Table of Contents
Introduction to Hindu law
Hindu law is considered to be the most ancient and prolific law in the world. It has been around every phase. It is about 6000 years old. Hindu law has been established by the people, not for the purpose of removing any crime or transgression from society but it was established so that the people will follow it in order to attain salvation. Originally Hindu law was established so that the need of the people gets fulfilled. The concept was initiated for the welfare of the people.
Origin of Hindu Law
In Dharmasastra there is no word such as ‘Hindu’. It is a foreign origin. The word ‘Hindu’ came into existence through Greeks who used to call the residence of the Indus Valley nation as ‘Indoi’. Later it became a ‘Hindu’. This nation came to be known as ‘Hindustan’ and its people as Hindu. In history, the word ‘Hindu’ not only indicates a religion, but it also indicates a nation basically. The Hindu law has been modified through centuries and has been existing since the last 5000 years and has also continued to govern the social and moral figure of Hindu life by following the different elements of Hindu cultural life.
Concept of Dharma
We know that the word Dharma is related to Hindu law. Let me explain to you, the word “Dharma” according to Hindu Mythology means “duty”. Looking at the contexts and the religious references Dharma has different meanings just like, the Buddhists believe that the word Dharma means only a universal law which is very much essential, and the Jains and the Sikhs believe that it is only a religious path for the victory of the truth.
According to the Hindu Jurisprudence, Dharma means the duties in many ways. Just like the sociological duties, legal duties or spiritual duties. Through this context, we can say that Dharma can be referred to as the concept of justice.
Sources of Dharma
As referred to in the “Bhagwat Geeta”, God creates a life using the principles of Dharma. They are patience, forgiveness, self-control, honesty, sanctity (cleanliness in the mind, body and soul), control of senses, reasons, knowledge, truthfulness and absence of anger. Accordingly, The salvation which means “Moksha” is the eternal Dharma for humans according to Hinduism.
Hindu epics like the Ramayana and Mahabharata also refers to Dharma. They say that executing one’s Dharma is the right aim of every individual. And also at that time, the king was known as Dharmaraj because the main motive of the king was to follow the path of Dharma.
Nature of Dharma
Despite the other schools of Jurisprudence, the Hindu Jurisprudence takes more care over the duties more than the rights. The nature of these Dharma changes from person to person. There are many duties of many people in this world like earlier, the king’s duty was to uphold the religious law and the other hand a farmer’s duty is to produce food, the doctor has to cure the people, the lawyers have to fight for justice. Being a highly religious concept in nature, Dharma is multi-faceted. It contains many laws and customs in a large range of subjects which is essential and needed to be followed by each and every person. For example, Manusmriti deals with religion, administration, economics, civil and criminal law, marriage, succession, etc. These we study mainly in our law books.
Who are Hindus?
A person can be called as a Hindu, who:
- Is a Hindu by religion in any form.
- Is a Buddhist, Jaina or Sikh by religion.
- Is born from Hindu parents.
- Is not a Muslim, Parsi, Christian or Jews and are not governed under Hindu law.
- Lodge in India.
The Supreme Court of India in the landmark case of Shastri vs Muldas expressly defined the term ‘Hindu’. This case is related to the Swami Narayan temple in Ahmedabad. There is a group of people called the Satsangi who were managing the temple and they restricted non-Satsangi Harijans from entering the temple. They argued that Satsangi is a different religion and they are not bound by Hindu Law. The Supreme Court of India held that the Satsangi, Arya Samajis and Radhaswami, all these belong to the Hindu religion because they originated under Hindu philosophy.
Hindu by Religion:
- If any person follows the religion by practising it or by claiming it can be called as a Hindu.
Conversion and Reconversion to Hinduism:
- Under the codified Hindu law, any person converted to Hinduism, Buddhism, Jainism or Sikhism can be called a Hindu.
- From the case of Perumal vs ponnuswami, we can say that a person can be called a Hindu by conversion.
In this case, Perumal was the father of Poonuswami who got married to an Indian Christian. In the future due to certain differences, they were living separately. In the future, the mother of Poonuswami asked Perumal for the share of his properties. Perumal denied and said “marriage between a Hindu and a Christian is void”. The Supreme Court of India held that a real intention is sufficient evidence of conversion and no formal ceremony of purification is needed (Conversion of Hinduism). So it is not void and Poonuswami would get a share.
- For conversion, the person should have a bonafide intention and also shouldn’t have any reason to be converted.
- Reconversion basically happens, when a person is Hindu and gets converted to a non-Hindu religion and he will again become Hindu if he/she gets converted into any four religions of Hindu.
- If a person is born from a Hindu family, he/she is a Hindu.
- When one of the parents of a child is Hindu and he/she is brought up as a member of the Hindu family, he/she is a Hindu.
- If a child is born from a Hindu mother and a Muslim father and he/she is brought up as a Hindu then he/she can be considered as a Hindu. We can explain that a child’s religion is not necessarily that of a father.
- The codified Hindu Law lays down that a person who is not a Muslim, Parsi, Christian or Jews is governed by Hindu Law is a Hindu.
What are Sources of Hindu law?
There is the two-fold classification of the sources of the Hindu law
- Ancient sources
- Modern sources
Ancient sources are the source that developed the concept of Hindu law in ancient times. It is further classified into four categories
- Digest and commentaries
The term Shruti means what has been heard. It contains the sacred words of the god. This source is considered to be the most important and essential source of all. Shruti’s are the sacred pure utterance that has been enshrined in the Vedas and the Upanishads. They have religious nexus with a person and help him in a way to attain the knowledge of salvation and incarnation. It is considered to be the primitive source containing the knowledge of the law.
Smritis are considered as text which has been remembered and then interpreted by the rishis throughout the generation. There is a further classification of the term Smrities which are as follows
- Dharma Sutra (Prose)
- Dharmashastras (Poetry).
Commentaries and digest
The third ancient source of Hindu law is commentaries and digestives. Commentaries and digestives have expanded the scope of Hindu law. It played a very major role in developing the very concept of Hindu law. It helped in the interpretation of the smritis. Single interpretation of the smritis is called as a commentary while different interpretations of the smritis are known as digestive. Dayabhaga and Mitakshara are considered to be the two most important commentaries.
Customs is the tradition that has been practiced in society since ancient times. It is the type of practice that is under the continuous observation of the people and has been followed by the people.
Further, the customs have been classified into two categories-
- Legal customs
- Conventional customs
Legal custom is those customs which are enforceable or sanctioned by law. It can’t be deemed invalid until the law itself declares it invalid. There are two types of legal customs.
- Local customs: Local customs are the customs that are practiced in a local area. This type of custom is not highly recognized.
- General customs: General customs are the customs or traditions which are practiced in a large area. This type of custom is highly recognized by people.
Conventional customs are customs that are related to the incorporation of an agreement and it is conditional.
What are the essentials of a custom?
Following are the essential points which constitute a custom-
- A customs must be continuous in practice
- A custom should not be vague or ambiguous
- A custom must have time antiquity
- There must be a complete observation of the custom
- It should be certain and clear
- A custom must not oppose the public policy which will affect the interest of the general public.
In the instant case it was held that in order to become legally sanctioned by law and binding on the people a custom must be continuous in practice, it should not be vague and ambiguous and should not oppose the well established public policy. A customary rule must be in the complete observation of society.
In the instant case, the supreme court stated that a custom becomes legally enforceable when the majority of people make the continuous use of such practice.
Generally when a custom attains judicial recognition no further proof is required, however in certain cases where the customary practices do not attain the judicial recognition, the burden of proving lies on the person who alleges its existence.
Munna lal v. Raj Kumar AIR 1972 SC 1493
In the instant case the supreme court stated that a custom brought before a court several times, the court might hold that such custom has been enforced by the law with the necessity of its proof.
Judicial decisions are considered to be the most important ingredient of modern sources. Judicial decision is considered to be authoritative and binding. The doctrine of precedent was established and it was applied in the cases resembling the same facts and circumstances of a case already decided.
The legislation is considered to be the codification of customs which plays an essential role in expanding the concept of Hindu law. Legislations are enacted by the parliament.
Justice equity and good conscience
Justice equity and good conscience is the basic rule of law. This rule of law applies when an existing law doesn’t apply in a case before the court decides the particular matter by applying its rationality and the concept of justice equity and good conscience.
This rule is considered to be the fairest and reasonable option available to a person.
In Gurunath v Kamlabai the supreme court held that in the absence of any existing law the rule of justice equity and good conscience was applied.
Kanchana v. girimalappa (1924) 51 IA 368
In the instant case, the privy council barred the murderer from inheriting the property of the victim.
The legislation is considered to be the most important source of Hindu law. It is considered as a base for the growth of Hindu law in the modern world. It has been stated that in order to meet the new conditions of society it became a necessity to codify the law.
Schools of Hindu law
Schools of Hindu law are considered to be the commentaries and the digestives of the smritis. These schools have widened the scope of Hindu law and explicitly contributed to its development.
The two major schools of Hindu law are as follows-
- Daya Bhaga
Mitakshara School: Mitakshara is one of the most important schools of Hindu law. It is a running commentary of the Smriti written by Yajnvalkya. This school is applicable in the whole part of India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. However different parts of the country practice law differently because of the different customary rules followed by them.
Mitakshara is further divided into five sub-schools namely
- Benaras Hindu law school
- Mithila law school
- Maharashtra law school
- Punjab law school
- Dravida or madras law school
These law schools come under the ambit of Mitakshara law school. They enjoy the same fundamental principle but differ in certain circumstances.
Benaras law school
This law school comes under the authority of the Mitakshara law school and covers Northern India including Orissa. Viramitrodaya Nirnaya Sindhu vivada are some of its major commentaries.
Mithila law school
This law school exercises its authority in the territorial parts of tirhoot and north Bihar. The principles of the law school prevail in the north. The major commentaries of this school are Vivadaratnakar, Vivadachintamani, smritsara.
Maharashtra or Mumbai law school
The Maharashtra law school has the authority to exercise its jurisdiction over the territorial parts including Gujarat Karana and the parts where the Marathi language is proficiently spoken. The main authorities of these schools are Vyavahara Mayukha, Virmitrodaya, etc.
Madras law school
This law school tends to cover the whole southern part of India. It also exercises its authority under Mitakshara law school. The main authorities of this school are Smriti Chandrika, Vaijayanti, etc.
Punjab law school
This law school was predominantly established in east Punjab. It had established its own customs and traditions. The main commentaries of this school are viramitrodaya and its established customs.
Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also one of the most important schools of hindu laws. It is considered to be a digest for the leading smritis. Its primary focus was to deal with partition, inheritance and joint family. According to Kane, it was incorporated in between 1090-1130 A.D.
Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial principles of inheritance. The immediate benefit of this new digest is that it tends to remove all the shortcomings and limitations of the previously established principles and inclusion of many cognates in the list of heirs, which was restricted by the Mitakshara school.
In Dayabhaga school various other commentaries were followed such as:
- Dattaka chandrika
Sapinda relationship and degrees of prohibited relationship
All prohibited relationships are Sapinda but all Sapinda relationships are not prohibited relationships. Sapinda relationship is the chain of all the relationship from the side of the brother and sister in the family; they can’t marry each other due to prohibited relationship and also their generation till three generations from the girl side and five-generation from the boy side, till that they all are in Sapinda relationship. Avoidance of Sapinda can be achieved as the girl reaches the fourth generation and boy (brother) reaches the sixth generation after that both families can have a marriage that will be neither prohibited relationship nor Sapinda relationship.
All about Hindu Marriage
Hindu Marriage refers to kanyadan which means gifting a girl to the boy by the father with all the tradition and rites or custom. Hindu marriage is an ancient tradition which is prevailing from the Vedic periods to the modern world with different modifications that have occurred until now. There are 16 sacraments in the Shastri Hinduism in which marriage is one of the important sacraments of Hinduism.
Section 2 of the Hindu Marriage Act 1955 states that this act applies to any person who is a Hindu by birth or who has changed his/her religion to either any of its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. Any person who is a Buddhist, Jain, or Sikh also comes under this act. It also applies to any person living outside this territory except who is a Muslim, Christan, Parsi, or Jew by religion or it is proved that such person is being governed by Hindu law. It is believed that it is the strongest bond between husband and wife. It is an unbreakable bond that remains even after death. The importance of marriage is not to the extent of one generation but it is an in-depth belief of Hinduism. Without a wife, a person is considered incomplete while performing any rites of Hinduism. It is very important to perform all the rites with the wife.
Concepts and validity of Hindu Marriage
For a long period of time Hindu marriage rites have been changed accordingly due to the needs and convenience of the people from time to time. It is the relationship between husband and wife. According to Hinduism, this sacrament is one of the most important sacraments out of 16 sacraments in Hinduism. It is a sacred tie that can’t be broken. It is a relationship from birth to birth, it is a bond which continues after rebirth and death. According to Veda, a man is incomplete until he gets married and meets with his partner.
Concept of Marriage: Sacrament or Contract
Hindu marriage is “a religious sacrament in which a man and a woman are bound in a permanent relationship for the physical, social and spiritual need of dharma, procreation and sexual pleasure.”
There are three characteristics of the sacramental nature of marriage:
- It is an enduring bond of the husband and wife which is permanent and tired even after death and they will remain together after the death.
- Once it is tied cannot be untied.
- It is a religious and holy union of the bride and groom which is necessary to be performed by religious ceremonies and rites.
Hindu marriage is considered as one of the most important sacraments. In ancient times, there was no need for the girls’ consent. Fathers have to decide the boy without asking for her advice or consent. It is the sole duty of the father to find a suitable boy. If the person was of unsound mind or minor at the time of the marriage, it was not considered as a void marriage. But in the present world, consent and mental soundness of the person are a very essential part of the Hindu Marriage, without the absence of any such element marriage will be annulled or void or no legal entity.
Section 12 of the Hindu Marriage Act 1955 lays down that when one’s consent is not obtained, the marriage is considered void. It shows that despite the absence of consent of the bride, the marriage is valid and legal.
The nature of modern marriage is contractual. Thus, it accepts the idea of equality and liberty. It has been adopted due to western Ideas. There must be an agreement of voluntarily entering into it by both parties.
Thus, the Hindu marriage is not a contract and neither is it a sacrament. But it can be said it is a semblance of both.
Forms and Ceremonies
The normative texts, dharma texts and some Gṛhyasūtras classify marriage into eight different forms which are Brahma, Daiva, Arsha, Prajapatya, Asura, Gandharva, Rakshasa, Paishacha. This order of forms of marriage is hierarchical.
Even the Supreme Court of India in Koppisetti Subbharao vs the State Of A.P, recognized the existence of 8 forms of marriage given by Aryan Hindus.
The eight forms are divided into 2 categories of approved and unapproved forms of marriage.
Brahma, Daiva, Arsha and Prajapatya come under the approved forms of marriage. These marriages involve the exchange of gifts, the “gift of a maiden” (kanyādāna). Brahmins, according to the dharma texts, have the duty to accept gifts. Therefore, the first four marriage types are generally pronounced legal for Brahmins.
In S. Authikesavulu Chetty vs S. Ramanujam Chetty And Anr., two precedents were set:
- Firstly, in a case where there is no proof to the contrary, it must be presumed that the marriage is in one of the approved forms.
- Secondly, another question arose, who will be the heir of the property of a childless mother? It was held that the property of a childless woman married in one of the four approved forms will go to her husband after her death.
‘Brahma’ is one of the most practised forms of marriage in India and has the most supreme position out of all the eight forms of marriage. Manu-Smriti has also laid great importance on this form of marriage.
The Brahma marriage, in dharma texts, has been explained as the gift of a daughter, after being decked with ornaments and honoured with jewels to a man selected by the father himself and who is learned in Vedas is called the “Brahma marriage”.
The “Brahma” marriages are the rituals of the Brahmans who according to Manu-Smriti have the duty to accept gifts.
The Supreme court in Reema Aggarwal vs Anupam And Ors, 2004 discussed the possibility of Brahma marriage being the origin of the dowry system in India but didn’t come to a conclusion regarding it. According to the author, “Brahma” marriages do not give rise to dowry cases because the father of the girl himself voluntarily gives gifts to the bridegroom. There is no external pressure from the bridegroom according to the Manu-Smriti. However, in practicality, the bridegroom may use the custom of “exchanging gifts” for harassing and pressurising the bride and her parents to give dowry. Also, According to Manu, the son of a wife married according to Brahma rites liberates ten ancestors and descendants.
Daiva-vivāha means ‘marriage related to the rite of the gods’. In this form of marriage, unlike Brahma, the father gives away his daughter to a priest as a Dakshina (sacrificial fee) for officiating in the sacrifice conducted by the father of the bride.
In this form of marriage, the groom doesn’t come looking for a bride, the parents of the bride go looking for the groom for her daughter.
This form of marriage is considered inferior to the Brahma marriage because, in Daiva, the father derives a benefit by using her daughter as a sacrifice and also because it is considered degrading for women to go looking for a groom.
According to Manu, the son of a wife married according to Daiva rite liberates seven of their ancestors and descendants.
The third form of approved marriage, that is Arsha Marriage, suggests marriage with Rishi or sages. This is different from Brahma and Daiva forms of marriage because, in Arsha, the father of the bride doesn’t have to give anything to the bridegroom. In the Arsha, the father of the bridegroom is the one who gives 2 cows or bulls to the father of the bride.
Marriages of this type happen because the parents of the girl couldn’t afford the expenses of their daughter’s marriage at the right time according to the Brahma rite. So it is presumed that the girl is married off to an old rishi or sage in exchange for 2 cows.
Sir Gurudas Banerjee (also known as Gooroodas Banerjee), a Bengali Indian Judge, believed that this form of marriage indicated the pastoral state of Hindu society, where the cattle was considered as the monetary consideration for the marriage.
However, this form of marriage was not considered noble as the marriage was treated as a business transaction where the bride was exchanged for cows and bulls.
According to Manu, the son of a wife married according to arsha rite liberates three ancestors and descendants.
Prajapatya form of marriage is similar to Brahma form of marriage except there is no trading or Kanyadan in Prajapatya and the father of the bride searches for the groom. Because of these differences, Prajapatya is inferior to Brahma.
In this form of marriage, the father while giving away her daughter addresses the couple with a condition that both the bride and bridegroom may perform their dharma together.
The basic condition requested by the father of the bride is that the bridegroom must treat the bride as a partner and fulfil their religious and secular duties together.
According to Manu, the son of a wife married according to prajapatya rite liberates six ancestors and descendants.
Asura, Gandharva, Rakshasa and Paisacha come under the unapproved forms of marriage. According to Rajbir Singh Dalal vs Chaudhari Devi Lal University, 2008, the property of a childless woman married in one of the unapproved forms goes to her family rather than her husband.
This is one of the most condemned forms of marriage. In this form, the father gives away her daughter after the bridegroom has provided all the wealth that he can, to the father of the bride and the bride herself. The Ramayana mentions that an extravagant amount of price was given to the guardian of Kaikeyi for her marriage with King Dasaratha. This is basically a commercial transaction where the bride is purchased.
According to Manusmriti, the father of the girl should not accept the offer even for the least amount of price.
The test for determining whether a marriage is “asura” or not was laid down in Kailasanatha Mudaliar v. Parasakthi Vadivanni, 1931. If the bridegroom gives money or anything that has money’s worth (like wheat, cows etc) to the bride’s father for his benefit or as consideration for him to give her daughter in marriage is called Asura marriage.
This is a unique form of marriage and is different from other forms of marriage. There is a mutual agreement between the girl and boy to get married. This mutual agreement arises from pure lust. The approval of parents does not play a role.
The concept of mutual consent for marriage was prevalent in the old Hindu system, however, the solemnization of marriage coming out of the mutual consent was very low. This was because:
- This led to the Hindu culture shifting to child-marriage.
- Possibility of inter-caste relations became high.
- This form of marriage was not in accordance with Hindu cultures and practices as there was no parental consent.
The Supreme Court in the case of Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr, 1965 discussed essential ceremonies required for performing Gandharva marriage. In this form, there is a custom that the father of a female should touch the foreheads of the female and male to each other and the Gandharva is completed by the act. Along with this custom, another custom which required the presence of a Brahmin priest and a barber was pleaded not to be essential for Gandharva marriage. However, it was held that without these essential ceremonies, a Gandharva marriage was not solemnised u/s 17 of the Hindu Marriage Act and u/s 494 of Indian Penal Code.
Rakshasa form of marriage is performed by abducting the bride and brutally slaying her family and relatives. In some texts, another condition that needs to take place is that the bridegroom shall fight with the family of the bride while following the ceremonial steps in a tranquil wedding. However, this condition is not essential for having a “Rakshasa” marriage. According to P. V. Kane, a noble Indologist, this form of marriage is named Rakshasa because Rakshasas (demons) are known from history to have been ensuing cruelty on their captives.
This form of marriage was practised by Kshtraiyas or military classes. “Rakshasa” marriage resembles a right of a victor over the person held captive in war.
In the modern era, this form is a criminal offence u/s 366 of IPC. Section 366 prescribes punishment for abducting/kidnapping a woman to compel her to marriage is punishable with imprisonment up to 10 years and/or fine.
Validity of Hindu Marriage
Section 5 A valid marriage shall be solemnized between two Hindus if the following conditions are fulfilled:
- Any person doesn’t have a spouse living at the time of the marriage. According to the Hindu Marriage Act, It is not permissible to have two living wives at the same point in time, which amounts to bigamy. It is punishable under Section 494 of the Indian Penal Code.
- The groom shall attain the age of 21 and the bride attains the age of 18. It is necessary at the time of marriage the person shall attain the specified age given in this Act.
- The consent shall not be given by coercion or threat. In the modern world, a father can’t get the girl married to any without a girl’s consent. Marriage will be void.
- They don’t fall under the Sapinda relationship, or within the degree of prohibited relationship unless it is allowed by their custom or tradition.
- The person shall be not suffering from any insanity or mental disorder at the time of the marriage.
Bigamy amounts to having two living wives at the same time which is illegal in Hindu law; without finalizing the divorce from the first marriage, a person can’t marry someone else. The first one will be considered a legal marriage. The provision of section 494 and 495 of the Indian Penal Code 1860 will be applicable to the person performing the second marriage after already having a living husband and wife.
Child Marriage under the Hindu Marriage Act, 1955 is neither void nor voidable. The silence on the part of the legislature in Section 11 & 12 and express rule in the form of provision of Section 13 (2) (iv), renders it as valid. As a result of silence on the part of the legislature in Section 5, 11 & 12 and express provision under Section 18 of Hindu Marriage Act, child marriage is valid as seen in the case of Manisha Singh vs. State of NCT ,
In Neetu Singh VS the State & Ors. the High Court of Delhi held that the marriage of minors is neither void or voidable, but is punishable.
Under the Hindu Marriage Act, none of the parties have the option to repudiate the child marriage by way of a decree of nullity. The High Court of Rajasthan in Sushila Gothalal vs. State of Rajasthan directed that State should take necessary steps to stop the menace of child marriage by punishing all involved in such marriages. As a result of which, the Chief Minister of Rajasthan had made a special appeal to all its people in the State to prevent these child marriages.
Nevertheless, a female child has been given the right to repudiate the marriage under Section 13 (2) (4), by way of divorce. In Roop Narayan Verma vs. Union of India, the High Court upheld the constitutional validity of Section 13 (2) (4) of the Hindu Marriage Act by terming it as the exercise of power by the legislature under Article 15 (3) of the Indian Constitution.
In the wake of silence on the part of the legislature under Section 11 and 12 of the Hindu Marriage Act, 1955 and express provisions in the same, the status of child marriage in Hindu Marriage Act, 1955 appears to be uncertain. There is a possibility of two arguments in this context:
- That the child marriage in Hindu Marriage Act, 1955 is not valid in view of Section 5, or
- That the child marriage in HMA is neither void nor voidable but renders valid.
Prohibition of Child Marriage Act, 2006
Under this act, the marriageable age for a male is prescribed as 21 years and that of a female is 18 years. A decree of nullity can be obtained by a girl who has entered into a child marriage within 2 years of attaining the age of 18 years.
Child Marriage is prohibited in India as per the Prohibition of Child Marriage Act, 2006.
What does this law do?
- Provides for maintenance for the girl in a child marriage;
- Allows anyone who was a child at the time of getting married to legally undo it;
- Treats children born out of child marriages to be legitimate, and makes provisions for their custody and maintenance, and;
- Consider certain kinds of child marriages where there was a force or trafficking as marriages which never happened legally.
Presumption of Marriage
Registration of Marriage
Sociologically, marriage can be defined as the approval of union between two people which must be a steady and lasting relationship. Marriage creates an environment for cultivation and fulfilment of love. In legal terms, marriage is defined as a contract by which a man and a woman reciprocally engage with each other so as to live together. Legally, it is important for both parties to subscribe to the contract by will if they want to call it marriage.
It is important to know what are the legal procedures involved in a valid marriage. This article gives a brief idea about the same. Firstly, let’s figure out which acts are related to marriage in India. In India, there are different marriage acts for different religions. For Hindus, there is the Hindu Marriage Act, 1955, which is also applicable for Jains, Sikhs, and the Buddhists. Muslims also have their personal law, which states that Nikah or marriage is a contract and may be permanent or temporary and permits a man to have four wives, the condition being that he must treat all of them equally. For the Parsees, there is a Parsee Marriage & Divorce Act, 1939, which governs the provisions of their marriage and law. For an Indian Christian, there is the Indian Christian Marriage Act 1889.
Thus the Acts related to marriage in India are:
- The Hindu Marriage Act, 1955.
- The personal laws of marriage and divorce.
Procedures of marriage and registration under the Hindu Marriage Act, 1955
As stated above, the Hindu Marriage Act, 1955 applies to many religions such as the Hindus, Jains, Sikhs and the Buddhists. It is also applicable to the persons if they have converted to any of these religions from any other religion. The primary condition according to this act is the age of the bride and the bridegroom. While in the case of a bride it has been stated as 18 years, in the case of the bridegroom, it is 21. This means that no male or female belonging to any of the above-mentioned religions shall be legally allowed to marry before attaining the aforementioned ages. The Hindu marriage act applies to all over Indian states and the Union territories, Jammu and Kashmir being an exception to it.
According to the law and as per the recent strict guidelines of the Supreme Court, it is highly necessary to register the marriages. Let’s now take a look at a few registration processes and the cost of the same.
As per the Hindu Marriage Act, 1955, following are the requirements for registration:
- One can apply for marriage at any sub-divisional magistrate’s office; the offline application method can be initiated from there itself; the registration can be done online as well. The details are required after confirming your district/state. In the case of Hindu Marriage Act, one has to wait only 15 days for an appointment while it may extend to 30 days in case of Special Marriage Act.
- The registration form must be duly signed by both male and female with a sound state of mind. Both the parties must not fall within any degree of prohibited relationship.
- The second requirement for registration under Hindu Marriage Act, 1955 is any document that provides the date of birth of the individuals. The documents may be the birth certificate, matriculation certificate, passports, PAN cards, etc.
- Two passport size photographs of both the parties are required, also one marriage photograph and Marriage invitation card (which although is not mandatory).
- In a case where the individuals have converted to any of the religions which the Hindu Marriage Act, 1955 covers, the conversion certificate duly verified by a priest to the religion which the individuals have converted to, is also required.
- The most important process for the registration to complete is the attestation of a Gazetted officer. All the above-mentioned documents must be verified by a Gazetted officer.
- After the submission of all the above-mentioned documents duly verified, it shall be the duty of the district court to confirm and put a final thumbs up on the marriage registration of the individuals.
Cost of registration:
The basic cost of registration differs from state to state; it is however in between Rs. 100-200.
Procedures of marriage and registration under the Special Marriage Act, 1954
The Indian Special Marriage Act is for those who don’t opt the religious way of marriage, i.e. those who prefer other methods of getting married apart from the religious methods such as court marriage.
Marriage between an Indian and a foreigner
The Special Marriage Act also gives guidelines for marriage between the Indians and Non Indians (foreigners), the condition for which the marriage is taking place in India and not anywhere else. It is also highly necessary for one of the two partners to be at least temporarily residing in India. If one of the partners is residing outside India, it is important for the partner residing in India to fill the Marriage notice which can be obtained from any marriage registrar the individual wishes. This notice will then be sent to the foreign partner who will have to fill it accordingly and submit back to the registrar. The couple then needs to wait for a month to be married.
This process can also be legally useful in applying for Visa or some sort of property issues.
Now the question is whether like the Hindu Marriage Act, 1955, documents are required for registration under the Special Marriage Act, 1954 too? The answer to this is yes, just as the Hindu Marriage Act, documents for registration are required under the Special Marriage Act too. Following are the list of documents required for registration under the special marriage act:
- Passport – A valid passport is a must requirement in the case of registration under the special marriage act.
- Birth certificate.
- A copy of the divorce certificate in case of divorcees.
- Death certificate of the deceased spouse in case of a widowed partner.
- The certificate mentions the stay of a couple in India for the period of 30 days.
The special marriage act also covers the requirements of court marriages in India. Court marriage can be between an Indian male and a female irrespective of their caste, religion or creed. It can also be between an Indian and a foreigner, rules of which have been already explained just above. What court marriage does is it removes the rituals and ceremonies that happen in traditional/religious marriages. The interested parties can directly apply to the Marriage Registrar for registration of marriage and be granted the marriage certificate by the registrar.
There are different situations in court marriage. To mention a few, court marriages can be done among these:
- Both male and female are Hindus.
- Both male and female belong to different religions.
- Between an Indian and foreigner.
According to the Special Marriage Act, when two individuals are willing to do a court marriage, they need to ensure the following things:
- Both the individuals must not be married substantially to any other partner, i.e. both the parties are required to be unmarried.
- Both the individuals must have attained the legal age of marriage, i.e. 21 in the case of the groom (male) and 18 in the case of the bride (female).
- Both the individuals should be marrying with the sound state of mind, and none shall be under any sought of unsound state of mind.
Conditions and requirements for registration when both male and female are Hindus:
Now let’s take a look at the procedure followed in case of both individuals being Hindu:
- The individuals are required to fill the form and submit it to the marriage registrar in one of the districts in which either of the individuals has resided for not less than a month.
- The marriage may be allowed only after 30 days unless there is any sort of objection from any of the individuals.
- The marriage is required to take place only at the specified marriage office.
- Both the individuals are required to be present physically at the time of marriage.
- The presence of 3 eye witnesses.
Now we look at the most important thing. The documents required for registration. The documents required are as follows:
- Passport sized photos of the individuals along with the given form and prescribed fee.
- Resident proof of the individuals.
- Birth certificate of the individuals.
- Photos and residential proof of eye witnesses.
Conditions and requirements for registration when both individuals are of different religion:
Under the Special Marriage Act, the procedure, as well as the documents necessary for marriage where both individuals are of different religions is almost the same as that in the case where both the individuals are Hindus. Both individuals must file their application in the marriage registrar’s office in the same process as mentioned above. The documents requirements are also the same as mentioned above unless any special circumstances.
Charges an individual has to pay to get married under the Special Marriage Act:
There is no charge taken by the registrar. Registration form charges differ from state to state. The individuals are required to submit the form charges along with the required documents at the time of registration. Generally it is between Rs. 150-200.
Void and Voidable Marriage
If there are any impediments (obstructions), then the parties cannot marry each other. If someone marries and there are any obstructions in the marriage process then it is not a valid marriage. Impediments are divided into two types which are: absolute impediments and relative impediments.
In absolute impediments, a fact that disqualifies a person from lawful marriage exists and the marriage is void i.e an invalid marriage from the beginning.
In relative impediments, an impediment that forbids marriage with a certain person exists and the marriage is voidable i.e one party can avoid the marriage. These impediments gave rise to the classification of marriage which are:
- Void Marriages
- Voidable Marriages
Void Marriages (Section 11)
A marriage is considered void under the Hindu Marriage Act if it doesn’t fulfils the following conditions of Section 5 of the Hindu Marriage Act:
If any of the parties have another spouse living at the time of marriage. It shall be considered as null and void. Illustration: there are three parties ‘A’,’B’ and ‘C’ where ‘A’ has a living spouse ‘B’, but he again marries to ‘C’ then this will be called as bigamy and it will be void.
- Prohibited Degree
If the parties are within a prohibited relationship unless the customs allows it. Illustration: there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his wife. They both went on a relationship which is prohibited by law. This marriage can also be called void marriage.
A marriage between the parties who are sapindas or in other words a marriage between the parties who are of his or her relations or of the same family. Illustration: there are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is the wife, who has blood relation or close relation to A which can also be termed as Sapinda. So, this process will be treated as void.
- Conversion to Islam.—The second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC, Sarla Mudgal v. Union of India, 1995 SCC (Cri) 569.
Consequences of a Void Marriage
The consequences of void marriage are:
- The parties don’t have the position of husband and wife in a void marriage.
- Childrens are called legitimate in a void marriage (Section 16 of Hindu Marriage Act, 1955).
- Mutual rights and obligations are not present in a void marriage.
Voidable Marriages (Section 12)
A marriage is voidable on either side of the party is known as voidable marriage. It will be valid unless the petition for invalidating the marriage is made. This marriage is to be declared void by a competent court under the Hindu Marriage Act, 1955. The parties of such marriage have to decide whether they want to go with such marriage or make it invalid.
The grounds where marriage can be termed as voidable:
- The party to the marriage is not capable of giving consent due to the unsoundness of mind. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. ‘B’ gave the consent of the marriage when she was suffering from an unsound mind. After some years, ‘B’ gets cured and raised that her consent was invalid and this marriage is voidable because during the time of the consent of ‘B’, she was in an unsound mind. So, this is a ground of voidable marriage.
- The party is suffering from a mental disorder which makes her unfit for reproduction of children. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is suffering from mental disorder due to which she is unfit for reproduction of children. Then this can be a ground for voidable marriage.
- If the party has been suffering from repeated attacks of insanity. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. Anyone from ‘A’ or ‘B’ is suffering from repeated attacks of insanity, then this can also be a ground for voidable marriage.
- The consent of marriage by either of the parties is done by force or by fraud. Illustration: There are two parties ‘A’ and ‘B’ where A is the husband and B is his wife. If either party gave consent to the marriage by force or fraud, then it will be a voidable marriage.
- If either of the parties are under-aged, bridegroom under 21 years of age and bride under 18 years of age. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is under the age of 18 years then this marriage will be considered as voidable or if A is under the age of 21 years then it can also be considered as a voidable marriage.
- If the respondent is pregnant with a child of someone other than the bridegroom while marrying. Illustration: There are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is his wife. During the time of the marriage if ‘B’ is pregnant through another person. Then the marriage would be voidable.
Necessary conditions to be fulfilled by a petition under Section 12 for nullity of a Voidable Marriage:
- On the plea of fraud or application of force on marriage, a petition can be filed before the court within one year of discovery of such fraud or application of force.
- The allegation based upon which the petition is filed was beyond the knowledge of the petitioner at the time of solemnization of marriage.
- The petition on such an allegation must be presented in the court within one year of knowledge of such facts.
- No sexual relationship is established after knowing about alleged facts.
Children of Void and Voidable Marriage
- Legitimacy of children under void and voidable marriages are specified under Section 16 of Hindu Marriage Act, 1955.
- In a void marriage, any children born out shall be treated as legitimate.
- In a voidable marriage, any child born of a marital relationship subsequently declared as nullity by court shall also be termed as legitimate.
- Even if the marriage under Section 11(void marriage) or Section 12 which is declared as null and void, notwithstanding such circumstances the child born out of such marriage is held to be legitimate.
- If prior to the marriage, the bride was pregnant and gave birth to the child after the marriage, such a child cannot be treated as legitimate because that child was not born out of the marital relationship of the present marriage and therefore, the child born after the marriage having been conceived prior to the marriage is to be held illegitimate. Illustration: If there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his wife. During the time of the marriage ‘B’ is pregnant through another. After the marriage of ‘A’ and ‘B’, the child born does not come from the marital relationship of ‘A’ and ‘B’. That child will be termed as illegitimate.
Restitution of Conjugal Rights and Judicial Separation
One of the basic requisites of marriage is that the husband and wife should live together and respect each other’s mutual rights. Both husband and wife have some mutual obligations towards each other which can not be ignored come what may. This is a distinctive feature of a conjugal relationship. In no other relationship, right to society exists. The expression “conjugal rights” signify two ideas:
- The right of the couple to have each other’s society.
- The right to marital intercourse.
According to Manu, “Let mutual fidelity continue till death. Let a man and woman united by marriage, constantly beware, lest at any time disunited they violate their mutual fidelity.” This is the only positive remedy under the Hindu Marriage Act,1955 while other reliefs tend to weaken the marriage.
The term “conjugal” means “matrimonial”. It refers to the relationship between a married couple. Conjugal rights are matrimonial rights of both of the spouses. One spouse is entitled to the society, comfort and consortium of each other. The expression “Restitution of conjugal rights” means the restoration of matrimonial rights. Provisions regarding restitution of conjugal rights are provided in various Personal Laws such as:
- Section 9, Hindu Marriage Act, 1955
- Section 22, Special Marriage Act, 1954
- Section 32, Indian Divorce Act, 1869
- Section 36, The Parsi Marriage and Divorce Act, 1936
Effects of Non-Compliance of Decree of Restitution
Rights to Set Up Matrimonial Home
In India, there is no law which deals specifically with a matrimonial house. Therefore, a matrimonial house is neither defined nor is there any right regarding it per se. However, owing to the general right to a shared household under the Act, a wife has a right to reside in the shared household with her husband. This would imply that there is a right to live in a house owned/rented by the wife and husband (together or separately), or a house in which the husband has a right, title or interest in, including the joint family house in which the husband is a member.
However, the right to reside would not extend to a house owned/purchased by the parents or relatives of the husband as he has no subsisting right in it. For instance, houses owned (not inherited) by the mother-in-law or sister-in-law would not be a shared household.
Allowing the wife (or husband) to stay in such a house is purely at the discretion of the house owners. Parents-in-law have no obligation to give residence to their daughter-in-law in a house owned by them. Therefore, a claim to reside in a house owned by the in-laws/relatives of the husband is bound to fail.
Judicial Separation is a medium under the law to give some time for self-analysis to both the parties of a disturbed married life. Law gives a chance to both the husband and wife to rethink about the extension of their relationship while at the same time guiding them to live separately. By doing this, the law allows them the free space and independence to think about their future path and it is the last option available to both the spouses for the legal breakup of the marriage.
Section 10 of the Hindu Marriage Act, 1955 provides the Judicial Separation for both the spouse, those who are married under the Hindu Marriage Act, 1955. They can claim the relief of Judicial Separation by filing a petition. Once the order is passed, they are not bound to have cohabitation.
Filing petition for Judicial Separation
Any spouse who is hurt by another spouse, can file a petition for Judicial Separation in a District Court under Section 10 of the Hindu Marriage Act, 1955 and the following should be satisfied:
- The marriage between the husband and wife should be celebrated properly under Hindu marriage Act.
- The respondent should be settled in the jurisdiction of the court where the petitioner filed the petition.
- The husband and wife lived together for a particular period of time before the filing of a petition.
Every petition should according to Order VII Rule 1 of the Civil Procedure Code, 1973 must contain:
- The date and place of marriage.
- The person should be a Hindu, by his/her affidavit.
- Name, status, address of both the parties
- Name, DOB and gender of children(if any).
- Details of litigation filed before filing the decree for judicial separation or divorce.
- For the judicial separation, the evidence should prove the grounds.
Grounds for Judicial Separation
The judicial sanction of separation creates many rights and obligations. A decree or an order for judicial separation permits the parties to live apart. There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are suspended. The decree, however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a ground for divorce, it is not necessary and the parties are not bound to have recourse to that remedy and the parties can live keeping their status as wife and husband till their lifetime. It is given under Section 10 of the Act; the spouse can file a petition for judicial separation on the basis of the following grounds:
- Adultery [Section 13(1)(i)]- It means where any of the spouses voluntarily had sexual intercourse with any other person except his/her spouse. Here, the aggrieved party can claim the relief but that intercourse should be placed after the marriage.
- Cruelty [Section 13(1)(i-a)]- When the spouse treats his/her partner with cruelty or inflicts any mental or physical pain after the marriage. The sufferer can file a petition on the grounds of cruelty.
- Desertion [Section 13(1)(i-b)]- In this section, it is defined that if the spouse left the other spouse for any reason without informing him/her for a period not less than 2 years before filing the petition by another spouse, desertion gives a right to claim relief of judicial separation for the hurt party.
- Conversion/Apostasy [Section 13(1)(ii)]- If any spouse gets converted into any other religion other than Hindu, then the other spouse can file for judicial separation.
- Unsound mind [Section 13(1)(iii)]- If any spouse in a marriage is suffering from any mental disease which is difficult to live for the other spouse with the sufferer. The other spouse can claim relief from judicial separation.
- Leprosy [Section 13(1)(iv)]- If any spouse suffering from any disease like leprosy, which can not be recovered, then the other party can file a petition for judicial separation because he/she can not waste their own time due to the sufferer.
- Venereal Disease [Section 13(1)(v)]- If any party to a marriage or a spouse has any type of disease which is incurable and communicable and the spouse does not know about the fact at the time of marriage, then it could be a valid ground for the spouse to file petition for judicial separation.
- Renounced the World [Section 13(1)(vi)]- In Hindu law, by renouncing the world means “Sannyasa”. Renunciation from the world conveys that the person has given up the world and leading a holy life. He is considered a civil dead. If a spouse renounces the world to live a holy life, his/her partner can file for judicial separation.
- Civil death/Presumed death [Section 13(1)(vii)]- If a person is not found for 7 or more years and their relatives or any other person have not heard from him/her or it is believed that he/she may be dead. Here, the other spouse can file for judicial separation.
The word ‘divorce’ had not been defined under any statutory provisions but it could be defined as a legal dissolution of judicial ties established at marriages. Thus a divorce is also a seven lettered word, which separates the united couple at their own wish with their own consent. Thus divorce can be considered a means to break marriage that happens not just between two individuals but also between two families.
The grounds of divorce under the Hindu Marriage Act had been stated under Section 13 of the said act. Thus these grounds are lawfully valid grounds for divorce and if such circumstances arise, then, unfortunately, divorce is bound to take place.
Adultery had been defined under Section 13(1)(i). It states that after solemnization of marriage if a married person with the ties of marital bonds is having sexual intercourse with another person who is not his or her spouse, is said to have committed adultery. Adultery is a crime in India and also has its penal provision under Section 497 of the Indian Penal Code. Section 497 of the Indian Penal Code defines as whoever has sexual intercourse with an individual who is and whom he knows or has as reason to accept to be the wife of another man, without the assent or intrigue of husband, such sexual intercourse not adds up to the offense of rape, but is blameworthy of the offense of adultery, and will be punished with an imprisonment of either for a term of five years, or with fine, or with both. In such a case, the wife will not be culpable as an abettor. However, it also draws a link with Section 198(2) of the Code of Criminal Procedure which deals with the prosecution for offenses against marriage. Thus the Supreme court in the case of Joseph Shine v Union of India had held that Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure together constitute a legislative packet to deal with the offense of adultery had been held unconstitutional and thus, it is also being struck down by the Supreme Court.
Cruelty in simple terms means torturing or unreasonable brutal behaviour against one. Thus Section 13(1)(ii) states that even after solemnization of marriage, treating the petitioner with cruelty can also be considered as a ground for marriage. Cruelty is also a criminal offense and also has statutory provisions for the same. Section 498A of the Indian Penal Code states about the cruelty by the husband or the relative of the husband on the woman or wife. This section clearly defines cruelty as :
- any wilful behavior which is of such a nature as is probably going to drive the lady to end her life or to cause grave injury to her life, limb or wellbeing (regardless of whether mental or physical) of the woman; or
- harassment of the woman where such harassment is with the end goal of pressuring her or any individual identified with her to fulfil any unlawful need for any property or important security or is because of disappointment by her or any individual identified with her to satisfy such need.
Thus when two such constituents of cruelty are being meted out, the person committing the same shall be punished with imprisonment for a term which shall extend for 3 years or with fine or both. Its link can also be drawn with Section 113(A) of the Evidence Act. Thus when such brutal acts are committed where an individual wants to end his or her life is bound to be considered as a basic ground of divorce.
In my opinion, it can also be concluded by criticizing that such acts of cruelty only happen on women, but society being dynamic such cases of cruelty also happens on men but there is still no penal provision to protect their rights and dignity. Though such cases of torture on men are rare, it is existing in the Indian society.
Previous cohabitation is essential for pleading desertion, except in cases of mental or physical incapacity or other special circumstances. Desertion in simple terms can also be considered as an act of abandoning a person. Thus it had been defined under Section 10(ib) of the Hindu Marriage Act 1955. It states that divorce can happen if the petitioner had been deserted by the respondent for a continuous period of two years immediately after preceding the presentation of the petition. Even if the spouse had left the home but still contacts the petitioner through emails or phone calls it cannot be considered as a ground of divorce or it could be stated that no desertion had taken place. However, if the respondent or the other spouse suddenly without any reasonable cause ceases to live with the petitioner or dismisses all the rights, obligations and duties tied with the marital bond, then the essence of the only intention which he had was to desert the partner in the marriage. Thus it could be a valid ground for divorce as well. Therefore in the case of Ashok Kumar Arora V. Prem Arora, AIR 1987 Del 255, it had been held that when one spouse separates himself/herself to bring cohabitation to an end the other is entitled to seek for a decree of divorce. In the case of Jyothi Pai v. P.N. Pratap Kumar Rai, AIR 1987 Kant 24, it had been held that the initial burden of proving discontinuation from the society without reasonable cause lies on the petitioner.
The word insanity had been derived from the word insane which means not in a correct state of mind. Thus a person who is not able to understand the difference between right or wrong or who is unable to provide consent or to approve or disapprove the happenings around him cannot be considered as competent enough to tie himself or herself within the matrimonial bonds. Insanity had been defined under Section 13(1)(iii).
- Thus the articulation “mental disorder” implies dysfunctional behaviour, captured or deficient advancement of the brain, psychopathic confusion or some other issue or incapacity of the brain and incorporates schizophrenia;
- And similarly, the articulation psychopathic disorder implies a tenacious issue or incapacity of the brain (regardless of whether including sub-typicality of insight) which brings about strangely forceful or genuinely irresponsible conduct lead with respect to the other, and whether it requires or is susceptible to clinical treatment; thus when a person is suffering from such an unstable mental condition, he/ she can never perform their right and duties in a marriage, hence, it is also one of the most important grounds of divorce.
Other fault grounds
Lily Thomas v. Union of India, (2000) 6 SCC 224 : 2000 SCC (Cri) 1056
In the case of Lily Thomas v. Union of India in 2000, on the ground that the judgement in the impugned case violates the fundamental right to life and liberty and freedom to practice any religion enshrined under Articles 20, 21, 25 and 26 of the Indian Constitution.
The court held that the contention of the petitioner that the judgment of Sarla Mudgal amounts to the violation of freedom of conscience and free profession, practice and propagation of religion as guaranteed under Article 25 and 26 of the Constitution, is far fetched and is alleged by those who hide behind the cloak of religion to escape the law.
The court further stipulated that the freedom guaranteed under Article 25 of the Constitution is such freedom which does not encroach upon similar freedom of the other persons. The petition also claimed that making converts liable for committing polygamy would be against Islam. The apex court observed the ignorance of the petitioners and rightly said that even under Islamic law, purity of marriage is upheld by Prophet Mohammad.
The interpretation of Islamic law in the modern sense would never allow such acts in its religion. Islam is a progressive, pious and respected religion that cannot be given a narrow concept as has been allegedly done by the petitioners.
Lepromatous leprosy is a virulent and incurable form of leprosy and thus a ground for divorce.
- Venereal Disease
Wife’s special grounds of Divorce
The wife also has some special rights such as:
If the husband has one or more wife living at the same time,
- If the husband has one or more wives living after the initiation of this Act, a wife may exhibit an appeal for divorce under cl. (I) of sub-sec. (2) of s. 13 of the Act. Just constraint on the right of a wife who applies for divorce under this provision is that the other wife ought to be alive at the hour of presentation of the petition independent of discoveries that the petitioner knew about the presence of the other wife and that the husband was not liable of cruelty.
- Postponement as leading an induction of approbation of or intrigue or lack of concern to a wedding incorrectly isn’t a proper thought for cases under Section 13(2)(i) of the Act. The right of divorce given to the wife by s.13(2)(i) doesn’t rely upon her behavior before the beginning of the Act. The presence of the first wife at the hour of execution of the subsequent marriage need not be built up by direct proof and that reality might be gathered from different realities demonstrated for the situation.
If the husband is guilty of rape, sodomy, and bestiality after the solemnization of marriage.
- Under s. 13(2)(ii) of the Act of a wife entitled is for a petition of divorce on the ground of rape, sodomy or bestiality submitted on her by the husband. Rape is additionally a criminal offense and characterized in Section 375 of the Indian Penal Code. A man is said to commit rape who had intercourse with a lady without wanting to, without her consent, or with her assent which is obtained by placing her in dread of death or of hurt. Thus when a wife gets to know that her husband did such an act, she has a special power to dissolve the marriage by letting him free.
- Sodomy is committed by an individual who has sexual intercourse with an individual from similar sex or with a creature or has non-coital carnal copulation with an individual from the contrary sex. Bestiality implies sexual association by a person against the request for nature with a creature.
Where a decree of maintenance under Section 18 of the Hindu Adoptions and Maintenance Act 1956, or a decree for maintenance of wife under Section 125, Cr PC 1973, has been passed against the spouse, the wife is qualified to present a petition for divorce which would be based on the fulfillment of two conditions of the divorce. In the first place, she was living separated, and besides, after passing of the order or decree, there had been no cohabitation between the husband and the wife for a time period of one year.
In some situations, the wife got married before attaining the age of 15. At such an age a little bride would have no understanding of what marriage actually means and the duties and obligations which are associated with it. Thus she has the right to revoke the marriage before the attainment of 18 years of age. Thus in such circumstances, the wife is being given the option to continue the marriage or to revoke the same.
Bars to Remarriage and Matrimonial Relief
Reconciliation by Court
Irretrievable Breakdown grounds
Irretrievable breakdown of marriage is not a ground for divorce under Hindu Marriage Act, 1955. However, where marriage is beyond repair on account of bitterness created by Acts of either of the spouses or of both, courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. Marriage which is dead for all purposes cannot be revived by court’s verdict, if parties are not willing since marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by court decree.
If the individuals, tied within the matrimonial bond feels that the marriage is not working out, then mutually it may give the right to both of them to stay and live life separately and happily without any botheration on either part. As there is no reasonable probability of staying together thus it gives both of them the opportunity to start their life as per their own wishes independently and separately.
- Irretrievable breakdown of the marriage may become an excuse where the married couples may always feel that little arguments are unreasonable as a result of which there is no probability of them staying together. Therefore, in my opinion, the process of divorce following the irretrievable breakdown of marriage theory is not justified.
- It may also result from sudden arbitrary unreasonable decisions.
- It sometimes happens based on temporary emotions such as anger, humiliation, etc. which a couple may go through during the heat of the argument.
- It fosters no communication procedure between the partners.
- It is not just the breakdown of marriage but it is also the wreckage of two united families at the time of marriage.
- If children are born out of that marriage when the parents ‘now’ think that there is no reasonable probability of staying together, such broken families could be a matter of stress for the child born out of the marriage as well.
The words “Hindu wife” used in Section 18 includes only lawful wife or legally wedded wife if it does not include wife married during subsistence of first marriage. It is often referred to as “alimony” or a kind of monetary support from the spouse i.e. spousal assistance. Maintenance on the other hand, is an act of bearing the financial expenses or reducing the burden of the spouse whose burden increases and if the husband is wealthy and leading an opulent life, his wife also has the right to be the partner in his prosperity and live with the same standards and equal dignity. It does not lie in the mouth of the husband, after separation of the spouses, to say that the wife is no longer entitled to the standard in which she has been living with the husband and that she should re-adopt the standard of her parental home. The status of the parents of the wife is a totally irrelevant consideration. After the marriage, it is the status of the husband which is determinative of the quantum of Maintenance to be given to the wife.
Further, the main purpose of granting maintenance is to maintain the standard of living of the spouse equivalent to that of the other spouse and in accordance with status prior to the separation. It is granted during the proceeding of decree or after the decree of divorce and ceases to exist on the death or remarriage of the alimony holder. The spousal maintenance is determined on the existence of various factors by the court as follows:
- No separate source of income. The most important factor to be considered before granting maintenance or alimony is to check whether the spouse seeking maintenance has any separate source of income or not or is solely dependent on the income of his/her spouse.
- Standard of living of both the litigating parties before separation.
- Expenses required to maintain children.
- Requirement to maintain the same standard of living of the spouse as it was before the separation.
- Skills, capabilities and educational background of the spouse to earn his/her living and maintain themselves etc.
Types Of Maintenance
On consideration of factors by the competent court, maintenance can be granted on the following basis-
- Temporary Maintenance- It is also referred to as maintenance pendente lite which is awarded by the courts during the continuation of proceedings of the divorce. The purpose is to meet the necessary and immediate expenses of the spouse who is a party to the proceedings. On satisfaction, the court may grant it. Section 24 of Hindu Marriage Act,1955 deals with this kind of maintenance. Further can be claimed under Section 125(1) of CrPC.
- Permanent Maintenance- As the term suggests, it refers to the granting of a sum on a periodical basis or on a continued basis once the proceedings have been disposed of. Section 25 of Hindu Marriage Act, 1955. Either of a spouse is entitled to receive it.
Prior Status of Right of Maintenance
Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 initially dealt with the provisions of granting maintenance. The Hindu Marriage Act was formed in the year 1955 and applies specifically on individuals who are Hindus including Sikh, Jains and Buddhists and persons who come under the ambit of Section 2 of Hindu Marriage Act, 1955. Also children whose either of a parent is a Hindu, Sikh, Jains or Buddhist and are brought up under the same religion will also be considered as a Hindu and will be entitled to maintenance. Under old Hindu law, a Hindu male was under an obligation to maintain the following persons:
- His wife,
- Unmarried daughter,
- Legitimate sons,
- Illegitimate sons, and
- Aged parents.
Thus, only hindus (the applicability of which could be checked from Section 2 of Hindu Marriage Act, 1955) are covered under this Act.
From ancient times women have been kept at a disadvantaged position which not only weakens their stake in society but also leads to unequal treatment with them. The Code of Criminal procedure came into force in the year 1973 and according to Section 125 of this code, maintenance is granted to wives, children and parents irrespective of any religion or personal laws. Hence, it has provided for a better status to women by granting rights in a dignified manner.
Hindu Marriage Act, 1955
Obligation To Maintain Wife
Even though there may have been as per uncodified Hindu law, some obligation upon a father-in-law to maintain his widowed daughter-in-law even out of his self acquired property; it has ceased to have effect and cannot be implemented if right to claim it accrued after 1956 Act came into force. Section 24 and Section 25 of the said act deals with the provisions of allowing pendente lite and permanent maintenance respectively. In Dr. Kulbhushan v/s Raj Kumari and Anr, the court while deciding the amount of maintenance observed that it is determined based on the facts of each case and declared that if the court enhances or moulds the amount of maintenance, then such a decision would be justified. It was further held in this case that it would be fair to provide the wife with 25% of the husband’s net salary as maintenance.
- Under Section 24 of the act if the court considers fit and is satisfied that either wife or husband does not have an independent income, then it can order the respondent to pay the maintenance to the petitioner in accordance with the provisions of this Section. Thus, the claimant can be a husband as well.
- Further, according to the provisions of Section 25 of the Act, which deals with the granting of alimony on a permanent basis, the court may on the application made by the respondent , order to provide for maintenance either in the form of periodical payments or a gross sum to be provided. Thus, in this case as well the respondent can either be a wife or a husband.
- The purpose of interpreting the provision in this way is to avoid the discrimination because both husband and wife are equal in the eyes of law.
Delhi High Court recently in the case of Rani Sethi v/s Sunil Sethi, ordered the wife( respondent) to pay maintenance to her husband (petitioner) of Rs 20,000 and Rs.10,000 as litigation expenses. Further a Zen car was ordered to be given for the use of the petitioner.
- Wife on being aggrieved by the same order approached the High Court, where the scope of Section 24 of HMA was construed and it was held that the purpose of this Section was to provide support to the supposed who is incapable of earning his/her independent income.
- Further it was held that the term “support” shall not be construed in a narrow sense and thus, it includes not only bare subsistence. It aims to provide a similar status as that of the respondent spouse. Thus, considering all the facts and circumstances, the appeal of the wife was dismissed.
- Though Section of the above said Act provides sufficient right to both husband and wife to move an application before the court for seeking maintenance, if they do not have an independent source of income and have been solely dependent upon his/her spouse. But this Section cannot be invoked in such a manner as to where husband though capable of earning does not continue to do so intentionally for the sole purpose of depending on his wife. In such a case the husband cannot move an application for seeking maintenance. This was held by the Madhya Pradesh High Court in the case of Yashpal Singh Thakur vs Smt. Anjana Rajput where husband incapacitated himself by stopping to run an auto rickshaw. Hence, where a person intentionally incapacitates himself he loses the opportunity to file an application for seeking maintenance.
Obligation To Maintain Children And Parents
Live-in relationship, as such, is a relationship which has not been socially accepted in India, unlike many other countries. A live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in civil law for protection of women, from being victims of such relationship, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages, etc. There are other legislations also where reliefs have been provided to women placed in certain vulnerable situations. Section 125 CrPC, of course, provides for maintenance of a destitute wife and Section 498-A IPC is related to mental cruelty inflicted on women by their husbands and in-laws. Section 304-B IPC deals with the cases relating to dowry death. The Dowry Prohibition Act, 1961 was enacted to deal with the cases of dowry demands by the husband and family members. The Hindu Adoptions and Maintenance Act, 1956 provides for grant of maintenance to a legally wedded Hindu wife, and also deals with rules for adoption. The Hindu Marriage Act, 1955 refers to the provisions dealing with solemnisation of marriage and also deals with the provisions for divorce. For the first time, through the DV Act, Parliament has recognised a “relationship in the nature of marriage” and not a live-in relationship simpliciter.
Under the proviso to Section 19(1), the words used are (a) from the estate of her husband or her father or mother and they mean that she has a right-apart from the right she has against the estate of her husband – a personal right against her father or mother during their respective lives. The words the estate of before the words her husband, are not to be read into the latter part of the clause as estate of her father or mother. What the proviso does here is to create (i) a right against the estate of her husband and also (ii) an independent and personal right against the father during his lifetime (or against the mother) if the daughter is unable to maintain herself out of her earnings or other property etc. That right against the father during his lifetime can be enforced against the property he is holding. The legislature has deliberately not used the words state of her father in the proviso (a) to Section 19(1)
Section 26 of the same act deals with the custody, maintenance and education of minor children. Court may, as it considers necessary and deems fit, from time to time pass interim orders in this regard and at the same time has the power to revoke, suspend or vary such an order. Obligation to maintain lies on both father and mother of the child or on either of the parents as ordered by the court. Section 20 of Hindu Adoption and Maintenance Act, 1956 lays down an obligation on a hindu male or female to maintain their legitimate/ illegitimate minor children and aged/ infirm parents, the amount of which is to be determined by the competent court on the following factors-:
- Economic position and status of the litigating parties.
- Reasonable wants and needs of the parties.
- Dependence of the parties, etc.
In Sukhjinder singh saini v/s Harvinder kaur, certain observations were made by the Delhi High Court while dealing with the issue of deciding the maintenance to be granted for a child:
- Both the parents have a legal, social and a moral obligation to maintain their children and provide them with the best standard of living, depending on the financial footing of the parties.
- They are equally obligated to provide means for best education.
- It was further held that even if the child is living with the spouse whose income is sufficient enough to maintain the child cannot be taken as a good ground by the other spouse of not maintaining the child or taking care of the child’s welfare.
Jurisdiction and Procedure
Procedures of Divorce (Detailed study under the Hindu Marriage Act 1955)
Section 19 of the Hindu Marriage Act 1955 states about the court in which the petition of divorce should be presented. It also highlights the fact that every petition which is sought to have been presented under this Act should be presented to the district court within the local limits of the original ordinary civil jurisdiction. The petition can, therefore, be filed in:
- The place where the marriage was solemnized.
- The place where the respondent resides during filing of the petition.
- The place where the couple last resided together.
- The place where the wife of the petitioner last resided.
- If the respondent is residing at a place which is outside territorial limits to which the act extends or not had been heard of being alive for a period of 7 years, then the petitioner could file a petition depending upon the places where he or she is presently residing.
Section 20 states about the contents and verification of the petition.
- Section 20 sub-section 1 states that every petition of divorce presented under the Hindu Marriage Act 1955 should be distinctly examined based on the nature and facts of the case depending on which the claim of relief is decided.
- Section 20 sub-section 2 states that the statement contained in every petition under this Act should be verified either by the petitioner or any other competent individual in a manner presented by the law for the verification of the plaints and during hearing it may also be used as evidence.
Section 21A states that:
Clause (a) sub-section 1 of Section 21A states that where,
- (a) a petition under this Act has been exhibited to a district court having jurisdiction by the party involved with a marriage wanting for a decree for judicial separation as being stated under Section 10 or for a decree for divorce under Section13; and
- (b) another petition under this Act has been displayed from that point by the other party to the marriage praying for a decree of judicial separation under Section 10 or for a decree of divorce under Section 13 on any ground, regardless of whether in a similar district court or in an alternate or different district court, in a similar State or in an alternate or different state State,
- The petitions will be managed as indicated in sub-section (2).
Sub-section 2, states, for a situation where subsection (1) applies,
- (a) if the petitions are introduced to a similar district court, both the petitions will be attempted and heard together by that district court;
- (b) if the petitions are exhibited to some other different district courts, the petition which is being presented later will be moved to the district court in which the previous petition was introduced and both the petitions will be heard and discarded together by the district court in which the prior request was introduced.
- Sub-section 3, states, for a situation where condition (b) of sub-section (2) applies, the court or the Government, by and large, able under the Code of Civil Procedure, 1908 (5 of 1908), to move any suit or proceeding from the district court in which the later appeal has been presented to the district court in which the previous request is pending, will exercise its authority to move such later petition as though it had been enabled so to do under the said Code.
Section 21B states that firstly the trial of a petition shall be taken in with the interest of justice and it shall be taken day-to-day until the case is being concluded. Day-to-day all the necessary reasons for filing the divorce petition should be recorded. This is stated in Section 21B(1). Secondly, an attempt should be made to conclude the cases within a period of 6 months. Therefore the cases are to be dealt expeditiously as being stated under Section 21B(2). Thirdly in Section 21B(3) every appeal under the act should be dealt expeditiously as possible and should be tried to be concluded within the period of 3 months from the date on which notice of appeal had been served to the party.
Section 21C states that no document in this regard shall be admissible if it is not duly stamped or registered. Therefore Section 21C states about the documentary evidence.
Section 22 under this act states that all the proceedings under this Act should be conducted in a camera, and it is unlawful for anyone to print or publish the same. However, if any act happens contrary to the given provision then he or she shall also be punishable with a fine which shall extend to one thousand rupees. In this section the word ‘camera proceeding’ means that all the acts should only happen in the presence of the Judge, the concerned advocates of the two parties and the two parties i.e the petitioner and respondent themselves. Thus it is not an open court where one could be allowed.
Section 23 of the Hindu Marriage Act 1955, provides a bar to matrimonial relief. It explains the conditions under which the court would not be granting matrimonial relief.
The conditions are as follows under sub-section 1 of Section 23:
- Clause (a) of sub-section of Section 23 states that the petitioner needs to show that he or she is not taking advantage of his own wrong. For example, if the petitioner had been constantly torturing the respondent, and the respondent also had shown some act of cruelty against the petitioner then the petition cannot want relief on the ground of cruelty committed by the respondent as it was the petitioner who started the act of torturing and teasing the respondent. Hence in this regard, the Court holds up the principle of equity that one who comes for equity must come with clean hands.
- Clause (b) of sub-section 1 of Section 23 states that a petition which is being filed on the ground of adultery has not in any manner been an accessory to connived at or condoned the acts complained off. Thus ‘accessory’ in the regard means aiding or assisting or actively participating in the offense complained against. If this ground of participation by the petitioner is being established then the court would grant no relief. Similarly ‘connivance implies a willing consent to a conjugal offense. Therefore if one spouse is willingly, intentionally or recklessly allowing the conjugal offense then no relief could be given by the court. Lastly, condonation means to forgive. Thus, if there is a reinstatement of the spouse who had suffered the matrimonial offense, then the court will see that such there are chances of forgiveness and smooth functioning of a relationship, as a result, no relief would be given.
- Clause (bb) of sub-section 1 of Section 23 if the divorce is given on the ground of mutual consent and that consent had not been derived by any fraud, force or undue influence, then such a relationship would also be barred from any sort of relief.
- Clause (c) of subsection 1of Section 23 states about collusion. Thus it holds the view that if two parties within the marital ties had consented for divorce but in order to get the relief they trick the court, therefore in such circumstances also relief will not be given.
- Clause (d) of sub-section 1 of Section 23 states that if there is an unreasonable, or improper delay for filing a decree for divorce or for judicial separation then relief also be given:
- As per Section 23(2), it is the duty of the court to look into the nature and circumstances of the case and try every possible endeavor to bring about a reconciliation between the parties.
- If the court thinks fit and if the parties desire, the court may adjourn the proceeding for a reasonable period of 15 days and refer the matter to any person as named by the parties or on behalf of the person selected by the court if the parties fail to name them with directions to report to the court. This had been stated under sub-section 3 of Section 23 of the Hindu Marriage Act 1955.
- Section 23 sub-section 4 states that if the marriage is dissolved by the decree of divorce then the copy of the decree passed by the court shall be given free of cost to both the parties.
The Hindu Succession Act, 1956
Overview of this Act
The Hindu Succession Act, 1956 is an Act relating to the succession and inheritance of property. This Act lays down a comprehensive and uniform system which incorporates both succession and inheritance. This Act also deals with intestate or unwilled (testamentary) succession. Therefore, this Act combines all the aspects of Hindu succession and brings them into its ambit. This article shall further explore the applicability, and the basic terms and definitions and the rules for succession in the case of males and females. The Nature and Object in Section 6(1) of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, the proviso appended to Section 6(1) of the Act creates an exception. Section 6 is an exception to the general rules. It has rights of coparcener in devolution of property where Mitakshara coparcener dies intestate. It does not interfere with special rights of members of Mitakshara property. However, it seeks to ensure that female heirs mentioned as Class I heirs get their shares after death of coparcener by introducing the concept of notional partition immediately before his death.
The Hindu Succession Act, 1956 was passed to amend and consolidate the law relating to intestate succession among Hindus. It extends and applies to all the persons who practice the religion or who are defined as Hindu’s (Buddhists, Jains and Sikhs) under the legal regime. The act was further amended in 2005. As per the provisions of this Act, if a Hindu male dies intestate then the following persons can make a claim:
First Claim: Class I legal heirs. They have equal rights to the assets.
They are mother, spouse and children. If any child has died, then their children and spouse have an equal share;
Second Claim: In the absence of Class I heirs, the Class II heirs can make a claim. They are, father, sibling, living children’s grandchildren, sibling’s children etc.;
Third Claim: In the absence of Class I and Class II heirs, the Agnates can make a claim. Agnates can be defined as the distant blood relatives of male lineage (fathers’ side).;
Fourth Claim: In the absence of Class I, Class II heirs and Agnates, the Cognates can make a claim. Cognates can be defined as the distant blood relatives of female lineage (mothers’ side).
In the case of a Hindu female the following persons can make a claim:
First Claim– the sons and daughters and the husband can make a claim;
Second Claim– In the absence of the first claimants, the heirs of the husband can make a claim;
Third Claim– In the absence of the first and second claimants, the mother and father can make a claim;
Fourth Claim- In the absence of the above-mentioned claimants, the heirs of the father;
Fifth Claim – And even in the absence of the heirs of the father, the heirs of the mother can make a claim.
In the case a Hindu dies intestate and without any heirs as above-mentioned, the property devolved to the State Government under due procedure of the law.
When the succession of the property is governed by a testament or a will, then it is referred to as testamentary succession. Under Hindu law, a Hindu male or female can make the will for the property, including that of a share in the undivided Mitakshara coparcenary property, in favour of anyone. This should be valid and legally enforceable. The distribution will be under the provisions of the will and not through the laws of inheritance. Where the will is not valid, or not legally enforceable, then property can devolve through the law of inheritance.
The Hindu Minority and Guardianship Act, 1956
In the Hindu Dharma Shastras, not much has been said about the guardianship. This was due to the concept of joint families where a child without parents is taken care of by the head of the joint family. Thus no specific laws were required regarding the guardianship. In modern times the concept of guardianship has changed from the paternal power to the idea of protection and the Hindu Minority and Guardianship Act, 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core.
Under the Hindu Minority and Guardianship Act, 1956 a person who is a minor i.e. below the age of Eighteen years is incapable of taking care of himself or of handling his affairs and thus requires help, support and protection. Then, under such a situation a guardian has been appointed for the care of his body and his property.
In 1956 as a part of Hindu Code Bills, the Hindu Minority and Guardianship Act along with Hindu Marriage Act, Hindu Succession Act and Hindu Adoption and Maintenance Act were established under the leadership of Jawaharlal Nehru in order to modernize prevalent scenario of Hindu legal tradition. The Hindu Minority and Guardianship Act was established to empower the Guardians and Wards Act of 1890 and provide better rights and protection to children instead of acting as a replacement of an already prevalent act.
This act was passed with a motive of defining rights, obligations, relationships between adults and minors. Not only Hindus are covered under this act but also Lingayat, Virashiva, Brahmo followers, Parthana Samaj followers, Arya Samaj followers, Buddhist, Sikhs and Jains. In other words, Muslims, Christians, Parsis and Jewish are not covered under this act.
Minority of a particular person is defined according to the age of that person. Attainment age for being a major varies according to religion and time, for instance, in old Hindu law the age of 15 or 16 years was the age of majority but now it has been increased to 18 years, for Muslims, the age of puberty is considered as the age of majority.
Both legitimate and illegitimate minors who have at least one parent that meets the stipulations outlined above fall under the jurisdiction of this Act. Irrespective of personal laws followed by individual communities a common act majority is known as Indian Majority Act, 1875 applies to all communities.
Under this act attainment of age of majority is 18 years but if a person is under the care of guardian attainment of age of majority increases to 21 years. The Guardians and Wards Act, 1890 applies to everyone irrespective of their caste, creed or community unlike Hindu Minority and guardianship act which applies to Hindus and religion considered as Hindus only.
Types of Guardian
There are 3 types of guardian who are in the following:
- Natural Guardian.
- Testamentary Guardian.
- A Guardian appointed by the Court.
According to Section 4(c) of the Act, the natural guardian assigns to the father and mother of the minor. For a minor wife, his husband is the guardian.
Section 6 of the Act gives 3 types of natural guardian in the following:
Father– A father is the natural guardian of a boy or unmarried girl, the father is the first guardian and the mother is the next guardian of the minor. It is given in the Act that only up to 5 years the mother is the natural guardian of the child.
Case- Essakkayal nadder Vs. Sreedharan Babu. In this case, the mother of the minor died and the father was also not living with the child, but the child was alive. the child was not declared to be a Hindu or renounced the world and he was also not declared unfit. These facts do not authorize that any other person adopts the child and be the natural guardian and transfer the property.
Mother– The mother is the first guardian of a minor illegitimate child, even if the father is existing.
Case- Jajabhai Vs. Pathakhan, in this case, the mother and father got separated for some reason and the minor daughter stayed under the guardianship of the mother. Here, it will be determined that the mother is the natural guardian of the minor girl.
Husband– For a minor wife his husband is the natural guardian.
Under Section 6, it is given that no person will be designated to perform like the natural guardian of a minor under this portion, which is in the following:
- If he/she ceased to be a Hindu.
- If he/she has completely renounced the world that they are becoming an ascetic (sayansi) or hermit (vanaprastha).
Note: In Section 6, the terms “Father” and “Mother” do not include the step-father and the step-mother.
Under Section 9, of the Hindu Minority and Guardianship Act, 1956 testamentary guardian only authorized by a will. It is compulsory for the testamentary guardian to receive the guardianship adoption which may be expressed or implied. A testamentary guardian has the right to decline the appointment, but once he /she receives the guardianship then he/she can not decline to perform or resign without the permission of the Court.
According to the Hindu Minority and Guardianship Act, 1956 testamentary power of choosing a guardian has been provided on both, father and mother. If the father chooses a testamentary guardian but the mother rejects him, then the chosen guardian of the father will be inefficient and the mother will be the natural guardian thereafter. If the mother chooses a testamentary guardian, her chosen guardian will become the testamentary guardian and father’s appointment will be void. If the mother does not want to choose any guardian then father’s appointee will become the guardian. It appears that a Hindu father can not choose a guardian of his minor illegitimate children even when he is allowed to perform as their natural guardian.
A Guardian appointed by the Court
In the earlier days of Smritis, the overall jurisdiction for the children was sanctioned over the king. The king had the power to choose a closet relation of the minor as guardian. Only priority was given to the relatives on the paternal side over the maternal side. Only for the security of the child, this type of laws was formulated by the ancient lawgivers.
Now, this type of powers are applied by the Courts under the Guardians and Wards Act, 1890.
The guardian who is appointed by the Courts, he/she will be known as a certified guardian.
Under Section 13 of the Hindu Marriage and Guardianship Act, 1956, while the appointment of any person as guardian is going on by a Court, the advantage of the minor shall be the primary consideration.
Therefore, in both the ancient and modern times the king or the Court has been given the responsibilities to appoint a guardian for the defence of a minor.
The Hindu Adoptions and Maintenance Act, 1956
As per the act – a Hindu does not merely mean a person that follows Hinduism but also includes other sub-religions of Hinduism, such as- Buddhists, Jains, Sikhs, Virashaiva, Lingayat, or members Arya Samaj. Followers of Brahmo and Prarthana are also included in the definition of Hindu.
As a matter of fact, the Hindu Adoption and Maintenance Act covers everyone residing in India who is not a Christian, Muslim, Parsi or Jew.
The Act sheds light upon:
- What a valid adoption is?
- Who can adopt children?
- Procedure to adopt children along with other duties and obligations that occur after adoption.
Overview of this Act
Hindu Adoption and Maintenance Act deals with the legal procedure of adoption of children by Hindu and other legal obligations that follow, including maintenance of children, wife, and in-laws.
The Act has no description of the word “Adoption” per se, but it is a Hindu law derived from uncodified Hindu laws of Dharamsastra, specifically Manusmriti.
Adoption has been described in Manusmriti as ‘taking someone else’s son and raising him as one’s own’.
Hindu Adoption and Maintenance Act has made the definition of ‘adoption’ much wider by using the word ‘child’ instead of ‘son’. Child includes both a girl and a boy child, and not merely a son.
With the change in society over time a codified and uniform legislation was required to serve the democracy, so, no adoption can be made without the procedure mentioned in this act. If any adoption is made neglecting this act, the adoption shall be rendered to be void.
Adoption will be valid only if it has been made in compliance with this Act.
Who can Adopt a child?
In order to adopt a child, the person must be a Hindu and have the capacity to adopt it. A Hindu male who wishes to adopt a child must meet the requirements provided in Section 7 of the act and a Hindu female wanting to adopt shall abide by Section 8 of the same.
The capacity of a Hindu male to adopt
Section 7 states that a male Hindu who is willing to adopt a child must fulfil the following conditions:
- Attained the age of majority; and
- Be of sound mind.
- Must have a wife that is alive whose consent is absolutely necessary.
- It can be overlooked if the wife is incapable of giving consent due to insanity or other reasons.
- If a person has multiple wives, the consent of all the wives is necessary for adoption.
In Bhola & ors v. Ramlal & ors, the plaintiff had two wives and the validity of adoption was in question as he had not taken the consent of one of his wives before adopting.
It was the contention of the plaintiff that his wife had absconded and could be considered as good as dead.
The High Court of Madras observed that the wife of the plaintiff had run away but could not be considered dead unless she had not been heard from for at least seven years. It was held that as long as the wives are alive, the consent of each wife is necessary for a valid adoption.
If the wife has converted to some other religion or renounced the world, her consent isn’t necessary for adoption. But, the existence of a living wife is an essential requirement for a Hindu male to adopt children.
The capacity of a Hindu female to adopt
Section 8 of the act states that a Hindu Female willing to adopt a child must:
- Have attained the age of minority;
- Be of sound mind;
- Be either a widow;
- Divorced, or
- Unmarried in order to adopt.
If she has a husband who is alive, she will not have the capacity to adopt a child.
Who can give a child for adoption?
As per the act:
- Only the biological father of a child has the authority to give him up for adoption;
- The consent of the child’s biological mother is necessary.
A mother will have the capacity to give the child up for adoption if:
- The father is either dead;
- Of unsound mind;
- Has renounced the world; or
- Converted to some other religion.
The section clearly mentions that the father and mother mean biological parents and not adoptive parents. Adoptive father or mother can not give the child up further for adoption.
Can the guardian give a child for adoption?
A guardian as described in Section 9 of the act means a person appointed by the parents of a child or the court for taking care of the child and his/her property. If the child’s biological parents are either dead, have renounced the world, have lost their mind or have abandoned him – he can be given up for adoption by the guardian.
But in order for a guardian to give up a child for adoption, he must have the permission of the court for doing so. The court for giving such permission must be satisfied that:
- The adoption is for the welfare of the child;
- No payment has been made in any form in exchange for the child.
When is adoption valid?
Under the Hindu law of adoption, only a Hindu can adopt a child if he/she abides by the essentials prescribed in Section 6 of the act:
- The adoptive parent/s have the capacity and rights to adopt;
- The person/s giving up the child for adoption has the capacity to do so;
- The person being adopted has the capacity to be taken in adoption;
- The adoption is made in compliance with the act.
Only upon meeting these requirements shall adoption be valid.
Necessary conditions to be fulfilled for:
The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid adoption, which must be complied with. Such as:
Adoption of a son
Section 11(i) of the act states that if a Hindu male or female desires to adopt a son, they must not have a living son, grandson, or even a great-grandson at the time of adoption.
It is irrelevant whether the son is legitimate, illegitimate, or adoptive. They should not already have a son who is living.
Adoption of a daughter
Similar to the conditions of adopting a son – Section 11(ii) states that one wishing to adopt a daughter must not have a living daughter or a granddaughter from their son at the time of the adoption.
It is immaterial whether the daughter or granddaughter is legitimate, illegitimate, or adoptive.
Adoption of a female child by a male
A Hindu male willing to adopt a girl child must have the capacity to adopt a child as prescribed in Section 7 of the act, and Section 11(iii) states that he must be at least 21 years older than the girl child that is to be adopted.
Adoption of a male child by a female
If a Hindu female wants to adopt a male child she must first meet the requirements prescribed in Section 8 of the act and have the capacity to adopt a child.
Also, she has to be at least 21 years older than the child she wishes to adopt.
When adopting a child a person must comply with some additional conditions along with all the aforementioned conditions.
These additional conditions are basic and are very important for the welfare of the child.
- Section 11(v) of the act says that the same child can not be adopted by multiple people at the same time.
- Section 11(vi) states that a child that one wants to adopt must have been given up for adoption as per the guidelines of this act, by their biological parents or guardian.
- The Section further states that the child shall be given up for adoption with the intention to transfer him/her from their biological family to the adoptive one.
- In the case of an abandoned child or whose parents are unknown, the intention must be to transfer him/her from the place or family that they have been brought up to their adoptive family.
Effects of adoption
Adoption will completely change the life of a child in many ways. He becomes a part of a new family and will have rights in the property as well.
Section 12 of the act states:
- When a child has been adopted,
a. They shall be considered as the child of their adoptive parents for all purposes.
b. The adoptive parents shall have all the parental obligations and rights.
c. The child shall have all the rights and obligations of a son/daughter.
However, there are some conditions that the child must abide by after he has been adopted, such as:
- He/she must not have an incestuous relationship with anyone from their biological family, and should not marry anyone from their birth family. The rules of the Hindu Marriage Act, 1955 regarding ‘sapinda relation’ shall be applicable to them towards their birth family.
- If the child had any property before the adoption, it shall continue to be in their possession after. However, such property may bring some obligations over him and he shall be liable to all those obligations, including having to maintain his biological family if required.
- The adopted child shall not deprive any member of his birth family of any property that he held before the adoption.
It is important for the adoption to be valid to have any effect at all. In Sri Chandra Nath Sadhu & ors v. The State of West Bengal & ors, the High Court of Calcutta stated that a void adoption will not create any rights in the adoptive family for anyone that could have been obtained from a valid adoption, nor any existing rights will end in the child’s biological family
Rights of adoptive parents to dispose of their property
If adoptive parents wish to dispose of their properties by transfer by gift or will, they are free to do so and adoption does not stop them. Unless there is an existing agreement that states the contrary.
Who will be the adoptive mother in case of adoption by a male?
We have already discussed that a Hindu male who has a living wife must have her consent for adopting a child.
- Section 14(1) of the act states that in such cases the wife shall be deemed to be the mother of the adopted child.
- If a male who adopted the child has multiple wives, the senior-most wife shall be considered to be the mother of the adopted child while his other wives shall have the status of stepmothers as stated in Section 14(2) of the act.
- Section 14(3) of the act states that if a child has been adopted by a bachelor or a widower, the woman he marries if he ever gets married will become the stepmother of the child.
- A widow or bachelorette who adopts a child will be their mother and in case she gets married to anyone, the man will be deemed to be the child’s stepfather as per Section 14(4) of the act.
Can a valid adoption be cancelled?
- When a person has opted for adoption and it has been validly made, there is no way that they can cancel the adoption.
- Section 15 of the act clearly states that neither the parents can cancel a valid adoption, nor the child has any right to renounce their adoption and return to their biological family.
- Once a valid adoption is made, there is no going back. It is final.
- Maintenance has been described in the definition clause of the act i.e, Section 3(b) as something that can provide for food, clothing, shelter, education and medical expenses.
- Basically, it is financial support paid by a husband or a father that covers all basic necessities of life.
- The section also says that if the maintenance is to be provided to an unmarried daughter, it shall also cover all the reasonable expenses required in her day to day life till the day she gets married.
Maintenance of wife
The wife must be paid maintenance after divorce until she gets married again. The idea behind this is to let her live with her lifestyle and comfort that existed during her marriage, and it must be paid until she gets remarried.
There is no minimum or the maximum amount fixed for maintenance, it is to be decided by the court according to the earning capacity of the husband.
If the husband is well to do then the maintenance shall be high in order to match the rich lifestyle the wife was used to during the marriage.
If that is not the case, it must be a reasonable enough amount that can cover all her reasonable expenses.
When is the wife entitled to maintenance?
Section 18(2) of the Hindu Adoption and Maintenance Act provides a list stating when a wife will be entitled to maintenance. As per the Section, a wife can live separately from her husband and still have the right to claim maintenance in the following situations:
- The husband has deserted his wife by abandoning her without any reasonable cause and without seeking her consent or deliberately ignoring her wish.
- The wife has been subject to cruelty during her marriage and considers living with her husband to be endangering her life.
- If the husband is suffering from an incurable and contagious disease.
- The husband has another wife or a mistress in the same house or he lives with another wife or mistress at some other place.
- The husband has converted to some other religion or some other reasonable grounds that can justify why the wife should live separately.
Maintenance can be paid every month or in a lump sum. Even when the wife has some source of income and some property but needs some financial aid for necessary expenses such as medical expenses. It is the obligation of the husband to pay maintenance for such expenses if required.
The same was held by the Hon’ble Supreme Court in the case of Smt. Anita Thaukral v. Shri Satbir Singh Tkukral.
In the aforementioned case, the wife had some source of income and also had an apartment in a good location but she was unable to make enough money to cover up her medical expenses.
The court held that:
- The wife will use one of the debit cards of the husband,
- with the undertaking that she will only withdraw a reasonable amount as may be necessary for her medical expenses.
When maintenance is not to be paid to a wife?
A wife must be maintained after a divorce in order to financially support her. But, there are some exceptions to this rule.
Section 18(3) of the act states that a wife will not be entitled to maintenance:
- If a Hindu wife has committed adultery or has any other illicit sexual relationship with anyone else, she shall not be entitled to maintenance.
- Also, if she no longer remains a Hindu and gets converted to some other religion that does not fall under the spectrum of Hinduism.
Also, in the case of Abbayolla M. Subba Reddy v. Padmamma:
- The defendant had two living wives,
- The second wife was claiming maintenance,
- A bigamous marriage is illegal under Hindu Laws,
- The validity of the marriage of the defendant with his second wife was in question.
The High Court of Andhra Pradesh held that:
- If a man has two wives, the marriage with a second wife will be void ab initio as Hindu laws prohibit bigamous marriage and the parties never actually become husband and wife.
- Therefore, the second wife will have no entitlement to any kind of maintenance as the marriage is void ab initio.
Maintenance of widowed daughters-in-law
A husband is liable to pay maintenance to his wife after they get divorced. However, if the husband is dead it is the obligation of his father to pay maintenance to his daughter-in-law.
- His daughter-in-law has no sources of income;
- She has no property to sustain herself on her own;
- If she has some property, it is insufficient to meet her basic expenses.
In case she has no property of her own and any property of her husband, parents or children are not fetching her any maintenance.
The second clause of Section 19 also states:
That a father-in-law shall not be liable to pay any maintenance if:
- He is not able to do so from any coparcenary property in his possession;
- The daughter-in-law has no share in that property, and such obligation will end if she gets remarried.
Maintenance of children and aged parents
People who cannot earn money for themselves due to reasonable grounds need to be given maintenance in order to meet their basic necessities. Such people can include children and old people.
Section 20 of the act states:
- A Hindu male or female is obligated to maintain their children whether they are legitimate or illegitimate.
- Children shall claim for maintenance from their parents as long as they are minor.
- An unmarried daughter shall be entitled to maintenance even after attaining the age of majority, till the day she gets married.
The section further prescribes that:
- Parents who are old or have physical or mental weakness need to be maintained if they are not able to maintain themselves.
- A childless stepmother will also be considered a ‘parent’ in the context of this section.
In the case of Mst. Samu Bai & anr v. Shahji Magan Lal, the High Court of Andhra Pradesh held that:
The maintenance to aged and infirm parents must only be provided if the parents have no means to sustain themselves, or are unable to maintain themselves out of their own property or earnings. So, we can infer that if the old parents have enough means to maintain themselves, the obligation of children to maintain them can be relaxed.
Maintenance of dependants
Dependents of a deceased must be maintained if they do not have the capacity to do so by themselves. Section 21 of the act defines dependents and Section 22 states that such persons shall be entitled to maintenance.
Who are dependents?
Dependent is someone who relies on parents, brother or some other relative for sustaining themselves.
Section 21 of the act says that in the context of this act dependents refer to the following relatives of the deceased:
- A father.
- A mother.
- A widow who has not remarried.
- A minor son, grandson, or great-grandson with predeceased father and grandfather. Provided he has not been able to obtain maintenance from any other source.
- Unmarried daughter, granddaughter, or great-granddaughter with predeceased father and grandfather. Provided she has not been able to obtain maintenance from any other source.
- A widowed daughter who has not been able to obtain maintenance from the estate of her husband, children, or from her in-laws.
- Widowed daughter-in-law, or widowed granddaughter-in-law, who has not been able to obtain maintenance from any other sources.
- An illegitimate minor son or illegitimate unmarried daughter.
Do dependents need to be maintained?
Now that we have already seen who dependents are and why they need maintenance, let us proceed further and see how to maintain them and who is obligated to maintain them.
Section 22 of the act states:
- That dependents of a deceased Hindu must be maintained by his heirs with the aid of the estate that they inherited from the deceased.
- When the dependents have not been left with any share in the property or estate by way of will or succession, they are still entitled to be maintained by whoever takes over the estate.
- If multiple persons have taken over the property of the deceased, each one of them will be liable to maintain the dependents.
- The amount of maintenance to be paid will be divided among them depending on the value of the share they hold in that property.
- In case a dependent has obtained some part of share in the property of the deceased, they will not be liable to maintain other dependents.
- Others who have taken over the property will still have to maintain other dependents but the dependent holding a share shall be excluded and maintenance will now be paid from the remaining property.
Amount of Maintenance
There is no fixed amount for maintenance that shall be paid. It is at the discretion of the court to determine the amount of maintenance.
Section 23 of the act states that while deciding the amount of maintenance to be awarded to a wife, children, or old and infirm parents – the court must do so considering the following:
- Status of parties and their current position;
- The claims of the parties within reasonable limits;
- If the claimant living separately have justified grounds in doing do;
- All sources of income of the claimant and the value of their property;
- The number of people that are entitled to be maintained.
Section 23(3) further simplifies the process of deciding the amount of maintenance payable to other dependents. It says that the amount of payment to be made should be with regard to:
- The net value of the deceased’s property after clearing off all his debts;
- Will of the deceased if any;
- Degree of the relationship between the claimant and the deceased and their past relationship;
- What the dependents want within reasonable limits;
- All sources of income of the dependent and the total value of all their properties;
- The number of dependents that can be entitled to maintenance.
Alteration of the amount due to change in circumstances
The amount of maintenance to be paid can be decided by the court or by an agreement between the parties.
Maintenance is paid to provide aids for the basic needs of everyday life in case a person does not have the source or ability to provide for themselves.
Section 25 of the act states that the amount of maintenance may be altered with the change in circumstances.
But, the section is vague. It does not say on what changes in circumstances can the alteration be sought and how the alteration can be done.
The court stated that:
- The amount of maintenance is fixed either by an agreement or by way of a decree.
- The only way to alter an agreement is by way of another agreement, and the decree can be altered by amendment of degree.
- So, another suit must be filed for altering the amount of maintenance and a new decree that supersedes the older one must be granted if the court thinks fit.
The claimant of Maintenance should be a Hindu
The Hindu Adoption and Maintenance Act has been legislated for the Hindus and has the power and authority to govern only people that belong to the Hindu religion.
If any of the party is not a Hindu or has ceased to be one, they cannot claim maintenance as per this act.
Section 24 of the Act says:
- No one will be entitled to claim maintenance under the Hindu Adoption and Maintenance Act if they have ceased to be a Hindu by converting themselves to some other religion.
Can maintenance be a charge?
The Hindu Adoption and Maintenance Act has no per se definition of “Charge”.
- Making immovable property security for payment of money to a person. Such a transaction will not be considered as a mortgage but will be said to have a charge on the property.
- A dependent’s claim for maintenance must not be a charge on the deceased’s estate unless otherwise provided in a will of the deceased or an agreement between the deceased and the dependent.
In the case of Kare More Sharabanna Rudrappa & ors. v. Basamma & ors, it was held that:
- A person’s wife and children who are entitled to be maintained out of his property must be paid maintenance by making a charge over his property that he possesses, and
- Out of those properties that have been transferred gratuitously in order to avoid responsibilities.
In the case of Gangubai Bhagwan Kolhe v. Bhagwan Bandu Kolhe, it was held that:
- If a wife is entitled to maintenance she can recover it from her husband’s estate even after his death.
- It was further held that if the husband’s estate is enough to maintain herself then a charge can not be made over that property, but if it is not enough, then it is necessary to keep a charge in order to recover her maintenance.
As judicial precedent has the power to supersede the legislation, maintenance can be a charge with or without any agreement or will of the deceased.
Effect of transfer of property on rights to maintenance
A dependent who is entitled to receive maintenance from a property or an estate and the very estate gets transferred, it becomes the obligation of the transferee to maintain the dependent if the transferee has received a notice regarding that right or if the transfer is without any reasonable grounds.
- The transferee has to maintain the dependent out of the property he received if he has the notice of the right or the transfer is gratuitous.
This idea flows from Section 39 of the Transfer of Property Act, 1882 which says that:
- If a third person is entitled to be maintained from the profit made out of immovable property and such property is transferred, the transferee will be liable for the payment of such maintenance if there was a notice or if the transfer is gratuitous.
- But, if the property was transferred for consideration and notice was not provided regarding the maintenance then the transferee will not be liable to make any payments for maintenance.
- The maintenance can only be recovered from the property transferred by the person who was originally liable to pay maintenance and cannot be recovered from any other property that the transferee holds.
This act is one of the most important acts that protect the rights of children during the course of adoption. It protects women, children, old & infirm from living on the streets and starving to death. It ensures they are maintained by someone and the judicial pronouncements have further strengthened the act in order to make our rights stronger and sections much clearer.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: