Hindu Marriage Act 1955

Previous year question 

• Explain the concept of marriage under the Hindu Marriage Act 1956.
• State in detail the main grounds of divorce under the Hindu Marriage Act 1956? [DAVV 2022]
  
• Write short notes on (a) valid custom (b) judicial separation (c) partition [DAVV 2022]
• Write a short note on (a) valid custom (b) void marriage

The Acts

• Hindu Marriage Act, 1955
• the Hindu Marriage (Tamil Nadu Amendment) Act, 1967 Section 7(A) 

Concept of Marriage

- it is to establish the relationship between a husband and wife, a semblance of both sacramental marriage and a contract
- historically, marriage has a sacramental view, one of the essential sanskaras in Hindu

- the modern concept of marriage views it as a contract entered by two individuals of their own volition

List of leading cases of the Hindu Marriage Act at a glance

• Case - critical aspect of HMA

1. Surajmani Stella Kujur v. Durga Charan Hansdah - Who is a Hindu, applicability of HMA
2. S. Nagalingam v. Sivagami - Sec 7 (A), the validity of second marriage to constitute an offence of bigamy under IPC 494, Tamil Nadu HMA amendment act 1967
3. Bhaurao Shankar Lokhande v. State of Maharashtra - Essentials of valid marriage when a marriage claimed to be Gandharva vivaah / love marriage, (cites Kamani Devi v. Kameshwar Singh)
4. Kamani Devi v. Kameshwar Singh, ILR 25 Pat 58 = (AIR 1946 Pat 316) - Gandharva marriage to be valid must be attended by Homa & Saptapadi
5. Lily Thomas v. Union of India - mere conversion to Muslim religion to flee obligations of the first marriage under the Hindu Marriage Act and flee from IPC 494 is no defence against bigamy as in IPC 494, the second marriage is void as the spouse from the first marriage is still alive
6. Pinninti Venkataramana vs State - marriage between minor still holds good, marriage sacrament not a contract, subject to only section 18

1. Who is a “Hindu” for the purposes of the applicability of the Hindu Marriage Act, 1955 (“the Act”) is a question of law?

• Section 2 of the Hindu Marriage Act specifies the persons to whom the Act is applicable.
• applicable to all persons domiciled in the territory of India who are not Muslims, Christians, Parsis or Jews by religion.
• that is a person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj and to a person who is a Buddhist, Jain or Sikh by religion
• Exclusion 
• Schedules Tribes excluded from the applicability of the act, Sub-section (2) of section 2 of Hindu Marriage Act (अधिनियम)

2. What constitutes the essentials of a solemnized marriage in front of the court of law?

• Sec 3 (Sec3(a) customs def.) (sub-clauses on Sapindas) 
• Sec 5 of HMA - Conditions for a Hindu Marriage
• Sec 7 of HMA -Ceremonies of a Hindu Marriage

Section 7 of the HMA contains that —
"(1) A Hindu marriage may be solemnized by the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (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." (from the HMA)

Exception to section 7
- the Hindu Marriage (Tamil Nadu Amendment) Act, 1967 Section 7(A) 

Interpretation:
1. Customary rites and ceremonies of either party, thus it is specific to each community and party in terms of the customs and ceremonies followed 
2. Such rites must include Saptapadi (7 steps before the fire) 

3. What is IPC sec 494?
The offence of bigamy - can be held only against the erring spouse, not their family member

 (I) the accused must have contracted the first marriage; 
(ii) whilst the first marriage was subsisting, the accused must have contracted a second marriage; and (iii) both the marriages must be valid in the sense that necessary ceremonies governing the parties must have been performed.

4. Whether a marriage in contravention of Sec 5 (iii) of HMA renders it VOID AB INITIO?

iii) the bridegroom has completed the age of 2 [twenty-one years] and the bride, the age

of 3[eighteen years] at the time of the marriage;

No, it doesn't. 
Although Prohibition of Marriage Act 2006 came into force on 1st November, 2007.
Marriages between minors remain voidable not void ab initio specifically for voidable at the option of the contracting party who was a child at the time of the marriage.

It also gave rise to questions

1. custody of the minor wife would be with her parents or her husband

2. should a case under sec 376 be made if a minor has eloped with a minor boy (less than 21 years per HMA) or a minor less than 18 years of her own accord?

3. what should the decision on custody be if the minor wife does not want to stay with her parents

Grounds of divorce

Sec 9 Restitution of Conjugal Rights

aggrieved party may apply for restitution of conjugal rights if the other party has withdrawn from the society of other

Burden of proof of  reasonable excuse for withdrawal from society lies on the spouse who has withdrawn from the society

Sec 10 Judicial Separation

Grounds for judicial separation sub-section (1) of Sec 13

In case of wife, additionally sub-section(2) of Sec 13

Sec 11 Void Marriages

any marriage may be deemed null and void by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5

Sec 12 Voidable Marriages

grounds of a voidable marriage

a. non-consumation of marriage due to impotence of the respondent

b. marriage violates clause (ii) of sec 5

c. consent of petitioner/guardian of the individual whose marriage is in question, obtained by force or fraud as to nature of ceremony or facts about respondent

d. respondent at the time of marriage pregnant by some person other than the petitioner

(2) 

a) Time limitation for presenting a petition for annulling a marriage on grounds of clause (c) above (consent by force or fraud) 

 1. petition for annulling marriage under clause(c) above must be presented within 1 year after the force has ceased to operate or the fraud has been discovered

2. The petition won't be entertained if 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 the case may be the fraud had been discovered 

b) no petition for annulling marriage entertained on grounds of clause (d) above unless the court is satisfied that 

- the petitioner was at the time of the marriage ignorant of the facts alleged;

- proceeding instituted within 1 year of marriage, if marriage after commencement of act

- marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of said ground

Sec 13 Divorce

(1)
(i)voluntary sexual intercourse with any person other than his or her spouse

(ia) treated the petitioner with cruelty

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

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

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

(iv) struck off

(v) venereal disease in a communicable form

(vi) renounced the world

(vii) has not been heard of as being alive for a period more than 7 years by people who would have naturally heard of it had they been alive

1(A) 
(i) no resumption of cohabitation as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for judicial separation

(ii) no restitution of conjugal rights as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal rights

(2)
(i) The husband remarried / had another wife living at the time of petition before the commencement of the act

(ii) husband is guilty of rape, sodomy

(iv) her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage in age window of 15-18 years of age

13 A     Alternate relief in divorce proceedings - Judicial separation

13 B    Divorce by mutual consent
1. on grounds that they have been living separately for 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

2. A decree of divorce can be passed only after 6 months have passed from presenting the petition under sub-section 1 (living separately for 1 year or more) but not later than 18 months after the said date

1 year or more of couple living separately ~~> petition under 13B sub-section 1 filed ~~> 6 months of passage time from date of petition filing ~~> motion under hearing / judicial hearing ~~> 18 months from the date of petition filing

Takes up a total of a minimum of 1 year 6 months to 2 years 6 months even when a petition filed on grounds of divorce by mutual consent

Major case laws below | Case-based learning of HMA, 1955

Case reference: Surajmani Stella Kujur v. Durga Charan Hansdah 
AIR 2001 SC 938 : (2001) 3 SCC 13

Questions of the case

• Who is a Hindu for the applicability of the Hindu Marriage Act 1955?
  (HMA does not apply to Scheduled Tribe per sub-section 2 of section 2
  both parties without dispute belong to the Santhal tribe)
  
  
• What will be considered a custom? Can a custom be used for filing a criminal case under IPC?
  As pleaded by the appellant, that monogamy is a custom in their tribe.
  
  But, for custom to have the colour of a rule or law, it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient, certain and reasonable. (from case judgement). The party relying upon a custom is obliged to establish it by clear and unambiguous evidence.
  
  "No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged" (from case judgment)
  
  "Article 20 of the Constitution, guaranteeing protection in respect of conviction of offence, provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence." (from case judgement)
  
  (Other)
• What remedies do the individuals have when they belong to a scheduled tribe and can't file an offence because of exclusion due to Subsection 2 of section 2?
  They could file a case under civil claims, by the situation/incident.

Case facts: 

• The appellant belongs to Oraon and the respondent belongs to the Santhal community, admittedly tribals
• The appellant and respondent were married. After which the respondent allegedly married a second time.
• A case was filed by the appellant by giving the following reasoning:
• She is a Hindu, and that HMA applies to the respondent and their marriage
• There is a custom of monogamy in their tribe
• However, the appeal was dismissed because
• The HMA act does not apply to scheduled tribes, and they belong to one as they are not a Hindu as per the act
• Thus an offence does not arise as the act itself doesn't apply to the respondent and appellant, but Santhal customs and norms apply
• Therefore a case under IPC 494 did not arise
• The appellant was free however to file for her rights and maintenance under the civil jurisdiction and as a separate matter

The Judgement

• The Hindi Marriage Act excludes Scheduled Tribe
  Sub-section (2) of Section 3 of HMA: nothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
• It is not established that Santhal custom contained monogamy as a rule therefore not proven
• Thus IPC 494 offence is not merited
• Appeal dismissed

Case reference S. Nagalingam v. Sivagami
(2001) 7 SCC 487

Questions of the case

• whether the second marriage was entered into by the appellant with the second accused. Kasturi, on 18.6.1984 was a valid marriage under Hindu Law to constitute an offence under Section 494 IPC

Facts of the case

• The appellant S Nagalingam married respondent complainant Sivagami 
• They were married on 6.9.1970 and 3 children were born out of the wedlock
• Due to the ill-treatment of the respondent by the appellant, she left her marital home and started staying with her parents
• The appellant married another woman on 18.6.1984 by the name of Kasturi, ceremony performed at the Marriage hall of Thiruthani
• Respondent filed a criminal complaint; all accused were acquitted by the Metropolitan Magistrate however this judgement was overturned by the High Court of Madras in the criminal appeal
• The Single Judge held that the appellant had committed the offence punishable under Section 494 IPC, which was challenged by the appellant
• The judgement was upheld and the appellant was found to have committed the offence of bigamy

The Judgement

Held that

• Second marriage by Sec 7-A, therefore a valid marriage b/w appellant and Kasturi, therefore a valid marriage as Nagalingam, and his alleged second wife, Kasturi, are residents of the State of Tamil Nadu and Sec 7-a applies
• offence of bigamy committed by the appellant 
• matter correctly remanded to the trial court for awarding an appropriate sentence

Case reference Bhaurao Shankar Lokhande v. State of Maharashtra

AIR 1965 SC 1564 : (1965) 2 SCR 837 

For a Gandharva marriage to be valid in the first place it must be shown that the required rituals Saptapadi and Homa were followed or a custom established beyond doubt that governs ceremonies in the specific community, notwithstanding this the marriage being claimed is void in the eyes of law and is invalid.
Therefore a case of IPC 494 does not arise.

Case reference Lily Thomas v. Union of India

AIR 2000 SC 1650 : (2000) 6 SCC 224 
Equivalent citations: 2000 (2) ALD Cri 686, 2000 (1) ALT Cri 363, 2001 (1) BLJR 499, 2000 CriLJ 2433, II (2000) DMC 1 SC, JT 2000 (5) SC 617, 2000 (4) SCALE 176, (2000) 6 SCC 224, 2000 (2) UJ 1113 SC

Questions of the case

• where a non-Muslim gets converted to the “Muslim” faith without any real change of belief and merely with a view to avoid an earlier marriage or to enter into a second marriage, whether the marriage entered into by him after conversion would be void

Judgement

• mere conversion of religion would not result in the first marriage's dissolution solemnized by the Hindu Law unless a decree of divorce is obtained
• marriage cannot seem to be dissolved because a spouse has converted to a different religion
• IPC 494 applicable
• uniform civil code not possible
  

Case reference Pinninti Venkataramana v. State

AIR 1977 AP 43

Questions of the case

Whether a Hindu marriage is governed by the provisions of the Hindu Marriage Act,

1955 where the parties to the marriage or either of them are below their respective ages

as set out in Clause (iii) of Section 5 of the Hindu Marriage Act, is void ab initio and is

no marriage in the eye of the law?

Facts of the case

• a husband and wife were wedded when their ages were 13 and 9 years respectively per Hindu marriage rites 
• the husband married another woman sometime later
• the wife filed a case on grounds of IPC 494 against the husband
• the husband claims defence and pleads that the marriage was liable to be void ab initio as it was in contravention of clause (iii) of section 5

Judgement & rationale
Held that

• Relief to quash a decision upholding convictions against the husband CAN NOT BE GRANTED based on the view taken by the court
• Marriage under Hindu law by a minor male is valid even though the marriage was not brought about on his behalf by his natural or lawful guardian. The marriage under the Hindu Law is a sacrament and not a contract.
• A minor's marriage without the consent of the guardian can also be held to be valid on the application of the doctrine of factum valet. Consequently, the marriage of a Hindu minor cannot be held to be invalid for want of proof that his guardian consented to it.
• the well-settled principle in the law relating to marriages that the Court should lean against the interpretation of any provision of law which is liable to render innocent children of the marriages bastards.

Disclaimer: The posts are meant for educational and learning purposes for anyone interested in learning and discussing the law. Emphasis is on making sure the most important learnings and takeaways of the case and legal implications are presented accordingly

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