The following is a summary of the Hindu Marriage Act 1955, which
aims to allow a reader to understand the key points within the Act
without having to read the Act itself.
Introduction -
India,
being a cosmopolitan country, allows each citizen to be governed under
personal laws relevant to religious views. This extends to personal laws
inter alia in the matter of marriage and divorce.
As part of the
Hindu Code Bill, the Hindu Marriage Act was enacted by Parliament in
1955 to amend and to codify marriage law between Hindus. As well as
regulating the institution of marriage (including validity of marriage
and conditions for invalidity), it also regulates other aspects of
personal life among Hindusand the applicabilityof such lives in wider
Indian society.
The Hindu Marriage Act provides guidance for
Hindus to be in a systematic marriage bond. It gives meaning to
marriage, cohabiting rights for both the bride and groom, and a safety
for their family and children so that they do not suffer from their
parental issues.
Applicability
The Act applies to all forms
of Hinduism (for example, to a person who is a Virashaiva, a Lingayat or
a follower of the Brahmo, Prarthana or AryaSamam) and also recognises
offshoots of the Hindu religion as specified in Article 44 of the Indian
Constitution. Notably, these include Jains and Buddhists. The Act also
applies to anyone who is a permanent resident in the India who is not
Muslim, Jew, Christian, or Parsi by religion.
Although the Act
originally applied to Sikhs as well, the AnandKarj Marriage Act gives
Sikhs their own personal law related to marriage.
Although the
Act originally did not apply to citizens in the State of Jammu and
Kashmir, the effect of the J&K Hindu Marriage Act, 1955 made it
applicable.
Conditions for marriage -
Section 5 of The Hindu
Marriage Act specifies that conditions must be met for a marriage to be
able to take place. If a ceremony takes place, but the conditions are
not met, the marriage is either void by default, or voidable.
Void marriages -
A marriage may be declared void if it contravenes any of the following:
Either party is under age.The bridegroom should be of 21 years of age and the bride of 18 years.
Either party is not of a Hindu religion.Both the bridegroom and the bride should be of the Hindu religion at the time of marriage.
Either party is already married. The Act expressively prohibits polygamy. A marriage can only be solemnized if neither party has a living spouse at the time of marriage.
The parties are sapindas or within the degree of prohibited relationship.
Voidable marriages
A marriage may later be voidable (annulled) if it contravenes any of the following:
Either party is impotent, unable to consummate the marriage, or otherwise unfit for the procreation of children.
One party did not willingly consent. In order to consent, both parties must be sound of mind and capable of understanding the implications of marriage. If either party suffers from a mental disorder or recurrent attacks of insanity or epilepsy, then that may indicate that consent was not (or could not be) given. Likewise, if consent was forced or obtained fraudulently, then the marriage may be voidable.
The bride was pregnant by another man other then the bridegroom at the time of the marriage.
Ceremonies
Section 7 of the Hindu Marriage Act recognises that there may be
different, but equally valid ceremonies and customs of marriage. As
such, Hindu marriage may be solemnized in accordance with the customary
rites and ceremonies of either the bride or the groom. These rites and
ceremonies include the Saptapadi and Kreva.
Registering a marriage
- A marriage cannot be registered unless the following conditions are fulfilled:
- a ceremony of marriage has been performed; and
the parties have been living together as husband and wife
Additionally,the parties must have been residing within the district of
the Marriage Officer for a period of not less than thirty days
immediately preceding the date on which the application is made to him
for registration.
Section 8 of the Hindu Marriage Act
allowsastate government to make rules for the registration of Hindu
marriages particular to that state, particularly with respect to
recording the particulars of marriage as may be prescribed in the Hindu
Marriage Register.
Registration provides written evidenceof
marriage. As such, the Hindu Marriage Register should be open for
inspection at all reasonable times (allowing anyone to obtain proof of
marriage) and should be admissible as evidence in a court of law.
Divorce
Although marriage is held to be divine, the Hindu Marriage Act does
permit either party to divorce on the grounds of unhappiness, or if he
or she can prove that the marriage is no longer tenable.
A
petition for divorce usually can only be filed one year after
registration. However, in certain cases of suffering by the petitioner
or mental instability of the respondent, a court may allow a petition to
be presented beforeone year.
Grounds for divorce
- A marriage may be dissolved by a court order on the following grounds:
- Cruelty - the respondent has physically or mentally abused the petitioner.
- Desertion - the respondent has deserted the petitioner for a continuous period of not less than two years.
- Conversion to another religion - the respondent has ceased to be a Hindu and has taken another religion.
- Unsound mind - the respondent has been diagnosed since the marriage ceremony as being unsound of mind to such an extent that normal married life is not possible.
- Disease - the respondent been diagnosed with an incurable form of leprosy or has venereal disease in acommunicable form.
- Adultery - the respondent has had voluntary sexual intercourse with a man or a woman other than the spouse after the marriage.
Presumption of death - the respondent has not been seen alive for seven years or more.
No resumption of cohabitation after a decree of judicial separation for a period of at least one year.
No resumption of cohabitation after a decree of judicial separation for a period of at least one year.
In addition, a wife may also seek a divorce on the grounds that:
In case of marriagesthat took place before the Hindu Marriage Act
1955 was enacted, the husband was already married and that any other
wife of thehusband was alive at the time of the marriage ceremony.
The husband, after marriage, has been found guilty of rape, sodomy or bestiality.
Co-habitation has not been resumed within a yearafter an order for maintenance under Section 125 of the Criminal Procedure Code or alternatively, under the Hindu Adoptions & Maintenance Act 1956.
The wife was under-age when she married and she repudiates the marriage before attaining the age of 18 years.
Alimonies (permanent maintenance)
At the time of the decree of divorce or at any subsequent time, the
court may decide that one party should pay to the other an amount for
maintenance and support. This could be a one off payment, or a
periodical (such as monthly) payment. The amount to be paid is at the
discretion of the court.
Remarriage
Remarriage is possible
once a marriage has been dissolved by a decree of divorce and no longer
able to be appealed (whether there was no right of appeal in the first
place, or whether the time for appealing has expired, or whether an
appeal has been presented but dismissed).
Hindu Marriage Law
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