Professional Documents
Culture Documents
Beaumarchais
1
of the institution of marriage. 1 Thus the concept of
marriage–a sort of man-woman relationship as a
responsible one-to-one unit of society-evolved a unique
human family system. Its essential components were
intercourse, procreation of children and living together
with mutual obligations and responsibilities to the care of
offspring. The traditional Hindu family was an institution,
a joint family system, characterized by homogeneous
togetherness of parents, grandparents, sons and
daughters, their spouses, even uncles and aunts. There
was a distinct family identity with each member knowing
his or her roots. The institution of marriage gives
respectability to women, enhances their personal
happiness & welfare, provides family support &
companionship.
1 P. Diwan and Peeyushi Diwan, Modern Hindu Law Codified and Un-
codified, 62 (Allahabad Law Agency, Faridabad, 16 th Ed. 2005).
2
Marriage is uniquely beneficial to society because it is
the foundation of the family and the basic building block of
society. It brings significant stability and meaning to
human relationships. It remains the ideal for the raising of
children. It plays an important role in transmitting culture
and civilization to future generations. Marriage is not
merely a private contract, but a social institution of great
public value and concern. As social science research and
government surveys increasingly show, the decline in
marriage since the 1960s has been accompanied by a rise
in a number of serious social problems. 2
Victor Hugo
3
defining marriage as “a relation of one or more men to one
or more women that is recognized by custom or law”. 3
4
children & a partnership for economic ends and social
cooperation. Sometimes one side and sometimes another
side predominate. 7
5
the core values of civil society than marriage, especially
when it is reinforced by church and other institutions.
Having and raising children within the bonds of marriage is
a powerful protection against poverty and welfare
dependency. Research by The Heritage Foundation
demonstrates that two-thirds of children living in poverty
today would be lifted above the poverty line immediately if
their mother married their father. The benefits of marriage
are enormous and transcend the purely economic. 11
Maggie Gallagher
11 Available at http://www.heritage.org/Research/Features/Marriage/
upload/48119_1.pdf (visited on March 07, 2011).
6
“Marriage is a gift that society bestows on its next
generation. Marriage (and only marriage) unites the three
core dimensions of parenthood--biological, social and legal-
-into one pro-child form: the married couple”.
David Blankenhorn 12
12 Available at http://www.mappingamericaproject.org/special
collection (visited March 07, 2011)
7
considered the summation of the highest law for husband
and wife. 13
8
Hindu and Muslim marriage, as in the former case it is a
sacramental union and in the later cases it is purely a
contractual union. However, in Muslim society, a marriage
proposal by the male and its acceptance by the female is
necessary for a valid (Sahih) marriage. Spousal consent is
not important in traditional Hindu marriage.
9
married at their own places of worship but the marriage
has to be preceded by a civil ceremony where the official
registrar is present to legalize the marriage. Church does
not condone divorce but remarriage after divorce is normal
practice.
10
of the Kashmir and Tibet. It is also prevalent in Sikkim,
Ladakh, and certain parts of Himachal Pradesh. 17
11
also not a Christian, Muslim, Jew or Parsi, but who is
domiciled in India. 20
20 Gogi Reddy Sambi Reddy v. Gogi Reddy Zayamma, AIR 1972 AP 156.
21 Wealth Tax Commissioner v. Champa Kumari, AIR 1972 SC 2119.
Similarly Sikhs too were always regarded as Hindus. Rani Bhagwan v.
JC Bose, (1904) ILR 31 Cal 11.
12
with in the Hindu Marriage Act if the Hindu Marriage Act
1955 had not been passed.
13
or Buddhist religion, and the reference to Hindu religious
institutions shall be construed accordingly. 24
14
“consortium”. It has been defined as “a partnership of
association; but in matrimonial sense it implies much more
rather than these cold words suggest. It involves a sharing
of two lives, a sharing of joys and sorrows of each party; of
their successes and disappointments. In its fullest sense it
implies a companionship between each of them,
entertainment of mutual friends, sexual intercourse–all
those elements, which combined, justify the old common
law dictum that a man and his wife are one person. 26
15
another component i.e. Dharam. Dharam is not an exact
linguistic equivalent of religion. It encompasses a whole
gamut of duties, devotion and discipline of mind,
compassionate emotions & virtuous voluntary obligations
towards each other for the attainment of a higher spiritual
goal in life. It is a sort of legal testament of individual
behavior. There is no exact equivalent word in English
language for this Hindu conceptual word – Dharam.
16
The perpetuation of one’s kula or family
traditions/lineage, according to Dharamshastras is the
cardinal function of marriage for the preservation and
continuity of culture and customs of the family. Marriage,
therefore, involves a union not only for the purpose of
biological reproduction but also to maintain an orderly
replacement of the family culture acquired through
centuries of innovations, trials and tribulations. 29
17
in Vedas and of good conduct whom the father himself
invites is called Braham form of marriage.
18
When a man has intercourse with a girl stealthily
while she is asleep or intoxicated or disordered in mind (or
unconscious) that is the Pishaach form, which is the most
sinful form of marriage.
19
former is called Gotra Exogamy and the latter is called
Sapinda Exogamy. I
20
would simultaneously get married to a boy of his bride’s
family. 32
21
the gotra of their priests. However, in some cases inferior
castes invented altogether new gotras. On marriage, a
woman loses her ancestral gotra and becomes affiliated to
that of her husband. 35
22
further and looks upon Anuloma marriage with scorn.
Manu was also averse to Anuloma marriages besides his
disdain for Pratiloma marriage as he says, “Children of
Brahaman by women of the three lower castes, of a Kshtrya
by wives of two lower castes and Vaishya by a wife of the
Shudra caste, all these six are called base born”. 36
23
her male partner too meets the same fate if caught
together. The Apex Court has declared these Khap
panchayats illegal. 37
24
is required to check the menace of archaic practices like
honor killings. 41
41 Saurabh Malik, “Experts stress upon unified civil code “, TNS, The
Tribune, October 31, 2006 at 3.
25
anything, shows that polyandry was not the customary
practice in the Vedic period. 42 With the passage of time,
polygamy and polyandry was gradually replaced by
monogamy as a social norm but bigamy in one or other
form is still seen in society. Manu was strictly opposed to
widow remarriage. He clearly lay down, “In the mantras on
marriage such a commission (widow remarriage) is never
mentioned and the second marriage of a widow is not
spoken of in the rule of marriage”. 43
26
The word Punarbahu (meaning wife again) is generally
applied to a widow who has remarried. 46 Narad mentions
another category of Punarbahu that is a maiden whose
hand was taken in marriage but whose marriage was not
consummated.
27
1.5.i Muslim Period
28
measures were given legal shape in the concept of
codification of Hindu Marriage laws.
29
Hindus firmly believe in complete physical, mental
and spiritual union of man and woman as husband and
wife yet with the devaluation in morals, the reverse picture
has emerged with social, economic and even
psychobiological subjugation of women. The position of
woman and wife had degraded so much during the pre-
independence centuries that the wife was considered
inferior to man. The woman became dependent upon the
father during maidenhood, upon the husband during
married life and upon the sons during widowhood. Even
the inheritance laws were in favor of the husband or sons
only. The very being of the woman was suspended during
the marriage and incorporated & consolidated into that of
the husband.
30
social change in keeping with the changing times. The
outstanding feature of both The Hindu Marriage Act, 1955
as well as The Special Marriage Act, 1954 is the
introduction of monogamous form of marriage. Wife
burning, mental & physical torture, desertions and other
bodily abuses have become a common phenomenon in
society these days.
31
1.6. Components of Hindu Marriage
1. Matrimonial Alliance
2. Solemnization of Marriage
3. Consummation of Marriage
32
1.6.i. Matrimonial Alliance
33
social code plays a vigilant & balancing role. Once the
mutual consent of the prospective spouses is secured by
both the families and symbolic ceremony done, marriage is
ipso-facto fixed. The usual personal, social and customary
contact is established till actual marriage ceremony is
solemnized according to custom of the family. Legal
sanction/marital status gets established only after
marriage ceremony. Any dispute, disruption prior to
marriage ceremony does not usually invite Court
intervention unless specifically pleaded by the aggrieved
party.
49 Rajendra v. Roshan, AIR 1950 All 592, Gulab v. Fuldat, (1930) 11,
Lah. 598; Khimji v. Nari, (1915) 39 Bom. 682; Sribandy v.
Bharathyamma, AIR 1962 Mad. 400.
34
Caste is still the dominant consideration in
matrimonial alliance. Matrimonial advertisements
encompass a whole spectrum of matrimonial alliances. The
most striking fact is the classification of advertisements
along caste & religious lines. Even among the Sikhs, who
profess themselves as a caste-less society, the
classification is as follows: Jat Sikh, Sikh Khatri, Sikh
Arora, Sikh Khatri/Arora, Majahabi Sikh, Ahluwalia,
Ramgarhia, Saini, Dhiman.
35
parental status are highlighted in addition to personal and
physical bio-data. “Dowry seekers may please excuse” is
also an echo of some bride’s guardians while on the other
hand, “status family” is an allurement for dowry seekers.
• Inter-caste marriages
• Inter-faith marriages
36
Vimla Patil reports 50 that more and more couples are
going in for live-in relationship, not only celebrities but
even middle class couples are choosing to live together for
various personal or social reasons. Some of these reasons
are: society and families no longer frown upon ‘live–in
relationship’ as much as before and couples who do not
wish to make lifelong commitments prefer to live together
before getting married. Others say that they need to know
each other better before they tie the nuptial knot. Yet
others live together due to circumstances such as work
requirements or for saving money by keeping one house
rather than two. Lastly, young men and women live
together because they no longer believe in the traditional
sanctity of marriage.
37
jurisprudence is widening its spectrum involving questions
of conflict of laws, changing sociological perceptions and
statutory innovations.
38
area, who deserted them the moment they were posted out
of the area. 53
39
Section 2 (d) of the same Act defines a minor as a
person of either sex who is under eighteen years of age.
40
circumstances or in contravention of injunction orders of
the Court.
41
would make sexual contact with a girl below the age of 18 a
criminal offence, even if it is consensual, punishable with life
imprisonment. 55
42
legalize a relationship. The average age for boys seeking
marriage through matrimonial advertisements varies from
26 to 32 years.
43
NRI marriages falsehood and malafide intentions are also
used to secure the consent of the parties.
44
and stability of marital bond between the spouses is
powered by faith and mutual trust while law intervenes
only after the breach of faith or any destabilization of
mutual trust. Marriage ceremony is a refined way of
declaration of marriage as a sacred bond as compared to a
contractual union. According to Paras Diwan, Hindus
conceived of their marriage as a union, primarily meant for
the performance of religious and spiritual duties. Such a
marriage cannot take place without the performance of
sacred rites and ceremonies. 58
58 Supra note 1.
45
accordance with the customary rites & ceremonies of either
party to the marriage.
46
outside India. It lays down conditions relating to
solemnization of foreign marriages under Section 4, where
at least one of the spouses is a citizen of India;
47
Act, 1954” or “The Marriage and Divorce Act, 1954”. The
suggested change will create a desirable feeling that this is
the general law of India on marriage and divorce and that
there is nothing “special” about a marriage solemnized
under its provisions. It is in fact marriages solemnized
under the community-specific laws, which should be
regarded as “special”. A provision be added to the
application clause in the Special Marriage Act, 1954 that
all inter-religious marriages accept those within the Hindu,
Buddhist, Sikh and Jain communities, whether solemnized
or registered under this Act or not, shall be governed by
this Act.
48
both sides. Next important ceremony is Vivaha-Homa or
lighting of Nuptial fire symbolizing it as divine witness and
sanctifier of Vivaha sanskaar. It includes performance of a
Yagya by offering oblations (Aahuties) in the name of
Earth, Sky & Heavenly gods amidst chanting of mantras by
the bridegroom, bride and the priest. Third important
ceremony is Panigrahan when the bridegroom takes the
hand of the bride. The fourth & the most important and
legally indispensable ceremony is Saptapadi in which the
bridegroom and the bride take seven steps jointly, making
holy vows of chastity and conjugal responsibilities.
49
fire as in customary Hindu rites. 61 The essentials of Anand
Karaj form of marriage ceremony among the Sikhs are the
recitation of four Hymns known as ‘laavans’ as the groom
followed by the bride walks around the Holy Guru Granth
Sahib Ji amidst the chanting of these Hymns composed by
Guru Ram Das Ji. The Anand Karaj Ceremony for marriage
is governed by the Sikh ‘rehat maryada’ or the Sikh code of
conduct, determined by Shiromani Gurudwara
Prabhandhak Committee (SGPC), according to which only
those who follow the Sikh religion may marry under this
ceremony. According to an edict by Akal Takht, Anand
Karaj ceremony is to take place only in a Gurudwara, and
Guru Granth Sahib cannot be taken to a marriage hall for
this purpose. Salient features of Anand Karaj (Marriage)
Act, 1909 are:
50
customary law of the Sikhs, render a marriage between
them illegal. 62
51
1.6.ii.a.II. Customary Marriage Ceremonies
52
community to which the parties belong is customarily
following. It must be shown that such custom as an
essence of marriage ceremony had been followed definitely
from ancient times & members of the particular caste or
community regarded it as obligatory. 69
53
essential ceremony among Santhals, Tying of Vadu Veeta
Thali into the neck of the bride among Nayahans in South
India. 72 In Karewa form where the widow can contract
marriage with the brother or some male relative of the
deceased husband, is a customary marriage in Punjab.
This requires no religious ceremony. 73 However, if the
widow likes to marry stranger, customary marriage
ceremonies must be observed otherwise the matrimonial
relationship cannot come into being. 74 However if the
woman during the lifetime of her husband contracted
second marriage in Karewa form, the same is opposed to
public policy and it cannot be upheld. 75
1.6.ii.b Dowry
54
he has himself invited and who is a learned of Vedas and of
good conduct. 77 While dowry previously belonged to
husband, his right over it being unrestricted, all the
property of the wife not included in the dowry was called
her paraphera and was her absolute property over which
her husband had no control. 78 Voluntary presents given at
or before or after the marriage to the bride or bridegroom,
as the case may be, of a traditional nature, which are given
not as a consideration for marriage but out of love,
affection or regard, by parents, friends and relatives, would
not fall within the mischief of the expression Dowry, made
punishable under the Dowry Prohibition Act, 1961. 79 The
words “as consideration for marriage” have now been
substituted with words “in connection with the marriage”.
This new definition meets the objection of the Joint
Parliamentary Committee and also widens its scope. This
comes into clear relief when one notes that wedding
presents, whatever be their value, are excluded from the
purview of dowry. In a recent judgment, the Apex Court, in
Appasaheb v. Bhimabai appeal case, has ruled that “a
demand for money on account of some financial stringency
or for meeting some urgent domestic expenses or for
purchasing manure can not be termed as a demand for
dowry as the said word is normally understood. As per the
definition of dowry as given in Dowry Prohibition Act,
1961, the giving or taking of property or valuable security
must have some connection with the marriage of the
parties and a correlation between the giving and taking of
property or valuable security with the marriage of the
55
parties is essential. Being a penal provision, it has to be
strictly construed. Dowry is a fairly well known social
custom or practice in India. It is a well settled principle of
interpretation of statute that if the Act is passed with
reference to a particular trade, business or transaction &
words are used which everybody conversant with trade or
transaction knows or understands to have particular
meaning in it, then the words are to be construed as
having particular meaning. 80
56
In course of time dowry has become a widespread evil
and it has now assumed menacing proportions. Cases have
come to courts where brides, on account of their failure to
bring the promised or expected dowry have been beaten up,
kept without food for days together, locked up in dingy
rooms, tortured physically and mentally, strangulated or
burnt alive or led to commit suicide. Unfortunately, the
spread of education has not helped in curbing the social
evil of dowry, rather the educated youth has become more
demanding and think that marriage is a source of fulfilling
all their unfulfilled and unsatisfied material wants. 81 The
genesis of dowry as it is understood in the present social
set up practically lies in hyper-gamy, a system under
which the husband for a girl is secured from higher or
affluent social group. According to Kapadia 82 the main
concern of the man as found in many of the hyper-gamous
castes, is the exploitation of the woman and her people
economically and ill treatment, humiliations and abuse
were the natural corollaries. A person, in order to get a
son-in-law from a higher level of hierarchy, is often
prepared to pay an extravagant sum as dowry. The indirect
result of this is that the fathers of the girls in the higher
level are forced into competition with ambitious lower
groups. Others look to the dowry of their sons to meet their
obligations in finding husbands for their own daughters.
Thus, the vicious circle starts, the amount of dowry goes
on increasing and hyper-gamy is perpetuated. Legislation
against dowry will have little effect until it is visualized in
this perspective.
81 Supra note 1.
82 Kanhaialal Motilal Kapadia, Marriage and Family in India, 108 (Oxford
University Press, 3rd Edition, 1968).
57
Definition of Dowry: According to Section 2 of The
Dowry Prohibition Act, 1961, Dowry means any property or
valuable security given or agreed to be given either directly
or indirectly (a) by one party to a marriage to the other
party to the marriage or (b) by the parents of either party
to a marriage or by any other person to either party to the
marriage or to any other person; at or before or after the
marriage as consideration for the marriage of the said
parties but does not include dower or mehar in the case of
persons to whom the Muslim Personal Law (Shariat)
applies. Thus, the Act contemplates two stages. The first
stage is taking or giving or abetting of giving or taking of
dowry. The second stage is, after taking dowry and pending
transfer of the same to the beneficiary, the person holds it
in trust for the benefit of the woman. Under the first stage,
namely taking or giving or abetting of giving or taking of
dowry is punishable and is a void transaction. However,
under the second stage, the legislature itself has provided
that the person who took the dowry shall hold it in trust
for the benefit of the woman pending transfer in her favor.
58
dowry becomes difficult. The parents do not give dowry out
of their free will but are compelled to do so. Further, when
both the giver and taker are punishable, no giver can be
expected to come forward to make a complaint. Section 7
(b) of Dowry Prohibition Act, 1961 as amended in Haryana,
no Court shall take cognizance of an offence under this Act
except on a complaint made by any party to the marriage
within a period of one year from the date of marriage. Here
the intention of the legislature seems to be that the post-
marriage period is a sensitive time for the spouses and no
element of criminality should surcharge the atmosphere. 84
Delhi High Court took a contrary view on interpretation of
Section 7(b), Dowry Prohibition Act, 1961, and held that
complaint is to be lodged within one year from the date of
marriage. 85
59
1.6.c. Consummation of Marriage
60
marriage under Section 19 of the Divorce Act, 1869. 91 The
fact that a wife is incapable of conceiving a child is not a
sufficient ground for a decree, if she is otherwise apta viro;
the test is consummation and capacity to consummate.
Neither is sterility of the husband, whether or not
artificially engendered, a ground for relief provided that he
is vera copula. 92 The term apta viro literally means ready
for a man. It is generally used in the sense of ability on the
part of woman to consummate the marriage. Vera copula
means masculine power of effecting erectio and intromissio.
The fact that a husband had undergone a vasectomy
operation renders him sterile but not impotent. 93 Sexual
gratification soon after honeymoon period starts giving
physical and mental problems for the bride. If she be
physically and psycho-biologically fit to bear the burden
with ease and pleasure, the next phase becomes
harmonious. However, many brides start getting
medical/surgical problems of sexual organs or even of
other body organs soon after marriage.
61
fire of devotion towards the husband, occupational duty
and household responsibility. The sympathy,
understanding and mutual will to co-operate go a long way
in bridging over these daily problems. However, a little
empathy, misunderstanding, dictation or interference
upsets the whole atmosphere of family life. Sex in marriage
is important. It is like salt in food, relishing, nourishing &
energizing. Without salt, food is tasteless & so is marriage
without sex. Extramarital sex, however, can spoil the whole
dish. In fact, this is one of the significant factors in marital
breakdown in every society.
1.6.d. Procreation
62
abnormalities, abortions and even feticide. Reproductive
life of a woman extends till menopause but childbearing
activity has to stop around 30 to 35 years of age. This puts
constraints on sexual life of a different nature.
63
the society and not the vice versa. Validity of marriage
confers certain rights and obligations on both the spouses
in all matters related to matrimonial as well as non-
matrimonial disputes between each other, socially and
legally. Validity of marriage is a pre-requisite for any
adjudication on matrimonial cases in the Court. A valid
marriage is a norm in society. It acquires its formal validity
when it is solemnized/ celebrated according to custom of
both or either of the marrying parties (lex loci celebrationis)
and gets substantially/essentially validated by following
the dictates of the personal law or the marriage law of the
marrying partners and the place where the marriage takes
place (lex loci domicilii). The formal validity of marriage is
not as vital as the essential validity to a particular society.
Non-observance of any formality renders a marriage
voidable only, not void.
64
husband and wife has been acquired must be determined
once for all by reference to lex loci celebration is as it stood
at the time when the parties went through the ceremony of
marriage. 94 To prove the solemnization of marriage the
production of photographs is not necessary. 95 For
registration of marriage celebrated under the Hindu
Marriage Act, 1955 through Section 8 of the Act, proper
celebration of marriage according to provisions of the same
Act is necessary. 96 Thus, the capacity to marry constitutes
the substantial validity of marriage. The personal law of
each party, that is to say, the law of the place where he or
she is domiciled (lex loci domicilii) governs the substantial
validity of marriage. Both these factors and aspects of
matrimonial law follow the married couple during the
subsistence of marriage and even beyond it, whereever they
reside after marriage either together or separately.
65
A heavy onus lies on the petitioner to show that
marriage as a fact took place, particularly when the
respondent female disputes the factum of marriage. 98 A
presumption of marriage does not arise merely on the
ground of cohabitation but it must be cohabitation with
“habit” and “repute” which can be established under
Section 50 of the Indian Evidence Act, 1872, by opinion
expressed by the conduct of any person who as a member
of the family or otherwise has special means of knowledge
of the relationship. 99 If a marriage in fact is established,
generally, presumption that a valid marriage took place
must be drawn. 100 The proof of valid marriage can be
achieved by direct evidence of the marriage ceremonies or
registration of marriage or by circumstantial evidence like
long cohabitation between the spouses. The second
marriage during the subsistence of the first marriage
cannot be sanctified or validated by any length of
cohabitation, as the second marriage is void under the
Hindu Marriage Act, 1955. 101 The consent of the first wife
cannot make the second marriage of the husband valid
under the provisions of the Hindu Marriage Act, 1955. 102
The presumption of valid marriage arising out of continued
cohabitation may be strengthened from several
circumstances, namely:
66
(b) A statement of Tehsildar that the man told him
that his pension might be continued in favor of
the lady–his wife;
67
stigma or to escape the wrath of caste resistance from the
community.
68
Sub Section (iv) the parties are not within the degrees
of prohibited relationship, unless the custom or usage
governing each of them permits of a marriage between the
two;
69
contracting party being a child and the punishment too has
been enhanced under Sections 9, 10 and 11of the new Act.
70
Sub Section (b) neither party:
Sub Section (d) the parties are not within the degrees
of prohibited relationship; Provided that where a custom
governing at least one of the parties permits a marriage
between them, such marriage may be solemnized, not
withstanding that they are within the degrees of prohibited
relationship; and
71
desire, and upon such conditions and the payment of such
additional fees as may be prescribed.
72
that the formalities respecting signatures of witnesses have
been complied with. 105
73
Sub Section (c) the bridegroom has completed the age
of 21 years and the bride the age of 18 years at the time of
the marriage.
Sub Section (d) the parties are not within the degree
of prohibited relationship: Provided that where the
personal law or a custom governing at least one of the
parties permits of a marriage between them, such marriage
may be solemnized, notwithstanding that they are within
the degree of prohibited relationship.
74
Section 15 specifically declares the validity of such a
foreign marriage in India to be good and valid in law.
75
marriages is the humane face of Hindu law because
waywardness is a fact of life.
76
Restraint (Amendment) Act 1978 (Act 2 of 1978), the
consent of such guardian was obtained by force or by
fraud as to the nature of the ceremony or as to any
material fact or circumstances concerning the
respondent; or
(d) that the respondent was at the time of the marriage
pregnant by some person other than the petitioner .
(2) Notwithstanding anything contained in sub-section (1),
no petition for annulling a marriage –
(a) On the ground specified in clause (c) of sub-section (1)
shall be entertained if –
(i) the petition is presented more than one year after
the force had ceased to operate or , as the case may
be , the fraud had been discovered ; or
(ii) the petitioner has , with his or her full consent ,
lived with the other party to the marriage as husband
or wife after the force had ceased to operate or , as
the case may be , the fraud had been discovered ;
(b) on the ground specified in clause (d) of sub-section (1)
shall be entertained unless the court is satisfied –
(i) that the petitioner was at the time of the marriage
ignorant of the facts alleged ;
(ii) that the proceedings have been instituted in the case
of a marriage solemnized before the commencement
of this Act within one year of such commencement
and in the case of marriages solemnized after such
commencement within one year from the date of the
marriage ; and
(iii) that marital intercourse with the consent of the
petitioner has not taken place since the discovery by
the petitioner of the existence of the said ground .
77