This article has been written by Oishika Banerji, a student of Amity Law School, Kolkata. This article discusses the Hindu Marriage Act of 1955 at its length.
This article has been published by Sneha Mahawar.
The most significant institution in human society is marriage. It is a common occurrence. The foundation of human civilization has come into the picture because of marriage. New social ties and reciprocal rights between spouses are created through marriage. When children are born, their rights and position are established. Every community recognises specific steps for establishing these relationships and rights. Real marriage is the acceptance of a new status with new responsibilities that are acknowledged by others. Every society recognises marriage as a socially accepted universal institution. One of the most profound and intricate human partnerships is marriage. In 1955, the laws governing Hindu marriage were formalised and put into effect. The laws governing Hindu marriage, restitution of conjugal rights, judicial separation, divorce, annulment of marriage, maintenance, and guardianship are included in the Hindu Marriage Act, 1955, which was passed by the legislature. Sections 5 and 7 of the Hindu Marriage Act of 1955 address the requirements for a legally binding union among Hindus. The present article gives an overview of the Hindu Marriage Act, 1955, alongside explaining current developments in the same.
Structure of the Hindu Marriage Act, 1955
The Hindu Marriage Act is an Act of the Indian Parliament that was approved on May 18, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956 were all enacted at this time as part of the Hindu Code Bills. The Hindu Marriage Act, 1955 was passed to protect the legal rights of Hindu brides and grooms who are joined by the holy bond of marriage. The type of ceremony that must take place has not been specified by law because there are numerous methods by which a man and woman can be wed in accordance with Hindu tradition.
The Act of 1955 is spread across six Chapters, consisting of 29 Sections in total. The layout of the same has been provided hereunder:
- Chapter I: Preliminary
- Chapter II: Hindu Marriages
- Chapter III: Restitution of conjugal rights and judicial separation
- Chapter IV: Nullity of marriage and divorce
- Chapter V: Jurisdiction and procedure
- Chapter VI: Savings and repeals
Purpose of the Hindu Marriage Act, 1955
The Act’s principal goal was to update and codify the law governing marriage between Hindus. It contained divorce and separation, both of which are already covered by Sastrik Law (old Hindu Law), in addition to modifying and codifying Sastrik Law. The law became uniform for all Hindu groups as a result of this enactment. In India, certain different religions have their own civil rules that regulate their followers separately.
Essential features of the Hindu Marriage Act, 1955
- Forbidding bigamy: The law forbids a man from having multiple wives at the same time. Section 5 of the Act specifies that it is illegal to have two living wives at once, which is known as bigamy. It implies that one cannot get married to someone else without first divorcing their spouse (divorce). If he does the act, it is unlawful and he will be penalised in accordance with Sections 494 and 495 of the Indian Penal Code, 1860.
- Marriageable age prescribed: The time frame for getting married is set forth by legislation. According to Section 5 (iii) of the Hindu Marriage Act of 1955, the bridegroom must be at least 21 years old and the bride must be at least 18 years old when they get married. If a marriage is not carried out, it is void and has no legal standing.
- Act of 1955 intends to protect the party’s marriage: The restitution of conjugal rights is provided for in Section 9 of the 1955 Act. Restitution of conjugal rights refers to the right to remain together. Conjugal rights are defined as rights deriving from a marital tie. The main idea of Section 9 is that a spouse has the right to cohabitate in order to safeguard their union and preserve its sanctity.
- Focus on the mental stability of parties getting married: A person’s marriage will be null and void if they were mentally unfit when they were hitched. The individual must also offer legally binding consent before becoming married. The prerequisites of Hindu marriage related to mental health and capacity are stated in Section 5(ii)(a),(b),(c).
- Significance of ceremonies involved in marriage: The law states that if two people get married using the customary rituals and rights, their marriage is lawful. The father must take care of and safeguard any children born after marriage because they are legally entitled to exist.
Changes brought in by Hindu Marriage Act, 1955 in the Indian territory
The following changes were brought in by the Hindu Marriage Act, 1955 concerning the way marriages in India were perceived during the time of colonialism under the Britishers:
- Hindu marriages today are less focused on religion. In contrast to being sacramental, it is more the outcome of mutual accord [Sections 5(ii), (iii), 11 to 13, and 7].
- Hindu, Jains, Sikh, and Buddhist unions are now legally recognised as legitimate Hindu unions (Section 2).
- The difference between the Mitakshara and Dayabhaga schools about the phrase “prohibited degrees of relationship” for the purpose of marriage has been eliminated per Section 3. The Smritis’ strong prohibition on marriage inside the bounds of a Sapinda relationship has been greatly loosened. There have also been a few new degrees of kinship added. So, one can no longer wed someone who was the wife of the other’s brother.
- The Act marks the first time monogamy has been practised among Hindus. The Indian Penal Code, 1860 currently has a penalty for bigamy. The provisions of Sections 5 and 17 of the 1955 Act show how significantly the rules and prerequisites for a legitimate marriage have been simplified.
- Now that caste factors for inter-caste and inter-community marriages have been rendered irrelevant, all prohibitions thereto have been lifted.
- Although the ancient Hindu law did not specify an age limit for marriage, it is now a requirement that both the bridegroom and the bride have reached the age of 18. (Section 5).
- The Act now establishes requirements for legal marriage and does not recognise any specific type of Hindu marriage (Section 5).
- The Act does not specify a specific ceremony for a legal Hindu marriage. According to Sections 5 and 7, such a marriage may be performed in line with the customary rights and rituals of either one of the parties.
- For the first time, a provision for registering Hindu marriages has been made (Section 8).
- Before the Act, a variety of marital arrangements were popular. They are now irrelevant, and the only type of marriage recognised by the parties as being prevalent in their culture will be marriage (Section 7).
- The Act provides for judicial separation, divorce, and marriage annulment while removing prohibitions based on gotra, pravara, and Sapinda relationships (Sections 10 to 14).
- Provisions for recovery of the parties’ marital rights (Section 9).
- Following a legal divorce, either spouse may remarry (Section 15).
- Provisions for the validity of children born from unions may later be deemed null, void, or voidable (Section 16).
- Provisions for spousal maintenance pendente lite and for court costs (Section 24).
- Lifetime alimony and support (Section 25).
- The care, support, and instruction of young children while legal processes are pending as well as after a ruling has been made (Section 26).
- The Act no longer distinguishes between a maiden’s marriage and a widow’s marriage.
Applicability of the Hindu Marriage Act, 1955
Section 2 of the Hindu Marriage Act of 1955 provides that the Act applies:
- To anyone who practises Hinduism in any of its manifestations, including Virashaivas, Lingayats, and adherents of the Brahmo, Prarthana, or Arya Samaj;
- To anyone who practises Buddhism, Jainism, or Sikhism as a religion; and
- Unless it is demonstrated that any such person would not have been subject to Hindu law or to any customs or usages that are part of that law in respect of any of the matters dealt with herein if this Act had not been passed, it shall apply to any other person residing in the territories to which this Act extends who is not a Muslim, Christian, Parsi, or Jew by religion.
The Act was considered conservative because it included other religions (Jains, Buddhists, or Sikhs) as defined under Article 44 of the Indian Constitution while applying to everyone who is Hindu by religion in any of its manifestations. However, Sikhs now have their own unique law regarding marriage thanks to the 2012 passage of the Anand Marriage (Amendment) Bill. Therefore, unless it is proven that such persons are not covered by the Act under any custom or usage, this Section applies to Hindus by religion in any of its forms, as well as Hindus within the extended meaning, such as Buddhists, Jains, or Sikhs. In fact, it applies to all such persons domiciled in the country who are not Muslims, Christians, Parsis, or Jews. The Act only applies to Hindus who are residents of Indian territory and who are not otherwise.
Hindus by religion
Hindus by religion signify the following:
- Those who practise the original religions of Buddhism, Judaism, Hinduism, or Jainism.
Any person who is a Hindu, Jain, Buddhist, or Sikh by religion is a Hindu if:
- He practises, professes, or follows any of these religions; and
- He continues to be a Hindu even if he does not practise, profess, or follow the tenets of any one of these religions.
This was correctly stated by the Supreme Court in Chandrasekhar v. Kulandaivelu (1962). Therefore, a person does not stop being a Hindu if they become atheist, disagrees with or departs from the core principles of Hinduism, falters in their observance of orthodox customs, adopts a western lifestyle, or consumes beef.
- Those who had previously converted to the religions of the Hindus, Jain, Sikhs, or Buddhists.
A person who loses their Hindu identity by converting to a non-Hindu religion will regain their Hindu identity if they revert to one of the four Hindu religions.
It is also to be noted that a non-Hindu can become a Hindu by means of conversion in the following ways:
- If he goes through the official conversion or reconversion ritual required by the caste or group to which he converts or reconverts.
- If he exhibits a sincere desire to convert to Hinduism and acts in a way that makes that desire clear, as well as if he is accepted as a member of the group he was welcomed into.
Furthermore, if a person genuinely says that he adheres to the Hindu faith without any ulterior motives or intentions, this amounts to his acceptance of the Hindu understanding of God. When he converts, he becomes a Hindu.
Hindus by birth
A person shall be a Hindu by birth under contemporary Hindu law if:
- He was raised as a Hindu by one of his parents who is a Hindu or
- Both of his parents are Hindus.
Regardless of whether the child is legitimate or not, they are Hindu.
If both or one of the parents convert to a different religion after the child is born, the child will still remain a Hindu unless the parents decide to exercise their parental rights and also convert the child to the new faith.
In Maneka Gandhi v. Indira Gandhi (1984), the Apex Court determined that Sanjay Gandhi was a Hindu for the following reasons:
- His mother was a Hindu, one of the parents, and
- He was raised as a Hindu openly.
If the Central Government does not specify differently by publication in the official gazette, nothing in this Act shall apply to members of any Scheduled Tribe (even if they are Hindus). The majority of the scheduled tribes still follow their traditional laws.
Guardianship under the Hindu Marriage Act, 1955
The guardianship for marriage is outlined in Section 6 of the Hindu Marriage Act, 1955. When a bride is required by this Act to get a guardian’s consent for marriage, the following individuals are qualified to do so:
- The bride’s mother,
- Paternal grandpa,
- Paternal grandmother,
- Brother by full blood,
- Brother by half-blood, etc.
Following the passage of the Child Marriage Restraint Amendment in 1978, guardianship for marriage was abolished. In order to discourage child marriages, this amendment raised the legal minimum age for marriage.
Registration of marriages under the Hindu Marriage Act, 1955
According to Section 8 of the Hindu Marriage Act of 1955, a marriage is instantly recorded by the Registrar of Marriage on the same working day. All documents are verified on the application date, and the marriage is then registered by the registrar of marriage appointed by the Government of India on the following working day, and a marriage certificate is provided.
According to Section 8 of the Act, state governments may establish regulations for the registration of Hindu marriages, allowing the parties to any such marriage to have details about their marriages entered in the Hindu Marriage Register in the manner and under the conditions that may be prescribed. This registration is being done to make it easier to prove Hindu marriages. The state legislature may be presented with any rules created under this provision. The Hindu Marriage Register shall be accepted as proof of the statements made therein and should be available for inspection at all appropriate times.
Nullity of marriage under the Hindu Marriage Act, 1955
Any marriage is voidable and subject to annulment for the following reasons:
- Failure to consummate the union due to impotence, which may be complete or partial (for instance, impotence quoad hoc conditions);
- Violation of the valid consent mental illness condition specified in Section 5; or
- Respondent’s pregnancy by someone other than the petitioner at the time of the union.
A husband or wife may file for divorce under certain circumstances, such as a continuous period of desertion lasting two years or longer, conversion to a faith other than Hinduism, mental aberration, venereal illness, and leprosy. If a husband marries a second time after starting their first marriage or if he has committed rape, sodomy, or bestiality, the wife may also file a petition for the dissolution of the marriage. Within the first year of marriage, newlywed couples are unable to sue for divorce.
Essentials of a valid marriage under the Hindu Marriage Act, 1955
The conditions for a valid marriage under Hindu law have been provided hereunder:
Both the parties to the marriage should be Hindu
Section 5 of the Hindu Marriage Act of 1955 specifies the prerequisites for a lawful Hindu marriage, which provides that both parties must be Hindus. If one of the parties to the marriage is a Christian or a Muslim, the marriage will not be considered a genuine Hindu marriage under the Hindu Marriage Act of 1955. Therefore, under the Act of 1955, a lawful marriage cannot be solemnised if both parties are not Hindus. In Yamunabai Anant Rao Adhav v. Anant Rao Shivaram Adhav (1988), it was made clear that Section 5 of the Act only permits marriages to be performed between two Hindus.
The parties to the marriage should not suffer from unsoundness of mind, mental disorder, or insanity
In a Hindu marriage, a person must be able to give legally binding consent, according to Section 5(ii)(a) of the Act of 1995. The other party has the option to declare the marriage null and void if neither of the parties is competent to offer legally binding consent to the union due to mental incapacity.
According to Section 5(ii)(b) of the Act, a marriage may be dissolved at the discretion of the other party if one of the parties, even though they are capable of giving legal consent, has been experiencing a mental condition that renders them unfit for marriage and for having children.
In Alka Sharma v. Chandra Sharma (1991), the woman felt extremely chilly, anxious, and frigid on the first night of the marriage. She was unwilling to participate in the sexual act. She did not attend to the family members’ requirements and was unable to explain why she had urinated on the verandah in front of the whole family. Thus, the husband initiated legal action to dissolve the union. The marriage was declared null by the court.
It is also to be noted that, according to Section 5(ii)(c) of the Act, if one partner has experienced repeated episodes of insanity, the other party may choose to have the marriage annulled. The Marriage Laws (Amendment) Act, 1999 altered this clause of the Hindu Marriage Act of 1955, and the phrase “epilepsy” has been removed. Because of this, in modern times, if a party to a marriage experiences frequent seizures, the marriage is still legal and the party cannot choose to annul it.
The marriage should be monogamous
Section 5(i) of the Hindu Marriage Act, 1955 specifies that neither party had a spouse who was still alive at the time of the marriage. The marriage is deemed null and void if any of the parties had a spouse who was still alive at the time of the union. A bigamous marriage is therefore invalid. A second marriage can be legally consummated after the first one has been ended by death or divorce.
Any marriage between two Hindus that is solemnised before the commencement of legislation is void if either party was married or already had a spouse at the time of the marriage, according to Section 17 of the Act, which deals with the penalties for bigamy. Also, if a person solemnised a second marriage while the original marriage is still in effect, they may be prosecuted and punished in accordance with the requirements of Sections 494 and 495 of the Indian Penal Code, 1860.
The parties to the marriage have attained the majority
The bride must be at least 18 years old and the husband must be at least 21 years old at the time of the marriage, per Section 5(iii) of the Act. Any marriage that is performed in contravention of these standards shall neither be null nor voidable. Additionally, anyone who solemnised such a marriage could be prosecuted under Section 18 of this Act with a harsh sentence of up to two years in jail, a fine of up to one lakh rupees, or both.
A marriage solemnised in contravention of the age requirements under Section 5(iii) was found to be neither void nor voidable in the case of P. Venkataramana v. State (1977). However, Section 18 of the Hindu Marriage Act of 1955 makes violating the terms illegal.
The parties to the marriage should not be related as Sapindas
A marriage between two people who are associated as Sapindas is void, according to Section 5(v) of the 1955 Act, if it is solemnised. To put it another way, the husband and wife shouldn’t share the same ancestry. According to Section 3 (f) of the Hindu Marriage Act of 1955, a Sapinda relationship is one in which a person extends as far as the third generation (inclusive) in the line of descent through the mother and the fifth generation (inclusive) in the line of descent through the father, the line in each case being traced upward from the individual in question, who is to be counted as the first generation.
Even though the marriage between the Sapindas is null, it may still be lawful if there is a valid custom or usage that governs each of them and allows for such a union. By virtue of Section 18 of the Act, a marriage solemnised between two parties related to Sapindas is void and the parties are subject to punishment, which may include both simple imprisonment for a month and a fine of Rs. 1,000.
The parties should not come under the degree of prohibited relationships
The parties should not be considered to be in a banned relationship under Section 5(iv) of the Act unless their respective cultures’ traditions allow for marriage between them. According to Section 3(g) of the Act of 1955, two people are considered to be in a banned relationship if they are:
- If one is the other’s lineal ascendant or
- If one was married to or had a descendant from the other’s lineal ascendant;
- If one was the spouse of the other’s brother, father, mother, grandpa, grandmother, or any other relative; or
- If one of the two is a brother or sister, an uncle or niece, an aunt or nephew, a child of a brother or sister, or the children of two brothers or sisters.
A marriage between two people is void if it falls within the parameters of a banned relationship. However, marriage is legitimate if it is governed by a valid custom or usage that applies to both parties. It is crucial that the usage or custom being practised be certain, reasonable, and not in conflict with public policy. Various traditions that validate marriage in the context of banned partnerships can be found all over India. For instance, it’s usual practice in Kerala to marry off siblings’ offspring.
In the case of Balu Swami Reddiar v. Balakrishna (1956), the court determined that it was improper and against public policy, for one to marry his daughter’s daughter in accordance with a Reddiar custom that was well-known among them in the state of Madras. A marriage solemnised between two persons that fall under the definition of a forbidden relationship is void pursuant to Section 18 of the Act, and the parties are subject to a fine of INR 1,000 or one month’s simple imprisonment, or both, depending on the severity of the offence.
The marriage should be solemnised in accordance with the customary rites and ceremonies
According to Section 7 of the Act, a Hindu marriage is lawful under the 1955 Act if it is performed in conformity with the traditional rites and ceremonies of either party. If such rituals and ceremonies involve the saptapadi and binding, when the seventh step is taken, the marriage is considered to be complete.
In the case of Bibba v. Ramkall (1982), the court determined that performing certain ceremonies merely with the goal of considering the couples married does not constitute performing the legal rituals. Depending on each person’s customs, the ceremonies may differ. For instance, a significant customary rite used by the Nair caste in Kerala is the presentation of a piece of cloth by the bridegroom to the bride (pudava kodukal).
Live-in-relationship under the Hindu Marriage Act, 1955
The current issues of India’s recent generation, as associated with Hindu marriages are live-in relationships. “Marriages are formed in heaven” refers to the belief that God or another kind of divinity decides who gets married and when. Live-in relationship is regarded as a liability-free way of living because it raises a fuss about the institution of marriage, which is deeply ingrained in our culture. Additionally, the institutional and legal obligations to address this issue fall short. There is no reform to the Hindu marriage laws of 1955 for this system.
The circumambulation around the Agni and the seven-step ceremony are acknowledged as the essential elements of Hindu weddings in India, as per the Hindu Marriage Act of 1955. The sentiment described here captures the core of the wife’s role in the marriage in the traditional Brahma culture. The groom says “Vivaah” to the bride and makes seven wishes for their future together, repeating “become one with me in thought and action, may we be blessed with many offspring, and may they enjoy a long life” after each desire.
The world continues to view India as a nation where marriage holds a sacramental status on both a philosophical and practical level. However, as the contemporary world has evolved, so has the conventional idea of marriage, and now we can see a shift in our society from forced marriage to live-in relationships and now to gay nuptials. Despite all these advancements and the legalisation of some gay or live-in relationships, these relationships are still overwhelmingly seen as immoral in our culture. The partners in these types of relationships frequently experience difficulties because there is no specific legislation in India dealing with live-in relationships. Finally, the judiciary was considered the last line of defence to resolve these matters.
Void and voidable marriage under the Hindu Marriage Act, 1955
A marriage is null and void under Section 11 of the Act of 1955 if either party is already married to another person. Only the second wife may file a petition under Section 11 in cases where the marriage is nullified because the groom has taken a second wife. Only one of the parties may file the petition to dissolve the marriage. If a husband remarried without first getting a divorce decree because his first wife had left him and moved in with another man, that second marriage would be null and void. A divorce decree issued by an experienced court is necessary. The second marriage would also be null and void if the woman was unable to demonstrate the practice of divorce through the assistance of a reputable member of society. There is no provision in the 1955 Act that allows a woman to get an injunction stopping her husband from getting a second marriage, even if she learns that he is considering it.
According to Section 12 (1), a declaration of nullity may be issued to declare a marriage null and void for the following reasons:
- Unsoundness of mind (is a violation of Section (5)’s clause (ii)).
- The petitioner’s consent was coerced or gained fraudulently.
Unsoundness of mind
The 1955 Act particularly prohibits those with severe, incapacitating, and persistent mental illnesses from getting married since they would be unsuited for marriage and childbearing. Additionally, it states that the person must be unable to provide legal permission as a result of mental disease. A marriage that deviates from the norm, however, can only be annulled at the request of the other party, who must file a petition for nullity and bear the burden of establishing the other person’s mental condition.
Consent obtained by means of fraud
According to Section 5 clause (i)(c), the marriage is voidable if the petitioner’s consent was obtained under duress or by fraud with regard to the nature of the ceremony or any significant event involving the respondent. Consent-voiding force includes both the threat of using force and the actual use of force. Fraud’s primary component is deception. Relevant information includes all relevant facts and situations that could persuade or otherwise affect a party’s decision to give or withhold consent to marry. Consequently, a simple lie is not a fraud. Similarly, not every lie or misrepresentation constitutes fraud. Thus, Section 12’s grounds for annulling a marriage do not include just hiding the knowledge that the husband has been married to another woman.
Divorce under the Hindu Marriage Act, 1955
Divorce is a term that requires no introduction. It alludes to a difficult and ugly breakdown of a marriage. Although divorce has been described as the formal dissolution or termination of a marriage, it actually involves much more than that. Today, unfortunately, a lot of marriages end in divorce, and it’s startling to learn that most of them do so quite early on. Early Vedic Hindu civilization viewed marriage as a ritual rather than a binding agreement between two people. The union was perceived as being so pure, as having some sort of divine origin, and as being predetermined. Therefore, divorce or separation of the partners in a marriage was not permitted under ancient Hindu law.
The Hindu Marriage Act, which was passed in 1955, was the first piece of Hindu law to ever allow for divorce. Prior to the statute, there was no divorce-related law. It outlines the conditions under which any spouse may seek the dissolution of their marriage after establishing the grounds. No one is eligible for divorce under Hindu law unless the court has allowed it. Under the Hindu Marriage Act of 1955, there are separate remedies for judicial separation and divorce. It was determined that some marriages were null and voidable in accordance with Sections 11 and 12 due to the marriages’ failure to satisfy the necessary requirements set forth in this Act for the legitimacy of marriage and the presence of the flaws or defects specified in Section 12 respectively.
Section 13 of the Hindu Marriage Act of 1955 lists nine grounds for divorce that are fault-based. Some of these grounds, like adultery, desertion, cruelty, insanity, leprosy, venereal disease, and conversion or rejection of the world, are often founded on guilt theory and are referred to as divorce fault grounds. Either party must establish at least one legal reason for divorce in order to receive a divorce decree.
Marriage dissolution on fault grounds is a matrimonial relief provided by Section 13(1). The opposite party may file for divorce if they can demonstrate any sort of fault or flaw on the side of the other party. The Hindu Marriage Act, 1955, was revised in 1964 with the addition of provision 13(1-A), giving both parties access to the remedy of divorce. The laws governing marriage were changed in 1976, making the grounds for judicial separation and divorce comparable.
Additionally, Section 13-B of the Marriage Laws (Amendment) Act of 1976 allowed for divorce by mutual consent, giving the parties to the marriage the option of filing for divorce without having to establish blame on either party’s part. Therefore, it is important to research how legislation on marriage and divorce affects those two legal processes. We have been forced to consider the relevance and significance of the idea of irretrievable breakdown of marriage in divorce law as a result of its introduction.
Grounds for divorce
A matrimonial relationship (marriage) cannot be ended or dissolved for a reason not included in the Hindu Marriage Act of 1955, the Court said in Rajender v. Anita (1992). The grounds for divorce under the Hindu Marriage Act, 1955 have been provided hereunder:
According to the shifting social and economic conditions, the legal definition of cruelty has changed over time and from society to society. Cruelty is a significant basis for divorce under Section 13 of the Hindu Marriage Act, which also lists other grounds. Cruelty is one of the 12 grounds for divorce listed in the Special Marriage Act of 1954 and one of the eight grounds listed in the Muslim Marriage Dissolution Act of 1939 for a woman who has been married to a Muslim male to receive a divorce. The Supreme Court noted in the case of Ravi Kumar v. Julmi Devi (2005) that cruelty has no definition and cannot be defined. It can come in an unlimited variety, much like in marital situations. In other words, the definition of cruelty is highly individualised. It may change depending on the setting, the time, and the economic and social circumstances of the people.
Desertion is defined as the willful permanent forsaking and abandonment of one spouse by the other without the other’s permission and without reasonable cause by sub-section (1) of Section 13 of the Hindu Marriage Act of 1955. It is a complete rejection of the marriage’s responsibilities. In order to commit the crime of desertion, the deserting spouse must meet two requirements:
- The Factum of Separation, and
- The intention to bring cohabitation permanently to an end (Animus Deserendi)
Under the Hindu Marriage Act of 1955, conversion implies that one has adopted some other major religion that cannot be regarded as a Hindu religion. Only a divorce order based on one of the grounds listed in Section 13 of the Act may dissolve a legally binding marriage, whether it was performed before or after the Act’s implementation. The other person “has ceased to be a Hindu by conversion to another religion” is one of the grounds under Section 13 (1) (ii). A marriage consummated in accordance with the Act may not be annulled other than on the grounds permitted under Section 13 of the Act.
In Sona v. Karambir (1995), a board of doctors stated that the wife had intermediate-range mental retardation, that her mental unsoundness was incurable, that she was unable to fulfil her marital responsibilities, and that she offered completely false and nonsensical responses to questions. Her case was determined to be covered by Section 13 (1) (iii) of the Hindu Marriage Act of 1955.
In accordance with the Hindu Marriage Act of 1955, one spouse may seek a divorce on the grounds that the other suffers from “virulent and incurable” leprosy. The duration of “virulent and incurable leprosy” has now been removed by means of the 1976 Amendment to the Hindu Marriage Act, 1955. According to Section 13(1) (iv), it is not essential for the petitioner to demonstrate that the respondent had been affected by the incurable and virulent type of leprosy for three years (or one year, as the case may be), prior to the petition for matrimonial relief.
Venereal diseases are conditions that have a high likelihood of spreading from one person to another through sexual activity, such as anal sex, oral sex, and vaginal sex. In accordance with the matrimonial laws of the majority of Indian groups and in accordance with the Hindu Marriage Act, venereal disease is a reason for divorce and judicial separation. It consists of several infectious disorders that are most frequently contracted during sexual activity.
Concept of divorce with mutual consent
The Hindu Marriage Act of 1955 was amended in 1976 to include Section 13B, which added the basis for divorce by mutual consent. According to Section 13 B (1), the parties seeking a divorce must jointly present the petition for divorce to the court. Similar to Section 13 B (2), which states that both parties must present the motion for hearing.
It should be noted that under Section 13 B of the Hindu Marriage Act of 1955, a petition for divorce filed under Section 13 of the said Act may be changed to a plea for divorce by permission of the parties. Even at the appellate level, the court may permit the divorcing parties to amend a petition for relief under Section 13 or any other section to be turned into a petition for divorce by mutual consent. These conversions of petition cases include Padmini v. Hemant Singh (1993) and Dhiraj Kumar v. State of Punjab (2018).
Renunciation of world
According to Section 13(1)(vi), if one spouse joins a religious order and renounces the world, the other spouse may submit a petition for divorce. For filing for divorce on this ground, the following two requirements must be met:
- The respondent must have given up on life in general (Sanyasa),
- He must have joined a religious organisation.
A person is considered to have joined a religious order when they participate in certain rituals and ceremonies that are required by their religion, according to the ruling in the case of Sital Das v. Sant Ram (1954).
Presumption of death
According to the 1955 Act, if a person has not been reported as being alive for at least seven years, they are deemed to be dead. Under all matrimonial laws, it is the petitioner’s responsibility to show that the respondent’s whereabouts have not been known for the required amount of time. Sections 107–108 of the Indian Evidence Act of 1872‘s presumption of death premise serve as the foundation for this clause. In Nirmoo v. Nikkaram (1968), it was decided that if a person marries someone else without obtaining a divorce decree after supposing their husband has passed away, their spouse may later contest the validity of the second marriage.
Wife’s special grounds for divorce
Under the Hindu Marriage Act of 1955, a wife has been given some extra grounds for divorce or judicial separation in addition to the ones that are open to both the husband and the wife. Two special reasons for divorce were first offered to wives under Section 13(2) of the Hindu Marriage Act of 1955. Two new grounds for blame were added for wives under the Marriage Laws (Amendment) Act of 1976. As a result, a Hindu woman can only file for divorce under one of four unique grounds.
- Pre-Act polygamous marriage.
- Rape, sodomy or bestiality.
- Non-resumption of cohabitation after a Decree/Order of Maintenance, and
- Repudiation of marriage.
Irretrievable breakdown of marriage under Hindu Law
When a married couple no longer loves each other and has no more positive or negative feelings toward one another, their marriage has irretrievably broken down. There is no longer any sense of acceptance, love, concern, or respect. When neither party to a marriage wishes to live together, when there is no longer any connection between them, and when there is no hope of reconciliation, the marriage is said to have irretrievably broken down. Hinduism as a religion has long opposed the idea of divorce, but the passage of the Hindu Marriage Act in 1955 transformed both religious doctrine and the sacramental nature of Hindu marriage.
Now, everyone who is married has the legal right to file for divorce on one of the recognised grounds. The reasons for divorce include those based on fault, marital incompatibility, and mutual consent. However, the issue at hand is the irretrievable breakdown of a marriage, which is a no-fault ground. This ground is covered under Section 13(1-A) of the Hindu Marriage Act on the grounds of judicial separation and non-resumption of cohabitation. It has not yet been included as a distinct basis for divorce.
“We are absolutely convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament,” the court stated in Sangamitra Ghose v. Kajal Kumar Ghosh (2007 2 SCC). In fact, the emotional foundation of the marriage has completely vanished. Because there is no possibility of saving the marriage and the matrimonial link between the parties is beyond repair, it is in everyone’s best interests to acknowledge this truth and proclaim what is already defunct de facto defunct de jure.
In the case of Navin Kohli v. Neelu Kohli (2006), the Supreme Court argued for the legislature to include an irretrievable breakdown of marriage as a basis for divorce under the Hindu Marriage Act. It stated, “undoubtedly, it is the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible, and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to save it. The emotional foundation of the marriage has completely disappeared in the current instance. The marriage is beyond repair, and it is in everyone’s interests and the public’s to acknowledge this truth and declare what is already defunct de facto to be defunct de jure. Maintaining the fake encourages immoral behaviour and may harm the public interest more than dissolving the marriage contract does.”
Exercising of inherent powers under Article 142 of the Indian Constitution by the Supreme Court on matters of divorce
According to Article 142 of the Constitution, the Supreme Court has the inherent authority to see that justice is served, and no court is barred from rendering justice to parties that come before it due to a lack of jurisdiction or legal authority.
In many cases, the Supreme Court has used its inherent authority. For example, in Manish Goel v. Rohini Goel (2010), the court declared that “the marriage is totally unworkable, emotionally dead, beyond salvaging, and has broken down irretrievably even if the facts of the case do not provide the ground in law in which the divorce could be granted.”
In Rishikesh Sharma v. Saroj Sharma (2006), the court held that there was no point in compelling the appellant and respondent, a married couple, to live together if they had been apart for more than 17 years.
The husband and wife in Sukhendu Dass v. Rita Mukherjee (2017) were district judges in the state of West Bengal. The husband’s request for a divorce was denied because he was unable to establish his wife’s cruelty. Aside from dismissing the appeal, the top court ruled that an irretrievable breakdown of a marriage cannot provide grounds for divorce. After filing a written statement, the wife did not show up in front of the trial court. She did not show up either for the High Court or the Supreme Court hearings. The Court noted the aforementioned behaviour from her and stated that it suggested she was not interested in cohabitating with her husband. Referring to the Samar Ghosh v. Jaya Ghosh (2007) case, the Bench stated that refusing to take part in the divorce process and compelling the appellant to remain in a dead marriage would both be considered acts of mental cruelty.
The Supreme Court alone has the authority to grant a divorce order based on the irretrievable dissolution of a marriage, and no other court has this authority, the court further held. It is clear from the judgments above that the Supreme Court of India and the Law Commission of India have periodically advised the legislature to change the Hindu Marriage Act of 1955 to include an irretrievable breakdown of marriage as a reason for divorce.
From 28th September, 2022 onwards, the 5-Judge Bench headed by Justice S.K. Kaul and with Justices Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari commenced with the hearing of Shilpa Sailesh v. Varun Sreenivasan (2022), where its indulgence is requested to evaluate the scope of its authority to dissolve marriages under Article 142 of the Constitution of India, 1950. The case remains ongoing.
Restitution of conjugal rights under the Hindu Marriage Act, 1955
Section 9 of the Hindu Marriage Act of 1955 provides for the restoration of conjugal rights. Section 9 of the aforementioned Act recognises and protects one aspect of conjugal rights, the right to the consortium, by allowing a spouse to file a lawsuit to defend the right. The capacity to request maintenance under Section 25 of the Hindu Marriage Act, 1955 is one of the significant consequences offered to an aggrieved party under Section 9 of the Hindu Marriage Act, 1955.
The significance of conjugal rights in a marriage is recognised by numerous provisions of Indian personal law. In the strictest sense, marriage rights refer to the freedom to cohabit and have a sexual relationship with one’s spouse. The wife and husband must respect each other’s rights and live together, which is one of marriage’s most basic obligations. “Restitution of Conjugal Rights” is a legal clause that enables the offended party to restore cohabitation with a spouse who withdrew without cause. It’s frequently thought of as a strategy to keep a marriage intact. Marriage imposes various marital obligations and grants each spouse legal rights under all matrimonial laws. The Act’s contested clause has a lengthy history due to its constitutional legitimacy.
Although it was designed to safeguard the interests of those involved in a marriage bond, this clause has faced challenges and criticism for a number of reasons. The provision’s constitutionality was contested in the T. Sareetha v. T. Venkatasubbaiah (1983) case before the Andhra Pradesh High Court. According to the plaintiff in this lawsuit, Section 9 of the Hindu Marriage Act breaches fundamental rights protected by Articles 14 and 21 of the Constitution. The Court felt that this clause was particularly unfriendly and barbaric toward women. Her right to her own body is violated as a result of this forced cohabitation, and she loses her free choice regarding her sexual autonomy. As a result, a decree of restitution of conjugal rights will offend her right to privacy protected by Article 21. Since sexual cohabitation is a private decision between a husband and wife, the abovementioned provision was initially ruled illegal by the Court in 1983. Accordingly, the state should not intervene in such private decisions.
The Delhi High Court, however, held a different viewpoint. The Court noted that there are various misunderstandings about Section 9 that have sparked discussions about its constitutionality and given rise to such discussions. Marriage is a religious ceremony, according to the Court, and efforts have been taken by the law to maintain its sanctity. Therefore, the restitution of the conjugal rights clause was implemented to prevent either the husband or the wife from ending their cohabitation without a good reason. The true purpose of the regulation, which is to uphold the marriage tie between two people, must therefore be taken into account when determining whether it is constitutional. As a result, the Court determined that Section 9 does not contravene Articles 14 and 21 because it was included as a new justification for filing for divorce. Sexual activity should not be viewed as the summum bonum because it is one of the components of the institution of marriage, which is founded on cohabitation and consortium.
The Supreme Court’s ruling in the case of Saroj Rani v. Sudarshan Kumar Chadha in 1984 put an end to all disputes. The Delhi High Court’s judgment was accepted in this instance, and the Andhra Pradesh High Court’s decision was overturned. According to the Court, the relevant clause “serves a societal purpose as an assistance to the avoidance of marriage breakdown” and functions as a remedy. Although this remedy may be antiquated in nature, its purpose is to serve as a basis for divorce should the parties in question refuse to make such reparation. In addition, the Court believed that it was up to the legislature to repeal Section 9 as a remedy, not the courts. Thus, in this historic decision, Section 9 was found to be constitutionally legitimate.
Maintenance under Hindu Marriage Act, 1955
According to the 1955 Act, spousal maintenance is a highly intricate subject. It is frequently claimed that asking for lifetime alimony is a way to take advantage of the husband. According to Section 24 of the Hindu Marriage Act of 1955, either the husband or the wife may request maintenance pendente lite, or support while legal action is pending. Additionally, Section 25 of the Act outlines the prerequisites for permanent alimony. The payments that a husband is obligated to make to his wife under certain conditions are referred to as maintenance. Payment of maintenance may be required both during the marriage’s continuation and after its divorce. The first consideration in maintenance is whether the party receiving it lacks an independent source of income to support themselves. With the exception of the Divorce Act, none of the Indian matrimonial statutes specify the amount of maintenance or the costs associated with the process.
Section 24 of the Hindu Marriage Act, 1955
- Section 24 of the Hindu Marriage Act, 1955 talks about maintenance pendente lite and expenses of proceedings. If either spouse is unable to support themselves while the case is pending, relief may be given under Section 24 of the Hindu Marriage Act of 1955 in the form of maintenance and court costs.
- Section 24 gives the court the authority to order either spouse who is unable to sustain themselves independently to pay for the costs of the proceedings as well as interim maintenance. It may be asserted in any Act procedure, including one to obtain a decree of nullity pursuant to Section 11 of the 1955 Act.
- The costs associated with the proceedings include the cost of the attorney’s services and money to cover the costs of postage, clerical work, and travel. Before issuing an order pursuant to Section 24, the court shall take into account the income of both spouses. Whether or not such a spouse appears as the main proceeding’s originator, this rule nevertheless applies. The only factor to be taken into account when assessing whether to grant maintenance pendente lite is whether the claimant is or is not able to support themselves.
- As was observed in the case of Chitra Lekha v. Ranjit Rai (1976), the purpose of Section 24 is to give financial support to the indigent spouse so they can maintain themselves (or themselves) while the proceedings are ongoing and have enough money to defend or continue the litigation so that the spouse does not disproportionately suffer in the conduct of the case due to a lack of funds.
- Under Section 24 of the Act of 1955, the court cannot refuse to award interim maintenance and the cost of the proceedings on the grounds that the applicant is unlikely to prevail in the dispute. Section 24 envisions a brief investigation rather than a thorough trial. According to the proviso attached to Section 24, the application for the payment of interim maintenance and proceeding expenses must, in most cases, be resolved within sixty days of the date notice was served on the party.
Section 25 of the Hindu Marriage Act, 1955
- If a decree of restitution of conjugal rights, judicial separation, divorce, or annulment of marriage is issued under the Act, 1955, both the husband and wife may be granted maintenance and permanent alimony if they are unable to support themselves, under Section 25 of the Hindu Marriage Act, 1955.
- A court order of the type contemplated by Sections 9 to 13 of the Hindu Marriage Act, 1955 must be issued in order to be eligible for alimony and maintenance under Section 25. In Chand Dhawan v. Jawaharlal Dhawan (1993), the Supreme Court ruled that the language “making any decree” indicates that an order for perpetual alimony can be obtained whenever a judgment is passed under the Act providing any substantive relief, not when the main petition is dismissed or withdrawn. The term “decree” refers to a ruling made pursuant to Sections 9-13 of the Act that causes the parties’ marital status to be disrupted.
- The relief of alimony and maintenance cannot be provided under Section 25 if the relief under either of these sections is denied. If the main proceedings are unsuccessful and a spouse is not granted any relief under Section 25 as a result, the spouse may pursue maintenance under Section 18 of the Hindu Adoption and Maintenance Act.
- According to Section 25(2) of the Act, the court may alter or revoke any order for permanent alimony upon showing that the parties’ circumstances have changed. However, a gross-sum payment order is a straightforward payment, thus it cannot be changed or modified. In addition, Section 25(3) provides that in the event of the following two events, maintenance under Section 25(1) may be revoked if the party in whose favour the order is granted has:
- Got married again.
- In the case of the wife, she has broken her vow of celibacy.
- In the case of the husband, he has engaged in sexual activity with any woman not related to him.
Landmark judgments surrounding the Hindu Marriage Act, 1955
Courts across India have time and again interpreted the provisions of the Hindu Marriage Act, 1955 so as to make the legislative intent clear, thereby achieving the purpose behind the statute. Some of the landmark rulings alongside ratio decidendi have been discussed hereunder.
Lily Thomas v. Union of India (2006)
In the matter of Lily Thomas v. Union of India (2006), a Supreme Court petition was brought up about the status of the first marriage in a situation where a non-Muslim converted to the ‘Muslim’ faith without actually changing his or her beliefs or divorcing the first wife. It was decided that unless a divorce decree was acquired, a couple’s marriage would not be dissolved under Hindu law just because they changed their religion. The issues that came up before the Apex Court in this case were:
- If non-Muslim converts to the ‘Muslim’ faith without experiencing any real change in faith or belief and only in order to avoid an existing marriage or enter a second marriage, will the marriage he enters after such conversion be void?
Any marriage solemnised by the husband during the course of that marriage, despite his conversion to a different religion, would be a crime that could be tried under Section 17 of the Hindu Marriage Act, 1955, read with Section 494 of the IPC, as bigamous marriage is against the law and has been made into an offence. Any marriage between two Hindus is deemed null and void if the following criteria are met:
- If either partner had a spouse who was still alive at the time of the marriage and
- The ceremony took place after the Act’s implementation.
- Is the Respondent subject to bigamy prosecution under Section 494 of the IPC?
A person could face prosecution under Section 494 of the IPC if they enter into a second marriage while their first marriage is still active. This second marriage would also be illegal under Sections 11 and 17 of the Hindu Marriage Act, 1955. The case of Robasa Khanum v. Khodadad Irani (1946) was also brought up, in which the learned Judge ruled that the behaviour of a spouse who converts to Islam must be evaluated in accordance with the principles of justice, right, or equity, as well as a good conscience.
- Whether having a Uniform Civil Code would be a good idea?
Even though uniform legislation is highly desired, the nation’s unity and integrity may suffer if it is enacted all at once. It should bring about progressive change and order over time in a democracy under the rule of law. Because of this, it would be unrealistic and unjust to believe that all laws could be rendered uniform at once. However, the legal system can address mistakes or flaws that develop over time. Regarding the Uniform Civil Code, R.M. Sahai, J. the other honourable judge who made up the Bench recommended certain actions the government should take to prevent the misuse of religion by dishonest people who, while claiming to have converted, were discovered to be polygamists in reality.
Revanasiddappa v. Mallikarjun (2011)
In Revanasiddappa v. Mallikarjun (2011), a Special Bench of the Supreme Court composed of Justices G.S. Singhvi and Asok Kumar Ganguly made the observation that regardless of the relationship between parents, the birth of a child out of such a relationship must be viewed independently of the relationship between the parents. There is no doubt that a child born from such a relationship is innocent and is entitled to all the rights and privileges accorded to a child born from a legally binding marriage. Section 16 of the Hindu Marriages Act of 1955 (amended) is based on this principle.
While noting that Section 16 of the Hindu Marriage Act of 1955 declares children of a void or voidable marriage to be legitimate but expressly states that they are only entitled to claim the property of their parents and not of any other relation, the Supreme Court ruled that such children shall be considered on an equal footing with the legitimate offspring of valid marriages without any discrimination and be entitled to all rights in the property. The only restriction is that such children are not permitted to request partition prior to their parents’ passing.
Joydeep Majumdar v. Bharti Jaiswal Majumdar (2021)
In the recent case of Joydeep Majumdar v. Bharti Jaiswal (2021), the Supreme Court noted that the wife was making accusations that were harming the husband’s reputation and job, which would undoubtedly qualify as mental cruelty. The respondent, a professor at the Government P.G. College, Tehri, with a Ph.D., and the appellant, an Army officer with an M.Tech., were married on September 27, 2006, and they cohabited for a short time in Visakhapatnam and Ludhiana. But from the beginning of their marriage, disagreements arose, and as of September 15, 2007, the couple no longer lived together.
In the divorce proceedings, the appellant claimed that the respondent had made multiple false allegations against him that had hurt his profession, destroyed his reputation, and caused him mental cruelty. The respondent, on the other hand, claimed that her husband had abandoned her without a valid reason in her case for the restoration of conjugal rights, and as a result, she pleaded with the appellant for guidance in order to resume married life.
According to the Supreme Court, for a marriage to be considered for dissolution at the request of a spouse who claims mental cruelty, the outcome of the mental cruelty must be such that it is impossible to maintain the married relationship. In other words, it is unreasonable to expect the victim of a wrong to support the behaviour in question while maintaining a marital relationship.
The High Court’s verdict was challenged, and the Court ruled that there was sufficient evidence to overturn it and reinstate the order made by the Family Court since the respondent had treated the appellant cruelly. As a result, the respondent’s request for restitution of conjugal rights was denied and the appellant was declared to be entitled to a divorce.
Amarjeet Singh v. Union of India (2022)
In the divorce proceedings, the appellant claimed that the respondent had made multiple false allegations against him that had hurt his profession, destroyed his reputation, and caused him mental cruelty. The respondent, on the other hand, claimed that her husband had abandoned her without a valid reason in her case for the restoration of conjugal rights, and as a result, she pleaded with the appellant for guidance in order to resume married life.
According to the petition, many legal statutes, such as Section 125 of the Criminal Procedure Code, the Domestic Violence Act, the Hindu Marriage Act, etc., may permit the payment of maintenance. This led to a complicated scenario that severely inconvenienced the parties that had to make maintenance payments.
The writ petition demanded that all support be granted under one general heading. CJI Lalit emphasised that the matter had already been resolved in the case of Rajnesh v. Neha (2021). For context, it should be noted that the aforementioned judgment offers recommendations for resolving the issue of overlapping jurisdiction, avoiding inconsistent rulings in various proceedings, and maintaining consistency in the family courts, district courts, and magistrate courts’ procedures. The rules state the following:
- When a party makes multiple claims for maintenance under various statutes, the court will take into account an adjustment or set-off of the amount given in the prior hearing(s) when deciding whether to award any additional amount in the next case;
- Disclosure of the prior proceeding and any orders issued therein in the future process by the applicant is mandated;
- Any modifications or variations to the orders issued in the prior process(s) must be made in the same proceeding.
General recommendations for the Hindu Marriage Act, 1955
- The age of marriage should be equal for men and women since in India, all degree programmes, including those in medicine, law, and engineering, must be completed by the time a person is 21 years old. Why is there still gender discrimination at the moment of marriage yet a young person can choose a legislator at the age of 18 without it? When a young person becomes 18 in India, they are referred to as majors and are qualified to apply for a licence, an Aadhar card, and a Pan card without regard to their gender. So why is the marriage age different? The difference in marriage age changes society’s perception of girl children immediately, and a girl’s upbringing in a household reflects discrimination from the moment she is born.
- The most significant institution in human society is marriage. It is a common occurrence. The foundation of human civilization has been it. New social ties and reciprocal rights between spouses are created through marriage. When children are born, their rights and position are established. Every community recognises specific steps for establishing these relationships and rights. Real marriage is the acceptance of a new status with new responsibilities that are acknowledged by others. Every society recognises marriage as a socially accepted universal institution. One of the most profound and intricate human partnerships is marriage.
- The conventional idea of a Hindu marriage is governed by moral and compassionate religious principles and is founded on psychobiological principles. However, in recent years, individuality and an egoistic worldview have disturbed marital harmony, leading to many kinds of marital strife.
- In the modern era, one can create social and legal strategies to maintain this crucial marriage institution. Both preventative and corrective actions should be done. There is no better strategy than starting the new generation’s education early. Human moral principles should be taught in both high school and college curricula.
- For the sake of couples, families, children, and society at large, public education should work to preserve the sacred aspect of Hindu marriage. It is important to encourage both print and electronic media to adhere to social norms. An educational programme for marital counsellors that is separate from western psychology and has a social, psychological, and legal curriculum anchored in Hindu ethos should be proposed at the university level. Instead of horoscopes, the system of marital counsellors should be spread across society.
The Act of 1955 is an Act that modifies and codifies the law governing Hindu marriage. According to the Act, not all Hindus have the right to marry. The Act defines the prerequisites for a Hindu marriage and offers several matrimonial reliefs such as restitution of conjugal rights, nullity of marriage, judicial separation, and divorce. There are some limits on marriage in the case of mental illness. Today, marriage has mostly devolved into a contract and lost much of its sanctity as a socio-religious institution. Additionally, it is clear that the legislators were well cognizant of the fact that if social norms and values such as those regarding child marriage were disregarded, the Act would be of little use. Therefore, despite the fact that child marriages are forbidden, they have not been declared invalid until a court receives a petition challenging them. There is a provision for registration in order to make it easier to prove Hindu weddings. Nevertheless, the majority of Hindu marriages in India continue to go unregistered despite the Act’s existence for almost 60 years. Any marriage can be social; there is no need for evidence.
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