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:
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:
According to Section 12, a marriage, although valid can later be annulled on any of the following grounds:
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.
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.
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:
The Act enables a woman to file a petition for divorce on some additional grounds as follows:
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).