Marriage has been considered as the greatest and the most important of all the social institutions. For the Hindus, it is considered as a means to lay the foundation for building up the family which is the basic unit of any society. Since marriage holds such a great significance in the society, it is necessary for the legislature to come up with the proper legislation which deals with the governance of marriages in the country. Therefore, the Hindu Marriage Act, 1955 was enacted to amend and codify the laws relating to Hindu marriages. It has reformed Hindu law of marriage. It has not only codified the Hindu marriage law but also introduced certain important changes in many respects. The Hindu Marriage Act, 1955 came into force on 18th May 1955 with the objective to secure and protect the right to marriage of the Hindu men and women. In India the right to marriage has not been explicitly provided anywhere. Although its essence can be found in Article 21 of Indian Constitution.
The Hindu Marriage Act, 1955 regulates the institution of marriage of Hindus in Indian society. It provides meaning to marriage, cohabiting rights of both the bride and groom and a safety to their family and children.
KEY FEATURES OF THE HINDU MARRIAGE ACT, 1955
1. Applicability of the act and who all are Hindus according to HMA, 1955: This law extends to the whole of India except the state of Jammu and Kashmir. It applies to all forms of Hinduism. Under section 2(1) of the act any person would be considered as ‘Hindu’ for the purpose of law, if he is:
- A person who is Hindu by religion in any of its forms and developments;
- A person professing the Hindu, Buddhist, Jain or Sikh religion.
- A person who is not a Christian, Muslim, Jew or Parsi by religion will be governed by Hindu Law unless it is proved that such person will not be governed by Hindu Law.
2. Essential Conditions for valid marriage: section 5 of HMA, 1955 specifies certain conditions for the valid Hindu marriage, they are as follows:-
- Monogamy – monogamy means that a Hindu is permitted to have only one spouse at a time. It is clearly stated in section 5 (i) of the act that neither party has a spouse living at the time of the marriage and in case one contravene such conditions then it will render that marriage void.
- Soundness of spouses – section 5 (ii) of the act provides that the parties to the marriage should be of sound mind and are not suffering from any kind of mental disorder so as to be unsuitable for giving a valid consent.
- Minimum age for marriage – section 5 (iii) fixed the minimum age for the men and women. The women and men should complete the age of 18 years and 21 years.
- Beyond prohibited degree – section 5 (iv) provides that the persons who are within the prohibited degree of relationship cannot marry with each other. Unless the custom or the usage of parties permits.
- Beyond sapinda relationship – section 5 (v) provides that the parties to the marriage must not be sapindas of each other unless their customs or usages permits the marriage.
- Ceremonies and registration of marriage: section 7 and 8 of the HMA, 1955 deals with the ceremonies and the registration of the Hindu marriage. Section 7 laid down that the Hindu marriage can be solemnized by following the rites and ceremonies of either party to the marriage. But this section nowhere makes any ceremony or rites compulsory to perform to determine the validity of the marriage. In the case of Chandrabhagbai Ganpati v S.N. Kanwar It was held that the marriage was legal notwithstanding the fact that the marriage ceremonies did not include saptapadi.
Section 8 lays down the provisions regarding registration of marriage but it did not make registration mandatory. Non registration of marriage will not make the marriage invalid. In the case of Kamal Kant Panduranga v. Susheeela Panduranga Chibde, Bombay High Court held that any provisions in the rules invalidating a marriage because of omission to enter the same in the marriage register would be impugned to section 8 (5) of the act.
4. Matrimonial Remedies: section 9 to 13 of the Hindu Marriage Act, 1955 discusses the matrimonial remedies available to both the parties to the marriage. They are as follows:
A. Restitution of Conjugal rights (section 9) – the decree of restitution of conjugal right issued under order XXI rule 32 of Code of Civil Procedure. It is the right available to both the parties to the marriage when one spouse leaves the conjugal life or the marital society of another without any reasonable excuse.
- The other spouse has to be withdrawn from the society of another spouse.
- There should be no reasonable excuse of such withdrawal.
- The court satisfaction as to the truth of the statement made in the petition.
- No legal grounds exist for refusing the petition.
B. Judicial Separation (section 10) – the decree of judicial separation permits the parties to live apart from each other for some period of time but it does not put an end to the marriage, the legal relationship between the couple exists and they cannot remarry. The purpose is to enable the spouses to reconsider their relationship and try to resolve the issues in their marriage. The grounds to apply for judicial separation are the same as for divorce (section 13).
In the case of Narasimha Reddy v Basamma, it was held that when parties are not judicially separate neither spouse can contract another marriage. A marriage after a separation decree and before divorce was held to amount bigamy.
C. Nullity of Marriage [Void and Voidable Marriages]:
Void Marriage –Void marriages have no legal status. It is void ab initio and may be declared nullity at the instance of either party. Section 11 of HMA, 1955 specifies when a marriage will be declared as void. If a marriage is solemnized in contravention of following conditions than it is void:-
- Either party has a spouse living at the time of the marriage.
- Parties are within the degrees of prohibited relationship.
- Parties are sapindas to each other.
Voidable Marriages – Section 12 of HMA, 1955 defines when a marriage is considered as voidable marriage. When:
- If one of the spouses is impotent.
- If one of the spouses is mentally unfit.
- If consent was not free. It was taken due to fraud or misrepresentation.
- If the woman is pregnant already at the time of marriage with someone else’s child.
In the case of Mahendra v Sushila BaiSushila Bai delivered a child within 171 days of her marriage. Court held that this was not with the relationship of Mahendra but she had a relationship before the marriage itself. In this case this marriage is considered as voidable marriage.
D. Divorce (section 13): Divorce is the permanent dissolution of marriage. Section 13 –B gives provision regarding divorce by mutual consent of both the spouses. Under section 13(1) of HMA, 1955, there are grounds on which both the spouses can seek divorce and in addition to the previous grounds wife has additional grounds on which she can file a divorce petition which are specified under section 13(2). So the grounds are as follows:
- Adultery [section 13 (1) (i)] – adultery is having voluntary sexual intercourse between a married person with any person other than his or her wife or husband. In the case of Kamalesh Kumari v Balbir Singh Bedi, husband and wife have not met for 11 months and 20 days and yet wife got pregnant. So there was circumstantial proof that there is adultery.
- Cruelty [section 13 (ia)] – In the case of Russel v Russel, 1897, Court has defined what is cruelty, “Conduct of such a character as to have caused danger to life, limb or health bodily or mental or as to give rise to a reasonable apprehension of such danger”.
- Desertion [section 13 (ib)] – In the case of Bipin Chandra Jai Singh Bai Shah v Prabhavati, the Court gives essential conditions for desertion –
- Intention on part of the spouse who is leaving to live separately.
- Intention to bring cohabitation to an end permanently.
- Without reasonable cause.
- Without consent or wish of the deserted spouse.
- Conversion [section 13 (1) (ii)] – it means any person who ceases to be Hindu by conversion to another religion. In the case of Sarla Mudgal v Union of India, in this case there was a Hindu married man. Still he married again by converting to Islam. The court held the second marriage is void and punishable for bigamy.
- Insanity [section 13 (1) (iii)] – if either spouse is suffering from unsoundness of mind then it would be a valid ground for divorce.
- Leprosy is now removed as a ground for divorce by personal law (amendment) act, 2019.
- Venereal Disease [section 13 (1) (v)] – a disease that can be transmitted through sexual contact is venereal disease. If either party to the marriage is suffering from venereal then this can be considered as a ground for divorce.
- Renounced the world [section 13 (1) (vi)] – if either party has renounced the world and entered into any religious order in that case the aggrieved party can apply for divorce.
- Presumption of death [section 13 (1) (vii)] – when either party to the divorce has not been heard for seven consecutive years and the people who should know whether that party is alive or not are not aware about the same. In that case the party left behind can apply divorce on this ground.
- Non resumption of cohabitation after the decree of judicial separation and decree of restitution of conjugal rights is passed [ section 13 (1-A) (i) and (ii)] – if the parties do not intend to resume their marital life despite court decree then it is desirable to treat that marriage as beyond repair. So the decree of divorce is passed on these grounds also.
Additional grounds available to wife under section 13 (2) of HMA, 1955 are as follows:
- Bigamy – Bigamy is the offence of marrying again while already being married. So Hindu wife can apply for divorce if her husband is guilty of bigamy.
- Sexual offences – if the husband has, since the solemnization of the marriage been guilty of rape, sodomy (anal sex) and bestiality (unnatural sex) then wife can apply for divorce.
- Non resumption of marriage after the decree of maintenance – the third important ground available for a wife is no resumption of marriage after a decree of maintenance is given for one year and after one year of such separation they are not cohabiting. In that case the wife can apply for divorce. But it is necessary that there is no cohabitation between husband and wife. In the case of B. Nausea v B Rakaia, wife took a decree for separation. However later lived with her husband. Courts held that such living brings end to maintenance.
- Repudiation of marriage – section 13 (2) (iv) of the Hindu Marriage Act, 1955 discusses repudiation of marriage on the option of puberty of the girl. She can apply for divorce between the ages of 15 to 18 and once she attains the age of 18 years she cannot apply for divorce.
The Hindu Marriage Act, 1955 has come up with so many vital and diverse changes in the Hindu marriage and divorce that it changes the whole concept of it. Now the Hindu marriage is not only considered as a sacred one but now it also has contains some of the features of contract for example- the party to the marriage has to be major, the consent of both of them is essential. It has reformed the Hindu law of marriage to the greater extent.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at firstname.lastname@example.org
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.
We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge