimed by reason of Section 23(1)(a), or whether the alleged cruelty was condoned. Precise issue framing helps ensure that evidence and judgment address the statutory bar.

88. Suggested final-argument structure

A respondent can structure submissions as follows: first, the petitioner has failed to prove the matrimonial ground; second, even assuming the ground exists, relief is barred under Section 23; third, the specific conduct and evidence establishing the bar; fourth, the relevant Supreme Court authorities; fifth, the precise relief requested.

89. Search-focused quick answers

Can my spouse get divorce after causing the separation?

Not automatically. Section 23 can prevent a petitioner from taking advantage of his or her own sufficiently serious wrong when that wrong is connected to the relief sought.

Does living together after cruelty cancel the case?

Not automatically. The court examines whether the conduct amounted to legal condonation or merely an attempt at reconciliation or a practical living arrangement.

Can a divorce be refused because the petitioner did not pay maintenance?

In appropriate circumstances yes. Hirachand held on its facts that refusal to pay maintenance could amount to a Section 23 wrong in a Section 13(1A) divorce case.

Does ex parte mean automatic divorce?

No. The court must still prove the ground to itself and apply Section 23.

Can spouses agree to invent a ground for divorce?

No. A fabricated contested case can be collusive. Where statutory conditions are satisfied, mutual consent is the lawful consensual route.

Can a cruelty case survive attempted reconciliation?

Yes, depending on whether the earlier conduct was legally condoned and whether later misconduct revived it.

90. Final legal position

Section 23 keeps matrimonial adjudication from becoming mechanical. The court must examine entitlement, fairness within the statutory framework, free consent, genuine grounds and post-marital conduct even when the underlying ground appears proved. For advocates, Section 23 should be part of the case theory from the first conference, not an afterthought added at final arguments.

91. Practical scenario: desertion alleged after the petitioner forced the respondent out

Suppose a husband files divorce alleging that the wife deserted him for more than two years. The wife produces messages showing that she was asked to leave the matrimonial home, denied re-entry and later threatened when she proposed returning. The court must first decide the desertion ground, including whether separation was without reasonable cause and against the petitioner’s wish. Section 23 can add a further question: is the petitioner attempting to benefit from a separation that his own serious conduct produced?

The respondent should not rely on the label “own wrong” alone. She should prove the exclusion and connect it to the claimed desertion.

92. Practical scenario: cruelty followed by genuine reconciliation

Suppose a wife files for divorce relying on incidents from 2022, but the evidence shows that the parties resumed full matrimonial life in 2023, lived together for a year and jointly represented to family and authorities that the dispute had ended. The husband may plead condonation. The wife may still rely on later conduct if it revived the earlier cruelty, but the pleading should identify those later events.

93. Practical scenario: temporary return to protect children

Consider a spouse who returns to the matrimonial home for two months solely because a child is preparing for board examinations. The parties occupy separate rooms and continue litigation. The other spouse later argues that all earlier cruelty was condoned. The court must examine intention and the actual marital relationship rather than treat physical presence as automatic forgiveness.

94. Practical scenario: mutual consent challenged as coerced

If a party alleges that the settlement was signed because the other spouse threatened unlawful harm to employment or family unless consent was given, Section 23(1)(bb) requires judicial scrutiny. The court may examine messages, negotiation history, independent legal advice, time between signing and statement, and whether the party affirmed the terms before the court without protest.

95. Practical scenario: collusive contested divorce

Assume spouses want an immediate divorce but do not satisfy the statutory conditions for mutual consent, so they agree to invent cruelty and arrange that the respondent will remain ex parte. This is precisely the kind of misuse that the collusion safeguard is designed to prevent. The absence of opposition does not remove the court’s duty to satisfy itself that a genuine legal ground exists.

96. Practical scenario: delayed petition after years of attempted reconciliation

A spouse may tolerate conduct, seek counselling and remain in the marriage for children before finally filing. The respondent pleads improper delay. The petitioner should produce the chronology of repeated incidents and reconciliation efforts. Delay is not assessed in isolation from the realities of marriage.

97. Section 23 should be included in the evidence matrix

For each Section 23 defence, prepare a four-column chart: statutory clause, material fact, evidence and witness. This turns an abstract legal objection into a trial-ready issue. It also helps counsel identify which facts require amendment before evidence.

98. Suggested evidence matrix

Section 23 issue	Fact to prove	Typical evidence
Own wrong	Petitioner created or maintained the relied-upon situation	Orders, messages, maintenance record, admissions
Condonation	Forgiveness plus restoration of marital life	Residence, communications, joint conduct
Collusion	Sham facts or pre-arranged deception of court	Admissions, contradictory records, fabricated documents
Improper delay	Unexplained or legally significant delay	Chronology, post-incident conduct, reconciliation record

99. Drafting caution: do not plead Section 23 as a slogan

A paragraph stating “the petition is barred by Section 23” without particulars can be struck down in substance during trial because the petitioner has no clear factual case to answer. Plead the specific clause, conduct, date and nexus to relief. If the facts were discovered later, seek amendment in time.

100. Appellate review of Section 23 findings

A Family Court judgment should ideally record separate findings on a material Section 23 defence. If the court grants divorce without addressing evidence of own wrong, condonation or collusion that was properly pleaded and argued, the omission can become an appellate ground. Conversely, an appellate court will examine whether the alleged bar was actually supported by evidence.

101. Professional conclusion

Section 23 is one of the HMA’s most important safeguards because it prevents matrimonial decrees from becoming automatic consequences of technical proof. It requires the court to look at the petitioner’s conduct, the genuineness of the ground, the voluntariness of consent, the history of forgiveness and reconciliation, and the legality of the proceeding itself. For serious matrimonial litigation, Section 23 should be pleaded, proved and argued with the same discipline as Section 13.

102. Client-conference questions for a Section 23 audit

Before drafting or defending an HMA petition, ask the client whether the parties resumed living together after the alleged misconduct, whether there were later written apologies, whether maintenance or other court orders were complied with, whether either spouse blocked a genuine attempt at reconciliation, and whether any facts in the proposed petition were agreed merely to simplify the divorce. These questions often reveal Section 23 issues before they become damaging admissions in cross-examination.

Also obtain the complete history of prior litigation. A statement in a maintenance affidavit, domestic violence case, criminal complaint or earlier matrimonial petition may contradict the position now taken on condonation, residence, separation or reconciliation.

103. Section 23 should be checked again before evidence closes

Matrimonial cases evolve. Conduct occurring after filing may alter the Section 23 analysis, especially in cases involving post-decree maintenance, reconciliation or subsequent cohabitation. Before evidence closes, counsel should review whether amendment is needed and whether the evidence on the statutory bar is complete.

104. Final practice note

A well-run matrimonial case has two parallel legal maps: the positive ground for relief and the statutory bars to that relief. Section 23 is the second map. Ignoring it can turn an apparently strong divorce case into a dismissal, while pleading it vaguely can waste time. The provision is most effective when converted into precise facts, documents, cross-examination propositions and a separate finding requested from the Family Court.

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