Category Archive Hindu Marriage Act Overview

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Hindu Marriage Act Sections

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Ritual of valid Hindu Marriage.

Conditions for a valid marriage under Hindu Marriage Act.

Certain conditions must be met for a marriage to be valid in the eyes of law. In case a ceremony takes place, but the necessary conditions are not met with, the marriage is either void by default, or voidable. The conditions stated in Section 5 of the Act are as follows:

  1. No party should be already married, i.e. neither party should have a spouse living at the time of marriage. Thus, this Act prohibits polygamy.
  2. At the time of marriage, neither party should be incapable of giving valid consent due to unsoundness of mind. Even if he/she is capable of giving valid consent, should not be suffering from a mental disorder to an extent which makes him/her unfit for marriage and procreation of children. He/she should not be subject to recurring attacks of insanity either.
  3. The parties should not be underage. The bridegroom should be a minimum of 21 years of age, and the bride should be at least 18 years old.
  4. The parties should not be sapindas or within the degrees of prohibited relationship, unless any custom governing them allows marriage between such relations.

Void marriage under HMA

According to Section 11 of the Act, a marriage can even be declared null and void if either party presents a petition and if any of the following are contravened:

  1. Either of the parties is already married and has a spouse living at the time of marriage.
  2. Either party is underage, i.e. groom below 21 years of age and bride below 18 years.
  3. The parties are sapindas or within the degrees of prohibited relationship.

Voidable marriage under HMA

According to Section 12, a marriage, although valid can later be annulled on any of the following grounds:

  1. If either party is impotent and therefore unable to consummate the marriage.
  2. When at the time of marriage, either party is not capable of giving valid consent due to unsoundness of mind. Even if he/she is capable of giving valid consent, has been suffering from mental disorder to an extent which makes him/her unfit for marriage and procreation of children, or is subject to recurring attacks of insanity.
  3. If the consent was obtained forcefully, or fraudulently.
  4. If the bride was pregnant by another man other than the groom at the time of marriage.

Ceremonies to be performed for a marriage under the Hindu Marriage Act:

Section 7 of the Act states that a Hindu marriage can be duly performed in accordance with ceremonies and customs of either the bride or the groom. These ceremonies also include the Saptapadi i.e. taking of seven steps jointly before the sacred fire.

It has been stated that if Saptapadi is included in the rites and ceremonies, then the marriage becomes complete and binding when the seventh step is taken.

Registration of marriage under HMA

Under Section 8, the State Government can make rules for the registration of Hindu marriages for that particular state, and can make the providing of particulars relating to their marriage compulsory in the Hindu Marriage Register, which, if not adhered to would ensue a fine.

However, the validity of the marriage is not affected by the omission to make an entry in the Register.

The Hindu Marriage Register should be open for inspection at all reasonable times, allowing anyone to obtain a proof of marriage, and will also be admissible as evidence in a court of law.

Divorce under Hindu Marriage Act

The Hindu Marriage Act does not only codify the validity of marriage within Hindus, it also recognizes and permits Divorce.

Section 13 of the Act lays down the grounds on which divorce can be sought. However, a divorce petition can only be presented after one year of marriage, unless in exceptional circumstances. 

The husband or wife can present a petition for divorce on any of the following grounds:

  1. Adultery: if the other party has had sexual intercourse voluntarily with another man or woman after the marriage.
  2. Cruelty: if the other party has subjected cruelty upon the petitioner- whether mental or physical.
  3. Desertion: if the other party has deserted the petitioner for a period of not less than two years at a stretch.
  4. Conversion: if the other party has converted to another religion and is not a Hindu anymore.
  5. Mental Disorder: if the other party incurably suffers from a mental disorder or is of an unsound mind to such an extent that it is not possible to reasonably expect the petitioner to live with the respondent.
  6. Leprosy: if the other party has been suffering from an incurable form of leprosy.
  7. Disease: if the party is suffering from a venereal disease in a communicable form.
  8. Renunciation: If the other party has renounced the world and entered a religious order
  9. Presumption of death: if the other party has not been heard of being alive for a period of more than 7 years.

The Act enables a woman to file a petition for divorce on some additional grounds as follows:

  1. In case a marriage had taken place before the Hindu Marriage Act, 1955 and the husband had married again before the Act and that any other wife of the husband was alive at the time of marriage of the petitioner.
  2. After marriage, the husband has been guilty of rape, sodomy, or bestiality.
  3. Cohabitation has not resumed between the husband and wife within a year since a decree or order has been passed against the husband for maintenance under Section 125 CrPC or under the Hindu Adoptions & Maintenance Act 1956.
  4. In case where the wife was under-age when she was married, and she repudiated her marriage before attaining the age of 18 years.

Mutual Divorce:

Divorce by Mutual Consent is when both husband and wife mutually agree that they cannot live together anymore and that the best solution being Divorce, they would present a Mutual Divorce petition jointly before the honourable court, without putting forth any allegations against each other. Section 13B deals with mutual divorce under the Hindu Marriage Act.

Remarriage:

The Act also gives a provision for remarriage after divorce. Either party involved in the divorce is allowed to remarry, only after the previous marriage has been dissolved by a decree of divorce and there is no right of appeal left.

Maintenance under Hindu Marriage Act:

Maintenance and expenses during the proceedings:

Section 24 holds that during any proceeding under the Hindu Marriage Act, if the appropriate Court is of the opinion that either the husband or wife does not have any independent income which is enough for that party’s support and the expenses of the proceeding, the Court can order the other party to pay the expenses. For this, the Court gives regard to the income of both the parties.
The Court takes action under this section after the alleged needy party presents an application in the Court regarding it.

Permanent alimony and maintenance:

At any time during or after the decree of divorce, the Court has the power under Section 25 of the Hindu Marriage Act to order that either party should pay to the other, monetary support or amount for maintenance. This amount is also decided by the Court. It can be a one-time payment, or a periodical one (for eg. each month).

FAQs on Hindu Marriage Act

Under the Hindu Marriage Act, what remedies are available to married couples who are covered under the said Act?

The Hindu Marriage Act, 1955 provides for three main remedies. These are – divorce, judicial separation and restitution of conjugal rights. It lays down the grounds, conditions and procedures to seek these remedies. Apart from these, the HMA also states the conditions for marriage, ceremonies to be performed, registration of marriage, maintenance in divorce, provision for remarriage, etc.

What is restitution of conjugal rights?

Section 9 of The Hindu Marriage Act, 1955 provides the law related to restitution of conjugal rights. According to this, when either the husband or the wife, without any reasonable explanation or cause, withdraws from the other person’s life or society, the aggrieved party can apply, by petition to the district court for restitution of such conjugal rights (rights to stay together) and if the court is satisfied and is of the opinion, would grant a decree for restitution of conjugal rights. However, the burden of proving that withdrawing from the other’s society was for a valid reason / excuse, shall be on the person who has withdrawn from the society.

What is judicial separation?

Under Section 10 of the Act, either party to a marriage can present a petition praying for a decree of judicial separation based upon any ground(s) given in Section 13(1) (grounds for Divorce for both parties), and in case of a wife, also upon the grounds given in Section 13(2) (grounds for divorce by woman). 

Whenever a decree for judicial separation has been passed, there is no obligation for the petitioner to live / cohabit with the respondent. However, if either or both the parties want to make an attempt to resolve their dispute, an application can be filed in the court by either party and if the court deems fit, it may rescind the decree.

What is the minimum legal age of the bride and the bride-groom to get married?

According to law, the minimum age for the bride to be legally ready for marriage is 18, and for the bride-groom, this age is 21.

What is the remedy available to a woman who was married off before she turned 18?

Under Hindu Marriage Act, if a girl was / has been married off before she had turned 15 years old, she can annul / reject / repudiate the marriage before turning 18 years of age. This step can be taken only after she has turned 15 but before the age of 18. However, there is no express provision to prohibit child marriage.

Is is mandatory to get a marriage registered under Hindu laws?

It is not compulsory to get Hindu marriages registered, i.e. the validity of the marriage is not affected by the omission to make an entry in the Register However, registration gives proof of marriage for all legal purposes. Under Section 8, the State Government has the power to make rules for the registration of Hindu marriages for that particular state, and it can also make the providing of particulars relating to their marriage compulsory in the Hindu Marriage Register, which, if not adhered to or followed would result in a fine. The Hindu Marriage Register, according to the HMA should be open for inspection at all reasonable times, allowing anyone to obtain a proof of marriage. The register will also be admissible as evidence in a court of law.

What is bigamy? What options are open to a woman whose husband commits bigamy?

Bigamy is when either the husband or the wife marries again during the lifetime of his/her wife or husband, respectively. It is a criminal offence under the Indian Penal Code, punishable with imprisonment and fine. A bigamous marriage is a void relationship. 

If a woman has evidence that she is married to a man who is getting married again or has married another person, she should approach the police. In the case she learns that her husband is about to get married again, she can even seek an injunction from the court forbidding him to marry again. And in case the marriage has taken place, a wife can seek the court to “declare” that the 2nd marriage is null and void and bigamous in nature. However, in such scenarios, the complainant has to prove the validity of the first marriage and that the 2nd marriage is bigamous.

In case a Hindu wishes to marry a person who is not of the same religion (i.e. other than Hindu), under what law can they do so?

If both the man and woman want to marry under the Hindu Marriage Act, it will be compulsory for both to be of Hindu religion. Even if there is a non-Hindu involved, he / she will have to first convert to Hinduism. However, the easiest way out when there is a non-Hindu party involved is to get married under the Special Marriage Act. A civil marriage under this Act facilitates marriage between any two people, including people belonging to different religious communities. A marriage under this Act in such cases is much simpler as several complications are avoided that are required to be fulfilled under various religion-based personal laws. It also saves the parties from conversion.

What are the rights of a child who is born to persons whose marriage is declared void or voidable under the Hindu Marriage Act?

If a marriage is null and void under Section 11, any child of such a marriage who would have been legitimitate in case the marriage had been valid, would be legitimate, whether or not a decree of nullity has been granted or the marriage has been declared void. 

Similarly, in cases where a decree of nullity has been granted against a voidable marriage under Section 12, any child that was begotten or conceived before the decree has been passed (who would have been the legitimate child of the parties to the marriage if at the date of the decree – it would have been dissolved instead of being annulled) would be their legitimate child. This legitimacy of the child would stand, regardless of the decree of nullity. 

Section 16 of the Act lays down the law regarding the legitimacy of children of void and voidable marriages.

When can a person re-marry after acquiring divorce?

Under the HMA, remarriage of either party is allowed after divorce, only after the previous marriage has been completely dissolved by a decree of divorce (by the court) and either there is no right of appeal left, or the time for filing of an appeal has expired, or an appeal if presented has been dismissed.

Can one seek maintenance or alimony in a divorce case proceeding?

Hindu Marriage Act allows either party to seek maintenance if the Court deems fit. It provides for two kinds of maintenance – ‘maintenance pendente lite and expenses of proceedings’, and ‘permanent alimony and maintenance’. 

Section 24 holds that during any proceeding under the Hindu Marriage Act, if the appropriate Court is of the opinion that either the husband or wife does not have any independent income which is enough for that party’s support and the expenses of the proceeding, the Court can order the other party to pay the expenses. For this, the Court gives regard to the income of both the parties. The Court takes action under this section after the alleged needy party presents an application in the Court regarding it. This is ‘maintenance pendente lite and expenses of proceedings’. 

Section 25 deals with ‘permanent alimony and maintenance’. At any time during or after the decree of divorce, the Court has the power under this Section to order that either party should pay to the other, monetary support or amount for maintenance. This amount is also decided by the Court. It can be a one-time lump sum payment, or a periodical one (for eg. each month).

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