Hindu

Marriage
Hindu Marriage Act
1955
 Changes Made by HMA, 1955

▪ Mutual consent and ▪ Registration of marriage

sacramental
▪ Alimony
▪ Hindus, Jains, Sikhs and
Buddhists are covered ▪ Legitimacy to the children
▪ Monogamy ▪ Disposal of property
▪ Inter – cast marriages ▪ Polygamy as a offence
▪ Same gotra
▪ Age
▪ Matrimonial remedies
 Application of the HMA
▪ This is act is only applicable to the Hindus
▪ Virashaiva, Lingayat or follower of Brahmo, Prarthana
or Arya Samaja
▪ Buddhist, Jaina or Sikh by religion
▪ territories to which this Act extends who is not a
– Muslim, Christian, Parsi or Jew by religion
 Application of the Act

▪ Who are Hindu?

– Note available to Clause 2 of Hindu Marriage Bill 1955
▪ By birth, By religion, Converts, Reconverts
▪ Illegitimate Children – both parents are Hindu
▪ Illegitimate Children – mother is Hindu

▪ Persons to whom Hindu Law is not applicable

 Overriding effect
and
Important Definitions
▪ Overriding effect (Section 4 )
▪ Definitions
– Full blood
– Half blood
– Uterine blood
– Sapinda Relationship
 Important Definitions

▪ Degrees of Prohibited relationship

▪ if one is a lineal ascendant of the other
▪ if one was the wife or husband of a lineal ascendant or
descendant of the other
▪ if one was the wife of the brother or of the father's or
mother's brother or of the grandfather's or grandmother's
brother of the other
▪ if the two are brother and sister, uncle and niece, aunt and
nephew, or children of brother and sister or of two
brothers or of two sisters
 Sapinda Relationship

For Men For Women

Mother Father
Grand mother HHSE Grand father HHSE
Former wife of father or Grand mother Former husband of father or Grand father
HHSE HHSE

Former wife of brother Brother of former husband

Former wife of either parent’s brother Nephew of former husband
Former wife of either grandparent’s brother Grand nephew of former husband

Sister Brother
Either parent’s sister Either parent’s brother
Daughter of brother or sisiter Son of a brother or sisiter
 Conditions for a Hindu
Section 5 Marriage
▪ Monogamy

▪ Mental Capacity

▪ Age of the parties: Consent

▪ Degrees of prohibited relationship

▪ Sanpinda Relationship
 Conditions for a Hindu
Section 5 Marriage
Monogamy
▪ The voluntary union for life of one man with one woman to
exclusion of all others

▪ It enacts that neither party must have a spouse living at the time of
marriage
▪ ‘Spouse’ here means a lawfully married husband or wife

▪ Both parties must be either single or divorced or a widow or a

widower
]
 Conditions for a Hindu
Section 5 Marriage
▪ Contravention to any provision will create the marriage as void ab initio
▪ Pilla Narsamma v Record Officer AIR 2011 AD 183 [Customary divorce]
▪ Sona Rakshel v Vinod Kumar Nayak AIR 2012 Chh 100 [assurance of dissolution of prior marriage
according to custom

▪ It is not voidable
▪ Void marriage and Succession of property by children : Yes
▪ Bhogadi Kannababu v Vuggina Pydamma AIR 2006 SC 2403

▪ Void marriage and succession of property by Second wife: No

▪ Nimbamma v Rathnamma AIR 1999 Kant 226

▪ Application of the wife and marriage thereafter is void

– Santosh Kumar v Surjit Singh AIR 1990 HP 77
 Conditions for a Hindu
Section 5 Marriage
Mental capacity
▪ Neither party must be suffering from unsoundness of mind, mental
disorder or insanity and Section 12 (1)(b) made such marriage
voidable
▪ Either party suffering from mental disorder of such a kind or to
such extent as to be unfit for marriage or procreation of children.
▪ Periodical Attack
▪ Mental order is not defined
▪ But Section 13(1) (iii) explains mental disorder
 Conditions for a Hindu
Section 5 Marriage
▪ Mental examination in cases of mental disorder can ordered suo
moto or at the request of the party to the proceeding

▪ Such examination is not violative of of Article 21 of the

Constitution
– Sharada v Dharampal AIR 2003 SC 3450

▪ Cohabitation cannot lead to the inference that spouse is of

unsound mind
– Laxmi Narayan v Santhi AIR 2001 SC 2110
 Conditions for a Hindu
Section 5 Marriage
Age of the parties
▪ Act does not mentioned expressly mentioned about
consent of the parties

▪ But lays down the condition that at the time of marriage

the bridegroom must have completed the age of 21 years
and bride of 18 years

▪ Marriage in contravention is not void or voidable but

punishable as an offence under Section 18
 Conditions for a Hindu
Section 5 Marriage
Degrees of prohibited relationship
▪ Marriage between the parties who are within the
prohibited degrees will be invalid

▪ But if there is custom such marriages are valid

▪ In almost all cases prohibition of prohibited degrees of

relationship and sapindas relationship overlap with
each other
 Ceremonies for a Hindu
Section 7 Marriage

▪ Ceremonies of a Hindu Marriage

▪ Doctrine of Factum valet

▪ Presumption as to marriage and legitimacy

 Registration of the
Section 8 Marriage
▪ Section enacts that State Government may make rule relating to
the registration of marriage

▪ It facilitates proof of the fact of marriage

▪ Marriages not to be mechanically registered – has to be after

application of mind
– Seema v Ashwin Kumar
– S Msyed Abdul Basith v Assistant commissioner of Police, Ernakulam AIR
2009 NOC 2413
– Devendra Kumar v State of UP
– Margaret Palai v Savitri Palai AIR 2010 Ori 45
 Registration of the
Section 8 Marriage

▪ Consequences of non registration and penalty for

failure to register

▪ False information offence under section 177 of

Indian Penal Code 1860
 Restitution of Conjugal
Section 9 Rights
▪ The concept accepted by Indian courts from English courts

▪ The Supreme court held that this Section is not violative of Article
14 and 21 of the Constitution
– Saroj Rani v Sudarshan Kumar AIR 1984 SC 1562

▪ Relief under the section would be restricted to a valid marriages

– Sanjeev Kumar v Priti Kumari AIR 2011 Jha 1

▪ Illicit relationship and restitution of conjugal rights

– Sarvesh Saxena v Smt Sanju Saxena Air 2010 Ut 16
 Restitution of Conjugal
Section 9 Rights
▪ Basic foundation rule of Restitution
– Society
– Comfort

▪ Restitution when decreed and when refused

– Inquiry into the matter and pass a decree for restitution of conjugal rights
– Petitioner must show the desire to resume matrimonial cohabitation
– The petitioner who is sincere in that sense can seek the relief but not
otherwise
▪ Shyamal Samaddar v Sampa Samaddar AIR 2012 Cal 220
– Court must be satisfied that withdrawal from the society of the petitioner
without reasonable excuse
 Restitution of Conjugal
Section 9 Rights
▪ Legal Grounds for refusing to grant relief:
– Any ground on which the respondent could have asked for a decree for judicial
separation or for nullity of marriage or for divorce

– Reasonable excuse

– Advantage of his own wrong

– Collusion with the respondent

– Unnecessary or improper delay in instituting the proceeding

– Grounds which are available to a wife to claim maintenance under Section 18 of

HAMA
 Restitution of Conjugal
Section 9 Rights
▪ Burden of proof
– On respondent
– On petitioner

▪ Reasonable excuse or just cause

– Grave and convincing

▪ Correspondence

▪ Mode of execution of decree

 Judicial Separation
Section 10
▪ Judicial Separation

▪ Grounds
– Adultery
– Cruelty
– Desertion
– Conversion
– Unsound Mind
– Leprosy
– Venereal disease
– Legal death
– Polygamy
– Guilty of rape
 Ingredients of Judicial
Separation

No Dissolution of marriage

Marital ties are just suspended

They continue to have the same status but are not under an
obligation to live together as husband and wife

Not prevented from resuming cohabitation

Not permitted to marry

Maintenance can be claimed

Mutual rights and obligations are suspended

 Void Marriage
1 Section 11
2 Void ab – initio
3 No decree required
4 Section 11 Prospective
5 Grounds:
Bigamous, sapinda,
prohibited relationship
6 Second marriage not offence Offence
7 Wider
Voidable Marriage
Section 12
Valid till annulled
Decree required
Section 12 retrospective
Grounds:
Impotency, mental disorder,
consent by fraud or force,
concealment of pre marriage
pregnancy
Limited
Void(Section 11)
and Voidable(Section 12) Marriage
▪ Difference between two
Voidable marriage
▪ Impotence [Clause (a)]
– Incapacity to have conjugal intercourse, which is one of the
object of the marriage
– Psychological impotence
▪ Urmiala Devi v Narinder Singh AIR 2007 HP 19
– Physical impotence
▪ Jaggannath Mudull v Nirupama Behera AIR 2009 Ori 59
– Infertility despite of normal sexual intercourse is no ground
for annulment
▪ Samir Adhikary v Krishna Adhikary AIR 2009 Cal 278
 Voidable(Section 12) Marriage
▪ Impotence [Clause (a)]
– Medical Examination to prove virginity is violates of Art 21
▪ Sing v Kaur AIR 2003 P & H 353
– Curability is not relevant consideration
▪ Samar v Snigdha AIR 1977 Cal 213

▪ Consummation
– Ordinary and complete intercourse
– Test is complete penetration
– Perfect coitus and no discharge of semen in wife’s body
– Malformation or structural defects medical evidence
– Suo motu or on the request of the party Amol Chavhan v Jyoti Chavhan AIR
2012 MP 61
– Removal of Uterus is not impotency
Voidable(Section 12) Marriage

Clause (b): Unsoundness of the Mind

▪ Presumption is towards validity of the marriage
▪ Mental incapacity must depend on a question of
degree of the defect
▪ Burden of proof
– L. Hemalatha v N. P. Jayakumar AIR 2008 Mad 98 (medical
reports are final)
– Nandkishor Agarwal v Meena Agarwal AIR 2007 Cal 110
(Mere statement of wife that she is undergoing treatment
for mental disorder is not sufficient)
 Voidable(Section 12) Marriage
Clause (c): Consent obtained by fraud
▪ Consensus of the parties
▪ Sub section (c) has to be read with clause (a) of sub section (2)
▪ The rule of making marriage voidable is not absoultue
– If the petition is presented more than one year after the force ceases or the
fraud is discovered
– consent and knowledge of the fraud but living as a husband or wife
▪ Vikesh Sharma v Shivani AIR 2010 Utr 76

▪ Marriage by force
– Test is real and intelligent consent
 Voidable(Section 12) Marriage

▪ Fraud relating to marriage

– Every misrepresentation is not fraud
– Material facts or as to the nature of ceremony concerning the
respondent
– Clear, unambiguous disclosure by parties about their pre
marital status not fraud Singh v Kaur Air 2003 SC 2310
– Particulars of the fraud is required to be mention
– Condonation of fraud
▪ Bippar Singh v Mohinder Kaur AIR 1987 P& H 391
Voidable(Section 12) Marriage

Clause (d): Respondent wife pregnant at the time of

marriage
▪ Before or after the commencement of the Act
▪ Pregnancy and sexual intercourse after knowing it
– Sharma v Sandhya AIR 2007 MP 103

▪ Mahendra Nanavati v Sushila Nanvati AIR 1965 SC

364
 Divorce Section 13

▪ Any marriage solemnized, before or after the

commencement of this Act, may, on a petition
presented…….
▪ ……….by either the husband or the wife, be dissolved
by a decree of divorce on the ground that the other
party
▪ i) has had voluntary sexual intercourse
▪ ia) has treated with cruelty
▪ ib) has deserted petitioner
▪ ii) has ceased to he a Hindu
▪ iii) has incurably of unsound mind
 Adultery Section 13(1)(i)

▪ Shastric Hindu Law

▪ Definitions
– “Voluntary sexual intercourse of a married person with one of the opposite
sex”
– “Adultery means willing sexual intercourse between a husband or wife and
one of the opposite sexes while the marriage subsist”

▪ Adultery is different in criminal laws and in matrimonial laws

– Party to the proceedings
– Married or unmarried
 Adultery Section 13(1)(i)

▪ Proof of adultery
– Circumstantial evidence
– Contagious disease in private parts
– Giving birth to child and proof of non access of husband
– Admission by party

▪ Artificial insemination and adultery

– Not adultery

▪ Ingredients
– Parties should be present physically
– Some degree of penetration of the female organ by the male organ
– Does not required of delivery of male seed in the female ovum
 Cruelty Section 13(1)(ia)

▪ No definition of Cruelty
▪ Numerous and varied ways
▪ Russell vs Russell 1897AC (395)
– Conduct of such a character as to have caused danger to life, limb, or health
(bodily or mental) or as to give rise to a reasonable apprehension of such
danger

▪ Types of Cruelty
– Physical
– Mental
 Cruelty Section 13(1)(ia)

▪ Mental Cruelty
▪ Mental pain and sufferings to the other spouse
▪ Type of life
▪ Economical and social conditions
▪ Their culture and human values
▪ Education
▪ Sentiments
 Cruelty Section 13(1)(ia)

▪ Various instances of cruelty

– False accusation of adultery
– Attempt and threat to commit suicide
– Drunkenness
– Demand of dowry
– False criminal charges
– False and baseless complaints to the employer
– Pulling of private parts
– Abortion without consent of husband
– Insulting before outsiders
– Using filthy language
– Neglect towards children
– ill treatment to in laws
– Refusal to have sexual intercourse
 Cruelty Section 13(1)(ia)

▪ Unhappy parties and matrimonial dispute

▪ Should not consider ideal wife and husband
– Reasonable man woman

▪ Intention
– PL Sayal v Sarla AIR 1961 Punj 125
– Praveen Maheta v Inderjeet Mahata AIR 2002 Sc 2582
 Desertion Section 13(1)(ib)

▪ Desertion means abandonment of the spouse by the

other
▪ Definition
– “Desertion is the separation of spouse from the other with an
intention on the part of deserting spouse of brining cohabitation
permanently to an end without reasonable cause and without
the consent of the other spouse; but the physical act of
departure by one spouse does not necessarily make that spouse
the deserting party”

▪ Types of Desertion
– Actual desertion
– Constructive desertion
 Desertion Section 13(1)(ib)

▪ Actual desertion
▪ Factum of separation
▪ Animus deserendi (intention of forsake) (factum and intent)
▪ Without the consent of the petitioner
▪ Without any reasonable cause
▪ For continuous period of two years immediately before
presentation of petition

▪ Temporarily in the state of anger

▪ Physical departure and intention to forsake
 Desertion Section 13(1)(ib)

▪ Sunil Kumar v Manju

▪ Archana Aggrwal v Suresh Jindal
▪ Bipin Chandrra v Prabhvati
▪ Mohan Singh Mawri v Haripriya
▪ Ajay Kumar v Anita Devi
 Desertion Section 13(1)(ib)

▪ Constructive Desertion
– Desertion is not only withdrawal from place bit also from state of things
– Jyotish Chandra v Meera
– Namita Das v Amiya Kumar

▪ Without Reasonable Cause

– Reasonable cause will be depend on the situation of case

▪ Termination of desertion
– Resumption of cohabitation
– Supervening Animus reverendi (Offer of reconciliation)

▪ Burden of proof
Conversion Section 13(1)(ii)

▪ Petitioner has to prove two things

– Respondent has ceased to be a Hindu
– Has converted to any other religion

▪ Nitaben v Dhrendra
▪ Savita Bose v Noshad Ahmed
 Unsoundness of Mind
Section 13(1)(iii)

▪ Psychopathic disorder
▪ Any other disorder or disability of mind
▪ Need to prove
– Incurable unsoundness of mind
– Mental disorder of such kind and to such an extent that it cannot be
expressed to live with that person
– Jitendra Choudhary v Sangeeta Mohapatra
– Pritam Kaur v Surat Singh
– Krishna Bhat v Srimathi
 Leprosy, Venereal Disease,
Renunciation of world, Death

▪ Leprosy
– Party is suffering from leprosy
– It is virulent and incurable

▪ Venereal disease
▪ Renunciation of the world
– Person must have renounced the world and
– He must have entered into a holy order

▪ Presumption of death
– Ramrati Kuer v Dwarika Prasad
 Grounds Available to Wife only:
Polygamous Marriage before 1955 Act
▪ Polygamous Marriage before 1955 Act
– The wives married were married to the person before the Act came into
force
– They are alive when petition is presented
– The marriage legally exist
– First or second wife can file case

▪ Divorce of the other spouse subsequent to filing of the petition by

the petitioner wife immaterial
– Naganna v Lachmi Bai AIR 1963 AP 82

▪ Compromise entered into by the wife would not take away her
right under this Section
– Nirmoo v Nikka Ram AIR 1968 Del 260
 Grounds Available to Wife only:
Polygamous Marriage before 1955 Act

▪ Plea of condonation was not accepted in case where the first

wife continued to live husband for years
– Chandrbhagabai v Rajaram AIR 1956 Bom 91
– Deepoo v Kehar Singh AIR 1962 Punj 183
 Grounds Available to Wife only: Rape,
Sodomy or Bestiality

▪ The Hindu Marriage Act, 1955 does not talk about the definitions
of rape, sodomy or bestiality
▪ Rape
– Definition of Rape is in Section 375 of IPC
– Even a husband can be convicted of raping of his wife if she is below the age
of 15
– Her consent is immaterial

▪ Sodomy
▪ Bestiality
 Grounds Available to Wife only:
Maintenance

▪ If the maintenance order is passed in favor of wife

– Section 18 HAMA
– Section 125 of CRPC

▪ Wife should file petition

▪ Maintenance order
▪ No resumption of cohabitation for period of one year or more
after such order has been passed
Grounds Available to Wife only:
Repudiation of marriage

▪ At the time of marriage she was below 15 years of

age
▪ She repudiated it after attaining that age but
before she attained 18 years of age
▪ Consummation of marriage immaterial
 Divorce by Mutual Consent

▪ Both parties should move to district court for presentation of

petition
▪ Parties should lived separately for a period of one year or more
▪ They have not been able to adjust with each other and have
mutually agreed that their marriage be dissolved
▪ After petition is presented they should wait for at least six months
and not later than eighteen months
▪ During this period any of the parties can withdraw their petition
▪ Before period of eighteen months again they should move to the
court for the second motion
▪ After due inquries the court shall pass decree
▪ No Petition within one year of time
– It will reduce divorces
– One year sufficient for the parties to make up their
differences
– The period counted from the date of marriage

▪ Divorce and marriage

– After divorce there is no right of appeal
– If there is right of appeal, time period of appeal has
expired and no appeal has been filed
– Appeal has been dismissed by the court
 Jurisdiction

▪ Section 19
– Every petition under Act shall be presented to the district court within the
local limits of whose ordinary original civil jurisdiction
▪ The marriage was solemnized
▪ The respondent, at the time of presentation of the petition resides
▪ Parties to the marriage last resided together
▪ In case wife is the petitioner where she is residing on the date of presentation of
the petition