Hindu Marriage Act, 1956
Who is Hindu?
According to the act, the definition of Hindu is of following nature:
|Follower of Brahmo, Prathana, Arya Samaj
Any other person whose religion does not fall under the abovementioned
categories, will be a Hindu unless it expressly falls under these categories
exception are members of Schedule Tribes.
What is Marriage?
Concept of marriage started when problems regarding the paternity of a child was
questioned. As mother of the child was known but father was unknown. In ancient
times, where concept of marriage was not established then people used to unite
without any system. And no man was exclusive to a particular woman. This made
people form a system of tribes and communities, where a man of a tribe and will
unite with a woman of same tribe. As time passed different communities has
formed rites and ceremonies to celebrate the unity of a man and woman. This
tradition gave birth to a holy union today known as marriage. Marriage is a
sacred institution which serves a pious purpose in the evolution of a civilized
What is Hindu marriage and Why Hindu Marriage is not a contract?
Hindu Marriage is a sacrament. It itself a pious purpose, in which we treat fire
as god and rice as sign of purity. Marriage also to make child legitimate and to
be a part of chain of inheritence. Although Marriage is not a compulsion on
anyone, it is a personal thought, no legislation bound you to get married.
Hindu marriage is not a contract because:
- Consent is required as itserves a piouspurpose.
- Rites and ceremonies takes place in front of fire which is treated as
- Rice is a sign of purity by which man and woman swear their marital
- Dowry is prohibited but in Muslims Mehar is not prohibited.
- Ceremonies and customs takes place in presence of bride and groom both.
- It is not a contact for consideration instead it is a willful and sacred
practice, celebrated to make god happy.
It is the stage where marriage is not left pious anyomore instead it has become
contractual. Where the object of marriage seems vanashing due to needs, lust,
environment, pressure, society etc. Reasons are numerous, for people rushing
towards Divroce but in all this, object of marriage is diverted from its initial
position. Remarriage is also a reason for filing of number of divorce petitions
in courts today. Although the legislation wanted to protect the rights of every
individual by introducing the concept of divorce, as polygamy was a major issue,
when this act was introduced, but it also started putting end to the pious
purpose of marriage. Divorce is frustating the objective of marriage.
In Hindu societies, it was a demarcation that:
the husband will go outside the house to work and earn,
and the wife will maintain the household from the earnings of husband. But today
people have increasedtheirneeds and wishes,according to which both husband
and wife may have to work for gain. The World is changing with thetimeand so
do the relationship between a husband and wife. With the advancement of the
society, different aspects like gay marriages, live in relationships are
becoming stigma on the holy purpose of the marriage.
When a person is said to be converted?
- If there is any ritual, then it has to be duly performed. For eg:
‘Sudhi’ in Arya samaj & ‘Kalma’ in Islam.
- By professing that religion: if your intention is to convert and
acceptance by the people of that religion. Mere appreciation does not mean
Also, conversion will not automatically disolve the marriage, one must take
divorce first and then convert.[SARLA MUDGAL V/S UNION OF INDIA]
|First guardian/parent is Father
||First guardian/parent is Mother.
|Right in ancestral property
||Right in self acquired property.
First gaurdian has more rights over second guardian.
For example: if second gaurdian kidnaps the child and first guardian lodges
F.I.R, then second gaurdian will be tried and if found guilty will be liable for
- In case any law, ordinance, enactment is passed against any custom or
ritual, then legislation will prevail over custom.
- Generally it is considered that it is continued from more than 100 years
but this presumption is not absolute.
- It must be in continuity i.e. without any breakage.
- It shall not oppose any public policies.
- Section 4: Overriding effect of the act: Previous customs will cease to
any law under this act has expressly been made regarding that custom,
any custom which is inconsistence with the provisions of this act.
For eg: Polygamy & Bigamy.
Conditions of a Valid Hindu Marriage;
- Between two Hindus, no living spouse of either party at the time of
- No forceful [or unsound mind] consent, in case of minor consent of
guardian is must, Consent can be express or implied,
- Where any rites or ceremonies are expressly provided, then it must be
done in accordance with those rites or ceremonies. These ceremonies can be
of either party. [Section7 (1)]
- For eg: if rites or ceremonies includes saptpati, then seven steps
before sacred fire are must. [Section7 (2)]
|Sec. 11 Void Marriages
||Sec. 12 Voidable Marriages
|Bigamy [Acc to sec. 5 (i)]
||Sec 5 (ii): at the time of marriage, neither
a) incapable of giving consent,
b) unfit for marriage & procreation of children,
c) recurrent attacks of insanity
|Prohibited Degrees of relationship [Sec. 5
||Impotency of the respondent
|Sapindas of each other [Sec. 5(v)]
||Consent of petitioner of guardian of
petitioner obtained by force or fraud.
|Incomplete Marriage without performing rites
& ceremonies [Sec. 7 (2)]
||Respondent was pregnant at the time of
marriage i.e this ground is available only for husband.
|Marriage before the period of appeal gets
over [sec. 28] i.e 90 days from the date of decree or order.
||Sec.5 (iii): bride and groom has completed
the age of 18 & 21 years respectively. If any marriage solemnized in
contravention of this section then it is punishable u/s 18.
It is the discretion of either party to go for declaration of marriage as
null and void on any ground mentioned in section.12 (Voidable marriages).
Irretrievable Breakdown of Marriage
Period of one year for sec 9 as well as sec 10 is given in Section 13(1A).
|Sec. 9 Restitution of Conjugal Rights
||Sec. 10 Judicial Separation
|Either spouse is entitled
||By either party
|Without reasonable (fair and sensible) excuse
(release someone from requirement)
||Grounds for divorce can be the grounds for
Judicial Separationbut subject to exceptions (Sec. 13 A)
|Withdrawn from the society of other spouse
with the intention of not coming back.
||Relationship of husband and wife will remain
but without cohabitation.
|Without consent of the petitioner.
||In case of forcible cohabitation, wife can
lodge a case of rape.
|Burden of proving reasonable excuse will lie
on the respondent.
||Wife is entitled to get maintenance during
period of Judicial Separation.
|No provision of imprisonment even if decree
is passed, only attachment of property, but this will not fulfill the
purpose of petitioner of filing the petition.
||In a petition for divorce, courts can pass a
degree of Judicial Separation instead of divorce, if it deems fit to do
|From the date of decree, of restitution, if
both spouses are living separately for more than 1 year, then it itself
will become a ground for divorce.
||If there is cohabitation then husband and
wife can rescind the decree of Judicial Separation. If there is no
cohabitation even after 1 year from the date of separation then it can
become a ground for Divorce.
Hindu civil code permits divorce on certain grounds. But the religion as such
does not approve divorce, because the concept is alien to Hinduism. According to
the tenets of Hinduism, marriage is a sacred relationship, a divine covenant and
Marriage is meant for procreation and continuation of family lineage, not for
sexual pleasure. It is an obligatory duty, part of Hindu dharma, which, once
accepted, should be upheld by both the parties throughout their lives. Marriage
is therefore a sacred bond, which cannot be dissolved through divorce on some
personal or selfish grounds.
Section 13 of the act describes the grounds of divorce, for a marriage which is
legally in existence.
Grounds for either spouse [Section 13 (1)&(1A)]
i) Voluntary (conscious mind) sexual intercourse with a person other than
spouse. It does not include unconscious mind, drunkenness or without consent.
Proving this ground is very difficult because:
- Extra marital affairs are not done publicly,
- Strict prove is impossible.
- Circumstantial evidence is the only key.
- Burden of proof is very light.
- These activities are hidden.
ia) Treated petitioner with cruelty
Cruelty can be of two types i) mental or ii) physical or both. We exclude minor
daily life trifles, because marriage is a holy union and even by providing a
provison of divorce, legislation not wanted to dissolve the marriage very easily
on the ground of trivial acts. While considering a petition under cruelty court
must consider living status, family background, education, living conditions,
environment, social wellbeing, age, extreme conditions of the parties. Some of
the major examples of cruelty are:
- Demand of Dowry,
- Refusal for cohabitation,
- Lodging of F.I.R and other complaints,
- Use of abusive language,
- Maintenance of the house hold,
- Mal treatment to parents,
- Drunkenness, Gambling etc,
- Calling the spouse with different objectionable names,
- Not giving respect to parents, relatives or guests,
- Beatings at work place or matrimonial home, Beatings can be by family
In physical cruelty acts must be of that nature that the petitioner must feel
endanger to life and circumstances must be grave. Without documents of physical
cruelty, it is still a ground because many times in Hindu matrimonial houme,
people try to avoid visiting doctors and taking prescriptions, just to maintain
image in society by not exposing inner disputes in front of any outsider.
ib) Desertion for 2 years immediately before presentation of petition by either
- There is a difference between desertion and separation.
- Desertion means to break the matrimonial ties and not to come back to
the matrimonial house for reunion.
- Desertion must be continuous for 2 years.
- If during this period, there is any cohabitation or reunion between
husband and wife, then this ground will not be evoked.
- At the time of presentation of petition, desertion must be in existence.
- Desertion without reasonable cause and consent.
- Documentary evidence not necessary.
- Deserting for more than 2 years and again living together before filing
the petition will not amount to ground of divorce.
- A mere physical distance can be termed as separation; it can be with or
ii) Ceased to be a Hindu by conversion.
iii) Mental Disorder: incurable of unsound mind, may be continous
(persistent) or intermittent:
- Aggressive behaviour,
- Violent behaviour,
- which cannot be bared under normal circumstances,
- which cannot be tolerated at any cost,
- harmful or endanger to life,
- Anti social,
- tries to justify own acts,
- abnormal, illegal, irresponsible acts.
iv) suffering from incurable form of leprosy,
v) suffering from STD or communicable disease,
vi) renounced the world,
vii) not heard for 7 years or more,
Section 13 (1A)
- Judicial Separation
- Restitution of conjugal rights.
Section 13 (2): These grounds are only for wife exclusively:
- Husband has been guilty of rape, sodomy or bestiality
Although criminal liability of Adultry u/s 497 IPC has been declared
unconstitutional by the Hon’ble Supreme Court in Joseph shine v/s Union
oF India, still it is considered as a ground of divorce.
Even a single act of rape, sodomy or bestiality is sufficient to be a ground
In case of rape, punishment is not necessary to evoke the ground of divorce,
mere prima facie by charge sheet is itself sufficient.
If a marriage is solemnized before the wife has
attained the age of marriage, then she can, after attaining the age of 15 years
and before 18 years, repudiate the marriage and same will become a ground for
Section 14: No petition to be presented within one year of marriage
- This period of 1 year can be condoned by showing exceptional hardship on
the part of petitioner. Some cases are:
(i) Mental disorder
(ii) Rape, sodomy, adultry etc,
(iii) Communicable & Venral diseases,
- This section is not barred by the principle of res judicata i.e. even
after dismissal of the petition, after one year has elasped, any party
thereto can file a petition for divorce on the same grounds.
- An application of waiver of period of one year shall be filed along with
- Chances of children are very less, but if any court will consider thier
Sec 15 : When a Divorced person can marry again:
- Where there is no right of appeal, in case of Section 13B, after passing
the decree of divorce.
- Where the time of appeal as mention in Section 28 i.e. 90 days from the
date of decree has elapsed.
- Where Where an appeal has been file but the same has been dismissed.
This section must be read with Section 28 for better understanding
but somewhere this section shows absurdity and becomes silent on many aspects.
For example: It enumarates the situation of remarrying by a divorced person,
when appeal is dismissed but becomes silent in respect of which appeal whether
supreme court or high court ?
All children born out of a void marriage or void able
marriage will be legitimate. And the child born will have the rights on
ancestral property of any person (including parents), But on self acquired
property of either parents, the child will not confer any right.
But In Ravosiddappa v/s Mallikarjun
, Hon’ble SC gave right to
illegitimate children in self acquired property also.
Purpose of this section was to save any illegitimate children from being called
as bastard and tilted towards the legitimacy of children, despite the decree of
nullity has been passed.
Section 19 (iiia)
Gives only a wife, a right for filling any petition
under this act, where she is residing at the time of presentation of petition.
It is an exceptional ground, which gives unfattered & unlimited jurisdiction,
all around the country to the wife.
Section 20: Every state has made thier different rules regarding the presntation
of matrimonial petitions. For Ex: In Delhi, DHC has made rules like:
- In case of cruelty, petitioner have to write that, ‘I have not condoned
the acts of cruelty’.
- There is no collusion between the parties
Otherwise collusion will frustrate the object of Section 13B, and a petition u/s
15 can be filed easily by collusion of both the parties.
No transfer petition to be filed in Hon’ble supreme court, until, in which court
the petition is pending, has no facility available for camera proceeding.
Printing and publishing of any judgment of HC or SC under this act must be with
the permission of High Court Or Supreme Court.
Section 24: Pendente lite maintenance:
- Remedy available to both husband and wife.
- Applicable to expenses during the pendency of petition only.
- Order of maintenance under this by ADJ, will be binding on any
maintenance order passed by Magistrate of DV act, Magistrate of Section 125
cr.p.c. But order of Magistrate may be considered by the ADJ, while granting
maintenance but he is not bound by order of magistrate.
Section 25: Permanent alimony
- If we talk about generality, a lumsum amount is ordered. provison of
monthly allowance is provided, but we cannot put reliance on future aspects,
therefore a lumsum is provided. For Eg: after getting monthly allowance,
spouse can get marry again.
- Generally, if a dcree is passed, the court becomes fungtus-officio, and
only right of appeal is left. But in Section 25, if there is any change in
circumstances regard to those in which decree was passed, the court passing
the decree may vary, alter or rescind it.
Fundamentals of Section 26: Custody of Children:
- Custody of children to be governed by Hindu Minority & guardianship Act,
- Two things are main to be considered, permanent custody of the children
and visitation rights during the pendency or after the decree.
- While passing any interim order for custody, the court may consider
maintenance & education of minor children having regard to their wishes
- Upto 5 years of age of child, mother is presumed to be only best
guardian, except in case of exceptional hardship.
- After 5 years, court will have regards to the welfare of the child, any
third person can also be given custody, if court thinks welfare of child
best vests there.
- If the child is mature, court will consider the wish and desire of
child, but court is not bound by the wish of child, as there may be tutoring
of child also.
- In case of a major child, he/she can solely decide, where and with whom
- If an order of permanent alimony (Section 25) or custody of children
(Section 26) is passed, they will be appealable only if they are not interim
- No appeal shall lie subject to costs only.
- Appeal shall be prefered within a period of ninety days from the date of
decree or order.
- If anyone of the divorced spouse, gets married after passing of 90
days, and an appeal by the aggrieved spouse is filled after 90 days along
with the apllication u/s 5 of limitation act (which applies only to appeals
and applications) for the condonation of delay on his/her part. And the same
gets admitted, now the appellant court has two options, whether to set aside
the decree of district court and nullify the second marriage of that spouse,
which itself feels absurd or to dismiss the appeal.
Then again this provisions seems to be falling under absurdity, and no such
judgement till date has been pronounced, to clearify this issue.