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Matrimonial Remedies Under Hindu Marriage Act, 1955

The Hindu marriage act was enforced by parliament in 1955 to amend and to codify marriage laws between Hindus and also for regulating the institution of marriage including validity and invalidity of marriage, other aspects of personal life among Hinduisms is also regulated the applicability of such in wider Indian society. India is a cosmopolitan country. It allows each citizen to be governed under personal law according to their religious views.

This is extended to all of the personal laws in the matter of marriage and divorce. The purpose of marriage is to unite legally. It lays down that the legally wedded couple must live together throughout life sharing pleasures and pains. However, in some cases, matrimonial disputes take place due to misunderstanding or indifferent attitudes between the husband and the wife. Hindu Marriage refers to kanyadan which means gifting a girl to the boy by the father with all the tradition and custom.

It also applies to any person living outside this territory except who is a Muslim, Christan, Parsi, or Jew by religion or it is proved that such person is being governed by Hindu law. Section 12 of the Hindu Marriage Act 1955 lays down that when one's consent is not obtained, the marriage is considered void.

Thus, the Hindu marriage is not a contract and neither is it a sacrament. Marriage does not rest within the criteria of a contract but rather that of a covenant. It is not exclusive to a man and a woman because society is bigoted or hateful; the truth is that only a man in his distinctiveness and a woman in her distinctiveness can form a complete union.

Hindu Marriage Act:

Marriage Laws (Amendment) Bill, 2010 makes similar amendments to the Special Marriage Act, 1954 by replacing the words "not earlier than six months" in Section 28 with the words "Upon receipt of a petition" and provides restriction on decree for divorce affecting children born out of wedlock.

The Act applies to all forms of and also recognizes offshoots of the Hindu religion as specified in Article 44 of the Indian Constitution. these include Jains and Buddhists. The Act also applies to anyone who is a permanent resident in India who is not Muslim, Jew, Christian, or Parsi by religion.

The Concept of Marriage under the Hindu Law:

For a long period of time Hindu marriage rites have been changed accordingly due to the needs and convenience of the people from time to time. It is the relationship between husband and wife. According to Hinduism, this sacrament is one of the most important sacraments out of 16 sacraments in Hinduism. It is a sacred tie that canít be broken. It is a relationship from birth to birth, it is a bond that continues after rebirth and death. According to Veda, a man is incomplete until he gets married and meets with his partner.

Sacramental Nature of Marriage:

Hindu marriage is ďa religious sacrament in which a man and a woman is bound in a permanent relationship for the physical, social and the spiritual need of dharma, procreation and sexual pleasure.Ē

Characteristics of the Sacramental Nature of a Hindu Marriage:

There are three characteristics of the sacramental nature of marriage:
  • It is an enduring bond of the husband and wife which is permanent and tied even after death and they will remain together after the death
  • Once it is tied cannot be untied.
  • It is religious and holy union of the bride and groom which is necessary to be performed by religious ceremonies and rites.

Hindu marriage is considered one of the most important sacraments. In ancient times, there was no need for the girlsí consent. Fathers have to decide the boy without asking for her advice or consent. It is the sole duty of the father to find a suitable boy. If the person was of unsound mind or minor at the time of the marriage, it was not considered as a void marriage. But in the present world, consent and mental soundness of the person are a very essential part of the Hindu Marriage, without the absence of any such element marriage will be annulled or void or no legal entity.

section 12 of the Hindu Marriage Act 1955 lays down that when oneís consent is not obtained, the marriage is considered void. It shows that despite the absence of consent of the bride, the marriage is valid and legal.

Conditions for marriage:

Section 5 of The Hindu Marriage Act specifies that conditions must be met for a marriage to be able to take place. If a ceremony takes place, but the conditions are not met, the marriage is either void by default, or voidable.

Void marriages:

A marriage may be declared void if it contravenes any of the following
  1. Either the party is underage. The bridegroom should be of 21 years of age and the bride of 18 years
  2. Either the party is not of the Hindu religion. Both the bridegroom and the bride should be of the Hindu religion at the time of marriage.
  3. Either the party is already married. The Act expressively prohibits polygamy. A marriage can only be solemnized if neither party has a living spouse at the time of marriage.
  4. The parties are sapindas or within the degree of prohibited relationship.

Voidable marriages:

A marriage may later be voidable if it contravenes any of the following:
  1. Either the party is impotent, unable to consummate the marriage, or otherwise unfit for the procreation of children.
     
  2. One the party did not willingly consent. To consent, both parties must be sound of mind and capable of understanding the implications of marriage. If either party suffers from a mental disorder or recurrent attacks of insanity or epilepsy, then that may indicate that consent was not (or could not be) given. Likewise, if consent was forced or obtained fraudulently, then the marriage may be voidable.
     
  3. Then the bride was pregnant by another man other than the bridegroom at the time of the marriage.

Registering a marriage:

A marriage cannot be registered unless the following conditions are fulfilled:
  1. A ceremony of marriage has been performed; and
  2. The parties have been living together as husband and wife

Additionally, the parties must have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration.

Section 8 of the Hindu Marriage Act allows the state government to make rules for the registration of Hindu marriages particular to that state, particularly with respect to recording the particulars of marriage as may be prescribed in the Hindu Marriage Register.

Registration provides written evidence of marriage. As such, the Hindu Marriage Register should be open for inspection at all reasonable times and should be admissible as evidence in a court of law.

Conditions for validity of a Hindu Marriage:

Section 5 A valid marriage shall be solemnized between two Hindus if the following conditions are fulfilled:
  • Any person doesnít have a spouse living at the time of the marriage. According to the Hindu Marriage Act, it is not permissible to have two living wives at the same point in time, which amounts to bigamy. It is punishable under Section 494 of the Indian Penal Code
  • The groom shall attain the age of 21 and the bride attains the age of 18. It is necessary at the time of marriage the person shall attain the specified age given in this Act.
  • The consent shall not be given by coercion or threat. In the modern world, a father canít get the girl married to any without a girlís consent. Marriage will be void.
  • They donít fall under the Sapinda relationship, or within the degree of prohibited relationship unless it is allowed by their custom or tradition.
  • The person shall be not suffering from any insanity or mental disorder at the time of the marriage.
     

Essential elements of Section 5:

Condition of monogamy:

Section 5 (i) of the Hindu marriage act 1955 states that at the time of the marriage a person should not have a living spouse. It is not permissible in Shastri law to have two married women at a point in time. It is also punishable under the Indian penal code 1955.

Bigamy:

Bigamy amounts to having two living wives at the same time which is illegal in Hindu law; without finalizing the divorce from the first marriage, a person canít marry someone else. The first one will be considered a legal marriage. The provision of section 494 and 495 of the Indian Penal Code 1860 will apply to the person performing the second marriage after already having a living husband and wife.

Conditions regarding mental health or capacity:

Section 5 (ii) (a), (b), (c) Hindu marriage Act 1955 discusses the condition of valid of Hindu marriage related to mental health or the capacity of the person; if a person is suffering from unsoundness of mind at the time of marriage, Marriage will be considered as void. A person must be capable of giving valid consent at the time of the marriage.

Condition for marriageable age:

Section 5 (iii) of the Hindu Marriage Act 1955 states that the bridegroom has completed the age of twenty-one and the bride has completed the age of eighteen years at the time of the marriage. If the person has not attained given in section 5 (iii) the marriage will be void it has no legal status.

Sapinda relationship:

All prohibited relationships are Sapinda but all Sapinda relationships are not prohibited relationships. Sapinda relationship is the chain of all the relationship from the side of the brother and sister in the family; they canít marry each other due to prohibited relationship and also their generation till three generations from the girl side and five-generation from the boy's side, till that they all are in a Sapinda relationship. Avoidance of Sapinda can be achieved as the girl reaches the fourth generation and the boy (brother) reaches the sixth generation after that both families can have a marriage that will be neither prohibited relationship nor Sapinda relationship.

Solemnization of Marriage (Section 7):

Section 7 of the Hindu marriage act 1955 states the solemnization of the Hindu marriage, a Hindu marriage may be performed by all the ceremonies and rituals of both the party or either anyone. It is concerned with the Saptapadi which means that taking seven rounds around the fire with their partner; after its completion marriage becomes complete and binding.
  • Each party to the marriage declaring in any language shall be understood by each of the parties.
  • Each party to the marriage shall put the ring upon any finger of the other.
  • Tying of the thali.

The marriage renders to be valid if it is performed between Hindu couples according to the customary ceremony and rituals of each party or any one of them. Any child born after performing the marriage according to this section will be legitimate. The beginning of the child before the dissolution of the marriage is not the cause to dissolve the marriage.

It is one of the most important duties of the father to bring up the girl child, find a suitable boy for her and do Kanyadan for the girl. The girl leaves their gotra and enters into the gotra of the boy. It is an unbreakable bond that is tied from generation to generation. It is a sacrament, not a contract.

Divorce:
Although marriage is held to be divine, the Hindu Marriage Act does permit either party to divorce on the grounds of unhappiness, or if he or she can prove that the marriage is no longer tenable.

A petition for divorce usually can only be filed one year after registration. However, in certain cases of suffering by the petitioner or mental instability of the respondent, a court may allow a petition to be presented before one year.

Reasons for Matrimonial Disputes:

Infidelity:

If either spouse has an extramarital affair or marriage-like relation with a person other than his or her own spouse.

Domestic Violence:

Domestic violence is an act of violence and harsh behavior (both physical and mental) of one member of the family towards another.

Control:

Exercising unnecessary control and wanting to ďget things are done in your wayĒ weakens the bond of marriage.

Finances:

If one spouse spends money at extreme and another is a saver, there are chances for conflict to arise.

Lack of Commitment:

The reasons for this may vary from person to person.

Lack of Communication:


In todayís a busy social and professional lifestyle, In addition, a wife may also seek a divorce because:

In the case of marriages that took place before the Hindu Marriage Act 1955 was enacted, the husband was already married and that any other wife of the husband was alive at the time of the marriage ceremony.

The husband, after marriage, has been found guilty of rape, sodomy, or bestiality.

Co-habitation has not been resumed within a year after an order for maintenance under Section 125 of the Criminal Procedure Code or under the Hindu Adoptions & Maintenance Act 1956.

The wife was under-age when she married and she repudiates the marriage before attaining the age of 18 years.

Alimonies (permanent maintenance):
At the time of the decree of divorce or at any subsequent time, the court may decide that one party should pay to the other an amount for maintenance and support. This could be a one-off payment, or such as a monthly payment. The amount to be paid is at the discretion of the court.

Matrimonial Reliefs Under Hindu Marriage Act:

Keeping in view the high rate of marital discord, several matrimonial reliefs have been provided in the Hindu Marriage Act, 1955.

Some of the matrimonial reliefs under the Hindu Marriage Act are:
  1. Restitution of Conjugal Rights: Section 9
  2. Judicial separation: Section 10
  3. For void marriages: Section 11
  4. Voidable marriages for nullity of legally irregular marriages: Section 12
  5. Divorce: Section 13

Restitution of Conjugal Rights:

When one spouse leaves the other or withdraws the company of the other without any reasonable reason, the aggrieved spouse may go to court for seeking a remedy.

The following three essentials have to be proved:
  1. The withdrawal by the respondent from the society of the petitioner
  2. The withdrawal is without any reasonable or lawful ground.
  3. The court must get satisfied with the truth of the statement made in the petition.

Matrimonial Reliefs Under Hindu Marriage Act:

Matrimonial Relief basically deals with the different solutions available to a spouse from another spouse accordingly. The petitioner may get relief from the respondent in a proceeding for divorce or Judicial Separation or Restitution of Conjugal Rights. Keeping in view the high rate of marital discord, several matrimonial reliefs have been provided in the Hindu Marriage Act, 1955.

Restitution of Conjugal Rights:

When one spouse leaves the other or withdraws the company of the other without any reasonable reason, the aggrieved spouse may go to court for seeking a remedy.

The following three essentials have to be proved:
  1. The withdrawal by the respondent from the society of the petitioner (aggrieved party).
  2. The withdrawal is without any reasonable or lawful ground.
  3. The court must get satisfied with the truth of the statement made in the petition.

This remedy has been statutorily provided under all personal laws:

  1. Section 9 of the Hindu Marriage Act
  2. Section 32-33 of Divorce Act.
  3. Section 36 of the Parsi Marriage and Divorce Act.
  4. Section 22 of the Special Marriage Act

Judicial Separation under Hindu Marriage Act:

It is provided under Section 10 of the Hindu Marriage Act, 1955. It is a platform of last resort before the legal breakup of the marriage, which is divorce. As soon as a decree for judicial separation is passed, a husband or a wife is under no compulsion to live with his/her spouse. The aggrieved party to the marriage may present a petition on any of the grounds stated in the provisions for divorce under Section 13 of the Hindu Marriage Act for a decree of judicial separation. If there is no cohabitation between the parties to the marriage for one year or more after the passing of the order for judicial separation, the parties then may apply for divorce.

Remarriage:

Remarriage is possible once a marriage has been dissolved by a decree of divorce and no longer able to be appealed (whether there was no right of appeal in the first place, or whether the time for appealing has expired, or whether an appeal has been presented but dismissed).

Conclusion:
The concept of marriage is to establish a relationship between husband and wife. Based on Hindu law, marriage is a sacred tie and the last of ten sacraments that can never be broken. Also, it is a relationship that is established from birth to birth. Based on smritikars even death cannot break this relationship. Also, it is not only considered as sacred but is also a holy union. The main objective of marriage is to enable a woman and a man to perform their religious duties.

Along with this, they also have to beget progeny. Based on ancient writings, a woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman. Every Hindu whether they are male or female has to marry. Also, a person could not remain a perpetual student and where he did not desire an ascetic life. But he was enjoyed or engrained in the shastra to marry.so, marriage is considered as good as compulsory more so in the case of a female.

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