Hindu Marriage Act

An Overview of the Hindu Marriage Act, 1955

The marriages were governed as per the customs of people belonging to the Hindu religion and in the year 1955, the Hindu Marriage Act was enacted to deal with matters related to Hindus. In the year 1956, the legislature enacted a lot of laws for governing subjects such as custody, maintenance, marriage, divorce, guardianship of minors, transfer of the ancestral property to the legal heirs, etc.

For the adoption of a child by Hindu parties and maintenance of dependents, the provisions have been defined under the Adoption and Maintenance Act, 1956. For the distribution and disposal of assets and liabilities of a person who died without making a will, the Hindu Succession Act comes into the picture. Legal heirs of a deceased person can distribute the property of the deceased amongst each other as per the provisions stated in the said Act. For matters related to marriage, divorce and maintenance of parties, The Hindu Marriage Act is applicable and as far as adoption and guardianship of a Hindu child are concerned, the Hindu Minority and Guardianship Act, 1956 is applicable.

The Hindu Marriage Act was enacted to protect the rights of the parties to a marriage. The law does not specify a particular procedure for the parties to perform the marriage ceremony. The parties are allowed to marry each other as per the prevailing customs in their community. Such parties are bound to follow certain conditions stated in the provisions of the said Act.

The provisions of the Act have been made considering the increase in the number of fraud cases in marriage which created a lot of issues for the parties. After the enactment of this Act, every Hindu party is obligated to follow the provisions of this Act to enter into a valid and legal marriage with his/her partner.

Hindu Marriage is applicable to both, people who are Hindu by birth or are by religion.

Who is a Hindu?

As per Section 2 of The Hindu Marriage Act, the term Hindu is defined.This section states that the Act is applicable to a person who is Hindu by birth or has converted his/her religion to any of the forms of Hindu. The Act is also applicable to people belonging to the stated religions and living outside the territory of India. It is not applicable to people who belong to Muslim, Christian, Parsi or Jew by religion.

The below-mentioned categories define who all are considered Hindus under this Act.

• A child whose both parents are Hindus, Jains, Buddhists, or Sikh by religion, whether the child is legitimate or illegitimate is a Hindu.
• A child whose one of the parents is a Hindu, Jain, Buddhist or Sikh by religion and is brought up as a member of a Hindu parent family, group or community, whether the child is legitimate or illegitimate is a Hindu.
• A person who converts or re-converts his religion into a Hindu, Jain, Sikh or Buddhist religion is considered a Hindu under this Act.

Essential features of the Hindu Marriage Act, 1955

Following are the essential featured of the Hindu Marriage Act, 1955:

Section 7 of the Hindu Marriage Act

This section defines the ceremonies to be conducted for a valid marriage. A Hindu marriage is solemnized as per the prevailing customs and ceremonies of either party to the marriage. It also includes a compulsory performance of “Saptpadi” – parties jointly take seven steps around the sacred fire. A marriage gets completed after the seven steps have been taken. It becomes legal and binding on both parties.

As per law, for a marriage to become legal and binding, the parties are required to follow all the ceremonies and customs. A child born out of wedlock is a legitimate child. It is the responsibility of both parents to take care of and provide basic necessities to the child.

Section 9 of the Hindu Marriage Act

This Section states provisions related to the constitution of conjugal rights. A conjugal right means a right provided to both parties in a marriage for staying together mutually with the husband or at the matrimonial house. This section has been mentioned in the Act for the protection of marriage between parties and trying to save their marriage by asking them to cohabit together.

Essentials of Section 9:

There are certain requirements to be fulfilled if a party is willing to approach the court under Section 9 for the restitution of conjugal rights. These are:

• The parties should be married as per the provisions stated under the Act.
• A spouse must have withdrawn from the society of the other spouse.
• The party who has withdrawn must have done so without any reasonable cause.
• The aggrieved party has the right to approach the court by filing a petition for restitution of conjugal rights.
• In order for the court to pass the decision in favour of the aggrieved party, he/she needs to satisfy the court.
• After the court is satisfied, the court passes a decree against the person who has withdrawn without any reason and orders them to return back to the house of the aggrieved party.

Marriage under Section 5 of the Act

Following are the conditions for a Hindu Marriage under Section 5:

Conditions for a Hindu Marriage

Section 5 of the Act deals with conditions which are required to be fulfilled by the parties to make such marriage valid and legal. These conditions are as follows:

• The person willing to marry must not have any living spouse already.
• The law defines an age limit for female and males to get married. At the time of marriage, the female must have completed the age of 18 years and the male must have completed the age of 21 years. None of the parties to a marriage should be incapable of giving valid consent due to unsoundness of mind.
• Even when the parties have the capability of giving valid consent, they must not suffer from any mental disorder which deems him/her not fit for the purpose of marriage or for the procreation of children out of that wedlock.
• None of the parties is capable of being married if they suffer from any repetitive insanity attacks.
• The parties willing to marry must not fall under the sapinda relationship or prohibited degree of relationship. Such a party can marry under the above-mentioned degree of the relationship if their custom or usage allows doing so.

Features of Section 5: Conditions for a valid marriage

• Bigamy is not allowed: As per the provisions under this Act, a man is not allowed to have more than one wife at a time. If a person has 2 living spouses at one time, it amounts to bigamy. It is considered an offence under this Act. Thus, a person is not allowed to marry another person without ending the first marriage by way of divorce. Even if a person marries without ending the first marriage, he is punishable under Sections 494 and 495 of the Indian Penal Code.
• Section 5 also defines the minimum age of both males and females at which they can enter into a valid marriage. A male shall attain the age of 21 years at the time of marriage and a female shall attain the age of 18 years at the time of marriage. If such a condition is not fulfilled by the parties who are marrying, such a marriage is considered void in the eyes of the law.
• If either party to the marriage is of unsound mind at the time of marriage, such a marriage is considered to be a void marriage. A valid and free consent of parties marrying is an essential requirement for a valid marriage.
• As per the law, no two Hindu parties are allowed to marry if they fall under the category of a degree of prohibited relationship or sapinda relationship. Parties are said to come under the sapinda relationship when they have common ancestors. A sapinda relationship covers up to 3 generations for females and 5 generations for male who wish to marry each other.

Divorce in India

Divorce under the Act means dissolution of a marriage between two parties. When the parties wish to dissolve their marriage, they can do so using the available provisions related to divorce under the Hindu Marriage Act. A divorce can be attained by parties in two ways, i.e. mutual divorce or contested divorce. When both parties to a marriage are willing to seek a divorce, they can apply for mutual divorce under the Act. In a case where only one party is willing to seek divorce from the other, he/she can do so by approaching the court and contesting before the court, it is called a contested divorce.

The aggrieved party has the option to approach the court for seeking divorce and other remedies. There are certain mentioned grounds on which the parties can file a petition before the court for divorce under Section 13 of the Act.

Separate grounds have been stated under Section 13(2) for the wife to approach the court for seeking a divorce.

Section 13(2) of the act provides the grounds for a wife approaching the court for a divorce.

Grounds of divorce under the Hindu Marriage Act

Section 13 of the Act lays down grounds on which the parties to a marriage can approach the court for seeking a divorce. These are as follows:

Adultery

It is considered to be one of the major grounds for a person being a party to a marriage to seek divorce. Adultery is defined as voluntary intercourse between a married person with another person (married or unmarried) of the opposite sex. Here, the parties having sexual intercourse are not married to each other. Adultery also includes a husband having sexual intercourse with his second wife even when his first wife is legally married and alive. It also comes under the offence of bigamy and is punishable by same.

Cruelty

The cruelty to a person can be in any form. It can be in physical form where one party to marriage causes physical injuries by beating the other spouse in order to harm the other. Cruelty also includes mental cruelty. A person causes mental harm to a person by mentally torturing the other spouse for various matters such as dowry, etc. There are no set parameters to determine what constitutes mental cruelty.

A wife can be mentally tortured by her husband for several reasons such as:

• Demand for dowry,
• Falsely putting accusations on the wife for adultery,
• impotency,
• an extra-marital affair of the husband,
• Uncontrollable consumption of alcohol and immoral life, etc.

Desertion

Desertion is defined as a situation where a party to marriage completely abandons the other spouse. The party who abandons the other has no valid and reasonable justifications for doing so. When a spouse restricts oneself from taking any responsibilities in a marriage, it is also called desertion.

Conversion

It is also an important ground for a Hindu person to seek divorce. If a party to marriage converts his/her religion into some other religion from being a Hindu without the consent of another spouse, the aggrieved party whose consent has not been taken can approach the court for divorce and other available remedies.

Insanity

It is a condition where a party to a marriage cannot be cured of having an unsound mind. If a party to a marriage gets to know about the incurable unsoundness of mind of the other person, the aggrieved can seek divorce from the court.

Leprosy

It is a kind of incurable disease which harms the skin. Under Hindu Law, it is considered to be a valid ground for seeking a divorce.

Venereal Disease

It a party to the marriage has a harmful disease of communicable nature which can spread to the other party, such an aggrieved person can approach the court for seeking a divorce.

Renunciation

Whenever a party to marriage turns away his/her life from material things and renounces the world, the other party can approach the court asking for a divorce decree to be passed in favour of the aggrieved.

Presumption of death

Under this ground, if a party to a marriage is not known for a time period of more than 7 years to his family members or close friends such a party is presumed to be dead. The other party can be granted a divorce decree by the competent court.

Divorce by mutual consent in Hindu Marriage Act

The law has mentioned a separate provision in the Act with regard to mutual divorce. As per Section 13(B) of the Act, whenever both parties to a marriage are willing to terminate their marriage mutually, they can file a joint petition for divorce before the competent court.

Remarriage

After the first marriage has been legally terminated, a person is allowed to marry again as per the provision stated under Section 15 of the Act.

Maintenance under the Act

Maintenance is considered as an amount to be paid by a party to a marriage to another party and other dependents for living a life. The person is responsible to bear all the expenses being incurred by the dependents. It is usually paid by the spouse to another spouse after the divorce for living a good life.

This provision has been mentioned in the Act so that the dependent party can enjoy the same living standard which he/she was having during married life. The court decides the amount of maintenance to be paid. It is decided at the time when the court passes a divorce decree.

Factors affecting the amount of maintenance

The amount of maintenance to be paid to the spouse during the time of divorce depends on certain parameters. These parameters are as follows:

1. When the spouse is dependent on the other and has no income source. One of the major factors is to find out whether the spouse is completely dependent on the other spouse’s income or not.
2. The normal living standard of the parties seeking a divorce.
3. All basic expenses related to the maintenance of children.
4. The need for maintaining the same living standard of the spouse before separation.
5. Any skills or education of the spouse which is required to earn a living, etc.

Types of Maintenance

Considering several factors, maintenance to the dependent spouse can be granted in the following ways:

• Maintenance pendent lite: This type of maintenance is called Temporary maintenance. It is awarded during the divorce proceedings pending before the court. It is awarded by the court so that the party can pay for necessary expenses being incurred at the time of the pendency of the divorce petition. It is granted only after the court has been satisfied as per the provision stated under Section 24 of the Act. It can also be claimed under Section 125 (1) of the Code of Criminal Procedure.
• Permanent Maintenance- After the divorce proceedings have been disposed of, the Court grants permanent maintenance to the dependent spouse on a decided time period. This is governed as per the provision stated under Section 25 of the Hindu Marriage Act, 1955.