Marriage and Matrimonial Remedies (Hindu Marriage Act, 1955) notes — Unit 2

Historically, a Hindu marriage was viewed as a holy sacrament (Sanskar), an indissoluble holy union. The Hindu Marriage Act, 1955 (HMA) introduced elements of a contract while retaining the sacramental ceremonies. Section 5 of the HMA lays down 5 essential conditions for a valid marriage.

⇒1.1 The Five Conditions (Section 5)

• 1. Monogamy [Sec 5(i)]: Neither party has a spouse living at the time of the marriage. Bigamy is completely void and punishable under IPC.
• 2. Mental Capacity [Sec 5(ii)]: At the time of marriage, neither party is incapable of giving valid consent due to unsoundness of mind, nor suffering from a mental disorder making them unfit for marriage/procreation, nor subject to recurrent attacks of insanity.
• 3. Age of Marriage [Sec 5(iii)]: The bridegroom has completed 21 years and the bride has completed 18 years of age.
• 4. Prohibited Degrees [Sec 5(iv)]: The parties are not within the degrees of prohibited relationship (e.g., brother-sister, uncle-niece) unless their custom allows it.
• 5. Sapinda Relationship [Sec 5(v)]: The parties are not sapindas of each other (descendants from common ancestors up to 5 generations on the father's side and 3 on the mother's side), unless custom allows it.

⇒2.1 Ceremonies (Section 7)

A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party.

• Saptapadi: Where such rites 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.
• (Note: If a couple just signs a paper in a temple without performing the customary ceremonies, the marriage is not valid under HMA).

⇒2.2 Registration (Section 8)

Registration of Hindu marriages is optional under the HMA. However, the Supreme Court in Seema v. Ashwani Kumar (2006) directed all states to make the registration of marriages compulsory to prevent child marriages and protect women's rights.

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply to the court for restitution of conjugal rights.

• Burden of Proof: The person who withdrew from the society has the burden to prove a 'reasonable excuse'.
• What is reasonable excuse? Cruelty, adultery, or if the husband insists on keeping a mistress in the house.
• Constitutional Validity: In Saroj Rani v. Sudarshan Kumar, the Supreme Court held that Section 9 is constitutionally valid and does not violate the Right to Privacy (Article 21). The purpose is to save the marriage, not to force physical relations.

⇒3.1 Judicial Separation (Section 10)

Either party can file for Judicial Separation on any of the grounds available for divorce. If the court grants the decree, the marriage remains valid, but the parties are no longer bound to cohabit with each other. It is a 'cooling-off' period. If they don't resume cohabitation within 1 year, it becomes a ground for divorce.

⇒4.1 Void Marriages (Section 11)

A void marriage is a marriage that is invalid from its very inception (void ab initio). It has no legal existence. A marriage is void if it violates:

• Section 5(i): Bigamy.
• Section 5(iv): Prohibited degrees of relationship.
• Section 5(v): Sapinda relationship.

⇒4.2 Voidable Marriages (Section 12)

A voidable marriage is valid until it is annulled by a court decree at the option of one of the parties. Grounds for voidability:

• 1. Impotency: Marriage has not been consummated owing to the impotence of the respondent.
• 2. Unsound Mind: Violation of Section 5(ii) regarding mental capacity/insanity.
• 3. Force or Fraud: The consent of the petitioner was obtained by force or fraud regarding the nature of the ceremony or a material fact concerning the respondent.
• 4. Pregnancy: The respondent was, at the time of the marriage, pregnant by some person other than the petitioner.

The HMA allows for the dissolution of marriage by a decree of divorce. It is based primarily on the 'Fault Theory', but includes aspects of 'Breakdown Theory' and 'Mutual Consent'.

⇒5.1 Fault Grounds [Section 13(1)]

• Adultery: Voluntary sexual intercourse with any person other than the spouse.
• Cruelty: Treating the petitioner with physical or mental cruelty. In Dastane v. Dastane, the SC held that cruelty means conduct that causes a reasonable apprehension in the mind of the petitioner that it will be harmful/injurious to live with the respondent.
• Desertion: Abandoning the petitioner for a continuous period of not less than 2 years without reasonable cause and without consent.
• Conversion: Ceasing to be a Hindu by conversion to another religion.
• Insanity / Leprosy / Venereal Disease: Suffering incurably from these conditions.
• Renunciation / Presumption of Death: Renouncing the world (Sanyasi) or not being heard of as alive for 7 years.

⇒5.2 Special Grounds for Wife [Section 13(2)]

A wife can additionally seek divorce if the husband is guilty of Rape, Sodomy, or Bestiality, or if an order of maintenance was passed in her favor and they haven't cohabited for 1 year.

Introduced by the 1976 Amendment, Section 13B allows a civilized separation when the marriage has totally broken down.

⇒6.1 Procedure for Mutual Consent

• 1. Both parties must present a joint petition stating they have been living separately for 1 year or more, they have not been able to live together, and they have mutually agreed to dissolve the marriage.
• 2. Cooling-Off Period: The court grants a waiting period of minimum 6 months and maximum 18 months. This is to allow them to reconsider.
• 3. Second Motion: If the petition is not withdrawn within this period, the parties make a second motion. The court will then pass a decree of divorce.

⇒Summary of Key Takeaways

• Section 5: Monogamy, Mental Capacity, Age (21/18), Prohibited Degrees, Sapinda.
• Void (Sec 11): Bigamy, Prohibited degrees, Sapinda. (Void Ab Initio).
• Voidable (Sec 12): Impotency, Force/Fraud, Pregnancy by another, Insanity.
• Restitution of Conjugal Rights (Sec 9): To save the marriage. Held constitutional in Saroj Rani.
• Divorce (Sec 13): Cruelty (Dastane), Desertion, Adultery.
• Mutual Consent (Sec 13B): Requires 1 year separation + 6 months cooling-off (can be waived per Amardeep Singh).

⇒University Exam Tips for this Unit

• Void vs Voidable: Always draw a clear distinction. Examiners frequently ask this. Remember that violating the Age condition (Sec 5(iii)) makes a marriage punishable and attracts the Prohibition of Child Marriage Act, but HMA interestingly does NOT list underage marriage under Section 11 (Void) or Section 12 (Voidable).
• Mental Cruelty: When answering a question on Cruelty, you must cite Dastane v. Dastane and explain that mental cruelty is equally a ground for divorce.
• Legitimacy of Children: If an exam problem states A married B while his first wife was alive, and they had a child C. A dies. Does C inherit? Answer: The marriage is Void (Sec 11). But under Sec 16, C is legitimate and CAN inherit A's self-acquired property.