Sample – Hindu Marriage Act

                                                HINDU   MARRIAGE   ACT,   1955

 

Territorial Extent:                   Section 1

• Extends to whole of India except Jammu and Kashmir
• Applies also to Hindus who are domiciled in India but are presently outside India

[Note: ‘Domiciled in India’ means ‘having a permanent residence in India’]

 

Application of Act:                  Section 2(1)

This Act applies

(a)        to any person who is a Hindu by religion in any of its forms

including a Virashaiva, a Lingayat or

a follower of Brahmo, Prarthana or Arya Samaj

(b)        to any person who is a

Buddhist, Jain or Sikh by religion

(c)        to any other person domiciled in India

                        who is not a Muslim, Christian, Parsi or Jew by religion

unless it is proved that he would not have been governed by Hindu law in              these matters if this Act had not been passed

 

Who is a Hindu by religion?

(a)        Any child, legitimate or illegitimate,

• both of whose parents are Hindus by religion

(b)        Any child, legitimate or illegitimate

• one of whose parents is a Hindu by religion and
• who is brought up as a member of the tribe, community or family of such parent

(c)        Any person who is a convert or re-convert to Hindu religion

 

Who are Buddhists, Jains or Sikhs by religion?

• Definition similar to ‘Hindu by religion’

 

Non-applicability to STs:      Section 2(2)

• This Act shall not apply to members of any Scheduled Tribe
• unless the Central Government, by notification, otherwise directs

 

• Case Law: Surajmani Stella Kujur    Durga Charan Hansdah    [2001 SC]

 

Meaning of ‘Hindu’:              Section 2(3)

• A person to whom this Act applies
  • even though he is not a Hindu by religion

 

Definitions:                  Section 3

“Custom” and “usage”

Any rule which

• has been continuously and uniformly observed for a long time
• has obtained force of law in any area, tribe or family
• is certain and
• is not unreasonable or opposed to public policy

 

“Full blood” and “half blood”

Two persons are related to each other

• by full blood when they descend from a common ancestor by the same wife
• by half blood when they descend from a common ancestor but by different wives

“Ancestor” includes the father

 

“Uterine blood”

Two persons are related to each other by uterine blood

• when they descend from a common ancestress but by different husbands

“Ancestress” includes the mother

 

“Sapinda relationship” extends to

• third generation (inclusive) in line of ascent through mother
• fifth generation (inclusive) in line of ascent through father
• the line being traced upwards from the person concerned
• who is to be counted as the first generation

 

“Sapindas”

Two persons are said to be “sapindas” of each other

• if one is a lineal ascendant of the other within limits of sapinda relationship, or
• if they have a common lineal ascendant
• who is within limits of sapinda relationship with each of them

 

“Degrees of prohibited relationship”

Two persons are within “degrees of prohibited relationship”

(a)  if one is a lineal ascendant of the other

(b)  if one was wife or husband of a lineal ascendant or descendant of the other

(c)  if one was

• wife of brother
• wife of father’s brother
• wife of mother’s brother
• wife of grandfather’s brother
• wife of grandmother’s brother

of the other

(d)  if the two are

• brother and sister
• uncle and niece
• aunt and nephew
• children of brother and sister
• children of two brothers
• children of two sisters

 

Relationship includes

• relationship by full, half or uterine blood
• Illegitimate or legitimate
• by adoption or by blood

 

Overriding Effect:                   Section 4

• any text or rule of Hindu law or any custom or usage
• shall cease to have effect with respect to any matter in this Act
• any other law in force
• shall cease to have effect in so far as it is inconsistent with this Act.

 

Conditions of Marriage:        Section 5

• A marriage may be solemnized between any two Hindus
• if the following conditions are fulfilled:

 

(i)         neither party has a spouse living at the time of marriage

 

(ii)        at the time of the marriage, neither party

• is incapable of giving a valid consent due to unsoundness of mind
• has been suffering from mental disorder so as to be unfit for marriage and procreation of children
• has been subject to recurrent attacks of insanity

 

• (iii) minimum age at the time of marriage

bridegroom     :           21 years

bride                :           18 years

 

(iv)       Parties are not within degrees of prohibited relationship

• unless custom or usage governing each of them permits such marriage

 

(v)        Parties are not sapindas of each other

• unless custom or usage governing each of them permits such marriage

 

Ceremonies for a Hindu marriage:         Section 7

• A Hindu marriage may be solemnized
• with customary rites and ceremonies of either party

 

(2)        Where rites and ceremonies include             saptpadi (taking of seven steps by bridegroom        and bride jointly before sacred fire)

• marriage becomes complete and binding when the seventh step is taken

 

• Case Law: Bhaurao Shankar Lokhande        State of Maharashtra        [1965 SC]

 

Restitution of Conjugal Rights:         Section 9

• When either husband or wife has withdrawn from society of the other
• without reasonable excuse
• aggrieved party may apply for restitution of conjugal rights

 

• Burden of proving reasonable excuse
• lies on the party withdrawing from society of the other

 

• Case Law: Kailash Wati        Ajodhia Parkash            [1971 P & H]

Swaraj Garg     v.     K. M. Garg                      [1978 Del]

Saroj Rani      v.     Sudarshan Kumar    [1984 SC]

 

Judicial Separation:                           Section 10

• Either party to a marriage
  • may apply for decree for judicial separation
  • on any of the grounds in section 13(1)
• In case of wife, also on grounds in section 13(2)

 

• On judicial separation, petitioner need not cohabit with respondent
• Court may rescind the decree subsequently

 

Void Marriages:                      Section 11

• Any marriage solemnised under this Act
  • shall be null and void
  • if it contravenes conditions (i), (iv) or (v) of section 5
• Court may declare it null and void
  • by a decree of nullity on a petition by either party

 

Voidable Marriages:                          Section 12 (1)

A marriage, whether solemnized before or after this Act,

• shall be voidable and may be annulled by a decree of nullity if

 

(a)       respondent was impotent at the time of marriage and continued to be so till petition

 

(b)        marriage is in contravention of condition (ii) of section 5

 

(c)        consent of petitioner was obtained by force or fraud

 

(d)        respondent was at the time of marriage pregnant by a person other than petitioner

 

• Case Law:             Babui Panmato Kuer          Ram Agya Singh          [1968 Pat]

 

Further Conditions:                 Section 12 (2)

Further conditions for petition under clause (c):

(i)         petition not to be presented more than one year after

• – force had ceased to operate or fraud had been discovered

(ii)        petitioner has not lived with other party as husband or wife with full consent after

• force had ceased to operate or after fraud had been discovered

 

Further conditions for petition under clause (d):

(i)        petitioner was at the time of marriage ignorant of the pregnancy

(ii)        petition has been filed  within one year from date of marriage

• (ii) marital intercourse with consent of petitioner has not taken place since his discovery of pregnancy

 

Divorce:                       Section 13 (1)

There can be dissolution of marriage by a decree of divorce

• – by petition by either husband or wife

 

Grounds of divorce:

 

(i)         voluntary sexual intercourse by the other party

• – with any person other than the spouse, after marriage

 

(ia)       the other party has treated the petitioner with cruelty, after marriage

(ib)       other party has deserted petitioner

• – for a continuous period of not less than two years at the time of petition
• Desertion means desertion
  • – without reasonable cause
  • – without consent, against wish of petitioner
• Desertion includes wilful neglect of petitioner

 

(ii)        other party has ceased to be a Hindu

• – by conversion to another religion

 

• (iii) other party is incurably of unsound mind or suffers from mental disorder
• – so that petitioner cannot reasonably be expected to live with it

 

(iv)       other party suffers from a virulent and incurable form of leprosy

 

(v)        other party suffers from a communicable venereal disease

 

(vi)       other party has renounced the world by entering a religious order

 

(vii)      other party has not been heard of as being alive

• – for a period of seven years or more
• – by those who would naturally have heard of it had that party been alive

 

Other grounds of divorce:      Available to both husband and wife:              Section 13 (1A)

 

• (i) there has been no resumption of cohabitation for one year or more
• – after a decree for judicial separation

 

• (ii) there has been no restitution of conjugal rights for  one year or more
• – after a decree for restitution of conjugal rights

 

• Case Law: Dharmendra Kumar        Usha Kumar           [1977 SC]

1. Srinivasan                         v.    T. Varalakshmi     [1991 Mad.]

Hirachand Mangaonkar   v.   Sunanda           [2001 SC]

Savitri Pandey             v.  Prem Chand Pandey  [2002 SC]

 

Divorce by Wife:                    Section 13 (2)

Grounds of divorce available only to wife:

• (i) For a marriage before this Act:
• – husband had married again before this Act or
• – another wife of husband was alive at the time of petitioner’s marriage

Condition precedent:  the other wife must be alive at the time of petition

 

(ii)        Husband has, after the marriage, been guilty of rape, sodomy or bestiality

 

• (ii) Maintenance to wife has been granted u/s 18 of HAMA or u/s 125 of CrPC
• – even though she was living apart, and
• – since then cohabitation between them has not been resumed for one year

 

(iv)       Her marriage, whether consummated or not

• – was solemnised before she attained fifteen years and
• – she has repudiated the marriage after attaining that age
• – but before attaining eighteen years

 

• Case Law:      G. Dastane    v.    S. Dastane   [1975 SC]
• Divorce petition by husband on the ground of cruelty by wife
• Cruelty on the part of wife established
• Wife takes defence of condonation
• Condonation established
• Further cruelty by wife
• Found to have been provoked by husband

Decision on:

• Standard of proof in matrimonial cases
• What is cruelty
• What is condonation
• Effect of condonation

Order:

• Divorce not granted

 

Alternate relief :                     Section 13A

On a petition for decree of divorce

• court may pass instead a decree for judicial separation
• – except when petition is founded on clauses (ii), (vi) and (vii) section 13 (1)

 

Divorce by Mutual Consent:                                    Section 13B

First stage:      Petition for divorce by both parties together

Grounds:

• they have been living separately for one year or more
• they have not been able to live together
• they have mutually agreed that the marriage should be dissolved

 

Second stage:

• Both parties need to make a joint motion
• – between 6 months and 18 months after the petition

Further conditions:

• Court needs to be satisfied that averments in the petition are true
  • Petition should not have been withdrawn by then

 

• Case Law: Sureshta Devi                       Om Prakash    [1992 SC]

Time for Petition:                                Section 14

• Court not to entertain petition for dissolution of marriage
  • if it is presented before expiry of one year from the date of marriage

 

Exception:

• Court may grant leave to present the petition earlier
  • in case of exceptional hardship to petitioner
  • in case of exceptional depravity of respondent

 

• Before granting leave to present a petition before expiry of one year
• court shall consider
  • interests of children of marriage
  • reasonable probability of reconciliation between parties in the one year period

 

Remarriage of Divorced Person:                  Section 15

• On a decree of divorce, either party can remarry
  • if there is no right of appeal against the decree
  • where there is a right of appeal, if time for appealing has expired without an appeal having been filed
  • If appeal has been filed but has been dismissed

 

Legitimacy of children:                     Section 16

In case of a marriage null and void u/s 11:

• any child born of such marriage
• who would have been a legitimate child if the marriage had been valid
• shall be a legitimate child
  • whether decree of nullity is passed or not

 

In case of a decree of nullity u/s 12:

• any child begotten or conceived before the decree
• – shall be deemed to be a legitimate child

 

Right to Property

• section 16 confers upon such child rights in property of parents only

 

Punishment of bigamy:                     Section 17

• Any marriage between two Hindus
• – solemnized under this Act
• is void
• – if at the date of marriage either party had a husband or wife living
• Sections 494 and 495 of IPC to apply accordingly

 

• Case Law: Lily Thomas                         Union of India                         [2000 SC]

Sarla Mudgal              v.         Union of India             [1995 SC]

 

Other Punishments:                            Section 18

• Any one who procures marriage of himself or herself
• – in contravention of clause (iii) of section 5
• shall be punishable
• – with imprisonment upto two years or fine of upto one lakh rupees or both

 

• Any one who procures marriage of himself or herself
• – in contravention of clauses (iv) and (v) of section 5
• shall be punishable
• – with imprisonment of upto one month, or fine of upto 1000 rupees, or both

 

Court to which petition should be made:                           Section 19

Every petition shall be presented to the district court within whose jurisdiction

(i)          marriage was solemnised, or

(ii)         respondent resides, or

iii)        parties to marriage last resided together, or

(iiia)     wife resides, if she is petitioner, or

(iv)       petitioner resides, if

• respondent resides outside India or

• – has not been heard of as alive for 7 years

 

• ‘has not been heard of as being alive’: by those who would naturally have heard of him if he were alive
• ‘resides’ means resides at the time of filing the petition

 

 

Contents and verification of petitions:                          Section 20

• Every petition shall
  • state facts on which the claim is founded
  • also state that there is no collusion between parties to marriage [not required in petition under section 11]

(2)        Statements in every petition shall be verified by petitioner

 

• Such statements may be referred to as evidence at the hearing

 

Application of CPC:                 Section 21

• All proceedings under this Act shall be regulated
• – as far as may be by the Code of Civil Procedure

 

Transfer of petitions :              Section 21A

Where

• a petition has been filed in a district court by a party to marriage
• – for a decree for judicial separation or divorce
• and another petition has been filed thereafter by the other party
• – for a decree for judicial separation or divorce
• If in the same district court:
• – both petitions shall be tried together by that district court
• If in a different district court, whether in the same state or in a different state:
  • the petition presented later shall be transferred to the earlier district court and
  • both petitions shall be heard and disposed of together by the earlier court

Section 21B                 Trial and disposal of petitions

• Trial of a petition under this Act shall be continued from day to day
• – unless further adjournment is necessary for reasons to be recorded

 

• Trial of every petition under this Act
• – should conclude within six months from service of notice on respondent

 

• Hearing of every appeal under this Act
• – should conclude within 3 months from service of appeal notice on respondent

 

Section 21C                 Documentary evidence

• A document shall be admissible in evidence at the trial of a petition under this Act
• – even when it is not duly stamped or registered

 

 

Section 23 (1)(a)

In any proceeding under this Act, whether defended or not

• if Court is satisfied that

(a)        a ground for granting relief exists and

• petitioner is not in any way taking advantage of his or her own wrong for the purpose of such relief

 

(b)       In case of petition u/s 13(1)(i):

• – petitioner has not been accessory to or condoned the complained act

Where ground of petition is cruelty:

• – petitioner has not condoned the cruelty

 

(bb)      In case of divorce by mutual consent:

• – such consent has not been obtained by force, fraud or undue influence

 

(c)       In case of a petition filed not under section 11:

• – it is not presented or prosecuted in collusion with respondent

 

(d)        there has not been unnecessary or improper delay in instituting the proceeding

 

(e)        there is no other legal ground to refuse relief

 

• then, and in such a case, but not otherwise, court shall decree such relief accordingly.

 

Section 23(2)               Duty of Court

Before granting any relief

• it shall be duty of court in the first instance
• – to make every endeavour to bring about reconciliation between parties

 

This provision shall not apply where relief is sought

• – under clauses (ii) to (vii) of section 13(1)

 

Section 23(3)               Reconciliation Procedure

For bringing about reconciliation

• court may adjourn proceedings for a period not exceeding fifteen days
• – and refer the matter to any person named by parties or court

 

• This person is to report whether reconciliation can be/has been effected
• court shall have due regard to this report

 

Section 24                   Maintenance pendente lite
Where in any proceeding under this Act

• either wife or husband has no independent income sufficient
  • for her or his support
  • for expenses of proceeding

Then, on application of wife or husband

• court may order respondent to pay to petitioner
  • expenses of proceeding
  • a reasonable monthly sum during proceeding

 

• For deciding monthly sum, court to consider
  • petitioner’s own income and income of respondent

 

• Amount awarded u/s 125 Cr.P.C. is adjustable
• – against the amount granted under this section

 

Section 25(1)               Permanent alimony and maintenance

At the time of passing any decree under this Act

• – or at any time subsequent thereto

on application by either wife or husband

• Court may order that respondent shall pay to the applicant
• – for her or his maintenance and support
• a gross sum or a monthly or a periodical sum found just by court
• having regard to
  • income and other property of respondent
  • income and other property of applicant
  • conduct of parties

 

• Such sum is payable for a term not exceeding life of applicant
  • but only while applicant remains unmarried

 

• Any such payment may be secured if necessary
• – by a charge on immovable property of respondent

 

Section 25(2)               Modification of Permanent Alimony

• If at any time after a permanent alimony order
• – there is change in circumstances of either party
• court may vary, modify or rescind such order, at the instance of either party

 

 

Section 25(3)               Rescission of Alimony Order

• Court shall rescind a permanent alimony order
• if the party in whose favor such order was made has remarried
• if such party is the wife:
• – she has not remained chaste

if such party is the husband:

• – he has had sexual intercourse with a woman outside wedlock

 

Section 26                   Custody of children
In any proceeding under this Act,

• court may pass just and proper interim orders
• court may make just and proper provisions in decree
• for custody, maintenance and education of minor children
• – consistently with their wishes

 

• Court may make such orders and provisions even after the decree
• – for such children as it could make if proceeding for decree were still pending

 

• Court may also, from time to time, revoke or vary any such orders and provisions

 

Section 27                   Disposal of property
In any proceeding under this Act

• court may make just provisions in decree
• – for any property presented at or about the time of marriage
• – which belongs jointly to husband and wife

 

Section 28                   Appeals from decrees and orders
(1)  All decrees made by court in any proceeding under this Act

• – shall be appealable

• There shall be no appeal on the subject of costs only

 

(2)  Orders made by court in any proceeding under this Act u/s 25 or 26

• – shall be appealable if they are not interim orders

• There shall be no appeal on the subject of costs only

 

(4)  Every appeal shall be preferred within ninety days

• – from the date of decree or order

 

Section 28A                 Enforcement of decrees and orders

• All decrees and orders made in any proceeding under this Act
• – shall be enforced in like manner
• – as decrees and orders made in exercise of original civil jurisdiction

 

Section 29                   Savings

• This Act shall not affect any right
  • recognised by custom or conferred by any special enactment
• – to obtain dissolution of a Hindu marriage

 

• This Act shall not affect provisions of Special Marriage Act, 1954
• – on marriages between Hindus solemnized under that Act

 

 

Additional Note 1:                   Maintenance   [for purposes of section 25 of HMA]

 

• Maintenance has not been defined in Hindu Marriage Act
• but it has been defined in Hindu Adoption and Maintenance Act
• which definition can be adopted in this Act also.

 

It has been defined in Section 3(b) HAMA as under:

• Maintenance includes provision for
  • food, clothing, residence
  • education
  • medical assistant and treatment
• In case of an unmarried daughter
  • also reasonable expenses of her marriage

 

 

Additional Note 2:                   Validity of a Child Marriage

 

• A child marriage is valid under the Hindu Marriage Act
• but it is now voidable because of a new enactment known as the Prohibition of Child Marriage Act, 2006

 

Section 3 of Prohibition of Child Marriage Act, 2006 provides as under:

• Every child marriage
• whether solemnised before or after this Act shall be voidable
• at the option of the contracting party who was a child at the time of marriage

 

• Such a petition for annulling a child marriage by a decree of nullity
• may be filed only by a party to marriage who was a child at the time of marriage
• Such petition may be filed at any time
• but before the child filing the petition completes two years of attaining             majority

 

 

Additional Note 3:                   Other Important Provisions

Section 6

• Where a child marriage has been annulled by a decree of nullity u/s 3
• every child begotten or conceived of such marriage before the decree is made
• shall be deemed to be a legitimate child
• for all purposes

 

Section 9

• If a male adult above eighteen years contracts a child marriage
• he shall be punishable with imprisonment upto two years or fine upto one lakh rupees or both

 

Section 10

• Whoever performs, conducts, directs or abets any child marriage
• shall be punishable with imprisonment upto 2 years and fine upto one lakh rupees
• unless he proves that he had reasons to believe
• that the marriage was not a child marriage

 

• No woman shall be punishable with imprisonment

 

 

Additional Note 4:                   Fraud   [for purposes of section 12 HMA]

• ‘Fraud’ has not been defined in Hindu Marriage Act
• but it has been defined in Section 17 of Indian Contract Act as under:

 

• “Fraud” means and includes any of the following acts committed by a party to a contract
• with intent to deceive another party thereto or to induce him to enter into the contract:

(1)        Suggestion, as a fact, of that which is not true, by one who does not believe it                   to be true

(2)        Active concealment of a fact by one having knowledge or belief of the fact