Introduction
In India, the Family Laws comprises a broad set of rules regarding family matters which includes marriage, divorce, adoption, inheritance etc. These laws also provide certain legally enforceable rights and duties that arise when one gives legal validation to the status of interpersonal relationships. The importance of family laws is to preserve and strengthen the institutions of marriage and family, to ensure welfare of children in case of marital breakdown and to use law as a vehicle to bring about social change and empower women.
The Family Laws in India are divided into five broad sets which are- Hindu law that governs all Hindus (including) Buddhists, Jains and Sikhs; Muslim Personal laws for the Muslims (most of the Muslim laws are uncodified); Christian laws for the Christians; Parsi law for the Parsi’s. These laws have also been amended from time to time by parliamentary legislation, to meet up the needs of changing society. In the instant article, we shall discuss the Hindu Marriage Act, 1955, exhaustively.
Marriage among Hindus- Hindu Marriage Act, 1955
Marriage
According to Section 2 of Hindu Marriage Act, 1955, marriage amongst Hindus in any form to whom the Hindu Marriage Act, 1955, is applicable including Buddhists, Sikhs, Jains are Hindus and solemnization of marriage amongst them is called as the Hindu Marriage[i].
Solemnization of marriage among Hindus
Hindu marriage can be solemnized according to the customary rites and ceremonies of either the bride or the bridegroom. If such rites and ceremonies include saptapadi, the marriage becomes complete and binding when the seventh step is taken.
Conditions for a valid Hindu Marriage
- Religion- The bride as well as the bridegroom must be a Hindu;
- Status- Neither party should have a spouse living at the time of the marriage;
- Mental capacity- They must be of sound mind;
- Age- The bridegroom must have completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
- Prohibited degrees of relationship (*)- The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
- Sapindas (**)- The parties are not sapindas of each other (close relation to each other such as cousins), unless the custom or usage governing each of them permits a marriage between the two.
(*) Degrees of prohibited relationship
These prohibitions are based on:
- Consanguinity- Blood relationship which includes half blood
- Affinity- Relationship by marriage
Sec. 3(g) of the Hindu Marriage Act, 1955, deals with ‘degrees of prohibited relationship’-
Two persons are said to be within the degrees of prohibited relationship-
- If one is a lineal ascendant of the other; or
- If one was the wife or husband of a lineal ascendant or descendant of the other; or
- If one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or
- If the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;
The parties are not sapindas of each other, unless the customs or usage governing each of them permits of a marriage between the two.
It also includes-
- Relationship by half or uterine blood and it also includes full blood;
- Illegitimate blood relationship and also includes legitimate relationship;
- Relationship by adoption and through blood.
Full blood and half blood
According to Sec. 3(c) of the Hindu Marriage Act, 1955-
Full blood: Two persons are said to be related to each other by full blood when they are descended from a common ancestors by the same wife
Half-blood: When they are descended from a common ancestor but by two different wives
Uterine Blood
According to Sec. 3(d) of the Hindu Marriage Act, 1955-
Two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.
Exception
The Hindu Marriage Act, 1955, has made an exception where a custom or usage governing each of the parties permits a marriage within the prohibited degrees. It is due to the fact that custom has played an important part in making the Hindu law and it is one of the major sources of Hindu Law.
Reason of prohibition
- Physical degeneracy of the race which the marriage between near relations would lead to;
- Moral degeneracy and consequent evil results which are apt to effect a society built on the edifice of joint family system.
According to Sec. 11 of the Act, a marriage between two persons who are related to each other within prohibited degrees would be void.
It is one of the conditions of a valid marriage mentioned under the Hindu Marriage Act, 1955 that the parties must not be related to each other within prohibited degree. The general rule says that the parties to marriage shall not be sapindas to each other.
(**) Explanation: Sapinda relationship
Sec. 3(f) of the Hindu Marriage Act, 1955, deals with ‘sapinda relationship’ with reference to any person extends to the third generation which includes line of ascent through the mother and the fifth in the line of ascent through the father. The line is being traced upwards in every case from the person concerned, who is to be counted as the ‘first generation’.
Punishment for contravention of certain other conditions for Hindu marriage[ii]
“Every person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in clauses (iii), (iv),and (v) of Sec. 5 of the Hindu Marriage Act shall be punishable-
a. In the case of contravention of the condition specified in clause (iii) of Sec. 5, with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both;
In the case of a contravention of the condition specified in clause (iv) or clause (v) of Sec. 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both;
Registration (Section 8)
Registration of Hindu Marriage is mandatory according to law.
Restitution of Conjugal Rights (Section 9)
According to Merriam-Webster Dictionary, ‘conjugal rights’ means “the sexual rights or privileges implied by, and involved in, the marriage relationship; the right of sexual intercourse between husband and wife.”
The Hindu Marriage Act, has given a number of rights to Hindu wife. The wife was given right to maintenance, enjoy independence and individuality. She has right to work freely which will not be considered as violation of any of her duty towards her husband. Sec. 9 of the Hindu Marriage Act, 1955, provides that such a relief can be granted to the aggrieved spouse.
Scope of this Section
Court has the duty of granting a decree for restitution where either of the spouses has abandoned or withdrawn from the society of the other. It is important that withdrawal from the society of the spouse should be without any reasonable cause. The term ‘society’ corresponds to cohabitation, and the term ‘withdrawal’ refers to cessation of that cohabitation and bringing to end consortium. This must be a voluntary act of party.
Decree of restitution is granted by Court under Sec. 9 of the Hindu Marriage Act, 1955. This is granted when one party to marriage leave another without any reasonable cause. It is a decree whereby the Court directs the guilty party to live with the aggrieved party. It is the only remedy which could be used by the deserted spouse against the other. Relief can be sought by a husband or wife for restoration of their rights to cohabiting with the other spouse. However, the execution of the decree of restitution of conjugal rights is very difficult.
Court can pass a decree of restitution of conjugal rights, however it cannot direct the parties for specific performance. The non-compliance of the issued decree results to constructive destruction on the part of the erring spouse.
In the case of Swaraj Garg v. K.M Garg[iii]– When the husband and wife both are employed at different places from each other even before the time of marriage and there was no agreement as such between the two that one would leave the job and stay with the spouse, and whereby wife refuses to leave the job, it cannot be concluded that she has deserted him. Hence, the Court refuses to grant the decree of restitution of conjugal rights in such a case.
Void and Voidable Marriage
Sec. 11 of Act deals with void marriage, it provides the circumstances when a Hindu marriage can be declared void. It states thatany marriage solemnized in contravention of clauses (i), (iv) and (v) of Sec. 5 of the Hindu Marriage Act is null and void.
Sec. 12 provides for voidable marriage, it provides that any marriage in contravention of condition specified in clause (ii) of Sec. 5 is voidable and may be annulled by decree of nullity.
Void marriage
A marriage may be declared void if it contravenes any of the following conditions-
- If any party to marriage has a spouse living at the time of the marriage.
- This Act prohibits bigamy and polygamy. A marriage can only be solemnized if neither party has a living spouse at the time of marriage;
- The parties are sapindas or within the degree of prohibited relationship.
Voidable marriage
A marriage under the Act is voidable in nature if it contravenes any of the following conditions-
- If either party to marriage is impotent or if unable to consummate the marriage or not fit for procreation of children;
- If either of the party to marriage is unwillingly for the marriage. For a valid marriage it is must that both the parties must be of sound mind and capable to understand the implications of marriage;
If either party to marriage suffers from a mental disorder or suffers from recurrent attacks of insanity or epilepsy, then in such a situation it may indicate that consent is not freely given.
- Consent of the petitioner being obtained by fraud or force;
- If at the time of marriage the bride was pregnant by another man.
Judicial Separation and divorce
Judicial separation
Sec. 10 of the Hindu Marriage Act provides for judicial separation. It provides that either party to a marriage can file a petition before the Court for such a relief on the grounds i.e. adultery, cruelty, insanity, conversion of religion etc. Judicial Separation is a step prior to a divorce. The purpose of judicial separation is to provide an opportunity to the parties to reconcile their difference.
Lachman Utamchand Kiriplani v. Meena Alias Mota[iv]– Husband and wife judicial separation /Desertion without just cause and offer to return to matrimonial home must be shown to be bona fide Petition for judicial separation. Burden of proof lies under Hindu Marriage Act, 1955, Section 10(1)(a).
Dissolution of marriage
Sec. 13(1A) of Hindu Marriage Act 1955 provides that “Either party to marriage whether solemnized before or after the commencement of this Act may present petition for dissolution of marriage by decree of divorce on the ground that there has been no resumption of cohabitation as between parties to marriage for a period of one year or upward after the passing of decree of judicial separation in proceedings to which they were parties.”
Scope of this Section
According to the provisions of this Section once a decree of judicial separation has been passed and cohabitation between parties has not been resumed for period of one year or more, then either party to marriage can apply under Sec. 13(1A)(i) of the Act for decree of divorce.
However, it does not mean that the ground of divorce under Sec. 13(1A)(i) of the Hindu Marriage Act is proved to exist Court will grant decree of divorce, without analyzing that the party is seeking relief was wrong-doer or trying to defeat the provisions of law.
A party who has sought for judicial separation as a relief can lawfully present petition under Sec. 13(1A) of the Act i.e. for seeking dissolution of the marriage. However, while passing a decree of divorce the Court must also keep in mind the provisions of Sec. 23 of the Act while granting any relief. Sec. 23 of the Act deals with the provisions where the person filing for divorce is himself or herself the wrong-doer, hence the person cannot take advantage of his own wrong.
Procedure of Divorce among Hindus
Marriage can be dissolved by a decree of divorce if certain conditions are satisfied. Under the Act, if only one of the parties to the marriage wants to dissolve the marriage, the decree has to be obtained by way of a contested litigation. However, if both the parties are willing for divorce, the Act recognizes divorce by mutual consent also.
Grounds of Divorce among Hindus
- Adultery [Section 13(1) (i)]
- Cruelty [Section 13(1)(i)(a)]
- Desertion [Section 13(1)(ib)]
- Conversion [Section 13(1)(i)]
- Insanity [Section 13(1)(iii)]
- Venereal Disease [Section 13(1)(v)]
- Renouncing the world [Section 13(1)(vi)]
- Presumption of Death [Section 13(1)(vii)]
Sec. 13 of the Hindu Marriage Act, 1955, provides the grounds for divorce which are mentioned below-
- Adultery- The act of indulging in sexual intercourse outside marriage is termed as adultery. Now, it is no more a criminal offence but it is definitely a ground for divorce even after striking it down as a criminal offence.
- Cruelty- A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health.
- Desertion- When one of the spouses abandons the partner for at least a period of two years, then the abandoned spouse can file a divorce case on the ground of desertion. The act of desertion shall be voluntary in nature.
- Conversion of religion- If either of the spouses get converted to another religion, then the other spouse may file a divorce petition.
- Leprosy- Leprosy cannot be a ground for divorce anymore. The Government of India has notified the Personal Laws (Amendment) Act, 2019. The Act omits leprosy as a ground for divorce from various statutes governing marriage in India[v].
- Venereal Disease- A venereal disease is a disease that is contracted through sexual intercourse; hence it is basically a sexually transmitted disease. If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse.
- Renunciation- A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
- Not heard of- If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. In that case the spouse can file for a divorce.
Vijay Kumar Ramchandra Bhate v. Neela Vijay Kumar Bhate[vi]– Mental cruelty does not depend on numerical counts if accusations of unchastely and extra marital relationships. It is the intensity, gravity and stigmatic impact thereof which counts.
Relief to aggrieve in case of bigamy
The Act prohibits the practice of polygamy. Section 5(i) of the Act states that for a valid marriage both the parties should not have spouses living at the time of marriage[vii].
- When a married person marries another woman, then the first wife of that person can seek declaration of the second marriage as null and void.
- She can initiate proceedings against her husband for committing the offence of bigamy;
- She can apply for dissolution of her marriage by a decree of divorce under Sec. 13(1)(i) of the Hindu Marriage Act 1955, on the ground that her husband, after the solemnization of the marriage, had voluntary sexual intercourse with another female.
- She can claim maintenance under Sec. 18(i) of the Hindu Adoptions and Maintenance Act 1956, from her husband.
Grounds of divorce available to wife only [Section 13(2)]
- Polygamous marriage of the husband which had taken place before the present law was enacted [Section 13(2)(i)]
- Acts of Rape, Sodomy or Bestiality by the husband [Section 13(2)(ii)]
- Non-Resumption of Cohabitation after a Decree/Order of Maintenance [Section 13(2)(iii)]
- Wife who was married before she was 15 years old decides to repudiate the marriage after attaining the age of 15 years but before attaining the age of 18 years
Narendra v. K. Meena[viii]– The persistent effort of the Respondent wife to constrain the Appellant to be separated from the family would be torturous for the husband and in the opinion of the trial Court was right when it came to the conclusion that this constitutes an act of ‘cruelty’.
Divorce by mutual consent [Section 13B]
The parties to the marriage may file a petition for divorce before the Court that they are willing to separate mutually.
Procedure of filing a divorce petition
A Petition for obtaining decree of divorce has to be filed in the family Court in accordance with the provisions contained in the Act.
Maintenance[ix]
Section 24 of the Act, defines the provision of maintenance pendent lite and for expenses of legal proceedings of a divorce.
Section 25 of the Act, defines the complete provision of permanent alimony and maintenance for the alliances under this Act.
Under Section 25 of the Act, a Court can, at the time of passing a decree of divorce etc. order the husband to pay to the wife for her maintenance and support, a gross lump sum or monthly or periodical sum. It is payable till the lifetime of the applicant or till the applicant remarries.
Grounds to claim maintenance
A Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance, if-
- He is guilty of desertion, that is to say, he has abandoned her without reasonable cause and without her consent or against her wish, or of willfully neglecting her;
- He has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.
- He has any other wife living;
- He keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
- He has ceased to be a Hindu by conversion to another religion;
- There is any other cause justifying her living separately.
However, a Hindu wife is not entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
Shailja & Anr. v. Khobanna[x] – In this case, the Supreme Court made a remarkable observation by stating that merely because the wife is capable of earning it is not a reason to reduce the maintenance awarded to her and said that whether a wife is capable of earning and is actually earning are two different factors.
Legitimacy of the child born out of a void marriage
According to the provisions of Sec. 16 of Hindu Marriage Act, a child born out of a void or voidable marriage is legitimate. It lays down that “notwithstanding that a marriage is null and void under Sec. 11, any child of such marriage, who would have been legitimate if the marriage had been valid shall be legitimate whether such child is born before or after the commencement of Marriage Law (Amendment) Act 1976 and whether or not a decree of nullity is granted in respect of such marriage…”.
Sec. 16 Sub-Section (3) states that nothing contained in Sec. 16(1) and 16(2) shall be construed as conferring upon any child of marriage which is null and void, any right in or to property of any person other than the parents of such child.
In the case of Rameshwari Devi v. State of Bihar[xi]– The Apex Court stated that marriage of parties in contravention to Sec. 5(1) of Hindu Marriage Act was void marriage but under Sec. 16 of this Act children of void marriage are legitimate for the purpose of succession to property of father.
Child custody
Section 26 of the Act defines the provisions for custody, maintenance, and education of minor children during and after legal proceedings of divorce.
Conclusion
Under the Hindu Law, it is considered as the wife’s prime duty is towards her husband. She must obey him and respect his decision. The Hindu Marriage Act, has given a number of rights to Hindu wife. The wife was given right to maintenance, enjoy independence and individuality. She has right to work freely which will not be considered as violation of any of her duty towards her husband.
The Hindu Marriage Act has made considerable inroads upon the unqualified rights that the Hindu husband was previously enjoying over the wife. The Court cannot in every case when the wife withdraws from the society of the husband passes the decree of restitution of conjugal rights unless the Court believes that wife has withdrawn herself from the society of her husband, without any reasonable cause. The restitution of Conjugal rights guarantees the personal liberty and equal opportunity to both men and women.
[i] https://www.taxmann.com/post/blog/569/all-you-need-to-know-about-the-hindu-marriage-act-1955/#:~:text=Hindu%20Marriage%20Act%2C%201955%20incorporated,the%20Hindu%20Marriage%20Act%2C%201955.
[ii] Section 18 Hindu Marriage Act, 1955
[iii] AIR 1978 Del. 296
[iv] AIR 1964 SC 40
[v] https://www.barandbench.com/news/leprosy-omitted-ground-divorce-personal-laws-amendment-act
[vi] AIR 2003 SC 2462
[vii] https://blog.ipleaders.in/tradition-modernity-examination-bigamy-hindu-marriage-act-1955/
[viii] AIR 2016 SC 4599
[ix] https://www.taxmann.com/post/blog/569/all-you-need-to-know-about-the-hindu-marriage-act-1955/#:~:text=Hindu%20Marriage%20Act%2C%201955%20incorporated,the%20Hindu%20Marriage%20Act%2C%201955.
[x] AIR 2017 SC 1174
[xi] AIR 2000 SC 735
