India is a diverse country. In India, family law does not vary from state to state. A single system of the law directs every community. Even if the community members are settled, domiciled or resided in any part of the country, a single law system will govern them. 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.
In India, people belonging to different religions and castes live together. Marriages in India get solemnised according to traditions and cultures. In this article will discuss the nature of Hindu marriages under Indian law. Hindu marriages generally get solemnised as per the provisions of the Hindu marriage act 1955.
Prevailing from the Vedic age, in Hindu custom, marriage refers to Kanyadan. According to their tradition, the bride’s father gets her daughter (Kanya) married to the bridegroom. The ancient tradition of gifting daughters through marriages is still practised in our country.
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Hindu law is a branch of law originating from Smritis described in Sanskrit commentaries and digests. The Smriti texts do not differentiate between rules of law and rules of religion, and these rules of religion were dealt with the rules of law.
The Hindus follow Hindu law. But it is not the fundamental Hindu law that applies to Hindus in India and is an altered and modified law that has altered a substantial portion.
Original Hindu law does not apply to all the elements and is constrained to revisions and modifications. Original Hindu law has been meddled with society’s altering demands and needs.
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 got 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 fraud case and humiliation faced by people in the name of marriage drifted to the act. So, the act binds any person who is Hindu, Jain, Sikh, and Buddhist person. It does not affect Muslims, Christian, Parsis, Jew, as other laws govern them.
So, the Hindu Marriage act binds 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 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.
The act 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. It is proved that the Hindu Law governs such a person.
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 brought up as a member of the tribe, community, group, or family to which such parent belongs or belongs is a Hindu.
- Any person who converts or re-converts to the Hindu, Buddhist, Jaina or Sikh religion is a Hindu.
Conditions for a Hindu Marriage
Section 5 of the Hindu marriage act 1955 prescribes conditions for a Hindu marriage. It states:-
- A person shall not have two spouses living at the same time.
- The bridegroom must have completed the age of 21 and bride the age of 18 at the time of marriage, and neither party should be incapable of giving a valid consent to it in consequence of unsoundness of mind.
- If the parties are capable of giving valid consent, then it must not be suffering from such a kind or extent of mental disorder which is unfit for marriage and the procreation of children
- Neither party should be suffering from repetitive insanity attacks.
- The parties should not be sapindas of each other and not lie within the prohibited degrees of relationship unless their customs or usage allows them to enter such a marital relationship.
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, 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 illegal, and he will get punished under sections 494 and 495 of IPC.
- Marriageable age: The law prescribes the period 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 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 the Hindu Marriage Act
Section 7 of the Hindu Marriage Act states the ceremonies for a Hindu marriage.
According to the Act, a Hindu marriage shall get solemnised 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 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, and the father has to protect and bring up the children.
Section 9 of the Hindu Marriage Act
Section 9 of the Hindu Marriage Act provides for the restitution of conjugal rights. Conjugal rights mean rights originating from a marital bond, and 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, a wife’s duty 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 aggrieved party can approach the court to dissolve the marriage and seek remedy. In Hindu law, the grounds for divorce are provided under section 13 of the Hindu marriage act 1955.
Section 13(2) of the act provides the grounds for a wife approaching the court for a divorce.
Grounds of Divorce: Hindu Marriage Act Divorce provisions
Section 13 of the Hindu Marriage Act provides the grounds for divorce, and they are stated below.
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 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,
- extra-marital affairs of husband,
- uncontrollable drinking and immoral life etc.
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.
If any of the spouses, without the consent of another spouse, convert into another religion from Hindu, 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 a remedy for divorce without her consent.
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 is a kind of disease that affects the skin, and it is a valid ground for granting divorce by the court.
- Venereal Disease
If a spouse has a disease in a communicable form that spreads to his/her spouse, he/she can seek the remedy of divorce.
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 person who needs a divorce.
- Divorce by mutual consent in Hindu Marriage Act
According to section 13(B), on mutual consent, both parties to the marriage can approach the court to grant a divorce by filing a petition. According to section 14, they have to wait one year after marriage to file the petition.
According to the provisions under section 15 of the Act, a divorced person can remarry.
New rules for divorce in India
In the Akansha v. Anupam Mathur case, the Supreme Court 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 now not punishable.
The Supreme court of India struck down the penalising provision. 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 solemnisation of people’s marriages in India professing the Christian religion.
Condition for a valid marriage
- The parties to the marriage must be Christian as defined under section 3 of the Act, and at least one of them must be a Christian.
- The marriage must get 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 solemnisation of marriages under the Act.
- According to the Act, the marriage must get 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, and 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, affecting the Christian community as a whole. The Act contains provisions setting powers of courts, grounds for ending 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, and the court may award custody to any particular party even after passing a final separation decree.
The Hindu Marriage Act governs the provisions related to Hindus. Meanwhile, Muslims and Christians also have a law that governs their procedures. The modern Hindu law has undergone many alterations by judicial interpretations and legislative modifications.
The Hindu Marriage Act got enacted to safeguard people’s interests belonging to the ‘Hindu’. But, the codified and uncodified law does not apply to scheduled tribes as their tribal customs govern them.
Where are the conditions for a Hindu marriage mentioned?
The conditions for a Hindu marriage are mentioned under section 7 of the act.
Which section of the Hindu marriage act 1955 mentions the special provisions regarding the trial and disposal of petitions?
Is a document admissible as evidence under the Hindu marriage act 1955 if it is not duly stamped or registered?
yes, a document is admissible in the court as evidence even if it is not duly stamped or registered as per the provisions of section 21C of the act of 1955.
What is a maintenance pendente lite?
It is maintenance provided to the petitioner (i.e. children, wife, etc.) as financial support during the pendency of a suit.