HMA

The Hindu Marriage Act, 1955

(1) Overview (2) Hindu Marriages (3) Restitution of Conjugal Rights (4) Judicial Separation (5) Nullity of Marriage (6) Divorce (7) Jurisdiction & Procedure (8) Jugements

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1.1    The Act is called, ‘The Hindu Marriage Act, 1955’. Hereinafter it is called ‘ Act’.

1.2    This is an act to amend and codify the law relating to marriage among Hindus.

1.3    It extends to whole of India and applies also to Hindus domiciled in the territories tow which this Act extends who are outside the said territories [Sec. 1(2)].

1.4    Application of Act: This Act applies to –

(a) to any person who is a Hindu by religion in any of of its forms or developments,

including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

1.5     As per Section 2(1), the following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be,-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of tribe, community, group or family to which such parents belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindus, Buddhist, Jaina or Sikh religion.

1.6     This Act does not apply to – Scheduled Tribe (ST) within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the official Gazette, otherwise directs [Sec. 2(2)].

1.7    Any person to whom this Act is applicable is treated as ‘Hindu’ under this Act [Sec. 2(3)].

(2) Hindu Marriages (Section 5)

2.1    Condition of a Hindu Marriage: As per Section 5 of the Act, A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled –

(i) Neither party (Bride or Bridegroom) has a spouse living at the time of the marriage (Means to say that if a man having his wife alive or a woman has her husband alive at the time of the marriage);

(ii) at the time of the marriage, neither party,-

(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind (means mind is not under control due to depression or other such reason. Man ki Ashanti etc.); or

(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children (means any of them having mental disorder or the bride is not able to give birth children); or

(c) has been subject to recurrent attacks of insanity or epilepsy;

(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

2.2    The guardianship in marriage was omitted by Marriage Laws (Amendment) Act, 1976 [Sec. 6].

2.3    Ceremonies for a Hindu marriage: As per Section 7 of the Act, (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi/Seven round across the fire (that is, 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.

2.4    Registration of Hindu Marriages: For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such condition as may be prescribed in a Hindu Marriage Register kept for the purpose [Sec. 8(1)].

2.5      The State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified and where any such direction has been issued, and person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees [Sec. 8(2)].

2.6     All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made [Sec.8(3)].

2.7     The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee [Sec. 8(4)].

2.8     The validity of any Hindu marriage shall in no way be affected by the omission to make the entry in such Marriage Register [Sec. 8(5)].

2.9    Punishment of Bigamy: Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly [Sec. 17].

2.10    Punishment for contravention of certain other conditions for Hindu marriage: Every person who procures a marriage of himself or herself or to be solemnized under this Act in contravention of the conditions specified in clauses (iii), (iv), and (v) of Section 5 shall be punishable-

(a) in the case of a contravention of the condition specified in clause (iii) of Section 5, with simple imprisonment which may extend to 15 (fifteen) days, or with fine which may extend to Rs. 1,000 (one thousand rupees), or with both;

(b) in the case of a contravention of the condition specified in clause (iv) or clause

(v) of Section 5, with simple imprisonment which may extend to 1 (one) month, or with fine which may extend to Rs. 1,000 (one thousand rupees), or with both;

(3) Restitution of Conjugal Rights (Sec. 9)

3.1    When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other (means lives separately from each other), the aggrieved party may apply, by petition to the Family Court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly [Sec. 9].

3.2    Where a question arises whether there has been reasonable excuse for withdrawal from the society (reasonable ground for living separately), the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

3.3    If wife deserted the husband and is living separately from her husband, and husband wants to live with wife but wife is not returning to her matrimonial house on every effort. Here, husband is the aggrieved person and he can file a petition under this section before Family Court of his/her their jurisdiction.

(4) Judicial Separation (Sec. 10)

4.1    Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in Section 13(1) of the act, and in the case of a wife also on any of the grounds might have been presented [Sec. 10(1)].

4.2     In case where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statement made in such petition, rescind the decree if it considers it just and reasonable to do so [Sec. 10(2)].

(5) Nullity of Marriage (11)

5.1    Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 which are discussed at Para 2.1.

5.2    Voidable marriage (Section 12): As per Section 12(1), Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(a) that the marriage has not been consummated owing to the impotency of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

5.3    As per Section 12(2), no petition for annulling a marriage –

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

(6) Divorce

6.1    As per Section 13(1) of the Act, any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion ; or

(iii) has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Bullet (1):– (a) The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from veneral disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

Bullet(2): In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.

6.2    As per Section (1-A) of the Act, either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.

6.3    As per Section 13(2) of the Act, A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground-

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: if  in either case the other wife is alive at the time of the presentation of the petition;

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Bullet(3):- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Law (Amendment) Act, 1976.

6.4    Alternate Relief in Divorce Proceedings (Section 13-A): If any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation [Sec. 13-A].

6.5    Divorce by mutual consent (Section 13-B): A petition for dissolution of marriage by a decree of divorce may be presented to the Family Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved [Sec. 13-B(1)].

6.6     On the motion of both the parties made earlier than 6 months after the date of the presentation of the petition referred to in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree [Sec. 13-B(2)].

6.7    No petition for divorce to be presented within one year of marriage: As per Section 14(1) of the Act, it shall not be competent for any Court to entertain any petition for dissolution of marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage if –

The court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the court at the hearing of the petition that petitioner obtained leave to present the petition by any mis-representation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

6.8    In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year [Sec. 14(2)].

6.9    Remarry of Divorced persons(Section 15): As per Section 15 of the Act, when a marriage is dissolved by a decree of divorce and – (a) either there is no right of appeal against the decree or, (b) if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, (c) or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.

(7) Jurisdiction & Procedure

7.1    Jurisdiction to present petition under this Act (Section 19): As per section 19 of the Act, every petition under this Act shall be presented to the Family Court within the local limits of whose ordinary original civil jurisdiction:

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of 7 (seven) years or more by those persons who would naturally have heard of him if he were alive.

7.2    All proceedings under this Act shall be regulated, as far as may be by the Section 5 of the Code of Civil Procedure, 1908 [Sec. 21].

7.3    Transfer of petitions (Section 21-A): As per Section 21-A(1), where-

(a) a petition under this Act has been presented to a Family Court having jurisdiction by a party to marriage praying for a decree for a judicial separation under Section 10 or of a decree of divorce under Section 13; and

(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13 on any ground, whether in the same Family Court or in a different Family Court, in the same State or in a different State, the petitions shall be dealt with as specified in sub-section (2).

7.4    As per Section 21-A(2) of the Act, in a case where sub-section (1) applies,-

(a) if the petitions are presented to the same Family Court, both the petitions shall be tried and heard together by that Family Court;

(b) if the petition is presented to different Family Courts, the petition presented later shall be transferred to the Family Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the Family court in which the earlier petition was presented.

7.5    As per Section 21-A(3) of the Act, in a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under section 5 of the Code of Civil Procedure,1908, to transfer any suit or proceeding from this Family Court in which the later petition has been presented to the Family court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code (Code of Civil Procedure, 1908).

7.6    Trial & Disposal of petitions under the Act (Section 21-B): The trial of a petition under this Act, shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

7.7    Every petition under this Act shall be tried as expeditiously as possible, and endeavour shall be made to conclude the trial within 6 (six) months from the date of service of notice of the petition on the respondent [Sec. 21-B(2)].

7.8    Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within 3 (three) months from the date of service of notice of appeal on the respondent [Sec. 21-B(3)].

7.9    Documentary Evidence (Section 21-C): no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered [Sec. 21-C].

7.10    Proceedings to be in camera (Section 22): Every proceedings under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court [Sec. 22(1)].

7.11    If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees [Sec. 22(2)].

7.12    Maintenance Pendent elite and expenses of proceedings (Section 24): As per Section 24 of the Act, where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable [Sec. 24].

7.13    Permanent alimony and maintenance (Section 25): At the time of passing any decree for the purpose either the wife or the husband as the case may be, order that the respondent shall pay for maintenance for support as gross sum or monthly or periodical sum for a term not exceeding the life of the applicant as the court deem fit [Sec. 25(1)].

7.14    If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under section 25(1), discussed at Para 7.13 above, it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem fit as per evidence and circumstances [Sec. 25(2)].

7.15    If the Court is satisfied that the party in whose favour an order has been made under this Section has re-married or, if such party is the wife, that she has not remained chaste or if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem fit [Sec. 25(3)].

7.16    Custody of Children (Section 26): In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children.

7.17    Disposal of Property (Section 27): In any proceeding under this Act, the Court may make such provisions in the decree as it deems fir and proper with respect to any property presented at or about the time of marriage, which may belong jointly to both the husband and the wife.

7.18    Appeals (Section 28): All decrees made by Court in any proceeding under this Act shall, subject to the provisions of section 28(3), be appealable as decrees of the Court made in the exercise of its original civil jurisdiction and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in the exercise of its original civil jurisdiction [Sec. 28(1)].

7.19    Orders made by the Court in any proceedings under this Act, under Section 25 or Section 26 shall, subject to the provisions of section 28(3), be appealable if they are not interim orders and every such appeal shall lie to the Court to which appeals ordinarily lie from the decisions of the Court given in exercise of its original civil jurisdiction [Sec. 28(2)].

7.20     There shall be no appeal under this section on subject of costs only [Sec.28(3)].

7.21    Every appeal under this section shall be preferred within a period of 30 (thirty) days from the date of the decree or order [Sec. 28(4)].

(8) Judgements

Coming Soon…

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