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  • Asmita Shrivastava

Marriage and Divorce under the Hindu Marriage Act, 1955

Written by: Asmita Shrivastava, 3rd year student pursuing B.A.LL.B (H), Narsee Monjee Institute of Management Studies, Indore

INTRODUCTION

In Hindus, marriage is viewed as a sacred relationship between two individuals. The Hindu Marriage Act, 1955 was introduced with the objective of amending and codifying the laws pertaining to Hindu marriages. It is extended to the entire country and is effective to all the Hindus domiciled in the territory of India. It is applicable on anyone who practices Hinduism   including Buddhists, Jains and Sikhs. Hindu culture is commonly known for its diversity of customs and rituals that constitute the marriage.

             Marriage is considered as a sacred institution in Hinduism. A holy bond is created between two individuals who have agreed to form a lifelong partnership. Hindu marriage  not only unites two individuals but it also creates a union between two families. It is viewed as a sacrament. The rituals of marriage are carried out in front of a sacred fire and it’s believed that God’s blessings are solicited during the rituals.

ESSENTIAL CONDITIONS FOR A VALID HINDU MARRIAGE

Section 5 of the Hindu Marriage Act of 1955 stipulates that the following conditions are essential for a valid Hindu Marriage-

1.      Both the parties must be of Hindu religion

Both the parties that is the bride as well as the groom must be a Hindu. Neither of the parties can convert to any other religion at the time of marriage.

2.      Free Consent of the parties

Both parties to the marriage have to freely give their consent to the marriage. If either husband or wife are forced for marriage, then it will not be a valid marriage.

3.      Soundness of mind

Both the parties to the marriage must be of sound mind and capable of giving consent at the time of marriage. They should not suffer from any mental illness or disorder due to which they are unable to give consent.

4.      Age of the parties

The bride must have completed at least 18 years of age and the bridegroom must have completed at least 21 years of age for a valid marriage. If any marriage is performed before this age, then it will be invalid.

5.      Monogamous nature of marriage

A valid Hindu marriage is monogamous in nature. Polygamy is strictly prohibited. Neither of the parties must have a spouse living at the time of marriage. If either of the party has a spouse living at the time of marriage, then it will be considered invalid.

6.      Not is a prohibited degree of relationship

The parties to the marriage must not be in a prohibited degree of relationship unless it is permitted by the custom or usage governing it.

7.      Not in a sapinda relationship

The parties to the marriage must not be sapindas of each other unless it is permitted by the custom or usage it.

RESTITUTION OF CONJUGAL RIGHTS

The restitution of conjugal rights is defined under section 9 of the Hindu Marriage Act, 1955. It applies when either the husband or wife withdraws from the other's society for no obvious reason. The aggrieved party can file a petition for restitution of conjugal rights to the district court. If the court believes that the statements made in the petition are true and there is no legal ground for rejecting the application, it can order the restitution of conjugal rights in accordance.

CASE LAWS

1.      Smt. Vibha Shrivastava vs. Dinesh Kumar Shrivastava

It was held by the Madhya Pradesh High Court that if a wife refuses to leave her job, it will not be assumed that she has withdrawn from her husband's society. Hence, husband’s petition to seek relief for restitution of conjugal rights is insufficient.

2.      Shanti Devi vs. Ramesh Chandra Roukar and Ors

It was held by the Allahabad High Court that a simple refusal by a wife to resign from her job will not be considered as a withdrawal from the society. In consequence, it is an inadequate grounds for issuing a decree under the restitution of conjugal rights.

JUDICIAL SEPARATION

Judicial Separation is covered under Section 10 of the Hindu Marriage Act,1955. It is a legal process that allows spouses who are unable to live together on account of incompatibility or unsolvable conflicts to be separated legally. It is not similar to divorce, because in divorce the marriage legally comes to an end. Judicial separation permits spouses to live separately while remaining legally married. Spouses have the choice to live together again because they are still legally married.

        Judicial Separation can be granted by the order of a civil court. It can be granted on the grounds of adultery, cruelty, desertion, or on the basis of any other legal decision that the court deems to be adequate. If the court believes that the petitioner’s grounds are adequate, it can issue a decree of judicial separation.

CASE LAW

1.        Meena vs. Lachman (1959)

The wife departed to her parent’s residence without notifying her husband. She made false promises of returning back to his home but did not come back for a period of 2 years. This amounted to desertion. Desertion is a valid ground for judicial separation. Judicial separation was granted by the Bombay High Court on the grounds of desertion.

2.        Dr. H.T. Vira Reddi vs. Kistamma (1968)

The court awarded the appellant (husband) judicial separation on the grounds that the respondent (wife) was involved in sexual activity with another individual. Adultery is a valid ground for judicial separation. It was declared by the court that "the remedy of legal separation will be granted irrespective of whether a single act of adultery committed on the part of the other spouse is proved."

DIVORCE

Divorce is covered under Section 13 of the Hindu Marriage Act of 1955. Divorce refers to the end of a marriage. Divorce can be granted on the basis of the following grounds:

1.        Adultery

If either of the spouse has extramarital affairs and commits sexual intercourse with a third person, he has committed adultery. Despite the fact the adultery has been decriminalized by the supreme court, it still remains a valid ground for divorce. A single act of adultery is an adequate ground for divorce.

2.         Conversion of religion

When either husband or wife has lost his Hindu identity by converting into a different  religion, the aggrieved party can file a petition for divorce.

3.        Cruelty

Cruelty includes both physical as well as mental cruelty. It involves acts of violence, demand for dowry and mental torture by either of the spouse.

4.        Renunciation

If either of the spouse has completely renounced the world by entering into a holy order (sanyasa), the aggrieved party can file a petition for divorce.

5.        Leprosy

Leprosy can be used as remedy for divorce, and the petitioner is accountable for proving this. Nevertheless, The Personal Laws Amendment Bill (2018) has directed the Hindu Marriage Act to eliminate leprosy as a reason of divorce because now it is curable.

6.        Presumption of Death

A person is considered to be dead based on the possibility of death, if the spouse has not been heard alive since 7 years. The burden of proving that the respondent’s presence has been unknown for 7 years rests with the petitioner.

7.        Venerable Communicable Disease

If one of the spouse has been diagnosed with a venerable disease that is transmittable in nature, the other spouse can file a petition for divorce.

8.        Insanity or Mental Disorder

If one of the spouse suffers from mental disorder or unsoundness of mind which is incurable in nature, then the other spouse can file a petition for divorce. In case of incurable mental illness, it is not appropriate to expect the petitioner to continue living with the respondent.

9.        Desertion

When either of the spouse leaves the society of other for a period of 2 years or more, it is known as desertion. In case of desertion, the aggrieved party can file a petition for divorce.

DIVORCE BY MUTUAL CONSENT

When none of the above mentioned grounds of divorce are applicable, but it’s a mutual decision of both the parties to not live together and remain legally married, they can file a divorce under Section 13B of the Hindu Marriage Act, 1955. Both parties must have lived separately for at least a year if they want to file for divorce with mutual consent.

CONCLUSION

The Hindu Marriage Act, 1955 amends and establishes the law regulating Hindu marriage. It emphasizes that not all Hindus have the right to marry. It sets the conditions for a Hindu marriage as well as offers plenty of matrimonial reliefs, including restitution of conjugal rights, judicial separation, nullity of marriage, and divorce. Divorce is a legal remedy available for ending a marriage. Marriage carries certain restrictions in the case of mental illness. Marriage has mostly transformed into a contract, and it is losing its sacredness as a socio-religious institution.

REFERENCES

 

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