STUDY MATERIAL FOR I SEMESTER 3 YEARS LL.B.

COURSE
SUBJECT: FAMILY LAW-I (UNIT-II)

Prepared by:

Ms. Sneha M Bennalkar Asst. Prof

AL- AMEEN COLLEGE OF LAW

UNIT- II

HINDU MARRIAGE ACT ,1955

Nature of Hindu Marriage

Marriage is one of the oldest institutions of Hindus. It occupies a very important place in their
social life. It is regarded as one of most important ten Sanskaras (sacraents) for them. In marriage
the father entrusts his daughter into the hands of a noble and physically sound groom who
thereby becomes her husband. This mode of marriage is well-settled since Vedic period and has
assumed religious significance.

According to Raghunandan, a Hindu marriage implies the acceptance of the bride as wife by the
groom through a ceremonial process which is technically known as kanyadan. It is the only
Sanskara (sacrament) which has not been prohibited for any one irrespective of caste and sex and
has been provided as compulsory for all males and females. Through the institution of marriage
men and women are united into a wedlock, the purpose of which is generally to give birth to a
male child. Every twice born Hindu is under a religious obligation to discharge three debts
namely, Pitri Rin, Dev Rin and Rishi Rin i.e., debt to father, debt to Gods and debt to seers and
sages and in the discharge of Pitri Rin, he must of necessity have his own son, Dharmaj Putra,
begotten upon his legally wedded wife, who is supposed to perform funeral rites and to give
sacred oblations to the ancestors on their death for their salvation.

Hindu law has thus assigned a very important status to the male child, who plays a key role for
the salvation of his parents and his deliverance from sufferings of the hell. A Hindu son is thus a
saviour from hell. Thus, his son salvates men from the tortures of hell. The sacrament of
marriage, therefore, becomes necessary to beget a son.
Marriage is essential also because all the religious ceremonies and rites are to be performed by a
Hindu in the companionship of his wife otherwise they will not bear any fruits. It is noteworthy
that marriage under Hindu law is not regarded primarily as means of satisfying the corporal lust
nor does it have the connotation of contractual obligations. On the contrary it is simply a
religious sacrament and an obligatory duty. According to Bombay and Madras High Courts the
importance of the institution of marriage becomes distinct by the fact that religion regards it as
one of the ten sacraments essential for purifying the body from its hereditary taints.’ Marriage is
a religious institution intended to fulfil religious duties and to achieve the higher ends of life,
namely, Dharma Artha, Kama and Moksha. It is binding upon every Hindu to marry unless he
has taken the vow to lead the life of a perpetual celebacy and abstinence. Women have been
created to become mothers later and similarly men to become fathers. The Vedas enjoin that a
man should carry out the religious obligations together with his wife.’ Only that man is perfect
who has a wife and children.’ Only that man could fulfil his obligations who is blessed with wife,
Only the persons who have wives could lead a family life, those who have wives can alone
remain happy and gay and they alone could lead a perfect life.”

Wives have been considered to be the better halves and religious partners of their
husbands which means that half part of a man is his wife and that without being married, the
personality of a man is incomplete. Perfection comes only after marriage.

In Ramayan, wife has been considered to be the soul of her husband and in Mahabharat
she is stated to be the half part of her husband, and his best friend. She is regarded as an
inspiration to religion, wealth and ambitions. She is source of salvation, and considered to be
Dharmapatni, i.e., lifelong companion to carry out the religious injunctions of Vedas and
Dharmashastras and to perform religious rites and ceremonies as enjoined in the sacred books.
The performance of the religious ceremonies along with the wife is necessary otherwise they will
not bear any fruits.

By marriage an inseparable relationship is created between the husband and wife. The
relationship cannot be broken by any means whatsoever even when the wife starts living a very
wretched life. According to Manu, the daughter is given in marriage only once and she remains
the wife of that person to whom she is given in marriage, for her whole life.”

The two seers known as eminent jurists of later period, namely Narada and Parasar have stated
five conditions in which a wife could abandon her husband and remarry. These conditions are as
under :

(1) where the husband is lost, or

(2) dead, or

(3) has renounced the world and has become a sanyasi, or

(4) has become impotent, or

(5) has been ousted from his caste.

But these conditions of remarriage were provided only for the marriages of unapproved
forms. The Dharmashastra-writers generally do not agree with the view that a wife could
abandon her husband under any circumstances. The indissoluble tie, created between the spouses,
could not be broken in any case may it be an approved form or unapproved form of marriage.
This signifies an unique character of Hindu marriage.

According to Manu, the remarriage of a woman could not be even imagined. After the death of
her husband, she has to lead her whole life simply on vegetation and in abstinence emaciating
herself to minimal. She is supposed not to take the name of any person other than her deceased
husband. Thus, leading a life of celebacy and chastity and maintaining abstinence throughout &
she earns a right to have a seat in the Heaven!

A Hindu marriage has been said to be a sacrament also because the marital relations between the
spouses are created not on account of any contract between the two but by virtue of a gift of the
girl by her father to the bridegroom. The gift is holy and accompanied with the religious
ceremony of Saptapadi or any other customary religious rites. In absence of such religious
ceremonies and rites marriage is said to have not taken place at all in the eyes of law. It is
considered to be a sacramental union between the husband and the wife to last long till their life.
Hindu marriages are thus rightly acclaimed ag sacrament rather than contract as it lacks every
essential of a valid contract, e.g. proposal, acceptance and consideration. In the marriage the
parents or the guardian of the girl gives her away by way of gift to a noble and virtuous man after
respectfully inviting him and accomplishing the religious rites and ceremonies. Thereafter the
bridegroom accepts her as his wife and vows to keep her with utmost love and respect till the last
breath of her life. Under these conditions there is hardly any place for a contract between bride
and bridegroom at the time of marriage.

Definition of Marriage: According to Raghunandan, a well known Bhasyakar, "The acceptance

of bride as his wife by the bridegroom in a gift by her parents is defined as marriage." In the
process of gift the father of the bride chooses the bridegroom as a suitable person to whom the
girl is given. The pious duty of giving away the girl in marriage by way of gift has been thrust
upon the father or her guardian in his absence, as according to Rigveda, the girl is the property of
the god of fire who has entrusted the father with the responsibility of bringing her up and to give
her in gift to a virtuous person by invoking the fire god to witness the act of giving. The father or
guardian of the girl enjoys almost absolute right to settle the marriage and the assent of the girl
does not carry any material significance.’
 But it is remarkable to note that the Dharmashastras have provided several restrictions
upon the power of the father in the choice of bridegroom. It is not open to the father to give his
daughter to any one. He has to choose a bridegroom after satisfying himself with his good
qualities, virtues and character. According to Manu, even if the girl attains the age of puberty and
she has to live in father’s home for her whole life, she is not to be given in marriage to a person,
who is devoid of virtues and is worthless.”

Yajyavalkya said that the bridegroom should be such whose celebacy has not been
destroyed, who is of the same caste and who has acquired good knowledge of Vedas and whose
potentiality has been well tested, who is wise, young and quite popular. The sincere fulfillment
of this duty of the father would lead him to self satisfaction and spiritual bliss.

Recently in Indra Sarma v. V.K. Sarma,’ the Supreme Court has observed that, marriage is
often describe as one of the basic civil rights of man and woman which is voluntarily undertaken
by the parties in public in formal way and once concluded recognize the parties as husband and
wife. There are three elements of common law of marriage firstly, agreement to be married,
secondly living together as husband and wife, thirdly, holding out to the public that they are
married, and in both sharing a common house hold and electing to live together and afford each
other reasonable marital privileges and rights and be honest and faithful to each other.

CREMONIES IN CONNECTION WITH THE MARRIAGE

There are two ceremonies in the ritual of marriage which are essential: —

Kanyadana: This is the gift of the bride to the bridegroom. It puts an end to the dominion of the
genitive family over the girl)

Saptapadi;-This is circumambulation of the sacred fire with the bride and bridegroom
pronouncing certain Mantras and pledging mutual fidelity with the Agni or sacred fire as witness.

Marriage, whether considered as a sacrament or a contract, gives rise to a Status. It confers a

status of husband and wife on parties to the marriage, and a status of legitimacy on the children
of the marriage.

Under the ancient Hindu Law the object of marriage was sublime. as a put Marriage was meant
for doing good deeds and for attainment of Moksha." One of the charactenstic features of a
Hindu marriage has been that it was more connected with the performance of religious duties and
begetting of a son, who enables a man to get deliverance from the sufferings of Hell. Marriage
was not a contract but an indissoluble be as Medhatithi put it. According to Manu, it is
solemnized once and for all.
In law ‘marriage’ may mean either the acts, agreements, or ceremony by which two persons
enter into wedlock, or their subsequent relation created thereby. Marriage is the civil status or
personal relation of one man and one woman joined together in a matrimonial union which was
lawfully entered into, is intended to continue during the joint lives, is not dissoluble by their
consent or agreement, and which involves the reciprocal rights and obligations imposed by law
or such a union .

Mark and Young

“Marriage is the institution or set of norms which determines the particular relation of harmony
to each other and to their children”. Earnest R. Groves

“Marriage is public confession and legal registration of an adven in fellowship”.

OBJECT OF MARRIAGE

According to Mitakshara Law, marriage has three objects namely:

i) Dharma Sampatti:

ii) Praja Sampatti; and

iii) Rati Shukham.

i) Dharma Sampatti: The main object of the marriage is ‘Dharma’. As per Vedas, the highest
act of dharma lies in the performance of Yagnas and Sacrifices. Shastras do not allow a wifeless
man to perform Yagnas or sacrifice or anniversaries of the ancestors. There must be a wife for
honouring the guests, which is an act of Dharma. In those days, honouring the guests was
regarded as Godliness (of course, it may be treated as a Ghostliness today). The sacrifice of the
only son by Bhakta Siriyala in honouring the guests is the best example.

ii) Praja Sampatti: Marriage is one of the essential samskaras to have a son. The son by
performing the religious ceremonies fulfils the object of Praja Sampatti. He can avoid the
torturing of the soul of the parted ancestor i.e. father/grand father/great grand father, in the hell
called ‘put’, by performing the obsequies. (Obsequies = funeral rites and solemnities). Therefore,
the son is called ‘Putra’, a means of salvation.

iii) Rati Sukham: The third object is ‘Rati Sukham’ the pleasure of sexual enjoyment. It is a
biological necessity.
Salient Features of Hindu Marriage Act, 1955:

Hindu marriages are mainly governed by “The Hindu Marriage Act, 1955.”

The Act come into force on May 18, 1955 and applicable to whole of India except the state of
Jammu & Kashmir and also to Hindus domiciled in the territories to which this act extends who
are outside the said territories.

The object of the Hindu Marriage Act, 1955, as per its preamble is to amend and codify the law
relating to marriage among Hindus. A codifying statute not merely declares the law on a
particular subject but is exhaustive of the law in respect of the law which it codifies. In the case
of a codifying statute, the courts are not at liberty to go outside the code.

It extends to the whole of India except the State of Jammu and Kashmir

The Hindu Marriage Act, 1955 has substantially modified the institution of marriage as
recognized by the ancient Hindu Law. This Act has brought about certain dynamic, fundamental,
radical and basic changes in the old Hindu Law, some of which are as follows:

Following are the Essential of Hindu Marriage Act, 1955 are as follows:

1.Applicability :

Section 2 of the Hindu Marriage Act, 1955 states that the provisions of the act are applicable to
anyone who is Hindu, Jain, Sikh, or Buddhist by religion, by conversion or by birth.

2.Monogamy :( Sec.5)

At the time of marriage there is no subsisting valid marriage between any of the party. That is the
provision of the act prohibits bigamy or polygamy and polyandry. These are treated as offence
and are punishable under the Indian Penal Code. [ sec. 5 (i) read with Sec.17].

Case Law: Yamunabai Anantrao Adhar vs. Anantrao Trirarao Adhar

In this case, Supreme Court held that, if there is any subsisting valid marriage between any of the
party at the date of time, the marriage is considered as void marriage.

3.Registration : ( Sec.8)

he Act also provides for the registration of the marriage for the first time, but it is not absolute
and does not affect the Marriages not registered [Sec. 8] . It is compulsory to register every
Hindu Marriage even if marriage is solemnized by performing rituals. The State government
shall be given the powers for every respective state to make laws for the registration of
Marriages.

4.Age: (sec.5)
Both the boy and girl should be Major. The age of majority is as per the Indian Majority Act,
1875, that is the minimum age for boy is 21 years and the minimum age for the girl is 18 years at
the time of marriage.

5.Sanity :

The parties to the marriage are of sound mind at the time of marriage.

The parties are not suffering from any mental disability at the time of marriage

Parties must be mentally fit to give valid consent to marriage at the time of marriage.

Case Law: Ajit Rai Shiva vs. Bai Vasumati

In this case, at the time of marriage wife was unaware of the fact that the person to whom she
was married was Lunatic and the marriage were happened she came to know that her husband
was lunatic. So the Court held that this marriage is Voidable at the option of aggrieved party i.e.
wife in this case.

6.Beyond prohibited degree:

Section 5(4) of Hindu Marriage Act, 1955 states that the parties are not within the degrees of
prohibited relationship unless the custom or usage governing each of them permits of a marriage
between the two.

Prohibited Relationship includes:

A.Relation by Half blood

B.Relation by Uterine blood

C.Relation by Full blood

Relation of Half blood :

When two persons have a common father between them but have 2 different mothers then they
both are related to each other by Half blood.

Relation by Uterine blood:

When two persons have a common mother but have two different fathers, they both are related
to each other by uterine blood.

Relation by Full blood:

The persons who are related to each other by common parents (both Father and Mother) are Full
blood.
Case Law: Shakuntala devi vs.Amarnath

In this case Punjab High Court held that, the marriage performed in this case is by way of custom
and usages, and so therefore in this case section 5(4) of Hindu Marriage Act, 1955 is not
applicable in this case.

7.Beyond Sapinda Relationship:

It is nothing but an extension to section 5(4). Relations which are not covered under section 5(4)
are covered under Sapinda Relationship.

It covers :

a.Relation connected through same body

b.Relation connected through Funeral obligation of food.

c.Common lineal ascendant.

Sapinda relationship is always traced upwards i.e. in the line of ascent and not in the line of
decent. From Father’s side: Five generations and from Mother’s Side: 3 generations.

8. The Act provides that the marriage between Hindus, Jains, Sikhs and Buddhists are valid
Hindu Marriages [Sec. 5, read with Sec. 2(3)].

9. Requirement of caste and sub- caste: It re-enacts the law that identity of caste or sub-caste
for a marriage is not necessary [Sec. 2]

10. The Act does not accord much importance to the eight ancient forms of Hindu Marriage.The
Act merely lays down certain conditions as pre-requisites for a valid Hindu Marriage[Sec.5].The
parties to the marriage are free to adopt any form of marriage prevailing in their community/ as
per their customary practice. The act removed the prohibition of widow marriages and the
disqualification of a window to get remarried was abolished with the passing of the Hindu
Widow’s Remarriage Act, 1956.

11. Form Of Marriage or Ceremonies ( Sec.7): Prescribes no particular form of marriage or

ceremonies. A Hindu Marriage may be solemnized in accordance with the customary rites and
ceremonies of either party thereto. According to Sec 7(2) of the Act two Ceremonies viz
Kanyadan and Sapatpadi are essential for the validity of marriage.

12. Distinction: The Act abolishes the distinction between the marriage of a maiden and that of
a widow.

13. Punishment for Contravention: The Ancient Hindu Law did not prescribe any age for
marriage but it is now a condition of marriage that the bridegroom must have completed 21 years
and the bride must have completed the age of 18 years [Sec. 5(1i1)]. Earlier it was 18 and 15
respectively. Any contravention of this condition shall be punishable with simple imprisonment
which may extend to fifteen days, or with fine which may extend to one thousand rupees or with
both [Sec. 18(a)]

14. Restitution of conjugal rights: The Act contains provisions for restitution of conjugal rights
of the parties to a marriage [Sec. 9]. If one spouse leaves the other spouse, the deserted spouse
may file a petition in the District Court for the Restitution of Conjugal Rights Under Section 9 of
the Act.

15. Judicial Separation: Enacts provisions for judicial separation [Sec. 10 and 13-A). Which
means suspension of Conjugal rights for some periods.

14. Nullity and Annulment of Marriage: termination of marriage [Sec. 11 and 12]

15.Divorce [Sec. 13]: It is a process by which the Marriage is Dissolved. Divorce is permitted on
the following grounds: adultery, conversion to other religions, insanity, leprosy, renunciation of
the world, no trace for seven years, non-compliance with a decree of restitution of conjugal
rights for two years.

16. Additional Grounds for wife [Sec. 14]: In addition to these grounds, the wife can also get
divorce on the ground that the husband has been guilty of rape, sodomy or that the husband had
married again, or any other wife of the husband is alive. To ensure a fair trial being given to
every marriage, a petition for divorce is not permitted to be filed within one year of
solemnization of a marriage.

17. Divorce by Mutual Consent: As per Amendment Act, 1976, the provisions have now been
made for divorce decree by mutual consent of parties to the marriage [Sec. 13-B].

18. Remarry: After a valid divorce either party may marry [Sec. 15].

19. Legitimating: Section 16 of the Act made provision for legitimacy of the illegitimate
children.

20. Maintenance pendente lite: he Act provides for maintenance pendente lite i.e., during
matrimonial legal proceedings and legal expenses by one spouse to the other [Sec. 24].

21. Permanent Alimony: The Act prescribes for permanent alimony (maintenance) even after
divorce [Sec. 25]

22. Maintenance of minor Children: The Act provides for the custody, maintenance and
education of minor children during the pendency of legal proceedings as also after passing of
decree [Sec. 26]

22. Amendments: The Hindu Marriage Act, 1955 has been amended many a times. The
Amending Acts are:
i) The Hindu Marriage (Amendment) Act, 1956

ii) The Repealing and Amending Act, 1960

iii) The Hindu Marriage (Amendment) Act, 1965

iv) The Marriage Laws (Amendment) Act, 1976.

v) The Child Marriage Restraint (Amendment) Act, 1978

vi) The Marriage Laws (Amendment) Act, 1999

vi) The Marriage Laws (Amendment) Act, 2001

vii) The Marriage Laws (Amendment) Act, 2003.

MAIN CHANGES MADE BY THE AMENDMENT ACT OF 1976 (ACT NO.68 OF 1976)

The Hindu Marriage Act was passed in 1955. Later, it was amended by the Act No.73 of 1956,
58 of 1960, 44 of 1964 and 68 of 1976. The changes made by the Amendment Act of 1976
hereinafter called the Act of 1976) are of great importance as enumerated hereunder: |

1. Changes with regard to Divorce: Before 1976, according to a proviso under Sec.15, the
parties, after the decree of divorce had to wait for atleast one year to get remarried. This proviso
was Omitted by the Act of 1976. However, the parties have to wait until the time of limitation for
appeal is expired or the appeal if already filed has been dismissed. Hence, a divorcee can remarry
immediately.

2. Disposal of a matrimonial petition: With a view to expedite the disposal of a matrimonial

petition, a Provision has been made in the Amendment Act that the trial should Conclude within
a period of six months, and the appeal within three months.

3. Reduction in Interim period : The interim period between Judicial Separation and divorce
has been reduced to one year (instead of two years) now and appeals from interim orders stand
abolished.

4. In Camera Proceedings: The Act further provides that every matrimonial proceeding,
should be conducted in camera from now onwards.

5. Changes in regard to Marriage:

i) The Act of 1976 introduced the following new conditions for conditions of a marriage (Sec.5).

a) Neither party should be suffering from mental disorder, though falling short of unsoundness of
mind.
b) Neither party should have been subject to recurrent attacks of epilepsy or insanity.

ii) Restitution of Conjugal Rights (Sec.9): The Act of 1976 imposed the burden of proof on the
respondent that there was a reasonable excuse for withdrawal of conjugal society.

iii) Judicial Separation (Sec.10): After the Act of 1976, the grounds for judicial separation and
divorce are made common.

iv) Voidable Marriage (Annulment of Marriage) (Sec.12):

a) Impotence: Before 1976, it had to be shown that the disability (impotence) was existing at the
time of the marriage. After 1976, if it is proved that the marriage is not successfully
consummated, it is sufficient.

b) Fraud: Another ground for annulment of the marriage is fraud. It is clarified under the Act of
1976 that such fraud may be as to the nature of the ceremony or as to any material fact or
circumstances concerning the respondent.

v) Status of children of void and voidable marriage: After the Act of 1976, the children of a
void marriage are treated by a friction as legitimate for the limited purpose of inheritance to the
parents. Before 1976, a decree of Nullity had to be obtained under the Act before this friction
could operate. (To confer legitimacy on the children of a void marriage, decree of nullity was
necessary before 1976).

vi) Jurisdiction of Courts:

a) Place of suing: After 1976, the petition for matrimonial relief has to be filed in the District
Court within whose jurisdiction the respondent resides. If the respondent is outside India or has
been unheard for 7 years, the petition can be filed in the District Court, within whose jurisdiction,
the petitioner resides.

b) Power to transfer the petition: If both the parties filed petitions in the same court, they should
be clubbed together. If both the parties filed petitions in the different courts, the later filed
petition should be transferred to the court, where the earlier filed petition was pending.

c) Time-limits for disposal: To ensure speedy disposal, the petition should be disposed of
within 6 months from the date of service of notice to the respondent. Similarly, an appeal should
be disposed of within 3 months from the date of service of notice of appeal on the respondent.

d) Power of the Court to modify or rescind decree: The Act of 1976 confers on the Court,
power to vary, modify or rescind the decree as it deems fit.

f) Provision for Appeals: There were no specific provisions for appeals. The Act of 1976, made
explicit provisions for appeals from the orders or decrees passed under the Act.
6. Sections 21-A, 22-B and 21-C have been newly added to Section 21 of the Act. These
sections regulate the transfer and disposal of matrimonial petition when presented in different
court, by the parties to a marriage. The court has been conferred the jurisdiction to deal with the
case, to which the petition was made at an earlier date by either spouse. These Sections also
made it incumbent on the court to decide the case within six months and incase of appeal within
three months.

7. Common Grounds Judicial separation and Divorce: All grounds available for a judicial
separation have now been made available to a Hindu for divorce too. A Hindu can claim a decree
of divorce on the grounds of either desertion or cruelty now. The meaning of ‘desertion’ has
been statutorily widened so as to include ‘wilful neglect’ in its definition. Thus an uncared for or
neglected wife can claim a decree of divorce on the ground of her husband’, desertion.

8. Adultery: singular or isolated act of adultery or infidelity has also been made a ground for
divorce now and the old concept of “is living in adultery” has lost that significance, which it
once possessed, One lapse in virtue is sufficient to call for divorce.

9. “Divorce by mutual consent” : A provision for “Divorce by mutual consent” too finds a
decent place in the Act. This is a new provision and needs a careful study. For obtaining a
divorce on this ground, the parties are required to wait for only six months after filing the
petition, though they are obliged to obtain it within 18 months.

10. Nullity of marriage: In relation to a petition for nullity of marriage, recurring attacks of
insanity and epilepsy or mental disorder of a nature rendering a party unfit for marriage or for
procreation of children, too have been made grounds for nullifying a marriage and further, if
these ailments occur later on these will be an instant ground for divorce too. “A
misrepresentation regarding any material fact or circumstances concerning the respondent” is
thus a new ground for nullifying a marriage. The Amendment of 1976 has thus widened the
meaning, scope and the purpose of the term “unsoundness of mind” or insanity.

11. Repudiation of marriage: A minor girl is now entitled to repudiate her marriage, provided
she does this after attaining the age of 15 years, but before attaining the age of 18 years.

12. Time period for filing divorce petition: Under the Amendment Act, a spouse can file a
petition for divorce after She year of his or her marriage now. Formerly, it was three years. This
provision has the obvious merit of reducing the hardships of those couples, who fail to pull on
their matrimonial happiness too long. The tortuous marital sorrows and displeasures can be cut
off or mitigated to a shorter span of time under the altered law.

13. Reconciliation: In cases, where a move for reconciliation is made, the court at the instance
of the parties or on his own grant adjournment for a reasonable period but which does not exceed
for more than 15 days. This matter of reconciliation can also be referred to a third person. But
this discretion has to be exercised by the court in just and proper cases.
14. Counter-Claim : Section 23-A is also a new section added by the Amendment Act, 1976. It
allows a respondent to make a Counter-claim for a decree of judicial separation or divorce, in all
those cases in which he or she can prove the petitioner’s fault in relation to adultery, cruelty or
desertion. 1976 brought many

Thus, the Hindu Marriage (Amendment) Act, changes in the Hindu Marriage Act, 1955 and
marked the end of the Sastric Law of marriage and the beginning of a secular law of marriage by
modifying the procedures of dissolution of the marriage according to the changed conditions of
modem society in India.

SECTION -5

CONDITIONS FOR HINDU MARRIAGE

CLAUSE (i): CONDITION OF MONOGAMY

This clause lays down that neither of the parties must have a spouse living at the time of
marriage.“Spouse” means “a lawfully married partner’. A concubine is not a spouse. Either each
one of them must have been unmarried before the marriage or if married, the other spouse of his
or her must be either dead or the marriage must have been dissolved by divorce. Thus no man
can now have more than one wife and no woman more than one husband at one and the same
time.

When a person charges that the second marriage is a bigamous one, a strict burden lies on him to
prove that the first marriage was validly contracted and it subsisted at the time, the second
marriage was solemnized. Marriage is not dissolved with the filing of a petition for divorce. It
subsists until a final decree for divorce is passed. If a person marries another person meanwhile,
he violates this condition.

This is a reform. Before the commencement of this Act, the Hindu law permitted a man to have
any number of wives he could afford. Thus polygamy was permitted. But on the other hand
polyandry was generally prohibited. It was prevalent only in some tribes under their customary
laws.

Because of the provisions of Section 2(2) HMA the Scheduled Tribes are excepted from the
application of the Act. Therefore if any such tribe has a custom permitting more than one wife or
one husband that would not be unlawful.

Widow-remarriage
Under the Shastric Hindu law a woman could not remarry even on the death of her husband. It is
the Hindu Widows’ Remarriage Act, 1856, which permitted a Hindu widow to marry again. The
HMA did not repeal that Act. This Act was repealed by the Hindu Widows’ Remarriage (Repeal)
Act, 1983. The reason for the repeal was that widow remarriage has become lawful under
Section 5(i) of the HMA. It was, therefore, immaterial whether or not the Hindu Widows’
Remarriage Act, 1856 remained on the Statute Book. But this Act became a source of ambiguity
in the interpretation of Section 14(1) of the Hindu Succession Act, 1956. Its repeal has removed
that headache of the courts.

Strict monogamy

The condition of monogamy admits of no exception. The customary law permitting more than
one wife is overridden by Section 4(a). One cannot remarry even with the consent of the first
spouse or even when there is no issue from that spouse. Marriage in contravention of this
condition is void ab initio. If a petitioner married the respondent knowing that the latter has a
spouse living and later on he seeks a decree of nullity of that marriage under Section 11 of this
Act for the violation of the condition of Section 5(i), he cannot be refused the relief on the
ground that he married the already married person deliberately. As the marriage is void ab initio,
it cannot be validated for any reason, even by the wrong of the petitioner. The party guilty of
contravention is punishable under Sections 494 and 495 of the IPC read with Section 17 of this
Act. Thus monogamy has been made a strict rule of Hindu law.

Apostasy to Islam

All the personal laws of India, except Muslim law, are monogamous. Though it forbids a female
from having more than one husband at a time, yet it permits a male to have even four wives at
one time. This permissiveness induced many an errant Hindu males to resort to apostasy to Islam
and marry another Muslim woman during the lifetime of his Hindu wife under Hindu law
without having obtained divorce from her. This raised the problem of conflict of personal laws in
India.

In Sarla Mudgal v. Union of India, the Supreme Court was faced with this problem. In this
case three Hindu males, married to their Hindu wives apostatized themselves to Islam. They
married for the second time with Muslim girls (who were also apostatized from Hinduism to
Islam).

The Supreme Court found that the issue has been settled by the High Courts in a number of cases.
Approving them, the Supreme Court held that there was no automatic dissolution of marriage by
the apostasy of a spouse to another religion. Therefore, the second marriage of a Hindu apostate
to Islam during the subsistence of his marriage with his wife, is violative of the provisions of the
HMA. It is covered by Section 494 of the IPC.
The Supreme Court held that the principles of justice, equity and good conscience require that
there should be harmony between the two systems of law; that each should operate within its
own ambit; that for the purpose of evading his obligations under his personal law a Hindu cannot
get shelter of Muslim law by changing his religion.

The ruling of the Sarla Mudgal case came to be reviewed in Lily Thomas v. Union of India, on
the petition of the Jamat-e-Ulema Hind and the Muslim Personal Law Board. It was contended
by them that this judgment goes contrary to the fundamental right to freedom of religion
guaranteed under Article 25 of the Constitution. Saghir Ahmed J., replied to this in these words:

“Religion is a belief which binds the spiritual nature of man to a supernatural being; it is an
object of conscientious devotion, faith and pietism. Religion, faith or devotion are not easily
interchangeable. If the person feigns to have adopted another religion just for some worldly gain
or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly
adopts another religion where plurality of marriage is permitted so as to renounce the previous
marriage and desert the wife, cannot be permitted to take advantage of his exploitation as
religion is not a commodity to be exploited.” It may be noted that Section 4 of the Parsi Marriage
and Divorce Act, 1936 (quoted below) has already laid down the law which the Supreme Court
arrived at in Sarla Mudgal case.

“Section 4(1) No Parsi (whether such Parsi has changed his or her religion or domicile or not)
shall contract any marriage under this Act or any other law in the lifetime of his or her wife or
husband, whether a Parsi or not, except after his or her lawful divorce from such wife or husband
or after his or her marriage with such wife or husband has lawfully been declared null and void
or dissolved.

(2) Every marriage contracted contrary to the provisions of sub-section (1) shall be void.”
(Emphasis supplied by the author) Section 5 of the Parsi Marriage and Divorce Act, punishes a
bigamous marriage under Sections 494 and 495 of the IPC.

CONSTITUTIONALITY OF MONOGAMY

In some cases the constitutionality of this condition has been challenged. In Ram Prasad Seth v.
State of U.P, the appellant argued that he had no son from his first wife; that according to his
Hindu religion he must have a male child for his otherworldly happiness; that therefore, he
wanted to marry a second wife for a son; that Section 5(i) of the HMA prohibits it and that this
restriction was violative of his fundamental right to the freedom of religion guaranteed under
Article 25(1).

The court held that it is not necessary for the appellant to marry another wife for getting a son.
The Hindu religion permits him to adopt a son who would be equally competent to confer the
other worldly benefits on him as his natural son. Again, the rule of monogamy is in the interest
of social reform.

Article 25(2)(b) authorizes the State to make laws in the interest of social reform and social
welfare even though they curb the right granted and guaranteed under Article 25(1). Thus
Section 5(i) of the HMA is protected by Article 25(2)(b) of the Constitution.

It was argued in Sambireddy v. Jayamma, that this provision prohibits only Hindus from
having more than one wife, whereas under the Muslim law a man can have four wives at a time.
This restriction therefore discriminates against Hindus on the ground of religion only and thus
violates the right to equality guaranteed under Article 15(1) of the Constitution.

The court held that ‘discrimination’ means ‘to make adverse distinction with regard to, to
distinguish unfavourably from others’. The condition of monogamy is a measure of social reform.

It is in the interest of the Hindu society and not against it. As it does not differentiate against the
Hindus it does not violate Article 15(1). Moreover, Christians, Parsis, Jews etc. also have the rule
of monogamy. This provision of the HMA is, therefore, a step towards a common civil code.

In Haisnam Baruniton Singh v. Thokchom Ningol Haisnam Ongbi Bhani Devi the court
held that this condition does not go against Article 14 of the Constitution, which guarantees the
right to equality. Article 14 does not mean that all laws should be applied to all persons. The
State may decide to bring about a social reform in phases taking into consideration the
differences of religions and communities. The Muslim community being still too immature to
welcome the rule of monogamy has not been given the rule of monogamy.

2. Mental Capacity [Absence of idiocy, lunacy and unsoundness of mind]

Section 5(11) of the Act provides at the time of marriage neither party

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a
kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity.

A marriage is bliss, A sound mind is a key to a happy married life. Clause (ii) of Section 5 of the
Act lays down as one of the conditions for a Hindu Marriage that neither party must be suffering
from unsoundness of mind, mental disorder, insanity and Section 12 (i) (b) of the Act renders at
the instance of a party, the marriage voidable, if the other party was suffering from any such
infliction at the time of the marriage.
At the time of the marriage a party may be incapable of giving an valid consent to the same
owing to unsoundness of mind. Again, a party may, at the time of the marriage, be capable of
giving consent to the Marriage but may be suffering from mental disorder of such a kind or to
such an extent as to be unfit for marriage and for the procreation of children it can also be that a
party though not suffering from any mental infliction, of the nature stated above, may yet, at the
time of the marriage has, been subject to recurrent attacks of insanity. In all such cases, the Party
is regarded as not having the mental capacity to solemnize the Marriage

According to Section 5(ii) of the Act, ‘free consent’ is necessary element of a Hindu Marriage.

Under Section 5(ii) a persistent unsoundness of mind is not required. It is sufficient if the party is
incapable of giving valid consent to the marriage because of his/her unsoundness of mind.

Under Section (ii)(b) of the Act, every mental disorder will not give rise to remedy under Section
12 of the Act but only that mental disorder which renders the party unfit for the marriage and for
procreation of the children.

An ‘idiot’ is he, who is a fool from his birth and knows not how to count or number, or cannot
name his father or mother nor of what age he himself is or such like easy and common matters;
so that it appeared that he has no manner of understanding, or reason, or government of himself,
or what is for his profit or disprofit. Schizophrenia is not equivalent to lunacy or idiocy. A low
degree of intellect does not amount to idiocy.

A lunatic is one who has had understanding but by disease, grief or other accident has lost the
use of his reason. He is indeed properly one that has lucid intervals, sometimes enjoying his
sense and sometimes not. A lunatic is an idiot or a person of unsound mind.

Only such marriages may be voidable where it is proved that the idiocy or lunacy was of such a
degree at the time when the marriage took place that the party seeking to rely upon it, did not
understand the nature of the act and could not form a rational judgment as to its effect upon his
interests. If insanity supervenes subsequent to the marriage it cannot be annulled.

Previously ‘epilepsy’ was also considered for invalidity of marriage However, the words “or
epilepsy” from Section 5(ii)(c) of the Act have been omitted by Act No. 39 of 1999 with effect
from 29-12-1999

In Ram Narain Gupta v. Rameshwari Gupta [1(1988) 4 SCC 247], it was held that the onus
of proof about lunacy or idiocy lies on him who makes a petition to annul the marriage. The
presumption is in favour of validity of marriage and in favour of mental capacity of the spouse
entering into matrimony.

In R.Lakshmi Narayan v. Santhi [(2001) 4 SCC 688] it was held that a marriage which takes
place in contravention of this condition is not per se void but voidable under Section 12(1)(b) of
the Hindu Marriage Act, 1955.
The Hindu Marriage Laws Amendment Act, 1976 added a new provision section 5(2) in
supersession of the previous one relating to mental soundness expanding the scope of the
previously used expression "idiocy and lunacy" so as to include now every kind of mental
disorder as a ground of nullity of marriage under Section 12 of the Act.

In Smt. Alka Sharma v. Avinash Chandra, AIR 1991 MP . 205 the Madhya Pradesh High
Court held that the word ‘and’ between expression unfit for marriage and procreation of children
in Section 5(2)(b) should read as ‘and’, ‘or’. The court can nullify the marriage if either
condition or both conditions contemplated exist due to mental disorder making living together of
parties highly unhappy.

Recently in Triveni Singh v. State of U.P, AIR 2008 All. 81 the Allahabad High Court held that,
annulment of marriage cannot be sought on ground that wife had HIV infection or any other
disease at the time of marriage. Marriage can be dissolved under this clause only on the ground
of mental disease.

Effects: The marriage in violation of the above condition/rule can be annulled on the ground of
mental incapacity under Section 12(1)(b).

(3) Third condition—Age of the parties( Age limit).—Section 5(3) prescribed the age of the
bridegroom as eighteen years and that of bride as fifteen years but by the Child Marriage
Restraint (Amendment) Act, 1978 the words ‘the eighteen’ and ‘fifteen’ stand substituted by
twenty one and eighteen respectively. Now for a valid marriage the bridegroom must have
attained the age of 21 years and the bride of 18 years at the time of marriage. But the breach of
this pre-requisite did not affect the validity of marriage, but on the other hand, rendered it as an
offence, inviting penal consequences to the erring parties. The guilty party to such marriage or
the parent or guardian concerned who is responsible for getting the marriage solemnised, or
negligently fails to prevent it from being solemnised shall be liable for simple imprisonment up
to 15 days or a fine of Rs. 1000/or both under Section 18 of the Act.

Now position has changed in the contravention of the condition specified in Clause (iii) of
Section 5, with rigorous imprisonment which may extend to two years, or with fine which may
extend to one lakh rupees or with both.

Before the aforesaid amendment the consent of the guardian of the girl was necessary if she was
below eighteen years of age. If the consent of the guardian was obtained by force or fraud the
aggrieved party could under Section 12(1)(c) of the Act have the marriage declared void by
making a petition to this effect.

A marriage solemnised in violation of Section 5(iii) would not be void although the person guilty
of the stipulated condition as to the minimum age would be liable to be punished under Section
18(a) of the Act.
Under the old Hindu law the marriageable age of the bride was between 8 and 12 years and that
of the bridegroom within 25 years, but the Child Marriage Restraint Act 1929, as amended by the
Act of 1949, re-determined the age of marriage and prohibited the same between a bride less
than 15 years of age and a bridegroom below 18 years. It was essential to have the consent of the
bride’s guardian if she was under 18 years of age. But where the parties voluntarily chose to
continue the marital relations as such after the marriage the necessity of the guardian’s consent
fell to the background.’

Male aged 20, female aged 25 at the time of marriage :

Yajnavalkya Smriti mentioned that the girl should be younger than the bridegroom (Yaviyaseem).
But this is only recommendatory. Under the present Law there is no requirement that the bride
should be younger to the bridegroom. The only requirement of age is that the bridegroom must
have completed 21 years of age and the bride 18 years of age.

Instance: Male aged 17, female aged 14 at the time of marriage :

Such a marriage is contrary to Section 5 of clause (iii) of the Act. But the marriage remains valid.
The consequence is punishment under Section (a) with simple imprisonment which may extend
to fifteen days or with fine which may extend to one thousand rupees or with both.

Many High Courts held that a child marriage (i.e., in contravention of Section 5(iii) of the Act) is
unaffected by pointing out that the Hindu Marriage Act itself is silent on the question whether
such a marriage is void or not. It, no doubt, prescribed a punishment under Section 18 clause (a)
for contravention of clause (iii). From this no conclusion can be drawn as to the legal validity of
the marriage itself.

The leading case on the subject of the age of parties is Pendenti Venkata Ramana v. State of
Andhra Pradesh [1977 AP 43]. The facts of the case are: The marriage of A and B was
solemnized by their elders in 1959 when they were respectively 13 and 9 years of age. In 1975
the husband- A married another woman treating his previous marriage with B as void. But the
first wife filed criminal petition against A under Sec: 494 of IPC for the offence of bigamy. ‘A’
cited the case ‘Saramma v Ganapatulu [AIR 1975 AP 193] in which the High Court of
Andhra Pradesh, decided that a child marriage is void, and is in contravention of Sec 5(iii) of
Hindu Marriage Act, 1955 and contended that his first marriage was void according to the
provisions of the Restraint of Child Marriage Act, 1929 and was against the provisions of
Section 5 of the Hindu Marriage Act, 1955.

The High Court of Andhra Pradesh overruled the decision of Saramma v. Ganapatulu case and
held that the marriage was valid.

In Rabindra Prasad v. Sita Devi [AIR 1986 Part 128], the court held that a child marriage (i.e.,
the marriage in contravention of Section 5(iii)) is not void and observed that “the marriage
solemnized in violation of Section 5(iii) remains unaffected. It is neither void nor voidable and
the appellant, therefore, cannot obtain disengagement on this score.

The Supreme Court also observed in Lila Gupta v. Lashminarayana [1978 SC 1351 at 1358]
that a reference to Child Marriage Restraint Act would show that it was enacted to carry forward
the reform movement of prohibiting child marriages and while it made a marriage in
contravention of the provisions of that Act punishable, it did not render the marriage void. The
same reasoning would apply to a marriage contravening Section 5(ii) of the Act.

After the decision of the Supreme Court, the Rajasthan and Punjab High Courts have held that a
wife is not entitled to any declaration that her marriage was void or voidable by reason of the
contravention of Section.5(iii) as the legislature exempted that provision from the preview of
Sections 11 and 12 of the Act.

However, the bride or bridegroom has an option to cancel the marriage after obtaining
their majority like in the Muslim marriages where a bride or bridegroom can revoke their
child marriage after attaining his/her puberty if he/she does not like it. If he does not revoke
the marriage, the tie continues Section 12 of the Child Marriage Restraint Act also explains the
same thing i.e., the Civil Court can issue injunction against the performance of the child
marriage, after giving due opportunity to the concerned patties

In other words, where a bride had been married before completion of her fifteenth year and on
attaining that age repudiates the marriage, she would be entitled to a decree of divorce under
Section 18(2)(iv) of the Act which was inserted by the Marriage Laws (Amendment) Act, 1976.
The option of getting a decree of divorce would be available till the completion of her eighteenth
year. Barring these two consequences, one arising under Section 18 and the other arising under
clause (iv) of the sub-section (2) of Section 13, there is no other consequence whatsoever,
resulting from the contravention of the provisions of cl. (iii) of Section 5.

Effects: A marriage solemnized contrary to the above provision is neither void nor voidable. The
bride can exercise the option of puberty under Section 13(2) of the Act, for decree of divorce.
The persons concerned are liable for simple imprisonment, which may extend to fifteen days or
with fine, which may extend to one thousand rupees or with both under Section 18(a) of the
Hindu Marriage Act, 1955.

iv) Degrees of Prohibited Relationship: The parties to the marriage should not be within the
degrees of prohibited relationship unless the custom permits. Clause 10 of Section 5 of the Hindu
Marriage Act, 1955 lays down that no marriage is valid if it is made between persons related to
each other within the prohibited degrees unless such marriage is sanctioned by custom or usage
governing both the parties.

A marriage falling within the prohibited degrees of relationship would be void under Section 11
of the Act. Moreover Section 18(b) punishes the erring party with the simple imprisonment
which may extend up to one month or with fine with may extend to one thousand rupees or with
both.

Clause (iv) of Section 5 of the Act provides that if there is a Custom or usage governing the
contracting parties which sanctions such a marriage it would validate the marriage and the
voidability of the same prescribed by Section 11 of the Act will not come into play.

In other words, The parties to the marriage should not be within the degrees of prohibited
relationship. Prohibited relationship in the sense, marriage between certain relations is prohibited
and such marriage is void.

For Example; Marriage between Father and Daughter,Mother and Son, Father-in-Law and
Daughter-in-Law, Mother-in-Law and Son-in-Law, between Brother and Sister, between Uncle
and Niece, and between the children of two brothers and two sisters etc. A man should not marry
a widow, who was his brother’s wife or Uncle’s (paternal or maternal) wife etc.

However, a marriage between certain relations is permissible if their custom permits such
marriage and the same is permitted by the Hindu Marriage Act, 1955. Eg.:Marriage between
uncle and niece. Similarly between Brother’s daughter and sister’s son.

Dr. Mahmood {in his Hindu Law (1981) pp 54, 55] summarized the degrees of prohibited
relationship as given below:

Following are the instances of prohibited relationships:

a) Alineal ascendant : father and daughter; son and mother.

b) Wife or husband of a lineal ascendant or descendant.

Eg.: Father-in-Law nd Widowed Daughter-in-Law; Widowed Mother-in-Law and Son-in-Law.

c) A man cannot marry the widow, who was the wife of his brother, or uncle (maternal/paternal)
or grand father’s brother or grand mother’s brother.

d) Brother and Sister, Uncle and Niece, Aunt and Nephew, Children of Brother and Sister or of
two brothers and two sisters.

Custom Saved: However, a marriage between certain relations stated above is valid, if the
custom permits the marriage between such relations.

Eg: In South India, marriages between the Children of Brother and Sister, and between a male
and his sister’s daughter are common and are valid by custom.

In Smt. Shakuntala Devi v. Amar Nath [AIR 1982 P&H 22] it was held that the conditions of
a valid marriage under Section 5(iv) of the Act stand qualified by custom meaning thereby that in
the event of custom being established, the marriage despite prohibited relationship between
parties to it would constitute a legal and valid marriage but these customs may be proved to be
very old and beyond human memory.

In Venkata v. Suibhadra [ILR Mad. 548] it was held that a custom permitting marriage with
the maternal uncle’s daughter is recognized.

In Balaswami Reddiar v. Balakrishna Reddiar [1957 Mad 97] where a custom was pleaded of
marrying a daughter’s daughter it was held illegal on the ground of immorality although it was a
custom in Reddiar community of Tirunalveli District to that effect.

Jagannadh v. Sadhu Ram [AIR 1934 Lah. 283] in this case, it was held that, marriage with the
widow of the predeceased son (widow daughter in law) is within the prohibited relationship,
rejecting the plea of customary practice. The marriage was declared void on the ground of the
nullity of marriage under Section 11 of the Hindu Marriage Act, 1955.

Effects: A marriage in contravention of the above provisions is void under Section 11 of the
Hindu Marriage Act. Any person, who procures a marriage in contravention of the conditions
specified in Clause(iii) of Sec.5 above shall be punishable with simple imprisonment, which may
extend to one month, or with fine, which may extend to one thousand rupees or with both under
Sec. 18(b) of the Hindu Marriage Act, 1955.

v) Sapinda Relationship: The parties to the marriage should not be sapindas of each other,
unless the custom or usage permits.

The rules relating to Sapinda relationship are enshrined in Sec.3(f) of the Act.

There are two theories relating to Sapinda relationship - namely:

A) Jimuthavahana’s Theory or Oblation Theory; and

B) Vignaneswara’s Theory or Particles of same body theory.

A) Jimuthavahana’s Theory (Oblation Theory): Pinda offering (pindadan) to departed

ancestors is a customary practice of Hindus. Pindadan extends to 7 generations i.e. self, three
ascendants (Father, Grand Father and Great Grand father) and three descandants (Son, Grand son
and Great Grand Son). When two persons offer pindas to the same ancestor, they are called
‘sapindas’.

B) Vignaneswara’s Theory (Particles of same body Theory): It was propounded by

Vignaneswara. According to him, pinda is a particle of the same body. The parties to marriage
should not have the same blood. According to this theory, father’s particles of the body are
present in son’s body and hence, the father and son are the sapindas. The degree of sapinda
relationship is seven through father and five through mother. Now, it is reduced to 5 and 3
respectively.
Effects: Any marriage solemnized in contravention to the above rule under Sec.5(v) of the Act is
void according to Sec.11 of the Act. Any person, who procures such marriage, shall be
punishable With simple imprisonment, which may extend to one month or with fine, which may
extend to one thousand rupees or with both.

 ADDITIONAL CONDITION FOR VALID MARRIAGE

There are other conditions of a valid marriage which are provided in other sections of the Act,
though not specified as important and significant. They are:

I) Marriage Ceremonies.

ii) Registration of Marriage, and

iii) Free consent of Parties to the Marriage.

1) Marriage Ceremonies :

There are three types of marriages namely, Sastric, Customary and Statutory. In all these systems,
no marriage can be validly performed without certain formalities or marriage ceremonies.
Marriage ceremonies bring/confer sanctity and solemnity to the institution of marriage. There are
many ceremonies prescribed ina Hindu Marriage namely, Kanyadan, Saptapadi, Ganapati Puja,
Nandi Devatas Puja, Graha Yagna, Snathaka Ceremony, Kasiyatra etc. etc.

The law is uncertain as to which of these rites and ceremonies are essential/mandatory.

According to Section 7 of the Act, the marriage must have been solemnized in accordance with
customary rites and ceremonies of at least one of the parties to the marriage.

It is not necessary that the customary rites and ceremonies of both the parties should be followed.

In Asraibai v. Dhondiram [1LR 1977 Bom. 870] it was held that where a marriage is
performed according to the customary rites and ceremonies of one party which did not include
saptapadi, even though according to the customary rites and ceremonies of the other party
Saptapadi was an essential ceremony in valid marriage.

Section 7 runs as follows:

1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies
of either party thereto.

2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by
the bridegroom and bride jointly before the sacred fire), the marriage becomes complete and
binding when the seventh step is taken.
The act did not prescribe any form of ceremonies and let to the choice of the parties concerned.
Following two are the widely accepted sastraic ceremonies of the valid marriage.

i) Kanyadan;

ii) Homa or Vivah Homa and Saptapadi;

iii) Free consent.

i) Kanyadan: It is a gift of the bride given by her father to the bridegroom. While giving her
away, the bride’s father says, “My unmarried daughter, who is shining in her decorations and
who is fit to be devoted wife, to thee of good character and wisdom I give for the attainment of
dharma, Artha and Kama”. It (Kanyadan) puts an end to the dominion of the genitive family over
the girl.

ii) Homa or Vivah Homa: The most important ceremony for validity of a Hindu marriage is
Homa or Vivah Homa, which consists oblations to lighting/burning of holy fire, symbolizing it
as divine witness and sanctifier of the vivaha samskara. On the west of the fire is placed a
millstone and on the north-east is placed a water-pot. The bridegroom offers oblations to the
holy-fire in which the bride participates by grasping the hand of the bridegroom. These oblations
include mahavayahritu-homa, i.e. oblations are offered in honour of earth, sky and heaven. The
bridegroom also recites certain sacred mantras.

Saptapadi: The word ‘Sapta’ means “Seven” and “Padi” means “walking steps”. ‘“Saptapadi”
means “walking/taking seven steps by the bridegroom and the bride jointly around the sacred fire
pronouncing certain Mantras and pledging mutual fidelity with the Agni or sacred fire as witness.
The bridegroom says: ‘Become thou now my partner, as thou hast paced all the seven steps...
Aye! Partners have we become as we have together paced all the seven steps... We shall live
together and we shall reside together, we each shall be an object of love to the other, we each
shall be a source of joy unto the other, with mutual goodwill shall we live together’.

Relevant Case Law

Deivain Achi vs. Chidambara Chettiar AIR 1954 Mad. 657 — In this case, marmiage
between a widow Reddy girl and a widower, Chidambaram Chettiar was solemnized under the
auspices of an Anti Purohit Association, by exchanging the garlands and rings. They read a
declaration to share joys and sorrows of each other. The customary rites and ceremonies
(marriage ceremonies) of either spouse were not performed. A few years after the marriage, the
wife filed a petiuon/ compliant against her husband for the offence of bigamy. The husband
challenged the validity of the marriage on the ground that no ceremonies of marriage were
performed. The Madras High Court held that a marriage solemnized without religious rites and
ceremonies is not valid.
Ram Saran v. Mahabir Sewak {AIR 1934 PC 74] — In this case, there was a Katar Marriage
(i.e. Marriage to a sword). The bridegroom who was Kshatriya sent his sword and the inarriage
was performed with the sword. It was held that such a marnmage was not valid. Lord Thankerton
rejected the claims of the issues of the marriage to succession to their father’s Zamindari on the
ground that they were illegitimate issue. This decision of the Privy Council emphasizes the need
for strictly observing the reli gious ceremonies to create the manital tie.

The performance of necessary ceremonies is a vital question in case of a bigamy and failure to
prove the performance of the marriage ceremonies renders the prosecution for bigamy a failure.
Relevant case on this point is Dr. A.N.. Mukerji vs. State AIR 1969 All 489 — In this case, the
complainant got married to a physician, Dr. N.A. Mukerji. She alleged that she married him
thrice. Firstly before moon, secondly in Kali Temple by exchanging garlands after taking seven
steps and thirdly as an imitation of Sikh marriage before Guru Granth Sahib. Later, she lodged a
complaint against her husband for the offence of bigamy. It was held that such mock ceremonies
would not consutute a valid marriage.

Baburao v. State of Maharashtra [AIR 1965 SC 1564] — In this instant case,

petition/complaint for bigamy under Section 494 LPC was filed on the ground that the second
marriage was not valid for want of marriage ceremonies under Section 7 of the Hindu Marriage
Act 1955.

The above view of the Supreme Court was followed in Pavan Kalyan v. Nandini (2008) in which
the marriage between the petitioitner Nandini and a famous Telugu Film Hero Pavan Kalyan was
declared not valid for proof of marriage ceremonies.

Priya Bala vs. Suresh AIR 1971, SC 1153 — The Supreme Court, in this case held that ‘Homa
and Saptapadi are essential’ and commission to perform these rites would not constitute a valid
marriage under the Hindu Marriage Act.

But the Madras High Court in — Indrani v. Vellathal [1988 1 MLJ 168] held that exchange of
garlands or putting a ring or tying a thali etc. are traditionally recognized stages of marriage
ceremony among a majority of people who live in villages, hamlets etc. bringing into existence a
binding marriage and are covered by Section 7(1) of the Hindu Marriage Act, 1955. Section 7(2)
applies only where saptapadi is included among the rites and ceremonies as in the Brahminical
form of marriage.

Customary Ceremonies: The parties can also observe the customary ceremonies which differ
from caste to caste Eg. Thali.

2. Registration of Marriage: Section 8 of the Act empowers the State Government to make
rules for registration of a marriage between two Hindus. Registration enables the parties to prove
the marriage in the event of disputes.
Section 8 runs as follows:

1) For the purpose of facilitating the proof of Hindu marriage, the State Government may make
rules providing that the parties to any such marriage may have the particulars relating to their
marriage entered in such manner and subject to such conditions as may be prescribed in Hindu
Marriage Register kept for the purpose.

2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of

opinion that it is necessary or expedient so to do, provide that the entering of the particulars
referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in
all cases or in such cases as may be specified, and where any such direction has been issued, any
person contravening any rule made in this behalf shall be punishable with fine which may extend
to twenty-five rupees.

3) All rules made under this Section shall be laid before the State Legislature, as soon as may be,
after they are made.

4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be
admissible as evidence of the statements therein contained and certified extracts there from shall,
on application, be given by the Registrar on payment to him of the prescribed fee.

5) Notwithstanding anything contained in this Section, the validity of any Hindu marriage shall
in no way be affected by the omission to make the entry.

Present position in India with regard to the Registration of Marriage: Section 8 of the Hindu
Marriage Act, 1955 envisages the registration of marriages and the registration is not mandatory.
The State Governments are empowered to pass necessary legislations invoking the registration of
marriages mandatory. However, owing to certain local and religious constraints most of the
States have not yet passed the legislations insisting compulsory registration of the marriages.

The State of Andhra Pradesh passed The Andhra Pradesh Compulsory Registration of Marriages
Act, 2002 (Act No.15 of 2002). The Governor has given his assent on the 21* May 2002, and it
was published on the 22™ May 2002 in the Andhra Pradesh Gazette for Part-I’V-B. The A.P.
State Legislature has also enacted “The Andhra Pradesh Compulsory Registration of Marriages
Rules, 2003’ Il, vide G.O.Ms.No.35, Women Development, Child Welfare and Disabled Welfare
(Prog), dated 24-09-2003. However, the rules have not yet been implemented due to certain
political and religious constraints.

The registration is only for the purposes of preserving a record of the marriages and facilitating
their proof.

In Seema v. Ashwanti Kumar [AIR 2006 SC 1158] the Supreme Court has held that marriages
of all persons who are citizens of India belonging to various religions should be made
compulsorily registrable in their respective states, where the marriage is solemmized.
Compulsory registration of marriages if wisely provided for by means of carefully framed rules
— can prevent many social evils e.g., child marriage and dowry. But no State Government can
make a rule that failure to register a marriage will render it invalid.

In Shaji v. Gopinath [1955 Madras 161] it was held that the mere registration of the marriage
under Section 8 for the purpose of securing employment abroad is null and void.

Further, the Special Marriage Act, 1954, The Indian Christian Marriage Act, 1872 and the Parsi
Marriage & Divorce Act, 1936 all provide for the compulsory registration of marriages, but in
each of the Acts, the Registrar issues a certificate of marriage and the copies of extracts of the
relevant entries are evidence of the truth of the facts stated therein.

iii) Free Consent: Parties to marriage must not only be competent to give consent and should
give consent and should give consent to marry. Such consent must be freely given.

The term ‘consent’ literally means “agreed to” or comply or expressing willingness or giving
acceptance.

Section 13 of the Indian Contract Act, 1872 defines consent as “two or more parties are said to
consent, when they agree upon the same thing in the same sense and at the same time”.

Free Consent (Section 14): Consent is said to be free, when it is not caused by flaws in consent
viz. coercion or undue influence or fraud or misrepresentation or mistake.

Section 14 of the Act defines ‘Free Consent’ as Consent is said to be free, when it is not caused
by:

1. Coercion as defined in Section 15; or

2. Undue influence as defined in Section 16: or

3. Fraud as defined in Section 17; or

4. Misrepresentation as defined in Section 18; or

5. Mistake, subject to the provisions of Sections 20, 21 & 22.

Where there is no consent, there is no contract:If a consent is obtained by coercion, undue

influence, fraud, misrepresentation, mistake etc., the contract is voidable. In other words, the
person who is made to give such consent can avoid the contract. But, the person who obtained
such consent by coercion etc., cannot avoid the contract.

Thus, voidable contract is a contract, which can be avoided at the option of one party only; and
not at the option of the other.

*********
  MATRIMONIAL REMEDIES

The very purpose of the marriage is to unite legally a man and woman (to live together
peacefully throughout the life. However, in some cases, matrimonial disputes take place due to
misunderstanding or indifferent attitudes between the husband and wife. In such cases, to
provide relief to the aggrieved spouse, certain matrimonial remedies are incorporated in the
Hindu Marriage Act, 1955. This lecture deals with the matrimonial remedies namely:

1. Restitution of Conjugal Rights (Sec.9);

2. Judicial Separation (Sec. 10);

3. Void and Voidable Marriage (Ss.11 & 12) (Nullity and Annulment of Marriage)

4. Divorce (Sec.13); and

5. Divorce by Mutual Consent (Sec. 13-B).

1. RESTITUTION OF CONJUGAL RIGHTS

Marriage is a nucleus of social life. The very purpose of marniagé js that the legally wedded
couple must live together throughout the life sharing pleasures and pains. It is a well established
principle that both the spouses are equally entitled to matrimonial society and comfort
(consortium) of the other. In case one spouse happens to leave the other from the matrimonial
society without any reasonable cause, the other (deserted) spouse can file a petition in the
District Court for the restitution of conjugal rights. For instance, if a hugband, without any
reasonable cause leaves his wife and lives elsewhere, wife can file a petition for the restitution
of conjugal rights of the Hindu Marriage Act, 1955. A provision to this effect has been
provided for under Section 9, which runs as follows:

“When either the husband or the wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved Party may apply, by petition to the District Court, for
restitution of conjugal rights and the court, on being satisfied of the truth of the statement, made
in such petition and that there is no legal ground why the application should not be granted may
decree restitution of conjugal rights accordingly.”

Thus under sub-section (1) of Section 9, the husband or the wife may get a decree for restitution
of conjugal rights, where the wife or the husband, as the case may be:

a) has withdrawn from the society of the other,

b) without reasonable excuse,

c) the court is satisfied of the truth of the statements made in the petition, and

d) there is no legal ground why the application should not be granted.

The explanation added to the section provides that where a question arises whether there has
been reasonable excuse for withdrawal from society, the burden of proving reasonable excuse
shall be on person who has withdrawn from the society (Krishnamurthy v. Syamanthakamani,
1977 HLR 163).

Originally there was sub-section (2) also but the same was omitted by Marriage Laws
(Amendment) Act, 1976.

This concept is based upon English Matrimonial Law. In India, it was applied by the Privy
Council for the first time in 1866 in Moonshee Bazloor vs. Shamsoonaissa Begum (1866-67)
(ii) Moo Ind. App.551) However, this remedy was abolished in England a 1970,

The expression ‘Reasonable Excuse’ has been inserted under the Amendment Act of 1976. The
burden of proving reasonable excuse is on the spouse, who has withdrawn from the society of
the other.

Conditions: The relief under Section 9 is subject to fulfillment of the following conditions:

i. The marriage between the parties must be a valid marriage under Sec 5 of the Hindu Marriage
Act, 1955

ii. The respondent has withdrawn from the society of the petitioner without reasonable excuse.

iii. The Court is satisfied with the truth of the statements, Made in the petition.

iv) There is no Iegal ground, why the relief should not be granted.

i) Valid Marriage: To seck relief under Section 9, primarily the marriage must be a valid
marriage under Section 5 of the Ag Following case law explains on this point.

The petition for restitution of conjugal rights under Section 9 of the Act is not maintainable, if
the marriage of the parties (petitioner and respondents), is not a valid marriage and was
subsisting at the time of the petition.

The relevant case on this point is Parbia Ram v. Thopali [AIR 1966 HP 20] — In this case, it
was held that if, the parties of restitution of conjugal rights petition are not legally married or
the marriage was not subsisting at the time of petition, the question of granting of decree of
restitution of conjugal rights does not arise.

In Laxmi Singh v Kehrabai [AIR 1966 M.P. 166], it was held that it was for the petitioner to
prove the validity of the marriage if it was disputed by the respondent.

Ranjan Vinod Kumar Kujiwal v. V.K.Kerjiwal [AIR 1997 Bom. 380], it has been held that
where the petitioner wife herself alleging that her husband has suppressed his first marriage and
it was subsisting, her marriage being illegal, petition for restitution of conjugal rights was not
maintainable.

Where the respondent contends the petition under Section 9 is Not maintainable on the ground
that necessary marriage ceremonies were not performed, the burden of proof is shouldered on
the respondent. The relevant case on this point is

Mallikarjunappa v. Yerramma [ILR 1971 AP 163] — In this case, it was held that where the
husband contended that the Marriage was not valid as the necessary ceremonies were not
performed, it was the husband that had to prove the non-performance of necessary ceremonies
as there was presumption of a valid marriage as once the factum of marriage was proved.

CONSTITUTIONALITY OF SECTION 9 OF THE HINDU MARRIAGE ACT

 T.SAREETHA V/S VENKATA SUBBAIAH [ AIR 1983 ANDH PRA 356]

 In this case Mrs. T. Sareetha a film actor leaves her husband house without any reason.

 Her husband files a case in the court for restitution of conjugal rights and the court
sanctions the same.

 But again Sareetha moves the A.P High court validating the constitutionality of section
9.

 The A.P High court observes that this provision is a savage and barbarous remedy
violating the privacy and human dignity guaranteed by Art 21.

 This provision denied the women a free choice, where, when and how her body was to
become the vehicle for procreation of another human being.

 This rights deprived a women of control over her choice as and when and by whom the
various parts of her body should be allowed to be served .
  She loses her control over her most intimate decisions .

 It did not subserve any social good. It was arbitrary and void as offending Article 14 of
the constitution.

 SMT.HAVINDER KAUR V/S. HARMENDER SINGH [AIR 1984 DELHI 66]

 In this court the Delhi High court held that section 9 is not violative of Art 14 or 21 of
the constitution.

The object of this right was to bring about cohabitation between the husband and wife to live in
matrimonial home in amity

SAROJ RANI V.S SUDARSHAN KUMAR [AIR 1984 SC 1562]

The supreme court held that section 9 is not violative to Art 14 or 21 of the constitution.

The society of the husband and wife together is not merely the creature of the statute.

Such a right is inherent in the very institution of marriage itself. The term conjugal rights may
be viewed in its proper perspective.

What amounts to withdrawlal?

Married persons are bound to live together and if either of them withdraws from the society of
the other without lawful excuse, the court may compel the parties to return to cohabitation.

The reasons of withdrawal must be grave and weighty.

REASONABLE EXCUSE OR JUST CAUSE

Withdrawal from the society of the other depends upon whether the conduct complained is of a
grave and weighty character.

It must in substance involve an enquiry into facts .

Each case must depend on its facts and circumstances and it is not possible to give an
exhaustive statement of law what may or may not constitute “reasonable excuse’.

And whether there is a reasonable cause or not in a given case shall be decided only on the
evidence and the particular circumstances of that case.
Working women and Restitution of conjugal Rights

N.R. RADHAKRISHNA V. N. DHANLAXMI [AIR 1957 MAD 339]

The right of the husband to require his wife to live with him is not unqualified, where the wife
is gainfully employed in a place away from the husband’s home.

The court held it to be a reasonable excuse to live apart and the restitution petition of the
husband was not granted.

SMT.SURJIT KAUR V/S UJJAL SINGH [1978] 80 PUNJ L.R. 693

In this court the Punjab High court granted restitution of conjugal rights to the husband, even
though the wife was gainfully employed away from the matrimonial home where the husband
lived on the consideration that the husband had the right to determine the locus of the
matrimonial home and that he had the means to support his wife.

SMT. SWARAJ V/S K.M.GARG [AIR 1978 DEL .296]

 In this case the husband and the wife both were gainfully employed.

 Both of them were highly qualified but unfortunately the husband was not so well
employed as his wife was and wife was gaining more salary than her husband.

 Both husband and wife quarreled on the issue that both shall resign and stay with the
other.

 At last the husband filed a suit for restitution.

 The court dismissed the petition and held that there is sufficient reasons for the wife to
stay separately and the petition must fail.

ALKA BHASKER BARKE V/S SATCHIDANANDA BARKE [AIR 1991 BOM 164]

In this court the Bombay High court held that,

The matrimonial home must necessarily not be the house of husband or in-laws house.

In this case the wife and husband were gainfully employed at different places and decided to
book a flat a Bombay.

The husband contributed initial amount and the wife paid the remaining balance.

It was held that this flat at Bombay was the matrimonial home of the parties.
SMT. SUSHIL KUMARI DANG V/S PREM KUMAR [AIR 1976 DEL 321]

VALID CONSIDERATIONS FOR LIVING SEPERATELY.

1. Gross indecent behaviour.

2. Extravagance of living on the part of wife effecting the financial position of husband.

3. Excessive drinking and impossible to render duties of married life.

4. False charge of doing unnatural offence.

5. Violence due to sanity

6. Misconduct amounting cruelty.

7. Unchastity by the husband.

UNREASONABLE EXCUSES FOR WITHDRAWING FROM THE SOCIETY

 Mere frivolity, falling short of adultery and giving no reasonable ground for belief
that it has been committed.

 Mere frailty of temper and habits which are distasteful to the other spouse.

 Habits of intemperance

 Differences on account of the wife’s inability to agree with the step-child

 Discovery of pre-marital misconduct which has not resulted in pregnancy with

another man.

 Development of insanity after marriage.

JUDICIAL SEPARATION

Judicial Separation: The provision for the judicial separation is provided under Section 10 of
the Hindu Marriage Act, 1955. Accordingly:

1. Either party to a marriage, whether solemnised before or after the

commencement of this Act may present a petition praying for a decree for judicial
separation on any of the grounds specified in sub-section (1) of Section 13, and in the case
of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on
which a petition for divorce might have been presented.
 Where a decree for judicial separation has been passed, it shall no longer be Obligatory
for the petitioner to cohabit with the respondent but the court may, on the application by
petition of either party and on being satisfied of the truth of the statements made in such
petition rescind the decree if it considers it just and reasonable to do so.

Judicial separation is different from divorce. It is considered to be a lesser evil as it leaves open
the door 'or reconciliation. Judicial separation puts the obligation of cohabitation to an end,
although it does not affect the marital relationship. Therefore, as soon as the decree under
Section 10 is passed the parties to marriage are relieved of the duty to live together and co-
habit, but any act of cohabitation between the 'two would neutralise the effect of decree and
their normal marital life is restored. In this sense it is different from divorce in which the
relationship of husband and wife ceases to exist.

The object of the provision is mainly to give time to the spouses for approachment and
reconciliation. The effect of an order under this section granting judicial separation is to permit
spouses to live apart and to afford an opportunity to reconcile. For the application of the
section a valid marriage must subsist between the parties. Where the relationship of marriage is
denied, the factum of marriage and its solemnisation has to be proved by the petitioner.

Grounds for Judicial Separation: The grounds for taking recourse under this section are the
same as that of divorce provided under Section 13 (1) of the Act. These are the common
ground for both the husband and wife. These common grounds are as follows:-

1. That the other party has, after solemnisation of marriage, voluntary sexual
intercourse with any person other than his or her spouse

2. Other party treated the petitioner with cruelty, or

3. Other party has deserted the petitioner for a continuous period not less than two
years immediately preceding the presentation of petition; or

4. Other party has ceased to be Hindu by conversion to another religion; or

5. Other party has been incurably of unsound mind, or has been suffering
continuously or intermittently from mental disorder of such a nature and to such an extent
that the petitioner cannot reasonably be expected to live with the respondent. Inthis clause.
a) the expression "mental disorder" means mental illness or an arrested on incomplete
development of mind, psychopathic disorder any other disorder or disability of mind
and includes schizophrenia.

b) the expression "psychopathic disorder" means a persistent disorder or disability of

 mind (whether or not including sub-norm of intelligence) which results in abnormally
aggressive or serious irresponsible conduct on the part of the other party and whether
not. it requires or is susceptible to medical treatment; or

6. Other party has been suffering from venereal disease of communicable form; or

7. Other party has been suffering from a virulent and incurable form of leprosy; or

8. Other party has renounced the world by entering any relegious order; or

9. Other party has not been heard of as being alive for a period of 7 years or more by
those persons who would naturally have heard had that party been alive.

There are some other grounds provided only to the wife which are as follows:

1. that the husband had married again before such commence or that any other
wife of the husband married before such commence was alive at the time of the
solemnisation of the marriage of the petitioner or provided that in either case the other wife
is alive at the time presentation of the petition; or

2. that the husband since the solemnisation of the marriage was guilty of rape,
sodomy or bestiality; or

3. that in a suit under Section 18 of the Hindu Adoption Maintenance Act. 1956, or
in a proceeding under Section 125 of the of Criminal Procedure, 1973 a decree or order as
the case may be has passed against the husband awarding maintenance to the wife not
withstanding that she was living apart and that since the passing of decree or order
cohabitation between the parties has not been resumed one year or upwards; or

4. that her marriage (whether consummated or not) was solemnised before she attained
the age of fifteen years and she has repudiated the marriage after attaining that age but
before attaining the age of eighteen years

DIVORCE

Divorce: 'The Hindu Marriage is indissoluble and permanent'; this character of the old Hindu
Marriage has been greatly affected by the provision for divorce. The old Hindu law
believed that the marital tie could not be severed under any circumstances whatsoever. Manu
does not approve of dissolution of "marriage in any condition. The provision of divorce under
Hindu law has brought about a radical change in the conceptof Hindu marriage.

Divorce puts the marriage to an end, parties revert back to their unmarried status and are once
again: Tee to marry. Section 13 of the Act describes the circumstances which extend the right
of divorce. Section 14 says that no petition for divorce can be presented within one year of the
marriage unless it causes exceptional hardship to the petitioner or it becomes a case of
exceptional depravity on the part if the respondent. Section 15 of the Act lays down the
limitations on the right of divorced persons to l1arry again.

The Marriage Laws (Amendment) Act. 1976 makes the grounds of divorce and judicial
separation common. An aggrieved party, if he or she so chooses may choose for divorce or
judicial separation. 3esides, by the Amendment a new mode of divorce i.e., divorce by mutual
consent has been introduced under Section 13(B). Section 13(B) is remarkable in the sense
that it has substantially eroded the sacramental character of Hindu Marriage. Besides the
common grounds enumerated under Section 13(1) and 13(b) there are some specific grounds
available only to a wife as a ground for divorce or Judicial separation under Section 13(2)

Grounds of Divorce [Under Section 13(1)]: A lawful marriage can be dissolved by

presenting a petition for divorce by either party to marriage on any of the following
grounds :-

a) Adultery: Before the coming into force of the Marriage Laws (Amendment)
Act, 1976 "living in adultery" was a ground of divorce. On the other hand, a petitioner
could obtain a decree of judicial separation, if he could show that his spouse, after the
solemnization of the marriage, had sexual intercourse with any person other than his
spouse. Now adultery simplicitor has been made ground of divorce as well as of judicial
separation. Clause (i) of Section 13(1) runs as" has after the solemnization of the marriage
voluntary sexual intercourse with any person other than his or her spouse". To establish
adultery it is not necessary to prove a continuous course of adulterous life for divorce.
Only this much is required to be established that the respondent has willfully indulged into
sexual intercourse with a person other than his or her spouse.

For instance in Rajendra Agarwal v. Sharda Devi (1993 M.P. 142), it was said that it is
sufficient to prove that the respondent had voluntary sexual intercourse with any person
other that the spouse. It need not be proved that the respondent has been living in adultery.

In Sanjuka Padhan v. Laxmi Narayan Padhan (AIR, 1991, Ori. 39), a charge was levelled
against the wife, that she went away with some other person one evening from her
 husband's home and was seen moving with him. At about 1 a.m. in the night they were
again seen returning together from a lonely place. In this way she was away from her
parental home and when her father in law went to call her back she bolted herself inside a
room and visited her marital home no further. The Court under the circumstances, found
sufficient circumstantial evidence for adultery and granted the decree for divorce.

In Chandrawati v. Kailash Nath (1995 (1) AI R 283 (All)), the husband filed a petition for
divorce on the ground of adultery and tendered in evidence an admission letter written by
the unchaste wife dated two years earlier, the Court held that it would amount to
condonation of bad conduct of the wife as he had later continued to live as husband and
wife.

The burden of proof is on the petitioner. In Chander Prakash v. Sudesh Kumari (AIR.
1971, Del.208). it was held that it is a presumption in law that the respondent charged with
adultery is innocent and the burden to prove adultery lies on the party who has alleged it.

b) Cruelty: Under clause (i)(a) of Section 13(1) "cruelty" is a ground for divorce. This
provision has been inserted by the Marriage Laws (Amendment) Act 1976. This provision
provides that divorce can be granted on the ground of cruelty if the other party has, after
the solemnisation of marriage treated the petitioner with cruelty. The expression "cruelty"
is not defined in the Act. In Russel v. Russel in the year 1897 Lopes, LJ has defined cruelty
as "there must be danger to life, limb or health, bodily or mental or a reasonable
apprehension of it. to constitute cruelty." This definition is still important for the purpose
of the clause.

Recently, in Rajan Vasant Revan Kar v. Mrs. Shobha Rajan (AIR 1995 Bom. 246). the
Court held that "cruelty" contemplated by Section 13(1)(i)(a) is a conduct of such type that
the petitioner cannot reasonably be expected to live with the respondent or that it has
become impossible for the spouse to live together.
Cruelty includes both physical and mental cruelty. So far as physical cruelty is concerned
what acts of physical violence will amount to cruelty will differ from case to case,
depending upon the susceptibility and sensibility of the party concerned. A single act of
violence may not amount to cruelty. A solitary incident of beating resulting in minor
injuries cannot be said as an act of cruelty. In Bhagat v. Bhagat. the Supreme Court defined
mental cruelty as that conduct which inflicts upon the other party such mental pain and
suffering as would make it not possible for that party to live with the other. In other words,
mental cruelty must be of such a nature that the parties cannot reasonably be expected to
live together.
In a recent case R. Balasubramanian v. St. Vuyalakshmi Balasubramanian (AIR. 1999,
S,C. 1319). the husband filed a petition for divorce against wife on the grounds of cruelty;
 husband alleged that wife suspected that he had extra-marital affairs and threatened to
commit suicide. But the court observed that as both were living together and husband had
condoned the cruelty of wife, cruelty and desertion set-up by husband is not maintainable.

In another recent case S. Hanumath Rao v. V.S. Ramani (AIR. 1999, S.C. 1319). the Court
held that mental cruelty broadly means when either party causes mental pain, agony or
suffering of such a magnitude that it severs the bond between the husband and wife and as
a result of which it becomes impossible to live together. Mere removal of mangalsutra by
the wife does not amount to mental cruelty within the meaning of Section 13(1)(i)(a).

1. False accusations of adultery or unchastity-For instance in Samptami v. Jagdish (1970

Cal. 272).the husband constantly called his wife a prostitute, a woman of thestreet.
2. Persistent refusal to have marital intercourse amounts to cruelty.
3. Prosecution of a spouse by the other of a false criminal charge amounts to cruelty.
4. Persistent charges of immorality against the husband and causing injuries to the
husband and filing complaints against the husband amount to cruelty.
5. False, defamatory, malicious, baseless and unapproved allegations made against the
spouse to superior officers or authority amount to cruelty.

6. Making false charge of adultery in the cross-examination of the wife does not
amount to cruelty.
7. Mere allegation of impotence against the wife is not cruelty.
8. The wife telling the husband on the first wedding night that he had and that persons
with ugly face have also an ugly mind, does not amount to cruelty as understood in
matrimonial law.

9. Outburst of temper without rancour, non payment of interim maintenance or

desertion per-se, does not amount to cruelty.

2) Desertion: The clause was added by the Marriage Laws Amendment) Act, 1976.
It provides "Desertion" for a period of two years, as one of the grounds for divorce. It is the
total repudiation of the obligations of marriage. It is the intentional permanent forsaking
and abandonment of one spouse by the other without that other's consent and without
reasonable cause. Desertion may be actual, constructive or it may be by wilfull neglect.

Under Section 13(1) (i)(b) the petitioner has to prove:

a. that there was desertion for a continuous period of 2 years immediately

precedingthe presentation of the petition; and
b. that the desertion was without reasonable cause and without the consent or
againstthe wish of the petitioner.

In other words, two important elements are essential to constitute desertion, viz. firstly,
the fact of separation, and secondly, the intention to bring cohabitation to an end
permanently i.e., animus deserendi. Further, the offence of desertion is complete only after
the period of two years is spent. For instance in the case of Anand Prakash Dixit v. Malti
Dixit (1988 1 HLR 34 M. P), the petition for divorce on the ground of desertion presented
before the expiry of two years was dismissed as premature.

Desertion is not only a physical act but it also involves essentially a mental act. Mere
physical separation between the spouses or mere intention of one to separate from the other
without any overt act would not by itself amount to desertion. Intention must be to end
cohabitation permanently. In Sunil Kumar v. Usha.(1944 M.P. 1) the wife had left the
matrimonial home due to unpalatable atmosphere in the matrimonial home and reign of
terror prevailing there drove her out. It was held that she was not guilty of desertion.

In Teerth Ram v. Smt. Parvati Devi (AIR 1995 Raj 86) the wife living separately only
wanted that her husband should establish independent matrimonial home where she would
live with him as the other brother of husband has done, although she had no intention to
break the matrimonial home, it was held that the wife could not be said to have deserted
the husband without sufficient reasons.

In Smt. Bhawna v. Manohar Advani (AIR 1992 M.P. 105), the wife was guilty of
neglecting her husband and on her opaque allegation of misconduct as to demand of more
dowry by her father in-law and use of taunting language in the little period of her stay in
her marital home, she started living away from her husband, it was held to be a case of
desertion by the wife.

In Madan Mohan v. Smt. Chitra Manne (AIR 1993, Cal. 33). where the wife refuses to stay
with husband as the husband was already staying with another woman not being his
relative under the same roof, but she expressed her willingness to live with him if that
woman is removed, it was held that husband was not entitled to divorce on the ground of
desertion or cruelty.

Recently, in Rajosh v. Rukmini, the divorce petition was filed by the husband on the
ground of desertion. Wife states that she was driven out by the husband and she was ready
to co-habit with husband. The husband's explanation was not satisfactory for divorce. The
Court held that husband cannot be permitted to take the benefit of his own wrong so the
decree for divorce cannot be granted on the ground of desertion.
3) Conversion: Section 13(1) (ii) States that if a spouse has ceased to be a Hindu,
by conversion to another religion, the other spouse can obtain divorce under this clause.
The conversion of the respondent to a non-Hindu faith does not amount to automatic
dissolution of marriage. The petitioner has to file a petition to obtain a decree of divorce. If
a petitioner chooses to continue to live with his spouse who has converted to another
religion, there is nothing to debar him from doing so.

4) Unsound mind: Under clause (iii) of Section 13(1) a petitioner may get a
decree of divorce or judicial separation if the respondent "has been suffering continuously
or intermittently from mental disorder of such a kind and to such an extent that the
petitioner can not reasonably be expected to live with the respondent." The expression
"mental disorder" has been explained in the Act. Accordingly, it means mental illness,
arrested or incomplete development of mind, psychopathic disorder or any other disorder
or disability of mind and includes schizophrenia. It was held by the Supreme Court in Ram
Narayan Gupta v. Smt. Rameshwari (AIR 1988 S.C. 2260), that the context in which the
idea of unsoundness of 'mind' and "mental disorder" occurs in the section as grounds for
dissolution of a marriage require the assessment of the degree of the mental disorder. In
Smt. Alka v. Abhinesh (AIR 1991 M.P. 205), the wife was held to have been suffering
from schizophrenia therefore the husband was entitled for divorce.

5) Leprosy: The Marriage Laws (Amendment) Act, 1976 has made leprosy a
ground both for judicial separation and divorce. No duration of leprosy is specified. Under
clause(iv) the petitioner is required to show that the respondent has been suffering from
virulent and incurable leprosy, thus two conditions are necessary: it must be (i) virulent,
and (ii) incurable.

6) Venereal Disease: The venereal diseases are only such diseases which are
communicated by sexual intercourse. Section 13(1) (v) requires that the disease must be
in a communicable form.

7) Renunciation of the World: Section 13(1) (vi) provides a right for having divorce if
the other spouse has renounced the world by entering any religious order.

8) Spouse not Heard for Seven Years: Under Section 13(1) (vii) if spouse has not
been heard of as being alive for a period of 7 years or more by those persons who would
have naturally heard of it, had that party been alive, the other spouse is given a right to
obtain divorce. This clause is based on the rule of evidence contained in Section 107 of
Indian Evidence Act.
Non-resumption of Cohabitation: Sub-section (1 )(A) of Section 13 provides that whether the
marriage was solemnized before or after the commencement of this Act either party to the
marriage may present a petition for dissolution of marriage by a decree of divorce provided
there has been no resumption of cohabitation between the parties for a period of 1 year or
upwards after the passing of the decree for judicial separation and where there has been no
restitution of conjugal rights between the parties for a period of 1 year or upwards after the
passing of the decree for restitution of conjugal rights. It was held In Tulsa Bai v. Rajendra
Singh (1996 (1) HLR 241 (M.P.)), that a divorce petition before the expiry of the statutory
period is not maintainable.

The one year period has to be noted from the date the decree becomes final. It was held in
Shruti 3enedee v. Tapan Kumar Banerjee (1986 Cal. 284). that where the decree for restitution
passed by the trial court is affirmed by the appellate Court time has to be reckoned from the
date of decree of the trial court. However, in Sukhvinder Kaur v. Dilbagh Singh, (1996 112
Punj. LR 448) it was laid down that "'here the trial court had dismissed the petition for
restitution of conjugal rights and the decree was passed by the appellant court, the statutory
period of one year would commence running from the date of appellate decree.
Grounds Available to the Wife Only:
a) Bigamy [Section 13 (2)(i)]: That in the case of a marriage solemnized before the
commencement of the Act (i.e. 18th May, 1955) the husband has married before such
commencement or that any other wife of husband, married before such
commencement, was alive at the time of the petitioner's marriage.

b) Rape, Sodomy or Bestiality [Section 13(2)(ii)]: That the husband has been guilty of
rape, sodomy or bestiality after the solemnization of marriage.

c) Decree or Order Awarding Maintenance [Section 13(2)(iii)]: That in a suit under

Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceedings
under Section 125 of the Cr.P.C. 1973, a decree or order has been passed against the
husband awarding maintenance to the wife (notwithstanding that she was living apart)
and after passing of such decree or order cohabitation between the parties has not been
resumed for one year or upwards.

d) Option of Puberty [Section 13(2)(iv)]: That the wife's marriage was solemnized
before she attained the age of fifteen years and she repudiated the marriage after
attaining that age but before attaining the age of eighteen years, whether the marriage
has been consummated or not.

Divorce by Mutual Consent (Section 13 B):

 1. That both the parties have been living separately for a period of one year or more.
2. That both the parties have not been able to live together.
3. That both the parties have mutually agreed that their marriage should be dissolved.

When a Divorce Petition can be Presented (Section 14): Divorce has not been made easy
and at least one year should have elapsed between the date of marriage and the presentation of
a divorce petition. But a petition may be filed within this period, if so permitted by the court
on an application being made to it on the ground of-
1. Exceptional hardship suffered by the petitioner.
2. Exceptional depravity on the part of the other party.

No petition for divorce to be presented within three years of marriage.-

(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to
entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of
the presentation of the petition three years have elapsed since the date of the marriage:

Provided that the court may, upon application made to it in accordance with such rules as may
be made by the High Court in that behalf , allow a petition to be presented before three years
have elapsed since the date of the marriage on the ground that the case is one of exceptional
hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it
appears to the court at the hearing of the petition that the petitioner obtained leave to present the
petition by any misrepresentation or concealment of the nature of the case, the court may, if it
pronounces a decree, do so subject to the condition that the decree shall not have effect until after
the expiry of three years from the date of the marriage or may dismiss the petition without
prejudice to any petition which may be brought after the expiration of the said three years upon
the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce
before the expiration of three years from the date of the marriage, the court shall have regard to
the interests of any children of the marriage and to the question whether there is a reasonable
probability of a reconciliation between the parties before the expiration of the said three years.

Explanation: When a Divorce Petition can be Presented (Section 14): Divorce has not been
made easy and at least one year should have elapsed between the date of marriage and the
presentation of a divorce petition. But a petition may be filed within this period, if so permitted
by the court on an application being made to it on the ground of-
1. Exceptional hardship suffered by the petitioner.
 2. Exceptional depravity on the part of the other party.

15.Divorced persons when may marry again.-

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal
against the decree or, if there is such a right of appeal, the time for appealing has expired without
an appeal having been presented, or an appeal has been presented but has been dismissed, it shall
be lawful for either party to the marriage to marry again:

Provided that it shall not be lawful for the respective parties to marry again unless at the date of
such marriage at least one year has elapsed from the date of the decree in the court of the first
instance.

LEGITIMACY OF CHILDREN OF VOID AND VOIDABLE MARRIAGE (SECTION

16): Under the general law, a legitimate child is one who is born in a lawful wedlock, and a
child born out of a void marriage is necessarily a bastard. This would normally cause great
hardship to a child (for no fault of his own) and therefore this section provides that
notwithstanding that a marriage is null and void under Section 11 or a decree is granted in
respect of a voidable marriage under Section 12, a child born is deemed to be the legitimate
child of his parents, including rights of inheritance and succession.

Explanation: 16 (1):- if a marriage is null and void according to section 11 of the Act, and where
a decree of nullity has been granted in respect of a voidable marriage, children who are born,
shall be deemed to be their legitimate children.

BHAGADI KANNABABU V.S VUGGINA PYDAMMA [AIR 2006 SC 2403]

In this case the deceased died living his first wife and a daughter born of second marriage. The
Supreme court held that the daughters of the second marriage are entitled to inherit the property
of the deceased being legitimate children of the deceased person.

16(2):- The decree provides that where a decree of nullity is granted in respect of a voidable
marriage under section 12 any child begotten or conceived before the decree is made, the child
will be legitimate.

16(3):- a child of null and void or which is annulled by a decree of nullity under section 12 shall
be entitled to any rights in or to the property of their parents only and not to the property of any
others.

REVANASIDDAPA V/S MALLIKARJUN [2011] II SCC 1. The supreme court observed that,

a. Removed the stigma of illegitimacy by referring expressly to the children as legitimate.

b. The section uses the term ‘property’ and does not qualify it as separate or ancestral.

c. The Hindu Marriage Act brings in the social reform.

d. Law has to change with changing times; and

e. The parent’s folly should not have a reflected on children’s rights as they are innocent.

The children born out of void or voidable marriage will have no share in the joint family
property and such children cannot ask for partition at the lifetime of their parents.

SECTION 17:- PUNISHMENT FOR BIGAMY:-

This provision makes a marriage void ab ignition under the following conditions;

(1). If the marriage is solemnized after the commencement of the Act,

(2). At the date of the marriage either party has a spouse living.

The section declares that bigamy is an offence and is punishable under section 494 of the Indian
Penal code.

LILY THOMAS V.S UNION OF INDIA [AIR 2000 SC 1650] In this instance case the wife
has filed a complaint for the offence under section 494, IPC on the ground that during the
subsistence of the marriage, her husband had marriage a second wife under some other religion
after converting to that religion, the offence of bigamy pleaded by her would have be
investigated and tried in accordance with the provision of the Hindu

Punishment for Contravention of Certain Other Conditions (Section 18):

a) in case of clause (iii) of Section 5, with simple imprisonment upto 15 days or with fine
up to RS.1000 or with both;

b) in case of clause (iv) or (v) of Section 5, with simple imprisonment upto one
month, or with fine upto Rs. 1000 or with both.

Court to Which Petition shall be Presented (Section 19): Every petition under this
code shall be presented to the District Court within the local limits of whose ordinary
original civil jurisdiction -

1. the marriage was solemnized; or

2. the respondent, at the time of the presentation of the petition resided, or
3. a) the parties to the marriage last resided together; or
 b) in case the wife is the petitioner, where she is residing on the date of presentation of
the petition;
4. the petitioner is residing at the time of the presentation of the petition, in a case
where the respondent –

a) is at that time residing outside the territories to which the Act extends, or

b) has not been heard of as being alive for a period of seven years or more by those
persons who would have naturally heard of him if he were alive.

CONTENTS AND VERIFICATION OF PETITIONS (SECTION 20): The petition for

any relief must distinctly set out the nature of the case and the facts on which the claim to
relief is founded. It must also state (except in a petition under Section 11) that there is no
collusion between the parties to the marriage. The statements contained in the petition have
also to be verified by the petition (or some other competent person) in the manner in which
plaints have to be verified, and such statements may be referred to as evidence at the time of
the hearing.

APPLICATION OF THE CODE OF CIVIL PROCEDURE (SECTION 21): Except as

otherwise provided by the Act, all matters of procedure under the Act are to be regulated by the
C.P.C. The Act also confers on the High Court, the power to make rules regulating the
procedure to be adopted.

POWER TO TRANSFER PETITION IN CERTAIN CASES (SECTION 21-A): Section

21A of the Act provides that if a Petition under the Act has been presented to a District Court
for judicial

separation (under Section 10) or for divorce (under Section 13), and subsequently another
petition is presented by the other party to the marriage for judicial separation or for divorce, in
the same District Court, or in a different District Court, in the same State or in a different State
-

a) if the petitions are presented to the same District Court,- both the petitions are to be
tried and heard together by that District Court;

b) if the petitions are presented to different District Courts,- the subsequent petition is to
be transferred to the District Court in which the earlier petition was presented, and both
the petitions are to be heard and disposed of by the District Court in which the earlier
petition was presented.

SPECIAL PROVISIONS RELATING TO TRIAL & DISPOSAL OF PETITIONS

UNDER THE ACT (SECTION 21 B): Section 21 B provides that the trial of a petition under
the Act should, as far as is practicable, consistently with the interests of justice, be continued
from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond
the following day to be necessary, and records the reasons for doing so.

It is further provided that all petitions and appeals are to be disposed of as expeditiously as
possible, and an endeavour is to be made to dispose of a petition within six months from the
date of service of the notice of the petition on the Respondent, and an appeal within three
months from the date of the service of the notice of the appeal on the Respondent.

DOCUMENTARY EVIDENCE (SECTION 21 C): Section 21 C provides that

notwithstanding anything in any enactment to the contrary, no document shall be inadmissible
in evidence in any proceeding at the trial of a petition under the Act on the ground that it is not
duly stamped or registered.

HEARING IN CAMERA (SECTION 22): The general rule of law is that every Court of
justice is open to every person, and that all suits (including matrimonial suits) should be heard
in open Courts. This rule is subject to certain limitations, and it was, therefore, formerly
provided that a proceeding under the Act was to be conducted in camera -

a) if either party so desired; or

b) if the court so thought fit.

Clause (a) and (b) above have now been deleted from Section 22, (by the 1976 Amendment),
the effect being that all proceedings under the Act would now have to be conducted in camera.

Further, it is also not lawful for any person to print or publish any matter in relation to any
such proceeding, except judgment of a High Court or of the Supreme Court, and that too, with
the previous permission of the Court, under pain of fine upto a maximum of Rs.1,000.

DECREE IN PROCEEDINGS (SECTION 23): There are certain conditions which the court
must take into account before passing decree in any proceeding under the Act. ( BAR TO
METROMONIAL RELIEF)

1. Not Taking Advantage of his her Own Wrong: The Court before granting the
relief should fully satisfy itself that some established rule of relief exists and the petitioner
isnot in any way taking advantage of his or, her own wrong.

2. Absence of Connivance and Condonation: There should not be any connivance

with respondent, or the plaintiff should not have condoned the acts of the respondent.

3. Absence of Collusion: The petition must not be presented or prosecuted in

collusion with the respondent.
4. No Unreasonable Delay: There should not be any unnecessary or improper delay in
instituting the proceeding.

5. Absence of Legal Bar: There is no other legal ground why relief should not be
granted.

Relief for Respondent in Divorce and other Proceedings (Section 23-A): In any proceeding
for divorce or judicial separation or restitution of conjugal rights, the respondent may not only
oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also
make a counter-claim for any relief under this Act on that ground; and if the petitioner's
adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under
this Act to which he or she would have been entitled if he or she has presented a petition
seeking such relief on that ground.

Maintenance Pendente Lite and Expenses of Proceedings (Section 24): Where in any
proceeding under this Act, it appears to the Court that either the wife or the husband, as the
case may be, has no independent income sufficient for her or his support and the necessary
expenses of the proceeding, it may, on the application of the wife or the husband, order the
respondent to pay to the petitioner the expenses of the proceeding, and monthly, during the
proceeding, such sum as, having regard to the petitioner's own income and the income of the
respondent, it may seem to the Court to be reasonable.

Permanent Alimony and Maintenance (Section 25):

1. Any Court exercising jurisdiction under this Act may, at the time of passing any
decree or at any time subsequent thereto, on application made to it for the purpose by
either the wife or the husband, as the case may be, order that the respondent shall pay to
the applicant, for her or his maintenance and support, such gross sum or such monthly or
periodical sum for a term not exceeding the life of the applicant as, having regard to the
respondent's own income and other property, if any, the income and other property of the
applicant, the conduct of the parties and other circumstances of the case, it may seem to the
Court to be just, and any such payment may be secured, if necessary, by a charge on the
immovable property of the respondent.

2. If the Court is satisfied that there is a change in the circumstances of either party
at any time after it has made an order under sub-section (1), it may, at the instance of either
party, vary, modify or rescind any such order in such manner as the Court may deem just.

3. If the Court is satisfied that the party in whose favour an order has been made
under this section has remarried or, if such party is the wife, that she has not remained
 chaste or, if such party is the husband, that he has had sexual intercourse with any woman
outside wedlock, it may at the instance of the other party vary, modify or rescind and such
order in such manner as the Court may deem just.

Custody of Children (Section 26): In any proceeding under this Act, the Court may, from
time to time, pass such interim orders and make such provisions in the decree as it may deem
just and proper with respect to the custody, maintenance and education of minor children,
consistently with their wishes, wherever possible, and may alter the decree upon application by
petition for the purpose, make from time to time, all such orders and provisions with respect to
the custody, maintenance and education of such children as might have been made by such
decree or interim orders in case the proceedingfor
Obtaining such decree were still pending, and the Court may, also from time to time revoke,
suspend or vary any such orders and provisions previously made.

Disposal of Property (Section 27): In any proceeding under this Act, the Court may make
such provisions in the decree, as it deems just and proper, with respect to any property
presented, at or about the time of marriage, which may belong jointly to both the husband and
the wife.

Appeals from Decrees and Orders (Section 28):

1. All decrees made by the court in any proceeding under this Act shall, subject to the
provisions of sub-section (3), be appealable as decrees of the Court made in the exercise of
its original civil jurisdiction, and every such appeal shall lie to the Court to which appeals
ordinarily lie from the decisions of the Court given in the exercise of its original civil
jurisdiction.

2. Orders made by the Court in any proceeding under this Act, under Section 25 or
Section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not
interim orders, and every such appeal shall lie to the Court to which appeals ordinarily lie
from the decision of the Court given in the exercise of its original civil jurisdiction.

3. There shall be no appeal under this section on the subject of costs only.

4. Every appeal under this section shall be preferred within a period of thirty days
from the date of the decree or order.

Enforcement of Decrees and Orders (Section 28): All decrees and orders made by the Court
in any proceeding under this Act shall be enforced in the like manner as the decrees and orders
of the Court made in the exercise of its original civil jurisdiction for the time being are
enforced.

Savings and Repeals

Savings (Section 29):
1. A marriage solemnized between Hindus before the commencement of this Act,
which is otherwise valid, shall not be deemed to be invalid, or ever to have been invalid,
by reason only of the fact that the parties thereto belonged to the same gotra or parivar or
belonged to different religions, castes or sub-divisions of the same caste.

2. Nothing contained in this Act shall be deemed to affect any right recognised by
custom, or conferred by any special enactment, to obtain the dissolution of a Hindu
marriage, whether solemnized before or after the commencement of this Act.

3. Nothing contained in this Act shall affect any proceeding under any law for the
time being in force for declaring any marriage to be null and void or for annulling or
dissolving any marriage or for judicial separation pending at the commencement of this
Act, and any such proceeding may be continued and determined as if this Act had not been
passed.

4. Nothing contained in this Act shall be deemed to affect the provisions contained in the
Special Marriage Act, 1954, with respect to marriages between Hindus solemnized under
that, whether before or after the commencement of this Act.

VOID MARRIAGE

Void Marriage: Section 11 of the Hindu Marriage Act declares that marriage solemnised after
the commencement of this Act in contravention of anyone of the conditions specified in
clauses (i), (iv) and (v) of Section 5 shall be null and void.

Thus, three types of marriages are null and void if either party :-
1. has a spouse living at the time of the marriage;
2. if the parties are within the degrees of prohibited relationship unless custom or
usage permits such marriage; and
3. if the parties are sapindas unless custom or usage permits.

A void marriage is no marriage from its very beginning. Since the parties lack absolutely
capacity to marry they cannot by just undergoing ceremonies, become husband and wife.

The parties have no status of husband and wife. It is open to the parties even without recourse
to the court to treat it as a nullity. Neither party is under any obligation to seek a declaration of
nullity under the section. In Nirmal Bose v. Mamta Gulati (1997 All. 401), the Court held that
it is not the decree of the Court which renders such a marriage void.

In Harmohan v. Kamal Kumar (1979 Ori. 51), in the case of a second marriage, the first wife,
as she is not a party to the second marriage of her husband, can file a suit in the civil court
having original jurisdiction for a declaration of her right as a third party and such suit is
governed by Section 9, Code of Civil Procedure read with Section 34 of the Specific Relief
Act. She is not entitled to file a petition in the Courte of District Judge for obtaining a
declaration of the second marriage as null and void under this section. But, it is held in
Amanlal v. VOai Bai (1959 M.P. 400), that the first wife can ask for judicial separation by
filing a petition under the Act before the District Court.

VOIDABLE MARRIAGE

Voidable Marriage: Section 12 of the Hindu Marriage ACt, 1955 deals with voidable
marriages. The
voidable marriages are :-

a) if the marriage has not been consummated owing to the impotence of the
respondent; or

b) if the marriage is in contravention of the condition in clause (ii) of Section 5 i.e., at the
time of the marriage neither party is incapable of giving valid consent to it in
consequence of unsoundness of mind or though capable of giving consent has been
suffering from mental disorder to such an extent as to be unfit for marriage and the
procreation of children or has been subject to recurrent attacks of insanity or epilepsy; or

c) that the consent of the petition or where the consent of the guardian in marriage
of the petitioner was required, the consent was obtained by force or fraud as to the nature of
ceremony or as to any material fact or circumstances concerning the respondent; or

d) the respondent was at the time of the marriage pregnant by some person other than the
petitioner.

A voidable marriage is a perfectly valid marriage so long as it is not avoided. A voidable

marriage can be avoided only on the petition of one of the parties to the marriage. The
marriage can be avoided under the section by a decree of nullity.

Distinction between Void and Voidable Marriages

a) A void marriage is void ab initia It does not alter the status of the parties. They do not
become husband and wife and it does not give rise to mutual rights and obligations of
the parties.

b) Whereas, a voidable marriage remains valid and binding and continues to subsist for
all purposes unless a decree annuls it.

c) A void marriage being no marriage the Court only passes the decree declaring the
marriage as void. Whereas a voidable marriage is annulled by the decree of the court.

d) The parties to a void marriage may perform another marriage without getting a
decree declaring their marriage as void and neither party will be guilty of bigamy.

But a voidable marriage remains a valid marriage till a decree annulling it is passed.
Either party if marries without such a decree will be guilty of bigamy.