Hindu Marriage Act 1955

Applied in Whole of India

Section 2
Define who Hindu is?

Veerashaiva & Lingayaat are Hindus

Arya Samaj , Brahmo Samaj, Prathana Samaj

Sikhs, Jains, Buddhists

All persons are Hindu who are not Jews, Muslims, Parsis, Christians

Both Parents are Hindus.

One parent is Hindu, which religion was the child brought up in? That is the child’s religion.

Maneka Gandhi vs. Union of India - Court declared Rajiv Gandhi (Indira Gandhi’s child) as
Hindu as he was brought up Hindu.

Conversion and Re-conversion

Section 2 (2)
Scheduled Tribes are Hindus. Some instances Hindu Marriage Act is not applicable on STs,
however if Central Government wants it can apply Hindu Marriage Act on STs by use of
notification.

Section 2 (3)
Some people are not Hindu by religion but Hindu Marriage is still applied on them.
In older times, there was no concept as marriage and polygamy used to occur. Children were
born without marriage and society brought in marriage to ensure proper upbringing of child.
Thus HMA was brought in 1955. Manu Code preceded HMA.

Kinds of marriage:

1) Brahma – Considered above Holy Marriage. Groom who studied Veds. Bride was given gift
by father in law.

2) Daiva – Family waits till certain time for groom for daughter. If not found, family approaches
priest to get help.

3) Arsh – Pair of cows given to bride’s father by groom in exchange of bride. Mostly done in
family of priests.

4) Prajapatya – Very good concept of marriage. Followed nowadays mostly. “From today
onwards you are husband and wife and today onwards you have to fulfill your civil duties”

5) Asura – Bride is purchased with money (Sulka).

6) Godhara – Love Marriage (Gandharva marriage when flee and marry)

7) Rakshasa – Bride married forcefully by kidnapping.

8) Paishacha – If a guy has physical relation with a girl then he has to marry her.

Ancient (sacramental) marriage was considered Holy union, permanent and indissoluble (thus
sati arose).

In modern marriages, consent of parties is taken. Modern marriage is dissoluble. Widow

remarriage is also possible.

Section 3 (Defines Custom)

Customs are:

 Practiced for a long time.

  Immemorial( can’t remember when it commenced)
 No interruption in practice of it (uniformity)
 Enforceable by law

In sapinda, you cannot marry and marriage becomes void. There are degrees.

Obtained theory – Pind Daan. If two people worship the same departed ancestor (offer pinda),
they cannot marry and marriage will be void as they fall under sapinda relationship. The concept
of Sapinda relationship as defined in the Smritis as 7 degrees with respect to father's side and 5
degrees with respect to mother's side.

Particles of Same Body Theory – 5 degrees with respect to father's side and 3 degrees with
respect to mother's side.

Ancestors can be half blood, illegitimate etc but they are counted.

Full Blood – Father Mother Same

Half Blood - Same Father, Different Wives.

Uterine Blood – Same Mother, Different Fathers.

Prohibited Relationship –

1. Lineal Ascendants of others – Father cannot marry daughter and vice versa.

2. Ascendants – Father in law cant marry son in law and vice versa.

3. Brothers and Brother’s wifes / son cant marry step mother / Can’t marry mother’s brother’s
wife.

4. Brother and Sister (Even Step bro sis)/ Aunt and Nephew / Uncle and Niece / Children of
brother and sisters (cousins)

Section 5 (Conditions of Hindu Marriage)

1. Allows Monogamy – Single Relation Marriage (These rules apply after this act was
enacted)

Sarla Mudgar v UOI

A (Wife) Married to B under HMA.

B converted to Islam and married C.

Supreme Court held that since B was married with A under HMA, B has committed Bigamy and
will be punished under IPC. It was also note B’s conversion into Islam was so that he could do
bigamy.

Lily Thomas v UOI

Even if you convert into another religion, you cannot marry even if your new religion permits it
as long as an existing marriage under HMA exists.

Yamuna Bai v Anant Rao

Supreme Court, if a person has 2 wives. First wife’s marriage is considered valid whereas second
wive’s marriage is considered void. First wife can’t declare marriage void under Sec. 11 of HMA
but she can demand under Section 34 of SRA that status of second marriage. Second wife can
declare void under Sec. 11 of HMA.

2. Consent – Consent has to be valid and free.

Not unsound mind and no mention disorder. Voidable.

3. Girl 18 and Boy 21

However even age is below 18 / 21, the person who got them married will be punished under
Sec. 18 of HMA.

Prohibition of Child Marriage Act 2006, marriage is voidable. However under Prohibition of
Child Marriage Act 2006, if marriage is forced or by deceit or paid marriage becomes void.
Children will be legitimate.

(In SMA, marriage becomes void if age is below 21)

4. Prohibited Relationship. – Void

5. Sapinda – Void

Section 6 – Repealed

Section 7 – Ceremonies
If ceremonies fulfilled, marriage is fulfilled. If ceremonies not fulfilled then marriage is
considered void.

If sapinda / prohibited relations marry and complete their ceremonies, even if the marriage is
considered void, their children will be considered legitimate.
Section 8 – Registration of Marriage
Registration of Marriage is not compulsory. But if state govt wants, it can be made compulsory.
Even not registered, then 25 rupees fine, but marriage remains valid.

Seema v Ashwini

In this case, Supreme Court asked recommended all States to make registration necessary.

Section 9 – Restitution of Conjugal Rights

Where wife or Husband without reasonable cause withdraws from the society of others.

If husband or wife does not return to respective spouse even after court order, she will not be
arrested but property may be attached to pressurise.

After 1 Year, a ground of divorce arises.

Tirath Kaur v Kirpal Singh

If wife starts doing job elsewhere, then husband can get RCR in his favour.

Shanti v Ramesh

If she is doing a job elsewhere but is fulfilling marital obligations then it won’t be considered
withdrawal from spouse’s society. Husband can’t get RCR order.

Sareetha v. T. Vekata Subbaih

Section 9’s validity was questioned and was called non-constitutional as it violates Articles 21
Human dignity and right to privacy.

Harvinder Kaur v. Harmander Singh

Saroj Ram v. Sudarshan Chada

In both of above cases, it was held Sec 9 is constitutionally valid as it saves marriage.

Swaraj Garg v KM Garg 1978

Right to setup Matrimonial Home (Location).

– Mutual Consent.

– Who earns more.

- If both earn the same and there is no mutual consent regarding matrimonial home setup then
breakdown of marriage occurs.

Section 10 – Judicial Seperation

When 2 spouses are separated by order of court.

Judicial Separation is applicable in voidable and valid marriage.

Aggrieved party files petition for Judicial Separation.

If husband and wife reside together with mutual consent after judicial separation then judicial
separation automatically ends.

If husband forcefully has physical relations with wife during judicial separation then it will be
considered marital rape.

Grounds where judicial separation cannot be ordered:

1 – Spouse ceases to be Hindu.

2- Spouse has renounced the world and becomes Sanyaas

3 – Presumption of Death

Section 11 – Void Marriage

- Already married. Violated Monogamy.

- Prohibited relations

- Sapinda

Even if sapinda and prohibited relations, if ceremonies completed under Sec 7, then child will be
provided protection under Sec 16 of HMA and be deemed legitimate and child can claim parents
property and claim maintenance.

Section 12 – Voidable Marriage

One party has the right to get the marriage declared voidable.
In voidable marriage, wife can claim maintenance.

Child is considered legitimate.

Grounds Marriage is considered voidable:

- Impotency (Before Marriage)

If impotency is curable then it cannot be ground to make marriage voidable. If not curable then it
is a ground to make marriage voidable.(Mentioned in Rajendra v. Shanti)

If woman is unable to conceive a child, it does not become a ground for voidable marriage but
in-fact it becomes a ground for divorce for the woman if husband mentions it. (Mentioned in
Shevanti v. Bhaura)

- Incapacity to consent

Insane or has Mental Disorder was unknown before marriage, is ground to declare marriage
voidable (Held in Munishwar Dutt v. Indra Kumari)

- Fraud and Force

No consent and forcefully married

Concealed nature of ceremony (Parents said marriage ceremony is Pooja)

Identity of Party (Said married to someone but married off to someone else)

Concealment of disease

Different Religion / Caste

Hidden facts about Previous Marriage

Incorrect Age

Under Section 12, pre-marriage unchaste cannot be a ground to declare marriage voidable.

Asha Qureshi v. Afaq Qureshi – Wife hid previous marriage.

Scott v. Rebright

Rice v. Rice

In both above cases, marriage was done forcefully on gunpoint.

Within 1 year of force ending, aggrieved party can come to court to declare their marriage
voidable under Sec 12 of HMA.

Rukmani v Chari– Husband hid previous marriage.

Som Dutt v Raj Kumar – Wife’s age was told to be 10 years lesser.

Premarriage Pregnancy is considered ground for marriage voidability. (Mahendra v. Sushila) (It
is also important husband does not have physical relationship with wife upon finding out the fact
that she was pregnant before marriage or else it will be considered that he forgave his wife.)

Section 12 petition for voidability of marriage is to be filed within 1 year of marriage.

Hiding Financial Status becomes a ground for voidable marriage (Anurag Anand v Sunita
Anand)

Section 13 – Divorce
- Adultery (Actual Physical Intercourse.)

If caught when about to do the act, then it is not a ground for divorce.

Mistake physical intercourse is not a ground for divorce.

Instigation (Husband made wife have physical relations with someone else for money and later
tried to claim it as ground for divorce.)

Oxford v. Oxford – Wife was artificially impregnated using semen. This was not considered
adultery.

-Cruelty (Two main types - Physical Cruelty & Mental Cruelty )

(In cruelty, intention and motive is not relevant – William v. William)

(Cruelty can be from wife to husband. – Ashok v Santosh & Srea Puda Chandra v Vasantha)

(It can also be from in-laws – Devakumar v. Thilagavathy)

(Not necessary that cruelty has occurred. If spouse is living in fear / apprehension that cruelty
will occur then this is also considered as cruelty. – Russel v Russel)

Demand of Dowry is Cruelty.

Drunkness in Excess is Cruelty.

False Criminal Charges is Cruelty.

Willful refusal of Sexual Intercourse is Cruelty.

Refusal of Procreation of Child is Cruelty.

Threat to Commit Suicide is Cruelty.

Abortion without consent of husband is cruelty.

Courts defined cruelty in Ravi Kumar v. Julmidevi Absence of mutual respect / understanding
which bitters relationship is cruelty.

Naveen Kholi v Neelu Kohli - There is no need to prove intention in cruelty (Intention and
motive is not relevant.)

Dastane v Dastane – Wife did cruelty on husband.

If husband forgives wife for a cruel action, then that specific incident ceases to be a ground for
divorce.

Vijay v. Ramachandra v. Neela Vijay Kumar – If during proceedings, spouses place wrong
allegations, then this is also considered as a type of cruelty.

-Desertion

2 years lapsed, spouses ignoring and no marital obligations fulfilled. Then this becomes ground
for divorce.

Bipinchandra v. Prabhavati – Wife wanted to return to husband. Husband said no. Once wife
showed intention to return, desertion on her part ended. Desertion then become on husband’s
part.

Jyotish Chandra v. Meera – Not considered desertion by wife even if she leaves if root cause is
misconduct of husband.
Savitri Pandey v. Prem Chandra Pandey – If initially itself there is no co habilitation, there can’t
be desertion. This means for desertion to occur, co-habilitation is required.

Other Grounds for Divorce –

-Cease to be a Hindu

- Insanity (TN Bhagwat v Bhagwat)

- Communicable Disease (Has to be incurable or ground under Sec 13 is not granted)

- Renounced World

-Presumption of Death (7 Years have to pass by)

(Suppose wife gets divorce after 7 years and then remarries someone else. If then the first
husband returns, then second marriage is not void as it was done after divorce.)

Section 13 (1A) – Divorce under RCR

If 1 year passes with RCR order passing and co-habilitation has not commenced then it becomes
a ground for divorce under this section.

Section 13 (2) –

i) Before HMA, there was polygamy. If a person has 2 wives, any can ask for divorce under this
section. However, condition is that if Wife 1 files for divorce under this section then wife 2 has
to be alive at that moment.

ii) If husband is guilty of rape, sodomy (Gay) or/and beastiality.

iii) If wife is awarded maintenance by court and there is no co-habilitation, then this can be a
ground for divorce.

iv) If there is child marriage, then at the age of 15, the marriage can be repudiated under this
section by divorce.

Section 13A –
Since marriage is considered Holy, court won’t give divorce immediately. Alternate Relief to be
provided.

Grounds in which alternate relief is not provided by court and Divorce is recommended–

- Ceases to be Hindu

- Renounced the World

- Presumption of Death

Section 13B – Mutual Consent Divorce

1 Year to be lapsed, then divorce petition to be filed.

After filing of divorce petition, cooling period is 6 to 18 months.

Essentials for mutual divorce – Living Separately from 1 year. (No marital obligations, No
duties, not living as husband and wife)

Joint Petition to be filed.

Consent (regarding filing of divorce) can be withdrawn anytime during proceedings but before
decision.

Hitesh Bhatnagar v. Deepa Bhatnagar – Consent can be withdrawn even after 18 Months.

There can be no appeal for mutual divorce.

However, challenge can be made if consent for MD was not free.

Sureshta Devi v Om Prakash – Unilaterally Divorce can’t occur under Sec 13B

Sec 13 petition for divorce can be converted to Sec 13B petition by only Supreme Court by use
of Extraordinary power of Article 142. (Anil Kumar Jain v Maya Jain 2009 SC) (This is not a
precedent as Extra-ordinary powers were used)

In a 2017 Supreme Court case (Amandeep Singh v Harleen Kaur), cooling period of6-18
months was removed as it was considered unnecessary delay in a dead relationship (no chance of
restoration).

Section 14 – No petition for divorce tobe presented within1 year of marriage

Exceptions – Hardship (Abusive relationship) & Deprivity

Misrepresentations occur under this section where couples plan out for an early divorce.
However if court finds out, the court says implementation of this decision occurs after 1 year.
Section 15 – Remarry
Wait till the appeal time finishes and then remarry (Time where a spouse can approach a higher
court)

Section 16 – Protects Children

Children of prohibited relationships and sapinda will be deemed legitimate if ceremonies are
performed under Sec 7 of HMA.

(They won’t be eligible for Ancestral property but they will be eligible for parents’ property)

What happens to children of Live-in Relationships?

Bharatha Matha v. Vijaya Ranganathan – Children not given protection under Sec 16 of HMA

D Veluswamy v. D Patchaiammal – Living as a couple with children school admissions with

forms filled up and living in society for a long time as husband and wife , court will assume they
are husband wife and Children given protection under Sec 16 of HMA and deemed legitimate.

Section 17 – Bigamy
IPC 494 / 495

Section 18 –
1) Punishment for people who arrange marriage for people under the age of 18 / 21.

2) Punishment for Sapinda – Punishments mentioned

Section 19 – Court to which petition for divorce shall be presented

- File petition where marriage has been solemnized. (Place of marriage)

- Where respondent is residing. (where opposite party is residing)

- Last residing place together.

- (Only for women) Woman can file petition where she is staying.
- If husband does not know where wife is residing or if she is alive or if the place where she
resides does not have HMA, then he may file petition for divorce where he himself is residing.

Section 20 – Contents Verification

Section 22 – Camera Proceedings

This means during proceedings there will only be husband, wife, judge, attorneys and parents of
spouses. Media cannot publish without media publishing in lower court. But in High and
Supreme Court, media may publish as those decisions are considered precedents.

Section 23 – One must come with clean hands to the court to claim relief.
You should yourself be not guilty to claim relief.

Grounds on which court won’t give relief :

- Taking advantage of one’s own wrong- (E.g. Causing cruelty / abuse to your own wife and then
approaching court for divorce)

Hargovind v. Ram Dulari – Both had unclean hands and got divorce as court deemed marriage
to be un-saveable.

-Accessory – E.g. Wife commits adultery. But it is husband who told wife to commit adultery in
order to gain monetarily.

- Convenience (Implied Consent) – E.g. Husband notices wife having physical relations with
someone else and chooses to ignore it. This will be considered as forgiveness on the husband’s
part. (You performed marital obligations again)

- Condonation – Chandra v. Avinash – When a spouse commits a wrong and you forgive the
spouse then you can’t approach the court. (You performed marital obligations again)

- Delay – E.g. Cruelty took place in 2005 and person goes to file petition in 2005, Court will ask
where the person was since 2005. If the person can justify then petition will be accepted.
However, if rejected then court will bar the person from filing petition. (Santi Devi v Ramesh
Chandra - 10 Years passed and then claim occurred. Couldn’t explain so barred.) (Narmoo v.
Nikkau – 7 years lived apart. Court asked why delay, she said that she inherited property from
her father and she suspects that her husband can try to stake claim in her property by evil
intentions thus she wanted divorce. Court accepted petition.)

-Collusion (Husband and Wife has done conspiracy to claim divorce)

- Reconciliation – Court sent to mediation. The spouses reconciliate by mediation.

Section 23A – Relief of Respondent

If petitioner petitions, respondent will reply. If respondent proves himself then he can get relief.

MAINTENANCE SECTIONS NOW COMMENCE HENCEFORTH

Types of maintenance –

-Interim / Pendenlite (Living differently during separation) Sec 24

-Permanent Maintenance Sec 25

Section 24 – Interim Maintenance

Maintenance can be claimed from both husband and wife.

Interim maintenance to be decided and disposed of by court within 60 days from Date of Service
of Notice.

Conduct is irrelevant. E.g. Even if wife commits adultery, interim maintenance is to be paid.

Section 25 – Permanent Maintenance

Lump Sum or Monthly.

Conduct is relevant.

If there is bigamy, then the second wife can claim maintenance even if marriage is void. (Chand
Dhawan v. Jawaharlal Dhawan)

Ram Chandra Daga v. Rameshwari Daga

Even if wife commits adultery, wife can claim maintenance. Difference is that amount will be
less. (Gulab v. Kamath 1985)

Even if wife commits cruelty, wife can claim maintenance. Difference is that amount will be
less. (Jagdish v. Manjula)

Amar Kanta Sen v. Sovana Sen 1960 – Unchaste Wife. Maintenance can be claimed.

Section 26 – Custody of Children

Children Below Age of 5 – Automatically and Generally go to Mother’s custody

If case is regarding custody, case is given 60 days time.

If it is seen that mother is earning through adultery, custody is given to father even if age is
below 5.

Section 27 – Disposal of Property

Joint Property – Court will decide

Section 28 – Appeals from Decrees and Orders

90 days given for appeals

All is appealable (except Mutual Divorce Sec 13B)

No appeal regarding costs of decree.

Appeals can be made even after 90 days if reason is valid.

Section 28 A – Enforcement of Decrees and Orders

Section 29 – Savings
- Marriages conducted before 1955 are considered valid and are saved.

- Customs (Divorces by Panchayats if proved are valid)

- Proceedings occurring before 1955 will be saved and continue the way they are.

- HMA and SMA are different. HMA does not have any effect on SMA.