Before studying Hindu Law we have to study who is Hindu? Under the codifying Acts, namely, the Hindu Marriage Act, 1956; The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956, the orthodox concept of the term “Hindu” has undergone a radical change and it has been given an extended meaning. These codifying Acts not only apply to Hindus by birth but also to a large number of other persons.

We notice that the codifying statutes of Hindu law do not purport to define who is a Hindu. Rather, the Sections mention the persons to whom they are applicable. Thus, those persons upon whom the Hindu law is applicable will be treated as Hindu in the eyes of law it is immaterial whether they follow any principle of Hindu Law or not. Thus the term Hindu includes, those who are originally Hindus, Jains, Sikhs or Buddhist by religion, those who are converts or reconverts to Hindu, Jain, Sikh or Buddhist religion, the cults and sects following Hindu religion, and followers of Hindu religions.

In Ashima v. Narendra, AIR 6 Cal W N. 1016 case, the Court opined that “so, diverse are the ways of the Hindus that it is almost impossible to exactly define what Hinduism is? It is very aptly said that the Hindu religious system is encyclopedic in character and is a commonwealth of all faiths”.

In Sastri Yagnapurushadji v. Muldas Brudardas Vaishya1966 AIR SC 1119 case, in view of Gajendragadkar. J. “Unlike other religions in the world, the Hindu religion does not claim any one prophet, it does not worship any one God, it does not subscribe to any one dogma, it does not believe in any one philosophic concept, it does not follow any one set of religious rites or performances, in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more”.

In Ram Bhagwan v. J.C. Bose (1903) 301 A 249 and Chandrasekhar v. Kulandaivelu, 1963 SC 185 cases, the Courts held that a person does not cease to be a Hindu if he becomes an atheist, or dissents or deviates the central doctrines of Hinduism or lapses from orthodox religious practices, or adopts Western way of life, or eats beef.

Who can be called a Hindu?

Hindu by Birth:

• When Both Parents are Hindu: Explanation (a) to section 2(1) provides that any child legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs, by religion is a Hindu and Hindu Law applies to him/her.
• When One Parent is a Hindu: Explanation (b) of section 2(l)of the Hindu Adoption and Maintenance Act further provides that a child legitimate or illegitimate born to parents one of whom alone is a Hindu will be a Hindu if he is brought up as a member of the tribe, community or group to which such parent belongs or belonged. The Hindu parent may be father or mother, what is important is that the child must be brought up as a Hindu. The word ‘belonged’ means that if subsequent to the birth of the child the parent who was a Hindu convert to another religion, the child would continue to be a Hindu provided he is brought up as a Hindu

In Vijaya Kumari v. K. Devibalan AIR 2003 Ker. 363 (DB) case, the Court held that in case of an illegitimate child Hindu Law would apply if either both the parent and Hindus or at least the mother is a Hindu and the child is brought up as Hindu. Precisely the decision was that an illegitimate child would follow the religion of the mother.

In Sapna Vs. State of Kerala, AIR 1993 Ker. 75 case, the petitioner sought the benefit of reservation for admission to medical/agricultural course in the Scheduled Caste quota. Her mother was a Schedules Caste and married a Christian. She changed her name after marriage as Uma Jacob. The name of the petitioner was also Sapna Jacob. There was nothing in the evidence to show that the petitioner ever led a Hindu mode of life. On these facts, the court held that she was not entitled to seek the benefit of reservation in the Scheduled Caste category.

In C. W. T. v. R. Sridharan, 1976 H LR 600(SC) case, the Court held that where a Hindu male married a Christian female and the child was brought up as a Hindu, the family would be Hindu undivided family governed by Hindu Law.

Jainism:

In Boddaladi v. Boddaladi, (1927} 50 Mad. 228, case Kumaraswami Sastri J. observed that ” Jainism has an origin and history much anterior to the Smritis. Jainism rejects the authority of the Vedas and discards all ceremonies and rituals. Jainism does not believe in the existence of God. It holds that by tapasya, by discarding worldly life and its worldly manifestations, Atma can become Paramatma and thus one can attain salvation (moksha)”.

In Chhote Lal v. Chhoonoo Lal (1879)4 Cal 744 (PC)  case, the Court held that both the codified and uncodified Hindu law applied to Jains.

Sikhism:

Sikhs are dissenters from Hinduism. According to the first Guru, Shri Guru Nanak Devji. God is one. Sikhism discards all forms of Hindu worship and class distinctions. The tenets of Sikhism are essentially theistic Viz., God is one, the omnipresent, the omnipotent and omniscient; everyone should worship only one God, instead of numberless gods and goddesses, and should earn his living with his own labour and skill.

In Bhagwan Kour v. J.C. Bose, (1926)7 Lah 275 (Udasis), and Sugan Chand v. Parkash Chand, 1967 SC 506 cases, the Court held that in the absence of special custom among Sikhs they are governed by Hindu law.

Buddhism:

Buddhism is a religion which preaches practically a total negation of life (virakti).

In Ram Pergash v. Mst. Dahan, (1924)3 Pat. 152 case, the Court held that the Buddhists are governed by Hindu, law as modified by custom prevalent and recognized among them.

In Vanni v. Vannichi, (1924) 51Mad. (FB) case, the Court held that the codified Hindu law applied to the Buddhists just as it applies to any other Hindu.

Cults and Movements in Hinduism:

There were certain movements against the orthodox practices in Hinduism. The Brahmos (Members of the Brahmo Samaj) are reformers of Hinduism who profess to restore the Hindu faith to its original purity. They are Vedantists, Ram Mohan Roy, the founder of the cult, propounded a monotheistic interpretation of Vedas. The Arya Samajists (members of Arya Samaj founded by Swami Dayanand Saraswati)  believe in the unity of God and the Vedas. They discard idol worship and are against Class distinction. The followers of Radhaswami sect recognize an impersonal deity and name it as Radha Swami Dayal, the Supreme Being. The deity is represented on this earth by a human being called santsadguru. They believe that salvation lies living in the closest possible proximity of the guru. The Satsangi cult founded by Ramanuja believe that an individual is enjoined to follow the basic Vedic injunction of good, pious and religious life and that the path of salvation lies in the devotion to Lord Krishna. The Swayamariyathis or self-respecters is an anti-purohit cult which does not believe in caste distinctions arid in ritual and ceremonial aspect of Hinduism.

In the cases like Brahmo Samajists (Ram Bhagwan v. J.C. Bose (1903) 301 A 249), Arya Samajists (Shyamsunder v. Shankar, 1960 Mys 27), Radhasoamis (Shanti Swarup v. R.S. Sabha,1969 All 248), Satsangist (Shastri v. Muldas, 1966 SC 1119), Swayainariyathais the Courts held that  these movements represent a revolt against the orthodox practices of Hindus, particularly the ceremonial and ritual aspect of Hinduism, or against the rigidity of class system.

Conversion to Hinduism:

In Peerumal Vs. Poonuswami, AIR 1971 SC 2352 case, the Court held that a person may also become Hindu if after expressing an intention, expressly or impliedly, he lives as a Hindu and the community or casts into the fold of which he is ushered in accepts him as a member of that caste or community.

Reconversion to Hinduism:

A person who ceased to be Hindu by converting into a non-Hindu faith and who has come back to Hindu faith is also a Hindu. Thus, a person who ceased to be a Hindu by converting to non-Hindu religion may again become a Hindu if he reconverts to Hinduism. Jainism, Buddhism or Sikhism. It is not necessary that he reconverts to the same religion from which he converted to the non-Hindu religion.

In S. Anbalagan Vs. B. Devarajan, AIR 1984 SC 411 case, the Supreme Court concerned with a Hindu reconvert to Adi Dravida caste whose parents had converted to Christianity and who was also baptized at the age of seven months. As a reconvert, he successfully contested in the general elections from a reserved seat. His election was challenged mainly on the ground that since he did not belong to the Adi Dravida caste he could not contest from the reserved constituency. It was asserted that he continued to be a Christian. After a review of the authorities and on consideration of the facts, the Supreme Court observed that even if it was assumed that his parents had converted to Christianity and he was baptized when he was seven months old, there was sufficient evidence that he had long since reconverted to Hinduism and was accepted as one of its members by the Adi Dravida caste.

Hindu by Declaration:

In Mohandas Vs. Devaswami Board, 1975 KLT 55  case, one Jesudas, a Catholic Christian by faith and a famous singer, used to give devotional music in a Hindu temple. He also worshipped there like any other Hindu. He had also filed a declaration, “I declare that I am a follower of Hindu faith.” On these facts, the Kerala High Court held that Jesudas had become a Hindu by conversion and opined that if a person bona fide declares that he is a follower of Hindu religion and he consistently follows Hinduism thereafter, then he would be deemed to be a Hindu by conversion.

Any Person Who is Not a Christian, Parsi, Jew or Muslim by Religion:

Clause (c) of section 2(1) of the Hindu Adoptions and Maintenance Act, 1956, enacts that it would apply to all persons to whom Hindu Law applied before the passing of this Act except a Muslim, Christian, Parsi or Jew by religion.

From the above explanation we can conclude that a person is a Hindu unless it is shown that he had converted to a non-Hindu religion. In other words, any person who is a Hindu, Jain, Buddhist, or Sikh by religion is a Hindu if (a) he practices, professes or follows any of these religions, and (b) he remains a Hindu even if he does not practice, profess, or follows the tenets of any one of these religions.

Indian Legal System > Civil Laws > Family Laws >Hindu Laws > Who is Hindu?

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Section 13 (1) (i) of the Hindu Marriage Act, 1955 describes adultery as “Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.”

According to Section 13(1)(i) of the Hindu Marriage Act, 1955, the essential element of adultery are

1. There should be an act of sexual intercourse outside the marriage, and
2. That such intercourse should be voluntary.

Section 497 of the Indian Penal Code defines adultery: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man without the consent or connivance of that man such intercourse not amounting to the offence of rape is guilty of the offence of adultery”.

Thus adultery is extra-marital sex. It is consensual sexual intercourse between a married person and a person of the opposite sex not being the other spouse, during the subsistence of the former’s marriage. If the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, a divorce or judicial separation petition can be filed.

Under Section 10 of Hindu Marriage Act, 1955, even a single or isolated act of adultery will entitle other party to seek judicial separation from his partner. Before the enactment of the Marriage Laws (amendments), 1976, adultery was treated as the conduct of grave immorality. It was a thing of grave shame irrespective of the gender, however, it wasn’t a ground for divorce.  Before passing of the Marriage Laws (Amendment) Act 1976, in order to obtain a divorce on this ground, the petitioner had to prove that the other party was living in adultery which would cover more or less continuous and habitual course of action. An isolated act of immorality was not sufficient. But after the passing of the Act of 1976, even a single and isolated act of infidelity would be a sufficient ground to obtain a divorce.

The spouse who wants to file a divorce petition has to substantiate the statements with proper evidence. The burden of proof, in cases of adultery always lies on the petitioner. The offence of adultery must be proved beyond a reasonable doubt. Adultery, as a rule, is proved by, based upon any one or more proofs as below —

• Circumstantial evidence
• Evidence of non-access and birth of children
• Contracting of venereal diseases
• Evidence of visits to houses of ill repute
• Decrees and admissions of parties which should generally be corroborated
• The sexual intercourse was willingly indulged into by the respondents.
• The actual penetration need not be proved it can be proved by a preponderance of probabilities.

In Patta Dhanalakshmi v. Patta Ramachandra Rao, AIR 1998 AP 341 case, the wife was living in her parent’s house and became pregnant without resumption of cohabitation. She averred that the husband used to visit her and stayed in the nights. But she failed to examine her parents or any other person to support her version. In these circumstances, the court granted a divorce on the ground of adultery.

In Swapna Ghose v. Sadananda Ghose, AIR 1979 Cal 1 case, the wife found her husband and the adulteress to be lying on the same bed at night and further evidence of the neighbours that the husband was living with the adulteress as husband and wife. The Court held that this is sufficient evidence of adultery.

In Sita Devi v. Gopal Sharan, AIR 1928 Pat 37 case, the Court opined that the fact of the matter is that direct proof of adultery is very rare. Even when the direct proof of adultery is produced, the court would look upon it with suspicion, as it is very highly improbable that any person could be a witness of such acts which are, by their very nature, performed in utmost secrecy.

In Pushpa Devi v. Radhey Shyam, AIR 1972 Raj 360 case, the Court opined that in both the criminal and matrimonial offence of adultery, proof of marriage is required. Proof of adultery by direct evidence is rare and It would be unreasonable to expect direct evidence of adultery.

In H.T. Veera Reddi v. Kistamma, AIR 1969 Mad 235 case, the Court held that the birth of a child after four hundred and two days of separation from the husband is clear evidence of adultery because no child can be born of the lien of the husband after so long a separation.

In Ammini E.J. v. Union of India, AIR 1995 Ker 252  case, the Kerala High Court held that the husband is in a favorable position with respect to it being a ground for divorce because the wife has to prove adultery along with some other aggravating circumstances and hence it is discriminatory towards the wife. The Court also ruled that the wife may file for divorce only on the grounds of adultery, without any other qualifying offence such as cruelty or desertion.

Man and woman observe utmost secrecy about their meetings even when it is lawful. When it is unlawful, they take extra care. This makes direct evidence of adultery extremely difficult.  Therefore, if the law insists on direct evidence, few cases will be proved amongst hundreds and thousands. The result will be that the security of the marital right against ‘adultery’ will be reduced to a nullity. Adultery is proved by circumstantial evidence. If circumstantial evidence of adultery is to be admitted, proof of penetration has to be dispensed with. If the adulterers are proved to be in such juxtaposition or associating in such circumstances that the sexual act may be inferred, the court will usually be satisfied that adultery has occurred.

In Patayee Ammal v. Manickam, AIR 1967 Mad 254 case, the Court held that the nature of adultery is such that direct evidence is not possible.

In Imarta Devi v. Deep Chand (2004)1 HLR 387 case, the Court held that the nature of adultery is such that direct evidence is not possible. Courts therefore expect circumstantial evidence.

In Subbaramma v. Saraswati, AIR 1967 Mad 85 case, the Madras High Court held that “the unwritten taboos and rules of social morality in this country and particularly in village areas must necessarily be taken into account. If an unrelated person is found alone with a young wife after midnight, in her bedroom in an actual physical juxtaposition, unless there is some explanation forthcoming for this which is compatible with an innocent interpretation, the only interpretation that a court of law can draw must be that two were committing an act of adultery together”.

In Sulekha Bairagi v. Prof. Kamala Kanta Bairagi, AIR 1980 Cal 370,  case, according to the husband, his wife used to visit the house of the co-respondent and was even found in a compromising situation with him and that she used to neglect her duties. In this case, the decision was taken in favor of the petitioner on merit of the evidence provided, and judicial separation was granted.

In Dr. Ashok Kumar Aggarwal v. Smt. Anju Raje, AIR 2010 (NOC) 442 (P & H) case, the court held that mere suspicion of the husband cannot be a proof of adultery, especially when the husband had not seen wife in the company of any male member, nor he could name anyone, he was not entitled to a divorce.

When a married man contracts a bigamous marriage after the commencement of the Act, his first wife can file a petition for divorce under this provision. This is because the second marriage is void and its consummation amounts to extramarital sex.  

In Veena Kalia v. Jatinder Nath Kalia, AIR 1996 Del 54 case, the husband after marriage went abroad for studies leaving his two minor daughters and his wife in India. He did not try to take his wife with him and left her. For twenty-three years, they lived apart and the husband contracted a second marriage there. He had three children out of the second marriage. He was thus, guilty of cruelty, desertion and adultery. The wife got divorce, maintenance and compensation for the act of her husband.

If first marriage is considered void and a man marries the second time but continues his sexual relationships with his first wife, then as per Section 13 of Hindu Marriage Act, 1955, the second wife can file and obtain divorce or judicial separation under the Hindu Marriage Act, 1955.

What is not Adultery?

In Dennis v. Dennis, (1955) 2 All E. R. case, the Court held that only sexual intercourse with a person other than his or her spouse constitutes adultery, mere caresses, or other acts of intimacy with any other person does not amount to adultery.

In Barnett v. Barnett (1957) 1 All ER 388  case, the Court held that if a person lacks the mental capacity to consent, such as a minor or person of unsound mind, the intercourse will not be voluntary. Thus, a girl aged 12 years who is, in law, not capable of consenting to sexual intercourse, cannot be guilty of adultery.

In Goshawk v. Gushawk (1965) 109 SJ 290 case, the Court held that a woman who had been administered drinks and thus got drunk and then had a sexual act, is not guilty of adultery. But if has got drunk voluntarily, with the knowledge that it is likely to inflame her passions, she would be guilty of adultery if she indulges in sexual intercourse, even if at the time of the act, she was so drunk as to be incapable of giving her consent. In Benton v. Benton 1958 P 12 case, the Court held that the same principle would apply to taking of drugs.

If the wife can establish that she was raped by the co-respondent, then the husband would not be entitled to a divorce. Further, in a petition for dissolution of marriage, it is not necessary to prove that the co-respondent had knowledge or reason to believe that the respondent was the wife or husband of the petitioner. If the wife is raped, she is not guilty of adultery. It is a complete defence to the charge of adultery if the respondent’s wife was raped.

It seems difficult for a man to establish that he was forced. But if he can establish that in fact he was forced, the court would not grant the relief to the wife.

Sexual intercourse contemplated by the clause is an intercourse with a third person, i.e., non-spouse. Thus, intercourse with the wives of pre-Act polygamous marriage will not amount to extra-marital intercourse.

In many cases reported before the courts, where the spouse may have committed the act of suicide in response to the act of adultery by his or her spouse , the court does not consider it to be an act of cruelty and is only considered as an instance when one of the partners failed to discharge the marital obligations. 

Provisions Under Indian Penal Code:

The offence of adultery is punishable under Section 497 of the Indian Penal Code. The criminal action is filed not against the wife but against the adulterer. The wife is not guilty of the offence, not even as an abettor. In the matrimonial court, when a petition is filed for the matrimonial relief of divorce or judicial separation on the ground of adultery, the main relief is sought against the spouse and not against the adulterer. The adulterer or the adulteress is made merely a co-respondent, and that too is not always necessary.

Under the Section of the IPC, the person committing adultery shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

The existing adultery law under Section 497 gets complicated further in the view of an Amendment Act of 1976. This was the Marriage Laws (Amendment) Act. It makes an act of adultery valid ground for divorce. Either spouse can seek divorce on the ground of adultery. It states that even a single act of voluntary sexual act by either party to the marriage with any person other than his or her spouse constitutes a ground for divorce for the other spouse. While Section 497 of the IPC doesn’t recognize a woman as an aggrieved party in the case of adultery.

The petition was filed by non-resident Keralite, Joseph Shine, who challenged the constitutionality of IPC Section 497 read with Section 198(2) of the Criminal Procedure Code (CrPc). The CrPc Section 182(2) deals with prosecution for offences against marriages. The Supreme Court on August 2, said, “The law seems to be pro-women but is anti-women in a grave ostensible way. As if with the consent of the husband, the wife can be subjected to someone else’s desire. That’s not Indian morality.” The Court opined that Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence. Thus Section 497 is scrapped.

Conclusion

Adultery has always been discouraged throughout the history of mankind. In India, till 1976, a petition for divorce on the grounds of adultery could be filed only when the spouse was “living in adultery”, but now a petition can be filed on the grounds of adultery even when there has been only on instance of voluntary sexual intercourse outside the marriage.

Indian Legal System > Civil Laws > Family Laws > Grounds for Obtaining Decree of Divorce or Judicial Separation > Adultery (Extra-Marital Sex)

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These are Bare Act Provisions of Section 13 of the Hindu Marriage Act, 1955. The Provisions of Section 13 shall be discussed in upcoming articles

Section 13: Divorce:
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation:

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

Explanation:

In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation.

This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).

Section 13-A. Alternate Relief in Divorce Proceedings:

If any proceeding under this
Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

Section 13-B. Divorce by mutual consent:

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree

Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Divorce (Section 13) Provisions

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A Hindu marriage is considered a sacrament. It is an irrevocable relationship between husband and wife established through rituals and customs. In case of a failed marriage, they had to continue with the marriage and couldn’t break the marriage. The Hindu Marriage Act, 1955 provide that in case of a failed marriage, the parties do not need to suffer in the marriage and can easily break their matrimonial alliance through Judicial Separation (Section 10) or by a decree of Divorce (section 13).  It is upon the parties to choose between the two methods of dissolution.

Prior to enactment of the Hindu Marriage Act, 1955, it was practiced that in the absence of a custom to the contrary, there can be no divorce between a Hindu husband and his wife, who by their marriage, had entered into a sacred and indissoluble union and neither conversion nor degradation nor loss of caste nor the violation of an agreement against polygamy dissolves the marriage tie.

In Keshav v. Gandhi 39 Bom 588 case, the Bombay High Court condemned a custom allowing divorce as a matter of course on payment of a fine fixed by the caste.

In Thangammal v. Gangayammal (1945)1 MLJ 229 case, the Madras High Court holds a custom valid which enables either spouse to divorce the other with the latter’s consent.

Provisions of Section 13 of the Hindu Marriage Act, 1955:

Either party to the marriage, whether solemnized before or after the commencement of the Hindu Marriage Act, 1955 can under Section 13 of the Act file a petition for divorce. This petition can be filed only after completion of one year of marriage. It is a permanent end of marital rights between the spouses. Thus in divorce, the marriage ends. The relief of divorce may be obtained in respect of any marriage whether solemnized before or after the commencement of this Act. Thus, Section 13 is retrospective as well as prospective operation.

Grounds for Divorce Section 13(1) and 13(2):

The grounds for divorce as given under Section 13(1) of the Act. Either party to the marriage, whether solemnized before or after commencement of the Hindu Marriage Act, 1955 can under Section 10 of the Act file a petition for judicial separation on any one ground as prescribed in Section 13(1) and in case of wife also on any of the grounds specified in Section 13(2) of the Act.

• Adultery: If other spouse after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse after solemnization of marriage.
• Cruelty: If after solemnization of marriage, one of the spouses treats the other with cruelty. Cruelty can be of both kinds: physical and mental. It is physical when the body is injured. It is mental when feeling and sentiments are wounded. The petitioner may be meted with the cruelty of either or both types.
• Desertion: Desertion means withdrawing from the matrimonial obligation, i.e., not permitting or allowing and facilitating the cohabitation between the parties. If the other party has deserted the spouse without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage for a continuous period of 2 years without any reasonable ground immediately preceding the presentation of the petition.
• Conversion: If one of the spouses has ceased to be a Hindu. When one spouse voluntarily relinquishes one’s religion and adopts another distinctive religion after formal ceremonies, it is conversion on his part.
• Insanity: If the other party is of unsound mind or has been suffering continuously from mental disorder of such a kind and to such an extent that the petitioner cannot live with the other party.
• Leprosy: If the other party has been suffering from a virulent and incurable form of leprosy.
• Venereal disease: If the other party has been suffering from venereal disease in a communicable form.
• Renounced the world: If the other spouse has renounced the world by entering any religious order. Entering into the sanyasa ashrama in the old age is in accordance with Hindu religion. A person may enter into a holy order even at a young age and it is not contrary to the Hindu religion. But it becomes a ground for judicial separation.
• Presumption of death: Nothing has been heard about the spouse’s aliveness for seven years.

All these grounds shall be discussed in detail in upcoming Articles.

In addition to the above-mentioned grounds, Sub- Section (2) of Section 13 of the Hindu Marriage Act, 1955 provides four additional grounds to the women for obtaining a divorce from her husband. Thus, a wife may file a petition for divorce on any one of the following four grounds:

• Husband has more than one wife living: If the husband had married before the commencement of the Act and after the commencement of the Act has again remarried either of the wives can present a suit for judicial separation provided the other wife is alive at the time of presentation of the petition;
• Rape, Sodomy, or Bestiality: If a Husband is guilty of an offense like rape, sodomy, or bestiality, the wife can present a petition for judicial separation;
• A Criminal Suit Against HusbandNon-Resumption of Cohabitation after a Decree/Order Of Maintenance: If in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (or under the corresponding Section 488 of the Code of Criminal Procedure 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
• Repudiation of Marriage: If the marriage of women was solemnized before attaining 15 years of age, on her attainment of 15 years she could repudiate it but before attaining the age of 18 years.

Section 13 lays down three types of grounds for divorce, which may be classified as follows:

1. Nine grounds based on the “fault-disability” theory of divorce which only the ‘aggrieved spouse’ may avail. These are laid down in sub-Section (1).
2. Two grounds based on the “Break down” theory of divorce which either the ‘aggrieved’ or the ‘guilty’ spouse may avail.
3. Four special grounds, which only a wife can avail. These are laid down in subSection (2).

In all, there are 15 grounds for divorce.

Amendments in Section 13 of the Hindu Marriage Act, 1955:

This Section has, since its initial enactment in 1955, been amended twice- first in 1964 and then, drastically in 1976.

The Hindu Marriage Act, 1955 originally based divorce on the fault theory and enshrined 9 fault grounds in Section 13 (1) on which, either the husband or the wife could sue for divorce. Section 13 has undergone a substantial change by reason of subsequent amendments. The grounds mentioned in sub-Section (1) and (1-A) are available to both the husband and wife; while the grounds mentioned under sub-Section (2) are available only to the wife.

In 1964, Section 13 (1-A) has been inserted containing two clauses under which, non-resumption of cohabitation for two years or upwards after the decree of judicial separation or restitution of conjugal rights was made a ground of divorce. This is a modification of clauses (viii) and (ix) of Section 13 of the Hindu Marriage Act, 1955. By the Marriage Laws (Amendment) Act 1976, the period of two years is reduced to one year. Section 13 (1-A) introduced an element of Break-down theory in the Hindu Marriage Act 1955.

The Hindu Marriage Act, 1955 originally contained two fault grounds in Section 13 (2) on which, a Hindu wife alone could sue for divorce. The Marriage Laws (Amendment) Act 1976 has inserted two additional fault grounds of divorce for wife and a new Section 13-B under which, divorce by mutual consent has been made available as a matrimonial relief. Thus, in the modern Hindu law, the position is that all the three theories of divorce are recognized and divorce can be obtained on the basis of any one of them. Further, the customary mode of divorce is also retained.

Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Divorce

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Section 5 of the Act of 1955 prescribes conditions for a valid Hindu Marriage. A marriage may be solemnized between any two Hindus if the conditions given in section are fulfilled. In this article, we shall study the fourth condition prescribed in the section i.e. No marriage within the degrees of prohibited relationship.

Section 5: the Hindu Marriage Act, 1955:

Condition for a Hindu Marriage:

A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) 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
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) 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;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) (Omitted)

Section 5 (iv) of the Hindu Marriage Act, 1955:

The parties to the marriage should not be within the degrees of prohibited relationship unless a custom or usage governing each of them permits such a marriage:

Under this clause, a marriage between persons who are within the degrees of prohibited relationship with each other is prohibited. Under the ancient Hindu Law also, such a marriage was not allowed. The Hindu texts went to the extent of prohibiting a man marrying a girl even of the same “gotra” or “pravara” on the theory that his father and the girl’s father were both descendants of a common ancestor in the male line and all such marriages were held invalid until the Hindu Marriage Disabilities Removal Act, 1946 was passed.  

This requirement of a valid Hindu marriage specified in Section 3(iv) is mandatory, and its contravention will render a marriage void unless such a marriage is sanctioned by custom or usage of both the parties.

Reason of Prohibition:

Marriage between parties related to each other within the degrees of prohibited relationship is forbidden to prevent:
a) physical degeneracy of the race which the marriage between near relations would lead to;
b) moral degeneracy and consequent evil results which are apt to affect a society built on the edifice of the joint family system

Understanding the Provisions:

For understanding this section we have to study Section 3(c), 3(d), 3(g) and 5 simultaneously.

Section 3 Subclauses (c) of the Act defines the terms Full blood” and “half-blood” relations as under.

Section 3 (c) Meaning of terms Full blood” and “half-blood” relationship:

two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives;

Section 3 Subclauses (d) of the Act defines the terms Full blood” and “half-blood” relations as under.

Section 3 (d) Meaning of the term “uterine blood” relationship:

two persons are said to be related to each other by uterine blood when they are descended from a common ancestor but by different husbands.

Explanation:

In Clauses (c) and (d) “ancestor” includes the father and “ancestress” the mother;

Section 3 Subclause (g) of the Act defines the term “”degrees of prohibited relationship” as under.

Section 3 (g) Meaning of “degrees of prohibited relationship”

two persons are said to be within the “degrees of prohibited relationship”-

(i) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or

(iii) 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 or the other; or

(iv) 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.

Explanation:

for the purposes of clauses (f) and (g) relationship includes-

(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.

But if the “custom” or “usage” governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship, then such marriage will be valid and binding.

Section 5 (iv) of the Hindu Marriage Act, 1955 deals prohibits marriage between persons who are within the prohibited degrees of relationship with each other. The list of degrees of prohibited relationship for a male is given below. A man cannot marry a woman having a relationship with him as under:

1. A female ascendant in the line.
2. Wife of a descendant in the line.
3. Wife of the brother.
4. Wife of the father’s brother.
5. Wife of the mother’s brother.
6. Wife of the grand father’s brother.
7. Wife of the grand mother’s brother
8. Sister.
9. Brother’s daughter.
10. Sister’s daughter.
11. Father’s sister.
12. Mother’s sister.
13. Father’s sister’s daughter.
14. Father’s brother’s daughter.
15. Mother’s sister’s daughter.
16. Mother’s brother’s daughter.

The list of degrees of prohibited relationship for a female is given below. A woman cannot marry a man having a relationship with him as under:

1. Her lineal ascendant likes Father, Father’s Father.
2. The husband of a lineal ascendant.
3. The husband of a lineal descendant.
4. Brother.
5. Father’s brother.
6. Mother’s brother.
7. Brother’s son.
8. Sister’s son.
9. Father’s brother’s son.
10. Father’s sister’s son.
11. Mother’s brother’s son.
12. Mother’s sister’s son.

Under this clause, a marriage between persons who are within the degrees of prohibited relationship with each other is prohibited. Under the ancient Hindu Law also, such a marriage was not allowed. This requirement of a valid Hindu marriage is mandatory, and its contravention will render a marriage void.

Section 5 (iv) allows such marriage if the “custom” or “usage” governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship. Section 5 (iv) makes such marriage valid and binding.

The custom must not be unreasonable or opposed to public policy. A custom would not be recognized, if it is abhorrent to decency or morality or if it is inconsistent with the practices of good men. A custom prevailing amongst the Jats of Punjab allows marriage with a brother’s widow. In some parts of South India, a marriage of a man with his sister’s daughter is also recognized by custom. In some part of Maharashtra, the girl’s marriage with the father’s sister’s son is valid. In Andhra Pradesh, custom permits marriage with sister’s daughter

A marriage which is performed in breach of this condition is void ab initio under Section 11 of the Hindu Marriage Act, 1955 and a competent Court can declare it to be void, on a petition presented by either party to such a marriage. Further, the persons contravening the provisions of this clause are also liable to be imprisoned or fined (or both) under Section 18(b) of the Act.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Conditions for Valid Hindu Marriage: Degrees of Prohibited Relationship

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A Hindu marriage is considered a sacrament. It is an irrevocable relationship between husband and wife established through rituals and customs. In case of a failed marriage, they had to continue with the marriage and couldn’t break the marriage. The Hindu Marriage Act, 1955 provide that in case of a failed marriage, the parties do not need to suffer in the marriage and can easily break their matrimonial alliance through Judicial Separation (Section 10) or by a decree of Divorce (section 13).  It is upon the parties to choose between the two methods of dissolution.

Section 10 in The Hindu Marriage Act, 1955

Judicial Separation:

(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Either party to the marriage, whether solemnized before or after the commencement of the Hindu Marriage Act, 1955 can under Section 10 of the Act file a petition for judicial separation. After a decree is passed in favor of the parties, they are not bound to cohabit with each other. It is a temporary suspension of marital rights between the spouses. The parties remain husband and wife. Thus in judicial separation, the marriage subsists.

Judicial separation can be allowed only if the marriage is valid. If the parties want to resume cohabitation, an order of the court rescinding the decree will be necessary. Generally, the court will rescind the decree whenever parties ask for it. If the cohabitation is not resumed for a period of one year or more after the passing of the decree of judicial separation, any party may apply for divorce under Section 13 (1-A) (i) of the Hindu Marriage Act, 1955.

Consequences of Judicial Separation:

After a decree is passed in favor of the parties,

• They are not bound to cohabit with each other;
• They are entitled to separate from each other and all basic marital obligations remain suspended;
• Marital intercourse no longer remain enforceable;
• Marital obligations and rights are not available to them;
• They cannot remarry during the period of separation;
• Either party may be entitled to get maintenance from the other if the situation so warrants.
• If any of them remarries, he or she will be guilty of bigamy.
• In the event of one of the parties dying, the other party will inherit the property of the deceased spouse. (Narasimha Reddy and others v. M. Boosamma AIR 1976 AP 77)

Grounds for Judicial Separation Section 13(1) and 13(2):

The grounds for judicial separation are the same as for divorce as given under Section 13(1) of the Act. Either party to the marriage, whether solemnized before or after commencement of the Hindu Marriage Act, 1955 can under Section 10 of the Act file a petition for judicial separation on any one ground as prescribed in Section 13(1) and in case of wife also on any of the grounds specified in Section 13(2) of the Act.

• Adultery: If other spouse after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse after solemnization of marriage.
• Cruelty: If after solemnization of marriage, one of the spouses treats the other with cruelty. Cruelty can be of both kinds: physical and mental. It is physical when the body is injured. It is mental when feeling and sentiments are wounded. The petitioner may be meted with the cruelty of either or both types.
• Desertion: Desertion means withdrawing from the matrimonial obligation, i.e., not permitting or allowing and facilitating the cohabitation between the parties. If the other party has deserted the spouse without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage for a continuous period of 2 years without any reasonable ground immediately preceding the presentation of the petition.
• Conversion: If one of the spouses has ceased to be a Hindu. When one spouse voluntarily relinquishes one’s religion and adopts another distinctive religion after formal ceremonies, it is conversion on his part.
• Insanity: If the other party is of unsound mind or has been suffering continuously from mental disorder of such a kind and to such an extent that the petitioner cannot live with the other party.
• Leprosy: If the other party has been suffering from a virulent and incurable form of leprosy.
• Venereal disease: If the other party has been suffering from venereal disease in a communicable form.
• Renounced the world: If the other spouse has renounced the world by entering any religious order. Entering into the sanyasa ashrama in the old age is in accordance with Hindu religion. A person may enter into a holy order even at a young age and it is not contrary to the Hindu religion. But it becomes a ground for judicial separation.
• Presumption of death: Nothing has been heard about the spouse’s aliveness for seven years.

All these grounds shall discussed in detail in upcoming Articles.

In addition to the above-mentioned grounds, Sub- Section (2) of Section 13 of the Hindu Marriage Act, 1955 provides four additional grounds to the women for obtaining judicial separation from her husband. Thus, a wife may file a petition for judicial separation on any one of the following four grounds:

• Husband has more than one wife living: If the husband had married before the commencement of the Act and after the commencement of the Act has again remarried either of the wives can present a suit for judicial separation provided the other wife is alive at the time of presentation of the petition;
• Rape, Sodomy or Bestiality: If a Husband is guilty of offense like rape, sodomy or bestiality, the wife can present a petition for judicial separation;
• A Criminal Suit Against Husband: If in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (or under the corresponding Section 488 of the Code of Criminal Procedure 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
• Marriage before the age of fifteen years: If the marriage of women was solemnized before attaining 15 years of age, on her attainment of 15 years she could repudiate it but before attaining the age of 18 years.

Section 13 lays down three types of grounds for judicial separation, which may be classified as follows:

1. Nine grounds based on the “fault-disability” theory of divorce which only the ‘aggrieved spouse’ may avail. These are laid down in sub-Section (1).
2. Two grounds based on the “Break down” theory of divorce which either the ‘aggrieved’ or the ‘guilty’ spouse may avail.
3. Four special grounds, which only a wife can avail. These are laid down in subSection (2).

In all, there are 15 grounds for judicial separation. This Section has, since its initial enactment in 1955, been amended twice- first in 1964 and then, drastically in 1976.

Difference Between Judicial Separation and Divorce:

Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Judicial Separation

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Section 5 of the Act of 1955 prescribes conditions for a valid Hindu Marriage. A marriage may be solemnized between any two Hindus if the conditions given in section are fulfilled. In this article, we shall study the third condition prescribed in the section. i.e. marriageable age.

Section 5: the Hindu Marriage Act, 1955:
Condition for a Hindu Marriage:

A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) 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
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) 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;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) (Omitted)

Section 5(iii) of the Hindu Marriage Act, 1955:

The bridegroom should have completed the age of 21 years and the bride the age of 18 years, at the time of marriage:

Under the ancient Hindu Law, no minimum age limits were prescribed for a Hindu marriage. There is an injunction for men that they should marry on the completion of the Brahmacharya Ashram i.e., Study of the Vedas. According to Griha Sutras, the minimum age for the marriage of a girl was 8 years.

Under Section 5(iii) of the Hindu Marriage Act, 1955, at the time of marriage, the age of bridegroom should be more than 21 years and that of the bride should be more than 18 years.

The violation of this clause does not make a marriage void or even voidable.

Child Marriage Restraint Act, 1929:

The Act of 1929 was passed by the efforts of Rai Saheb Harbilas Sarda for the object of checking the evil of the child marriage. Hence this Act is also known as ‘Sarda Act’. The aim of the Act was not to prohibit child marriage but to restrain from it. In this enactment, it was laid down that at the time of marriage, the bride must have completed 14 years and the bridegroom 18 years. Later on, by an amendment, the marriageable age of girls was raised to 15 years. A boy or a girl younger than this was declared a “child” and child marriage was made punishable. But according to this Act the child marriage performed was a valid marriage. The original Hindu Marriage Act 1955 did not differ from this state of law.

The Child Marriage Restraint (Amendment) Act, 1978 laid down that at the time of marriage, the bride must have completed 17 years and the bridegroom 21 years. Accordingly, the Hindu Marriage Act, 1955 and Child Marriage Restraint Act, 1929 was amended. This Amendment was not rendering child marriages void. But, it prescribed some penalties for those persons who are responsible for child marriages. The offences under the Act are not cognizable offences. This means that unless a complaint is filed, no proceedings can be launched in a court,

Prohibition of Child Marriage Act, 2006:

The Child Marriage Restraint Act, 929 Act was replaced by a new Act called the Prohibition of Child Marriage Act, 2006. According to that Act, the minimum age for the bride is 18 years at the time of marriage and for the bridegroom, it is 21 years.

Under Section 9 of the Prohibition of Child Marriage Act, 2006, whoever, being a male adult above 18 years of age, contracts a child marriage, shall be punishable with rigorous imprisonment which may extend to 2 years or with fine which may extend to one lakh rupees or with both.

Under Section 10 of the Prohibition of Child Marriage Act, 2006, whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he had reasons to believe that the marriage was not a child marriage.

Under Section 11(1) of the Prohibition of Child Marriage Act, 2006, here a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful including any member of an organization or association of persons who does any act to promote the marriage, or permits it to be solemnized or negligently fails to prevent it from being solemnized, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to 2 years or with fine which may extend to one lakh rupees. Provided that no woman shall be punishable with imprisonment.

Under Section 11(2) of the Prohibition of Child Marriage Act, 2006, for the purpose of this Section, it shall be presumed, unless and until the contrary is proved that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnized.

Under Section 12 of the Prohibition of Child Marriage Act, 2006, where a child, being a minor a) is taken or enticed out of the keeping of the lawful guardian; or b) by force compelled or by any deceitful means, induced to go from any place; or c) is sold for the purpose of marriage and made to go through a form of marriage or if the minor is married after which, the minor is sold or trafficked or used for immoral purposes, such marriage shall be null be void.

Under Section 3(1) of the Prohibition of Child Marriage Act, 2006,  every child marriage whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage. Provided that, a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.

Under Section 3(2) of the Prohibition of Child Marriage Act, 2006, if at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the child marriage prohibition officer.

Under the Hindu Marriage Act, 1955, a marriage solemnized in contravention of the conditions prescribed for a valid marriage was treated as valid. By invoking the doctrine of Factum Valet, validity was given to child marriages. Later, the Marriage Laws (Amendment) Act, 1976 through 13 (2) (iv), provided relief to a Hindu wife if her marriage was solemnized before attaining 15 years, can repudiate after attaining 15 years and before attaining 18 years. Now the Prohibition of Child Marriage Act, 2006 made a child marriage, voidable.

Under Section 3(3) of the Prohibition of Child Marriage Act, 2006, the petition under this Section may be filed at any time but before the child completes 2 years of attaining majority.

Under Section 14 of the Prohibition of Child Marriage Act, 2006,  any child marriage solemnized in contravention of an injunction order issued prohibiting such marriage, shall be ‘void ab initio’.

Under Section 15 of the Prohibition of Child Marriage Act, 2006, notwithstanding anything contained in the Code of Criminal Procedure 1973, offences punishable under this Act shall be cognizable and non-bailable.

Under Section 13(2) (iv) of The Hindu Marriage Act, 1955, according to the Marriage Laws (Amendment) Act,1976 where the marriage of a girl (whether consummated or not) solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years, the girl can obtain a decree for dissolution of marriage. This is an additional ground made available to a wife. This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Conditions for Valid Hindu Marriage: Age

The post Conditions of Valid Hindu Marriage: The Age S. 5(iii) appeared first on The Fact Factor.

Section 5 of the Act of 1955 prescribes conditions for a valid Hindu Marriage. A marriage may be solemnized between any two Hindus if the conditions given in section are fulfilled. In this article, we shall study the second condition prescribed in the section. i.e. Soundness of mind.

Section 5: the Hindu Marriage Act, 1955:
Condition for a Hindu Marriage:

A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) 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
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) 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;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) (Omitted)

Section 5(ii) of the Hindu Marriage Act, 1955:

Neither party should be suffering from unsoundness of mind, mental disorder or insanity:

Section 5(ii) lays down that the parties to the marriage are of sound mind and are not suffering from any mental disability so as to be unfit for giving valid consent. The Hindu Marriage Act, 1955 originally laid down that neither party to the marriage should be an idiot or lunatic. Under this Act, the marriage of the idiot or lunatic was only voidable

Judicial Interpretation of Soundness of Mind Before the Act:

Under the old Hindu Law as per the texts, a Hindu marriage was a pure sacrament, and therefore, idiots and lunatics could be lawfully married, as a consenting mind was not necessary.

An “idiot” is “he, that a fool from his birth and knoweth not how to count
or number, or can not name his father or mother, nor of what age he himself is, or such as easy and common matters; so that it appeared that he has no manner of understanding, or reason, or government of himself, or what is for his profit or disprofit

In Amrithammal v. Vallimayil Ammal AIR 1942 Mad 693  and Ratneshwari v. Bhagwati AIR 1950 PC 142 cases the Courts held that according to ‘Smritis’, mental soundness was not a condition for marriage. It necessarily implies that a person of unsound mind could marry and his marriage was legally safeguarded in the name of samskara.

Amendments in Section 5 (ii) :

Originally, Section 5(ii) of the Hindu Marriage Act, 1955 laid down that: “Neither party to the marriage should be an idiot or lunatic at the time of marriage”.

The Marriage Laws (Amendment) Act, 1976 has reframed this clause thus-
At the time of the marriage, neither party

a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; (or)
b) though capable of giving 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)
c) has been subject to recurrent attacks of insanity (or epilepsy)

The word epilepsy has been omitted from the H. M. Act, 1955 by the Marriage Laws (Amendment) Act, 1999.

Explanation of Section 5(ii) Soundness of mind Defined:

Under sub-clause (a) of Section 5 Clause (ii), every kind of ‘unsoundness of mind’ is not covered. The unsoundness of mind should be such, which incapacitates a person from giving a valid consent to the marriage. It need not be persistent or continuous unsoundness of mind. It may exist just before the marriage

Under sub-clause (b) of Section 5 Clause (ii), the person is capable of giving a valid consent but suffering from mental disorder of such a kind (or) to such an extent as to be unfit for marriage and the procreation of children. The words “has been suffering” requires that mental disorder should be of some duration. The duration will differ from case to case, and no hard and fast rule can be laid down. It is not every ‘mental disorder’ which renders the marriage voidable, but should satisfy two conditions given in the clause: first, it renders him unfit for marriage, and the second renders him unfit for procreation of children.

In Smt. Alka Sharma v. Abhinesh Chandra Sharma, AIR 1991 MP 205 case, the Court held that nullity of marriage under the word “and” between expression “unfit for marriage” and “procreation of children”, in Sec. 5 (ii) (b) should be read as “and” / “or”. The court can nullify marriage if either condition or both conditions contemplated exist due to mental disorder making living together of parties highly unhappy. The Court also opined that the word “procreate” includes the capacity to rear up children besides the capacity to beget them.

Under sub-section (c) of Section 5 Clause (ii), recurrent attacks of insanity make a person unfit for marriage. He cannot marry even during a lucid interval. This sub-section has made a substantial difference between the original provision and the present provision. The original provision was that neither party was an idiot or a lunatic at the time of the marriage. It could mean that a person who was suffering from recurrent attacks of insanity could marry during a lucid interval because then it could not be said that he was an idiot or a lunatic at the time of marriage. This clause looks at the mental state even before marriage. The Marriage Laws (Amendment) Act, 1999 has omitted the word ‘epilepsy’. Thus now there is no condition of the marriage that a party to the marriage should not suffer from ‘recurrent attacks of epilepsy.

In R. Lakshmi Narayana v. Santhi (2001)4 SCC 688 case, the Court held that the marriage which takes place in contravention of the condition prescribed in Section 5 of the Hindu Marriage Act, 1955 is not per se void but voidable under Sec.12 (1) (b) of the Act.

Conclusion:

As per Section 5(ii), the parties in Hindu marriage should have soundness of mind.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Conditions for Valid Hindu Marriage: Soundness of Mind

The post Conditions of Valid Hindu Marriage: Soundness of Mind S. 5(ii) appeared first on The Fact Factor.

Section 5 of the Act of 1955 prescribes conditions for a valid Hindu Marriage. A marriage may be solemnized between any two Hindus if the conditions given in section are fulfilled. In this article, we shall study the first condition prescribed in the section. i.e. Monogamy.

Section 5: the Hindu Marriage Act, 1955:

Condition for a Hindu Marriage:

A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) 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
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) 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;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) (Omitted)

Section 5(i) of the Hindu Marriage Act, 1955:

Neither party should have a spouse living at the time of the marriage:

From the Vedic period, though monogamy has been the rule, polygamy as an exception, existed side by side. The rules relating to ‘Anuloma’ marriages allowed a man more than one wife. But the wife who was first wedded was alone the wife in the fullest sense. Manu allowed a second marriage to a man only after the death of his wife. But under certain circumstances, he allowed a second wife. It was only when a wife was barren, diseased, or vicious, that could be superseded and a second marriage was valid; as also when she consented. On the supersession of a wife, the husband had to make provision for her. The first married wife had precedence over the others and her firstborn son over his half-brothers.

Section 5 clause (i) of the Act establishes the rule of monogamy and prohibits polygamy, which was permitted before the Act came into force. It also prohibits polyandry, which was prohibited by the ancient Hindu law also. Under Section 11 of the Act, bigamous marriages are void. A competent court may declare such a marriage to be a nullity on a petition presented by either party to such marriage. Further, Section 17 of the Act makes bigamy a penal offence for both Hindu males and females under Sections 494 and 495 of IPC.

Polyandry permits a female to have more than one husband simultaneously.  

In Krishnan v. Ammalu, 1972 Ker 91  case, the Court observed that in Lahaul valley in Himachal Pradesh and among Thiyyas of South Malabar, polyandry was recognized.

In Palaniappa Chettiar v. Alagan Chetti, (1921)48 I.A 539, 543, case, the Court observed that in some cases, the custom prevents any second marriage without the consent of the first wife and without making provision for her.

In Adhav v. Adhav, AIR. 1988 SC 644 case, the Supreme Court has held that a marriage with a person who has a living spouse is totally null and void; it cannot be treated as voidable under S. 12 of the Act.

Who Can Complain of Bigamy?

Section 5(i) of the Hindu Marriage Act, 1955 provides for monogamy. Thus bigamy is an offence under the Section. Only the person aggrieved can complain in case of bigamy. If it is the wife who is aggrieved, then her father can complain as he is the lineal ascendant of the wife.

Remedies Available to the First Wife:

If a husband/wife is about to take a second wife/husband, the first wife/husband can ask for an injunction from the court. A suit for a perpetual injunction by one spouse against the other can be filed under Section 9, C.P.C read with Section 38, Specific Relief Act, 1963.

The first wife of a bigamous marriage has no right to file a petition for nullity under the Hindu Marriage Act, 1955 since Section 12 clearly lays down that a petition for a declaration that the marriage is null and void can be filed only by either party to the marriage. But the first wife can file a suit in a civil court for a declaration under Section 9, C.P.C. read with Section 34, Specific Relief Act, 1963 that the second marriage of her husband is null and void. She can also file a petition for divorce under Section13 (1) (i) of H.M.Act, 1955 on the ground of Adultery.

Remedy for the Second Wife:

In Jayalakshmi v. Gayatri, AIR 1998 Kant 169 and Savitri Devi v. Manorama Bai, AIR 1998 MP 114 cases the Court held that in a bigamous marriage, the “second wife” has no status of wife. But she is entitled to maintenance under Section 25 of the Hindu Marriage Act, 1955. The second wife can claim interim maintenance under Section 20 of the Hindu Adoption and Maintenance Act, 1956.

In Megh Prasad v. Bhagwanti Bai, AIR 2010 Chhattisgarh 25 (para 9)  case, respondent married the appellant with the consent of his first wife. At the time of alleged marriage of respondent with the appellant, both parties i.e. appellant and respondent were having spouses and their marriages were not dissolved by a decree of divorce or by any recognized custom. The Court held that such marriage is in violation of Section 5 (i) of the Hindu Marriage Act, 1955. The words ‘Hindu wife’ used in Section 18 of the Hindu Adoptions and Maintenance Act, 1956 only include a lawful wife or legally wedded wife and does not include any wife of second marriage during the subsistence of her first marriage. Hence the respondent is not legally wedded wife or lawful wife of the appellant.

In Smt. Sushma Choure v. Hetendra Kumar Borkar, AIR 2010 Chhattisgarh 30 (DB) (paras 12 and 14) case, the court held that the second marriage during the subsistence of first marriage is void.
In Gurmit Kaur v. Buta Singh, AIR 2010 (NOC) 440 (P & H) it was held that when the marriage being void from its inception, no amount of delay can stand in the way of obtaining a declaration as to nullity of marriage.
In Ms. Bhavna Sahar Wasif v. Flying Officer Rajiv Gakhar, AIR 2010 (NOC) 444 (P & H) petition was presented by the husband under Section 11 of the Hindu Marriage Act, 1955 for declaring marriage as null and void on the ground that his wife was already married to person belonging to Muslim religion. It was held that wife being converted to Muslim and was no longer a Hindu, the Hindu Marriage Act, 1955 will have no application to entertain a petition.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Conditions for Valid Hindu Marriage: Monogamy

The post Conditions of Valid Hindu Marriage: Monogamy: S. 5(i) appeared first on The Fact Factor.

Though the sacramental aspects of Hindu marriage still tend to persist, the passing of the Hindu Marriage Act, in 1955, has substantially modified the institution of marriage as recognized by the ancient Hindu law. Transformations have been marked in respect of restrictions in marriage, selection of mates, marriage rites and rituals, age at marriage, the aim of marriage, parental control in marriage, settlement, the stability of marriage, the practice of dowry, etc. The Most Important Changes brought about by the Hindu Marriage Act are mentioned below:

• A Hindu marriage is now not so much concerned with religion. It is more a result of mutual consent than sacramental. It is a contract [Sections 5(ii), (iii), 11 to 13 and 7].
• Section 2 of the Act defined the term “Hindu” and as per this Section, the Act has declared that marriages amongst Hindus, Jains, Sikhs, and Buddhists, are valid Hindu marriages in the eyes of the law. (Section 2.)
• The Act has abolished the divergence between the Mitakshara and the Dayabhaga Schools in connection with the prohibited degrees of relationship for the purposes of a Hindu marriage. (Section 3.)
• The Act has declared polygamy to be illegal. The law provides that no one can marry a second time while the former spouse is alive. Any marriage during the lifetime of a living spouse, wife or husband, has been declared null and void. Thus the Act introduces monogamy for the first time amongst the Hindus and provides for punishment for bigamy under the Indian Penal Code. (Sections 5 and 17.)  This has brought to an end the age-old practice of marrying several women in order to get a son. Bigamy has been made punishable under Section 17 as an offence under the Indian Penal Code, 1860, Sections 494 and 495.
• The Act abolishes the distinction between the marriage of a maiden and that of a widow. Previously the Hindu widows were not allowed to contract a second marriage. Rather the practice of ‘Sati’ was followed. Now the practice of sati has been abolished with the enactment of the law. The Hindu Widow Remarriage Act, 1950 has made provision for remarriage of widows.
• The Act also prescribes the minimum age for marriage, being 21 in the case of a boy, and 18 in the case of a girl. (Section 5.) Ancient Hindu law did not prescribe any such age for marriage. Thus the Hindu Marriage Act, 1955, The Child Marriage Restraint (Amendment) Act, 1978 and Prohibition of Child Marriage Act, 2006, have helped in the reduction of child marriages.
• The Hindu Marriage Act, 1955 has not prescribed any particular form of the eight ancient forms of Hindu marriage. It simply lays down the conditions for a valid marriage. The Act calls marriages solemnized under the Act as Hindu marriages which may be performed in accordance with the customary ceremonies prevalent in the community to which, the bride belongs. (Section 5.)
• Conditions for a valid Hindu marriage have been codified under Section 5 and ceremonies for marriage have been rationalized to suit a diversity of customs, at the same time excluding any whimsical ceremonies not authorized either by a prolonged usage or custom of the marrying parties. These rites and rituals envisaged the Hindu marriage as a religious sacrament, which included Vivah Homa, saptapadi, panigrahana, kanyadana, pradakshina, etc. The Act does not prescribe any particular ceremony for a valid Hindu marriage. It simply lays down the conditions for a valid marriage. The Act calls marriages solemnized under the Act as Hindu marriages which may be performed in accordance with the customary ceremonies prevalent in the community to which, the bride belongs. (Sections 5 and 7.). The Civil Marriage Act of 1954 has made provision for marriages in civil courts. The Arya Samaj and other religious reform movements have made the marriage rituals simple and precise.
• The Act provides, for the first time, for the registration of Hindu marriages. (Section 8.)
• The Act also contains provisions for restitution of conjugal rights of the parties to a marriage. (Section 9.)
• Customarily the Hindu marriage was considered a religious sacrament and an indissoluble bond between the spouses for many births. But with the enactment of Act, the sacramental aspect of the Hindu marriage has been challenged. The Act also lays down grounds on which a judicial separation can be decreed by the Court. (Section 10.)
• The first sacramental characteristic of a Hindu marriage was that it is a permanent union and cannot be dissolved on any ground whatsoever. The Act lays down the grounds on which a divorce can be obtained by any of the parties to Hindu marriage. Further, the concept of divorce by mutual consent has also been introduced in the Act. (Sections 13, 13B and 14.).
• The Act also makes a provision for re-marriage, inasmuch as it provides that after a valid divorce, either party may marry again. (Section 15.)
• The Act also provides for maintenance pendente lite and for expenses of legal proceedings by either of the spouse having no source of income. (Section 24.)
• The Act also provides for permanent alimony and maintenance to by either of the spouse having no source of income. (Section 25.)
• The Act also makes provisions for the custody of children during the pendency of legal proceedings, as also after the passing of a decree. (Section 26.)
• The Act guarantees the security of any property presented at or about the time of marriage (Section 27).
• As a humanitarian gesture, legitimacy has been conferred on such children who are born of void or voidable marriage so as to enable them to inherit the property of their parents.
• The right for disposal of the property presented at or about the time of marriage, which may belong jointly to husband and wife, has also been conferred upon parties by this Act
• Section 18 (a) of the Hindu Marriage Act, 1955 has been modified to make the offence of child marriage a a cognizable and non-bailable offence punishable with rigorous imprisonment for 2 years and/or a fine of one lac rupees.

Social Changes:

Abolishment of Exogamic and Endogamy Principles:

The exogamic principle of Hindu marriage stipulated that one must select his life partner from outside his own groups such as the pinda or pravara or gotra, while the endogamy principle proclaimed that the Hindus are to select their mates inside their own caste group. Even recent time also we see that the violation of the principle of endogamy attracted punishment amounting to ostracizing, excommunication and even honour killing. The Hindu Marriage Act, 1955 has allowed sagotra and sapinda marriage. It has also allowed the cross-cousin marriage where it prevailed customarily. Inter-caste marriages are encouraged by social reformers and the legal system. Even inducements are given by the government for the practice of inter-caste marriage. 

Less Parental Control:

Previously the parents or other relatives were responsible for settling marriages. Their decision regarding the selection of mates was binding. But nowadays, in the wake of modernization, modern values and modern education boys and girls are inculcating individualism and liberalism. These factors helped them to take their own decisions. Hence in the present era, the parents and relatives seek their opinion in marriage.

Changing Social fabric:

The traditional criteria of caste, religion, family background and income are no more considered important in the selection of mates. The emphasis has shifted to the socio-economic status of the bridegroom’s family and his education and earning potential.

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