HINDU MARRIAGE ACT,1955:
Who is Hindu? Ans: This Act applies to Hindus (including converted), Jains, Sikhs, Buddhists and to any person who is not a Muslim, Christian, Parsi or a Jew.
What are the conditions for marriage?
1) Capacity to marry 2) Formalities of marriage.
Capacity to marry: This Capacity constitutes several aspects: i) not already married, ii) Age of marriage, iii) Mental capacity iv) Prohibition on account of relationship by blood or affinity (Sapinda relationship and Degrees of prohibited relationship).
Age of marriage: Bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage; It is void under SMA but not under any other personal laws. If a minor Hindu marries, it shall be neither void nor voidable but valid.
Mental capacity-Soundness of Mind: Under Hindu law, a marriage on account of lack of mental capacity is voidable at the instance of the other party, but under the SMA, it is void. Prohibition on account of relationship by blood or affinity is void.
a)Sapinda Relationship. b) Prohibited relationship.
A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. Where such rites and ceremonies include the saptapadi, the marriage becomes complete and binding when the seventh step is taken.
What are the legal consequences of violating conditions of marriage? Ans: Basing kind of violation of condition of marriage, civil legal consequences are of two kinds:
Void marriage (S.11): a) Bigamy, b) Prohibited degree of relationship c) Sapinda relation.
Voidable marriage (S.12): (a) Not consummated due to impotency of respondent
(b) Unsound mind or suffering from mental disorder to such an extent for unfit for marriage and for procreation of children or recurrent attacks of insanity or epilepsy (S.5 (ii))
(c) Consent is obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
The remedy to petitioner for occurrence of marriage contrary to conditions laid down under S.5, or 11 or 12 is to obtain decree of nullity.
What are rights of parties to marriage?
Ans: 1)Restitution of conjugal rights (S.9) 2) Judicial separation(S.10)
3) Right to divorce( S.13,13B) 4) Custody of child(S.26)
5) Right of maintenance (24 & 25) 6) Right to seek return of property (S.27).
What are the rights of off-springs born out of voidable or void marriage?
Ans: The children born out of whether valid or void or voidable marriage are legitimate. However, they can’t acquire rights in the property other than the parents.
What are the grounds for Divorce?
Ans: S.13 list out grounds for Divorce: a) Adultery b) renunciation of the world Desertion c) Cruelty d) Insanity e) Leprosy f) Venereal diseases g) Conversion h) Presumption of death: unheard for seven years i) has not complied with a decree of RCS for one year or more after the passing of decree j) has not resumed cohabitation for one year or upwards after the passing of a decree for judicial separation.
A wife has the following additional grounds for divorce: 1) that the husband is guilty of Rape, Sodomy and Bestiality. 2) that she has repudiated before attaining 18 years of age her marriage solemnized before she attained 15 years age. 3) That a maintenance order has been passed against the husband and there is no cohabitation thereafter for one year or upwards.
Which court has jurisdiction claims under this Act?
Ans: The Sub-ordinate civil judge. The appeal lies to district court. It shall be filed within thirty days. Decree can be enforced as per O.21 CPC
Sapinda relationship: For any person it extends as far as the third generation(inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation. Similarly, two persons are said to be “sapinda” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;
Degrees of prohibited relationship: If two persons are said to be within the “degrees of prohibited relationship”:-
(i) if one is a lineal ascendant of the other; or (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 father’s or mother’s brother or of the grandfather’s or grandmother’s brother or 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.
Explanation.- for the purposes of clauses (f) and (g) relationship includes-
(i) relationship by half or uterine blood as well as by full blood; (ii) illegitimate blood relationship as well as legitimate;
(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.
Rights of Parties to Marriage:
Restitution of Conjugal rights (s.9): If one of the party to the marriage without any reasonable excuse, withdrawn from the conjugal society the other can seek this relief. The court on proof of the same may decree restitution of conjugal rights accordingly. The burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
Judicial separation (s.10): It says either party to the marriage can file a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13. Once the decree for JS is 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 by considering the truthfulness in it, rescind the decree of JS.
Right of Divorce: 13-A. The court in a petition four seeking divorce can also grant a decree for judicial separation having regard to circumstances but in case of the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13.
Divorce by mutual consent: 13-B:
Parties to marriage by agreement can seek divorce if they are been living separately for a period of one year or more provided they are not been able to live together. If same is found it to be true, court can pass a decree six months after receipt of divorce application.
If a marriage is dissolved by a decree of divorce it shall be lawful for either party to the marriage to marry again. Provided no appeal is filed or time for appeal is expired or appeal filed is dismissed (S.15).
Right of Maintenance (S.24 & 25)
Any party pending petition for divorce can grant maintenance to either of the party. Such order shall be made basing on the income of either of the parties.
The court upon the disposal of the divorce petition can order the respondent to pay to the applicant for her or his maintenance and support such gross sum for a term not exceeding the life of the applicant. The court while passing such order shall take into consideration following facts: a) Income of the parties b) Conduct of the parties c) Other circumstances.
The court can grant such maintenance either on monthly or periodical basis.
This order can be varied or modified or rescinded subsequently basing on changed circumstances.
The above order is applicable only if other party is not re-married or, if the party is not having sexual intercourse with anyone.
Right to have Custody of children(S.26):.- The Court while conducting proceedings under this Act can pass such interim orders for the purpose of custody, maintenance and education of minor children, consistently with their wishes. The same may be made part of the decree. The Court may also from time to time revoke, suspend or vary any such orders and provisions previously made as necessary.
Right to property: As per S.27 the court while conducting proceeding under this Act, the Court may make such provisions in the decree as it deems just 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.
Status of child born out of void or voidable marriage: S.16 says children born out of void and voidable marriages are legitimate.
Divorce by mutual consent: 13-B:
Parties to marriage by agreement can seek divorce if they are been living separately for a period of one year or more provided they are not been able to live together. If same is found it to be true, court can pass a decree six months after receipt of divorce application.
If a marriage is dissolved by a decree of divorce it shall be lawful for either party to the marriage to marry again. Provided no appeal is filed or time for appeal is expired or appeal filed is dismissed (S.15).