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Provisions Of Marriage And Divorce Under Hindu Marriage Act, 1955

Hindu Marriage Act, 1955

Marriage
Section 5:
Conditions for A Hindu Marriage:
The Act provides that a marriage may take place between any two Hindus. These conditions must be fulfilled for the solemnization of marriage:
  1. If you are bridegroom, then at the time of your marriage, you must have completed the age of 21 years; and if you are a bride then at the time of marriage, you must have completed the age of 18 years.
  2. In case, you are a male, you should not have a wife already while marrying to some other girl and same goes for the girl that if she is marrying a boy then she should not be having a husband already. In such a situation, your later marriage would be considered as null and void in the eye of the law from the very beginning under Section 11 of Hindu Marriage Act, 1955.
  3. At the time of marriage, the bride and the bridegroom should be capable of giving valid consent to the marriage. It means that none of the party should be suffering from unsoundness of mind or incapable of giving valid consent to the marriage. Such a marriage is considered as null and void under Section 12 of Hindu Marriage Act.
  4. No party should be suffering from a mental disorder or be unfit for marriage and procreation of children.
  5. At the time of marriage, neither the bride nor the bridegroom should have been suffering from recurrent attacks of insanity or epilepsy.
  6. At the time of marriage, neither the girl nor the boy should be involved within the degrees of prohibited relationship. However, if custom or usage governing permits of a marriage between the girl and the boy, then they are permitted to marry each other and the law accepts the same. Two persons are stated to be "within the degrees of prohibited relationship" if they are related to each other in the manner defined under Section 3(g) of the Act. Such a marriage is null and void from the very beginning under Section 11.
  7. At the time of marriage, neither the girl nor the boy should be sapinda of each other. However, if there is any custom which permits a marriage like that, then the law accepts the same. But if neither law nor custom accepts it, then such a marriage is null and void from the very beginning under Section 11.

For example, a girl being a Sapinda relation of her father, grandfather, great grandfather and so on starting from the girl, cannot marry anyone of them.

Section 7:

  • This act of the Hindu Marriage Act recognizes the ceremonies and customs of marriage. Hindu marriage may take place in accordance with the customary rites and ceremonies of either party.
     
  • Such rites and rituals include the Saptapadiļæ½the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. The marriage becomes complete and binding when the seventh step is taken.

Section 8:

  • In this act, the state government may make rules for the registration of Hindu marriages that the parties to any of such marriages may have particulars relating to their marriages entered in such a manner and subject to such conditions as may be prescribed in the Hindu Marriage Register. This registration is for the purpose of facilitating the proof of Hindu marriages.
     
  • All rules made in this Section may be laid before the state legislature. The Hindu Marriage Register should be open for inspection at all reasonable times and should be admissible as evidence of the statements contained therein.

Section 11:

A marriage is considered void under the Hindu Marriage Act if it doesn't fulfill the following conditions of Section 5 of the Hindu Marriage Act:
  • If any of the parties have another spouse living at the time of marriage. It shall be considered as null and void.
  • If the parties are within a prohibited relationship unless the customs allow it.
  • A marriage between the parties who are sapindas or in other words a marriage between the parties who are of his or her relations or of the same family.

Section 12:

  • A marriage is voidable on either side of the party is known as voidable marriage. It will be valid unless the petition for invalidating the marriage is made. This marriage is to be declared void by a competent court under the Hindu Marriage Act, 1955. The parties of such marriage have to decide whether they want to go with such marriage or make it invalid.

    The grounds where marriage can be termed as voidable:
    • If the party to the marriage is not capable of giving consent due to the unsoundness of mind.
    • If the party is suffering from a mental disorder that makes her unfit for the reproduction of children.
    • If the party has been suffering from repeated attacks of insanity.
    • If the consent of marriage by either of the parties is done by force or by fraud.
    • If either of the parties are under-aged, bridegroom under 21 years of age and bride under 18 years of age.
    • If the respondent is pregnant with a child of someone other than the bridegroom while marrying.

Case Laws

Amardeep Singh v/s Harveen Kaur

  • Parties have been living independently since 2008. In 2017 the parties showed up at a settlement and applied for divorce by shared assent/ consent.
  • In this situation, the Court to let go off the time of 6 months as stated under Section 13B(2) of the Hindu marriage and follow up on the ground that they have been living independently for the last 8 years and there is no chance of their living together again.
  • In a significant improvement to Hindu Law administering divorce by common assent, the Supreme Court decided that the cooling time of 6- 18 months which is given under Section 13B(2) of the Hindu Marriage Act, 1955 isn't binding and can be called off in specific situations or circumstances. In perspective on this, Courts can rely upon the realities and conditions of each case and call off the stipulated period where there is no chance of continuing living together and alternative rehabilitation.

Mrs. Christine Lazarus Menezes v/s. Mr. Lazarus Peter Menzes

For the situation, the Appellant wife offered against Family Court's order whereby the Family Court had conceded Respondent's application for dissolution of marriage.
  • The Bombay High Court expelled the intrigue and refused to interfere with the Family Court's structure in permitting the Petition for divorce of the spouse on the ground of 'cruelty'.
  • The Court noted for the situation that during an assessment, the wife had acknowledged in her oath that she had held up an FIR with the Kherwadi Police Station, Mumbai, against her husband under Section 498-A and 406 of the Indian Penal Code, 1860. She accepted that she held up the FIR so as to bring back her husband to their wedding home.
  • In perspective on the previously mentioned, the Court noticed that if the Criminal Complaint reported by the appealing wife against her husband was false and was recorded uniquely to bring back her husband and resulting to which he was captured and was in prison for around 7 days, it would establish a clear case of cruelty by the wife on her husband.
  • The Division Bench's order by restoring the single judge order of granting judicial separation.


Hindu Marriage Act, 1955

Divorce:

Section 13A
This Section is the foundation Section that clearly states the grounds of divorce. These grounds are adultery, cruelty, Desertion, conversion, insanity, leprosy, venereal disease, renunciation, and presumption of death. Thus, on these grounds divorce is bound to take place between the two legally married couples.

Section 13B
As per Section 13B, the person can file the petition for divorce by mutual consent of both the parties. If the parties want to dissolve their marriage as a mutual consent are required to wait for one year from date of marriage. They have to show that they are living separately for one or more year and not able to live with one another.

Section 14
As per Section 14, no Court will accept the petition of divorce within the one year of the marriage. But can accept if the matter is related to bigamy, and where the consent of the spouse was taken through misrepresentation, fraud, undue influence etc.

Section 15
As per Section 15, after the marriage gets dissolved and no further petition was filed by any of the spouses against the order of the court and the time for appeal has expired. At that time it is assumed that both the spouse are satisfied. Then only the divorced person can marry again.

Case Laws:

Manisha Tyagi v/s Capt. Deepak Kumar

  • The husband filed a petition for divorce on the ground of cruelty, before the District Court of Gurgaon under Section 13 of the Hindu Marriage Act. The husband alleged that the wife was rude, ill-mannered, quarrelsome and schizophrenic, and that she had made his life a living hell.
  • The wife also made equally vile allegations of dowry demand, sodomy, and mental and physical torture in various ways. In sum, there were innumerable complaints and allegations made against each other. Best efforts for reconciliation were made by the Court but to no effect.
  • The trial Court, on evaluation of the entire evidence, found that even though it was a case where marriage had broken, but under the law as it exists, the marriage could not be dissolved on the ground of irretrievable breakdown.
  • The husband accepted the order of the single judge, but the wife went in appeal before the Division Bench of the Punjab and Haryana High Court.
  • The Division Bench proceeded on the basis of allegations of cruelty, and was convinced that the wife's behavior amounted to mental cruelty of the worst type. The Court held that cruelty as alleged by the husband stood proved, and consequently, the single judge order was set aside and a decree of divorce granted to the husband.
  • The wife again went in appeal against the Punjab and Haryana High Court, Division Bench order, and came before the Supreme Court.

The Supreme Court in its judgment held that the Division Bench of the High Court had committed an error in granting the decree of divorce, and thus, the Supreme Court set aside

Amit Sharma v/s Parul And Others

  • Appellant filed an application under Section 9 of Hindu Marriage Act 1955 read with Section 22 of Special Marriage Act, 1954 for restitution of conjugal rights.
  • He pleaded that an agreement of marriage between appellant and respondent was executed before Notary District Panna on 11.01.2010. On the basis of aforesaid agreement, an application was filed before the Collector/District Marriage Registration Officer, Panna to issue certificate of marriage in accordance with the provision of Special Marriage Act 1954.
  • Proceedings were conducted thereafter; marriage certificate was issued on 23.02.2010. Respondent was living separately, she did not come to live with the appellant to perform obligation of marriage hence, decree of restitution of conjugal rights be passed.
  • Respondent in her reply denied the fact that any marriage was solemnized between appellant and respondent. She further pleaded that agreement prepared by the appellant before the Notary dated 11.01.2010 is forged and fabricated document, it is ab initio void.
  • Notary was not authorized to execute the agreement in regard to marriage. She denied the fact that any application was filed before the Collector for certification of marriage and when the marriage was not solemnized, there was no question of issuance of certificate of marriage. The proceedings were conducted before the Collector are not in accordance with law. The respondent did not live with the appellant. Respondent also filed counter-claim declaring the certificate of marriage dated 23.02.2010 as null and void.
  • In accordance with the aforesaid, if a ceremony of marriage has been performed between the parties and they have been living together as husband and wife. Since there was no valid marriage performed between the appellant and respondent in accordance with Hindu Marriage Act, there was no question of issuance of marriage certificate as held by this Court.
  • The trial Court has rightly dismissed the suit filed by the appellant and allowed the counterclaim filed by the respondent declaring the marriage certificate as null and void.

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