Hindu Marriage Act

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Hindu Marriage Act, 1955
Emblem of India.svg
An Act to amend and codify the law relating to marriage among Hindu
Citation Act No. 25 of 1955
Enacted by Parliament of India
Date enacted 18 May 1955
Date commenced 18 May 1955

The Hindu Marriage Act is an Act of the Parliament of India in 1955 as part of the Hindu Code Bills. Three other important acts were also enacted during this time: the Hindu Succession Act (1956), the Hindu Minority and Guardianship Act (1956),the Hindu Adoptions and Maintenance Act (1956).

Purpose[edit]

As part of the Hindu Code Bill, the Hindu Marriage Act was enacted in 1955 by the Parliament of India. The main purpose of the enactment was to amend and codify the law relating to marriage among Hindus. Beside, amendment and codification of Sastrik Law, it has introduced separation and Divorce which was earlier non-existent in Sastrik Law. This enactment brought uniformity of law for all sections of Hindus. In India, as a whole, there are religion-specific civil codes that separately govern adherents of different religions.

Applicability[edit]

Section 2 [1] of Hindu Marriage Act, 1955 say:

  1. This Act applies -
    1. to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
    2. to any person who is a Buddhist, Jaina or Sikh by religion; and
    3. to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

This section contemplates application of the Act to Hindu by religion in any of its forms or Hindu within the extended meaning i.e. Buddhist, Jaina or Sikh and, in fact, applies to all such persons domiciled in the country who are not Muslims, Christians, Parsi or Jew, unless it is proved that such persons are not governed by the Act under any custom or usage. Therefore, the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.[2]

The Act was viewed as conservative because it applied to any person who is Hindu by religion in any of its forms, yet clumps other religions together into the act (Jains, Buddhists, or Sikhs) as specified in Article 44 of the Indian Constitution.[3] This Act also applies to any person who is a permanent resident in the jurisdiction where this Act applies who is not Muslim, Jew, Christian, or Parsi by religion. However, with the passage of Anand Karj marriage act, Sikhs now also have their own personal law related to marriage.[4]

Hindu view of marriage[edit]

According to Hinduism, marriage is a sacred relationship, and not a sacrament, and not a divine contract.[5] In some Hindu systems of marriage, there is no role for the state as marriage remained a private affair within the social realm.[6] Within this traditional framework reference, marriage is undoubtedly the most important transitional point in a Hindu’s life and the most important of all the Hindu ‘’sanskaras’’ (life-cycle rituals).[6]

Therefore there was fierce religious opposition to enacting such laws for marriage, succession and adoption. The greatest opposition was to the provision of equal inheritance by sons and daughters. (male and female heirs) [7] These Acts were put forth under the leadership of Prime Minister, Jawaharlal Nehru, who strongly believed in enactment of modern laws for Hindus.

Some have argued that Hindu marriage cannot be subjected to legislative intervention. Derrett predicted in his later writings that despite some evidence of modernization, the dominant view in Hindu society for the foreseeable future would remain that marriage is a form of social obligation...[6]

Conditions[edit]

Section 5[1] of Hindu Marriage Act, 1955 states:-

"Section 5. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely-

  1. neither party has a spouse living at the time of the marriage
  2. at the time of the marriage, neither party-
    1. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
    2. though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
    3. has been subject to recurrent attacks of insanity or epilepsy;
  3. the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage;
  4. 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;
  5. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two."

Marriage of a female less than 18 years of age or a male of less than 21 years of age. Marriage is voidable and not void. Marriage will become valid if no steps are taken by such "child" seeking declaration of marriage as void.[8]

The conditions[9] Marriage can be solemnized between two Hindus if neither party has a living spouse at the time of marriage;[10] The conditions also stipulate that at the time of the marriage, neither party is incapable of giving valid consent or suffering from a mental illness that inhibits their fitness for marriage or procreation of children or suffering from recurrent episodes of insanity or epilepsy. In the original Act, the age of valid marriage was fixed at 18 for the boys and 15 for the girls, however this age requirement was later raised to 21 and 18 respectively for the boys and the girls through the Child Marriage Restraint (Amendment) Act 1978. Finally, the Act specifically disallows marriages between prohibited degrees of relationships.[3]

Guardianship[edit]

Section 6 of the Hindu Marriage Act specifies the guardianship for marriage. Wherever the consent of a guardian in marriage is necessary for a bride under this Act, the persons entitled to give such consent are the following: the father; the mother; the paternal grandfather; the paternal grandmother; the brother by full blood; the brother by half blood; etc.[11] The Guardianship For Marriage was repealed in 1978 after the Child Marriage Restraint Amendment was passed. This was an amendment that increased the minimum age requirement for marriage in order to prevent child marriages.[12]

Adults have the liberty to choose their partners for marriage according to their will.[13][14]

Ceremonies[edit]

Section 7 of the Hindu Marriage Act recognizes the ceremonies and customs of marriage. Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. Such rites and rituals include the Saptapadi—the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. The marriage becomes complete and binding when the seventh step is taken. [15]

Registration[edit]

As stated in Section 8 of the Act, the state government may make rules for the registration of Hindu marriages that the parties to any of such marriages may have particulars relating to their marriages entered in such a manner and subject to such conditions as may be prescribed in the Hindu Marriage Register. This registration is for the purpose of facilitating the proof of Hindu marriages. All rules made in this section may be laid before the state legislature. The Hindu Marriage Register should be open for inspection at all reasonable times and should be admissible as evidence of the statements contained therein.

Nullity of Marriage and Divorce[edit]

Any marriage can be voidable and may be annulled on the following grounds: the marriage has not been consummated due to impotency, contravention of the valid consent mental illness condition specified in Section 5, or that the respondent at the time of the marriage was pregnant by someone other than the petitioner. Divorce can be sought by husband or wife on certain grounds, including: continuous period of desertion for two or more years, conversion to a religion other than Hindu, mental abnormality, venereal disease, and leprosy. A wife can also present a petition for the dissolution of marriage on the ground of if the husband marries again after the commencement of his first marriage or if the husband has been guilty of rape, sodomy, or bestiality. Newly married couples cannot file a petition for divorce within one year of marriage.

Supreme Court of India, Indian High Court, and Family Court ruling – Landmark judgements[edit]

The Supreme Court of India exercised its powers under Article 142 of the Constitution of India and ruled in August 2012 that marriages can be ended by mutual consent before expiry of the cooling period of six months stipulated in the Hindu Marriage Act, 1955. Section 13-B of the Hindu Marriage Act provides for the couple seeking divorce through mutual consent to wait for a period of six months after making first joint application for divorce. It is only after the expiry of the six months that the couple can move second application for the dissolution of their marriage.[16][17][18]

There are several recent development by the time in case laws, landmark judgements delivered by the Supreme Court of India, various High Courts and Family Courts. These judgements are delivered to avoid misuse of the Hindu Marriage Act 1955. Some of the famous judgements, widely discussed among the Indian masses and media incorporated here supported with reliable sources.

Abusing a spouse and spouse’s family using derogatory terms, amounts to cruelty[19][20] Supreme Court: In the instant case related to dissolution of marriage, the Division Bench of Vikramjit Sen and A.M Sapre, JJ., observed that a spouse abusing the other using derogatory terms; calling the police on flimsy grounds and refusing to allow close relatives to visit and reside in the matrimonial home, all this amounts to cruelty towards the other spouse, and cannot be termed as normal wear and tear of family life.

Husband is not bound to maintain a well qualified wife who is sitting idle and not working[21][22]

The Court relied on Mamta Jaiswal v. Rajesh Jaiswal, 2000 (3) MPLJ 100,[23] where it was held that “well qualified wife is not entitled to remain as an idle and claim maintenance from her husband”. The Court noted that the facts of the present case clearly shows that the petitioner is having good capacity to earn and therefore held that “the wife who is well qualified and claiming maintenance by sitting idle is not entitled to get maintenance”. Accordingly, the Court rejected the application filed by the petitioner. [Firdos Mohd. Shoeb Khan v. Mohd. Shoeb Mohd. Salim Khan, decided on 20.02.2015].[24]

Husband’s extra- marital relationship does not amount to cruelty[24][25][26][27]

Supreme Court: In the instant case,[Ghusabhai Raisangbhai Chorasiya v. State of Gujarat, 2015 SCC OnLine SC 137, decided on 18.02.2015], Perusing the facts and arguments , the Court observed that the issue involved in the present case is that whether the extra marital affair was a cruelty of such nature by the husband that it compelled the wife to end her life and whether such a situation is covered under the ambit of Section 498A of IPC. The Court on referring Section 498A of IPC and its decision in Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48, observed that if the extra- marital affair is of such nature, which is likely to drive the wife to commit suicide, then it would fall under the ambit of Explanation appended to Section 498A. The Court further stated that in the present case the evidence produced did not establish a high degree of mental cruelty caused by the husband’s extra- marital affair so as to attract the provisions of Section 498A of IPC.

One false criminal complaint filed by either spouse is sufficient for cruelty[28][29][30][31]

Supreme Court: While allowing an appeal for dissolution of marriage of the appellant on the ground of alleged cruelty on account of filing of false complaint by the respondent under Sections 498A and 307 of the IPC which deals with cruelty by husband and attempt to murder respectively, the Court cited K. Srinivas Ro v. D.A. Deepa, (2013) 5 SCC 226 which is the landmark case on the point where series of complaints were filed by the wife held that even one false complaint is sufficient to constitute matrimonial cruelty.

The Court in this case also discussed on the point of irretrievable breakdown of marriage as a ground for divorce without giving its opinion and observed that it has not received the statutory acceptance to form a ground for divorce. The Court has highlighted that Law Commission has recommended the introduction of irretrievable break down of marriage, as a ground for divorce and it has also been incorporated as a ground for divorce in the Marriage Laws (Amendment) Bill of 2013 which received the assent of the Rajya Sabha. But at the same time it questioned its expediency in the Indian situation where oppression of women is so prevalent and left that controversy for the Lok Sabha to decide.[32]

Marriage Laws (Amendment) Bill, 2010[edit]

Based on recommendations of the Law Commission, a legislation was proposed. The Marriage Laws (Amendment) Bill, 2010 to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to making divorce easier on ground of irretrievable breakdown of marriage was introduced in the parliament in 2012. The Bill replaces the words "not earlier than six months" in Section 13-B with the words "Upon receipt of a petition."

It also provides a better safeguard to wife by inserting section 13D by which the wife may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.

New section 13E provides restriction on decree for divorce affecting children born out of wedlock and states that a court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.

Marriage Laws (Amendment) Bill, 2010 makes similar amendments to the Special Marriage Act, 1954 by replaces the words "not earlier than six months" in Section 28 with the words "Upon receipt of a petition." and provides restriction on decree for divorce affecting children born out of wedlock.

However, there was strong opposition to this bill due to the objection that it will create hardships for women and that the bill strongly supports one party while both parties should be treated equal in divorce.[33] Therefore, the bill was amended to provide for wife's consent for waiver of six-month notice with the words "Upon receipt of petitions by the husband and the wife."

The Bill was passed passed by the Rajya Sabha in 2013,[34] though it was not passed in the Lok Sabha.

There was widespread protest against the bill. Hridaya a Kolkata-based NGO demonstrated against the bill. Amartya Talukdar (a prominent Men's Right Activist) raised concern about the bill which introduces no-fault divorce in Hindu society. According to him " If the Government really wants to bring about empowerment of women, let them make it open for all sections of the society. Let them bring a uniform civil code. Why is it only for the Hindus?" [35][36] http://indianexpress.com/article/india/india-others/rajya-sabha-approves-bill-to-make-divorce-friendly-for-women/

See also[edit]

References[edit]

  1. ^ a b "Bare Act" (PDF). Retrieved 1 April 2014. 
  2. ^ "Sondur Gopal Vs Sondur Rajini (Supreme Court)". 
  3. ^ a b Department of Revenue, Rehabilitation and Disaster Management - "Hindu Marriage Act, 1955" d
  4. ^ TNN 23 May 2012, 05.24AM IST (2012-05-23). "Sikhs welcome passage of Anand Marriage Act - Times of India". Articles.timesofindia.indiatimes.com. Retrieved 2012-12-25. 
  5. ^ [1]
  6. ^ a b c Menski, Werner. 2003. Hindu Law: Beyond Tradition and Modernity. Delhi: Oxford UP.
  7. ^ http://www.lawteacher.net/equity-law/essays/co-parcenary-the-system-law-essays.php
  8. ^ "Court On Its Own Motion Vs State (Delhi)". 
  9. ^ Tahir Mahmood (2007-01-17). "Not made in heaven - Times Of India". Articles.timesofindia.indiatimes.com. 
  10. ^ Hinduwebsite.com - "Divorce in Hinduism"
  11. ^ Vaklino.com - "The Hindu Marriage Act, 1955" (Section 6)
  12. ^ "The Child Marriage Restraint Act, 1929"
  13. ^ "Adults have the liberty to choose their partners for marriage according to their will". http://blog.scconline.com. SCC online. Retrieved 29 June 2015. 
  14. ^ indiankanoon.org/doc/165340154/
  15. ^ Vaklino.com - "The Hindu Marriage Act, 1955" (Section 7)
  16. ^ http://ibnlive.in.com/news/marriages-can-be-ended-before-cooling-period-sc/285515-3.html
  17. ^ http://www.deccanherald.com/content/274124/marriages-can-ended-cooling-period.html
  18. ^ http://www.globalgujaratnews.in/print/marriages-can-be-ended-before-cooling-period-apex-court/
  19. ^ "Abusing a spouse and spouse’s family using derogatory terms, amounts to cruelty". http://blog.scconline.com. scc online. Retrieved 29 June 2015. 
  20. ^ judis.nic.in/supremecourt/imgs1.aspx?filename=42632
  21. ^ "Husband is not bound to maintain a well qualified wife who is sitting idle and not working". http://blog.scconline.com. Scc online. Retrieved 29 June 2015. 
  22. ^ http://law-india.org/husband-is-not-bound-to-maintain/
  23. ^ lobis.nic.in/dhc/PRA/judgement/26.../PRA14052012CRLR3442011.pdf
  24. ^ a b law-india.org/husband-is-not-bound-to-maintain/
  25. ^ "Husband’s extra- marital relationship does not amount to cruelty". http://blog.scconline.com. scc online. Retrieved 29 June 2015. 
  26. ^ http://timesofindia.indiatimes.com/india/Husbands-illicit-relationship-is-not-always-cruelty-SC/articleshow/46293417.cms
  27. ^ indiankanoon.org/doc/1728023/
  28. ^ "One false criminal complaint filed by either spouse is sufficient for cruelty". http://blog.scconline.com. Retrieved 29 June 2015. 
  29. ^ judis.nic.in/supremecourt/imgs1.aspx?filename=42098
  30. ^ http://www.deccanherald.com/content/442666/false-accusation-spouse-ground-divorce.html
  31. ^ http://timesofindia.indiatimes.com/india/False-dowry-charge-ground-for-divorce-Supreme-Court-rules/articleshow/45253503.cms
  32. ^ "(2014) 42 SCD 098 - K. Srinivas Vs. K. Sunita". The Supreme Court Decision. 
  33. ^ "Easier Divorce Bill Tabled in Rajya Sabha", "Deccan Chronicle", 1 May 2012.
  34. ^ "Rajya Sabha passes women-friendly marriage bill". 26 Aug 2013. 
  35. ^ "Men wear sarees in Kolkata to protest against Marital Amendment Bill". 16 Feb 2014. 
  36. ^ "Protest against Marriage Bill". 26 Aug 2013. 

Books Cited[edit]

  • Indrajeet Mehrotra. Hindu Marriage Act (PAPERBACK) (in Hindi). Eastern Book Company. ISBN 8-17-012902-8. 
  • Basanti Lal Babel. Vivah Evam Talaak Vidhi (PAPERBACK) (in Hindi). Eastern Book Company. ISBN 9-78-935145043-6. 
  • B.P.Beri. Law of Marriage and Divorce in India (Hard Cover). Eastern Book Company. ISBN 8-17-012383-6. 

External links[edit]