Thursday 18 October 2012

legal trivia: Hindu Marriage Act

1.  All Hindus, Jains, Sikhs and Buddhists come under this Act, 
According to exclusion theory; all Indians who are not Muslims, Christians, Parsis or Jews by religion are regulated by this Act.

  • Also to be noted, a child of a couple, one of whom is a Hindu, can be ruled by this Act only when he has been brought up in the manner of the Hindu parent's religion.
  • Any Scheduled Tribe member can be considered under this Act only if it has been notified by the Central government that the tribe comes under Hindu law
2. Custom and usage are given importance in this law, so much, that marriage between near relatives( which is otherwise not allowed) is allowed if there's a custom. For example in a certain Hindu community, marriage between an uncle and a niece or widow of brother is allowed on basis of custom.

3. Degrees of prohibited relationship in Hindu Law (section 3g, if you care)

(g) "degrees of prohibited relationship"-two persons are said to be within the "degrees of prohibited relationship"--

(i) if one is a lineal ascendant of the other; 

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other ; or

(iii) if one was the wife of the brother or of the fathers or mothers brother or of the grandfathers or grandmothers brother of the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters ;

Also sapindas are prohibited: for explanation refer

4.For a Valid Hindu marriage, the ceremony must be according to rituals of either spouse.

5. Something which makes me cringe in this law is section 9, Restitution of Conjugal Rights; I wish they delete this !!!
"9. Restitution of conjugal right: When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights land the court, on being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."

In a case, the court had held( Punjab and Haryana high court: 1977 case, Kailashwati Vs Ayodhya Prasad ) that a wife's job is not a reasonable excuse for a wife to stay away from husband, though there are many more courts  which do not take this view; I just pity the poor lady.

6. Irregular Marriages in the Act are of two types, Void and voidable

Void= As if never existed
Voidable= It can be annulled but you have to approach the court for it

VOID: Where there exists any one of the following conditions: 

a) Either party has a spouse living at the time of marriage. 
b) Parties are within prohibited relationship. 
c) Parties are sapindas of each other. 


Marriage may be annulled by a decree of nullity on any of the following grounds: (RESPONDENT is the person against whom the case is petitioned or filed) 

A.. Impotency of respondent. 

B(a) Respondent was Incapable of giving a valid consent to marriage because of unsoundness of mind. 
 (b) Respondent was suffering from mental disorder of such a kind or to such an extent as to be unfit for    marriage and procreation of children. 
 (c) Respondent was subject to recurrent attacks of insanity. 

C The consent of the petitioner was obtained by force or by fraud.
D The respondent at the time of marriage was pregnant by some person other than the petitioner.

7. A petition for divorce can be filed only after one year of marriage until exceptional circumstances are proven

8. If a girl was married when she was younger than 15 years, she can file for divorce from the period she is 15 till 18 years of age on the basis of child marriage.

9. Where can you file for  a divorce?
A. The petition for divorce is to be filed before the District Court:-
1. Where the marriage was solemnized. 
2. Where respondent resides. 
3. Where the parties to the marriage last resided together. 
4. In case the wife is the petitioner, where she is residing on the date 
of presentation of petition. 

10.Hindu law tries so much to make sure that the children of any union are legitimate that sometimes it makes you wonder,  what would happen if we were a bit less touchy, as a society:

The children of persons who were in void/voidable marriages, are legitimate, if the children would have been legitimate if their parents didn't get the annulment decree: THIS LAW IS NOT TRUE FOR SUCCESSION LAWS
That means, you declare the child legitimate; with a provision that the child is not going to success property of any relative of their parents.
And if a child is illegitimate, he is related only to his mother, for the purpose of succession.


I feel the Act is a considerable attempt by the legislature to keep a balance between traditions and today. But some sections make me feel that I am living in 18th century; where Indians considered Sati Pratha normal.

This Act was made in 1955, the latest amendment was in 1976. Law Commission report on the Act favoring to put a clause " irretrievable breakdown of marriage" for divorce. This could change the course of how cases are being filed today. The report can be accessed here:

On the whole the Act is clear and simple, I don't believe this Act has the capability to be interpreted in many ways.

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