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CHAPTER-2: IMPACT OF SOCIAL LEGISLATION ON FAMILY AND MARRIAGE IN INDIA

Programmes for Women and their Impact: Marriage Legislation

In March 1961, when the bill on unequal marriages was being discussed in the Rajya
Sabha, one member quoted epic against its inclusion in the institution of Hindu marriage.
Dr. Radhakrishnan, the then chairman of the Rajya Sabha, had remarked: the ancient
history cannot solve the problems of modern society. This is an answer in one sentence to
those critics who want to maintain a gap between social opinion and social legislation.

Legislation must meet the social needs of the people; and because the social needs
change, legislation also must change from time to time. The function of social legislation
is to adjust the legal system continually to a society, which is constantly outgrowing that
system. The gulf between the current needs of the society and the old laws must be
bridged. The laws have got to give recognition to certain de facto changes in society. One
of the changes in modern India is the change in the attitude towards marriage; hence the
necessity of laws on different aspects of marriage.

The laws enacted in India relate to: (i) age at marriage (ii) field of mate selection, (iii)
number of spouses in marriage, (iv) breaking of marriage, (v) dowry to be given and
taken, and (vi) remarriage. The important legislations relating to these six aspects of
marriage passed from time to time are: (i) The Child Marriage Restraint Act, 1929 (dealing
with age at marriage), (ii) The Hindu Marriage Disabilities Removal Act 1946 and Hindu
Marriage Validity Act, 1949 (dealing with field of mate selection), (iii) The Special Act.
1954 (dealing with age at marriage, freedom to children in marriage without parental
consent, bigamy, and breaking up of marriage), (iv) the Hindu Marriage Act, 1955 (dealing
with age at marriage with the consent of parents bigamy, and breaking up of marriage)
(v) The Dowry Act 1961, and (vi) The Widow Remarriage Act, 1856.

Social Legislation Concerning Hindu Marriage

Social legislation is a conscious attempt to bring about socioeconomic reforms in response to the
changing conditions of a dynamic society. It is an instrument of social change which gained much
importance in India over the last hundred years but especially after independence.

The Indian Parliament has passed the following Acts for reforms of Hindu marriage, family and the
status of woman in Hindu society (i) Hindu married women’s right to separate residence and
maintenance Act 1946, Hindu marriage Act-1955, Hindu succession Act – 1956, Hindu adoption and
Maintenance Act and Hindu minority guardianship Act are collectively known as Hindu code.
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CHAPTER-2: IMPACT OF SOCIAL LEGISLATION ON FAMILY AND MARRIAGE IN INDIA

(i) Hindu married women’s right to separate residence and maintenance Act 1946:

This Act states that Hindu married women can claim the maintenance while residing
separately from her husband on the following grounds:

1. If the husband is suffering from some loathsome disease which has not been contracted from the wife.

2. If the husband behaves so cruelly towards the wife that her residing with the husband is undesirable
or dangerous.

3. If the husband deserts the wife without her wish.

4. If the husband marries again.

5. If the husband adopts another religion.

6. If the husband keeps some concubine.

7. Any other justifiable causes But the wife cannot demand maintenance from the husband if she is
found guilty of adultery or conversion to another religion.

(ii) Hindu Marriage Act 1955:

The Hindu Marriage Act 1955 came into force on the 18th May 1955. This Act applies to the whole of
India except the territory of Jammu and Kashmir.

The Act contains the following provisions:

1. Classification of Hindu Marriage:

According to this Act Hindu marriage can be divided into three categories void, voidable and valid. Void
under the Act of 1955 a marriage is declared void if

1. It is made while already a spouse (a husband or wife) is living or

2. It is made within prohibited degrees of relationship or it is made between sapindas (third generation
through the mother and fifth generation through the father)

Voidable:

A marriage whether made before or after the enactment of the Act is voidable and may
be annulled by the court on any of the following grounds:
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CHAPTER-2: IMPACT OF SOCIAL LEGISLATION ON FAMILY AND MARRIAGE IN INDIA

(i) If a wife or a husband was impotent at the time of marriage.

(ii) If either party to the marriage was suffering from mental disorder at the time of marriage.

(iii) Where the consent of either party to the marriage was taken by force or fraud.

(iv) If the bride was made pregnant by some other person at the time of marriage.

Valid:

A Hindu marriage is called valid marriage provided the following conditions as per the
Act are fulfilled:

(i) Neither the husband nor the wife has a wife or a husband living at the time of marriage.

(ii) Neither the husband nor the wife is of unsound mind.

(iii) The groom must have completed 21 years and the bride 18 years of age.

(iv) The parties should not be within the degree of prohibited relationship e.g. sapindas of each other.

(v) Where the bride is below 18 years of age, consent of her guardian to the marriage must have been
obtained.

(vi) Marriage must be made according to customary rites and ceremonies.

2. Increased Age for Marriage:

As per the provision of this Act the minimum age limit for boys and girls has been raised to 21 and 18
respectively.

3. Provision for monogamy:

According to this Act of 1955 neither party can marry, if they have a spouse living at the time of marriage.
Thus the section 5 and clause of the act provides for monogamy in Hindu society. Bigamous,
polygamous or polyandrous are strictly prohibited in Hindu society.

4. Provision for the guardianship of the mother:

According to the Act of 1955 the mother shall be considered the legal guardian of the minor son or
daughter after the father.
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CHAPTER-2: IMPACT OF SOCIAL LEGISLATION ON FAMILY AND MARRIAGE IN INDIA

5. Provision for divorce:

The section 13 of 1955 prescribes certain grounds by which a wife or husband can suit a divorce case
such legal grounds.

(i) In case of adultery i.e. voluntary sexual intercourse of a married man or woman with a person other
than his wife or her husband.

(ii) In case of bigamy i.e. when the husband marries another wife though the first one is still alike.

(iii) If either the husband the wife treats his/her spouse with cruelty.

(iv) If either of the spouse is convicted and imprisoned.

(v) If a husband leaves his wife for a continuous period of not less than two years.

(vi) If either of spouse converts to some other religion.

(vii) If either of one has been of unsound mind.

(viii) If either the husband or the wife has been suffering from virulent and incurable disease for more
than three years or suffering from venereal disease.

(ix) If the husband or the wife has renounced the world and where about of one party have not been
heard for a period of seven years.

The other grounds are either party to marriage may seek divorce on the following
grounds:

(a) That the petitioner and his wife are not living like husband and wife for a period of one year or more
after the passing of a decree for a judicial separation.

(b) That, there has been no restitution of conjugal right between the parties to the marriage for a period
of one year or more after the passing of a decree for restitution of conjugal rights In addition to the
grounds already mentioned, a wife can pray for divorce on the following grounds.

(i) That the husband is guilty of rape, sodomy or bestiality.

(ii) That her marriage was made before she attained the age of majority and she has refused the marriage
after she attained the age of 18.
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CHAPTER-2: IMPACT OF SOCIAL LEGISLATION ON FAMILY AND MARRIAGE IN INDIA

(iii) Widow remarriage Act (1856):

By this act Hindu widow has received legal validity to remarry in Hindu society. So at present though
widows re marriage is not very much admired, it is not opposed in Hindu community.

(iv) The special Marriage Act 1954:

This act gives legal validity not only to inter caste marriages but also to inter-community marriages. It
also prescribes provisions for equal status for women in Hindu society.

(v) Dowry prohibition Act 1961:

According to this Act, both, giving and receiving dowry are offences which are punishable by fine or
imprisonment or both. This act came into force to uproot the evil of dowry system in Hindu society. All
the above Acts passed in the post-independent India have thus brought about fundamental changes in
the institutions of caste, family, marriage and status of women in Hindu society. Hindu marriage Act
1955 concerning monogamy has marvellously succeeded but the prohibition of Dowry Act 1961 has
miserably failed for the simple reason that people by and large conform to the social norm.

It is a fact that social legislation is only a means to facilitate social change by providing legal sanction to
new norms of the society but to achieve the desired aim the active participation of public and
consciousness of society are very much important for the implementation of various acts in the society.