This article has been written by Oishika Banerji and further modified by Shubham Choube. This article discusses the Hindu Marriage Act of 1955 at its length and explores each of its provisions while also discussing relevant case laws.

Introduction 

The Hindu Marriage Act, 1955 is a historic legislation that sets the legal provisions for marriage among Hindus in India. This Act was enacted by the Indian Parliament and was a departure from the traditional and customary approaches to marriage that dominated Hindu culture for many generations. It was undertaken during the post-independence process of legal reforms in India looking into the codification of personal laws adhering to modern norms of justice, equality and individual rights. 

Prior to the commencement of the Hindu Marriage Act, there were almost no codified provisions to govern the institution of Hindu marriage and the related rights and duties of the spouses. This created confusion and ambiguity in the law on marriages, the rights of couples, and children in society. These problems were to be solved by enacting the Hindu Marriage Act which aimed at laying down legal provisions detailing the conditions and formalities for a valid Hindu marriage, grounds for divorce and judicial separation and the rights as well as liabilities of the married couple.

The Hindu Marriage Act, 1955 is a landmark legislation in India that sought to reform and systematically codify the Hindu personal laws on marriage. The Hindu Marriage Act, 1955 (hereinafter referred to as ‘HMA’) not only aims to preserve marriage as a sacred institution but also as legislation that protects the rights of women and individuals in their marriage. It also mirrors the changing dynamics of Indian society towards a better understanding of justice in laws ensuring that the legal system is inclusive of traditional law and customs. The present article gives an overview of the HMA, 1955, alongside explaining current developments in the same.  

Structure of HMA, 1955

The HMA is an Act of the Indian Parliament that was approved on May 18, 1955. The HMA, 1955 was enacted to safeguard the legal position of the Hindu female and male who are legally married. The kind of ceremony that has to happen has not been prescribed by law since there are several ways that a man and a woman can get married as per the Hindu rites.

The HMA, 1955 is divided into six chapters, consisting of 29 Sections in total. The layout of the same has been provided hereunder:

1. Chapter I: Preliminary
2. Chapter II: Hindu Marriages
3. Chapter III: Restitution of conjugal rights and judicial separation
4. Chapter IV: Nullity of marriage and divorce
5. Chapter V: Jurisdiction and procedure
6. Chapter VI: Savings and repeals

Governance of Hindu Marriages before HMA, 1955

It is noteworthy that until the enforcement of the HMA in the year 1955 the marriages under the Hindu Law were controlled and regulated not only by customs, rites and rituals but also by different practices prevailing in different provinces and among different castes and communities. The institution of marriage has always been regarded as highly sacred in the Hindu tradition and has been always viewed as a sacramental bond. Some significant rites and rituals performed during marriage were ‘Saptapadi’ (taking seven steps together) and ‘Kanyadaan’ (giving away the bride). 

The legal framework prior to the year 1955 was rigid and dominated by the Manusmruti and the other Dharmashastras which specified the rights and responsibilities of the husbands and the wives. In these texts, women were portrayed as inferior beings, who were always in need of male support in all aspects of their existence. Divorce was a very rare and uncommon occurrence; separation was even more uncommon and considered sinful. 

However, despite the sacredness of marriage in society, there were several vices that were common, namely child marriage, polygamy as well as dowry system. Wives in marriage had little rights and were severely restricted by law and custom when it came to marital conflicts. It was at this time that there was no universal code meaning that there were injustices and inequalities in marital laws and relations. 

This pre-1955 situation emphasised the need for the codification of laws to eliminate such discriminations and bring the age-old customs to par with modern legal norms of justice and equality leading to the codification of HMA in 1955.

Need for uniform law to govern Hindu marriages in India

There was a growing necessity for having a uniform law dealing with the subject of Hindu marriages in India prior to the enactment of the HMA in 1955. Before this, Hindu marriages were regulated by numerous regional practices, ceremonies and the edicts of the sacred texts resulting in both legal disparities and confusion. This led to a lack of standardisation, which in turn frequently meant that unfair practices could be employed by a man against a woman, and there was often little or no legal redress. 

Among all the proposed reasons for the need for a uniform civil law, one of the most persuasive was the need to encourage gender equality and to be protective of women’s rights. In the previous practices, women were restricted in terms of marriage, divorce and even property rights. To address these injustices, a uniform law meant to protect women from practices such as polygamy, child marriage, and dowry was observed. Thus, the HMA attempted to formalise marriage laws and offer women the right to seek divorce on reasonable grounds as well as maintenance. 

Another compelling factor was the necessity to make a range of socially significant changes and, in particular, improve the legal framework. The differences in customs and practices resulted in confusion and contradictory laws and therefore problems in resolving matters regarding marriage fairly. A uniform law served the purpose of giving legal marriage, divorce, and other related issues a sound connotation which can be administered legally without the chances of exploitation and injustice dominant in previous society. 

Still, it is necessary to note that the transition to a unification of the law was motivated by the set aim of social transformation. Independent India needed a progressive legal framework to embrace the new era of values like equality, justice, and human rights which were nonexistent during British rule. The HMA, 1955 was a progressive step towards this change, which began the process of establishing justice in society by synthesising customary norms with progressive-oriented legislation. 

Thus, the necessity to establish the common law for Hindu marriage was attributed to the interests to protect the rights of an individual, to promote gender equality and to provide the legal framework to reflect the mutating nature of the social structures of the newly emerged independent India.

Purpose of Hindu Marriage Act, 1955

The Act’s principal goal was to update and codify the law governing marriage between Hindus. The following are the purposes of the HMA, 1955:

1. To bring about unity and standardisation in the laws regarding Hindu marriages thereby enabling the government to enact laws in a more efficient manner. This eradicated issues of ambiguity and inconsistency that result from disparate customs and practices. 
2. To ascertain the legal framework through which Hindu marriages could be accepted and legitimised. The Act stipulated various procedural formalities and formalities that had to be met in order for a marriage to be rendered valid. 
3. To address the challenges of gender inequality within the institution of marriage. The Act was intended to safeguard women in various aspects, including marriage, divorce, and maintenance so that they would be given the same legal standing as a man. 
4. To reform and check conventional practices socially undesirable and inhumane like Child Marriage, Polygamy, Dowry etc. The Act also defined the permissible age of marriage and prohibited bigamy among Hindus. 
5. To give legal remedies to marital disputes and issues. The Act brought provisions of judicial separation, divorce, and restitution of conjugal rights to give legal remedies to people having marital issues. 
6. To bring traditional Hindu marriage practices in conformity with the principles of social justice, human rights and equality. The Act aimed at liberalising the nature of marriage to ensure that marriage adapted to the current dynamics of the socio-economic state of India. 
7. To protect each of the two spouses within a marriage by acknowledging their individual autonomy. It outlined what the husband and wife should do and was aimed at safeguarding the rights of both parties. 
8. To ease the process of marriage registration and to make the legal proceedings of marriage more efficient. The Act helped in defining clear guidelines and procedures in the legal process and made them more understandable and comprehensive.

Essential features of Hindu Marriage Act, 1955

The following are the features of the HMA,1955:

1. Forbidding bigamy: The law prohibits a man from having many wives at one time. Section 5 of the Act outlines bigamy, which refers to keeping two living wives at the same time. It means that one cannot marry another person without first dissolving one’s marriage (divorce). If he does the act, then it is unlawful and he will be penalised under Sections 494 and 495 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’).
2. Marriageable age prescribed: The age of marriage is defined in the statute. Section 5(iii) of the HMA of 1955 states that the bridegroom should be at least 21 years of age and the bride should be at least 18 years of age when they tie the wedding knot. Marriage that is not performed is considered null and void and has no legal force whatsoever. 
3. Act of 1955 intends to protect the party’s marriage: The restitution of conjugal rights is provided under Section 9 of the HMA, 1955. Restitution of conjugal rights means the right of the parties to cohabit. Conjugal rights means rights arising out of a marital relationship. Section 9 addresses the fact that the marriage partner has the right to occupy the premises in question and protect his marriage. 
4. Focus on the mental stability of parties getting married: This means that if a person was mentally ill at the time they got married, then their marriage will not be considered valid. The individual must also provide legal consent before becoming wed. The conditions for Hindu marriage regarding mental health and capacity are mentioned in Section 5(ii)(a), (b), (c). 
5. Significance of ceremonies involved in marriage: This means that if two people get married through the customary rituals and rights then they are legally married. The father has a responsibility to look after and protect any children born after marriage because they have the legal right to exist. 
6. Registration of Marriage: The Section 8 of the HMA,1955 provides that The registration of marriages is not mandatory but recommended for legal purposes and as proof of the marriage. It aids in legal recognition of the marriage, which is important for several reasons including legal identification and services such as passports, visas, the ability to inherit property and proving or ending a marriage. It affords legal evidence that can avoid litigation of issues pertaining to the legitimacy or existence of a marriage. 
7. Judicial Separation and Divorce: This Act affords grounds for the parties seeking a separation without an actual legal severance of the marriage under Section 10 of the HMA,1955. These are adultery, cruelty, desertion for a period of not less than two years, and mental disorders.  The concept of divorce was alien to the Hindu traditional law. This Act prescribes the grounds for divorce under Section13; these are adultery, cruelty, desertion for two or more years, change of religion, lunacy, and consent. Every ground has its legal conditions that must be supported by evidence in court. 
8. Maintenance and Alimony: This Act enables either of the spouses to ask for financial assistance while legal processes like divorce or judicial separation are ongoing under Section 24. This guarantees that the dependent spouse should be financially stable until a decision is made on the case. This Act  under Section 25 also makes provisions for the financial maintenance of the spouse who is unable to maintain themselves post-divorce. Permanent alimony depends on factors like the earnings and the requirements of both spouses, as well as the lifestyle they enjoyed during the subsistence of the marriage. 

Changes brought by Hindu Marriage Act (HMA), 1955 

The following changes were brought in by the HMA, 1955 concerning the way marriages in India were perceived during the time of colonialism under the Britishers: 

1. 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].
2. Hindu, Jain, Sikh, and Buddhist unions are now legally recognised as legitimate Hindu unions (Section 2). This is considered a positive step for the cause of national unity and integration and towards the establishment of common civil codes for the whole of India.
3. 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.
4. The Act marks the first time monogamy has been practised among Hindus. The Indian Penal Code, 1860 has a penalty for bigamy. The provisions of Sections 5 and 17 of the HMA, 1955 show how significantly the rules and prerequisites for a legitimate marriage have been simplified. 
5. Now that caste factors for inter-caste and inter-community marriages have been rendered irrelevant, all prohibitions thereto have been lifted.
6. 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).
7. The Act now establishes requirements for legal marriage and does not recognise any specific type of Hindu marriage (Section 5).
8. 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.
9. For the first time, a provision for registering Hindu marriages has been made (Section 8).
10. 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).
11. The Act provides for judicial separation, divorce, and marriage annulment while removing prohibitions based on gotra, pravara, and Sapinda relationships (Sections 10 to 14).
12. Provisions for recovery of the parties’ marital rights (Section 9).
13. Following a legal divorce, either spouse may remarry (Section 15).
14. Provisions for the validity of children born from unions may later be deemed null, void, or voidable (Section 16).
15. Provisions for spousal maintenance pendente lite and for court costs (Section 24).
16. Permanent alimony and support (Section 25).
17. The care, support, and instruction of young children while legal processes are pending as well as after a ruling has been made (Section 26).
18. The Act no longer distinguishes between a maiden’s marriage and a widow’s marriage.

Applicability of the Act

Section 2 of the HMA of 1955 provides that the Act applies:

1. To anyone who practises Hinduism in any of its manifestations, including Virashaivas, Lingayats, and adherents of the Brahmo, Prarthana, or Arya Samaj;
2. To anyone who practises Buddhism, Jainism, or Sikhism as a religion; and,
3. 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 recognized as conservative because it included other religions (Jains, Buddhists, or Sikhs) based on Article 44 of the Indian Constitution while also applying to everyone who is Hindu in any form. Nonetheless, Sikhs have their distinct law for marriage in the wake of the Anand Marriage (Amendment) Bill, 2012. Therefore, unless it can be shown that such persons are excluded from the Act under the customs and usage, this Section applies to Hindus of any form, and those Hindus within the broad interpretation of the word such as Buddhists, Jains, or Sikhs. Indeed, it covers all such persons resident in India who are not Muslims, Christians, Parsis or Jews. The Act only applies to the Hindus who are residing in the Indian territory and who are not otherwise. 

Hindus by religion 

Followers of Hindu 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 V. T. S. Chandarasekhara Mudaliar vs. Kulandaivelu Mudaliar And Others (1962). In other words, even if a person becomes an atheist, rebels against the key doctrines of Hinduism, fails to adhere to standard practices, assimilates a western way of life, or eats beef, the person remains a Hindu. 

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:

1. If he goes through the official conversion or reconversion ritual required by the caste or group to which he converts or reconverts.
2. 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:

1. He was raised as a Hindu by one of his parents who is a Hindu; or,
2. 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 vs. Indira Gandhi (1984), the Apex Court determined that Sanjay Gandhi was a Hindu for the following reasons:

1. His mother was a Hindu, one of the parents; and,
2. 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.

Converts and re-converts

A convert is someone who has converted to Hinduism from another religion other than Jain, Buddhist, or Sikh. A re-convert is someone who was once a Hindu who then converted to another faith before returning to Hinduism. The Act recognises such individuals as Hindus, and their marriages are governed by the HMA’s provisions.

Explanation of Section 2 of the HMA states, “any person who is a convert or reconvert to the Hindu, Buddhist, Jain, or Sikh religion.” 

In other words, the Act also embraces converts and reconverts to the Hindu religion meaning their legal rights and duties are as equally valid as those of Hindus by birth. The categorization extended the Act’s coverage to converts and reconverts. It is meant to ensure that marital issues are legally addressed as comprehensively as possible since the nature of religious identity in India is dynamic. It equally protects the rights of converts and reconverts to Hinduism that those who choose to embrace or come back to the religion of Hinduism are subjected to the same laws as other Hindus with regard to issues of marriage, divorce and others related to it.

Scheduled tribes

The provisions of the HMA, 1955 are not exhaustive as far as the scheduled tribes are concerned. While the Act regulates marriage among Hindus and those who follow Buddhism, Jainism or Sikhism, its applicability to the Scheduled Tribes depends on some conditions. Section 2(2) of the Act excludes members of the Scheduled Tribes from its ambit unless the central government otherwise directs. Proper customs, traditions and personal laws of STs are provided in this exclusion. But if a woman belonging to the Scheduled Tribe wishes to marry under the HMA, or if the personal laws of a particular tribe are in accordance with Hindu law, then the Act would be applicable. This flexibility is expected to accord with the cultural diversity of Scheduled Tribes as well as give a legal framework to those who opt for it.

Important definitions under the Act

Custom and usage

As per Section 3(a) HMA, “custom” and “usage” mean any rule which, having been in force for a long time, is recognized as law in any local area, tribe, community, group or any Hindu family. This is so because for a custom or usage to be recognized under the Act, it must be certain, reasonable and not contrary to public policy. In addition, it should have been consistently practised and perpetrated for a relatively long time to show that it has been accepted as authoritative within the particular group it applies to. It means that although the Act aims at regulating Hindu marriage, it also recognizes that there are differences in practices in different societies. This way it permits recognition of customs and usages as part of the legal system, if they comply with the laid down requirements, enabling the continuity of the culture and traditional practices as part of the Hindu law system within this large structure.

Sapinda relationship

The term “sapinda relationship” has been defined under Section 3(f) of the HMA, 1955 which lays down the relationship up to the third generation through the mother’s side and up to the fifth generation through the father’s side making one a sapinda of another. Specifically, sapinda relationships are calculated as follows:

• Through the father: Up to the fifth degree of the ascending line.
• Through the mother: To the third generation in the line of ascent.

For instance, one is a sapinda with their great-great-grandfather on the father’s side and with their great-grandmother on the mother’s side.

Degree of prohibited relationship

Section 3(g) of HMA, 1955 categorises the prohibited relationship in the context of Hindu Hindu marriages. From this Section, it can be deduced that two people are in a prohibited relationship if one is in a direct line to the other or if a wife or husband of a person is in a direct line to the other or third generation to it at least. This implies that marriages within the prohibited degrees are prohibited, including the marriage of parents and children, grandparents and grandchildren, great-grandparents and great-grandchildren, etc. Furthermore, any relationship that is forbidden by law including marrying one’s siblings or half-siblings, uncles marrying nieces, aunts marrying nephews among others are also examples of prohibited relationships under this definition. Restrictions like these are meant to preserve the sanctity of marriage and disallow marriages, which are culturally and socially undesirable within Hindu culture.

Marriage as a concept under Hindu Marriage Act, 1955

Marriage is a sacrosanct and lawful bond between two individuals. It regulates marriages amongst Hindus, Buddhists, Jains and Sikhs and lays down the essentials and formalities for a legal marriage in the country. It focuses on consent, the capacity of the parties involved and compliance with cultural practices and traditions. According to the Act, marriage should be monogamous and people must meet a certain age and should not marry close relatives to uphold societal and ethical standards. Also, the Act covers the area of the rights and responsibilities of the spouses with legal remedies for dealing with marital conflicts and dissolution of marriage, it covers issues of judicial separation, dissolution of marriage, and maintenance. 

Nature of Hindu marriage

Hindu marriage is defined as “a religious sacrament under which a man and a woman enter a permanent union for the physical, social, and spiritual purpose of dharma, procreation, and enjoyment of sexual pleasure.” There are three characteristics of this sacramental nature: 

1. Permanence: The relationship that a husband and wife have is permanent, and in some cultures, it is said that they will even be married in the afterlife. 
2. Indissolubility: In essence, once the marriage tie is set, it cannot be undone, making a statement of marriage as a bond that cannot be severed. 
3. Religious Rites: The union must be sealed through religious rites and practices, thereby establishing a reason as to why it is referred to as holy matrimony. 

Marriage therefore is a highly sacred sacrament in Hindu Indian tradition. In ancient times, the bride did not have any say in the marriage issue; the father just went ahead to choose a suitable man for her. A marriage that was contracted by the parties who were underage or had an unsound mind at the time it was entered into was not declared void. However, in modern laws, the consent of both parties and the sanity of the parties involved are considered to be valid ingredients of a Hindu marriage. Without these, the marriage can be annulled or deemed as never having existed in the first place, therefore not valid. 

Contemporary Hindu marriage involves some contractual aspects that have been tailored with concepts of equality and liberty borrowed from the West. Both the man and the woman must consent to the marriage, which highlights the fact that modern marriages are contractual. Therefore, Hindu marriage today is something in between a sacrament, which is a sacred ceremony and a contract which has more secular aspects involved. It remains religiously sacred but also respects the modern concepts of consent and equality, combining the old-world religion with the new-world laws.

Essentials of a valid marriage

The conditions for a valid marriage under Hindu law have been provided hereunder: 

Both the parties to the marriage should be Hindu

According to section 5 of the HMA of 1955, there are legal requirements and conditions for Hindu marriage, one of which is that the parties to the intended marriage must be Hindus. If one of the partners is a Christian or a Muslim, then this marriage will not be valid under the HMA of 1955. Thus, under the HMA, 1955, a lawful marriage cannot be solemnised if both parties are not Hindus. In Yamunabai Anant Rao Adhav vs. 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

Thus, in a Hindu marriage, consent must meet legal requirements as required by Section 5(ii)(a) of the Act of 1995. If the couple cannot provide valid consent due to mental disability, then the other party can consider the marriage annulled. The Act provides in Section 5(ii)(b) that a marriage can be dissolved at the instance of the other party if one of the parties, although capable of giving legal consent, is suffering from a mental disorder in so far as the party is unfit to marry or to have children. 

In Smt. Alka Sharma vs Abhinesh Chandra Sharma (1991), the wife expressed that she became frozen, scared, shrunk and cold on the first night of marriage. She refused to perform the sexual act. She failed to meet the needs and demands of the family members and failed to provide a reason why she had wet the verandah in the presence of the entire family. Hence, the husband sought a legal remedy to bring an end to the marriage. The marriage was annulled by the court. 

It is also worth noting that under Section 5(ii)(c) of the Act, where one of the partners has been subjected to recurrent episodes of insanity, the other partner has the right to seek a divorce. The Marriage Laws (Amendment) Act, 1999 changed this section of the HMA, 1955, and the word “epilepsy” does not exist. For this reason, in the current society, if a person who is involved in a marriage has frequent seizures, the marriage is still valid, and the person has no right to dissolve it. 

The marriage should be monogamous

According to the HMA, 1955, Section 5(i) requires that at the time of marriage, neither party has a living spouse. The marriage is considered void if any of the parties had a spouse who was alive at the time of the marriage. Bigamous marriage is therefore outlawed. A second marriage can be a legal one if the first one has come to an end by death or divorce. 

This Section stipulates that any marriage that has been entered by two Hindus before the coming of legislation is null and void if either of them is already married or has a spouse at the time of marriage. Moreover, if a person marries another person while his first marriage is still subsisting then he can be prosecuted and punished under Sections 494 and 495 of the IPC. 

The parties to the marriage have attained the majority

Section 5(iii) of the Act states that the bride must be at least 18 years of age and the husband must be at least 21 years of age at the time of marriage. Any marriage that is solemnised opposite to these standards shall not be void or voidable. Furthermore, anyone who performed such a marriage could be arrested under Section 18 of this Act with a stiff penalty of up to two years in prison, a fine of up to one lakh rupees, or both. 

The marriage that was performed in violation of the age provisions of Section 5(iii) was held not to be void or voidable in the case of Pinninti Venkataramana vs. State (1976). Nevertheless, Section 18 of the HMA of 1955 makes violating the terms thereof unlawful. 

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 HMA, 1955, 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 HMA 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 and void, it may still be lawful if there is a valid custom or usage that governs each of them and allows for such a union. Such custom should not be opposed to public policy and immoral. This is because the right to marry is not an absolute right and is subject to certain conditions which maintain the sanctity of the marriage. Otherwise, incestuous relationships may emerge in society. Prolonged practice of a custom does not give it the enforcement of the law if it is immoral. 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 HMA, 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 individuals is deemed to be absolutely null where it is within the prohibited category of relationship. However, marriage is lawful so long as there is a lawful custom or usage in accordance with the law regulating both parties. The usage or custom that is being practised should be certain, reasonable and must not be against the public policy. Several cultural practices that make marriage legitimate in the context of prohibited relationships are prevalent in India. For example, marrying off the offspring of siblings is still a common tradition in the region of Kerala. 

In Balu Swami Reddiar vs. Balakrishna (1956), the court held that it was unlawful and against public policy, for a man to marry his daughter’s daughter as was customary among the Reddiars who were well known in the state of Madras. Solemnization of marriage between two persons who are in a prohibited degree of relationship is considered null and void under Section 18 of the Act and the offenders are liable to a fine of one thousand rupees or to imprisonment for one month or both according to the gravity of the crime.

The marriage should be solemnised in accordance with the customary rites and ceremonies

Section 7 of the Act states that a Hindu marriage governed under the provision of the HMA, 1955 is valid if the marriage is performed as per the customs of either party to the marriage. If such rituals and ceremonies include Saptapadi and binding then marriage is considered to be complete once the seventh step is performed. 

As seen in the case of Bibbe vs. Ram Kali (1982), the court declared that performing these ceremonies with the intention of making the couples married does not qualify as performing the legal ceremonies. The ceremonies may vary depending on each person’s traditions. For example, one of the most important non-sacramental rites observed by the Nair caste in Kerala is the giving of a piece of cloth to the bride (pudava kodukal). 

Guardianship under Hindu Marriage Act, 1955 

The guardianship for marriage is outlined in Section 6 of the HMA, 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:

1. The bride’s mother, 
2. Father,
3. Paternal grandpa,
4. Paternal grandmother,
5. Brother by full blood,
6. 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.

Ceremonies to validate a Hindu marriage

Section 7 of the HMA, 1955, is a crucial provision that addresses the ceremonies required for the solemnization of a Hindu marriage. According to section 7 of the HMA, 1955, certain ceremonies are mandatory for a valid Hindu marriage. It also acknowledges the fact that marriage ceremonies could differ from one community or another within the Hindu religion. Section 7 provides that a Hindu marriage can be entered into according to the customary rites and ceremonies of either party. Such rites and ceremonies normally entail significant rituals that are characteristic of Hindu marriages. 

One of the most recognizable things associated with these ceremonies is the ‘Saptapadi,’ or seven steps. This Section defines that where the Saptapadi is present as part of the marriage rites, the marriage is complete and valid on the taking of the seventh step. This is a ceremony whereby the bride and groom walk around a sacred fire seven times as a symbol of the promises they make to each other as husband and wife with each step signifying a particular promise each party makes to the other. 

Section 7 recognizes that different communities have their own customs and practices with regard to Hindu practices by permitting variations in practices. This gives flexibility to the understanding and implementation of the law to favour different cultural and religious diversities of Hindu groups. 

Registration of marriages under the HMA, 1955

Section 8 of the HMA, 1955 deals with the procedure of the registration of Hindu marriages. Although the Act does not compel marriage registration, it recommends it for legal purposes and record keeping. The Section allows the state governments to make rules with respect to the registration of marriage, which may encompass the appointment of marriage registrars and the process of registering marriage. 

Pursuant to Section 8 of the Act, the state government may make provisions regarding the registration of Hindu marriages under which the parties to any such marriage may cause the particulars of their marriages to be recorded in the Hindu Marriage Register in the manner and subject to the conditions as may be prescribed. This registration is being done to simplify the process of proving Hindu marriages. Any rules made under this provision may be presented to the state legislature. The statements that are made in the Hindu Marriage Register shall be deemed to be true and the Register should be produced before the concerned authorities at the appropriate times. 

The main reason why marriages are registered is to offer legal recognition of marriage which may be useful in circumstances that may involve legal issues of marriage, succession, or rights. It also assists in legal matters where one may need to present formal records such as passports and visas which might call for marital proof. Section 8 seeks to ensure that only valid claims are registered when it comes to marriages hence limiting the number of fake claims that can be made regarding partnerships, which accord legal recognition to marital relationships and ensure that the rights and interests of both spouses are protected. Although registration is not compulsory, it is advisable for legal and administrative reasons due to several reasons. 

The case of Seema vs. Ashwani Kumar (2006) was another historic decision by the Supreme Court of India on the need to make marriage registration mandatory for all religions in the country. The Court further ordered the central and state governments to make rules for the registration of all marriages and said that it is a necessary step in the protection of the rights of women and children, and stopping child marriage, bigamy, and trafficking. The judgement also emphasised that established marriages cause legal problems and no legal recognition of spouses and children. The ruling was intended to give legal certainty, exercise autonomy, enforce marital rights, and enhance responsibility in marital relations.

Restitution of conjugal rights under Hindu Marriage Act, 1955

The HMA of 1955 recognises the restoration of conjugal rights under Section 9 of the act. Regarding conjugal rights, the right to the consortium as provided under Section 9 of the aforementioned Act is recognized and protected by the courts, where a spouse can sue to defend the right. One of the important relief available to the injured spouse under Section 9 of HMA, 1955 is the power to seek maintenance under Section 25 of HMA, 1955. 

The role that conjugal rights play in marriage is well acknowledged in several provisions of Indian personal law. In the narrowest sense of the term, marriage rights mean being entitled to live together with the marital partner and engaging in sexual activity. The wife and husband have to respect each other and have to cohabit, which is perhaps one of the fundamental duties of the marriage. “Restitution of conjugal rights” is a legal provision which allows the offended spouse to compel the partner who walked out of the marriage to resume cohabitation. It is usually associated with the idea of maintaining marriage if any. Marriage sets out a number of marital duties and confers upon each spouse’s legal capacities under all marital laws. It took a long time to complete the clause in the Act because the constitutionality of the Act annexed debates room for contention.

Essentials of Section 9

The HMA, 1955 also defines restitution of conjugal rights as any legal remedy of a spouse living separately from the other spouse without adequate cause under Section 9. Here are the three requisites of Section 9: 

Withdrawal from society 

The first prerequisite for application of section 9 is that one spouse must have withdrawn from the society of the other. This implies there is a deliberate and arbitrary exclusion from the marital bond. The withdrawal can be physical (spatial) in the sense that one of the partners leaves the marriage household, or emotional in the sense that a partner refrains from fulfilling their marital obligations. 

Lack of reasonable cause

For the petition to be successful, the withdrawal has to be proved to be without just cause. Reasonable causes can be cruelty, adultery, or any other misconduct that renders it unbearable for the spouse to live with the other. The party that brings the petition (the aggrieved spouse seeking restitution) bears the burden of proving that the other spouse had no reasonable cause. 

Court’s satisfaction

The court is to be convinced of the bona fide nature of the petition and the reasons for the withdrawal. The court also assesses the circumstances put forward by the parties and whether there is sufficient merit in the application and whether there was any reasonable cause for withdrawal. If the court is satisfied that the withdrawal is actually without lawful cause, the court can order the restitution of conjugal rights with the effect that the respondent has to resume living with the petitioner. 

Purpose and impact of Section 9

The restoration of conjugal rights is useful to maintain the marriage relationship, as well as promote the possibility of the spouses’ reunion. But it has been criticised for fearing that it will be used as a way of compelling women, especially into sexual intercourse. Judges have also focused on the fact that the decree for restitution should not be granted if it is seen as oppressive or unjust. However, the Act also provides other grounds for divorce which includes refusal to comply with a decree of restitution. 

In essence, Section 9 is a statutory provision that fulfils the goal of preserving the sanctity of marriage and offering legal means through which the marital bond between the couple can be re-established in case the withdrawal was unjustified.

Constitutional validity of Section 9

While it was developed to protect the parties in a marriage bond, this clause has been challenged and criticised in many ways. The constitutionality of the provision was an issue of debate in the T. Sareetha vs. T. Venkatasubbaiah (1983) case before the Andhra Pradesh High Court. This lawsuit also shows that the plaintiff alleges that Section 9 of the HMA violates the provisions of Articles 14 and 21 of the Constitution. The Court considered that this clause was especially wild and inhuman to women. This forced cohabitation deprives her of her right to her own body and her freedom in deciding on the matter of sexual conduct. Thus, it can be concluded that a decree of restitution of conjugal rights will infringe upon her rights under Article 21 which guarantees her right to privacy. As cohabitation in marriage is a matter of privacy between the spouses, the aforementioned provision was considered unlawful by the court in 1983. Thus, the state should not interfere with such private choices. 

Nevertheless, the Delhi High Court was of a different opinion regarding the said judgement. The court also pointed out that there are a number of misconceptions regarding Section 9 and that the constitutionality of the Section was an issue that has led to debates. The court has opined that marriage is a religious institution and attempts have been made by the law to preserve the sacredness. Thus, the restitution of the conjugal rights clause was introduced to keep the husband and wife together by removing the power of dissolution from the parties in their marriage. The protection of the marriage tie between two individuals is the main goal of the regulation hence should be considered when ascertaining its constitutionality. 

Thus, the Court concluded that Section 9 does not violate Articles 14 and 21 because it was added as a new reason to file for divorce. Sexual activity should not be considered as the summum bonum because it is one of the elements of the marriage institution, which is based on cohabitation and consortium. 

The Supreme Court’s ruling in the case of Saroj Rani vs. Sudarshan Kumar Chadha (1984) put an end to all disputes. The Delhi High Court’s judgement 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. The judgement stressed that whilst Section 9 aims at preserving marriage, it cannot be so used as to compel an uninterested spouse. The Court emphasised that enforcement of conjugal rights must not be crude and oppressive bearing in mind the contemporary social trends and the doctrines of liberty and personal freedom as enshrined under the Constitution of India. 

Finally, while affirming the constitutional provisions of Section 9, the Supreme Court highlighted that the implementation of Section 9 should correspond to the principles of fairness, reasonableness and the fundamental rights enshrined in the Constitution. The Court advised that decrees for restitution of conjugal rights are not a formality and should uphold and review the circumstances or reasons for withdrawal from matrimonial society to determine justice and equity in matrimonial cases. This judgement highlighted that there is a need to strive for harmony in recognizing the principles of marital unity and the rights of individuals under Hindu law.

Judicial separation under Hindu Marriage Act, 1955

The HMA of 1955 under Section 10 offers a legal remedy specifically to those spouses who do not want a divorce but want to live separately. While divorce is the legal proceeding that severs the marital tie, judicial separation permits the couple to be physically separate while still technically being married. This legal status acknowledges the fact that there may be circumstances when the partners can no longer live together, but they are not quite ready or willing to dissolve their marriage completely. 

Grounds for seeking judicial separation 

Section 10(1) stipulates that a decree of judicial separation can be sought on all the grounds on which the decree of dissolution of marriage i.e. divorce can be sought. The following are grounds for seeking judicial separation:

1. Cruelty: One of the causes of judicial separation is cruelty. This includes physical or emotional abuse that makes it almost impossible or dangerous for one partner to continue living with the other. Courts define cruelty in a liberal sense to encompass any unlawful violent conduct or mental abuse perpetrated by one partner on the other partner. 
2. Adultery: If one of the spouses had consensual sexual intercourse with another person outside of marriage, the aggrieved party seeks judicial separation. Infidelity is viewed as a violation of the marriage covenant and as such it can cause severe harm to the marriage. 
3. Desertion: Abandonment is where one spouse leaves the other without reasonable cause or permission. The desertion has to be for a continuous period as provided for in the law governing judicial separation. 
4. Conversion: In case one of the spouses adopts another religion and thus ceases to be a Hindu, then the other spouse can seek a decree of judicial separation. 
5. Unsoundness of mind: These cases include a situation where one of the spouses is incurably of unsound mind or has been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. 
6. Renunciation of the world: If a spouse renounces the world by joining a religious order.
7. Presumption of death: If a spouse has not been heard of in seven years or more by people who would normally hear of the respondent if they were alive.

Given below are further grounds that are available to the wife only and not the husband:

1. Pre-Act polygamous marriage 
2. Rape, sodomy, or bestiality
3. Non-resumption of cohabitation and repudiation of marriage

Effects of judicial separation

By getting judicial separation under the HMA, 1955, various repercussions occurred on the marriage relationship and the parties. First of all, it provides the legal acknowledgement of the spouses’ desire to stay apart while remaining married. This allows either of the partners to seek maintenance ensuring that there is economic support during the time of separation. 

Secondly, judicial separation establishes the rights of custody of the children taking into consideration the welfare and well-being of the children. Thirdly, it restricts remarriage, as no one can marry another person in this case as both are legally married to each other. Judicial separation does not end the marriage, it does offer a legal structure to deal with marital conflicts and the impact of the separation. In other words, it is a legal remedy under the HMA that addresses the need for bona fide spouses to be separated while at the same time recognizing some rights and duties of spouses.

Petition of judicial separation

Under Section 13 of the HMA, 1955, any spouse can file a petition for judicial separation to the family court. This petition should contain basic information like the names and addresses of both spouses, the date and place of marriage, and details on why the marriage should be annulled like adultery, cruelty or desertion among others. The alleged grounds must also be stated and be accompanied by details of such incidents or any other evidence the petitioner may have. 

Also, it should specify the relief prayed which may be judicial separation, and any related orders for maintenance or custody of children. Besides the petition, an affidavit confirming the truth of the allegations must be attached to it. Upon filing, the court shall consider such a petition and the evidence produced before deciding to grant a decree of judicial separation.

Void and voidable marriage under Hindu Marriage Act, 1955

Void marriages

As we have seen, Section 11 of the HMA, 1955 provides the circumstances under Section 5(i),(iv) and (v) in which a marriage is considered a nullity, that is, it did not exist in law. Understanding these grounds is crucial as they delineate circumstances where a marriage is legally invalid from the outset. 

Grounds for void marriage

Bigamy

In section 5(i), it is stated that a marriage is void if either of the parties has another living spouse at the time of marriage. Bigamy refers to the state of getting married to another person when the first marriage is still valid and legal and it is an offence in India. This section seeks to defend monogamy in Hindu marriages and avoid legal complications and unfairness associated with multiple legitimate marriages. 

Prohibited Relationship

Section 5(iv) holds marriage null and void if such marriage is within the prohibited relationship as defined in Section 3(g) of the Act. It is illegal to intermarry with close relatives such as ancestors and descendants, siblings, uncles and nieces, and aunts and nephews. These relationships are known as incestuous and are not allowed to be practised in order to uphold order and morality within Hindu society. 

Sapinda Relationship

Section 5(v) requires that a marriage be deemed null and void if the parties to the marriage are within the sapinda relationship as provided in the Act under Section 3(f). Sapinda relationships refer to consanguinity which involves degrees of relationship by blood from the father’s side up to five generations and three generations from the mother’s side. Marriages within these restricted degrees are considered void to discourage consanguineous marriages that cause genetic problems or social issues. 

Effect of void marriages

When a marriage is declared void under Section 11 of the HMA, 1955, it has several significant effects:

Nullity of Marriage

An invalid marriage is one that is null and void ab initio, which simply means that the marriage was never legally valid from the beginning. The two parties are held to never have been lawfully married, and therefore their status does not change. 

Legal Consequences

There are no marital rights or duties that either party can claim as the marriage is considered void from the outset. 

Children’s Status

In India, the children born out of the void marriage are recognized to be legitimate. They have had legal recognition and claim to inheritance, succession and other privileges that children of valid marriage receive. 

No Need for Divorce

It is to be noted that while valid marriages require dissolution through divorce, a void marriage does not mandate a legal separation. The parties can simply go to court and decide that the marriage was null and void and therefore does not require a formal divorce.

Voidable marriages

According to Section 12 of the HMA, 1955, there are grounds on which a marriage can be declared voidable, which means that the marriage is initially legal but can be dissolved at the instance of either spouse by petition to the court. A voidable marriage is a marriage the parties are legally capable of performing unless one of the parties has filed for annulment and received a decree of divorce. 

Voidable marriages, on the other hand, are recognized as marriages until annulment is sought through legal action. This provision enables an individual to annul a marriage on account of grave difficulties that adversely affect the validity of consent and capacity, thus providing legal redress for the nullification of marriage without compromising the legitimacy of children from the union. 

Grounds of voidable marriages

Unlike void marriages, voidable marriages are technically valid until a court nullifies them. Below are the grounds specified in Section 12(1): 

Non-consummation due to impotency

If any of the parties has failed to perform the marriage due to impotence then it may be considered a reason for the marriage to be annulled. Also, it should be noted that impotence must be at the time of marriage and that it cannot be cured. In this context, the word impotence is used in its legal sense, meaning that one of the partners is physically unable to consummate the marriage through sexual intercourse. This ground appreciates the fact that consummation is one of the important ingredients of marriage and lack of this aspect can be grounds for annulment. 

The petitioner needs to prove the case of impotence which if proven then the court can pass a decree of nullity which means the marriage was never valid. They give an individual an opportunity not to be confined in a marriage that lacks one or the other requirement.

Mental disorder

If either party to the marriage is affected by a mental disease to such an extent so as to be incapable of sexual intercourse and propagation of offspring, the marriage can be annulled. The HMA, 1955 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 by force or fraud

This means that the marriage can be annulled if either party did not validly consent to the marriage because of coercion, fraud, or was of unsound mind when entering into the marriage. In cases where the consent to the marriage was forced, influenced by force or fraud, the marriage may be declared voidable. As per Section 5(i)(c), the marriage is voidable where the petitioner’s consent was obtained by force or fraud as regards the nature of the ceremony or any other part of the marriage with the respondent. 

The coercive force consists of the threat to use force and the use of force. The main element of fraud is deceit. Relevant information means all the facts and circumstances which can be liable to influence or convince a party to grant or withhold consent to the marriage. Therefore, simple lying is not a fraud. Likewise, not all falsehood or deceit is fraudulent in nature. Therefore, the grounds for annulling a marriage according to Section 12 are not limited to concealing the fact that the husband has been married to another woman. 

Prior pregnancy

If the wife was pregnant with another man’s child at the time of the marriage and the man did not know about it, then it can be considered as a reason for annulment of the marriage. According to the HMA, 1955, pregnancy by another man at the time of marriage is considered a valid ground for annulment of marriage. If the wife was pregnant by another man at the time of the marriage and the husband had no knowledge of it, he can approach the court to have the marriage annulled. This has the effect of guaranteeing that the consent to the marriage by the husband was not induced by fraud in regard to such a matter. 

These grounds are aimed at securing the rights of the individuals who agree to enter into marriages and guarantee that marriages are voluntary and suitable for the co-parties. Voidable marriages, on the other hand, are valid until declared null and void by a court of law through the application of the injured party. It is imperative that people seeking legal redressal concerning the annulment of marriage under the HMA comprehend these grounds.

Section 12(2) of the HMA, 1955, outlines circumstances under which the court will not entertain any petition for annulling a marriage. Firstly, in cases referred to in clause (c) of subsection (1), no petition may be presented to the court after the expiration of one year from the termination of coercion or the discovery of the fraud, or if the petitioner cohabited with the spouse against his or her will after the expiration of the coercion or the discovery of the fraud, respectively. 

Second, for reasons listed in clause (d) of subsection (1), a petition will not be entertained unless the court is satisfied that the petitioner had no knowledge of the facts set out in the petition at the time of marriage, the proceedings were commenced within one year of the Act coming into force for marriages before the Act and for those married after the Act within the one year from the date of marriage and there has been no cohabitation with

Effect of voidable marriages

In the case of a voidable marriage under Section 12 of the HMA, 1955, the marriage is initially treated as legal but can be dissolved by the court on an application by either party. The effects of voidable marriages are given as follows:

Conditional Validity 

As long as the marriage has not been dissolved in a court of law, then the marriage remains legal. This means that till the time of annulment, the parties are in a legal marriage and may have some of the marital benefits/accompanied by marital responsibilities. 

Annulment Process

For the purpose of annulling a voidable marriage, one of the parties has to petition the court in writing, referring to one of the following grounds in Section 12. The court will then ascertain the evidence and circumstances to determine whether to nullify the marriage.

Legal Consequences

When a marriage is annulled, it is as if the marriage never occurred in the eyes of the law. This implies that any privileges or responsibilities that are associated with marriage including owning property, inheriting property or a spouse’s status are discharged. 

No Need for Divorce

Indeed, while divorce proceedings involve the termination of a once valid marriage, annulment of a voidable marriage is actually the rendering of what has never legally existed at all. Hence, one does not need to go through the process of filing for divorce in order to dissolve the marital bond. 

Understanding these effects is important for people who are in marriages, which fall under the category of voidable marriages as defined in the HMA. This brings out legal procedures enabling the annulment of marriage based on the grounds provided under Section 12 in order to enhance legal compliance and conservation of rights in marriage.

Divorce under Hindu Marriage Act, 1955

Divorce is a concept that does not need any preface in today’s world. It refers to a bitter and ugly dissolution of a marriage. It should be noted that while divorce has been defined as the legal process by which marriage is dissolved or terminated, the process entails much more of that. 

Today, it is rather common to hear that many couples decide to divorce, and it is rather surprising that most of them do it rather soon. In the early Vedic Hindu civilization, marriage was considered more of a ceremony than a contract between two individuals. It was deemed so moral, or as if it emanated from the gods, to have such a certain end and beginning. Hence, divorce or separation of the partners in a marriage was not allowed by the ancient Hindu law in India. 

The provisions for divorce were introduced through the HMA that was passed in the year 1955 and it was the first time that Hindu law recognised divorce. In this case, there was no law concerning divorce before the statute was made. It defines the circumstances under which any spouse may apply for the nullity of marriage upon proving the grounds. 

Hindu law does not allow any person to seek a divorce unless the court has permitted it. Section 10 of the HMA of 1955 provides for the grounds for judicial separation as well as Section 13 for divorce. It was found that some marriages are null and voidable under Sections 11 and 12 because the marriages in question did not meet the requirements under this Act for the legal validity of marriage or contained the defects stipulated in Section 12. 

In India, the HMA of 1955 specifies that eight grounds for divorce are available in Section 13, which are fault-based. Some of them include adultery, desertion, cruelty, insanity, venereal disease, and conversion or rejection of the world which are based on guilt theory and are considered as divorce fault grounds. To obtain a divorce, either party must prove at least one legal ground for dissolution of marriage.

Divorce based on fault is another matrimonial relief contained under Section 13(1). The opposite party may seek dissolution of the marriage if they can prove any form of misconduct from the side of the other party. The HMA of 1955 was amended in 1964 by introducing Section 13(1A) which provides an opportunity of divorce to both the husband and the wife. The law relating to marriage was amended in 1976 and made the grounds specified for judicial separation and for divorce similar to each other. 

Furthermore, Section 13B incorporated in the Marriage Laws Amendment Act, 1976 provides that the parties to the marriage could seek divorce on the basis of mutual consent meaning the couple could seek a divorce without having to prove fault of either of the parties as to be proved under Section 13. It is thus relevant to find out how legislation on marriage and divorce impacts those two legal procedures. The introduction of the concept of irretrievable breakdown of marriage thus poses questions as to its necessity and importance in divorce legislation. 

Grounds for divorce 

A matrimonial relationship (marriage) cannot be ended or dissolved for a reason not included in the HMA of 1955, the Court said in Rajender Bhardwaj vs Mrs Anita Sharma (1992). The grounds for divorce under the HMA, 1955 have been provided hereunder:

Adultery

The HMA, 1955 recognizes adultery as a ground for divorce under Section 13(1)(i). If a husband or a wife willingly has intimate relations with another individual other than the spouse, the aggrieved spouse can legally seek divorce on the basis of adultery. The petitioner must provide clear evidence that the respondents have been involved in an adulterous affair. Adultery violates the sanctity of marriage whereby both parties promise to be loyal to each other. This ground emphasises the importance of loyalty and fidelity in marital relationships, providing a legal remedy for those affected by such betrayal.

Cruelty

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(1)(ia) of the HMA, which also lists other grounds. Cruelty is one of the 12 grounds for divorce listed in the Special Marriage Act, 1954 and one of the eight grounds listed in the Muslim Marriage Dissolution Act, 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 vs. Julmidevi (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. Cruelty is not a static notion that’s why there can be no straight jacket formula to define the same. What is cruelty today may not be considered cruelty after some time. It is a subjective notion and depends on each person’s level of tolerance.

Desertion

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)(ib) of Section 13 of the HMA 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:

1. The factum of separation; and,
2. The intention to bring cohabitation permanently to an end (Animus Deserendi).

Conversion

Under the HMA 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(1)(ii) 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.

Insanity

In Smt. Sona vs. 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 HMA of 1955.

Leprosy

In accordance with the HMA 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 been removed by means of the 1976 Amendment to the HMA, 1955. 

This Sub-section has been omitted by the Personal law (Amendment) Act, 2019, reflecting changes in societal attitudes and medical advancements in the treatment and management of leprosy.

Venereal disease 

Venereal diseases are those diseases that are most easily transmitted through sexual contact, including anal, oral and vaginal intercourse. Therefore, the current matrimonial laws of the majority of Indian groups and the HMA under Section 13(1)(v) recognise venereal disease as a ground for divorce and judicial separation. It comprises several communicable diseases that are predominantly acquired through sexual contact. 

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:

1. The respondent must have given up on life in general (Sanyasa),
2. 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 vs. Sant Ram and Ors (1954). 

Presumption of death 

According to Section 13(1)(vii) of the HMA, 1955, 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 and 108 of the Indian Evidence Act of 1872′s presumption of death premise serve as the foundation for this clause. In Nirmoo vs. 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 

Besides the grounds that are available to both the husband and the wife, the Hindu woman has been provided with few extra grounds for divorce or judicial separation under the HMA of 1955. Two special grounds for divorce were first provided to wives under Section 13(2) of the HMA of 1955. Wives gained two new reasons for blaming under the Marriage Laws The Amendment Act of 1976. Therefore, only a Hindu woman can sue for dissolution of marriage on any of the four special causes.

1. Pre-Act polygamous marriage.
2. Rape, sodomy or bestiality.
3. Non-resumption of cohabitation after a Decree/Order of Maintenance, and
4. Repudiation of marriage.

Irretrievable breakdown of marriage under Hindu Law

As described in legal terms, when two married people no longer have affection for each other, they can no longer bear any good or bad feelings toward one another; in other words, the marriage has irretrievably disintegrated. There is no sign of acceptance, love, worry and respect anymore. When both partners do not desire to stay together, where there is no relationship between them, and where there cannot be any chance of them coming back together, it can be said that the marriage has irretrievably broken down. However, it is a noteworthy fact that Hinduism as a religion never approved of the concept of divorce till the HMA was enacted in 1955. 

Today, every person who is married has the legal capacity to seek a divorce on one of the established grounds. Various causes of divorce are ones that are fault-based, no-fault, and mutual consent. Yet, the matter in question is the dissolution of a marriage by the utter and irreparable destruction of the marriage by one party, which is, again, a no-fault basis. This aspect is provided under Section 13(1A) HMA to judicial separation and non-restitution of conjugal relationships. However, it still has not been enumerated as a ground 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 vs. Kajal Kumar Ghosh (2007). 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 vs. Neelu Kohli (2006), the Supreme Court argued for the legislature to include an irretrievable breakdown of marriage as a basis for divorce under the HMA. 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 vs. 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 vs. 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.

In Sukhendu Dass vs. Rita Mukherjee (2017), the husband’s application for a divorce was rejected because he failed to prove cruelty by his wife. Other than setting aside the appeal, the top court held that an irretrievable breakdown of a marriage cannot be a basis for dissolution. The wife never presented herself before the trial court after filing a written statement. She was also absent from the High Court and the Supreme Court hearings as well. 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 vs. Jaya Ghosh (2007), 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 HMA 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 along with Justices Sanjiv Khanna, A. S. Oka, Vikram Nath and J. K. Maheshwari commenced with the hearing of Shilpa Sailesh vs. 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. The case remains ongoing. 

Alternate relief in divorce 

Section 13A of the HMA, 1955 offers an alternate relief in divorce cases. When a party has applied for a divorce on any of the grounds enumerated in Section 13 and the court determines that it is in the best interest of the parties to grant judicial separation instead of divorce except in cases mentioned under Section 13(ii), (vi), (vii). This provision makes it possible for the court to provide some form of redress to the petitioner even in circumstances where the court will not have sufficient reasons to grant a complete dissolution of the marriage as it permits judicial separation which is a legal process that separates the parties while remaining married. 

Judicial separation allows the parties to resolve their needs and situation with respect to the maintenance and custody of children without dissolving the marriage. This Section seems to be less rigid when it comes to marital disputes, as it acknowledges that in some instances, it would be best for the couple to part ways but remain legally married.

Divorce by mutual consent

The HMA was passed in 1955 and was amended in 1976 the amendment introduced Section 13B which was the ground for divorce by mutual consent. As per Section 13B(1) it is mandatory for the parties to present the petition for divorce together. As is the case with Section 13B(2) which provides that both parties must serve the motion for hearing. 

However, under Section 13B of the HMA of 1955, it is important to note that a plea for divorce under Section 13 of the said Act may be converted to a petition for divorce by mutual consent 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 vs. Hemant Singh (1993) and Dhiraj Kumar vs. State of Punjab (2018). In these cases, the court recognised that both parties had later consented to seek a divorce with mutual consent. The court permitted the change of the original Section 13 petition to a Section 13B petition. The decision emphasised the necessity of mutual agreement and both spouses’ willingness to end the marriage amicably. The court emphasised that such a conversion is acceptable to enable a smoother and less contentious separation, consistent with the spirit of the 1976 amendment.

Other important provisions related to divorce under the Act

Section 14

Section 14 of HMA, 1955 deals with limitations for filing for a divorce. This Section limits the number of times one can file for divorce stressing the need to preserve marriages. It provides that a party cannot file a petition for divorce without having been married for a period of not less than one year. The purpose of this provision is to allow the couple adequate opportunity to attempt to reconcile and solve their marital problems before deciding to dissolve the marriage permanently. The reason behind this condition is to protect the institution of marriage and give couples the impetus to seek all possible ways of solving marital problems. 

Section 14 deals with the prevention of improper use of divorce petitions by people who may want to dissolve their marriages hastily. The rationale for fixing a minimum period of marital duration before filing for divorce mainly centres on the need to ensure stability in marriage and discourage people from filing for divorce on trivial or hasty grounds. This Section highlights that the Act has a more extended goal of safeguarding the institution of marriage and promoting family stability by making it clear that divorce cannot be sought casually but as the last resort when marriage has proven beyond fixing.

Two exceptions to this rule are where the proposed marriage can reasonably be regarded as an exceptional hardship and the marriage has reached a point where it cannot be salvaged. This approach represents the tone of the Act that seeks to uphold the sanctity of marriage while at the same time recognizing legal ways through which the union can be dissolved upon meeting certain conditions. 

Section 15

Under the HMA, 1955, Section 15 deals with circumstances under which the parties whose marriage has been dissolved can get remarried. This Section states that where a marriage has been dissolved legally through a decree of divorce and there is no right of appeal against the decree or where there is a right of appeal but the time for appeal has elapsed without filing an appeal or if an appeal has been filed and has been dismissed, then either party can marry another person. 

It makes sure that a person who has been divorced in any marriage cannot be confined in the legal boundaries and he/she is free to remarry. In so doing, it ensures that the dissolution of the first marriage is complete and that no subsequent legal proceedings can interfere with the status of the parties concerned. This clarity also assists in the recognition of the legal rights of the new spouse and any children from the new marriage. 

In other words, Section 15 serves as an enabler to divorced people of re-marriage in the stipulated legal conditions that effectively and conclusively discharge any responsibilities of the previous union before entering into a new union. This provision upholds the principle of finality of divorce while respecting the rights of the involved individuals to remarry and start anew.

Legitimacy of children born out of void and voidable marriages

Section 16 of the HMA, 1955 deals with the question of the legitimacy of children born out of void or voidable marriage. It provides that children born of a marriage that is declared void or voidable under the Act are still legitimate children and are protected. In particular, Section 16(1) states that it does not matter whether a marriage is void or voidable, the children of such marriages are legitimate if the marriage was conducted in good faith. This provision is very important because it protects the status of children and their rights and ensures that they do not suffer due to the annulment of a marriage of their parents. 

Section 16(2) confirms this by saying that even if the marriage was annulled, the children born out of it are still legitimate. It also makes certain that children born of such a marriage will be considered to be legitimate and have the same status as children born of a valid marriage even if the marriage was later declared to be invalid. The Section reinforces the idea that children’s welfare should not be made to suffer because of the legal status of the parent’s marriage and calls for children’s right to inheritance and social recognition. 

Altogether, Section 16 is comprehensible as the manifestation of the compassionate approach to family law, which aims at preventing children from void or voidable marriages from becoming outcasts or deprived of their rights equal to the children with parents who are married validly.

In Revanasiddappa vs. 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 HMA 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.

Bigamy under HMA, 1955

According to the HMA, 1955 bigamy means entering into a second marriage while the first marriage is still existing and the spouse is alive. Section 5(i) requires that the parties do not have any living spouse at the time of marriage. This condition makes sure that any marriage entered under the Act will be of one man to one woman and such a man or woman cannot be in another marriage simultaneously. 

The reason for having such stringent provisions is to maintain the sanctity and institution of marriage among Hindus. Bigamy is not only a violation of marital trust but also a criminal act that erodes the stability of society. By making the law very rigorous it aims at preventing people from practising polygamy which is deemed as having many wives or husbands at the same time. 

Hence, the HMA is void of bigamy following the monotheistic principle of Indian culture. The legal consequences are very severe for violators and include imprisonment and fines, according to the Indian Penal Code. This legal framework strengthens the adherence to one spouse, keeping marriage moral and socially acceptable.

Punishment for bigamy

The penalty is stipulated under Section 17 of the HMA, which deals with the penal Sections 494 and 495 of the IPC. These Sections address the consequences of bigamy:

Section 494 IPC

This Section provides that any person who marries another person during the lifetime of his or her spouse shall be subjected to imprisonment of up to seven years and shall also be liable to a fine. The second marriage must take place while the first marriage is still in existence and has not been annulled, the accused must have knowledge that their spouse is still alive. 

Section 495 IPC 

This Section applies where the second marriage is entered into with intent to conceal the existence of the first marriage. The punishment is more severe, with imprisonment of up to ten years with concurrent liability to a fine. This Section gives a description of how when there is deception, the crime is considered more serious. 

Maintenance under Hindu Marriage Act, 1955

The HMA, 1955 also shows that the topic of spousal maintenance is very complex indeed. Often some women are accused of trying to swindle money out of their husbands by asking for alimony. As stipulated in Section 24 of the HMA of 1955 either party can seek inter alia maintenance pendente lite, that is support during litigation. Furthermore, Section 25 of the Act highlights the conditions under which permanent alimony can be granted. The amount of money that a husband is legally required to give his wife under some circumstances is known as maintenance. 

Maintenance may be required to be paid during the subsistence of the marriage but also during a divorce. The first condition of the maintenance is to determine whether the party receiving the maintenance cannot provide for him or herself. Unlike some of the Indian matrimonial laws, none of these acts give the amount to be paid as maintenance or the expenses to be incurred for this purpose except the Divorce Act, 1869.

Section 24 of the HMA, 1955 

Section 24 of the HMA, 1955 pertains to maintenance pendente lite and expenses of proceedings. If either spouse cannot maintain himself or herself during the pendency of the case they may be granted maintenance pendente lite and costs under Section 24 of the HMA of 1955. 

Section 24 empowers the court to direct any of the spouses who are unable to pay for their own expenses to contribute towards the cost of the proceedings and also interim maintenance. It can be relied upon in any Act procedure, including one aiming to get a decree of nullity referred to in Section 11 of the HMA, 1955. 

Other expenses relevant to the proceeding include the cost of the attorney and other monies for postage, clerical work, and travel expenses. Before making an order under Section 24, the court shall regard the financial means of both parties. Regardless of whether such a spouse features as the primary applicant in the main proceeding, this rule remains relevant. The only criterion that has to be considered before determining the maintenance pendente lite is whether the claimant is capable of maintaining himself or not.

As was observed in the case of Chitra Lekha vs. 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 HMA, 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 HMA, 1955

Whenever a decree of restitution of conjugal rights, judicial separation, divorce or annulment of marriage is passed under the Act, 1955, if the parties are unable to support themselves, they may be awarded maintenance and permanent alimony under Section 25 of the HMA, 1955. 

The provisions under Sections 9 to 13 of the HMA, 1955 contemplate that before a person could be entitled to alimony and maintenance under Section 25, then the necessary court order must have been issued. The Supreme Court of India in Chand Dhawan vs. Jawaharlal Dhawan (1993) held that the words “making any decree” mean that an order for perpetual alimony can be passed only when the judgement is passed under the Act wherever any other substantive relief is given and not when the main petition is dismissed or withdrawn. The term “decree” refers to a ruling made under Sections 9 to 13 of the Act that affects the marital status of the parties. 

It must be noted that the relief of alimony and maintenance cannot be granted under Section 25 if the relief under any of the sections hereinabove mentioned has been rejected. If the main proceedings are a failure and a spouse fails to get any relief under Section 25 then the spouse can claim maintenance under Section 18 of Hindu Adoption and Maintenance Act. 

As mentioned under Section 25(2) of the Act, the court may vary or rescind any order for permanent alimony where it is seen that there has been a change in the circumstances of the parties. However, a gross-sum payment order is a simple payment and therefore cannot be amended or altered in any way. 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.

Other important provisions

Jurisdiction of divorce petition

These include the provisions of Section 19 of the HMA, 1955 which highlights the places where a petition for divorce can be presented. Section 19 of the act aims at flexibility and convenience by providing various jurisdictions over the petition of divorce. This provision addresses the issues that are considered in the matrimonial cases and strives to achieve a rational and efficient approach to legal proceedings as much as possible for both parties.

A husband or wife can initiate the petition for divorce in the district court within the local jurisdiction where the marriage was consummated, as the court must have a nexus to the marriage. This provision assists in the arrangements for witnesses and evidence that may be required to support the allegations in the petition. 

Moreover, the petition may be presented to the district court in which the respondent resides at the time of the petition. This helps so that the respondent is not strained and has to attend court proceedings, thus maintaining fairness and justice. This provision is especially important if the respondent is not living within the jurisdiction of the court where the marriage was celebrated so that the case can proceed smoothly. 

In circumstances where the respondent has moved away from the matrimonial home and currently resides beyond the territorial jurisdiction of the court in which the marriage was celebrated or where the petitioner resides, the petition can also be presented in the district court of the area where the petitioner is living when presenting the petition. This is especially important in cases where one spouse has been abandoned or decided to live in different residences because of marital conflict. 

Additionally, the petition may be filed in the district court where the two last resided if both of them are in agreement. This ensures that whichever court has primary jurisdiction over the aspects of life the couple most significantly shared will hear the case. Where the respondent is living outside India, the petition may be presented in the district court of the place where the petitioner resides. 

In-camera proceedings

Section 22 discusses in-camera proceedings which are basically hearings that are conducted in court but are not open to the public and the press. The HMA, 1955 allows in-camera proceedings in matrimonial cases to protect the privacy and dignity of the parties involved. This guarantees that issues of cruelties, adultery or any other sensitive issues are handled behind closed doors to avoid public embarrassment. In-camera proceedings are meant to enable the parties to express themselves in a safe environment and sometimes this can result in better justice for the parties.

Custody of children

As envisaged under Section 26 of the HMA, 1955, the court is empowered to pass orders relating to the minor children such as their custody, maintenance, and education. The first determinant is the best interest and welfare of the child. In this case, the court may award custody to either of the parents or to a third party as the circumstances warrant. When a child reaches an acceptable age to express a wish, the factors that determine the custody include the child’s age, their level of affection towards their parents, and the parents’ ability to fulfil their requirements. The court can also grant orders for visitation or access and temporary physical custody pending the hearing of the case.

Disposal of property

Section 27 of the HMA of 1955 covers the occasion when property, which may be in joint ownership of both the husband and the wife, is presented at or about the time of marriage. This comprises items like jewellery, gifts and other personal properties that were used in the course of the marriage and are jointly owned. The court has the jurisdiction to make such orders in relation to the disposal and division of such property to the benefit of the parties.

Stridhan means that the property which a woman acquires in her life at any period of her life, but mostly during her marriage, is owned by her only. This includes gifts, jewellery and other forms of wealth that need to be protected for her by her parents, relatives and even her husband. Stridhan still belongs to the woman and she has control over it. During a divorce, the woman can keep her stridhan and the husband has no rights over it. To protect the financial independence and the rights of the woman, the court ensures that the stridhan is returned to her.

Appeals 

Section 28 of the HMA, 1955 details the grounds and procedures through which appeals can be filed against the judgments of the courts. Any party that feels dissatisfied with the decision of the district court has the legal option of appealing the decision in the High Court. The appeal must be filed within a particular timeframe, which is thirty days from the date of the decree or order. 

The appellate process entails a reconsideration of the judgement of the lower court with the High Court with an analysis of the grounds of the appeal as well as the adduced evidence. The appellate court has the power to affirm, reverse or remand the decision of the trial court in light of such findings. This makes it possible for there to be added judicial review to help correct or punish any irregularities or unfairness that may have been perpetrated at the first trial. 

Also, the Act permits any person aggrieved by an order under the Act to appeal to the Supreme Court of India on any significant questions of law. It also guarantees the availability of the ultimate appellate court in the country dealing with significant legal matters in matrimonial disputes hence enhancing the provision of justice and equity.

Customary divorce

Section 29(2) of the HMA of 1955 deals with the issue of customary divorce among Hindus. Here, this provision recognizes that, besides the formal law and the Act, there are those customary law divorce practices among certain communities where they may not strictly follow the legal processes of the Act but are nevertheless legal within their custom law domain. 

The Section enables the recognition of divorce that is granted under the special customary law of certain Hindu societies. This means that if a divorce is done in accordance with the culture of any given community and such culture is approved by the said community, the divorce is legal under this provision. It comes with the requisite condition that no such custom is against the provision of the Act, meaning that customary practices have to be in tune with the general legal framework provided by the HMA.

Live-in-relationship and Hindu Marriage Act, 1955

The current issues of India’s recent generation associated with Hindu marriages include live-in relationships. In cultures where this form of cohabitation is acceptable, a live-in relationship is seen as a liability-free way of living because it sparks controversy over the institution of marriage. However, the institutional and legal requirements to solve this problem are also inadequate. There is no reform to the Hindu marriage laws of 1955 for this system. 

It is important to recognize the Agni and the seven-step ceremony as two major components of traditional Hindu weddings in India as described in the HMA of 1955. The sentiment outlined here sums up the essence of the wife in the marriage according to the Brahma culture. The groom concludes by saying ‘vivaah’ to the bride and then makes seven intentions for the rest of their lives, saying after each, “as you are with me, my thoughts and actions; many children blessed with longevity.” 

The world today still has the perception of India as a country where marriage is still considered sacred in both theological and pragmatic sense. But with the change of time, the traditional concept of marriage has also changed gradually, and we are gradually moving from forced marriage to living together to same-sex marriage. Even though there has been a change and legalisation of some gay or live-in relationships, these types of relationships are still considered to be immoral in our culture. The partners in such types of relationships often face problems as there is no law in India which deals with live-in relationships. Last but not least, the judiciary was considered as the ultimate recourse to address these issues.

A live-in relationship is one where the two individuals are cohabiting in a manner that closely resembles marriage without actually being legally married and has been socially accepted in India over the years in the past century. Even though these relationships are not recognized by the HMA, 1955 or other traditional personal laws of India, they have been given legal recognition through various case laws. 

The case of Indra Sarma vs. V. K. V. Sarma (2013) is a very important judgement that defines the legal position and status of women in live-in relationships in India. This reinforces the court’s attempt to harmonise conservative values with today’s relationship dynamics, and give women in such a relationship institutional re-course and protection, as well as establish the parameters of a qualifying live-in relationship.  The Court also affirmed that women in live-in relationships are protected under the Protection of Women from Domestic Violence Act, 2005. This was a significant step towards the recognition of women in non-marital relationships who can now approach the courts for maintenance as well as protection orders for abuse. The judgement also highlighted the shift in social structure in India and how the law needs to respond to the new trends in relations. It gave a progressive perspective on embracing other forms of family formations other than the traditional nuclear family. In the decision, the Court was adamant that even though live-in relationships are not equivalent to marriage, they deserve legal protection. The judgement emphasised the legal necessity to differentiate between strategic business partnerships and brief associations when it comes to the abuse of provisions. 

Landmark judgements surrounding HMA, 1955

Courts across India have time and again interpreted the provisions of the HMA, 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 vs. Union of India (2006)

In the matter of Lily Thomas vs. Union of India (2006), a question regarding the status of the first marriage was raised through a Supreme Court petition where the non-Muslim converted to the ‘Muslim’ faith, albeit without changing their belief or divorcing the first wife. It was decided that unless a divorce is obtained, a marriage of a couple could not be annulled under the Hindu law for the reason of conversion.

Issues 

• If a 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?
• Is the Respondent subject to bigamy prosecution under Section 494 of the IPC?
• Whether having a Uniform Civil Code would be a good idea?

Judgement 

Any marriage that the husband enters into during the subsistence of that marriage regardless of his conversion to another religion would be a crime that can be prosecuted under Section 17 of the HMA of 1955 read with Section 494 of the IPC since bigamy is unlawful and has been turned 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.

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 HMA, 1955. The case of Robasa Khanum vs. 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 good conscience.

Although uniform legislation is highly preferred, doing it all can sometimes harm the integrity of the nation. In a democracy under the rule of law, it should lead to progressive change and order in the long run. Because of this, it would be unreasonable and unfair to expect that all laws could be made to be the same at one instance. However, the legal system must be able to correct a mistake or a flaw that may emerge in the course of its operation. As for the Uniform Civil Code, Justice R. M. Sahai, the other honourable judge on the Bench suggested certain measures which the government should take to spare religion from misusing by such people who were found to be polygamists though claiming that they had converted.

Joydeep Majumdar vs. Bharti Jaiswal Majumdar (2021) 

In the recent case of Joydeep Majumdar vs. Bharti Jaiswal (2021), the Supreme Court observed that the wife had started levelling false allegations against the husband which not only harmed his reputation but could affect his job as well which would be a clear example of mental cruelty. The respondent was a professor in a government college and a PhD holder while the appellant was an army officer and an M. Tech. They got married on September 27, 2006, and had been living together only for a short span in Visakhapatnam and Ludhiana. However, ever since the marriage started, the parties were often involved in disagreements, and from September 15, 2007, the couple decided to live separately. 

During the divorce, the appellant argued that the respondent had made several false allegations against him that negatively impacted his career, tarnished his image, and amounted to mental cruelty. The respondent, however, stated that her husband had left her without sufficient cause in her petition for the annulment of the conjugal rights and, therefore, sought advice from the appellant to restore married life. 

The Supreme Court has also indicated that for any marriage that is to be considered for dissolution at the instance of the spouse who alleges mental cruelty, the consequence of mental cruelty must be such that it becomes impossible to continue with the marriage relationship. Thus it is unreasonable to expect the victim of a wrong to support the behaviour in question while continuing to be married to the perpetrator. 

This ruling was also contested and the Court stated that there was reasonable evidence that warrants a reversal of the High Court decision and the order given by the Family Court because the respondent had been cruel to the appellant. Consequently, the respondent’s prayer for restitution of conjugal rights was dismissed and the appellant was held to be entitled to a decree of divorce. 

Amarjeet Singh vs. Union of India (2022)

During the divorce proceedings, the appellant stated that the respondent had provided numerous false statements against him that negatively impacted his career, tarnished his reputation, and subjected him to mental cruelty. The respondent for his part argued that he had left her without any reasonable cause in a case involving the application of conjugal rights and hence prayed to the appellant on how she could go back to a married life. 

As per the averments made in the petition, there are various provisions in legal statutes like Section 125 of the Code of Criminal Procedure 1973, the Protection of Women from Domestic Violence Act, the HMA, etc. where the payment of maintenance may be allowed. This resulted in a complex situation that adversely affected the parties required to make maintenance payments. 

The writ petition stipulated that all accommodation be provided under one broad category. In the case of Rajnesh vs. Neha  (2021), CJI Lalit pointed out that the issue had been settled. The aforementioned judgement provides suggestions to address the problem of conflict of jurisdiction, prevent inconsistency in the decision in different proceedings and maintain coherence in the functioning of the family courts and the district courts as well as the magistrates. The rules state the following:

1. 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;
2. Disclosure of the prior proceeding and any orders issued therein in the future process by the applicant is mandated;
3. Any modifications or variations to the orders issued in the prior process(s) must be made in the same proceeding.

General recommendations for Hindu Marriage Act, 1955

Ideally, the ages of marriage should be the same for both sexes because in order to become a graduate in any stream such as medicine, law or engineering, one has to do so before attaining 21 years of age in India. Why does gender discrimination exist when it comes to marriage, yet at eighteen, a young person can choose their legislator? Once people attain the age of 18 in India they are considered major and capable of getting a licence, an Aadhar card and a PAN card regardless of gender. But why does the marriage age differ? A shift in the marriage age alters the outlook on the girl child in the society as soon as they are born while a girl child in a household experiences discrimination from birth. 

Marriage is widely considered the most important institution in human society. It occurs frequently. It has been the foundation of human civilization. Marriage entails the creation of new forms of social relations and reciprocal rights between the married couple. Once the children are born, they are given rights and placed in some certain status. Each community has its own known procedures for developing such relations and rights. It also refers to the recognition of a new status with new entitlements and duties which are recognized by others. Marriage is a socially accepted form of relationship that is universally acknowledged in all societies. Marriage is one of the deepest and most complex cooperation between two people. 

The conventional concept of Hindu marriage in terms of legal and moral implications is based on compassionate religious beliefs and is based on the principles of psychobiology. But in the recent past, self-assertiveness and an individualistic outlook have created tension and friction in a marriage and have given rise to a variety of conflicts. 

In contemporary society, one can devise social and legal frameworks to safeguard this important institution of marriage. Both proactive and reactive measures should be taken. At the heart of the strategy, there is nothing more effective than educating the new generation from an early age. Morality should be taught in high school as well as in college curriculum. 

In order to preserve this sacredness of Hindu marriage for the benefit of couples, families, children and society in general, it is imperative that public education intervenes. The media especially the print and the electronic media should be encouraged to conform to cultural etiquette. An independent educational programme for marital counsellors which is not rooted in western psychology and is social, psychological, and legal in structure based on Hindu culture should be formulated at the university level. Instead of horoscopes, the system of marital counsellors should be spread across society.

Conclusion 

The HMA, 1955 is a legislation that re-enacts and consolidates the  laws relating to Hindu marriages. So, as per the given Act, not all Hindus can marry. Section 5 of the Act sets out the elements constituting Hindu marriage and Section 13 provides for several matrimonial remedies such as restoration of conjugal rights, declaration of marriage as null and void, judicial separation, and divorce. However, there are certain restrictions concerning marriage in the case of mental disorders.

Today, marriage is for the most part, a legal relationship and it is no longer as sacred an institution as it used to be. Furthermore, it is clear that the legislators realised that if social standards and perceptions, such as child marriage, persisted, the statutory instrument would be rendered completely meaningless. Hence, even though child marriages are prohibited, they are not considered to be legally null and void until the court is presented with such a petition. There is a provision for registration in order to make it easier to provide proof for Hindu weddings. However, the custom of non-registration of Hindu marriages still prevails in India even after almost 70 years of the enactment of the Act. 

Frequently Asked Questions (FAQs)

When was the Hindu Marriage Act of 1955 approved?

The President of India assented to the Hindu Marriage Act, 1955 on May 18, 1955.

What is the objective of the Hindu Marriage Act of 1955?

The Hindu Marriage Act of 1955 aims to codify and modify Hindu marriage rules, creating a consistent legal foundation for marriage among Hindus and allied religious communities. It governs topics like marriage, divorce, restitution of conjugal rights, judicial separation, and other marital difficulties.

Can a Hindu marriage be registered under the Act?

Yes, a Hindu marriage can be registered under the Hindu Marriage Act, 1955. The Act provides for the voluntary registration of Hindu marriages.

References

• https://www.researchgate.net/publication/272300590_Void_and_Voidable_Marriage_under_Hindu_Marriage_Act_1955_and_Divorce.
• https://acadpubl.eu/hub/2018-120-5/3/249.pdf.
• https://www.ijhssi.org/papers/vol8(2)/Ser%20-%201/H0802013740.pdf.

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