Divorce/Matrimonial Cases

The Hindu Marriage Act is an Act of the Parliament of India in 1955 as part of the Hindu Code Bills. Three other important acts were also enacted during this time: the Hindu Succession Act (1956), the Hindu Minority and Guardianship Act (1956),the Hindu Adoptions and Maintenance Act (1956).

The main purpose of the enactment was to amend and codify the law relating to marriage among Hindus. Beside, amendment and codification of Sastrik Law, it has introduced separation and Divorce which was earlier non-existent in Sastrik Law.

1. This Act applies -

  •  to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
  • to any person who is a Buddhist, Jaina or Sikh by religion; and
  • to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed

Explanation. The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:

  • any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
  • any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and
  • any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

According to the tenets of Hinduism, marriage is a sacred relationship, a sacrament, and a divine covenant meant for procreation and continuation of family lineage.

A marriage may be solemnized 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-

  • s incapable of giving a valid consent to it in consequence of unsoundness of mind; or
  • 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
  •  has been subject to recurrent attacks of insanity or epilepsy;

3. the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the 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."

Marriage of a female less than 18 years of age or a male of less than 21 years of age. Marriage is voidable and not void. Marriage will become valid if no steps are taken by such "child" seeking declaration of marriage as void.

The conditions Marriage can be solemnized between two Hindus if neither party has a living spouse at the time of marriage. The conditions also stipulate that at the time of the marriage, neither party is incapable of giving valid consent or suffering from a mental illness that inhibits their fitness for marriage or procreation of children or suffering from recurrent episodes of insanity or epilepsy. In the original Act, the age of valid marriage was fixed at 18 for the boys and 15 for the girls, however this age requirement was later raised to 21 and 18 respectively for the boys and the girls through the Child Marriage Restraint (Amendment) Act 1978. Finally, the Act specifically disallows marriages between prohibited degrees of relationships.

Section 7 of the Hindu Marriage Act recognizes the ceremonies and customs of marriage. Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. Such rites and rituals include the Saptapadi—the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. The marriage becomes complete and binding when the seventh step is taken.

Registration

As stated in Section 8 of the Act, the state government may make rules for the registration of Hindu marriages that the parties to any of such marriages may have particulars relating to their marriages entered in such a manner and subject to such conditions as may be prescribed in the Hindu Marriage Register. This registration is for the purpose of facilitating the proof of Hindu marriages. All rules made in this section may be laid before the state legislature. The Hindu Marriage Register should be open for inspection at all reasonable times and should be admissible as evidence of the statements contained therein.

Nullity of Marriage and Divorce

Any marriage can be voidable and may be annulled on the following grounds: the marriage has not been consummated due to impotency, contravention of the valid consent mental illness condition specified in Section 5, or that the respondent at the time of the marriage was pregnant by someone other than the petitioner. Divorce can be sought by husband or wife on certain grounds, including: continuous period of desertion for two or more years, conversion to a religion other than Hindu, mental abnormality, venereal disease, and leprosy. A wife can also present a petition for the dissolution of marriage on the ground of if the husband marries again after the commencement of his first marriage or if the husband has been guilty of rape, sodomy, or bestiality. Newly married couples cannot file a petition for divorce within one year of marriage.

Special Marriage Act

The Special Marriage Act, 1954 is an Act of the Parliament of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party. The Act originated from a piece of legislation proposed during the late 19th century.

Applicability

  1.  Any person, irrespective of religion.
  2. Hindus, Muslims, Buddhists, Jains, Sikhs can also perform marriage under the Special Marriage Act, 1954.
  3. The Muslim, Christian, Parsi, or Jewish religions can also perform marriage under the Special Marriage Act, 1954.
  4.  Inter-caste marriages are performed under this Act.
  5.  This Act is applicable to the entire territory of India (excluding the states of Jammu and Kashmir) and extends to intending spouses who are both Indian nationals living abroad.

Requirements

  1. The marriage performed under the Special Marriage Act, 1954 is a civil contract and accordingly, there need be no rites or ceremonial requirements.
  2. The parties have to file a Notice of Intended Marriage in the specified form to the Marriage Registrar of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.
  3. After the expiration of thirty days from the date on which notice of an intended marriage has been published, the marriage may be solemnized, unless it has been objected to by any person.
  4.  The marriage may be solemnized at the specified Marriage Office.
  5. Marriage is not binding on the parties unless each party states "I, (A), take thee (B), to be my lawful wife (or husband)," in the presence of the Marriage Officer and three witnesses.

Conditions for marriage

  1.  Each party involved should have no other subsisting valid marriage. In other words, each party should be monogamous.
  2. The bridegroom must be at least 21 years old; the bride must be at least 18 years old.[6]
  3.  The parties should be competent in regards to their mental capacity to the extent that they are able to give valid consent for the marriage.
  4. The parties should not fall within the degree of prohibited relationship.

Nullity of marriage and divorce

Void marriages

(1) Any marriage solemnized under this Act shall be null and void 1[and may, on a petition presented by either party thereto against the other party, be so declared] by a decree of nullity if- 

  •  Any of the conditions specified in clauses (a), (b), (c) and (d) of Section 4 has not been fulfilled; or
  • The respondent was impotent at the time of the marriage and at the time of the institution of the suit.

(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of Section 15:

Provided that no such declaration shall be made in any case where an appeal has been preferred under Section 17 and the decision of the district court has become filial.

Voidable marriage

Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if -

(i) the marriage has not been consummated owning to the willful refusal of the respondent to consummate the marriage; or

(ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or

(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the India Contract Act, 1872 (IX of 1872): Provided that, in the case specified in clause(ii), the court shall not grant a decree unless it is satisfied,-

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(b) that proceedings were instituted within a year from the date of the marriage; and

(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree: Provided further that in the case specified in clause (iii), the court shall not grant a decree if,-

(a) proceedings have not been instituted within one year after the coercion have ceased or, as the case may be fraud had been discovered; or

(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.

Dowry Laws:

Dowry Prohibition Act:

Dowry Prohibition Act 1961: “Dowry” means any property or valuable security given or agreed to be given either directly or indirectly— (a) by one party to a marriage to the other party to the marriage; or (b) 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 1[or any time after the marriage] 2[in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation I.— 3[***] Explanation II.—The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).

Stridhan

Stridhan is, generally speaking, what a woman can claim as her own property within a marital household. It may include her jewelry (gifted either by her family), gifts presented to her during the wedding or later, and the dowry articles given by her family. Gifts given by the parents of the bride are considered "stridhan", i.e. property of the woman, traditionally representing her share of her parent's wealth.

The Dowry Prohibition (DP) Act

This Act prohibits the request, payment or acceptance of a dowry, "as consideration for the marriage", where "dowry" is defined as a gift demanded or given as a precondition for a marriage. Gifts given without a precondition are not considered dowry, and are legal. Asking or giving of dowry can be punished by an imprisonment of up to six months, a fine of up to Rs. 15000 or the amount of dowry (whichever is higher), or imprisonment up to 5 years. It replaced several pieces of anti-dowry legislation that had been enacted by various Indian states.

Section 4 of the Act states:

4. Penalty for demanding dowry.- If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees.

Provided that the Court may, for an adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.[3] However, as per section 3 of the Act,[4] both the giver and the receiver are sought to be punished.

3. Penalty for giving or taking dowry.- [(Note: Section 3 re-numbered as sub-section (1) thereof by Act No.63 of 1984, sec.3) (1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than [(Note: Subs. by Act 43 of 1986, Sec.3) five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more.

Provided that the Court may, for a adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment of a term of less than [(Note: Subs. by Act 43 of 1986, Sec.3) five years.]

(2) [(Note: Ins. by Act 63 of 1984, sec.3) Nothing is sub section (1) shall apply to, or in relation to, -

(a) Presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf).

(b) Presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf). Provided that such presents are entered in a list maintained in accordance with the rules made under this Act.

Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.