In Ancient India, Hindu marriage created an inseparable relationship between the husband and wife. Due to it’s sacred nature, the Dharma Shastra does not agree with the view that a wife could abandon her husband. According to them, marriage is an indissoluble tie created between spouses. Manu said that remarriage of Hindu women is not possible, as it will defeat the sacramental nature of marriage which is certainly not a contract but a holy obligation. However, as the era changed, the Hindu Marriage Act, 1955 came with provisions and remedies, in order to stop the sufferance of marriage rules which existed before this Act.
THE HINDU MARRIAGE ACT , 1955
Before the advent of legislation encompassing marriage amongst Hindus, marriages were of two kinds – approved and unapproved form. Hindu marriages were regarded as holy sanskar, shall be solemnized out of 8 forms of marriages, and must be according to the Shastric Rites. There was no age barrier for marriage, and a man could marry a number of women. Inter caste marriages were strictly prohibited. Marriage was indeed indissoluble to such an extent, that even death could not dissolve a marital relationship, hence a widow could not marry- unless permitted exclusively by the custom. There was no such grounds to seek divorce .
However, the modern era saw several social changes, and as a result, Hindu marriages lost their religious sanctity under the Hindu Marriage Act ,1955 (which came into effect on 18th May, 1955). They were now considered as a religious duty. The law became applicable exclusively to Hindus of every sect which included Jains, Buddhists, Sikhs and converts from any other religion.
The Hindu Marriage Act, 1955 has brought changes in the law regarding marriages, and it no longer remains pure sacrament and a religious duty- for it has brought several matrimonial laws as remedies, including mainly nullity of marriage and divorce which has tremendously eroded the pre-existing sacramental character of marriage.
CHANGES BROUGHT BY THE HINDU MARRIAGE ACT, 1955
The Hindu marriage Act, 1955, as specified under Section 2, deals with marriages amongst Hindus, Buddhists, Jains and Sikhs. Further, Section 29 of the Act permits, with retrospective effect, inter-caste marriages. It permits the marriage between parties of same gotras, and has clearly defined the meaning of sapindas. It also clearly highlights marriage between the prohibited degrees as void marriages.
The Act has set an age limit for marriage for the bride and the groom i.e. the groom should at least be 21 years old, while the bride should at least be 18 years old.
It has introduced various matrimonial remedies as relief from marriage, including divorce, restitution of conjugal rights, judicial separation, nullity of marriage.
ESSENTIALS OF A VALID MARRIAGE
Section 5 deals with Conditions for valid marriage under Hindu Marriage Act, 1955
(1) Monogamy- Neither party should have a living spouse at the time of the marriage. In Sarla Mudgal v. Union of India, it was held by the court that if the first marriage subsists, and the husband tries to remarry by converting himself, he will be held liable for Bigamy.
(2) Sound Mind- Parties at the time of marriage:-
(a) Must not be incapable of giving valid consent due to unsoundness of mind;
(b) Must not be suffering from any mental disorder as to be unfit for the marriage as well as procreation of children.;
(c) Must not be subjected to attacks of insanity or epilepsy.
(3) Age of parties- As mentioned above, the woman has to have attained the age of 18 years, and the man has to have attained the age of 21 at the time of marriage.
(4) Beyond prohibited degrees– Marriage shall not subsist within the Prohibited Degrees of relationship. This includes uterine, half blood, full blood, illegitimate as well as legitimate blood relation, and relation by adoption- unless permitted by the usage and customs of either party to marriage.
(5) Beyond Sapinda relationship – Marriage is regarded as void, if it is performed within Sapinda relationships, unless the custom or usage governing each of the parties permits such marriage.
Section 11 of the Act classifies the following as void marriages:
- Bigamy as mentioned under Section 5 (1);
- Marriage under prohibited degrees of relationship, unless permitted by customs of either party (Section 5(4));
- Marriage under ‘Sapinda’ relationship, unless permitted by customs of either party.
Section 12 of this Act deals with voidable marriage and the grounds for that have been discussed below –
- The marriage is not consummated due to impotency of the respondent.
- The marriage takes place in contravention to the conditions mentioned in Section 5(2) of this Act i.e., unsoundness of mind at the time of the marriage.
- If the marriage is performed under the influence of fraud, misrepresentation or coercion.
- The respondent was pregnant at the time of the marriage, with someone other than the petitioner, and as such no marital intercourse has taken place between the petitioner and the respondent, for the burden of proof is on the petitioner.
REMEDIES UNDER THE HINDU MARRIAGE ACT, 1955
The Act has brought changes in the law of marriage, which have a long bearing upon its nature- for it no longer remains a pure sacrament and a binding obligatory duty, as mentioned in the sacred texts. The Act provides various matrimonial remedies which has immensely eroded the sacramental nature of marriage, and marriage is no more regarded as a compromise between the spouses- as marriage could be terminated if the valid conditions of a marriage is not fulfilled. So the remedies have been discussed in the ensuing paragraphs-
RESTITUTION OF CONJUGAL RIGHTS
Laid down under Section 9 of the Act, conjugal rights are those which a husband and wife in a marriage have to each other’s society, affection and comfort in order to enjoy the consortium of each other. This right is exercised by spouses when-
- Either spouse has completely withdrawn from the society of others.
- Withdrawn from the society of others without any reasonable excuse.
- the court is satisfied with the truthfulness of the petition.
- And there’s no legal ground for not granting the application .
If these ingredients are fulfilled, then the right to Restitution of Conjugal right is rendered. In Reema Bajaj v Sachin Bajaj, it was held that the application of Restitution of Conjugal Rights cannot be converted for divorce application by way of amendment due to the relief claimed under the original suit. The prayer of the suit for restitution of conjugal rights would not become infructuous.
Section 10 states that Judicial Separation has grounds similar to that of divorce, however the only difference is that it does not terminate the marriage, although it puts an end to the obligations of conjugal duties. Under judicial separation, both the spouses can seek remedy which is the same as under Section 13(1) of the Act. Under Section 13(2) of the Act, only the wife can specifically seek remedy.
Section 13 of this Act has indeed brought a drastic change legally in the concept of marriage. Hence the Marriage laws Amendment Act, 1976 has brought certain changes that have created identical grounds for Divorce and Judicial separation, so that the aggrieved party directly files a petition for divorce.
Section 13 (1) prescribed the following grounds for divorce –
Adultery– Any act of voluntary sexual intercourse instead of ‘living in adultery’ as prior to the Hindu Marriage Act, 1976 is sufficient to seek divorce.
Cruelty – Cruelty could either be mental and physical, and is evident only from circumstances and facts of the case which varies from person to person, situation to situation. In Ashoka Kumar v. Vijay Laxmi, the wife made false allegations of attempts of sprinkling kerosene and burning, and the court regarded it as mental cruelty on the part of the wife and therefore granted the decree of divorce.
Desertion– Desertion was the ground for judicial separation only, prior to the 1976 amendment. It includes the presence of de facto separation and animus deserendi. The burden of proof in desertion cases is always on the petitioner. Hence, the inferences are drawn from the facts and situation of the case. It is the repudiation of the marriage, as the respondent abandons the society of the other spouse completely without reasonable cause and consent. In Omwati v Kishan Chand, the court held that desertion is not withdrawal from a place but certainly a state of things.
Conversion – If the respondent ceases to be Hindu, and converts into any other religion, the petition for divorce is granted. In Madanam Seetha Ramulu V Madanam Vimla, the divorce petition was filed by the husband on the ground that the wife had converted herself into Christianity after marriage. The court granted decree of divorce to the husband.
Unsoundness of mind- If either spouse suffers from unsoundness of mind, the decree of divorce is granted under the Hindu Marriage Amendment Act, 1976. It can be intermittent or continuous, and to that extent that the petitioner can not stay with such a person. It could be any sort of mental disorder which includes Schizophrenia, Psychopathic disorder.
Leprosy– If it is in virulent, incurable, malignant and venomous form, thus not suitable for the spouse to stay with the respondent, in such a situation the decree of divorce is granted.
Venereal Disease– If the respondent suffers from venereal disease which is in communicable form and the period of duration has been dispensed with HMA (Amendment), 1976. Venereal diseases are communicable and could be transferred from sexual intercourse.
Renunciation of world – If either spouse has renounced the world by entering any religious order by performing ceremonies and rituals. In Govind v. Kuldeep, it was held that no one can claim to be a sanyasi (monk) merely on the fact of being a disciple of a sanyasi.
Presumptive death – Where the other spouse is not heard of, for a period of seven years as alive, and the court is satisfied about the whereabouts of the spouse , then the decree of divorce could be granted.
Non resumption of cohabitation after the decree of judicial separation – If the parties have been married before or after the commencement of this Act, and there’s no resumption of cohabitation for one year after the judicial separation, the divorce is granted.
If there is failure to comply with the decree of restitution of conjugal rights within one year of passing of the decree, then either party can file a petition for divorce and then the court would grant divorce.
Further, Section 13(2) deals with additional grounds of divorce available to the wife. These include:-
- Rape, sodomy or bestiality under Clause(2), and the mere proof of such conduct of husband is enough for the decree of divorce.
- No cohabitation for one year after the decree of maintenance under Section 18 of Hindu Adoptions and Maintenance Act, 1956 or section 125 of Crpc under Clause(3)
- Repudiation of marriage under Clause(4) states that a wife whose marriage was solemnized before she attained 15 years of age, such marriage could be repudiated by the wife before she attains the age of 18 years. This clause is applicable whether marriage solemnized before or after the commencement of the Hindu Marriage Laws (Amendment) Act, 1976.
Section 13 -B deals with divorce by mutual consent between the parties. In Yamanaji H. Jadhav v Nirmala, the Supreme Court held that marriage could be dissolved only according to the provisions contained in the Hindu Marriage Act, and the petition for divorce by mutual consent is maintainable under section 13(B) of the Act. Section 14 of the Hindu Marriage Act, 1976 mentions that the petition for divorce could only be presented after 1 year of marriage.
This article has given a general overview of the Hindu Marriage Act, 1955, along with the 1976 Amendment, its analysis and relevant case laws. It has projected that the nature of the Hindu Marriage Act,1955 is not sacramental in nature, and for a valid Hindu Marriage, conditions under Section 5 must be fulfilled. There are various matrimonial remedies as well, that help seek remedy in form of various legislations that include Divorce too. The aim of this article is to provide basic knowledge of marriage laws, and grounds for remedies to individuals- in order to make them aware about Hindu Marriage laws and remedies.
 The Hindu Marriage Act, 1955(Act 25 of 1955), s.5.
 Sarla Mudgal v. Union of India, 1995 SCC (3) 635.
 The Hindu Marriage Act, 1955 (Act 25 of 1955), s. 11.
 The Hindu Marriage Act, 1955 (Act 25 of 1955), s.12.
 The Hindu Marriage Act, 1955 (Act 25 of 1955), s. 9.
 Reema Bajaj v. Sachin Bajaj, 2012 (I) DMC 138.
 The Hindu Marriage Act, 1955 (Act 25 of 1955), s.10.
 Ashoka Kumar v. Vijayalaxmi, AIR 1992 Del. 1082.
 Omwati v. Kishan Chand, AIR 2014 AP NOC 405.
 Madanam Seetha Ramulu v. Madanam Vimla, AIR 2014 NOC AP 412.
 Govind v. Kuldeep, AIR 1971 Del. 157.
 Yamanaji H. Jadhav v. Nirmala, AIR 2002 SC 971
BY TRISHA SINGH | BANASTHALI VIDYAPEETH JAIPUR, RAJASTHAN