Hindu marriage act

The most significant institution in human

society is marriage. It is a common
occurrence. The foundation of human
civilization has come into the picture because
of marriage. New social ties and reciprocal
rights between spouses are created through
marriage. When children are born, their rights
and position are established. Every
community recognises specific steps for
establishing these relationships and rights.
Real marriage is the acceptance of a new
status with new responsibilities that are
acknowledged by others. Every society
recognises marriage as a socially accepted
universal institution. One of the most
profound and intricate human partnerships is
marriage. In 1955, the laws governing Hindu
marriage were formalised and put into effect.
The laws governing Hindu marriage,
restitution of conjugal rights, judicial
separation, divorce, annulment of marriage,
maintenance, and guardianship are included
in the Hindu Marriage Act, 1955, which was
passed by the legislature. Sections 5 and 7 of
the Hindu Marriage Act of 1955 address the
requirements for a legally binding union
among Hindus. The present article gives an
overview of the Hindu Marriage Act, 1955,
alongside explaining current developments in
the same.

Structure of the Hindu Marriage Act, 1955

The Hindu Marriage Act is an Act of the Indian
Parliament that was approved on May 18,
1955. The Hindu Succession Act, 1956, the
Hindu Minority and Guardianship Act, 1956,
and the Hindu Adoptions and Maintenance
Act, 1956 were all enacted at this time as part
of the Hindu Code Bills. The Hindu Marriage
Act, 1955 was passed to protect the legal
rights of Hindu brides and grooms who are
joined by the holy bond of marriage. The type
of ceremony that must take place has not
been specified by law because there are
numerous methods by which a man and
woman can be wed in accordance with Hindu
tradition.

The Act of 1955 is spread across six Chapters,

consisting of 29 Sections in total. The layout
of the same has been provided hereunder:

Chapter I: Preliminary
Chapter II: Hindu Marriages
Chapter III: Restitution of conjugal rights and
judicial separation
Chapter IV: Nullity of marriage and divorce
Chapter V: Jurisdiction and procedure
Chapter VI: Savings and repeals
Purpose of the Hindu Marriage Act, 1955

The Act’s principal goal was to update and

codify the law governing marriage between
Hindus. It contained divorce and separation,
both of which are already covered by Sastrik
Law (old Hindu Law), in addition to modifying
and codifying Sastrik Law. The law became
uniform for all Hindu groups as a result of this
enactment. In India, certain different religions
have their own civil rules that regulate their
followers separately.

Essential features of the Hindu Marriage Act,

1955
Forbidding bigamy: The law forbids a man
from having multiple wives at the same time.
Section 5 of the Act specifies that it is illegal
to have two living wives at once, which is
known as bigamy. It implies that one cannot
get married to someone else without first
divorcing their spouse (divorce). If he does
the act, it is unlawful and he will be penalised
in accordance with Sections 494 and 495 of
the Indian Penal Code, 1860.
Marriageable age prescribed: The time frame
for getting married is set forth by legislation.
According to Section 5 (iii) of the Hindu
Marriage Act of 1955, the bridegroom must
be at least 21 years old and the bride must be
at least 18 years old when they get married. If
a marriage is not carried out, it is void and has
no legal standing.
Act of 1955 intends to protect the party’s
marriage: The restitution of conjugal rights is
provided for in Section 9 of the 1955 Act.
Restitution of conjugal rights refers to the
right to remain together. Conjugal rights are
defined as rights deriving from a marital tie.
The main idea of Section 9 is that a spouse
has the right to cohabitate in order to
safeguard their union and preserve its
sanctity.
Focus on the mental stability of parties
getting married: A person’s marriage will be
null and void if they were mentally unfit when
they were hitched. The individual must also
offer legally binding consent before becoming
married. The prerequisites of Hindu marriage
related to mental health and capacity are
stated in Section 5(ii)(a),(b),(c).
Significance of ceremonies involved in
marriage: The law states that if two people
get married using the customary rituals and
rights, their marriage is lawful. The father
must take care of and safeguard any children
born after marriage because they are legally
entitled to exist.

Essentials of a valid marriage under the Hindu

Marriage Act, 1955
The conditions for a valid marriage under
Hindu law have been provided hereunder:

Both the parties to the marriage should be

Hindu
Section 5 of the Hindu Marriage Act of 1955
specifies the prerequisites for a lawful Hindu
marriage, which provides that both parties
must be Hindus. If one of the parties to the
marriage is a Christian or a Muslim, the
marriage will not be considered a genuine
Hindu marriage under the Hindu Marriage Act
of 1955. Therefore, under the Act of 1955, a
lawful marriage cannot be solemnised if both
parties are not Hindus. In Yamunabai Anant
Rao Adhav v. Anant Rao Shivaram Adhav
(1988), it was made clear that Section 5 of the
Act only permits marriages to be performed
between two Hindus.
The parties to the marriage should not suffer
from unsoundness of mind, mental disorder,
or insanity
In a Hindu marriage, a person must be able to
give legally binding consent, according to
Section 5(ii)(a) of the Act of 1995. The other
party has the option to declare the marriage
null and void if neither of the parties is
competent to offer legally binding consent to
the union due to mental incapacity.

According to Section 5(ii)(b) of the Act, a

marriage may be dissolved at the discretion of
the other party if one of the parties, even
though they are capable of giving legal
consent, has been experiencing a mental
condition that renders them unfit for
marriage and for having children.
In Alka Sharma v. Chandra Sharma (1991), the
woman felt extremely chilly, anxious, and
frigid on the first night of the marriage. She
was unwilling to participate in the sexual act.
She did not attend to the family members’
requirements and was unable to explain why
she had urinated on the verandah in front of
the whole family. Thus, the husband initiated
legal action to dissolve the union. The
marriage was declared null by the court.

It is also to be noted that, according to

Section 5(ii)(c) of the Act, if one partner has
experienced repeated episodes of insanity,
the other party may choose to have the
marriage annulled. The Marriage Laws
(Amendment) Act, 1999 altered this clause of
the Hindu Marriage Act of 1955, and the
phrase “epilepsy” has been removed. Because
of this, in modern times, if a party to a
marriage experiences frequent seizures, the
marriage is still legal and the party cannot
choose to annul it.

The marriage should be monogamous

Section 5(i) of the Hindu Marriage Act, 1955
specifies that neither party had a spouse who
was still alive at the time of the marriage. The
marriage is deemed null and void if any of the
parties had a spouse who was still alive at the
time of the union. A bigamous marriage is
therefore invalid. A second marriage can be
legally consummated after the first one has
been ended by death or divorce.

Any marriage between two Hindus that is

solemnised before the commencement of
legislation is void if either party was married
or already had a spouse at the time of the
marriage, according to Section 17 of the Act,
which deals with the penalties for bigamy.
Also, if a person solemnised a second
marriage while the original marriage is still in
effect, they may be prosecuted and punished
in accordance with the requirements of
Sections 494 and 495 of the Indian Penal
Code, 1860.

The parties to the marriage have attained the

majority
The bride must be at least 18 years old and
the husband must be at least 21 years old at
the time of the marriage, per Section 5(iii) of
the Act. Any marriage that is performed in
contravention of these standards shall neither
be null nor voidable. Additionally, anyone
who solemnised such a marriage could be
prosecuted under Section 18 of this Act with a
harsh sentence of up to two years in jail, a
fine of up to one lakh rupees, or both.
A marriage solemnised in contravention of
the age requirements under Section 5(iii) was
found to be neither void nor voidable in the
case of P. Venkataramana v. State (1977).
However, Section 18 of the Hindu Marriage
Act of 1955 makes violating the terms illegal.

The parties to the marriage should not be

related as Sapindas
A marriage between two people who are
associated as Sapindas is void, according to
Section 5(v) of the 1955 Act, if it is
solemnised. To put it another way, the
husband and wife shouldn’t share the same
ancestry. According to Section 3 (f) of the
Hindu Marriage Act of 1955, a Sapinda
relationship is one in which a person extends
as far as the third generation (inclusive) in the
line of descent through the mother and the
fifth generation (inclusive) in the line of
descent through the father, the line in each
case being traced upward from the individual
in question, who is to be counted as the first
generation.

Even though the marriage between the

Sapindas is null, it may still be lawful if there
is a valid custom or usage that governs each
of them and allows for such a union. By virtue
of Section 18 of the Act, a marriage
solemnised between two parties related to
Sapindas is void and the parties are subject to
punishment, which may include both simple
imprisonment for a month and a fine of Rs.
1,000.

The parties should not come under the

degree of prohibited relationships
The parties should not be considered to be in
a banned relationship under Section 5(iv) of
the Act unless their respective cultures’
traditions allow for marriage between them.
According to Section 3(g) of the Act of 1955,
two people are considered to be in a banned
relationship if they are:

If one is the other’s lineal ascendant or

If one was married to or had a descendant
from the other’s lineal ascendant;
If one was the spouse of the other’s brother,
father, mother, grandpa, grandmother, or any
other relative; or
If one of the two is a brother or sister, an
uncle or niece, an aunt or nephew, a child of a
brother or sister, or the children of two
brothers or sisters.
A marriage between two people is void if it
falls within the parameters of a banned
relationship. However, marriage is legitimate
if it is governed by a valid custom or usage
that applies to both parties. It is crucial that
the usage or custom being practised be
certain, reasonable, and not in conflict with
public policy. Various traditions that validate
marriage in the context of banned
partnerships can be found all over India. For
instance, it’s usual practice in Kerala to marry
off siblings’ offspring.

In the case of Balu Swami Reddiar v.

Balakrishna (1956), the court determined that
it was improper and against public policy, for
one to marry his daughter’s daughter in
accordance with a Reddiar custom that was
well-known among them in the state of
Madras. A marriage solemnised between two
persons that fall under the definition of a
forbidden relationship is void pursuant to
Section 18 of the Act, and the parties are
subject to a fine of INR 1,000 or one month’s
simple imprisonment, or both, depending on
the severity of the offence.
The marriage should be solemnised in
accordance with the customary rites and
ceremonies
According to Section 7 of the Act, a Hindu
marriage is lawful under the 1955 Act if it is
performed in conformity with the traditional
rites and ceremonies of either party. If such
rituals and ceremonies involve the saptapadi
and binding, when the seventh step is taken,
the marriage is considered to be complete.

In the case of Bibba v. Ramkall (1982), the

court determined that performing certain
ceremonies merely with the goal of
considering the couples married does not
constitute performing the legal rituals.
Depending on each person’s customs, the
ceremonies may differ. For instance, a
significant customary rite used by the Nair
caste in Kerala is the presentation of a piece
of cloth by the bridegroom to the bride
(pudava kodukal).

Void and voidable marriage under the Hindu

Marriage Act, 1955
A marriage is null and void under Section 11
of the Act of 1955 if either party is already
married to another person. Only the second
wife may file a petition under Section 11 in
cases where the marriage is nullified because
the groom has taken a second wife. Only one
of the parties may file the petition to dissolve
the marriage. If a husband remarried without
first getting a divorce decree because his first
wife had left him and moved in with another
man, that second marriage would be null and
void. A divorce decree issued by an
experienced court is necessary. The second
marriage would also be null and void if the
woman was unable to demonstrate the
practice of divorce through the assistance of a
reputable member of society. There is no
provision in the 1955 Act that allows a
woman to get an injunction stopping her
husband from getting a second marriage,
even if she learns that he is considering it.

According to Section 12 (1), a declaration of

nullity may be issued to declare a marriage
null and void for the following reasons:

1.Unsoundness of mind (is a violation of

Section (5)’s clause (ii)).
2.The petitioner’s consent was coerced or
gained fraudulently.
1.Unsoundness of mind
The 1955 Act particularly prohibits those with
severe, incapacitating, and persistent mental
illnesses from getting married since they
would be unsuited for marriage and
childbearing. Additionally, it states that the
person must be unable to provide legal
permission as a result of mental disease. A
marriage that deviates from the norm,
however, can only be annulled at the request
of the other party, who must file a petition for
nullity and bear the burden of establishing
the other person’s mental condition.

2.Consent obtained by means of fraud

According to Section 5 clause (i)(c), the
marriage is voidable if the petitioner’s
consent was obtained under duress or by
fraud with regard to the nature of the
ceremony or any significant event involving
the respondent. Consent-voiding force
includes both the threat of using force and
the actual use of force. Fraud’s primary
component is deception. Relevant
information includes all relevant facts and
situations that could persuade or otherwise
affect a party’s decision to give or withhold
consent to marry. Consequently, a simple lie
is not a fraud. Similarly, not every lie or
misrepresentation constitutes fraud. Thus,
Section 12’s grounds for annulling a marriage
do not include just hiding the knowledge that
the husband has been married to another
woman.

Nullity of marriage under the Hindu Marriage

Act, 1955
Any marriage is voidable and subject to
annulment for the following reasons:

1.Failure to consummate the union due to

impotence, which may be complete or partial
(for instance, impotence quoad hoc
conditions);
2.Violation of the valid consent mental illness
condition specified in Section 5; or
3.Respondent’s pregnancy by someone other
than the petitioner at the time of the union.
A husband or wife may file for divorce under
certain circumstances, such as a continuous
period of desertion lasting two years or
longer, conversion to a faith other than
Hinduism, mental aberration, venereal illness,
and leprosy. If a husband marries a second
time after starting their first marriage or if he
has committed rape, sodomy, or bestiality,
the wife may also file a petition for the
dissolution of the marriage. Within the first
year of marriage, newlywed couples are
unable to sue for divorce.

Restitution of conjugal rights under the Hindu

Marriage Act, 1955
Section 9 of the Hindu Marriage Act of 1955
provides for the restoration of conjugal rights.
Section 9 of the aforementioned Act
recognises and protects one aspect of
conjugal rights, the right to the consortium,
by allowing a spouse to file a lawsuit to
defend the right. The capacity to request
maintenance under Section 25 of the Hindu
Marriage Act, 1955 is one of the significant
consequences offered to an aggrieved party
under Section 9 of the Hindu Marriage Act,
1955.

The significance of conjugal rights in a

marriage is recognised by numerous
provisions of Indian personal law. In the
strictest sense, marriage rights refer to the
freedom to cohabit and have a sexual
relationship with one’s spouse. The wife and
husband must respect each other’s rights and
live together, which is one of marriage’s most
basic obligations. “Restitution of Conjugal
Rights” is a legal clause that enables the
offended party to restore cohabitation with a
spouse who withdrew without cause. It’s
frequently thought of as a strategy to keep a
marriage intact. Marriage imposes various
marital obligations and grants each spouse
legal rights under all matrimonial laws. The
Act’s contested clause has a lengthy history
due to its constitutional legitimacy.

Although it was designed to safeguard the

interests of those involved in a marriage
bond, this clause has faced challenges and
criticism for a number of reasons. The
provision’s constitutionality was contested in
the T. Sareetha v. T. Venkatasubbaiah (1983)
case before the Andhra Pradesh High Court.
According to the plaintiff in this lawsuit,
Section 9 of the Hindu Marriage Act breaches
fundamental rights protected by Articles 14
and 21 of the Constitution. The Court felt that
this clause was particularly unfriendly and
barbaric toward women. Her right to her own
body is violated as a result of this forced
cohabitation, and she loses her free choice
regarding her sexual autonomy. As a result, a
decree of restitution of conjugal rights will
offend her right to privacy protected by
Article 21. Since sexual cohabitation is a
private decision between a husband and wife,
the abovementioned provision was initially
ruled illegal by the Court in 1983. Accordingly,
the state should not intervene in such private
decisions.

The Delhi High Court, however, held a

different viewpoint. The Court noted that
there are various misunderstandings about
Section 9 that have sparked discussions about
its constitutionality and given rise to such
discussions. Marriage is a religious ceremony,
according to the Court, and efforts have been
taken by the law to maintain its sanctity.
Therefore, the restitution of the conjugal
rights clause was implemented to prevent
either the husband or the wife from ending
their cohabitation without a good reason. The
true purpose of the regulation, which is to
uphold the marriage tie between two people,
must therefore be taken into account when
determining whether it is constitutional. As a
result, the Court determined that Section 9
does not contravene Articles 14 and 21
because it was included as a new justification
for filing for divorce. Sexual activity should
not be viewed as the summum bonum
because it is one of the components of the
institution of marriage, which is founded on
cohabitation and consortium.

The Supreme Court’s ruling in the case of

Saroj Rani v. Sudarshan Kumar Chadha in
1984 put an end to all disputes. The Delhi
High Court’s judgment was accepted in this
instance, and the Andhra Pradesh High
Court’s decision was overturned. According to
the Court, the relevant clause “serves a
societal purpose as an assistance to the
avoidance of marriage breakdown” and
functions as a remedy. Although this remedy
may be antiquated in nature, its purpose is to
serve as a basis for divorce should the parties
in question refuse to make such reparation. In
addition, the Court believed that it was up to
the legislature to repeal Section 9 as a
remedy, not the courts. Thus, in this historic
decision, Section 9 was found to be
constitutionally legitimate.