Hindu Marriage Act, 1955: All you need to know!

India is a diverse country. In India, family law does not vary from state to state. Every community is directed by one single system of law. Even if the community members are settled, domiciled or resided in any part of the country, they will be governed by a single law system. But there may be a variation in the law related to castes, sub-castes or sub-sects. It is based on the customs which create variations among groups.

People belonging to different religions and castes live together here. Marriages in India get solemnized according to traditions and cultures. In this article, we will discuss the nature of Hindu marriages under Indian law.

In Hindu custom, marriage refers to Kanyadan that is prevailing from the Vedic age. The Father of the bride gets her daughter (Kanya) married to the bridegroom according to their tradition. The ancient tradition of gifting daughters through marriages is still practised in our country.

Hindu Law

Hindu law is a branch of law that originates from Smritis described in Sanskrit commentaries and digests. The Smriti texts do not make any difference between rules of law and rules of religion. These rules of religion were dealt together with the rules of law.

Hindu law is applied to Hindus. But it is not the fundamental Hindu law that applies to Hindus in India. It is an altered and modified law that has altered a substantial portion. Original Hindu law does not apply to all the elements. It is constrained to revisions and modifications. Original Hindu law has been meddled with by the altering demands and needs of society.

Developments from Original Hindu Law to Modern Hindu Law

  • The passing of the Hindu Marriage Act, 1955;
  • Adoption among Hindus is governed by the Hindu Adoption and Maintenance Act, 1956;
  • For matters of succession there is the Hindu Succession Act, 1956;
  • Minors are dealt with by the Hindu Minority and Guardianship Act, 1956 etc.

The Hindu Marriage Act was enacted to guard the rights of marriage between Hindu bride and groom bound together under the sacred bond of marriage. The law has not mentioned the kind of ceremony required as there are several ways in which a man and woman can get married under the Hindu religion custom.

The Act was drifted due to fraud case humiliation faced by people in the name of marriage. The Act binds any person who is Hindu, Jain, Sikh and Buddhist. It does not affect Muslims, Christian, Parsi, Jew and is governed by other laws. This law binds any person who is Hindu by Birth or Hindu by Religion.

Who is a Hindu?

Section 2 of The Hindu Marriage Act defines the meaning of Hindu.

The section states that the Act applies to any person who is a Hindu by religion or has converted his/her religion to any of its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. It applies to any person who is a Buddhist, Jaina or Sikh by religion. It also extends to any other person living outside this territory who is not a Muslim, Christian, Parsi or Jew by religion, and it is proved that such person is being governed by Hindu law.

According to the Act, stated persons are also known as Hindus.

  • Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion is a Hindu.
  • Any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged is a Hindu.
  • Any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion is a Hindu.

Conditions for a Hindu Marriage

According to section 5 of Hindu Marriage Act, a marriage shall be solemnized if the following conditions are fulfilled:

  • Neither party has a spouse living at the time of the marriage: According to the act, a person shall not have two living spouses at the same point in time. It is punishable under section 494 of IPC (Bigamy).
  • The bridegroom has completed the age of 21 and bride, the age of 18 at the time of marriage and neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind.
  • though capable of giving valid consent, has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children
  • has been subject to recurrent attacks of insanity
  • The parties are not sapindas of each other and not within the degrees of prohibited relationship unless the custom or usage permits a marriage between the two unless it is allowed by the custom.

Essential features of Section 5 of Hindu Marriage Act, 1955

  • Opposes Bigamy: The law opposes a man to have more than one wife at the same point in life. According to the Act, section 5 states that A person shall not have two living spouses at a time that amounting to Bigamy. It means that a person cannot marry another person without ending the first marriage (divorce). If he does the act, it becomes an illegal act. He will get punished under sections 494 and 495 of IPC.
  • Marriageable age: The law prescribes the age for getting married. Section 5 (iii) of the Hindu Marriage Act 1955 says that the bridegroom shall attain the age of 21 and the bride attains the age of 18 at the time of marriage. Marriage will not have legal status and void if it is not fulfilled.
  • Mental health or capacity: The marriage will be considered void if a person is suffering from unsoundness of mind at the time of marriage. It is also necessary for the person to give valid consent to marriage. Section 5(ii) a,b,c states the conditions of Hindu marriage associated with mental health and capacity.
  • Prohibited degree of relationship: According to Hindu law, when two persons offer Pinda to the same ancestor, they are Sapindas to each other. When two persons have a common ancestor, they are called Sapindas. The law prohibits marriage between people of sapinda relations.

Essential features of the Hindu Marriage Act, 1955

Section 7 of Hindu Marriage Act

Section 7 of the Hindu Law Bare Act states the ceremonies for a Hindu marriage. According to the Act, a Hindu marriage shall be solemnized according to customary rites and ceremonies of either party. The ceremonies include Saptapadi (taking seven steps by bride and bridegroom together jointly around the sacred fire) and marriage becomes complete and binding when they both take the seventh step together. According to the law, the marriage between two persons is valid if they get married according to the customary rights and ceremonies. The child born after marriage is legitimate. The father has to protect and bring up the children.

Section 8 of the Hindu Marriage Act: Registration of Marriages

Section 8 states that:

  • The state government expedites the provision as proof to Hindus to enter into a valid marriage in a directed manner.
  • The state legislature may look into the rules made in the section as soon as May.
  • Hindu marriage registrar has all the powers and reasonable time for the inspection. He gathers evidence and approves them after the payment of a prescribed fee.

Section 9 of the Hindu Marriage Act

Section 9 of Hindu Marriage Act provides for the restitution of conjugal rights. Conjugal rights mean rights originating from a marital bond. Restitution of conjugal rights means the right to stay mutually. The essence of section 9 is that a spouse gets the right to protect their marriage and save the sanctity of their marriage by cohabitation.

Essentials of Section 9

The essential requirements of section 9 under the Hindu Marriage Act:

  • There should be a marriage between two persons according to the law.
  • There must be a withdrawal of a spouse from the society of another spouse.
  • The withdrawal should be without any reasonable clause.
  • The aggrieved party may file for restitution of conjugal rights.
  • The court must be satisfied with the statement of the party.
  • Accordingly, the Court may grant a decree to the aggrieved party.
  • The couple may live together if the suit is successful.

Section 9: When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied with the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Divorce In India

In the ancient period, marriage was considered sacred and an insoluble union of two persons. According to Manu, the duty of a wife continues even after her death. According to the custom, she should never have a second husband. The provision of granting Divorce was established in The Hindu Marriage Act, 1955. According to the Act, divorce means dissolution of the marriage.

The provision of divorce in the Hindu marriage act is according to fault theory. The aggrieved party can approach the court for the dissolution of the marriage and seek remedy. According to section 13(2), only a wife can approach the court for a divorce.

Grounds of Divorce: HINDU MARRIAGE ACT DIVORCE PROVISIONS

Section 13 of Hindu Marriage Act provides the grounds for divorce. They are stated below.

Adultery

According to Hindu Marriage Act, Adultery is a serious ground for seeking a divorce. Adultery is the consensual and voluntary intercourse between a married person and another married or unmarried person of the opposite sex. The intercourse between the husband and second wife is also considered bigamy and liable for the offence of adultery.

In the case of Swapna Ghose v. Sadanand Ghose, the court granted divorce to the aggrieved party as her husband had committed an offence of adultery.

Cruelty

Cruelty includes both mental and physical cruelty. The injury caused by one spouse such as beating, using weapons to harm another person comes under the ambit of cruelty. Mental torture by a spouse is also cruelty. It is the dearth of kindness from one party that negatively affects the well-being of another person. But, it is difficult to determine mental cruelty. Mental cruelty by husband against wife includes:

  • demanding dowry
  • false accusation of adultery,
  • impotency,
  • extra-marital affairs of husband,
  • uncontrollable drinking and immoral life etc.

Desertion

The permanent abandonment of one spouse by another spouse is known as desertion. There must not be any reasonable justification and it must be without consent. When someone rejects or withdraws from the obligations of marriage, it becomes desertion.

Conversion

If any of the spouses, without the consent of another spouse converts into another religion from Hindu, then the spouse can approach the Court for the remedy of divorce. For example, X gets converted into another religion for marrying C. B, wife of X can approach the court seeking remedy for divorce as it was without her consent.

Insanity

A person who is incurable of unsoundness of mind is a valid ground for seeking a divorce. For example, if a person comes to know after the marriage that his/her spouse has mental disorders, she/he can seek the remedy of divorce.

Leprosy

Leprosy is a kind of disease that affects the skin. It is a valid ground for granting divorce by the court.

Venereal Disease

If a spouse is having a disease in a communicable form that spreads to his/her spouse, he/she can seek the remedy of divorce.

Renunciation

The spouse can approach the court to grant the divorce if his/her spouse has turned away from material life and decided to renounce the world.

Presumption of Death

If a person is presumed to have died or not known to others for more than seven years, the spouse can be granted divorce by the court. The burden of proof is on the part of the person who needs a divorce.

Divorce by Mutual Consent in Hindu Marriage Act

According to section 13(B), both parties to the marriage, on mutual consent, can approach the court to grant a divorce by filing a petition. According to section 14, they have to wait for one year after marriage to file the petition.

Remarriage

A divorced person can remarry according to the provisions under section 15 of the Act.

New rules for divorce in India

The Supreme Court in Akansha v. Anupam Mathur case stated that the six months period according to section 13(B) is not mandatory but discretionary. Adultery, a ground for divorce which was punishable earlier is not punishable now. The penalizing provision was struck down by the Supreme court of India. Triple Talaq amounting to divorce by a Muslim man cannot be a basis for divorce. The Supreme court held that Triple Talaq is unconstitutional. No-fault divorce legislation was given assent and became an act of the Parliament in 2020.

Native Marriage Act

Native Marriage Act, also known as The Indian Christian Marriage Act, 1872 is the law related to the solemnization of marriages of people in India professing the Christian religion.

Conditions for Valid Marriage

  • The parties to the marriage must be Christian as defined under section 3 of the Act. At least one of them must be a Christian.
  • The marriage must be solemnised by a person duly authorised to do so following the provisions of section 5 of the Act.
  • The State Governments of the area have been authorised to grant and revoke the licences, granted in favour of certain persons, for the solemnization of marriages under the Act.
  • According to the Act, the marriage must be performed in a particular form duly entered in the Marriage Register, maintained for this purpose.
  • The factum of marriage can be proved by producing the entries from this register. Other evidence can also be produced by the parties.

Indian Divorce Act 1869

The Indian Divorce Act 1869 is a codified Indian personal law that governs Christians. It affects the Christian community as a whole. The Act contains provisions setting powers of courts, grounds for ending of marriages, nullity decrees, custody issues, etc.

According to section 10 of the Act, The court may grant a divorce under any of the following grounds:

  • When one of the spouses commits adultery;
  • If a party desists to be a Christian;
  • A party being of unsound mind for two years;
  • A party has been suffering from leprosy or a venereal disease for two years;
  • A party wilfully refusing to complete the marriage;
  • When a party has deserted the spouse for two years or more;
  • A party handling the spouse with cruelty.

The parliament amended the act to add section 10A for filing a petition for divorce on mutual consent in the District Court.

Custody of Children (Child Custody)

The Divorce Act includes provisions governing custody of children in cases of dissolution or nullity of marriage. Section 41 of the Act permits courts to make interim orders concerning child custody. The court may award custody to any particular party even after passing a final decree of separation.

Conclusion

In India, every community has their own family law bare act. The Hindu Marriage Act governs the provisions related to Hindus. Meanwhile, Muslims and Christians have their own personal law that governs their procedures. The modern Hindu law has undergone many alterations by judicial interpretations and legislative modifications. The Hindu Marriage Act was enacted to safeguard the interests of people belonging to the ‘Hindu’. But, the codified and uncodified law does not apply to scheduled tribes as they are governed by their tribal customs.

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