THE HINDU MARRIAGE ACT, 1955

THE HINDU MARRIAGE ACT, 1955

The Hindu Marriage Act, 1955 (HMA) received the assent of the President on 18 May, 1955 and became law on that day.

Overriding effect of the Act

• The Act has an overriding effect and it abrogates all the rules of marriage previously applicable.
• Section 4 provides that any text, rule or interpretation, custom or usage of Hindu Law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.
• Any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.

Extra-territorial application of the Act

• The Act will apply to Hindu domiciled in India even if they reside outside India
• Section 1(2) provides for the extra-territorial application of the Act. It lays down that the Act extends to the whole of India. It also applies to Hindus domiciled in the territories to which the Act extends who are outside the said territories.
• It is based on the principle of law that personal relations are governed by the law of domicile.

Applicability of the Act

Section 2 provides for application of the Act. According to it the Act applies to the following persons 

(i) Persons who are Hindus by religion in any of its forms or developments including Virashaiva, A lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.

(ii) Persons who are Buddhists, Jains or Sikhs by religion.

(iii) Any person who is domiciled in the territory to which the Act extends and is not a Muslim, Christian, Parsi or Jew by religion.

Who is a Hindu?

The term 'Hindu' denotes all those persons who profess Hindu religion either by birth or by conver sion. A person who carries a Hindu way of life and who is known by others to be a Hindu can be said to be a Hindu.

Supreme Court in Chandrashekhar v. Kulandaivela, AIR 1963 SC 185, held that any person who is a Hindu, Buddhist, Jain or Sikh by religion is a Hindu if-

• He practices, professes or follows any of these religions; and
• He remains a Hindu even if he does not practice, profess or follow the tenants of any of these religions.

Explanation to Section 2 lays down that following persons are Hindus, Bhuddhist, Jains or Sikhs by religion

• Child (legitimate or illegitimate), whose both parents are Hindus, Buddhists, Jains or Sikhs.(Child (legitimate or illegitimate), one of whose parents is a Hindu, Buddhist, Jains or Sikhs by religion and who is brought up as a member of family to which such parent belongs.
• Any person who is a convert or re-convert to Hindu, Buddhist, Jain or Sikh religion.

Non-application of the Act to Scheduled Tribes

Section 2(2) provides that the Act is not applicable to the members of Scheduled Tribe within the meaning of Article 366(25) unless the Central Government by notification in the official gazette so declares.

Conditions for a Hindu Marriage

• Monogamy[Section 5(1)]
• Mental health or sanity[Section 5(ii)]
• Age of parties[Section 5(iii)]
• Avoidance of degree of prohibited relationships[Section 5(iv)]
• Avoidance Sapinda relationship[Section 5(v)]

Section 5 of the Act lays down the conditions for a valid Hindu Marriage It must be noted that under Act the marriage between a Hindu and a non-Hindu is void.

 Following are the conditions for a Valid hindu Marriage:

Monogamy [Section 5(i)]

• Section 5(1) states that neither party must have spouse living at the time of marriage. It implies monogamy and prohibits polygamy.
• The first marriage of a person must be legally valid marriage. If the first marriage is void or voidable the person cannot be prosecuted for bigamy.
• The second marriage must be solemnized for the prosecution of bigamy.

Apostasy to Islam: Supreme Court in Sarla Mudgal v. Union of India, held that there was no automatic dissolution of marriage by apostasy of a spouse to another religion. The second mar riage of a Hindu apostate to Islam during subsistence of first marriage is violation of provisions of HMA.

Decision in Sarla Mudgal's case was reviewed in Lily Thomas v. Union of India, (2006) 6 SCC 224. The court held that a marriage solemnized according to one personal law cannot be dissolved according to another personal law because of change of religion of parties.

Effect of contravention of Section 5(1)

If a person contravenes provisions of Section 5(1) the following consequences will ensue:-

(a) The marriage will be null and void under Section 11.

(b) The person will be liable for punishment for bigamy under Section 17 of HMA read with Sections 494 and 495 of Indian Penal Code.

Mental health or sanity [Section 5(ii)]

▸ Section 5(ii) stipulates that parties to the marriage must be of sound mind and must not be suffering from any disability which precludes them from giving a valid consent.

• It provides that at the time of marriage neither party must be
• Incapable of giving a valid consent of it in consequence of unsoundness of mind, or
• 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
• Subject to recurrent attacks of insanity or.epilepsy

This clause was amended in 1976. Prior to amendment, terms 'idiots' and lunatics' were used. The courts gave too liberal interpretation of the words.

Effect of contravention of Section 5(ii)

If the marriage takes place in contravention of Section 5(ii) then the marriage will be voidable under Section 12(1)(b).

Age of parties [Section 5(iii)]

• Section 5(ii) provides that at the time of marriage the bridegroom has completed the age of 21 years and the bride the age of 18.
• Originally, the age fixed by HMA was 18 years for bridegroom and 15 years for bride. The Child Marriage Restraint (Amendment) Act, 1978 fixed the minimum age for bridegroom to 21 years and minimum age for bride to 18 years.

Effect of contravention of Section 5(iii)

• The Hindu Marriage Act does not provide for any effect for contravention of this provision. Thus, according to HMA the marriage solemnized in contravention of Section 5(u) is neither void nor voidable.
• The only consequence which HMA provides is the punishment under Section 18. It provides for rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both

Further, if the requirements of Section 13(2) (iv) are satisfied then at the instance of bride, a decree for divorce on the ground of option of puberty can be granted.

The Prohibition of Child Marriage Act, 2006 provides that every marriage shall be voidable at the option of the contracting party who was the child at the time of marriage.

Avoidance of degree of prohibited relationships [Section 5(iv)]

Section 5(iv) provides that the parties to the marriage should not be within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.

Section 3(g) defines 'degrees of prohibited relationships'. It provides that two persons are said to be within the 'degrees of prohibited relationship-

1. If one is a lineal ascendant of the other; or
2. If one was the wife or husband of a lineal ascendant or descendant of the other, or
3. If one was the wife of the brother of of the father's or mother's brother or of the grandfather's or grandmother's brother or the other; or
4. 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.

For this purposes relationship includes

• Relationship by half blood, uterine blood or full blood;
• Illegitimate or legitimate blood relationship.
• Relationship by adoption as well as by blood.

A marriage within the prohibited degree is valid if it is permitted by custom or usage governing each party.

Effect of contravention of Section 5(iv)

A marriage in contravention of Section 5 (iv) is void under Section 11.

Section 18 also prescribes simple imprisonment which may extend to one month or with fine which may extend to one thousand rupees or with hoth

Avoidance Sapinda relationship [Section 5(v)]

Section 5(v) provides that the parties to the marriage should not be sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

Section 3(1) defines sapinda relationship. It provides that "Sapinda relationship with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth generation (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.

It further provides that two persons are said to be 'sapinda of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.

For this purposes relationship includes

• Relationship by half blood, uterine blood or full blood:
• Illegitimate or legitimate blood relationship.
• Relationship by adoption as well as by blood.

Effect of contravention of Section 5(v)

A marriage in contravention of Section 5(v) is void under Section 11.

Section 18 also prescribes simple imprisonment which may extend to one month or with fine which may extend to one thousand rupees or with both

Ceremonies of Marriage

• The Act does not prescribe any particular form of ceremony to be performed by the parties.
• Section 7 provides that a marriage may be solemnized in accordance with the customary rites and ceremonies of either party.
• It further provides that where such rites and ceremonies include the saptapadi, the marriage becomes binding when the seventh step is taken.
• Saptapadi means taking seven steps by the bridegroom and bride together before the sacred fire.
• This section gives statutory recognition to the marriage under Hindu Law as a sacrament.

In Bhaurao v. State of Maharashtra, AIR 1965 SC 1564 Supreme Court held that unless a marriage is celebrated or performed with proper ceremonies in due form, it cannot be said to have been solemnized.

There is a strong presumption in favour of validity of marriage.

Registration of Marriage

Section 8 deals with the registration of marriage. It provides that for the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may get their marriage registered.

In Seema v. Ashwani Kumar, AIR 2006 SC 1158, Supreme Court ordered compulsory registration of marriages irrespective of their religion. It directed the Central and State Governments to make relevant rules to this effect.

Nullity of Marriage

• Marriage in contravention of Section 5(i) (Bigamy Marriage) -Void
• Marriage in contravention of Section 5(iv) (Prohibited Relationship) -Void
• Marriage in contravention of Section 5(v) (Sapinda Relationship) -Void
• Marriage not consummated owing to impotence -Voidable
• Marriage in contravention of Section 5(ii) (Sound mind) -Voidable
• Consent of petitioner/guardian obtained by force, fraud as to the ceremonies or any material fact-Voidable
• Respondent at the time of marriage was pregnant by some other person-Voidable

Restitution of Conjugal Rights

Marriage entitles husband and wife to have society of each other. It is the fundamental rule of the matrimonial Law right of couple to have each other's society.

Section 9 provides the relief of restitution of conjugal rights. It is in the nature of positive relief and it recognizes the conjugal relationship of husband and wife.

Essential Element of Section 9: 

Following are the essential elements of Section 9:-

• Either party (husband or wife) has withdrawn from the society of other,
• Such withdrawal is without a reasonable excuse,
• Court is satisfied of the truth of the statements made in the petition
• There is no other legal impediment in granting relief

The term 'society' means marital cohabitation and fulfillment of mutual duties to each other as husband and wife.

The expression 'withdrawal from society' may involve a mental separation besides physical separation. It is withdrawal from totality of relationship.

Explanation of Section 9 provides that the burden of proving the reasonable cause is on the person who has withdrawn from the society.

Constitutionality of Section 9

Supreme Court in Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562, upheld the constitutionality of Section 9 conjugal right is inherent in the institution of marriage. Section 9 only codifies the pre-existing las: The provision of 'reasonable excuse' is the built in safeguard against the misuse of Section 9.

Effect of non-compliance of decree of restitution of conjugal rights

Order 21 Rule 32 of Code of Civil Procedure provides that if a party against whom a decree of restitution of conjugal rights is passed willfully disobeys it then the decree may be enforced by attach ment of property.

If there is no resumption of cohabitation even after one year from the decree of restitution of conjugal rights then that becomes a ground of divorce under Section 13(1A)(ii) of HMA.

Judicial Separation and Divorce

Section 10 deals with Judicial Separation and Section 13 deals with Divorce.

If the matrimonial relations between the husband and wife are strained then either of them can seek remedy of judicial separation or divorce. Both can be sought on certain grounds mentioned in HMA.

Judicial Separation

• It is a remedy which is lesser in degree than that of divorce. In judicial separation husband and wife are absolved from living together and performing matrimonial duties. However, the bond of marriage remains intact and the marriage is not dissolved.
• In other words it can be said to be a temporary suspension of marital ties.
• Section 10 provides that either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition for a decree for judicial separation on any of the grounds specified in Section 13(1) and Section 13(2).
• Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent. [Section 10(2)]
• The court may, on the application by petition of either party rescind the decree if it considers it just and reasonable to do so. [Section 10(2)]
• Grounds of Judicial Separation: After Marriage Laws (Amendment) Act, 1976, the grounds of judicial separation have been made same as that of divorce under Section 13(1) and 13(2)

Incidents of decree of Judicial Separation: Following are the incidents of decree of judicial separation:-

1. The marriage is not dissolved.
2. Parties are not obligated to cohabit together.
3. If there is no resumption of cohabitation between the parties to the marriage for a period of one pear or upwards after the passing of a decree for judicial separation it can be a ground for divorce.

Divorce

In legal sense, divorce means cessation of a matrimonial bond. A decree of divorce puts an end to the marital bond and the parties no longer remain husband and wife.

Divorce was unknown to the old Hindu law, Marriage was considered to be an indissoluble union,

The Hindu Marriage Act, 1955 introduced the concept of divorce for the first time. Provisions relating to divorce have been dealt in Sections 13, 13-A, 13-B, 14 and 15 of HMA.

Law of divorce has undergone lots of changes since its inception. Primarily, the changes were brought about by Marriage Laws (Amendment) Act, 1976 and The Personal Laws (Amendment) Act, 2019.

Changes brought about by Marriage Laws (Amendment) Act, 1976 in the law of divorce: Following are the key changes that were brought about by the said Amendment Act.

1. Single act of adultery may constitute a ground for divorce. [Section 13(1)(i)]
2. Cruelty and desertion were made the grounds of divorce. Earlier they were grounds for Judicial Separation only. [Sections 13(1)(i-a) and (i-b)]
3. The minimum period prescribed under the grounds like leprosy and venereal diseases has been omitted. [Section 13(1)(i), (iv) and (v)]
4. The court can now grant alternative relief in case of divorce proceedings by exercising discretion.[Section 13-A]
5. Divorce by mutual consent has been introduced. [Section 13-B]

Change brought about by The Personal Laws (Amendment) Act, 2019: It omitted Section 13(1)(iv) which makes virulent and incurable form of leprosy as a ground for divorce.

Grounds of Divorce

Section 13 deals with the grounds of divorce. Section 13(1) deals with grounds which are available to both husband and wife while Section 13(2) deals with grounds which are available to only wife.

Under Section 13 the petition for divorce may be presented whether the marriage is solemnized before or after the commencement of HMA.

Grounds available to both husband and wife [Section 13(1)]

Adultery [Section 13(1)(1)]

Section 13(1)(i) provides that petition for divorce may be presented by either party if after the solemnization of the marriage the other party had voluntary sexual intercourse with any person other than his or her spouse.

• Even a single act of adultery is sufficient to attract the ground of divorce. After the Marriage Laws (Amendment) Act, 1976 the expression "living in adultery' has been dispensed with.
• After the judgment of Supreme Court in Joseph Shine v. Union of India adultery has been declared unconstitutional but the Court has expressly held that it will remain a ground for matrimonial cases.

Cruelty [Section 13(1)(i-a)] 

Section 13(1)(i-a) provides that the petition for divorce may be presented by either party if after the solemnization of the marriage the other party has treated the petitioner with cruelty.

The term cruelty is not defined in the Act.

The term cruelty was defined in Russel v. Russel for the first time. The court held that cruelty is a conduct of such character as to have caused danger to life, limb or health, bodily or mental, or give rise to a reasonable apprehension of such conduct.

Supreme Court in Dastane v. Dastane, (1975) 2 SCC 326, held that cruelty is a conduct which causes a reasonable apprehension that it is harmful or injurious for one spouse to live with another. Cruelty can be physical as well as mental. Mental cruelty is a conduct which causes mental suffering, feeling of anguish, disappointment and frustration.

dowry also constitutes cruelty.

Desertion [Section 13(1)(i-b)]

Section 13(1)(i-b) provides that the petition for divorce may be presented by either party if the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

The term 'desertion' has not been defined in the Act, but it means withdrawing from matrimonial obligations. It is intentional forsaking or abandonment of one spouse by another without any reasonable cause and without the consent of the other.

Essential of desertion: Following are the essentials of desertion:-

• There has to be a factum of separation;
• There must be an intention to bring cohabitation to an end (animus deserendi);
• Such conduct must be without any reasonable cause;
• It must be without the consent of other party.

There can be no desertion without cohabitation. Since cohabitation is an essential element of marriage.

The party seeking divorce on the ground of desertion is required to show that he/she is not taking advantage of his/her own wrong, Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591]

Desertion may be actual or constructive. Constructive desertion is not withdrawal from a particular place but withdrawal from state of things.

Constructive desertion has same requirements as actual desertion.

Conversion. [Section 13(1)(ii)]

Section 13(1)(ii) provides that the petition for divorce may be presented by either party if the other party has ceased to be a Hindu by conversion to another religion,

Conversion does not itself result in divorce. The ground of divorce on basis of conversion will not be available to the converting spouse as it would amount to taking advantage of his own wrong

Unsoundness of mind [Section 13(1)(iii))

Section 13(1)(i) provides that petition for divorce may be presented by either party if the other party has been incurably of unsound mind, or has 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.

The expression 'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia

Supreme Court in Ram Narain Gupta v. Smt. Rameshwari Gupta, AIR 1988 SC 2260, held that the degree of mental disorder must be such that the spouse seeking relief cannot reasonably be expected to live with other.

Virulent and incurable form of leprosy [Section-13(1)(iv)] [Omitted]

This ground has been omitted by The Personal Laws (Amendment) Act, 2019

Venereal disease

Section 13(1)provides that petition for divorce may be presented by either party if the other party has been suffering from venereal disease in a communicable form.

Renunciation of the world [Section 13(1)(vi)]

Section 13(1)(vi) provides that the petition for divorce may be presented by either party if the other party has renounced the world by entering any religious order.

Renunciation of the world amounts to civil death and therefore, it is included as a ground of divorce.

Presumption of death [Section 13(1)(vii)]

Section 13(1)(vii) provides that the petition for divorce may be presented by either party if the other party 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.

Non-resumption of cohabitation after decree of judicial separation [Section 13(1-A(i)

Section 13(1-A)(i) provides that either party to a marriage may present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation.

Failure to comply with the decree for restitution of conjugal rights. [Section 13(1-A)(ii)]

Section 13(1-A)(ii) provides that either party to a marriage may present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights between the parties to the marriage for a period of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.

Grounds available to wife only [Section 13(2))

Section 13(2) lays down additional grounds grounds available only to the wife:-of divorce which are available to wife. Following are the

(1) Bigamy [Section 13(2)(6)]

• Section 13(2)(i) provides that wife may also present a petition for the dissolution of her marriage in the case of any marriage solemnized before the commencement of this Act, on the ground that the husband had married again before the commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner.
• In either case the other wife must be alive at the time of the presentation of the petition.

(2) Rape, sodomy or bestiality [Section 13(2)(ii))

• Section 13(2)(ii) provides that wife may also present a petition for the dissolution of her marriage if the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality

(3) Non-resumption of cohabitation after decree or order of maintenance [Section 13(2)(iii)]

• Section 13(2)(iii) provides that wife may also present a petition for the dissolution of her mar riage on the ground that there has been no-resumption of cohabitation after the decree of mainte nance has been passed under Section 18 of Hindu Adoptions and Maintenance Act and Section 125 of Code of Criminal Procedure.

(4) Option of puberty [Section 13(2)(iv)]

• Section 13(2)(iv) provides that wife may also present a petition for the dissolution of her marriage on the ground that her marriage (whether consummated or not) was solemnized 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.

Divorce by Mutual Consent [Section 13B]

Section 13B which provides for divorce by mutual consent was added by the Marriage Laws (Amend ment) Act, 1976.

Parties to the marriage solemnized whether before or after the amendment Act can avail themselves of this provision.

Essentials of divorce by mutual consent: 

Following are the essentials of divorce by mutual consent:-

1. Both the parties must be living separately for a period of one year or more;
2. Both the parties have not been able to live together,
3. Both the parties have mutually agreed that the marriage should be dissolved,
4. Both parties will present a joint petition praying for dissolution of marriage by mutual consent,
5. After presentation of petition the parties need to wait for a minimum period of six months.
6. After the expiry of the said period (which should not be less than six months and more than 18 months) the parties will again make a motion before the court.
7. If the court is satisfied that the marriage was solemnized and the averments in the petition are true then it will pass a decree of divorce by mutual consent.
8. The consent in divorce by mutual consent should not be obtained by force, fraud or undue influence. [Section 23(1)(bb))

Supreme Court in Amardeep Singh v. Harveen Kaur (2019) has held that the period of 6 months mentioned in Section 13B(2) was not mandatory but directory. It will be open to the Court to exercise its discretion in the facts and circumstances of each case where there was no possibility of parties resuming cohabitation after exhausting all efforts of mediation and conciliation.

Alternate Relief in Divorce Proceedings [Section 13A]

Section 13A lays down that in divorce proceeding under this Act the court may, if it considers it just so to do having regard to the circumstances of the case, pass a decree for judicial separation instead of decree of divorce. This alternative relief cannot be given if the grounds of divorce are one of the following:-

• Conversion [Section 13(1)(ii)]
• Renunciation of world [Section 13(1)(vi))
• Presumption of death [Section 13(1)(vii)]

No petition of divorce within one year of marriage [Section 14]

Section 14 provides that the court will not entertain any petition for decree of divorce unless at the date of the presentation of the petition one year has elapsed since the date of the marriage.

Exceptions: The court may allow a petition to be presented before one year on the following ground:-

1. The case is one of exceptional hardship to the petitioner, or
2. It is of exceptional depravity on the part of the respondent.

Remarriage after obtaining divorce [Section 15]

Section 15 provides that after passing the decree of divorce, the parties to the marriage, may marry again if the following circumstances exist:-

• There is no right of appeal against the decree; or
• If there is a right of appeal, the time for appealing has expired without an appeal having been presented; or
• An appeal has been presented but has been dismissed.

Legitimacy of children of void and voidable marriages [Section 16]

Section 16 provides that even if the marriage is null and void under Section 11. any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate whether or not a decree of nullity is granted in respect of the marriage under this Act and whether or nor the marriage is held to be void otherwise than on a petition under this Act.

Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

The above provisions shall not confer upon any child of a marriage which is null and void or voidable any rights in or to the property of any person, other than the parents.