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Marriage And Dissolution Of Marriage Under Family Law

Conditions for valid marriage under Dharma Shastras and under the Hindu Marriage Act, 1955.

The Hindu marriage is samskara or a sacrament. The Hindu Marriage Act of 1955 has however brought about many changes in their conception of Hindu Marriage. Under prior law many qualifications prescribed in the texts for a valid marriage. Chastity, auspicious marks, young age, freedom from disease, difference in gotra, absence of sapinda relationship, are some for the qualifications found in the text of Yajnavalkya. Most of these conditions were only rules of caution and advice.

They were recommendatory and their violation did not affect the validity of marriage. Now the conditions for a valid Hindu marriage are laid down in Sec. 5 of the Hindu Marriage Act. Violations of these conditions render a Hindu Marriage void.
  1. Monogamy: 

    Under the Act, neither party to the marriage should have a spouse living at the time of marriage. Hence persons competent to marry are:
    1. Unmarried persons,
    2. divorced man or woman,
    3. Widow or widower.

A bigamous marriage is valid under Sec. 7 of the Act. Besides it is punishable under Indian, Penal Code, according to Sec. 494 of the Act. When a person is not heard for seven years by these who would have naturally heard of him, he is presumed to be dead under Sec. 108 of the Indian Evidence Act. Upon this presumption a wife, a husband can remarry, and such marriage is valid. Under earlier Hindu Law, the Shastras held monogamy as an ideal to be followed by all Hindus, however polygamy was recognized for valid reasons like ill-health, miss conduct or ill- temperament of the first wife.

In some communities remarriage of widows was recognized by custom, though for long period, remarriage of widows was not approved by Hindu Law. However in 1856 the Widows Remarriage Act was passed and their remarriage was legalized. Polyandry was not recognized under prior law.


2. Lunacy And Idiocy:

Under prior law the marriage of a lunatic or an idiot was valid. Such marriage was brought about by his guardian. The only condition was that such marriage should be performed according to the rites and ceremonies prescribed by the shastras. Under the Act it was provided originally that ‘Neither' party to marriage should, be idiot or a lunatic at the time of marriage. These provisions have been amended by Act 68 of 1976. After the amendment the conditions are that neither party.
  1. Is incapable of giving a valid consent to the marriage, in consequences of unsoundness of mind.
  2. Has been suffering from mental disorder rendering him or her unfit for marriage and the procreation of children has been subject to recurrent attacks of insanity. Marriage violating this condition is voidable under Sec. 12 of the Act. If the party to marriage develops mental disorder subsequent to the marriage, it is a ground for judicial separation under Sec.10 and for Divorce under Sec.13 of the Act.

3. Age Limit:

Under prior law no age limit was prescribed for the parties to marriage. Child marriages were common and valid however some age limit could be inferred from other condition for valid marriage. A male was to mercy after completing his study of vedas and a girl was to marry after attaining puberty. Under the Act the bride should complete 18 years of age and the bridegroom should complete 21 years of age.

If the bride is below 18 years age, consent of the guardian is necessary for her marriage. Even prior to the present Act, in 1929 the Child Marriage Restraint Act was passed. It prescribed 18 years of age for the bride. Surprisingly violation of the condition relating to age limit does not make the marriage void avoidable. Neither the Act of 1929 nor the Act of 1955 provides for the legal effect of child marriage. However under Sec. 18 of the present Act, parties participating in child marriage are punished.

4. Sapinda Relationship:

Under the Act, the parties to the marriage should not be sapindas of each other. However the custom governing the parties may permit marriage between Sapindas. Sapinda relationship extends to 3 degrees on the mother's side and to 5 degrees on the fathers side. The concerned party to marriage and the common ancestor are counted as two degrees. Sapinda marriage is void (Sec. 11). Under the prior law also sapinda relationship was prohibited among parties to marriage. But the sapinda relationship extended to five degrees on the mother's side and to seven degrees on the father's side. Relationship through father meant relationship completely through males. When a female intervened the relationship was on the mother's side:

5. Degrees Of Prohibited Relationship:


Under the Act, the parties to the marriage should not be within Prohibited Degrees of Relationship. There is prohibited degree of relationship in the following cases:
  1. If one is a lineal ascendant of the often.
  2. If one is the wife or husband of a lineal ascendant or descendant of the other.
  3. If one is the wife of the others (a) brother (b) father's brother (c) mother's brother (d) grandfather's brother (e) grandmother's brother.
  4. If two are brothers and sister, uncle and niece, aunt and nephew or children of brother and sister, children of two sisters, children of two brothers.

6. Ceremonies And Formalities:


Performance of ceremonies is essential for the validity of a Hindu Marriage. Without ceremonies only the relationship of concubinage can be created. Mere agreement between a man and woman, to live as wife and husband forever cannot bring about any martial relationship between them. The ceremonies may be:
  1. Shastriac
  2. Statutory
  3. Customary.

Mostly shastriac ceremonies and customary ceremonies consist of 2 parts (1) Betrothal and (2) Performance of Marriage. Betrothal is only an agreement to give the girl in marriage to a boy. This ceremony does not create any martial relationship. In case of breach of agreement in the Betrothal, damages can be claimed by the injured party; apart from recovery of the expenses incurred.

The second part of the ceremony relates actual performance of marriage in accordance with the rites, and rituals prescribed by Shastras or customs. Kanyadhan, Vivaha Homam and Saptapathi are some of the essential ceremonies in the shastraic form of marriages. Sec. 7 of the Act does not provide any particular ceremony a formality for performance of a valid Hindu marriage. It states that marriage may be solemnized in accordance with the customary rites and, ceremonies of the party. When Saptapathi is part of such ceremonies the marriage is complete, only when the seven steps are taken by the bride and the bridegroom jointly before the sacred fire.

Case Law: Deivanai Achi v Chidambaram Chettiar


A Hindu widow and widower were members of a society known as Anti Prohit society. They got married without performing any rite or ceremony. They merely convened a meeting of relatives and friends, and made a declaration that they became wife and husband they lived together subsequently as husband and wife for several years. Later on, the question areas whether they were lawfully married. The court decided that there was no valid Hindu Marriage between them. In 1967, the Hindu Marriage (Madras Amendment) Act 1967 was passed, and Sec. 7A was introduced into the Hindu Marriage Act of 1955.

This section validates Suyamariyathai and Seerthirutha Marriages solemnized between two Hindus, the conditions of such marriages are:
  1. The marriage should take place in the presence of relatives, friends or other persons.
  2. Each party to the marriage should declare that he or she takes the other as wife or a husband.
  3. Each party to the marriage should garland the other or put a ring upon any finger of the other.
  4. The bridegroom should tie a thali around the neck of the bride. Sec. 7A was given retrospective effect, and so even marriages performed earlier has become valid, if they followed the formalities laid down here. For example the marriage ‘In Deivanai Achi case becomes valid after the introduction of Sec. 7A.
     

Void And Voidable Marriages:

Sec. 11 and 12 of the Hindu Marriage Act deals with void and voidable marriages. A marriage is void when it is good for no legal purpose. It does not create lawful mantal relationship between the parties to marriage. The courts regard the marriage is maintained in any proceeding in any court and between any parties. If may be maintained either in the life time or after the death of the parties to marriage the children born of void marriages are illegitimate: Either party to the void marriage may obtain a decree of nullify from the court on a petition against the other party.

The following are the grounds for obtaining the decree or nullify:
  1. That the marriage is bigamous marriage.
  2. The parties to the marriage are sapindas of each other.
  3. The parties to the marriage are within degrees of prohibited relationship.

A voidable marriage is valid until and unless it is annulled by the court, at the instance of either party to such marriage. Both parties enjoy the option to set aside this marriage. There is an imperfection or defect in the voidable marriage and on this account it is liable to be avoided by either party.

Such marriage can be set aside only by the party to the marriage; and during the lifetime of both parties. Children born of voidable marriages are legitimate, provided they are born before the marriage is set aside by either party. Either party to the voidable marriage may annull it by a decree of nullify from the court, on a petition against the other party.

The following are the grounds for obtaining the decree of nullify under Sec. 12 of the Act:
  1. If the marriage violates the condition relating to mental disorder mentioned in Sec.5 of the Hindu marriage act.
  2. If the marriage is not consummated owing to the impotence of the wife or the husband. Before the amendment in 1976, the respondent must be impotent at the time of marriage and still the filing of the petition.
  3. If the consent of the party to marriage, or consent of the guardian is obtained by force by fraud as to the nature of the ceremony or as to any material fact circumstance concerning the respondent. Before the amendment in 1976, the nature of the fraud was not specified. In this case the petition must be presented within one year after the cessation of force, or after the discovery of fraud. The petition cannot be presented, if the petitioner lives with the respondent with full consent, after the cessation of force, or after the discovery of fraud.
  4. If the respondent was at the time of marriage pregnant by some person other than the petitioner. In this case petition can be filed only when:
    1. The petitioner was at the time of marriage ignorant of the pregnancy.
    2. No material intercourse taken place with the consent of the petitioner, after the petitioner's discovery of the existence of this ground for a decree of nullity.
    3. One year has not elapsed (1) after the date of marriage, in the case of marriage performed after the Act, and (2) after the commencement of the Act, in the case of marriage performed before the Act.
       

Indian Divorce Act, 1869

  1. Dissolution of Marriage Sections 10 to 17 deals with dissolution of marriage. Any husband may present petition to the District Court of High Court for dissolution of the marriage on the ground that the wife is guilty of adultery. Any wife may present petition to the District Court or High Court for dissolution of the marriage on the ground that the husband after the marriage has:
    1. Changed his profession of Christianity.
    2. Gone through a form of marriage with another woman.
    3. Is guilty of bigamy with adultery.
    4. Is guilty of incestuous adultery.
    5. Is guilty of marriage with another woman with adultery.
    6. Is guilty of rape, sodomy or bestiality.
    7. Is guilty of adultery coupled with cruelty. The cruelty by itself must be enough for dissolution.
    8. Is guilty of adultery coupled with desertion, without reasonable excuse for two years.
When the husband filed the petition for dissolution on the ground of adultery, he shall make the adulterer a co- respondent. The court may excuse him from doing so (1) if she wife is leading the life of a prostitute (2) the name of the adulterer is unknown to the husband, in spite of his efforts (3) or if the adulterer is dead.

Every decree of dissolution passed by the High court shall be in the first instance a decree in Nisi. The decree in Nisi is absolute after expiry of a period fixed by the order of the High court being not less than 6 months.

The petitioner must file a petition to have the decree in Nisi made resolute, after expiry of the prescribed period. During the period (any person) can oppose the decree being made absolute on grounds of conclusion or material effects.

The Court may take the decree absolute, or reverse the decree in Nisi or may require further enquiry. Every decree for a dissolution made by a District Judge is subject to confirmation by the High Court for confirmation shall be heard by two Judges of the High Court. Confirmation of the decree shall be made only after expiry of the duration prescribed by the High Court, not less than six months.

Nullity of Marriage (Section):

Any husband or wife may present a petition to the District Court or to the High Court for declaration that the marriage is null and void. Such declaration is made on any of the following grounds:
  1. The respondent was impotent at the time of the marriage and at the time of filing the petition.
  2. The parties are within the prohibited degree of consanguinity or affinity.
  3. Neither party was a lunatic or an idiot at the time of marriage.
  4. The former husband or wife of either party was living at the time of marriage, the former marriage being in force. The High Court may pass a decree of nullity of marriage on the ground that the consent of either party was obtained by force or fraud. District Court's decree shall be confirmed by the High Court.

Judicial Separation Husband or wife may obtain a decree for Judicial Separation on the following grounds:
  1. Adultery or cruelty or desertion without reasonable excuse for two year, or more. The petition for Judicial Separation may be made either to the District or to the High Court. The Court shall grant the decree if it is satisfied with the truth of the petition.
  2. If there is no legal ground to refuse the decree.

Consequences:

The wife, after Judicial Separation shall be deemed spinster with respect to after acquired property. She can freely dispose of her property and when she dies intestate, the property shall be inherited by her heirs. At the time of such inheritance the husband is deemed to be dead. The wife, after Judicial Separation is deemed spinster also for purpose of contract and suing. If alimony is ordered to be paid to the wife by the husband, during Judicial Separation, husband is liable for the necessaries supplied to the wife, if he fails to pay the alimony.

Reversal:

 When a decree for Judicial Separation is obtained in the absence of the respondent, the respondent may file petition for reversal of the decree. If desertion was the ground of such decree, reasonable excuse for the desertion must be proved. The court must be satisfied that the decree was wrong. The reversal shall not affect the rights or remedies of third parties against the wife or the husband.

Restitution Of Conjugal Rights

Either the husband or the wife may sometimes withdraw from the society of the other, without reasonable excuse. Then the separated spouse can file a petition for the remedy of Restitution of Conjugal Rights. The petition may be filed before the High Court or the District Court.

The Court grants the remedy:

  1. when it is satisfied with the truth of the contents in the petition.
  2. when there is no legal ground for refusing the remedy.

Special Marriage Act 1954

Solemnization of Marriage under the Act (Secs. 4 to 14). The following conditions should be fulfilled for the special marriage under the Act
  1. Neither party has a spouse living.
  2. Neither party is an idiot or lunatic.
  3. The male has complete the age of 21 years and the female the age of eighteen years.
  4. The parties are not within the degrees of prohibited relationship. However custom governing the parties may permit such marriage.

Notice: The parties to the intended marriage shall give notice of the marriage in the form prescribed. It must be given to the marriage officer of the district. One or both of the parties to the marriage must have resided for a period of not less than 30 days immediately prior to the notice.

The Marriage Officer shall keep the notice with the records of his office. He shall also enter a true copy of the notice in the Marriage Notice Book. The Marriage Book shall be open for inspection to the public without fee. The Marriage Officer shall be publish a copy of the Notice, by affixing it to a conspicuous place of the office.

When either of the parties is not permanently residing in the district, the Marriage Officer shall send a copy of the Marriage Notice to the Marriage Officer of the district where the party is permanently residing. The Marriage Officer receiving the copy shall also publish it in his office.

Objection: Before expiry of 30 days from the date of publication of the Marriage Notice, any person may object to the performance of the marriage. Objection must be on the ground that the intended marriage is contravening the conditions prescribed by the Act. If there is no such objection, the marriage may be solemnized after the expiry of 30 days from the date of publication of notice. When objection is raised it is recorded by the Marriage Officer in the Marriage Notice Book.

It is signed by the person raising the objection. The Marriage Officer shall enquire into the objections within 30 days from the date of objection. If he upholds the objection he can refuse to solemnize the marriage. Either party to the marriage may prefer an appeal to the District Court against the order of refusal passed by the Marriage Officer. The appeal should be filed within 30 days from the date of the order. The order of the District Court shall be final.

Registration: At the time of solemnization of marriage, the parties to the marriage, and three witnesses must sign a declaration in the presence of the Marriage Officer. The Declaration is countersigned by the Marriage Officer. The Marriage may be solemnized at the office of the Marriage Officer, or at a place within reasonable distance which the parties desire. When it is outside the office additional payment of fees is required. The marriage may be solemnized in any from chosen by the parties.

Under all forms the following declaration must be made by the parties in the presence of the Marriage Officer. After the marriage is solemnized the Marriage Officer shall enter the marriage in the Marriage Certificate Book. Such, certificate shall be signed by the parties to the marriage and three witnesses. This Certificate is the conclusive proof the fact of marriage under the Act. When marriage is not solemnized within 3 months new Notice of Marriage should be given, and the entire procedure should be followed:
  1. Restitution of Conjugal Rights (Sec. 22)
    The wife or the husband may withdraw from the society of the other, without reasonable excuse. In such case the separated spouse may petition to the Court for the remedy of Restitution of Conjugal Rights. The District Court shall grant the remedy:
    1. when it is satisfied with the truth of the contents in the petition.
    2. When there is no legal grounds for refusing the remedy.
       
  2. Judicial Separation (Sec. 23)
    Either party to the marriage may file a petition for Judicial Separation, to the District Court. The grounds for Judicial Separation are:
    1. Any of the grounds in sub-Section (1) of section 27 (Divorce)
    2. Failure to comply with the decree for Restitution of Conjugal Rights.

The Court grants the remedy

  1. When it is satisfied with the truth of the contents in the petition.
     
  2. When there is no legal ground to refuse the remedy.

    After the judicial separation there is no obligation upon either party to cohabit with the other. However either party may later file a petition for rescinding the decree for Judicial Separation. The Court rescinds the decree if it considers it just and reasonable to do so.
     
  3. Divorce (Sec. 27 and 28) the husband or the wife may present a petition for divorce to the District Court on the following grounds.

1. Grounds:

  1. The respondent has committed adultery since the solemnization of marriage.
  2. The respondent has deserted the petitioner without cause for a period of at least three years immediately prior to the petition.
  3. The respondent is undergoing a sentence of imprisonment for seven years or more for an offence in the Indian Penal Code. In this case the respondent must have completed 3 years of imprisonment before the presentation of the petition.
  4. The respondent has treated the petitioner with cruelty, since the solemnization of the marriage.
  5. The respondent has been incurably of unsound mind for a continuous period of not less than three years immediately prior to the petition.
  6. The respondent has been suffering from leprosy, for a period of not less than 3 years immediately prior to the petition. The disease must not have been contracted from the petitioner.
  7. The respondent has been suffering from venereal disease in a communicable form for a period of not less than 3 years, immediately prior to the petition. The disease must not have been contracted from the petitioner.
  8. The respondent has not been heard of as being alive for a period of seven years or more, by those who would naturally have heard of him or her, if he or she had been alive.

2. Grounds

  1. If there is no resumption of cohabitation between the parties to the marriage for a period of one year or more, alter the passing of the decree for Judicial Separation.
  2. If there is no restitution of conjugal rights between the parties to the marriage, for a period of one year or more, after the passing of the decree for Restitution of Conjugal Rights.
  3. When the husband is guilty of rape, sodomy or bestiality after the solemnization of the marriage.

Divorce of Mutual Consent: Both parties together may present a petition to the District Court for Divorce by Mutual consent.

The Court grants divorce:

  1. If they lived separately for a period of one year or more.
  2. If they are not able to live together.
  3. If they mutually agree to have the marriage dissolved.

Within two years and after one year from the date of presentation of the petition, the parties should make a motion. On such motion the Court shall hear the parties and grant the decree of Divorce if the contents of the petition are true. The divorce takes effect only from the date of the decree of divorce.

The petition for divorce can be presented only after three years from the date of entering the certificate of marriage in the Marriage Certificate Book. However the District Court may entertain premature petitions.
  1. When there is exceptional hardship to the petitioner.
  2. There is exceptional depravity on the part of the respondent.
Sometimes permission for premature petitions is obtained from the District Court through misrepresentation or concealment of the nature of the case. In such case the District Court passes the decree on condition that it shall take effect only on the expiry of 3 years, or dismisses the petition for divorce.

In deciding premature petitions for divorce:

  1. The court regards the interests of the children of the marriage.
  2. The Court also regards the possibilities or reconciliation between the parties.
The divorced persons may remarry after one year (10 from the date of the decree of divorce; or (2) from the date of confirmation of the decree by the appellate Court.


Void Marriages (Sec. 24): A marriage solemnized under the Act is void, and a decree of nullity may be obtained from the Court.
  1. If the condition prescribed for the valid, marriage under the Act are violated.
  2. If the respondent is impotent at the time of marriage and the time of filling the petition.
  3. Marriages registered under Sec. 15 of the Act are deemed to be marriages solemnized under this Act. They are void, if the condition in Sec. 15 are not fulfilled.

Voidable Marriages (Sec. 25): Marriage solemnized under the Act is voidable on the following grounds:

  1. If the marriage is not consummated owing to the willful refusal of the respondent.
  2. If the respondent was at the time of marriage pregnant by some person other than the petitioner.
  3. If the consent of either party to the marriage was obtained by coercion or fraud. In the case of conditions (2) a) the petitioner must be ignorant of the pregnancy at the time of marriage. b) petition must be filed within one year from the date of marriage. c) marital intercourse with the consent of the petitioner should not take place after discovering the ground for nullity. In the case of condition (3) a) petition should be filed within one year from the time of cessation of force, or from the time of discovery of the fraud. b) the petition should not live with the respondent with free consent, after cessation; of coercion or discovery of fraud.

Muslim Law of Marriage (NIKHA)

Nikha - Civil contract - no religious ceremony is necessary to bring about the relationship.

Capacity:

  1. Completion of 15 years on attainment of puberty.
  2. Dower
  3. Consent
  4. Sound mind.

There are 3 kinds of marriage.
  1. Valid Marriage (Shahih)
  2. Void Marriage (Batil)
  3. Irregular Marriage (Fasid).

Dowr (MAHR): Dower is any amount of money or property given to a wife by her husband as a mark of respect in which the wife is held by the husband. The different kinds of Dower are;
Prompt Dower, Specified Dower. Deferred Dower, Proper Dower

Law of divorce (TALAK)

Different ways in which the marriage may be dissolved under Mohammedan Law:
  1. Husband Divorcing Wife : 1. Talak Ahasan 2. Talak Hasan 3. Talak-ul-biddat.
  2. Divorce by Mutual Consent 1. Khula 2. Mubaraat
  3. Judicial Divorce at Instance of wife
    1. Procedure of Lien
    2. Talak by Tafweez.
    3. Impotence of Husband.
    4. New ground recognized by the Dissolution of Muslim Marriages Act 1939.
  4. Other modes of Divorce 1. Zihar 2. kula

Acknowledgment Of Paternity (IKFAR):

A Muslim parent i.e. father recognizes the paternity of his legitimate child by way of acknowledgment.

Doctrine Acknowledgment of Paternity.

Guardianship of Person:

  1. Concept of Minority according to Mohammedan Law.
  2. Relative rights of father and mother with regard to the custody of infant children.
  3. Principles applicable to the custody of female children under Mohammedan Law.
  4. Principles applicable to the custody of male infants.
     

Guardianship of Property:

  1. Legal guardians of the property of a minor.
  2. Powers of alienation of the guardian over the minor's property.
  3. De facto guardian and his powers.

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