FAMILY LAW-I

MARRIAGE
 Evolution of Institution of marriage
The men and women of ancient times lived in a nomadic lifestyle. They didn’t spend their lives
looking to find marriage or companionship. However, the society became an agricultural oriented
one with time, following that shift in culture and way of life.

The sense of true self and ownership eventually became crucial to humanity. Sexual activity and
having a progeny had nothing to do with parentage, as it was hard to ascertain the child’s
paternity due to lack of legislation. But the need for boundary arose, with changing times.
Ownership and possession became significant because it gave a sense of security.
After that, there was a need to ascertain the paternity which would require an exclusive relationship
between the man and woman. The men ‘s goal in society became to track down their seeds of life
and, consequently, created the need for marriage institutions.
Men and women then started living together, procreating and having their bloodline and instilling,
among many other values, not only ancestry but also a sense of responsibility and unity. Marriage
now plays an extremely vital part of the life of a person. The concept itself has become more
individualistic in modern times, but it upholds a sense of stability and companionship in life since its
inception.
It also instills the feeling of being. This marriage institution limits itself not only as an agreement
and contract between man and woman but also as a social institution for the couple to live in a
society with specific values and behaviour.

Definition of Marriage
Several scholars have defined marriage in their several distinct ways. These are the perspective of
some of these:

According to a sociologist named H.T Mazumdar “marriage is a socially sanctioned union for a

male and female to establish (a) household (b) sexual relations (c) procreation and (d) care of
offspring.”
George Andrew Lunderberg said it was to ensure that each party, the man and the woman,
should know their right and also their marriage duties and responsibilities. He treated the
marriage institution more like a means or method of providing man and wife with rules and
regulations.
In Shobha Rani v. Madhukar Reddi the Indian courts have defined marriage in which the need
for such an institution was more crucial as marriage also has its legal implications. It helps to
ascertain different aspects of conflicts and protect a child’s rights. Besides, a union also illustrates
cultural values and ideologies and also helps to safeguard it.
There is one commonality, according to various other scholars, where it is observed that marriage
failure and instability in the union could be causing financial stress. It could also be called one of
the major contributors to poverty, a hunger which ultimately leads to robbery.
 Marriage under Hindu Law
Hindu contains a very diverse range of people in it. It’s like a bigger umbrella with a wide range. It
is followed by millions of people but has no unique faith or deity. It encompasses a diversity of
followers. It is an Indian Personal Law. Where personal life matters and shortcomings can be
resolved through them. Hindu law in India includes wedlock, guardianship, divorce, maintenance,
and much more.

Hinduism isn’t like Islam or Christianity. It’s more of a way that one leads one ‘s life. Hinduism is
like cultural identity and not religion.
Despite technically being non-Hindus, all Sikhs, Jains and Buddhists are included under the
definition of Hindu under the 1955 Hindu Marriage Act. Section 1 of the Act signifies that all
Hindus in the Indian union, including Jammu and Kashmir, are subject to the application of this
Act. That will include those Hindus who not residing in India as well.
In India, the marriage concept explores a much fuller insight. It doesn’t just involve the idea of
marriage. But that is seen as a sacrosanct entity. It is an integral part of Hindu cultures and
traditions. It is a part of the Indian ‘Sanskaar.’ A matter of two families and individuals being
united in holy union.
Indus Civilization
The marriages between man and wife were matrilocal during the civilisation of the Indus Valley.
Meaning it was a matriarchal society where, after getting married, the man would live next to the
house of the women’s parents. Their off-springs would live there, too. A whole clan of female
descendants would thus be living together.
Cross-Culture
In the year 2011, there was a discovery where it was observed that there have been people who also
had marital relations during the Harappa Civilization. The people of Harappa provided the
Chalcolithic people with finished goods which is another modern civilization. Marriages existed
between two civilizations.
Polygamy and Polyandry
There is enough evidence to reflect that plural marriage or polygamy (how we know it in
common parlance), and polyandry relationships existed in those eras. A reflection of that can be
seen in the religious texts such as the Mahabharat where five Pandavas were married to
‘Draupadi. The principle was based on the idea that if the woman of the family or wife were
unable or unable to perform the religious rites and ceremonies, then the husband or man was
entitled to re-marry another woman.
However, with the passage time, this was also replaced. Polygamy and Polyandry practices lost
their significance and Monogamy came into force. Monogamy was given preference later since
the union of two people was now considered holy and spiritual in mature. Hence it became high
in virtue.
Roots of Patriarchal norms
This patriarchy found its roots from the Vedic period. Women were considered property during
this time and became men ‘s responsibility. Women have begun to lose their independence and
their rights as an independent individual have now been placed upon the shoulder of patriarchy.
Moreover, the men know where those who were thought capable of assuming responsibility
were.
Women were now either their father’s responsibility until marriage, and after marriage, they
became their husband’s responsibility.
Marriage Rituals
The rituals of the marriage were to be conducted and blessed by a Vedic priest. This holy
sacrament then wove the man and the woman in holy matrimony. After this, the family life of the
women and men would begin. Following which they have offspring for their for their family.
Thus, this is how society evolved from ancient times to the present scenario. It shifted from an
unregulated society to a modern society where monogamous marriages have prevalence.

The ceremony of the marriage itself is quite a long and tedious process. It includes several
cultures and traditions which are performed by both the families i.e., the grooms and the bride’s
family. This is a celebration in Hindu culture, which is shared with family , friends and
neighbours.
Core principles of Hindu’s life
1. A man who has renounced the world for taking up renunciation. This man should get married and
lead a family life. It is the Dharm meaning it is his responsibility to get married and live that life.

2. The man’s life has been divided into four stages. i.e. Bramhacharya, Grishasta, Vanaspratha,
Sannyasa. Out of all the stages, the Grishasta which means home and family includes the stage where
a man is expected to get married and live a family life. He is also supposed to do it as a matter of
dharma. The concept of marriage was first discovered in Smritis and Vedas.

3. If one is married under the Hindu tradition it is expected of the man and woman to lead their entire
life together and to be only devoted to each other. This also reflects the value that the marriage is not
just a contract but a sacred and holy union of two souls.
 4. Furthermore, it is also believed that marriage is supposed to last even afterlife and for the next
seven births of the couple. The concept of divorce is a modern tradition included in the Hindu
Marriage Act.

5. According to the Act, marriage can take place between two adults and the man should be the
age of 21 years old and the woman can be 18 years or above. The concept of child marriages has
prohibited and so is the concept of polygamy.

6. In Hindus, the woman is considered a holy and sacred whose role in the marriage is to take up
household chores and live a simple and decent life. Furthermore, she is expected to live her life
with her husband and his parents. And to enjoy the care and protection of her husband.
Caste System
The Hindu’s have been divided into many castes. Law of Manu includes for major categories:

1. Brahmins
2. Ksthariyas
3. Vaishayas
4. Shudras
Marriage is allowed within one’s caste and marriage in the caste system is usually not accepted. According to Manu,
to produce legitimate offsprings, a man should marry within the next lower caste itself. This caste system has been
prevailing since time immemorial and is still pretty relevant and adhered to by the Hindus in Modern India also.
Conclusion
With the passage of time and the changing society, the laws and rules within the Hindu culture
have witnessed several changes and evolution. From being nomadic to living a family life after
the union of two souls of marriage. The Hindu Marriage Act 1955 also includes provisions
related to divorce. Hence, the concept of non- dissolution does not hold any prevalence in current
times.

The marriage amongst the Hindu community is governed by two laws in India namely; Hindu
Marriage Act and Special Marriage Act under a circumstance where a Hindu marries a Non-
Hindu. These laws protect the interest and rights of the person and help them live a peaceful,
happy life.
 Concept of Marriage under Hindu
Law
Introduction
Hindu marriage harmonizes two individuals for ultimate eternity so that they can pursue dharma,
arth, and karma. It is a union of two individuals as spouses and is recognized by livable
continuity. In Hinduism, marriage is followed by traditional rituals for consummation.

As a part of the Hindu code bill, the Hindu Marriage Act was enacted by parliament in 1955 to
amend and to codify marriage law between Hindus and Became on 18th May 1955. It gives
meaning to marriage, cohabiting rights for both the bride and groom, and satisfy for their family
and children so that they do not suffer from their parental issues.
Hindu marriage refers to ‘kanyadan’, which means gifting a girl to the boy by the father with all
the tradition and rites or custom. Hindu marriage is an ancient tradition which is prevailing form
the Vedic period to the modern world with a different modification that has occurred until now.
There are 16 sacraments in the Shastra humanism in which marriage is one of the important rituals
of Hinduism.
It is not only considered as sacred, but it 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. At the same time, a man is also regarded as incomplete without a woman.
For a long period, 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 can’t be broken. It is a relationship from birth to birth, it is a bond which continues after rebirth
and death. According to Veda, a man is incomplete until he gets married and meets with his partner.

A. Who is a Hindu?
1. Hindu by Religion
The Medieval period of Hinduism lasted from 500 to 1500 AD. Hinduism is the oldest religion which
contains a wide range of tradition and culture which are followed by all the Hindus across the globe. Any
person who is a Hindu by religion or born in Hindu family with Hindu father or mother in any of
its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Semaj or any
person who is a Buddhist, Jain, or Sikh is also a Hindu by religion. Thus, any person except a follower of
Muslim, Christen, Parsi, or Jew religion is a Hindu.

2. Hindu by Birth
Any person born in a Hindu family or has a Hindu father or mother such a person is considered as a Hindu
by birth. Any person born in any community apart from Muslim, Christian, and Jews is also a Hindu. Any
child, legitimate or illegitimate if either of his parents is Hindu if he is brought up by the parent who is
Hindu shall be considered as Hindu by birth.

Mahatma Gandhi believed that the word “Hindus” didn’t originate from Vedas but when the Greeks
invaded India and started using the same for the country and people living beyond the Indus River. This
belief is well established by many historians and is widely accepted among the academicians.
B. Marriage as Sacrament
Marriage is one of the most important of all Samskaras under the Girah Sutras. Among the
Hindu, the marriage was considered as a sacrament. In Hinduism, the ultimate goal of human life
is to attain Moksha. Marriage was meant for doing a good deed and for the attainment of
Moksha. It was obligatory for every Hindu through which his well-conducted life progresses to
its appointed end.

In ancient times, there was no need for the girls’ 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.
Therefore, Religious sacrament in which a man and a woman are bound in a permanent
relationship for the physical, social, and spiritual purposes of dharma, procreation, and sexual
pleasure.” The Vedas hold marriage to be one of the important sacraments sanctifying the body.
That is why marriage is given great importance by the Hindus. It is said, a man who does not win
a wife is really half, and he is not the full man as long as he does not beget an offspring.

The Hindu Marriage Act a marriage of a minor or unsound person is voidable and not void. So,
although consent is necessary for the absence of consent, marriage becomes merely voidable and
party to the marriage can treat their marriage as a valid marriage. Hindu marriage is not purely a
contract.
Moreover, in the case of Tikait v. Basant, the court held that marriage under Hindu law was a
sacrament, an indissoluble union of flesh, bone which is to be continued even in the next world.

In the case of Shivonandh v. Bhagwanthumma, the court observed that the sacraments
marriage among Hindus has three main characteristics:
1. It is a permanent union.
2. It is an eternal union.
3. It is a holy or sacrosanct union.
C. Marriage as a Contract
A Hindu marriage cannot take place without the performance of sacred rites. But after the
enactment of the Hindu Marriage Act, 1955 Hindu marriage is no longer a sacrament but it is a
contract.

The nature of modern marriage is contractual. Thus, it accepts the idea of equality and liberty. It
has been adopted due to western Ideas. There must be an agreement of voluntarily entering into it
by both parties. Thus, the Hindu marriage is not a contract and neither is it a sacrament. But it
can be said it is a semblance of both.
The first fundamental of sacrament marriage has been affected by section 13 of the Hindu
Marriage Act, 1955 for Hindu marriage can be dissolved on certain specified grounds. And
the Widow Remarriage Act, 1856 also affected the sacramental marriage.

Section 5 and 12 of the Hindu Marriage Act, are the pertinent provisions to determine whether
Hindu marriage is sacrament or contract. Clause 2 of section 5 of the Hindu Marriage Act deals with
the mental capacity of the parties. It says that neither party to the marriage must be incapable of
giving a valid consent in consequence of unsoundness of mind. Further clause 3 of section 5
enumerates that the bridegroom has completed the age of twenty-one years and the bride, the age of
eighteen years at the time of the marriage.

Moreover, in the case of Bhagwati Seran Singh v. Parmeshwari Nandar Singh, the court held
that Hindu marriage is not only a sacrament but also a contract.
In the case of Anjona Dasi v. Ghose, Court observed that the marriage, whatever else it is,
sacrament and institution, is undoubtedly a contract entered into for consideration with
correlative rights and duties.

In most of the Hindu marriage, a religious ceremony is still the sine qua non. Viewed from side
one may conclude that Hindu marriage has not remained purely a sacrament and at the same
time, it has become complete a contract.
Conclusion
The concept of Hindu marriage is all about marriage as sacrament or contract. So, it can be
concluded that though Hindu marriage has some of the elements of a contract but it is not purely
a contract. It is more of a sacrament as Hindu marriage is a holy and eternal union of two bodies.
According to Manu, husband and wife are united to each other not merely in this life but even
after death, in the other world. The rule is that “once is a maiden given in marriage, a true wife
must preserve her chastity as much after as before her husband’s death”.
 Divorce and Theories of Divorce
Introduction
Prior to the Hindu Marriage Act, 1955 marriage was regarded as indissoluble union of husband and wife.
Manu has declared that a wife cannot be released from her husband either by sale or by abandonment,
implying that the marital tie cannot be severed in any way. Therefore, the ancient Hindu Law does not
recognise divorce.

The present Act i.e., has introduced vital and dynamic changes in the Hindu Law of Marriage and
divorce. It has laid down clear provisions regarding Divorce under certain circumstances.  Divorce is
laid down under sections 13, 13-B, 14 and 15 of the Act. Section 13 deals with the circumstances in
which the right to divorce accrues. Section 14 limits the right to obtain a divorce by laying down that
divorce petition may not be made within one year of the date of marriage except when the case is of
exceptional hardship to the petitioner or of
exceptional depravity on the part of the respondent. Section 15 lays down the limitations on the
right of divorced persons to marry again.
Theories of Divorce
1. Divorce at Will Theory.
2. Frustration of Marriage Theory.
3. Offence or Guilt or Fault Theory.
4. Mutual Consent Theory.
5. Irretrievable Breakdown Theory.
1. Divorce at Will Theory
This theory is not recognized under the Hindu Law. According to this theory one can divorce one’s
spouse anytime when that person wants to do so. This is a very well-known theory in Muslim Law

2. Frustration of Marriage Theory.

If the marriage is being frustrated without there being any marital offence where one of the spouses is
suffering from any physical ailment or mental unsoundness of mind, or changed his religion or has
renounced the world or has disappeared for a very long period. In such a case the other spouse should
be free to put an end to the marriage by getting divorce. The grounds mentioned in this theory has
been supported by the HINDU MARREAGE ACT, 1955 as the valid grounds of seeking divorce.
3. Offence or Guilt or Fault Theory
According to this theory, the spouse can seek the divorce from the other spouse if he or she is
found in fault of committing a matrimonial offence. The expression matrimonial offence,
includes (1) adultery (2) desertion (3) cruelty (4) Rape (5) sodomy (6) Bestiality (7) Refusal to
obey court’s order to pay maintenance to the wife (8) Marrying an underage person. This implies
that there should be personal injury to the marital relations of the spouses. This theory implies
that one party is guilty and the other is innocent. But if the aggrieved party condones the act of
the guilty party, no divorce can be granted.
According to the English Law of Doctrine of Recrimination, if both the parties independent of
one another have committed matrimonial offence the marriage should not be dissolved. The guilt
theory is criticized on the basis that it recognizes divorce only on certain (above mentioned)
grounds. Some more grounds are recognized which led to the renaming of guilt theory as fault
theory. The grounds like insanity and epilepsy are added to the list. Thus, if one of the parties has
some fault in him or her, marriage could be dissolved whether that fault is his or her deliberate or
unintentional act.

Further, the Marriage Laws (Amendment) Act, 1976 has made a radical amendment and grounds
of divorce are increased and some special grounds for divorce are given to the wife.
4. Mutual Consent Theory
Divorce by mutual consent means that the case is not like usual ones wherein one party petitions
against the other for divorce and the other party resists the same. Here both the parties make a
joint petition to the court for divorce between them. They genuinely desire to get rid of each
other and they part amicably for good. If divorce is not given their life would be spoiled and it
would result in moral degradation. If divorce by mutual consent is given the parties will not wash
their dirty linen in public.

There are unfounded objections against this type of divorce that consent of the unwilling party
would be obtained by force, fraud or some other contrivance, and this is a divorce by collusion.
But both these arguments and doubts are unfounded. Every Conclusion is no doubt by consent
but every consent does not mean collusion. Collusion is a secret agreement for a fraudulent
purpose, it is a secret agreement by two or more persons to obtain an unlawful
object. Collusion is different from compulsion. Compulsion occurs when one party can dominate
the will of the other.
The Hindu Marriage Act now permits divorce by mutual consent under Section 13B. One may
well say that from an unbreakable bondage under the Smritis, a Hindu Marriage has been
transferred under the Hindu Marriage Act into a consensual union between one man and one
woman. Everything static must drop and die and ideas of marriage and divorce are no exception.
5. Irretrievable Breakdown Theory
A marriage is a union of husband and wife for the whole life, but it may happen that their
relations might be strained and they would like to live away from each other. It is to be
remembered that owing to their sexual relations, interdependence and social censure it is difficult
for them to live without each other for a long time. Therefore there must be some stronger reason
for them to live apart and get divorce. There should be complete absence of emotional attachment
between them and there must develop intense hatred and acrimony between them, so much so,
that their marriage is only in name, a dead one or like a shell sans substance. It is now beyond the
hope of salvage. It is therefore an irretrievable breakdown of marriage.
The breakdown of marriage is defined as “such failure in the matrimonial relationship or circumstances
so adverse to that relation that no reasonable probability remains for the spouses to live together as
husband and wife.” If a marriage has broken down beyond all possibilities of repair, then it should be
brought to an end, without looking into the causes of breakdown and without fixing any responsibility
on either party. Such marriage should be dissolved, even if one of the parties to the marriage does not
desire it. The empty shell is to be destroyed with the maximum fairness and minimum bitterness,
distress and humiliation.

In Yousuf v. Sowramina, the learned judge said, “While there is no rose which has no thorns but if
what you hold is all thorn and no rose, better throw it away. The ground for divorce is not conjugal
guilt but breakdown of marriage.” In some countries grounds like “incompatibility of temperament”,
“profound and lasting disruption”, etc. have been added which helped in
claiming divorce under the breakdown theory. Sometimes the determination of the question whether in
fact a marriage has broken down or not is left to the courts. At other times, the legislature lays down the
criterion of breakdown of a marriage and if that is established, the courts have no option but to dissolve
the marriage.

The Law Commission of India in its Seventy first Report (Reforms of the Grounds for Divorce) has
said that it is good to give a de jure recognition to what exists de facto. It is not a relevant consideration
to for granting divorce on the ground of irretrievable breakdown as to which the party played the
villains role leading to such breakdown. Hence, section 23 (1) (a) will not apply to such a petition.

The Jorden Diengdeh case is the first case wherein the Supreme Court made recommendations to
make irretrievable breakdown of marriage as a ground for divorce. From this case upto Naveen
Kohli case, in a number of cases such recommendations was reiterated.
Therefore, granting of divorce under this theory totally depends upon the circumstances and the
relationship between the two spouses.
 Concept and forms of Marriage
The concept of marriage is to constitute relationship of husband and wife. According to ancient
Hindu law, marriage is the last of ten sacraments and is a sacred tie which can never be broken. It
is a relation established by birth to birth. According to Smritikars even death cannot break this
relation of husband and wife which is not only sacred and religious but is a holy union also.

The object of marriage was to enable a man and a woman perform religious duties and to beget
progeny. According to ancient writers a man was incomplete without a woman and a woman is
half of her husband (ardhangini) and completes him.
Every Hindu male or female had to marry. Where a person could not remain a perpetual student
or where he did not desire to be an ascetic (sanyasi), he was enjoined by the shastra to marry.
Marriage, therefore was as good as compulsory and more so in case of a female.
Marriage: Sacrament or Contract
Marriage being one of the essential Samskaras is sacramental in nature. The sacramental nature of marriage
has three characteristics:

1. It is a permanent union i.e. once tied cannot be untied.

2. It is an eternal union i.e. valid not only in this life but in lives to come.

3. It is a holy union i.e. performance of religious ceremonies is essential.

Since Hindu marriage was considered to be sacrament, the consent of the parties did not occupy any
important place. Thus the person married may be a minor or even of unsound mind, if the marriage is duly
solemnized there is valid marriage. Under the Contract Act, the contract of a
minor or of a person of unsound mind is void. Further, Section 12 of Hindu Marriage Act does lay down that a marriage is
voidable if consent is obtained by fraud or force, but it is not laid down that if one’s consent was not obtained the marriage is
voidable. This shows that despite the fact that a party is able to prove the absence of consenting mind, the marriage will
continue to remain valid.

The modern concept of marriage is contractual in nature. It receives the ideals of liberty and equality (free volition of
individuals). Today, it is an established notion of the west that marriage, to be effective, must be an agreement voluntarily
entered into by both parties.
In the light of modern concept of marriage could we say that Hindu marriage continues to be sacrament? By recognising the
divorce and widow remarriage the first two characteristics of sacramental marriage have been waived. However, the third
characteristic is still retained.
To sum up the Hindu marriage has not remained a sacrament and has also not become a contract, but it has a semblance of
both.
 Forms of Marriages
The ancient Hindu law recognised three forms of Shastric marriages as regular and valid. These
were Brahma (bride given gift by father), Gandharva (mutual agreement of bride and
bridegroom) and Asura (bride virtually sold by the father). The first and the third are arranged
marriage whereas the second one is love marriage.

Forms of marriages in modern Hindu law: The Hindu marriage Act, 1955, does not specially
provide for any forms of marriage. The Act calls marriage solemnized under the Act as Hindu
marriage which may be performed in accordance with shastric rites and ceremonies or in
accordance with the customary ceremonies prevalent in the community to which bride or
bridegroom belongs. However, it does not mean that a marriage cannot take any of the aforesaid
forms now. Marriage can still be entered into in anyone of the three forms.
Looking at from another aspect in Hindu society there are mainly two forms of
marriages: arranged marriages and love marriages. Most Hindu marriages are
still arranged marriages. An arranged marriage may be either in the form of
Brahma marriage or in the form of Asura marriage. Among the Sudras,
the Asura form of marriage is very common. Among the high-class Hindus, the
Brahma form of marriage is common. The Gandharva form of marriage is fast
becoming popular among the younger generation.
Ceremonies
Marriage among Hindus being a religious and sacred tie, performance of certain
ceremonies is still necessary for a valid marriage. There were three important
stages wherein certain ceremonies were to be performed. They were:
1. Betrothal: it is a formal promise to give the girl in marriage.

2. Kanyadan: It is actual giving away of the girl in marriage by her father.

3. Saptapadi: it consisted in performing a ceremony of taking seven steps before the sacred fire
by the bride and the groom. The performance of Saptapadi marked the completion of a marriage.
It made the marriage irrevocable.

As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the

ceremonies of marriage, its non-performance will invalidate the marriage. The performance of
vedic rights is not enough to solemnise the marriage.
Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi.
It may be totally non-religious ceremony or it may be very simple ceremony. For instance,
among santhals smearing of vermilion by bridegroom on the forehead of the bride is the only
essential ceremony.
Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the bride or
bridegroom, must be performed otherwise marriage will not be valid. No one can innovate new
ceremonies and a marriage performed with the innovated ceremonies and rites is invalid. Hindu
Marriage Act allows inter-caste marriages. But marriage between a Hindu and a Non-Hindu is
not permissible under Hindu Marriage Act and such a marriage if performed in India, will be
invalid. But foreign country such marriage is valid in India, if performed under the Special
Marriage Act, 1954.
 Conditions for the validity of
Marriage
( Sections 3 and 5)
A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled,
namely:–
1. Neither party has a spouse living at the time of the marriage;
2. At the time of the marriage, neither party:
a. Is incapable of giving a valid consent to in consequences 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 or epilepsy.
3. The bridegroom has completed the age of twenty one (21) years and the bride the age of eighteen
years at the time of marriage.
4. 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;

5. The parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two.
 Essential Conditions of Valid Hindu
Marriage
Introduction
Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both
the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other
a non Hindu or both are Non Hindus, the marriage will not be a subject matter of this Act but will
relate to some other law i.e. Special Marriage Act etc. The essential conditions of valid Marriage
are given and discussed below.

Section 5
Clause (i) – Condition of monogamy
This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither
party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If the
spouse is alive at the time of marriage that could bar the remarriage of a person. However,
one must note that the first marriage of a person should be a legally valid marriage. In spite of
one’s valid marriage if the person remarries in violation of Section 5(i), the second marriage will
be null and void and he will be subjected to penal consequences. The Scheduled Tribes are
exempted from the application of the Act. But there must be a proved custom to this effect.
Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and
Section 17 makes it a penal offence for both Hindu males and females under Section 494 and 495
of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are
performed. The second marriage cannot be taken to be proved by the mere admission of the
parties; essential ceremonies and rites must be proved to have taken place. In the case of a
bigamous marriage, the “second wife” has no status of wife.
Clause (ii) – Condition regarding mental health or capacity

Sub clause (a) requires that at the time of marriage neither party is incapable of giving a valid
consent to marriage due to unsoundness of mind.

Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither
party to marriage should be suffering from a mental disorder of such nature and to such a degree
as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan Singh v.
Jit Kaur, the court held the marriage void on the ground that wife was suffering from
schizophrenia within short period after marriage and the disease was not disclosed to the husband
before marriage.
Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of
insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even during
a lucid period.

Post marriage mental illness: If a party to a marriage is not suffering from any mental defect described
under section 5(ii) but falls ill mentally after the marriage, there is no violation of this condition.

Clause (iii) – Condition of marriageable age

According to this clause, at the time of marriage the bride must have completed the age of 18 years
and the bridegroom of 21 years. Thus a child marriage is prohibited under The Hindu Marriage Act.
However, violation of this condition does not make the marriage void or voidable.
It means that it is valid though it may attract penalties. But it can become a valid ground for
repudiation of the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act
provide for punishment for such marriage.

According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or
herself in contravention of Section 5(iii) may be punished with rigorous imprisonment of 2 years
and with a fine upto Rs. 100000 or with both. Under the Child Marriage Restraint Act, 1929, a
male above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months
imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978 has
also raised the age of marriage of girl to eighteen.

Clause (iv) – Avoidance of degrees of prohibited relationship

The parties to the marriage must not fall within the degree of prohibited relationship. This
relationship is defined under Section 3(g) of the Act. According to Section 3(g) “degree of
prohibited relationship” means when two persons are related to each other in any of the following
manners:

1. By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the Sapinda
relationship which extends up to fifth degree in the line of father and third degree in the line of
the mother. The distinction of this category is that it extends even beyond the Sapinda
ascendants.

2. By affinity: If one is the husband or wife of the lineal ascendants or descendants of the other.
For example, father-in-law and daughter-in-law, mother-in-law and son-in-law, step mother and
step son or step-father and step daughter are thus within the degrees of prohibited relationship.
According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is
void. It is also punishable under section 18(b) of the Act.

1. ‘A’ marries his adopted sister. This is not a valid marriage, as it falls within the degrees of
Prohibited relationship.

2. ‘A’ marries with the wife of Pre-deceased brother. It is not a valid marriage as it falls within
the degree of Prohibited relationship.

3. ‘A’ marries his stepmother’s sister. It is not a valid marriage, ‘A’ is related to his step-mother
by half-blood relationship.
Clause (v) – Avoidance of sapinda relationship

According to the Dharmashastra the Sapinda relationship is very important in the matter of
marriage. According to Mitakshara Law of Marriage ‘Pinda’ means body and therefore those
who are related by body or blood or consanguinity are sapindas among themselves. The Hindu
Marriage Act has adopted Mitakshara definition but has limited the extent of Sapinda relationship
to 5 degrees in line of ascent through the father and 3 degrees in the line of ascent through the
mother.

According to Section 3(f)(ii) two persons are said to be “sapindas” of each other if one is a lineal
ascendant of the other within the limits of sapindas relationship, or if they have a common lineal
ascendant to each of them.
Whereas Section 3(f)(i) states that “sapinda relationship” with reference to any person extends as far
as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive)
in the line of ascent through the father, the line being traced upwards in each case from the person
concerned, who is to be counted as the first generation. Punishable under Section 18(b) of the Act.

Rules for determining Sapinda relations:

1. The relationship extends as far as the third generation in the line of ascent through the mother in
case of both the parties.

2. The relationship extends as far as the fifth generation in the line of ascent through the father in
case of both the parties.
3. Sapinda relationship may submit in case of both the parties through the father or in case of
both through the mother; or it may subsist in case of one of them through the father and on case
of the other through the mother.

4. The line is traced upwards in case of both the parties counting each of them as the first
generation; the generations in the line of ascent whether three or five are to be counted inclusive
of the persons concerned and the common ancestor or ancestress.

5. Sapinda relationship includes relationship by half or uterine blood as well as by full blood and
by adoption. It also includes both, legitimate and illegitimate blood relationship.
 Registration of marriage
Introduction
Section 8(1) of Hindu Marriage Act provides that for the purpose of facilitating the proof of Hindu
marriages, the state government may make rules providing that the parties to any such marriage may
have the particulars relating to their marriage entered on such marriage may have the particulars
relating to their marriage entered on such manner and subject to such conditions, as may be prescribed
in a Hindi Marriage Register kept for the purpose. (Registration)

Registration when necessary

Section 8(2) of the Act provides that 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 above, shall be compulsory in
the state or in any part thereof, whether in all cases, or in such cases as may be specified.
There was no requirement for the registration of Hindu marriages before the Hindu marriage Act,
1955. Generally, Hindus do not get their marriages registered unlike Adoption, Will Transfer of
Property and Partition. The Act does not contain the rules of registration and the State
Government have been authorised to frame them.

The purpose of registration is only to furnish a convenient evidence of marriage Clause (4)
provides that Hindu Marriage Registers will be admitted as evidence.Besides the evidentiary
value, the national commission for women has pointed that registration of marriage has critical
importance to various women related issues, such as:–

1. Prevention of child marriage.

2. Prevention of marriage without consent of the parties.
3. Prevention of illegal bigamy or polygamy.
4. Enabling married women to claim their right to live in the matrimonial home, maintenance, etc.
5. Enabling the widows to claim various rights after the death of their husbands.
6. Deterring men from deserting their wives after marriage.
7. Deterring the sale of girl under the garb of marriage.

It is explicitly laid down in this Act that non registration does not affect the validity of marriage.
Thus marriage can be valid without registration.

In Seema v. Ashwini Kumar, the Supreme Court has dealt at length on the topic of registration of
marriages. It suggested for the compulsory registration of marriages in all the states.
 Nullity of Marriage under Hindu Law
Introduction
Marriage in all religions is termed as the holiest union; therefore cessation of such a sacred
relationship is a very delicate matter. Today’s society is evolving as the environment, and the
interpretation of various subjects is changing over a while.

For instance, Marriage now no longer considered as an ever-lasting union. It made it convenient
for the Husband and wife to discuss their internal issues more comfortably. This evolution from
an everlasting bond to one the cessation of which is now not considered to be a sin results in the
introduction of laws related to the annulment of marriage, Judicial separation, and divorce, etc.
Nullity of Marriage
Nullity of marriage is also called as Annulment of Marriage in legal parlance. It refers to it declaring
a marriage void/voidable. In other words In Hindu law, Annulment arises when marriage performed is
not valid on different grounds mentioned in The Hindu Marriage Act, 1955 under section 5.

Section 5 of the Hindu Marriage Act, 1955 states essential conditions of the valid Hindu marriage and
the question of void and voidable marriages arises from this section only:

Conditions for a Hindu Marriage

1. There should be Monogamy.

2. Marriage should not be with a person who is within prohibited degrees of relationship.
3. Marriage should no be with a person who is within Sapinda relationship.
4. Both spouses should be sane and should have the ability to understand the nature of Hindu
marriage.
5. Age of the bride above 18years of age and groom above 21 years of age.

The first three conditions talk about the grounds on which the Hindu marriage can be declared as
void and the rest of the conditions if not fulfilled such Hindu marriage can be declared as
Voidable at the option of the other party.

Various Grounds for Nullification of the Hindu Marriage

1. Bigamy or spouse either wife or husband is married hitherto at the moment of marriage.
2. The mental inability of the wife or Husband.
3. Consent obtained by Fraud
4. Consent obtained by force
6. Impotent man or women
7. If married to a kinsman
8. Pregnancy of the wife at the moment of Marriage
 Void Marriage
Section 11 of the Hindu Marriage Act,1955 states void marriage:

Nullity of marriage and divorce – Void marriages.

As per section 11 of this act Hindu marriage can be declared as void:

1. In the case of Bigamy i.e married so far at the time of marriage.

2. Prohibited degrees of Relationship

3. Sapindas of the couple

It must be noted that marriage is prohibited degrees of relationship and Sapindas of the spouse is
Void until and unless it is permitted by the tradition of both wife and husband. Marriage in
relation to the above-mentioned ground is void ab initio i.e from the vary beginning and there is
no need for any court decree.

Bigamy as a ground of declaring Hindu marriage void- if either wife or the Husband is
legitimately married to any other person at the moment of marriage then according to section 11
of the Hindu marriage act,1955 the marriage is to declare as void and formal decree by the court
is not necessary in this case.

In M.M. Malhotra v. Union of India, the court held that if a married male performs another
marriage then it is to be declared as void and it cannot be termed as ‘  Plural Marriage’.
In Surjeet Kaur v. Jhujhav Singh, the court held that if the couple was separated judicially and one
of the spouses enter into another marriage then such marriage will be declared as void.

Prohibited Degree of relationship: it is defined under section 3(g) of the Hindu Marriage Act,1955.
According to it, Hindus cannot perform marriage with:

1. lineal ascendants from fathers side up to fifth-degree and from mothers’ side up to 3 degrees.
2. Spouse of the lineal ascendants or descendants.
3. Bride of some kinsmen. For instance, brother, mother’s brother, etc.

4. Kins like a brother, sister, children of brother and sister, etc.

Lineal ascendant or descendant refers to any person who is in direct relation with father, mother, grandfather,
and all.

In Shakuntala Devi v. Amar Nath, Punjab and Haryana High court held in this case that marriage under a
prohibited degree of relationship can be valid if there is evidence of accepted tradition which should be old
enough to be termed as custom.

In Balusami Reddiar v. Balakrishna Reddiar, the court held that the tradition or the ritual of marriage under
prohibited degree should not be against the ethics and public policy.

As per section 17 of the act, any person who commits Bigamy should be punished as per section 494 and 495
of the Indian Penal Code.
Sapinda relationship as a ground of declaring Hindu marriage Void:

In accordance with Mitakakshara, the word PINDA refers to the body, and persons related by
blood or being descended from the same ancestor are known to be Sapindas of each other.

According to section 3(f) of the Hindu Marriage Act, 1955- Sapinda relationship establishes
when one is known to be a lineal ascendant of the other in Hindu marriage or both of the persons
having mutual lineal ascendant and lineal ascendants from fathers’ side up to fifth-degree and
from mothers side up to 3 degrees.

Such relations are termed as sapinda and marriage under such relations is void as per section 11
of the act.
In Sudarsan Narkar v. Amina Mandal, the court held that to determine which is sapinda
relation Hindu marriage act,1955 should be referred to no other text is to be considered to be
valid.

In Harihar Prasad v. Balmiki Prasad, the court held that the marriage of two sapindas can be
valid if the same is proofed to a tradition of both the parties. Otherwise marriage of two sapinda
is punishable as per section 18(b) of the act with incarceration up to 1 month or fine or both.
 Voidable Marriage
Section 12 of the act deals with Voidable marriage,

According to this section Hindu marriage can be declared as voidable due to:

1. Impotency of the partner

2. Consent obtained by force or fraud

3. Mentally unstable

4. Pregnancy of the wife by any other person at the moment of marriage

The aggrieved party, in this case, may go to court and file a plaint to declare the marriage null
and void.

Impotency- the inability of having sexual intercourse is one of the grounds for declaring the
Hindu marriage void at the option of the aggrieved party. However incomplete physical relation
only sometimes cannot be declared as Impotency. If such inability can be cured through proper
medical treatment than also it cannot be called impotency.
Mental instability- when a husband or wife is incapable of understanding the essence of
marriage then such marriage is said to be voidable at the option of the other spouse. In Pronab v.
Krishna, the Court held that Schizophrenia (a form of lunacy) can be a base for declaring a
marriage null and void. Any person who can not recognize the responsibilities of marriage is also
not allowed to marry.
Consent obtained by force or fraud- Where consent of the petitioner or guardian was required under
section 5, and if such consent is obtained by force or fraud. Such marriage is voidable under section
12.
However, no petition for annulment on this ground shall be entertained by the Court-
1. if the petition is presented one year after the force has ceased to operate or fraud discovered.
2. the petitioner has with full consent lived with the other spouse after the force has ceased to operate
or fraud discovered.
Pregnancy of the wife by any other person at the moment of marriage- this is ground on which
the party can treat the marriage voidable under section 12.
However, no petition on this ground shall be entertained by the court unless-
1. The petitioner was ignorant about the alleged ground at the time of marriage.
2. For the cases prior to the commencement of this Act, the petition has been filed within one
year after the commencement of this Act.
3. For cases after the commencement of this Act the petition has been filed within one year of
commencement of marriage.
4. No marital intercourse with consent of petitioner as taken pace between the parties after the
discovery of the fact.
III. Child Marriage: Void or voidable

In India legal age of marriage for Boy is 21 years and for Girls is 18 years. But according to the
Hindu marriage Act Child marriage is valid. In P.V Venkataramana v. State of AP, the court
held that it can be termed as void or voidable, the above-mentioned Act provides rigorous
Imprisonment of 2 years and a fine of 1 lakh or both for Child marriage but does not declare it
as void. Although Child marriage is void in the Special Marriage Act,1954.

Status of Child born under Annulment of Marriage:

Section 16 of the Hindu Marriage Act, 1955 stated the Legitimacy of Children born out of Void
and Voidable Marriage.
According to this section,

1. If the marriage is void as per section 11 of this Act, the children born from such marriage are
considered legitimate children.
2. If the marriage is voidable under section 12 of this Act, Children born from such marriage are
legitimate Children
3. And, such Children have the rights on the property of parents only but are excluded from the
property of other kins.

It must be noted that any child born in voidable marriage after the judgment of the court then such child
will be regarded as licit. In Laxmibai v. Limbabai, the court held that as per section 16 of the Hindu
Marriage Act, 1955 Child born in void marriage is licit therefore such a child is authorized to acquire
the property of the father after his death.
Rights of  Legitimate Child:
1. Children born in a void or voidable marriage should be treated equally as the other legitimate
children.

2. Such a child has the right to get an equal share in the estate of his/her parents only.

Exception
In Gowri Ammal v. Thulasi Ammal, it was held that if one of the partners died then the decree
of annulment cannot be obtained therefore child born out of such marriage cannot claim any
benefit under section 16.
There this section cannot be recognized as the full protection of child born from the void and
voidable marriage i.e this right is not absolute.
Conclusion
In old times, Marriage was considered to be as one of the most sacred and holy unions of two
persons which will be continued even after death, but nowadays as society is changing the
marriage is no longer considered as an everlasting union and therefore laws are made to
terminate the marriage, termination of marriage under Hindus is governed by the Hindu
Marriage Act, 1955 in which section 11 states the grounds for recognizing Hindu marriage as
void like Bigamy, Sapindas, marriage under a prohibited degree of relationship.
Section 12 defines voidable marriage grounds like consent obtained by fraud, force, impotency
of the partner, etc. Annulment of marriage completely erases the existence of the marriage from
the point of time when the decree of nullity is passed.
The Legitimacy of the Child born in such marriage under section 16 of the Hindu Marriage Act,
1955 as per this act Child born under such marriage is licit and according to judicial precedents
child should be equally treated as a child of a valid marriage, He/she is entitled to the estate of
his/her parents. But it should be noted that section 16 is ambiguous in its meaning and
government should protect children born out of such marriage not partially but fully and the law
should be made more broad and liberal.
 DIVORCE UNDER SECTION 13 OF THE ACT
Divorce was unknown to the laws of Dharamshastras as marriage was regarded as indissoluble union of the
husband and wife. Manu does not approve of dissolution of marriage in any conditions. He declared, “Let
the mutual fidelity continue till the death, this in brief may be understood to be the highest dharma of
husband and wife. The duty of a wife continues even after her husband’s death. She can never have a
second husband.” The majority of the ancient jurists expressed their disapproval of the divorce. It was only
in the unapproved forms of marriage where they favoured divorce, that too in the extreme cases of distress.

The provisions of Divorce in the existing Marriage law i.e., the Hindu Marriage Act, 1955 has brought
about a radical change in the legal concept of Hindu Marriage. Section 13 of the Act describes the
circumstances which extend the right of divorce. Section 14 renders the provisions of divorce a bit difficult
as it provides that no petition for divorce can be presented within one year of the marriage unless it causes
exceptional depravity on the part of the Respondent. Section 15 lays down the limitations on the right of
the divorced persons to marry again.
 Grounds of Divorce
1. Adultery
Adultery is an extramarital sex. It is a consensual sexual intercourse between a married person and a
person of the opposite sex not being the other spouse, during the subsistence of the former’s marriage.

While adultery may not have been recognized as a criminal offence in all countries, the matrimonial
offence of adultery or the fault ground of adultery is recognized in most. Even under
the Shastric Hindu law, where divorce had not been recognized, adultery was condemned in the most
unequivocal terms.
Though initially a divorce could be granted only if such spouse was living in adultery, by the
Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that it
considers even the single act of adultery enough for the decree of divorce.
Since adultery is an offence against marriage, it is necessary to establish that at the time of the act
of adultery the marriage was subsisting. Also, it follows that unless one willingly consents to the
act, there can be no adultery. If the wife can establish that the co-respondent raped her, then the
husband would not be entitled to divorce.

In Swapna Ghose v. Sadanand Ghose the wife found her husband and the adulteress to be lying
in the same bed at night and further evidence of the neighbours that the husband was living with
the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is that
direct proof of adultery is very rare.

The offence of adultery may be proved by:

1. Circumstantial evidence.
2. Contracting venereal disease.
2. Cruelty
The concept of cruelty is a changing concept. The modern concept of cruelty includes both mental
and physical cruelty. Acts of cruelty are behavioural manifestations stimulated by different factors
in the life of spouses, and their surroundings and therefore; each case has to be decided on the
basis of its own set of facts. While physical cruelty is easy to determine, it is difficult to say what
consists of mental cruelty. Perhaps, mental cruelty is lack of such conjugal kindness, which
inflicts pain of such a degree and duration that it adversely affects the health, mental or bodily, of
the spouse on whom it is inflicted. In Pravin Mehta v. Inderjeet Mehta,  the court has defined
mental cruelty as ‘the state of mind.’

Some Instances of Cruelty are as follows –

False accusation of adultery of unchastity
•Demand for dowry
•Refusal to have marital intercourse
•Impotency
•Drunkenness
•Incompatibility of temperament
•Irretrievable breakdown of marriiage,.
The following do not amount to cruelty-
• ordinary wear and tear of married life
•Wife’s refusal to resign from job
•Desertion per se
•Outbursts of temper without rancour.
3. Desertion
Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment
of one spouse by the other without any reasonable cause and without the consent of the other. It means a total repudiation
of marital obligation.
The following 5 conditions must be present to constitute a desertion; they must co-exist to present a ground for divorce:
• the factum of separation
•Animus deserdendi ( intention to desert)
•Desertion without any reasonable clause
•Desertion without consent of party
• Statutory period of two years must have run out before a petition is presented.
Types
1. Actual desertion
2.Constructive desertion
Actual desertion
It mainly requires the intention of desertion without any reasonable cause and the situation when
one party leaves the matrimonial home permanently without the consent of the other partner. This
situation should be continued for two years and then it became the ground of the divorce. This is
also called as physical separation and Animus Desertion. In the case of Gur Bachan Kaur v.
Preetam Singh, the court held that the desertion shall not be done by the consent as desertion
requires the guilt by one of the parties and desertion by the consent isn’t considered as desertion.
Constructive desertion
Desertion is not always the abandonment of place, sometimes it is an abandonment of situation
and it is known as constructive desertion.  It can also be said as that desertion means not
abandoning the place, rather it is ignoring the matrimonial obligations while living under the same
roof. In the case of Jyotish Chandra Guha v. Meera Guha, it was held that when one partner
behaves in such a manner that it becomes difficult for the other partner to live under the same roof
or is compelled to leave the matrimonial home. Then it will be considered as desertion by the first
party.
In the case of Bhargav Kumar Pranshankar Shukla v. Chhayaben Bhargavkumar Shukla,
Gujarat High Court held that the desertion under the Hindu law is said as the withdrawal of a
party from marital home does not itself constitute desertion by that party but it is the party by
whose conduct cohabitation comes to an end is guilty of desertion.
Situation when desertion may terminate
1. The resumption of marital life
2. Resume cohabitation, or
3. Express the willingness to go to matrimonial home
Desertion is not a single act for the divorce but it is a continuous act or conduct and it is to be
determined by the court from facts and circumstances of each case.

In Bipinchandra v. Prabhavati,  the Supreme Court held that where the respondent leaves the
matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently
he shows an inclination to return & is prevented from doing so by the petitioner.
4. Conversion
When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam,
Christianity, Judaism, Zorostrianism, a divorce can be granted.

5. Insanity
Insanity as a ground of divorce has the following two requirements-
1. The respondent has been incurably of unsound mind
2. The respondent has been suffering continuously or intermittently from mental disorder of such
a kind and to such an extent that the petitioner cannot reasonably be expected to live with the
respondent.
6. Leprosy ( Leprosy not a ground anymore)

Contagiousness of leprosy and repulsive outward manifestations are responsible for creating a psychology where
man not only shuns the company of lepers but looks at them scornfully. Thus, it is provided as a ground for
divorce. The onus of proving this is on the petitioner.
7. Venereal Diseases
At present, it is a ground for divorce if it is communicable by nature­irrespective of the period for which the
respondent has suffered from it. The ground is made out if it is shown that the disease is in communicable form &
it is not necessary that it should have been communicated to the petitioner (even if done innocently).

8. Renunciation
“Renunciation of the world” is a ground for divorce only under Hindu law, as renunciation of the world is a typical
Hindu notion. Modern codified Hindu law lays down that a spouse may seek divorce if the other party has
renounced the world and has entered a holy order. A person who does this
is considered as civilly dead. Such renunciation by entering into a religious order must be unequivocal & absolute.

8. Presumption of Death
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at
least seven years. The burden of proof that the whereabouts of the respondent are not known for the requisite
period is on the petitioner under all the matrimonial laws. This is a presumption of universal acceptance as it aids
proof in cases where it would be extremely difficult if not impossible to prove that fact. A decree of divorce
granted under this clause is valid & effective even if it subsequently transpires that the respondent was in fact alive
at the time when the decree was passed.

9. Wife’s Special Grounds for Divorce

Besides the grounds enumerated above, a wife has been provided four additional grounds of divorce under Section
13(2) of the Hindu Marriage Act, 1955. These are as follows-
Pre-Act Polygamous Marriage

This clause states the ground for divorce as, “That the husband has another wife from before the
commencement of the Act, alive at the time of the solemnization of the marriage of the petitioner.
For example, the case of Venkatame v. Patil, where a man had two wives, one of whom sued for
divorce, and while the petition was pending, he divorced the second wife. He then averred that
since he was left only with one wife, and the petition should be dismissed. The Court rejected the
plea.

Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife)
should be present at the time of filing of the petition.
Rape, Sodomy or Bestiality

Under this clause, a divorce petition can be presented if the husband has, since the solemnization of the marriage, been guilty
of rape, sodomy or bestiality.

Non-Resumption of Cohabitation after a Decree/Order of Maintenance

If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973 or a decree under Section 18,
Hindu Adoption & Maintenance Act, 1956 & cohabitation has not been resumed between parties after one year or upwards,
then this is a valid ground for suing for divorce.
Repudiation of marriage
This provision provides a ground for divorce to the wife when the marriage was solemnized before she attained the age of
fifteen years, and she has repudiated the marriage, but before the age of eighteen. Such repudiation may be express (written
or spoken words) or may be implied from the conduct of the wife ( left husband and refused to come back). Moreover, this
right ( added by 1976
Amendment) has only a retrospective effect i.e. it can be invoked irrespective of the fact that the marriage
was solemnized before or after such amendment.

13B. Divorce by mutual consent. (1)Subject to the provisions of this Act a petition for dissolution of
marriage by a decree of divorce may be presented to the district court by both the parties to a marriage
together, whether such marriage was solemnized before or after the commencement of the Marriage
Laws (Amendment) Act, 1976, (68 of 1976.) on the ground that they have been living separately for a
period of one year or more, that they have not been able to live together and that thy have mutually
agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation
of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the
petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties
and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments
in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from
the date of the decree.
I13A. Alternate relief in divorce proceedings
In any proceeding under this Act, on a petition for dissolution of marriage by a decree of
divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi)
and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having
regard to the circumstances of the case, pass instead a decree for judicial separation.
 JUDICIAL SEPARATION
Introduction
In Hindu culture and religion, Marriage is termed as the most sacred union of man and woman. There are certain
responsibilities and obligations of the parties in marriage towards each other and one out of these is cohabitation.
Hindu marriage is recognized as the ever-lasting bond which is imperishable even after death.
In accordance with prehistoric texts of Hindu religion, a male is considered to be half of his own before marriage
and needs a woman to become a complete man, same is the case with females she is also not complete and both will
attain their totality when they will get married.

But in today’s world, individuals have been given many rights, and therefore if an individual is unable to live with
the person with whom he got married without any valid reason, then in law, such an individual may apply for
judicial separation.
In Hindus, Marriage is governed by the Hindu marriage act,1955, and judicial separation is mentioned in section 10
of the above-mentioned Act.
Concept of Judicial Separation
Marriage is a very essential part of the Hindu religion, therefore it cannot be terminated very easily
because of this reason the Indian judicial system does not allow Divorce at the beginning when the
party to the Hindu marriage approach the court for the termination of the marriage.

Court grants first, the legal remedy, known as Judicial separation. So that parties of marriage can self-
analyses that whether the problems are resolvable or not. It is a substitute for the Divorce in which the
spouse is given time for reconsideration.

In Judicial Separation, the marriage is not terminated and the husband and wife are still considered to
be married. Judicial Separation means the order of a court directing the spouses to not perform conjugal
rights for the specified period without the termination of a marriage. It is adapted from the British
theory of  “Mensa et thoro”.
As per the 1976 amendment, in Hindu Marriage Act,1955, the grounds on which the order of
judicial separation is to be passed are the same as the grounds of divorce. The concept of Judicial
separation was first introduced in the Special Marriage Act, then in the Hindu Marriage Act.
If any party approaches the court for Divorce, the court will order a decree of judicial separation
for the self-analysis, in which the parties to the marriage are not obligated to perform conjugal
duties of the marriage and after the specified time, if the problem persists between the couple
then the court will order Divorce resulting in termination of the Marriage. Divorce is mentioned
in the Hindu marriage act,1955 under section 13 for Hindu marriages.

As per Section 10 of the Act, the aggrieved party in Hindu Marriage can file a plea in the District
Court if the below-mentioned essentials have adhered:
• A couple got married according to Hindu marriage ceremonies and rites and does not violate any
condition specified in the Hindu Marriage Act.
• A person against whom the petition has been filed should be in the Jurisdiction of the court in which
such case is registered.
• Spouses should have performed conjugal rights for a specified period prior to filing the case under
judicial separation.

Grounds of Judicial Separation

Any spouse in Hindu marriage can file a plea for Judicial separation under the grounds on which
divorce can be granted under Section 13 of the act while the judicial separation is granted under
Section 10 of the act.
1. Adultery
It is mentioned in Section 13(1)(i) of the Hindu Marriage Act. It means if any of the spouses after his/her
marriage have physical relation with any other person with his/her free will then, in this case, the other party
may file the plea of Judicial Separation or Divorce under this act. It must be noted that the wife can file such
a petition in the court if her husband commits rape, buggery, intercourse with an animal. If further such acts
have been proved to be done then, the wife can also go for divorce with her husband.
In Hirachand Srinivas Managaonkar v. Sunanda, the Supreme Court said that the Adultery of any of the
spouse if determined with evidence, then the court shall pass the order of judicial separation and the petitioner
can apply for a divorce on the same ground.

In Revathi v. Union of India and Ors, Court held that if any of the spouses commits adultery then the other
spouse cannot put criminal charges for the same but can only file for the order of Judicial separation and
divorce. It was mentioned that it is not permissible under the court of law to charge the husband or wife for
the wrongdoing act like adultery under Section 497 of IPC which is now repealed.
2. Cruelty
It is one of the grounds for conjugal relief. Cruelty means where the respondent is not dealing with the
petitioner in a decent manner but in a cruel manner which is specified under Section 13(1)(i-a) of the
act. Cruelty can be physical or of mental pressure by the respondent on the petitioner.
It must be noted that the Hindu Marriage Act does not define cruelty but in other personal laws like
Muslim law, it is defined clearly and through which wife can take divorce or file for judicial separation
from her husband. Cruelty is also defined under Section 498-A of the Indian Penal Code which is
gender-biased and inclined towards women.

In Shyamsundar v. Santadevi, the petitioner was the wife who was severely injured by the kins of the
husband. Despite this, the husband had not done anything to safeguard his spouse, therefore, the court
held that this amounts to cruelty and sufficient ground for the Judicial Separation.
3. Desertion
It is defined under Section 13(1)(i-b), in which it is stated that if one spouse is separated from the
other spouse without any rational purpose i.e not cohabiting, the aggrieved party can file a plea
for judicial separation if the same was in continuance for not less than 2 years.
It must be noted that if the respondent is showing irresponsible behaviour towards the petitioner
and if the court is satisfied, then it will also amount to desertion.

In Rohini Kumari v. Narendra Singh, the respondent deserted her wife and the wife filed the
plea of Judicial Separation. The Hon’ble Supreme court declared that the wife of the respondent
along with the judicial separation will also be allowed to claim maintenance under the Hindu
Marriage Act and Special Marriage Act.
In Guru Bachan Kaur v. Preetam Singh, the wife and husband were living separately for 7 years and the
husband applied for divorce. The wife contended that the husband is irresponsible towards her and she
wants him to understand the trouble between them. She was not in favour of divorce. Court declared that
there is nothing like ‘collaborative desertion’, one party should be liable.

4. Conversion and Renunciation

Section 13(1)(ii) states another ground on which a Judicial Separation plea can be filed. It provides that if
any spouse in Hindu marriage changes its religion from Hindu to any other religion then, another spouse
can file the petition for Judicial Separation. It must be noted that if a person becomes a hermit then also the
spouse can claim judicial separation or divorce.

In Madhukar Bhaskar v. Saral, the court declared that if the person becomes Hermit and is not fulfilling
his/her conjugal duties, but stays with the spouse, the other party of the Hindu marriage can file a plea for
the order
of Judicial Separation.
5. Leprosy and Venereal Disease ( Leprosy not a ground anymore)
In the Hindu marriage Act,1955 it is mentioned that if any person in Hindu marriage is having a
disease like Leprosy then under Section 13(1)(iv), other spouse can file for either divorce or
Judicial separation. Along with this if the spouse is having an untreatable illness then the other
spouse can file a plea for either Divorce or Judicial Separation under Section 13(1)(v).

In Ratna Manjari Das v. Dr Bhaskar Chandra Das, Hon’ble High Court of Odisha held if the
spouse is filing for judicial separation or Divorce under the ground that the other spouse has a
venereal illness, it must be proved that such illness is communicable and untreatable.
In M. Jasmine Devapriya v. A. Stephen Dhanraj, Hon’ble High Court of Madras held that if
the respondent has leprosy then it must be proved that such illness is not curable and it is
unfeasible for the respondent and execute conjugal duties.
6. Insanity
If any person in Hindu marriage, husband or wife is combating with mental illness which poses
danger for the other person in marriage due to his/her acts or behaviour, then the hurt person can
apply for Judicial Separation or Divorce on the ground of insanity under Section 13(1)(iII).
In  Anima Roy v. Prabadh Mohan Ray,  the husband and wife got married under the Hindu law
and prior to two months, the respondent started showing symptoms of illness which is the sign of
a rare disease and the doctor was unable to find the period in which it was developed. Court
declared that it was not ascertained at the moment of marriage.
 000.
7. Presumed Death
Under Section 13(1)(vii), it was given that if any spouse of Hindu Marriage is missing for 7 years and even
his/her kinsmen do not know about him/her then such person in the eyes of law will be presumed to be dead
and it is one of the ground for Judicial Separation.
Exclusive grounds only for the wife to file plea for Judicial Separation or Divorce:

• Bigamy: If the Husband was married twice then the wife can apply for Judicial separation or divorce such
ground mentioned in Section 13(2)(i).
• Other reliefs are: in the case of rape, buggery, bestiality by the Husband.
• Age: Under Section 13(2)iv if the damsel is under the age of 15 years at the moment of Hindu marriage then
she can apply for Divorce and Judicial separation.
Conclusion
It is clear that Judicial Separation is a legal instrument under Hindu Law in which courts provide
both the parties of the marriage to self analyze and reconsider his/her decision when the marriage
is on the verge of its end.
The main objective of this law is that marriage is the most sacred bond between two persons and
it is nearly impossible to terminate the same but as Laws change with the society, such sections
are introduced. Order of Judicial Separation can also be declared as cancelled when both the
parties resolve their issues and apply for the same in the court.
 Restitution of Conjugal Rights
Introduction
Among Hindus, marriage is the most sacred bond in which two persons who are duly wedded have
religious and marital responsibilities. One of the major responsibilities of the couple is that both should
cohabitate. But as marriage is the bond of two persons, it is possible that both of them have different
responses and one doesn’t like the behaviour of the other person.

In this case, one of the spouses may start living separate and withdraw from the society of the other with or
without any valid ground. Due to these circumstances, the Hindu Marriage Act,1955 provides for the
restitution of conjugal right under Section 9.

A party who wants the other person to fulfil his/her conjugal duties toward him/her self in Hindu marriage,
may file a complaint in the court under this section. For the party who is not performing his/her duties, the
court may direct that party to fulfil the conjugal duties in marriage, if a valid purpose is not specified.
Concept Of Restitution Of Conjugal Rights In Hindu Law
Conjugal Rights: In the Hindu religion, marriage is performed by following certain ceremonies
and rites, and these ceremonies put responsibilities and obligations on both the wife and husband
which are important to be fulfilled. These responsibilities are to be fulfilled by both the spouses
in relation to each other. Some of the important conjugal rights include that both should
cohabitate, beget a child, development of a household, etc.

Therefore ‘Restitution of Conjugal Rights’ means that the recompense of such rights which are
originated from the Hindu Marriage.

In old times there was no law regarding the restitution of the conjugal rights, it was first
introduced in Jewish law. After Independence, the Hindu Marriage Act,1955 was introduced in
which such treatment or relief is specified under section 9 of the act, and from here restitution of
conjugal rights got its statutory sponsorship.
Section 9 of the Hindu Marriage Act,1955 provided for the restitution of marriage. According
to this section, if any person in marriage ends the relationship with the other person and his/her
society without any rational purpose then the party against whom such relation is ended, can file
suit in the District Court under this section of the Restitution of the Conjugal rights.
Then if the court is convinced that there is no rational purpose of ending such a relation, it shall
pass a decree of restitution of Conjugal rights which is to direct the respondent to execute his/her
responsibilities and obligations. Onus probandi is of the Party of marriage who is separated.
It also can be termed as saving marriage which could end through a divorce, as there may be
some differences between the husband and wife and if the spouse thinks that such differences can
be solved rather than terminating the marriage through a divorce, then restitution of the conjugal
rights comes into play.
It must be noted that this section can only apply on valid marriages and if the decree of
restitution of conjugal rights is not obeyed then it would amount to contempt of court and also a
ground of divorce under Section 13 of the Hindu Marriage Act.
According to various judicial precedents, the petitioner can file the plea of restitution of conjugal
right under section 9 of this act, if there is a presence of these essential conditions:
 Spouse is not cohabitating.
 No rational purpose stated by the spouse for the separation.
 No legitimate ground on which order of restitution of conjugal rights cannot be granted.
In Sushila Bai v. Prem Narayan, the court passed the order of restitution as per the requirements
stated above. In this case, the court also mentioned some Circumstances in which the respondent
can take his/her guard in the plea filed by the petitioner:
 Another party against whom the suit was filed can claim conjugal relief against the petitioner.
 The respondent can prove that the petitioner is at fault i.e party can prove the rational purpose of
his/her separation.
 As a result of some acts or omissions, it is unfeasible for the respondent to cohabitate with the
petitioner.
These are some state of affairs on which court rather than passing an order for restitution, can pass
an order of Divorce or Judicial separation under section 13 and section 10 of the Hindu Marriage
Act,1955.
The Burden of Proof
In the case of restitution of Conjugal rights, onus generally lies with the party who has evacuated
from the company of the other party to the marriage, Onus is to show that the purpose for such
evacuation is rational. But at the beginning of the suit, the onus is on the petitioner to show that
there is a need for the restitution, only then the burden of proof gets transferred to the respondent.
In the Sushila bai case (discussed above), the husband after marriage was completely
insensitive towards his wife and treated her in an uninvited way, the court held that it is sufficient
ground to maintain the plea of restitution and the same had been granted in this case.
Constitutional Validity of the Restitution of Conjugal Rights
It is noted that such restitution breaches the right to privacy of the respondent which is granted
under Article 21 of the Indian Constitution.
With the judgment in Kharak Singh v. State of UP,  it was declared by the court that the right to
life and personal liberty includes right to privacy. When this law was to be included under the
Hindu Marriage Act,1955 there were intense arguments in the parliament.
In Sareetha v. T. Venkatasubbaiah, it was contended by the petitioner that section 9 of the
Hindu Marriage Act,1955 breaches Article 14 (right to equality) and Article 21 ( right to life and
personal liberty). The Hon’ble High Court held that section 9 of this act breaches the
fundamental rights given by our Constitution as this Act is bestial especially for women as it
snatches the right of the women on her own body. Therefore, Section 9 was held
unconstitutional.
But in Saroj Rani v. Sudharshan, the Hon’ble Supreme Court revoked the order of Sareetha v.
T. Venkatasubbaiah and held that it is the duty of the legislature to invalidate the law and
section 9 has the main purpose of bringing together separated parties of the Hindu Marriage and
not to infringe the fundamental rights of the party. Hence, section 9 was declared as
Constitutionally valid.
In Narinder Kumar v. Chander Prabha, the court held that if Husband put pressure on his wife
for dowry then it will be considered as a rational purpose for evacuating herself from the
husband’s company.
Other Provisions related to restitution and its mode of execution under the Hindu Marriage
Act,1955
Hindu marriage act along with the provisions of restitution of conjugal rights also allows the
petitioner to file plaint for the monetary support under section 25 of the Act. Therefore, if the
wife is unwilling to get judicial separation or nullity of marriage, she can get maintenance
without filing suit in any other act.
Order 21 rules 32 and 33 of the Code of civil procedure execute such decree in which the
respondent against whom the order has been passed can follow it or willfully disobey it and the
decree is to be attached with property. Such property can be sold by the petitioner if, within the
period of one year, the actual restitution is not done.
Another provision related to this section is under section 13(1)(a) in which if after the order of
restitution there was no actual restitution for one year or more then the petitioner can apply for
divorce under the above section as it will be considered as a good ground for the order of
divorce.
It must be noted that section 9 of the Hindu marriage act,1955 is not gender-biased but equal for
men and women. Equal measures are to be taken for the enforcement of the order of restitution.
The respondent can give a rational reason for the separation which can be anything related to
grounds of annulment, termination of marriage, judicial separation, divorce, etc.
Restitution of Conjugal rights in marriage is a productive cure as compared to other conjugal
remedies like divorce, nullity of marriage, and judicial separation. It aims at a reunion of the
parties of the marriage rather than terminating it.
It is the major benefit of this law. But on the other hand, if we look at it pragmatically, the true
picture of this law may differ. Human beings are psychological entities and they have emotions
and if someone is not able to create mutual understanding with another, then no one can force it
with any statute. As in an Indian survey conducted on such cases, it was noted that many
restitution cases are filed due to some hidden agenda.
In Annapuranamma v. Appa Rao, the wife filed a case of divorce on the ground that the
husband was suffering from leprosy and in return, the husband filed a case of restitution to delay
the proceedings of the above case although the petition of restitution was completely baseless
and it was only filed with the motive of torment his wife.
In Kusum Lata v. Kampta Prasad, the husband had completely failed to look after her wife
which is the valid ground for judicial separation. The same case was filed by the wife and it was
countered by the petition of restitution by her husband and court dismissed both pleas.
Conclusion
Hindu marriage related to the restitution of conjugal rights, as marriage under Hindu law is
considered to be a sacred bond and to protect such bond in case of insignificant
misunderstandings is the main object of such law and to help in maintaining sound conjugal life.
But, we have also discussed how such remedy is used by the party for some hidden purpose
which is not morally acceptable and the constitutionality of the restitution which is interpreted by
the judiciary occasionally, it is on the husband and wife whether to accept the decree or apply for
other remedies such as divorce and judicial separation.
 Dowry Prohibition Act
In this act, `dowry’ means any property or valuable security given or agreed to be given either
directly or indirectly:
1. by one party to a marriage to the other party to the marriage; or
2. by the parents of either party to a marriage or by any other person, to either party to the
marriage or to any other person;at or before or any time after the marriage in connection
with the marriage of said parties but does not include dower or mahr in the case of
persons to whom the Muslim Personal Law (Shariat) applies.
Explanation I – For the removal of doubts, it is hereby declared that any presents made at
the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes
or other articles, shall not be deemed to be dowry within the meaning of this section unless
they are made as consideration for the marriage of the said parties
Explanation II – The expression `valuable security’ has the same meaning as in section 30 of the
Indian Penal Code (45 of 1860)”.

The Act anticipates preventing of dowry by enacting section 3 of the Act, which provides for the
penalty. The punishment could be imprisonment for minimum 5 years and a fine more than
₹15,000 or the value of the dowry received, whichever is higher. The Act makes an exception to
gifts that are received at the time of marriage, in the absence of such demand. Dowry agreements
are void ab initio and if any dowry is received by anyone other than the woman, it should be
transferred to the woman. This provides a safeguard by protecting the interest of the women.
In the case of Nunna Venkateswarlu v. State of Andhra Pradesh (1996) Cr LJ 108 (AP), the
court observed that the foundational fact as to demand for dowry was to be proved by the
prosecution in the terms of “dowry given or agreed to be given”. Hence, the prosecution,
according to the lower court, failed to prove that an agreement was present between the
deceased’s father and the accused of dowry.

In the absence of the same court did not accept the charges of section 304B. And when the matter
went up to the High Court of AP, there too, in the absence of proof with respect to the agreement
to give dowry, the accused was rather charged under section 498A and section 306 of IPC, 1860
and held liable.
 In the case of Pawan Kumar v. State of Haryana (1998) Cr LJ 1144 (SC), the court observed
that- “The word ‘agreement’ referred to in section 2 has to be inferred on the facts and
circumstances of each case. The plea that conviction can only be if there is agreement for dowry
is misconceived. This would be contrary to the mandate and object of the Act.
‘Dowry’ definition is to be interpreted with the other provisions of the Act including section 3,
which refers to giving or taking dowry, and section 4 – penalty for demanding dowry, under the
1961 Act and the Indian Penal Code. This makes it clear that even demand of dowry on other
ingredients being satisfied is punishable.
This leads to the inference, when persistent demands for TV and scooter are made from the bride
after marriage or from her parents, it would constitute to be in connection with the marriage and
it would be a case of demand of dowry within the meaning of section 304B, IPC
t is not always necessary that there be any agreement for dowry. In the instant case, the evidence of
the prosecution witnesses was very clear. After a few days of the marriage, there was demand for a
scooter and fridge, which when not being met, led to repetitive taunts and maltreatment.
Such demands cannot be said to be not in connection with marriage. Hence, the evidence qualifies
to be demand for dowry in connection with the marriage and in the circumstances of the case
constitutes to be a case falling within the definition of ‘dowry’ under Section 2 of 1961 and section
304B”

The above reasoning was again quoted by the apex court in another case, State of Andhra Pradesh
v. Raj Gopal Asawa AIR 2004 SC 1933, approving the same. The term dowry was observed to be
in relation to marriage and not for any other cause as it was explicitly mentioned in the definition of
dowry.
In the light of the same demand for money for meeting domestic needs or due to financial instability cannot be
termed as a demand for or want of dowry. Also, a demand for a motorcycle for doing a milk vending business
cannot be termed as dowry demand.

Hence, time and again the courts have decided that the demand for dowry be always connected to marriage. Further,
there is no hard and fast rule that demand should be of one particular item to be termed as dowry demand.
For a Hindu, marriage is a Sanskara (religious rite or sacrament). It is looked upon something which is more of a
religious necessity. But at the same time, it is also a civil contract, which takes the form of a gift.

For example in Purshottamdas v. Purshottamdas, the court observed that “marriage of Hindu children is a contract
made by their parents”. In Muthusami v. Masilamani, the court observed, “a marriage is undoubtedly a contract
entered into for consideration”
The words like contract and consideration itself talk a lot about the involvement of dowry in the Hindu marriages.
Thus, there lies an unevenness between Hindu Law and the secular laws with regard to dowry.
On one hand, the secular laws are trying to eradicate the problems of dowry and on the other
hand, the Hindu laws are encouraging such practice as a religious one.

Thus, the scorching problems of dowry cannot be suppressed without the support of its key
actors, who are acting in and around this field. Mere legislation cannot be expected to serve the
purpose unless there are support and backing from the society. Hence, it is very important to cut
the roots of this deep-rooted problem, before it takes stronghold with the land and makes it next
to impossible to cut down this problem.