ANALYSIS:THE HINDU MARRIAGE ACT, 1955
Author: Salouni Choudhary, II year of B.Com LL.B (Hons.) from UILS, Panjab University, Chandigarh
India is a secular country where large numbers of people belonging to different religions live. The Constitution of India provides every citizen freedom to choose their religion and profess it freely. Due to differences in customs and traditions, separate personal laws for matrimonial relations are made. The Hindu Marriage Act was enacted by Parliament on 18th May 1955 with the motive to amend and codify marriage ties between Hindus. This act provides some condition based on which marriages are categorized as valid, void and voidable. The Hindu Marriage Act guides Hindus to be in a systematic and valid marriage bond. It provides true meaning to marriage, cohabiting rights for both parties, and safety for their family and children so that they do not have to suffer from their parental issues.
Section 2 of the Act tells about its applicability. It says that all forms of Hinduism including a person who is a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. It also recognizes Buddhist, Jaina, Sikh as Hindu under this act. The Act also applies to anyone who is a citizen of India, who is not a Muslim, a Jew, a Christian, or a Parsi by religion.
The explanation of Section 2 says that a child can be considered as Hindu if his both parents are Hindus as per section 2 and if he is brought up by one parent that is Hindu. The person who converts or reconverted to Hindu, Buddhist, Jaina or Sikh is also a Hindu by religion.
Previously this act did not apply to J & K but after J & K Reorganization Act, 2019, the exception was omitted.
A person can be Hindu: -
a) By Birth
b) By religion
MARRIAGE AND ITS CONDITIONS
The concept of marriage is to constitute the relationship of a husband and wife. According to Hindu Believes, Marriage is a sacrament and can never be broken. It is meant for all life. This bond cannot be broken even by death. It is a birth relation. As per ancient sources, a man is incomplete without a woman. Marriage is considered compulsory until you don’t have the desire to be ascetic. As marriage is a sacrament in Hindus, it has three features: -
a) It is a permanent union,
b) It is an eternal union.
c) It is a holy union
Section 5 of the Hindu Marriage Act specifies the condition for a valid Hindu marriage. This section provides conditions based on which a marriage is classified as valid, void and voidable. The conditions mentioned under section 5 are as follows:-
There should be Monogamy
Marriage should not fall within the Prohibited Degree of Relationship
Marriage should not be within the Sapinda Relationship
Both spouses should be sane and should have the ability to understand the nature of Hindu Marriage
Consent of both parties should not be obtained by fraud or force
The wife should not be pregnant at the time of marriage by another person
Valid Marriages: - These are the marriages that fulfil all of the above conditions mentioned under section 5.
Void Marriages: - Section 11 of the Hindu Marriage Act specifies the grounds on which marriage can be declared as void. In case of a void marriage, the marriage is considered to be void ab initio i.e., from the beginning and for declaring it void no judicial order is needed as it is already void.
As per section 11, a marriage may be declared void if it contravenes any of the following:-
Either of the parties is underage. In a Hindu Marriage, the bridegroom should be 21 years old and the bride should be 18 years old.
Either of the parties is not of the Hindu religion. For falling under this act, both bridegroom and the bride should be of the Hindu religion at the time of marriage taking place.
Either of the party is already married. This Act expressively prohibits polygamy. A marriage can only be solemnized if neither party has a living spouse at the time of marriage taking place.
Either of the parties are Sapindas to each other or within the degree of prohibited relationship.
Voidable Marriages: - Section 12 of the Hindu Marriage act specifies the condition for voidable marriages. Voidable marriages are the one which can be avoided by one of the parties. But the avoiding party must not get benefited from their default. A marriage may be voidable if any of the following condition is not being fulfilled:-
Either the party is impotent means unable to consummate the marriage, or he/she is unfit for the procreation of children.
One party does not willingly consent. Forgiving consent, both parties must be sound of mind and capable of understanding the responsibilities and consequences of marriage.
The bride was pregnant by another man other than the petitioner at the time of the marriage and the petitioner has no knowledge of this fact before marriage.
CEREMONIES IN A HINDU MARRIAGE
Section 7 of the Hindu Marriage Act provides that there may be different, but equally valid ceremonies and customs of marriage in different places. A Hindu marriage may be solemnized according to the customs and ceremonies of either the bride or the groom. These rites and ceremonies include the main ceremonies like Saptapadi and Kreva.
REGISTRATION OF MARRIAGE
For registration, A marriage have to fulfil the following conditions:
A Marriage ceremony has been performed; and
Both the parties have been living together as husband and wife.
Additionally, the parties must have been living in the district of the Marriage Officer for a period that is not less than thirty days immediately preceding the date on which the application is made for registration by the couple.
Section 8 of the Hindu Marriage Act provides state governments freedom to make their own rules for the registration of Hindu marriages, particularly for their states.
Registration provides written evidence of a valid marriage. As per rules; the Hindu Marriage Register should be open for inspection at all reasonable times and should be admissible as evidence in a court of law. As such registration of a Hindu marriage is not compulsory like adoption but it becomes convenient after registration to prove the marriage in case any matrimonial dispute arises.
RESTITUTION OF CONJUGAL RIGHTS & JUDICIAL SEPARATION
Restitution of Conjugal Rights: - Section 9 of the Hindu marriage act says that if either of the party withdrew from the society of another without any reasonable cause then the aggrieved party can go to court and if the court is satisfied with his/her contentions the court can ask another party to again join the matrimonial home and take all matrimonial obligations. The section also states that it is on the withdrawn party to prove that he/she has a reasonable excuse to withdraw from the society of the other.
Judicial Separation: - Section 10 of the Hindu Marriage Act provides for judicial separation to each and any party can demand separation on the ground like polygamy. After a degree of Judicial Separation is passed, it shall no longer be obligatory for the petitioner to cohabit with his/her partner.
DIVORCE UNDER HINDU MARRIAGE ACT
Although marriage is considered to be divine, the Hindu Marriage Act does provide either party to divorce the other on the grounds mentioned under section 13 of the Hindu Marriage Act.
A divorce petition generally can only be submitted one year after registration of marriage. However, in some cases of suffering by the petitioner or mental instability of the respondent, the court may allow a petition to be presented before one year's time period.
GROUNDS FOR DIVORCE
A marriage may be dissolved by court order on the following grounds as mentioned in Hindu Marriage Act:
a) Adultery - The respondent had voluntary sexual intercourse with a man or a woman other than the petitioner after their marriage.
b) Cruelty - The respondent has abused the petitioner either physically or mentally.
c) Desertion - The respondent has deserted the aggrieved party for a continuous period of not less than two years without any reasonable cause.
d) Conversion to another religion - The respondent has ceased to be a Hindu and has converted to another religion which is not convenient for the petitioner.
e) Unsound mind - The respondent has been diagnosed with such a mental disorder with which it is not possible to live a normal married life with the respondent.
f) Disease - The respondent has been diagnosed with an incurable type of leprosy or has some kind of venereal disease in communicable form.
g) Presumption of death - The respondent has not been seen for seven years or more and has not heard anything from him since seven years or more.
h) No resumption of cohabitation after a decree of judicial separation- If after a decree of Judicial Separation, there has been no resumption of marriage for at least one year.
In addition to the above grounds, a wife may also seek a divorce because:
i) In the case of marriages that took place before the Hindu Marriage Act 1955 was enacted, the husband was already married and that any other wife of the husband was alive at the time of the marriage ceremony.
j) The husband, after marriage, has been found guilty of rape, sodomy or bestiality by a court of law.
k) Cohabitation has not been resumed within a year following an order for maintenance under Section 125 of the Criminal Procedure Code or alternatively.
l) The wife was under-age when at the time of marriage and now she repudiates the marriage before attaining majority at the age of 18 years.
Note: - According to Section 14 of the act, no petition for divorce should be filed within one year of marriage except for some extraordinary situation like when there is an immediate fear of harm.
PERMANENT ALIMONY AND MAINTENANCE
Section 25 states that at the time of the decree of divorce or at any subsequent time, the court may order that one party to pay the other an amount for maintenance and support if it feels so. This could be a one-off payment or a periodical (such as monthly or yearly) payment. The amount to be paid is dependent on the discretion of the court.
As per section 15 of the Hindu Marriage Act, remarriage is possible when the divorce process is completed and there remains no scope for appeal.
The Hindu Marriage Act, 1955 (25 of 1955) as amended by the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019) (w.e.f. 31-10-2019) Dr. Paras Diwan, Modern Hindu Law (Allahabad Law Agency), 12th Edn.