The main purpose of the act was to amend and codify the law relating to marriage among Hindus and others.[1] Besides amending and codifying Sastrik Law, it also included separation and divorce, which also exist in Sastrik Law. This enactment brought uniformity of law for all sections of Hindus. In India there are religion-specific civil codes that separately govern adherents of certain other religions.
Applicability
Section 2[2] of the Hindu Marriage Act, 1955 says:
This Act applies
to any 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;
to any person who is a Buddhist, Jain or Sikh by religion; and
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.
The Act applies to Hindus outside the territory of India only if such a Hindu is domiciled in the territory of India.[3]
The Act was viewed as conservative because it applied to any person who is Hindu by religion in any of its forms, yet groups other religions into the act (Jains, Buddhists, or Sikhs) as specified in Article 44 of the Indian Constitution.[4] However, with the passage of Anand Marriage (Amendment) Bill in 2012, Sikhs now also have their own personal law related to marriage.[5]
A marriage is directly registered by the Registrar of Marriage under section 8 of Hindu Marriage Act, 1955 on the same working day when applied. Verification of all the documents is carried out on the date of application and thereafter Marriage is registered on the same working day by the registrar of marriage appointed by the Govt. of India and marriage certificate is issued.[6]
According to Hinduism, marriage is a sacred relationship.[7] In some Hindu systems of marriage, there is no role for the state as marriage remained a private affair within the social realm.[8] Within this traditional framework reference, marriage is undoubtedly the most important transitional point in a Hindu's life and the most important of all the Hindu "sanskaras" (life-cycle rituals).[8]
The Congress Government diluted the Hindu Marriage in 1955 by enactment of HMA, Special Marriage Act, 1954 and then in 1983 by introduction of section 498A[9] to Indian Penal Code and section 198A to the Criminal Procedure Code. Therefore there was fierce religious opposition to enacting such laws for marriage, succession and adoption. The greatest opposition was to the provision of divorce, something which is anathema to the Hindu religion. Also resisted was the principle of equal inheritance by sons and daughters regardless of whether the daughter was married or unwed.[10] This was contrary to the Hindu view of family, where married daughters were regarded as belonging to the family of their husband, not to the family of their father.
Some have argued that Hindu marriage cannot be subjected to legislative intervention. Derrett predicted in his later writings that despite some evidence of modernisation, the dominant view in Hindu society for the foreseeable future would remain that marriage is a form of social obligation.[8]
"Section 5. A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely-
neither party has a spouse living at the time of the marriage
at the time of the marriage, neither party-
is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
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;
the bridegroom has completed the age of twenty-one years at the time of the marriage;
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;
the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two."
Guardianship
Section 6 of the Hindu Marriage Act specifies the bride's guardianship for marriage. Wherever the consent of a guardian in marriage is necessary for a bride under this Act, the persons entitled to give such consent are the following: the father; the mother; the paternal grandfather; the paternal grandmother; the brother by full blood; the brother by half blood; etc.[11] The Guardianship For Marriage was repealed in 1978 after the Child Marriage Restraint Amendment was passed. This amendment increased the minimum age requirement for marriage in order to prevent child marriages.[12]
Section
Section 7 of the Hindu Marriage Act recognises the ceremonies and customs of marriage. Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party. Such rites and rituals include the Saptapadi—the taking of seven steps by the bridegroom and the bride jointly around the sacred fire. The marriage becomes complete and binding when the seventh step is taken.[13]
Registration
As stated in Section 8 of the Act, the state government may make rules for the registration of Hindu marriages that the parties to any of such marriages may have particulars relating to their marriages entered in such a manner and subject to such conditions as may be prescribed in the Hindu Marriage Register. This registration is for the purpose of facilitating the proof of Hindu marriages. All rules made in this section may be laid before the state legislature. The Hindu Marriage Register should be open for inspection at all reasonable times and should be admissible as evidence of the statements contained therein.
Restitution of Conjugal Rights
As stated in section 9 of the act, in cases where either the husband or the wife has withdrawn from the society of the other without reasonable excuse, the aggrieved party may apply to the district court for restitution of conjugal rights. If the court is satisfied with the truth of the statements and finds no legal ground to deny the application, it may decree restitution of conjugal rights.
Judicial Separation
Section 10 of the Act also provides for judicial separation, where either party to a marriage can present a petition for a decree of judicial separation. The court has the power to rescind the decree if it deems it just and reasonable to do so.
Nullity of marriage and divorce
Any marriage can be voidable and may be annulled on the following grounds: the marriage has not been consummated due to impotency, may be complete or partial impotency (for example conditions such as impotence quoad hoc), contravention of the valid consent mental illness condition specified in Section 5, or that the respondent at the time of the marriage was pregnant by someone other than the petitioning spouse. Divorce can be sought by husband or wife on certain grounds, including: continuous period of desertion for two or more years, conversion to a religion other than Hindu, mental abnormality, venereal disease, and leprosy. A wife can also present a petition for the dissolution of marriage on the grounds that the husband marries again after the commencement of his first marriage or if the husband has been guilty of rape, sodomy, or bestiality. Newly married couples cannot file a petition for divorce within one year of marriage.
Mutual Divorce
Under section 13 B of the Act, mutual divorce is a provision that allows both the husband and wife to dissolve their marriage by mutual consent. It is a legal procedure that offers an amicable and less adversarial approach to ending a marital relationship. Mutual divorce provides an opportunity for couples to part ways on agreed terms, minimizing conflict and emotional distress.[14]
No petition for divorce to be presented within one year of marriage
Under section 14 of the Act, the courts cannot accept a divorce request within one year of marriage. However, there's an exception where the court might consider a request before one year if a spouse can can demonstrate exceptional hardship or exceptional depravity from the other spouse.
Alimony and Maintenance
Section 25 of the Act allows either spouse, after the finalization of divorce or judicial separation, to approach the court for an order of permanent alimony or maintenance. It aims to provide long-term financial support to the financially weaker spouse who may have limited earning capacity or resources to sustain themselves. The court considers various factors such as the income, assets, and liabilities of both parties, as well as their individual needs and circumstances, while determining the amount of alimony or maintenance to be awarded. Section 24 of the Act empowers either spouse to seek financial support from the other party during the ongoing legal proceedings. The objective is to ensure that the dependent spouse can maintain a reasonable standard of living and have the necessary resources to meet their day-to-day expenses. It aims to provide temporary relief to the financially weaker spouse until a final settlement is reached.
Marriage Laws (Amendment) Bill, 2010
Based on recommendations of the Law Commission, a legislation was proposed. The Marriage Laws (Amendment) Bill, 2010 to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to making divorce easier on the grounds of irretrievable breakdown of marriage, was introduced in the parliament in 2012. The Bill replaces the words "not earlier than six months" in Section 13B with the words "Upon receipt of a petition."
It also provides a better safeguard to wives by inserting section 13D by which the wife may oppose the grant of a decree on the grounds that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.
New section 13E provides restriction on decree for divorce affecting children born out of wedlock and states that a court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
Marriage Laws (Amendment) Bill, 2010 makes similar amendments to the Special Marriage Act, 1954 by replacing the words "not earlier than six months" in Section 28 with the words "Upon receipt of a petition" and provides restriction on decree for divorce affecting children born out of wedlock.
However, there was opposition to this bill due to the objection that it will create hardships for women and that the bill strongly supports one party while both parties should be treated equal in divorce.[15] Therefore, the bill was amended to provide for the wife's consent for waiver of six-month notice with the words "Upon receipt of petitions by the husband and the wife."
Protest against the bill came from Men's rights movement groups. Hridaya, a Kolkata-based NGO, demonstrated against the bill. Amartya Talukdar (a men's rights activist) raised concern that the bill introduces no-fault divorce for Hindus only. According to him, "If the Government really wants to bring about empowerment of women, let them make it open for all sections of the society. Let them bring a uniform civil code. Why is it only for the Hindus?" [17][18][19]
Judicial review
Shilpa Sailesh Vs Varun Sreenivasan: Hon’ble Supreme Court of India held that it can exercise power under Article 142(1) to grant a decree of divorce by mutual consent and can bypass the provisions of section 13B of The Hindu Marriage Act, 1955. Hon’ble Supreme Court of India also recognized its discretionary power to dissolve a marriage on the grounds of irretrievable breakdown, which is otherwise not provided under section 13 of The Hindu Marriage Act, 1955.
The Supreme Court of India exercised its powers under Article 142 of the Constitution of India and ruled in August 2012 that marriages can be ended by mutual consent before expiry of the cooling period of six months stipulated in the Hindu Marriage Act, 1955. Section 13-B of the Hindu Marriage Act provides for the couple seeking divorce through mutual consent to wait for a period of six months after making first joint application for divorce. It is only after the expiry of the six months that the couple can move second application for the dissolution of their marriage.[20]
Pronouncing the judgment, Justice Altamas Kabir said: "It is no doubt true that the legislature had in its wisdom stipulated a cooling period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. But there may be occasions when in order to do complete justice to the parties it becomes necessary for this court to invoke its powers under Article 142 in an irreconcilable situation (between the couple). When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months."
A case before the Madras High Court opinioned same-sex marriage within historical Hinduism, that homosexual acts are not forbidden under the Act, and that marriage is a fundamental constitutional right.[21] If literally interpreted, the terms "groom" and "bride" may be viewed as referring to narrow definitions based on genders ("male" and "female"). However, the Hindu Marriage Act was a codification of the ancient Sastrik law by the colonial government for the purpose of regulating issues such as divorce. Application of the "mischief rule" in this situation allows homosexual marriage to be allowed under the current reading of the Hindu Marriage Act, as what "the statute aims at relieving is the regulation of marriage, and not that two same-sex individuals could marry each other. The Act is a codifying statute, and not a penal or disabling statute" and that it was improperly codified.[21]
The petitioners argued that they require legal recognition of their marriage because, unlike unregistered opposite-sex married couples, they often encounter officials who question the legitimacy of their relationship. The petitioners had to rely on personal connections and the goodwill of the authorities to access social and economic rights that are automatically available to married couples. To make their case, they presented evidence of the difficulty they faced in simple tasks such as opening joint bank accounts and obtaining proof of residence.[22][23][24][25]
Divorce is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. It can be said to be a legal dissolution of a marriage by a court or other competent body. It is the legal process of ending a marriage.
Legal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order. In cases where children are involved, a court order of legal separation often makes child custody arrangements, specifying sole custody or shared parenting, as well as child support. Some couples obtain a legal separation as an alternative to a divorce, based on moral or religious objections to divorce.
A prenuptial agreement, antenuptial agreement, or premarital agreement is a written contract entered into by a couple before marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse's right to claim an elective share of the estate of the deceased spouse.
Annulment is a legal procedure within secular and religious legal systems for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place. In legal terminology, an annulment makes a void marriage or a voidable marriage null.
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No-fault divorce is the dissolution of a marriage that does not require a showing of wrongdoing by either party. Laws providing for no-fault divorce allow a family court to grant a divorce in response to a petition by either party of the marriage without requiring the petitioner to provide evidence that the defendant has committed a breach of the marital contract.
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Divorce law, the legal provisions for the dissolution of marriage, varies widely across the globe, reflecting diverse legal systems and cultural norms. Most nations allow for residents to divorce under some conditions except the Philippines and the Vatican City, an ecclesiastical sovereign city-state, which has no procedure for divorce. In these two countries, laws only allow annulment of marriages.
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The matrimonial law of Singapore categorises marriages contracted in Singapore into two categories: civil marriages and Muslim marriages. The Registry of Marriage (ROM) administers civil marriages in accordance to the Women's Charter, while the Registry of Muslim Marriages (ROMM) administers Muslim marriages in accordance to the Administration of Muslim Law Act (AMLA). All marriages performed in Singapore must be registered with the relevant registry in order to be legally valid.
The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage for people of India and all Indian nationals in foreign countries, irrelevant of the religion or faith followed by either party. The Act originated from a piece of legislation proposed during the late 19th century. Marriages solemnized under Special Marriage Act are not governed by personal laws.
India does not recognise same-sex marriage, civil unions or other forms of partnerships, but provides some limited legal recognition to cohabiting same-sex couples in the form of live-in relationships. Several same-sex couples have married in traditional Hindu ceremonies since the late 1980s; however, these marriages are not registered with the state and couples do not enjoy all the same rights and benefits as married opposite-sex couples. The Supreme Court of India in August 2022 provided social security rights to those in same-sex live-in relationships while also recognising same-sex couples as being part of a "family unit".
Divorce law in Sweden concerns the dissolution of marriage, child support, alimony, custody and the division of property. Divorce restores the status of married people to individuals, leaving them free to remarry. The divorce laws in Sweden are known to be considerably liberal compared to other jurisdictions.
Marriage in New Zealand is governed by an Act of Parliament. The minimum marriage age is 18 years, or 16 years with consent of the Family Court. Polygamous marriages are not permitted in New Zealand. There are prohibitions of marriages between some relatives and some who are already in a civil union.
In England and Wales, divorce is allowed under the Divorce, Dissolution and Separation Act 2020 on the ground that the marriage has irretrievably broken down without having to prove fault or separation.
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The Muslim Women Act, 2019 is an Act of the Parliament of India criminalising triple talaq. In August 2017, the Supreme Court of India declared triple talaq, which enables Muslim men to instantly divorce their wives, to be unconstitutional. The minority opinion suggested the Parliament to consider appropriate legislation governing triple talaq in the Muslim community.
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1 2 3 Bhasin, Shally (18 November 2021), Nibedita Dutta & Pooja Srivastava Versus Union of India thr. Its Secretary, Ministry of Law and Justice (Public Interest Litigation), High Court of Delhi{{citation}}: CS1 maint: location missing publisher (link)
1 2 3 Kumar, Nupur; Lakdawalla, Hamza; Bhatt, Rohin (2 December 2022), Sameer Samudra & Amit Gokhale versus Union of India thr. Its Secretary, Ministry of Law and Justice. (Public Interest Litigation), Supreme Court of India{{citation}}: CS1 maint: location missing publisher (link)
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