TOPIC:- HINDU MARRIAGE ACT 1955- FUNDAMENTAL

CHANGES BROUGHT BY IT

OCTOBER 2017

CNLU, PATNA

NYAYA NAGAR, MITHAPUR, PATNA

SUBMITTED BY: SUBMITTED TO:

SUSHMITA KUMARI Dr. SHAIWAL SIR

ROLL NO.- 1569 FACULTY OF FAMILY LAW

BA.LLB

3rd SEMESTER

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 DECLARATION PAGE

I here-by declared that project work reported in the BA.LLB(Hons.) entitled

HINDU MARRIAGE ACT 1955- FUNDAMENTAL CHANGES BROUGHT BY IT
submitted by me at CHANAKYA NATIONAL LAW UNIVERSITY is an
authentic record of my own work, carried out under the supervision of Dr.
SHAIWAL SATYARTHI for the partial fulfillment of the course FAMILY LAW-
1. This project work is not submitted by me elsewhere for any other
degree/diploma certificate in any institute or university. I am fully responsible for the
contents of my project report.
SUSHMITA KUMARI

ROLL NO.-1569

BBA.LLB

3rd SEMESTER

DATE- 9/10/17

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 ACKNOWLEDGE PAGE

I owe the present accomplishment. Any project completed or done in isolation is

unthinkable. This project, although prepared by me, is a culmination of efforts of a lots
of people.

Firstly, I would like to thank our teacher Dr. SHAIWAL SATYARTHI for his valuable
suggestions towards the making of this project.

Further to that, I would also like to express my gratitude towards my seniors who were
a lot of help for the completion of this project.

The contribution made by my classmates and friends are, definitely, worth mentioning.

I would like to express my gratitude towards my family members help also.

Last, but far from the least, I would express my gratitude towards the Almighty for
obvious reasons.

THANK YOU.

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 CONTENT PAGE

Contents
DECLARATION PAGE ....................................................................................................................... 2

ACKNOWLEDGE PAGE .................................................................................................................... 3

OBJECTIVE AND SCOPE: ................................................................................................................... 5

RESEARCH METHODOLOGY: .......................................................................................................... 5

HYPHOTHESIS: .................................................................................................................................... 5

LIMITATION OF THE STUDY: .......................................................................................................... 5

TENTATIVE CHAPTERISTION: ......................................................................................................... 5

INTRODUCTION .................................................................................................................................. 5

applicability ..............................................................................................Error! Bookmark not defined.

marriage under this Act .......................................................................................................................... 8

conditions for marriage .......................................................................................................................... 9

provisions for divorce ........................................................................................................................... 16

conclusion ............................................................................................................................................. 17

BIBLIOGRAPHY ...................................................................................................................................... 18

ARTICLES ............................................................................................................................................... 18

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OBJECTIVE AND SCOPE:
The fundamental objective of our research is to analyze the fundamental changes brought under
Hindu marriage Act 1955 under Hindu Law. The Researcher has analyzed the Hindu law
provisions with respect to above mentioned analysis.

RESEARCH METHODOLOGY:
For this project, we followed doctrinaire method which includes both descriptive method and
analytical method of writing throughout this project. We went through number of blogs,
editorials, articles and various websites on the internet.

HYPHOTHESIS:
The term Marriage under Hindu Law has a wider connotation and is a sacrament.

LIMITATION OF THE STUDY:

Lack of time
Territorial limitation
Finance

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INTRODUCTION:
India, being a cosmopolitan country, allows each citizen to be governed under personal
laws related to religious views. This extends to personal law inter alia in the matter of
marriage and divorce. Hindu Marriage Act, 1955 has reformed Hindu law of Marriage. It
is a landmark in the history of social legislation. It has not simply codified the Hindu law
of marriage but has introduced certain important changes in many respects. The Hindu
marriage contemplated by the Act hardly remains sacramental. The Act has brought in
some changes of far reaching consequences which have undermined the sacramental nature
of marriage and rendered it contractual in nature to a great extent.

As part of Hindu code bill, the Hindu Marriage Act was enacted by parliament in 1955 to
amend and codify marriage law between Hindus. As well as regulating the institution of
marriage (including validity of marriage and conditions for invalidity), it also regulates
other aspects of life among Hindu and applicability such lives in wider Indian society.1
The Hindu Marriage Act provides guidance for Hindus to be in a systematic marriage bond.
it gives meaning to marriage, cohabiting rights for both the bride and groom, and a safety
for their family and children so that they do not suffer from their parental issues. The speed
with which Parliament passed the reforms in the Hindu Marriage Act, 1955 is really
commendable. The passing of the Hindu Marriage Act, in 1955, has substantially modified
the institution of marriage as recognised by the ancient Hindu law. This Act has brought
about certain radical changes. The Act effected radical changes in the law of marriage of
Hindus. It brought about uniformity in the Hindu law of marriage, by codifying it. The Act
has been given an overriding effect, as a result of which the texts, rules and customs, which
are in contravention to the present Act, stand abrogated. 2 The characteristic changes
brought about by the Act are:
1) A Hindu marriage is now not so much concerned with religion. It is more a result
of mutual consent than sacramental [Sections 5(ii), (iii), 11 to 13 and 7].
2) Under Section 2 it follows that marriages amongst Hindus, Jains, Sikhs and
Buddhists are now valid Hindu marriage in the eyes of the law.
3) It has introduced monogamy. Under Sections 5 of the Act, it has been stated that a
marriage becomes null and void, if at the time of marriage, either party to marriage
has a living spouse.
4) Bigamy has not only been prohibited, but has been made an offence punishable
under the Indian Penal Code.
5) The Act has permitted inter-caste marriages. Under Section 29 of the Act, the
marriages between persons of two different castes, which were effected before the
commencement of the present Act, have also been declared as valid. In Lata Singh
v. State of U.P., the Supreme Court held that inter-caste marriage not barred under
the Act or any other law major boy or girl is free to marry anyone he or she likes or
live with anyone he or she likes.

1
https://www.netlawman.co.in/ia/hindu-marriage-act-1955 (last visted 14/9/17)
2
https://indiankanoon.org/doc/44002968/(last visted 14/9/17)

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 6) The Act or any other law major boy or girl is free to marry anyone he or she likes
or live with anyone he or she likes.
7) Marriage between the persons belonging to the same Gotra has been legalised. The
Act has given a clear definition of the word sapinda and has thereby abolished
the distinction between the Mitakshara and Dayabhaga schools about sapinda
relationship. It has also clearly defined the prohibited degree of relationship for the
purpose of marriage.
8) The minimum age of marriage for the bridegroom and for the bride has been fixed
as 21 years and 18 years respectively after the Child Marriage Restraint
(Amendment) Act, 1978 and also by the Prohibition of Child Marriage Act, 2006
(Act No. 6 of 2007).
9) The Act has introduced some new matrimonial reliefs like restitution of conjugal
rights, judicial separation, nullity of marriage and divorce under certain conditions
and circumstances.
10) The Act has made provision for the registration of Hindu marriage. It does not
provide for any particular form of marriage, but if the rites and ceremonies include
Saptapadi then the marriage is complete and binding when the seventh step is taken
jointly by the parties before sacred fire. The Act now lays down conditions of a
valid marriage and does not recognise any particular form of a Hindu marriage
(Section 5).
11) The Act now makes no distinction between the marriage of a maiden and the
marriage of a widow.
12) The Act has allowed the right of claiming alimony pendente life and also permanent
maintenance by either of the spouse having no source of income. Section 24 of the
Act makes provisions for maintenance pendente lite and for expenses of legal
proceedings. Similarly, Section 25 provides for permanent alimony and
maintenance and Section 26 of the Act provides for the custody, maintenance and
education of minor children during the pendency of legal proceedings as also after
passing of decree.
13) The Act confers legitimacy to children born of void and voidable wedlocks so as to
enable them to inherit the property of their parents.
14) The right for disposal of property presented at or about the time of marriage, which
may belong jointly to husband and wife, has also been conferred upon parties by
this Act.
15) Provision for registration of Hindu marriage has been provided for the first time.

APPLICABILITY OF ACT
The Act applies to all forms of Hinduism (for example, to a person who is a Virashaiva, a
Lingayat or a follower of the Brahmo, Prarthana or AryaSamam) and also recognises
offshoots of the Hindu religion as specified in Article 44 of the Indian Constitution.
Notably, these include Jains and Buddhists. 3 The Act also applies to anyone who is a
permanent resident in the India who is not Muslim, Jew, Christian, or Parsi by religion.

3
www.ebc-india.com/lawyer/articles/705.htm(last visted 16/9/17)

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 Although the Act originally applied to Sikhs as well, the Anand Karaj Marriage Act gives
Sikhs their own personal law related to marriage.
Although the Act originally did not apply to citizens in the State of Jammu and Kashmir,
the effect of the J&K Hindu Marriage Act, 1955 made it applicable.
The Act applies:
a) To any person who is a Hindu by religion
b) To Virashaiva, a Lingayat or a follower of the Brahmo Samaj or Arya Samaj
c) To any person who is a Buddhist, Jaina or Sikh by religion
d) To any other person domiciled in the territories to which the Act extends (the act extends
to the whole of India except the state of Jammu and Kashmir) and who is not a Muslim,
Christian, Parsi or Jew by religion.
The following persons are Hindus, Buddhists, Jains or Sikhs by religion and the Hindu
Marriage Act 1955 is applicable to them.
i) Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jain
or Sikhs by religion.
ii) Any child, legitimate or illegitimate, one of whose parents is a Hindu Buddhist, Jain or
Sikh by religion and Who is brought up as a member of the tribe, community, group or
family to which such parent belongs or belonged
iii) Any person who is a convert or reconvert to the Hindu, Buddhist or Jaina or Sikh
religion
The act will also apply to a Hindu who is outside the territory of India, if he or she is a
Hindu domiciled (domicile-permanent residence) in India.4

MARRIAGE UNDER THIS ACT

Marriage under the Hindu law is "sacrament" and "not a contract" which can be entered
into by executing a deed, Delhi High Court has observed while dismissing a plea by a
woman who had challenged an order refusing to declare her as the legally-wedded wife.
"Under Hindu Law, marriage is a 'sacrament' (solemn pledge) and not a contract which can
be entered into by execution of a marriage deed. On June 2, 1990 the man was having a
living spouse," Justice Pratibha Rani said.5

Marriage is an exclusive and sacramental union. According to Hinduism, marriage is a

sacred relationship. In some Hindu systems of marriage, there is no role for the state as
marriage remained a private affair within the social realm. Within this traditional
framework reference, marriage is undoubtedly the most important transitional point in a
Hindus life and the most important of all the Hindu sanskaras (life-cycle rituals).

Therefore there was fierce religious opposition to enacting such laws for marriage,
succession and adoption. The greatest opposition was to the provision of divorce,

4
https://articlesonlaw.wordpress.com/(last visted 16/9/17)
5
indianexpress.com India(last visted 16/9/17)

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 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. 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 modernization, the dominant
view in Hindu society for the foreseeable future would remain that marriage is a form of
social obligation.

The Hindu Marriage Act, 1955 is the legislation which relates to marriages among Hindus
and applies also to Buddhists, Jains, and Sikhs. The provisions of the HMA deal with the
conditions for a Hindu marriage (such as valid consent, the minimum marriageable age for
the bride and groom, etc), registration of Hindu marriages, grounds for divorce, etc. The
HMA also contains provisions dealing with the legitimacy of children of void and voidable
marriages (Section 16) and permanent alimony and maintenance (Section 25).While
marriage is not defined under the HMA, Section 7 of the Act lays down that a Hindu
marriage may be solemnised in accordance with the customary rites and ceremonies of
either party. Section 7 further elaborates that where the rites and ceremonies include the
saptapadi (the taking of seven steps by the bridegroom and the bride jointly before the
sacred fire), the marriage is only said to be complete when the seventh step is taken. The
provisions of HMA thus apply to marriage as understood in accordance with Section 7.
At present, the HMA does not apply to other relationships.6

CONDITIONS FOR MARRIAGE

Section 5 of The Hindu Marriage Act specifies that conditions must be met for a marriage
to be able to take place. If a ceremony takes place, but the conditions are not met, the
marriage is either void by default, or voidable.7

The Hindu Marriage Act, 1955 originally provided six conditions for a valid marriage but
the Child Marriage Restraint Act which was passed in 1978 omitted the sixth condition
relating to guardianship in marriage and now there are only five conditions as pre-requisites
for a valid Hindu marriage. These conditions are essential for the validity of marriage. In
case of non-fulfilment of these conditions the marriage would not be deemed to be valid.

The conditions given in the section are binding and definite, in absence of which the validity
of marriage becomes doubtful. Section 5 of the Act, which deals with these conditions
dispenses with the requirement of the identity of the caste. Section 5 lays down that a
marriage may be solemnised between any two Hindus if the following conditions are
fulfilled, namely
(1) Monogamy:

6
www.firstpost.com/.../hindu-marriage-act-must-keep-up-with-times-to-provide-legal-...(last visted 16/9/17)
7
https://www.legalbites.in/void-marriage-voidable-marriage/(last visted 16/9/17)

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Neither party has a living spouse at the time of marriage;
(2) Soundness of Mind:
Neither party at the time of marriage
(a) Is incapable of giving a valid consent to it in consequence of unsoundness of mind; 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;
or
(c) Has been subject to recurrent attacks of insanity or epilepsy.
(3) Age of Marriage:
The bridegroom has completed the age of 21 years and the bride the age of 18 years at the
time of marriage.
(4) Beyond Prohibited Degrees:
The parties are not within the degree of prohibited relationship unless customs or usage
governing each of them permits of a marriage between the two;
(5) Beyond Sapinda Relationship:
The parties are not Sapinda of each other, unless the custom or usage governing each of
them permits of a marriage between the two.
(1) As Regards the First Condition:
Section 5(1) provides the rule of monogamy and prohibits polygamy and polyandry. It now
specifies unequivocally that Hindu can have only one marriage subsisting at a time.8
Prior to the Act of 1955 a Hindu male could marry more than one wife irrespective of the
fact that his previous wife was alive at the time of his subsequent marriage. Now the section
requires that either party to marriage must not have his spouse living at the time of marriage
and in the event of breach of this condition the erring party would fall within the mischief
of Sections 494 and 495 of the Indian Penal Code and also would be liable for punishment
under Section 17 of the Hindu Marriage Act. The Supreme Court in Smt. Yamuna Bai
Anant Rao Adhav v. Anant Rao Sliiva Ram Adliava, has laid down that in the event of
breach of first condition specified in Section 5(1) the marriage is rendered null and void
under Section 11(1) of the Act and since it is void ab initio, the wife cannot claim
maintenance under Section 125 of the Code of Criminal Procedure. In Bhogadi Kannababu
and others v. Vaggitia Pydamma and others, the Supreme Court observed that Clause (i) of
Section 5 is one such condition which clearly provides that no marriage can be performed,
if there is a living spouse. If, however, marriage has been so solemnized by the husband,
such marriage is void ab initio and she cannot inherit the property.9
In Gidabia alias Snrjee Dein and others v. Sitabiya alias jagpatia10 and others, the Allahabad
High Court also observed that if the petitioner married deceased, i.e., during the subsistence
of his first marriage, such marriage would be void and she would not be entitled for any

8
www.shareyouressays.com/.../what-are-the-conditions-required-for-a-hindu-marriage-...(last visted 6/9/17)
9
https://indiankanoon.org/doc/663395/(last visted 16/9/17)
10
timesofindia.indiatimes.com/topic/Allahabad-high-court(last visted 16/9/17)

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share in the property of the deceased. Recently in Nilesli Narain Rajesli Lai v. Kashmira
Bliupendra Bai Banker, husband who was Christian had married a Hindu girl. The marriage
was solemnized according to the Hindu rituals and was registered under the Hindu
Marriage Act. After some time a baby girl was bom after which the wife was deserted by
the husband and he filed a suit under section 11 of Hindu Marriage Act for declaration of
marriage between the parties as void because at the time of his marriage the first marriage
was subsisting. In this case the court held that marriage between the parties is void ab intio.
Because during the subsistence of his first marriage, such marriage would be void.11

The courts have expressed the view that a party to the bigamous marriage could be punished
only upon the proof of the prior marriage having been solemnised according to religious
ceremonies and customs. The subsequent marriage would require proof of essential
religious ceremonies or rites, mere admission would not render it a complete marriage. The
offence of bigamy would be constituted only when at the time of the performance of
subsequent marriage, the spouse of the such party to marriage was alive and that marriage
was not void or invalid. Even where the subsisting marriage was voidable, the offence of
bigamy would be made out upon the performance of subsequent marriage. But in every
case the offence would be punishable if the essential requirements of law and religion had
been duly fulfilled and performed. The same view has been reaffirmed by the Supreme
Court in Shanti Deo Verma v. Kanchcin Prasad,12 where the court held that by the fact that
parties were living like husband and wife and oral evidence to that effect, it cannot be
proved that they were validly married and religious ceremonies were duly performed.
Without the performance of religious ceremonies and rites a Hindu marriage cannot get
recognition in law but where these ceremonies or rites are not properly performed or they
are not observed in accordance with customary rites of either party to marriage, the label
of unlawfulness shall not be attached to such a marriage. The breach of the first condition
of Section 5 results in two legal consequences, namely, (a) such a marriage would become
null and void under Section 11; and (b) the erring party to such a marriage would be liable
to be prosecuted under Section 17 of the Act and punishment under Section 494 and 495
of the Indian Penal Code. Under the Hindu Law, marriage is a sacrament. Both these have
to be preserved, therefore, religion is not a commodity to be exploited, it is a matter of faith.
(2) Second ConditionLunacy:
Section 5(2) of the Act, 1955 was amended by the Marriage Law Amendment Act, 1976
and the restructured clause lays down as one of the conditions for a Hindu marriage is that
neither party must be suffering from unsoundness of mind, mental disorder, insanity [or
epilepsy] at the time of marriage.13 Section 12(l)(b) renders, at the instance of the aggrieved
party, the marriage voidable, if the other party was suffering from any such mental
disability at the time of marriage. The sub-section provides that neither party, at the time
of marriage (a) is incapable of giving a valid consent to it in consequence of unsoundness
of mind; or (b) though capable of giving valid consent, has been suffering from mental

11
www.legalservicesindia.com/articles/rfs.htm(last visted 16/9/17)
12
kamkus.org/coursematerial/Hindu%20Unit-2.pdf (last visted 16/9/17)
13
www.saveindianfamily.org/the-marriage-laws-amendment-act-1976/(last visted 16/9/17)

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disorder of such a kind or to such an extent as to be unfit for marriage and the procreation
of children; or (c) has been subjected to recurrent attacks of insanity. The term at the time
of marriage connotes that if at the time of marriage the parties to it were of sound mind
but later became insane or mentally unsound then this eventuality would not affect the
validity of marriage. The Allahabad High Court has decided an important point on this
aspect and held that a party to marriage must be so much mentally deformed that it becomes
impossible for the other party to carry marital life with him or her.
In this respect it would be necessary to establish that such mental disability existed either
from before or since the time of marriage. In the event of subsequent mental disabilities in
either party to marriage the aggrieved party can have recourse to the provisions of Section
13 and obtain a decree of divorce. If the factum of prior mental disability in either party to
marriage had been concealed, or has been avoided to be stated by the parents of either party,
the marriage could be declared to be void under Section 12(l) (c) of the Act and it would
be no defence to plead that it was the duty of the other party to have himself investigated
and discovered the truth. Before the enforcements of the Amendment Act, the High Court
of Calcutta in the case of Anima Rai v. Probodh Mohan Rai, laid down that since the
expression insane has not been defined under the Act, its meaning and purport would be
the same as under Section 3(5) of the Insanity Act which provides that any person suffering
from mental derangement of any kind may be regarded as idiot or insane. The Act is not
concerned with different categories of insanity from the point of view of Section 5(2) of
the Hindu Marriage Act, 1955, it would be sufficient to establish that the party to the
marriage was of unsound mind at the time of marriage and the burden to establish this fact
would rest upon the petitioner, filing the petition for divorce. The inference of insanity
cannot be drawn from the fact that the other party did not appear in the court as a witness.
Section. The Hindu Marriage Laws Amendment Act, 1976 added a new provision in
Section 5(2) in supersession of the previous one relating to mental unsoundness expanding
the scope of the previously used expression idiocy and lunacy so as to include now every
kind of mental disorder as a ground of nullity of marriage under Section 12 of the Act. But
in this respect it is noteworthy that Section 5(2) of the Act is a contradiction in terms
inasmuch as none who is-affected by unsoundness of mind can give a valid consent to the
marriage under any circumstances. The provisions in Section 5(2)(a) of the Act to the effect
that at the time of marriage neither bride nor the bridegroom be disabled from giving a
valid consent to marriage on account of any mental disorder appears to be redundant and
suffers from verbosity. Similarly, the provision in Section 5(2) (b) of the Act providing that
if the bride or bridegroom is capable of giving a valid consent but suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and procreation of
children, is superfluous and contradictory in terms. A person suffering from any kind of
mental disorder of whatever degree becomes unfit for giving a valid consent. Unfitness for
marriage and procreation are not at all related to mental disorder.14
(3) Third ConditionAge of the Parties:
Section 5(3) prescribed the age of the bridegroom as eighteen years and that of bride as
fifteen years but by the Child Marriage Restraint (Amendment) Act, 1978 the words the

14
www.barcouncilofindia.org/wp-content/uploads/2010/08/AIBEBook2.pdf(last visted 16/9/17)

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eighteen and fifteen stand substituted by twenty one and eighteen respectively. Now for
a valid marriage the bridegroom must have attained the age of 21 years and the bride of 18
years at the time of marriage. But the breach of this pre-requisite did not affect the validity
of marriage, but on the other hand, rendered it as an offence, inviting penal consequences
to the erring parties. The guilty party to such marriage or the parent or guardian concerned
who is responsible for getting the marriage solemnised, or negligently fails to prevent it
from being solemnised shall be liable for simple imprisonment upto 15 days or a fine of
Rs. 1000/- or both under Section 18 of the Act.15
Now position has changed in the contravention of the condition specified in Clause (iii) of
Section 5, with rigorous imprisonment which may extend to two years, or with fine which
may extend to one lakh rupees or with both. Before the aforesaid amendment the consent
of the guardian of the girl was necessary if she was below eighteen years of age. If the
consent of the guardian was obtained by force or fraud the aggrieved party could under
Section 12(l) (c) of the Act have the marriage declared void by making a petition to this
effect. A marriage solemnised in violation of Section 5(iii) would not be void although the
person guilty of the stipulated condition as to the minimum age would be liable to be
punished under Section 18(a) of the Act. Under the old Hindu law the marriageable age of
the bride was between 8 and 12 years and that of the bridegroom within 25 years, but the
Child Marriage Restraint Act, 1929, as amended by the Act of 1949, redetermined the age
of marriage and prohibited the same between a bride less than 15 years of age and a
bridegroom below 18 years. It was essential to have the consent of the brides guardian if
she was under 18 years of age. But where the parties voluntarily chose to continue the
marital relations as such after the marriage the necessity of the guardians consent fell to
the background.16

In Pinniti Venkataranin v. State, the Andhra Pradesh High Court laid down that any
marriage solemnised in contravention of cl. (iii) of Section 5 is neither void nor voidable,
the only consequences being that the persons concerned are liable for punishment under
Section 18. Thus a marriage in contravention of Section 5(3) does not render the marriage
null and void.17 But where a bride had been married before completion of her fifteenth year
and on attaining that age repudiates the marriage, she would be entitled to a decree of
divorce under Section 18(2)(iv) of the Act which was inserted by the Marriage Laws
(Amendment) Act, 1976. The option of getting a decree of divorce would be available till
the completion of her eighteenth year. Barring these two consequences, one arising under
Section 18 and the other arising under clause (iv) of the sub-section (2) of Section 13, there
is no other consequence whatsoever, resulting from the contravention of the provisions of
cl. (iii) of Section 5.

15
shodhganga.inflibnet.ac.in/jspui/bitstream/10603/124142/10/10_chapter%203.pdf(last visted 21/9/17)

16
www.northeastnetwork.org/wp-content/uploads/2016/06/15.India-Shadow-report.pdf(last visted 21/9/17)

17
www.advocatekhoj.com/library/judgments/index.php?go=2009/december/13.php (last visted 21/9/17)

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(4) Fourth Condition:
(a) Prohibition as to Prohibited Degrees of Relationship: Section 5(4):
Under sub-section (iv) of Section 5, marriages between persons falling within the
prohibited degrees of relationship have been prohibited. Section 3(g) defines degrees of
prohibited relationship as follows18:
Two persons would be regarded to be within prohibited degrees
(a) If one is a lineal ascendant of the other; or
(b) If one was the wife or the husband of a lineal ascendant or descendant of the other; or
(c) 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.
(d) If 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.
It is noteworthy that relationship in the above context would also include
(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.
An exception has been made in this clause to the effect that a marriage of persons though
related to each other within the prohibited relationship shall be permissible if the custom
or usage governing both the parties to the marriage permits a marriage between them. The
custom which allows a marriage between persons within prohibited degrees must fulfil the
requirements of a valid custom. The custom must not be unreasonable or opposed to public
policy.
Order of Prohibited Relationship:
Section 3(f) furnishes details of prohibited relationship according to which a marriage with
the following relations cannot result in a lawful wedlock19
(i) Wife of his lineal ascendant,
(ii) Wife of lineal descendant, or
(iii) brothers wife,
(iv) Wife of his fathers brother,
(v) Wife of his mothers brother,
(vi) Wife of his grandfathers brother,

18
yogeshnaiks-blawg.blogspot.com/2009/05/degree-of-prohibited-relationship-as.html(last visted 21/9/17)
19
ttps://www.legistify.com/.../2293-degree-of-prohibited-relationship-under-hindu-ma..(last visited 21/9/17)

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(vii) Wife of his grandmothers brother,
(viii) Sister,
(ix) Brothers sister,
(x) Sisters daughter,
(xi) Fathers sister,
(xii) Mothers sister,
(xiii) Fathers sisters daughter,
(xiv) Fathers brothers daughter,
(xv) Mothers brothers high
iii. Former wife of father or grand-father how so ever high
iv. Former wife of brother
v. Former wife of either parents brother
vi. Former wife of grand-parents brother
vii. Sister
viii. Either parents sister
ix. Daughter of a brother or sister
x. Daughter of either parents brother
xi. Daughter of either parents sister
For Women:
i. Father
ii. Grandfather how soever high
iii. Former husband of mother or grand-mother howsoever high
iv. Brother of former husband
v. Nephwe of former husband
vi. Grand-nephew of former husband
vii. Brother
viii. Son of a brohte ror sister
viii. Son of either parents brother
ix. Son of either parents sister
A marriage falling within the prohibited degrees of relationship would be void under
Section 11 of the Act. Moreover Section 18(b) punishes the erring party with the simple
imprisonment which may extend upto one month, or with fine which may extend to one
thousand rupees, or with both. The High Court of Punjab in Smt. Shakuntala Devi v. An

15
 tar Nath, has observed that the conditions of a valid marriage under Section 5(iv) of the Act
stand qualified by custom meaning thereby that in the event of custom being established,
the marriage despite prohibited relationship between parties to it would constitute a legal
and valid marriage but these customs must be proved to be very old and beyond human
memory.20
(5) Fifth ConditionBeyond Sapinda relationshipSection 5(v):

This clause provides that no marriage is valid if it is made between parties who are related
to each other as Sapindas unless such marriage is sanctioned by usage or customs governing
both the parties. A marriage in violation of this condition will be void and the party
violating the provisions of Section 5(v) would be liable to punishment under Section 18(b)
which lays down simple imprisonment for one month or a fine of Rs. 1000/- or both. The
restriction based on Sapinda relationship was applicable ever since before the enforcements
of this Act. If parties to the marriage are governed by such custom which permits marriages
between Sapindas, the said prohibition would not apply and the marriage would continue
to be valid. The view was expressed by the Punjab High Court recognizing the Sagotra
marriage in Vaishya Agrawal community. Certain customs of the same nature prevail in
the province of Madras recognizing marriages among the off springs of the brothers and
sisters.

4. PROVISON FOR DIVORCE

Although marriage is held to be divine, the Hindu Marriage Act does permit either party to
divorce on the grounds of unhappiness, or if he or she can prove that the marriage is no
longer tenable. A petition for divorce usually can only be filed one year after registration.21
However, in certain cases of suffering by the petitioner or mental instability of the
respondent, a court may allow a petition to be presented before one year.

Grounds for divorce

A marriage may be dissolved by a court order on the following grounds:

Adultery - the respondent has had voluntary sexual intercourse with a man or a
woman other than the spouse after the marriage.
Cruelty - the respondent has physically or mentally abused the petitioner.
Desertion - the respondent has deserted the petitioner for a continuous period of not
less than two years.
Conversion to another religion - the respondent has ceased to be a Hindu and has
taken another religion.

20
hpsja.nic.in/JAIndianLawReporterNovember2015.pdf(last visted 21/9/17)
21
https://bharatchugh.wordpress.com/category/family-law/ (last visted 21/9/17)

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 Unsound mind - the respondent has been diagnosed since the marriage ceremony as
being unsound of mind to such an extent that normal married life is not possible.
Disease - the respondent been diagnosed with an incurable form of leprosy or has
venereal disease in acommunicable form.
Presumption of death - the respondent has not been seen alive for seven years or
more.
No resumption of cohabitation after a decree of judicial separation for a period of
at least one year.22

In addition, a wife may also seek a divorce on the grounds that:

In case of marriagesthat took place before the Hindu Marriage Act 1955 was
enacted, the husband was already married and that any other wife of thehusband
was alive at the time of the marriage ceremony.
The husband, after marriage, has been found guilty of rape, sodomy or bestiality.
Co-habitation has not been resumed within a yearafter an order for maintenance
under Section 125 of the Criminal Procedure Code or alternatively, under the Hindu
Adoptions & Maintenance Act 1956.
The wife was under-age when she married and she repudiates the marriage before
attaining the age of 18 years.23

22
https://www.lawctopus.com/academike/the-special-marriage-act-1954/(last visted 21/9/17)
23
lawfarm.in/.../grounds-for-divorce-under-hindu-marriage-act-1955-and-special-marri... (last visted
21/9/17)

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CONCLUSION
To conclude one can say that in our country, personal laws continuously affect the lives
and rights of a large number of women of all most all the communities. Although various
efforts are being done by the means of international instruments, reforms of national laws,
changing judicial trends, recommendations of Law Commissions and other social elite
groups to ensure gender equality but still women in our country are not treated equally and
discriminated in the field of family law especially in cases of marriage, divorce,
maintenance, inheritance etc.

The present Act has effected certain changes in the law of marriage, which have a long
bearing upon its nature. It no longer remains a pure sacrament and a binding religious duty.
In the sacred texts, marriage created an inseparable tie between the husband and wife,
which could not be broken in any circumstances whatsoever. This fact along with the others
ascribed sacramental character to marriage. But the Hindu Marriage Act of 1955 by
providing several matrimonial remedies including mainly divorce and nullity of marriage
has seriously eroded its sacramental character. S.T. Desai, the revising author of Mullas
Principles of Hindu Law concludes that a Hindu marriage under the Act, it is submitted,
is not entirely or necessarily a sacrament but a union of one mien with one woman to the
exclusion of all others satisfied by solemnization of the customary rites and ceremonies of
either party essential for a marriage; and directly it creates a relation and status not imposed
or defined by contract but by law.

However, the Andhra Pradesh High Court maintains that the sacramental character of
marriage is still preserved under the Act. It was observed by the court, There can be no
doubt that a Hindu marriage is a religious ceremony. According to all the texts it is a
Sanskara or sacrament throughout ones life for purification of because the marriage rites
completed by Saptapadi or the walking of seven steps before the consecreted fire creates a
religious tie and this religious tie when once created, cannot be broken.

BIBLIOGRAPHY

BOOKS
Agarwala R.K. - Hindu Law, 21st edn. 2003, Central Law Agency, Allahabad.
B.M. Gandhi- Hindu Law, 3rd edn. 2008, Eastern Book Company, Lucknow.
Dr. Paras Diwan on Hindu Law, 2nd edn. 2005, Orient Publishing Company, Allahabad
Dr. Tahir Mahmood - Hindu law, 2nd edn. 1986, The Law Book Company (p)
Ltd. Allahabad.
Kusum - Family Law Lectures, 2003, Lexis Nexis, New Delhi.

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ARTICLES
www.legalserviceindia.com

www.indianexpress.com

books.google.co.in www.internal-

displacement.com delhicourts.nic.in

www.shareyouressay.com

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