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Hindu Marriage Act

The Hindu Marriage Act, 1955 codifies the law relating to marriage among Hindus. This Act extends to the whole of India, except the States of Jammu and Kashmir. It applies to any person who is a Hindu by law (including Buddhist, Jain and Sikh). It not only provides for the ceremonies and registration for Hindu Marriage but also lays down rules regarding Divorce.

The Hindu Marriage Act, 1955 codifies the law relating to marriage among Hindus. It was intended to secure the rights of marriage. This act applies to any person who is a Hindu by law (which includes Buddhist, Jain and Sikh). The Hindu Marriage Act not only talks about the ceremonies and registration for Hindu Marriage but it also puts down the rules regarding divorce procedure.

Conditions for marriage

Section 5 states the conditions required for a Hindu marriage. If the ceremonies of the marriage take place, but the conditions are not fulfilled, the marriage will either be void by default or it will be voidable.

A marriage is declared void under Section 11 of the Act, if it contravenes the following-

  1. If either of the party is underage i.e. the groom is below 21 years and the bride is under 18 years
  2. If either party is already married.
  3. If the Parties are sapindas or within the degree of prohibited relationship.

Section 12 states that a marriage will be declared voidable if it contravenes the following conditions

  1. If either party is impotent, unable to consummate the marriage, or unfit for procreation of children.
  2. When at the time of marriage, one party is not capable to consent due to an unsound mind or he is suffering from a mental disorder or has recurrent attacks of insanity or epilepsy
  3. If the consent was obtained by force/fraud.
  4. The bride was pregnant by another man other than the bridegroom at the time of marriage.

Difference Between void and voidable marriages

Void Marriage

Voidable Marriage

A void marriage is one that is invalid from the very beginning.

A voidable marriage has a flawed validity i.e. it is legally valid until and unless it is annulled.

 

They are void ab initio, it means they are nonexistent from the very beginning and it does not affect the status of both the parties. And it does not create any rights and obligations for the parties involved.

 

A voidable marriage can be cancelled by one the parties involved.

The parties to a void marriage can be held criminally liable.

 

There is no penalty prescribed for a voidable marriage.

Children born under void marriage are deemed to be legitimate if either of the parties reasonably believed that the marriage was valid.

Children born out of voidable marriage, which is annulled at the option of the parties to marriage, are legitimate.

Ceremonies

Section 7 provides that, The Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either the bride or the groom. The act does not specify the ceremonies requisite for solemnization of marriage and it leaves it to the parties to choose the form of ceremonial marriage. If the rites and ceremonies include Saptapadi i.e. the marriage will be complete and binding when the seventh step is taken before the sacred fire.

A marriage can be registered if

The ceremony of marriage is performed

The parties have been living as husband and wife

Under Section 8 of the Hindu Marriage Act, the State Government can make rules for registering the Hindu Marriage in a particular state and if it is not adhered to, it would ensue a fine.

However, the validity of marriage is not affected if it is not registered under the Hindu Marriage Register. It is an optional section.

A marriage under Hindu Marriage Act is deemed to be sacred, but the Hindu Marriage Act does permit either party to file for divorce under Section 13 under certain conditions. However, the divorce petition can be filed only after one year of marriage.

Grounds for Divorce

  • Adultery- If the respondent has a voluntary sexual intercourse outside marriage
  • Cruelty- If the respondent has mentally or physical abused the petitioner. A spouse can file for divorce if he/she was mentally or physically abused. Certain instances come under cruelty, such as denying food, dowry related abuses, and ill treatment.
  • Desertion- If the spouse has deserted his/her partner for a continuous period of not less than two years; the abandoned spouse can file for divorce.
  • Conversion- If the spouse has converted to another religion, the other spouse is free to file for divorce.
  • Unsound Mind- If the spouse is declared of unsound mind to such an extent that normal married life is impossible, then the petitioner can file for divorce.
  • Disease- If one of the spouses was diagnosed with incurable form of leprosy or a veneral disease in a communicable form, then the husband/wife can file for divorce.
  • Presumption of Death- If the spouse is not seen alive for seven years or more years, then the other spouse has the right to file for divorce.
  • Cohabitation is not resumed after the decree of judicial separation for a period of at least one year.

Under Section 13(2), a petition for divorce can be filed by the wife on the following grounds:

  • If the husband is guilty of rape, bestiality and sodomy.
  • If the marriage is solemnized before the Hindu Marriage Act and the husband has marries again in spite of having the first wife.
  • Cohabitation is not resumed within a year after the maintenance order under Section 125 of Criminal Procedure Code or under Hindu Adoptions and Maintenance Act, 1956.

Mutual Divorce

The Hindu Marriage Act Section 13B deals with mutual divorce. This type of divorce is given when both the Husband and the wife have mutually agreed to not live together and filed for divorce before the Court, without putting allegations against each other.

Remarriage

Remarriage is possible only after the previous marriage is dissolved and there is no right of appeal left.

Maintenance

Section 24 states, when the Court is of the opinion that either husband or wife does not have independent income which is sufficient for that party’s support, and then the Court can order the party to pay such expenses.

Under Section 25 of the Hindu Marriage Act, when the court decides the decree for divorce, it can also decide the amount for maintenance. This payment can be a one-time payment or it can be done monthly.

Section 1

This section states that the Hindu Marriage Act extends to the whole of India except Jammu and Kashmir.

Section 2

This Section states that this Act is applicable to a Hindu by religion, Buddhist, Jain or Sikh, to any other person domiciled in the territories to which this Act applies who is not a Muslim, Christian, Parsi or Jew by religion.

Section 5

The conditions for a valid Hindu marriage are codified under this section. A marriage can be solemnized if neither party has a living spouse at the time of marriage, neither party is incapable of giving a valid consent due to unsound mind, or has mental disorder, or suffers from recurrent attacks of insanity, or the bridegroom has completed the age of 21 and bride has completed the age of 18 and lastly but not the least the parties are not sapindas to each other or fall under the degree of prohibited relationship.

Section 8

The Parties to marriage can register their marriage under section 8 of the Hindu Marriage Act, 1955. It is an optional clause i.e., it is at the discretion of the parties.

Section 9

It empowers either party to marriage to assert his or her right for cohabitation and restitution of conjugal life.

Section 10

Section 10 induces the concept of judicial separation. The parties to marriage can file for judicial separation if their case falls under section 13. It is an innovative way to help the parties reconcile and resolve their issues before the divorce is granted.

Section 11

Any marriage solemnized in contravention of the following- the marriage is not bigamous, the parties are not underage and the parties don’t fall under the degree of prohibited relationship will be deemed to be declared null and void.

Section 12

If the marriage is not consummated due to impotency, contravention of section 5(ii), consent is caused by force, fraud or concealment of pre-marital pregnancy then the marriage will be deemed to be voidable.

Section 13

Divorce can be granted if there is any sign of adultery, cruelty, desertion for a continuous period of two years, the party has ceased to be a Hindu, renounced the world or the person is suffering from unsound mind, mental disorder, leprosy and communicable venereal disease, or has not been heard for a period of seven years.

Section 13A

It inculcates the judicial separation decree which is basically an alternate relief in divorce proceedings. It gives time to the parties to rethink about their decision to have a divorce.

Section 13B

A petition for dissolution for marriage can be filed by both the parties on the basis that they have been living separately for a period of one year or more and they have agreed mutually that the marriage should be dissolved.

Section 18

Section 18(a) makes child marriage a cognizable and non-bailable offence punishable with a rigorous imprisonment for 2 years with or without fine of Rupees One Lakh.

Section 19

Every Petition under this act should be filed where the marriage was solemnized, the respondent resides, and the parties to marriage last resided together or lastly if the wife is the petitioner, where the wife resided.

Section 21B

The trial proceedings should be continued day to day and concluded within six months from service of notice of petition on the respondent.

Section 24

If it appears to the Court that, either a wife or husband has no means of necessary expenses for the proceedings, then the Court can order for the payment of expenses for the proceeding and monthly allowances during the proceedings to the aggrieved party.

Section 25

Under this Section, permanent alimony and maintenance is given to the aggrieved person. The Respondent has to pay the applicant for her or his support a monthly allowance or a gross sum for his or her maintenance and support.

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