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All of Hindu Marriage and Divorce

Hindu Marriage Act, 1956


Who is Hindu?

According to the act, the definition of Hindu is of following nature:
INCLUSIVE EXCLUSIVE
Virashiva, Lingayat Muslim
Follower of Brahmo, Prathana, Arya Samaj Christian
Buddhist Parsi
Jain Jew
Sikh


Any other person whose religion does not fall under the abovementioned categories, will be a Hindu unless it expressly falls under these categories exception are members of Schedule Tribes.

What is Marriage?

Concept of marriage started when problems regarding the paternity of a child was questioned. As mother of the child was known but father was unknown. In ancient times, where concept of marriage was not established then people used to unite without any system. And no man was exclusive to a particular woman. This made people form a system of tribes and communities, where a man of a tribe and will unite with a woman of same tribe. As time passed different communities has formed rites and ceremonies to celebrate the unity of a man and woman. This tradition gave birth to a holy union today known as marriage. Marriage is a sacred institution which serves a pious purpose in the evolution of a civilized society.

What is Hindu marriage and Why Hindu Marriage is not a contract?

Hindu Marriage is a sacrament. It itself a pious purpose, in which we treat fire as god and rice as sign of purity. Marriage also to make child legitimate and to be a part of chain of inheritence. Although Marriage is not a compulsion on anyone, it is a personal thought, no legislation bound you to get married.


Hindu marriage is not a contract because:

  • Consent is required as itserves a piouspurpose.
  • Rites and ceremonies takes place in front of fire which is treated as god.
  • Rice is a sign of purity by which man and woman swear their marital obligations.
  • Dowry is prohibited but in Muslims Mehar is not prohibited.
  • Ceremonies and customs takes place in presence of bride and groom both.
  • It is not a contact for consideration instead it is a willful and sacred practice, celebrated to make god happy.

Divorce

It is the stage where marriage is not left pious anyomore instead it has become contractual. Where the object of marriage seems vanashing due to needs, lust, environment, pressure, society etc. Reasons are numerous, for people rushing towards Divroce but in all this, object of marriage is diverted from its initial position. Remarriage is also a reason for filing of number of divorce petitions in courts today. Although the legislation wanted to protect the rights of every individual by introducing the concept of divorce, as polygamy was a major issue, when this act was introduced, but it also started putting end to the pious purpose of marriage. Divorce is frustating the objective of marriage.

Current Scenario
In Hindu societies, it was a demarcation that:
the husband will go outside the house to work and earn,
and the wife will maintain the household from the earnings of husband. But today people have increasedtheirneeds and wishes,according to which both husband and wife may have to work for gain. The World is changing with thetimeand so do the relationship between a husband and wife. With the advancement of the society, different aspects like gay marriages, live in relationships are becoming stigma on the holy purpose of the marriage.

Conversion

When a person is said to be converted?

  • If there is any ritual, then it has to be duly performed. For eg: ‘Sudhi’ in Arya samaj & ‘Kalma’ in Islam.
  • By professing that religion: if your intention is to convert and acceptance by the people of that religion. Mere appreciation does not mean conversion.
Also, conversion will not automatically disolve the marriage, one must take divorce first and then convert.[SARLA MUDGAL V/S UNION OF INDIA]
Legitimate Child Illegitimate Child
First guardian/parent is Father First guardian/parent is Mother.
Right in ancestral property Right in self acquired property.


First gaurdian has more rights over second guardian.
For example: if second gaurdian kidnaps the child and first guardian lodges F.I.R, then second gaurdian will be tried and if found guilty will be liable for punishment.

Customs

  • In case any law, ordinance, enactment is passed against any custom or ritual, then legislation will prevail over custom.
  • Generally it is considered that it is continued from more than 100 years but this presumption is not absolute.
  • It must be in continuity i.e. without any breakage.
  • It shall not oppose any public policies.
  • Section 4: Overriding effect of the act: Previous customs will cease to exist if:
    any law under this act has expressly been made regarding that custom, any custom which is inconsistence with the provisions of this act. For eg: Polygamy & Bigamy.

Conditions of a Valid Hindu Marriage;

  • Between two Hindus, no living spouse of either party at the time of marriage.
  • No forceful [or unsound mind] consent, in case of minor consent of guardian is must, Consent can be express or implied,
  • Where any rites or ceremonies are expressly provided, then it must be done in accordance with those rites or ceremonies. These ceremonies can be of either party. [Section7 (1)]
  • For eg: if rites or ceremonies includes saptpati, then seven steps before sacred fire are must. [Section7 (2)]
Sec. 11 Void Marriages Sec. 12 Voidable Marriages
Bigamy [Acc to sec. 5 (i)] Sec 5 (ii): at the time of marriage, neither party is:
a) incapable of giving consent,
b) unfit for marriage & procreation of children,
c) recurrent attacks of insanity
Prohibited Degrees of relationship [Sec. 5 (iv)] Impotency of the respondent
Sapindas of each other [Sec. 5(v)] Consent of petitioner of guardian of petitioner obtained by force or fraud.
Incomplete Marriage without performing rites & ceremonies [Sec. 7 (2)] Respondent was pregnant at the time of marriage i.e this ground is available only for husband.
Marriage before the period of appeal gets over [sec. 28] i.e 90 days from the date of decree or order. Sec.5 (iii): bride and groom has completed the age of 18 & 21 years respectively. If any marriage solemnized in contravention of this section then it is punishable u/s 18.
It is the discretion of either party to go for declaration of marriage as null and void on any ground mentioned in section.12 (Voidable marriages). Irretrievable Breakdown of Marriage
Sec. 9 Restitution of Conjugal Rights Sec. 10 Judicial Separation
Either spouse is entitled By either party
Without reasonable (fair and sensible) excuse (release someone from requirement) Grounds for divorce can be the grounds for Judicial Separationbut subject to exceptions (Sec. 13 A)
Withdrawn from the society of other spouse with the intention of not coming back. Relationship of husband and wife will remain but without cohabitation.
Without consent of the petitioner. In case of forcible cohabitation, wife can lodge a case of rape.
Burden of proving reasonable excuse will lie on the respondent. Wife is entitled to get maintenance during period of Judicial Separation.
No provision of imprisonment even if decree is passed, only attachment of property, but this will not fulfill the purpose of petitioner of filing the petition. In a petition for divorce, courts can pass a degree of Judicial Separation instead of divorce, if it deems fit to do so.
From the date of decree, of restitution, if both spouses are living separately for more than 1 year, then it itself will become a ground for divorce. If there is cohabitation then husband and wife can rescind the decree of Judicial Separation. If there is no cohabitation even after 1 year from the date of separation then it can become a ground for Divorce.
Period of one year for sec 9 as well as sec 10 is given in Section 13(1A).

Divorce
Hindu civil code permits divorce on certain grounds. But the religion as such does not approve divorce, because the concept is alien to Hinduism. According to the tenets of Hinduism, marriage is a sacred relationship, a divine covenant and a sacrament.

Marriage is meant for procreation and continuation of family lineage, not for sexual pleasure. It is an obligatory duty, part of Hindu dharma, which, once accepted, should be upheld by both the parties throughout their lives. Marriage is therefore a sacred bond, which cannot be dissolved through divorce on some personal or selfish grounds.

Section 13 of the act describes the grounds of divorce, for a marriage which is legally in existence.

Grounds for either spouse [Section 13 (1)&(1A)]

i) Voluntary (conscious mind) sexual intercourse with a person other than spouse. It does not include unconscious mind, drunkenness or without consent.
Proving this ground is very difficult because:
  1. Extra marital affairs are not done publicly,
  2. Strict prove is impossible.
  3. Circumstantial evidence is the only key.
  4. Burden of proof is very light.
  5. These activities are hidden.

ia) Treated petitioner with cruelty

Cruelty can be of two types i) mental or ii) physical or both. We exclude minor daily life trifles, because marriage is a holy union and even by providing a provison of divorce, legislation not wanted to dissolve the marriage very easily on the ground of trivial acts. While considering a petition under cruelty court must consider living status, family background, education, living conditions, environment, social wellbeing, age, extreme conditions of the parties. Some of the major examples of cruelty are:
  1. Demand of Dowry,
  2. Refusal for cohabitation,
  3. Lodging of F.I.R and other complaints,
  4. Use of abusive language,
  5. Maintenance of the house hold,
  6. Mal treatment to parents,
  7. Drunkenness, Gambling etc,
  8. Calling the spouse with different objectionable names,
  9. Not giving respect to parents, relatives or guests,
  10. Beatings at work place or matrimonial home, Beatings can be by family members also,

In physical cruelty acts must be of that nature that the petitioner must feel endanger to life and circumstances must be grave. Without documents of physical cruelty, it is still a ground because many times in Hindu matrimonial houme, people try to avoid visiting doctors and taking prescriptions, just to maintain image in society by not exposing inner disputes in front of any outsider.

ib) Desertion for 2 years immediately before presentation of petition by either spouse

  1. There is a difference between desertion and separation.
  2. Desertion means to break the matrimonial ties and not to come back to the matrimonial house for reunion.
  3. Desertion must be continuous for 2 years.
  4. If during this period, there is any cohabitation or reunion between husband and wife, then this ground will not be evoked.
  5. At the time of presentation of petition, desertion must be in existence.
  6. Desertion without reasonable cause and consent.
  7. Documentary evidence not necessary.
  8. Deserting for more than 2 years and again living together before filing the petition will not amount to ground of divorce.
  9. A mere physical distance can be termed as separation; it can be with or without consent.

ii) Ceased to be a Hindu by conversion.


iii) Mental Disorder: incurable of unsound mind, may be continous (persistent) or intermittent:

  1. Aggressive behaviour,
  2. Violent behaviour,
  3. which cannot be bared under normal circumstances,
  4. which cannot be tolerated at any cost,
  5. harmful or endanger to life,
  6. Anti social,
  7. tries to justify own acts,
  8. abnormal, illegal, irresponsible acts.

iv) suffering from incurable form of leprosy,

v) suffering from STD or communicable disease,

vi) renounced the world,

vii) not heard for 7 years or more,


Section 13 (1A)

  • Judicial Separation
  • Restitution of conjugal rights.

Section 13 (2): These grounds are only for wife exclusively:

  • Husband has been guilty of rape, sodomy or bestiality
    Although criminal liability of Adultry u/s 497 IPC has been declared unconstitutional by the Hon’ble Supreme Court in Joseph shine v/s Union oF India, still it is considered as a ground of divorce.
Even a single act of rape, sodomy or bestiality is sufficient to be a ground for divorce.

In case of rape, punishment is not necessary to evoke the ground of divorce, mere prima facie by charge sheet is itself sufficient.

Section 13(2)(iv) If a marriage is solemnized before the wife has attained the age of marriage, then she can, after attaining the age of 15 years and before 18 years, repudiate the marriage and same will become a ground for divorce.

Section 14: No petition to be presented within one year of marriage

  • This period of 1 year can be condoned by showing exceptional hardship on the part of petitioner. Some cases are:
    (i) Mental disorder
    (ii) Rape, sodomy, adultry etc,
    (iii) Communicable & Venral diseases,
  • This section is not barred by the principle of res judicata i.e. even after dismissal of the petition, after one year has elasped, any party thereto can file a petition for divorce on the same grounds.
  • An application of waiver of period of one year shall be filed along with the petition.
  • Chances of children are very less, but if any court will consider thier interests also.

Sec 15 : When a Divorced person can marry again:

  1. Where there is no right of appeal, in case of Section 13B, after passing the decree of divorce.
  2. Where the time of appeal as mention in Section 28 i.e. 90 days from the date of decree has elapsed.
  3. Where Where an appeal has been file but the same has been dismissed.

Note: This section must be read with Section 28 for better understanding but somewhere this section shows absurdity and becomes silent on many aspects. For example: It enumarates the situation of remarrying by a divorced person, when appeal is dismissed but becomes silent in respect of which appeal whether supreme court or high court ?

Section 16: All children born out of a void marriage or void able marriage will be legitimate. And the child born will have the rights on ancestral property of any person (including parents), But on self acquired property of either parents, the child will not confer any right.

But In Ravosiddappa v/s Mallikarjun, Hon’ble SC gave right to illegitimate children in self acquired property also.

Purpose of this section was to save any illegitimate children from being called as bastard and tilted towards the legitimacy of children, despite the decree of nullity has been passed.

Section 19 (iiia) Gives only a wife, a right for filling any petition under this act, where she is residing at the time of presentation of petition.
It is an exceptional ground, which gives unfattered & unlimited jurisdiction, all around the country to the wife.

Section 20: Every state has made thier different rules regarding the presntation of matrimonial petitions. For Ex: In Delhi, DHC has made rules like:
  • In case of cruelty, petitioner have to write that, ‘I have not condoned the acts of cruelty’.
  • There is no collusion between the parties

Otherwise collusion will frustrate the object of Section 13B, and a petition u/s 15 can be filed easily by collusion of both the parties.

No transfer petition to be filed in Hon’ble supreme court, until, in which court the petition is pending, has no facility available for camera proceeding.

Printing and publishing of any judgment of HC or SC under this act must be with the permission of High Court Or Supreme Court.


Section 24: Pendente lite maintenance:

  • Remedy available to both husband and wife.
  • Applicable to expenses during the pendency of petition only.
  • Order of maintenance under this by ADJ, will be binding on any maintenance order passed by Magistrate of DV act, Magistrate of Section 125 cr.p.c. But order of Magistrate may be considered by the ADJ, while granting maintenance but he is not bound by order of magistrate.


Section 25: Permanent alimony

  • If we talk about generality, a lumsum amount is ordered. provison of monthly allowance is provided, but we cannot put reliance on future aspects, therefore a lumsum is provided. For Eg: after getting monthly allowance, spouse can get marry again.
  • Generally, if a dcree is passed, the court becomes fungtus-officio, and only right of appeal is left. But in Section 25, if there is any change in circumstances regard to those in which decree was passed, the court passing the decree may vary, alter or rescind it.
     

Fundamentals of Section 26: Custody of Children:

  • Custody of children to be governed by Hindu Minority & guardianship Act, 1956.
  • Two things are main to be considered, permanent custody of the children and visitation rights during the pendency or after the decree.
  • While passing any interim order for custody, the court may consider maintenance & education of minor children having regard to their wishes also.
  • Upto 5 years of age of child, mother is presumed to be only best guardian, except in case of exceptional hardship.
  • After 5 years, court will have regards to the welfare of the child, any third person can also be given custody, if court thinks welfare of child best vests there.
  • If the child is mature, court will consider the wish and desire of child, but court is not bound by the wish of child, as there may be tutoring of child also.
  • In case of a major child, he/she can solely decide, where and with whom to live.

Appeals
  • If an order of permanent alimony (Section 25) or custody of children (Section 26) is passed, they will be appealable only if they are not interim orders.
  • No appeal shall lie subject to costs only.
  • Appeal shall be prefered within a period of ninety days from the date of decree or order.
  • If anyone of the divorced spouse, gets married after passing of 90 days, and an appeal by the aggrieved spouse is filled after 90 days along with the apllication u/s 5 of limitation act (which applies only to appeals and applications) for the condonation of delay on his/her part. And the same gets admitted, now the appellant court has two options, whether to set aside the decree of district court and nullify the second marriage of that spouse, which itself feels absurd or to dismiss the appeal.
Then again this provisions seems to be falling under absurdity, and no such judgement till date has been pronounced, to clearify this issue. 

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