Introduction of the Hindu Law

Concept of Dharma
Hindu Law is a body of principles or rules called
‘Dharma’. Dharma according to Hindu texts embraces
everything in life. According to the Hindus, ‘Dharma’
includes not only what is known as law in the modern
sense of the term but all rules of good and proper human
conduct. Dharma is used to mean justice what is right in a
given circumstance, moral, religious, pious or righteous
conduct, being helpful to living beings and things, duty,
law and usage or custom having in the force of law and
also a valid Rajashasana

Origin of Hindu law

The Hindu system as modified through centuries has
been in existence for over five thousand years and has
continued to govern the social and moral patterns of
Hindu life with harmonizing the diverse elements of Hindu
cultural life. Magne says, “Hindu law has the oldest
pedigree of any known system of Jurisprudence and even
now it shows no signs of decrepitude“.

Nature and scope of Hindu Law

Hindu law, though believed to be of divine origin, is based
essentially on immemorial custom and many of the acts of
the people which were purely of a secular nature. But the
secular nature of the acts have been modified to suit the
religious preferences of a Brahmin community. With a
desire to promote the special objects of religion or policy,
they have used their intellectual superiority and religious
influence to mold the customs of the people.

Who are Hindus

The term ‘Hindus’ denotes all those persons who profess
Hindu religion either by birth from Hindu parents or by
conversion to Hindu faith. In Yagnapurus dasji v.
Muldas [AIR 1966 SC 1119], the Supreme Court
accepted the working formula evolved by Tilak regarding
Hindu religion that ‘acceptance of vedas’ with reverence,
recognition of the fact that the number of Gods to
be worshiped at large, that indeed is the distinguishing
feature of Hindu religion.



In Shastri v Muldas SC AIR 1961, SC has held that
various sub sects of Hindus such as Swaminarayan,
Satsangis, Arya Samajis are also Hindus by religion
because they follow the same basic concept of Hindu
Philosophy. Converts and Reconverts are also Hindus.

If only one parent is a Hindu, the person can be a Hindu if

he/she has been raised as a Hindu. In Sapna vs State of
kerala, Kerala HC,  the son of Hindu father and Christian
mother was held to be a Christian

To whom Hindu Law apply

1. Hindus by birth

2. Off shoots of Hinduism

3. Persons who are not Muslims, Christians, Parsis or

Jews

4. Converts to Hinduism

5. Reconverts to Hinduism

6. Harijans

7. Aboriginal Tribes

To whom Hindu law does not apply

▪ to converts from the Hindu to the Mohammedan faith

▪ to the Hindu converts to Christianity

▪ to the illegitimate children of a Hindu father by

Christian mother and who are brought up as
Christians

Constitution of India and the

Enactments under the Hindu Law
Presently, Hindu Law is applied through the Hindu
Marriage Act, 1955; the Hindu Succession Act, 1956; the
Hindu Minority and Guardianship Act, 1956; and the
Hindu Adoptions and Maintenance Act, 1956

Constitutional enactments are:

▪ Hindu Women’s Rights to Property Act, 1937

▪ Hindu Succession Act, 1956

Impact of Hindu Law Enactments in Fundamental

Rights

Several principles of Hindu Law have been held invalid on

the ground that they infringe the Fundamental Rights. For
example, the rule of Damdupat is hit by Article 15(1) of the
Constitution and as such would be void under Article
13(1).

Sources of Hindu Law

Ancient Sources
Before the codification of Hindu Law, the ancient literature
was the only source of the law. These sources can be
divided into four categories:

01. SHRUTI (VEDAS)

Shruti means “what is heard”. It is believed that the rishis
and munis had reached the height of spirituality where
they were revealed the knowledge of Vedas. Thus, shrutis
include the four vedas – rig, yajur, sam, and athrava along
with their brahmanas. The brahmanas are like the
apendices to the Vedas. Vedas primarily contain theories
about sacrifices, rituals, and customs.

02. SMRITIS
Smriti means “what is remembered”.  With Smritis, a
systematic study and teaching of Vedas started. Many
sages, from time to time, have written down the concepts
given in Vedas. So it can be said that Smritis are a written
memoir of the knowledge of the sages. Immediately after
the Vedic period, a need for the regulation of the society
arose.

▪ Dharmasutras: The Dharmansutras were written

during 800 to 200 BC. They were mostly written in
prose form but also contain verses. It is clear that
they were meant to be training manuals of sages for
teaching students.

▪ Dharmashastras: Dharmashastras were mostly in

metrical verses and were based of Dharmasutras.
 However, they were a lot more systematic and clear.

▪ 







 ▪ Manusmriti: This is the earliest and most important
of all. It is not only defined the way of life in India but
is also well know in Java, Bali, and Sumatra. The
name of the real author is not known because the
author has written it under the mythical name of
Manu, who is considered to the the first human.

▪ Yajnavalkya Smriti: Though written after Manusmriti,

this is a very important smriti. Its language is very
direct and clear. It is also a lot more logical. He also
gives a lot of importance to customs but hold the
king to be below the law.

▪ Narada Smriti: Narada was from Nepal and this

smriti is well preserved and its complete text is
available. This is the only smriti that does not deal
with religion and morality at all but concentrates only
on civil law.

03. COMMENATRIES AND DIGESTS

After 200 AD, most the of work was done only on the
existing material given in Smrutis. The work done to
explain a particular smriti is called a commentary.
Commentaries were composed in the period immediately
after 200 AD. Digests were mainly written after that and
incorporated and explained material from all the smruitis.
As noted ealier, some of the commentaries were,
manubhashya, manutika, and mitakshara. While the most
important digest is Jimutvahan’s Dayabhag that is
applicable in the Bengal and Orissa area. Mitakshara
literally means ‘New Word’ and is paramount source of
law in all of India.

04. CUSTOMS
Most of the Hindu law is based on customs and practices
followed by the people all across the country. Even
smrutis have given importance to customs. They have
held customs as transcendent law and have advised the
Kings to give decisions based on customs after due
religious consideration. Customs are of four types:

▪ Local Custom: These are the customs that are

followed in a given geographical area.

▪ Family Custom: These are the customs that are

followed by a family from a long time.  These are
applicable to families where ever they live.

▪ 








▪ Class or Caste Custom: These are the customs that

are followed by a particular cast or community. It is
binding on the members of that community or caste.
By far, this is one of the most important source of
laws.

 ▪ Guild Custom: These are the customs that are

followed by traders.

REQUIREMENTS FOR A VALID CUSTOM

▪ Ancient

▪ Continuous

▪ Certain

▪ Reasonable

▪ Not against morality

▪ Not against public policy

▪ Not against any law

PROOF OF CUSTOM
The burden of proving a custom is on the person who
alleges it. Usually, customs are proved by instances. In
the case of Prakash vs Parmeshwari, it was held that one
instance does not prove a custom. However, in the case
of Ujagar vs Jeo, it was held that if a custom has been
brought to notice of the court repeated, no further proof is
required.

USAGE AND CUSTOM

The term custom and usage is commonly used in
commercial law, but “custom” and “usage” can be
distinguished. A usage is a repetition of acts whereas
custom is the law or general rule that arises from such
repetition. A usage may exist without a custom, but a
custom cannot arise without a usage accompanying it or
preceding it. Usage derives its authority from the assent
of the parties to a transaction and is applicable only to
consensual arrangements. Custom derives its authority
from its adoption into the law and is binding regardless of
any acts of assent by the parties. In modern law, however,
the two principles are often merged into one by the
courts.

Modern Sources
JUDICIAL DECISIONS (PRECEDENTS)
The doctrine of stare decisis started in India from the
British rule. All cases are now recorded and new cases
are decided based on existing case laws.Today, the
judgment of SC is binding on all courts across India and
the judgment of HC is binding on all courts in that state.

LEGISLATURES / STATUTES (CODIFICATION OF

HINDU LAW)
In modern society, this is the only way to bring in new
laws. The parliament, in accordance with the needs
society, constitutes new laws. For example, a new way of
performing Hindu marriages in Tamil Nadu that got rid of
rituals and priests was rejected by the SC on the basis
that new customs cannot be invented. However, TN later
passed an act that recognized these marriages.

JUSTICE, EQUITY AND GOOD CONSCIENCE

Equity means fairness in dealing. Modern judicial systems
greatly rely on being impartial. True justice can only be
delivered through equity and good conscience.  In a
situation where no rule is given, a sense of
‘reasonableness’ must prevail. According to Gautama, in
such situation, the decision should be given that is
acceptable to at least ten people who are knowledgeable
in shastras. Yagyavalkya has said that where ever there
are conflicting rules, the decision must be based on
‘Nyaya’.

Schools of Hindu Law

Due to the emergence of various commentaries on
SMIRITI and SRUTI, different schools of thoughts arose.
 The commentary in one part of the country varied from
the commentary in the other parts of the country.

The Mitakshara School

The Mitakshara School exists throughout India except in
the State of Bengal and Assam. The Yagna Valkya Smriti
was commented on by Vigneshwara under the title
Mitakshara. The followers of Mitakshara are grouped
together under the Mitakshara School.

Mitakshara school is based on the code of yagnavalkya

commented by vigneshwara, a great thinker and a law
maker from Gulbarga, Karnataka. The Inheritance is
based on the principle or propinquity i.e. the nearest in
blood relationship will get the property.

The school is followed throughout India except Bengal

state. Sapinda relationship is of blood. The right to Hindu
joint family property is by birth. So, a son immediately
after birth gets a right to the property.

▪ Dravidian School Of Thought (Madras School)

▪ Maharashtra School (Bombay School Of Thought)

▪ Banaras School Of Thought

▪ Mithila School Of Thought

The Dayabhaga School

It exists in Bengal and Assam only. The Yagna Valkya
smriti is commented on by Jimootavagana under the title
Dayabhaga. It has no sub-school. it differs from
Mistakshara School in many respects.

Dayabhaga School is based on the code of yagnavalkya

commented by Jimutuvahana, Inheritance is based on the
principle of spiritual benefit. It arises by pinda offering i.e.
rice ball offering to deceased ancestors.

This school is followed in Bengal state only. Sapinda

relation is by pinda offerings.

The right to Hindu joint family property is not by birth but

only on the death of the father.

The system of devolution of property is by inheritance.

The legal heirs (sons) have definite shares after the death
of the father.

Marriage and Kinship

Evolution of the Institution of
Marriage and Family
Definition and Forms of Hindu Marriage
▪ Definitions of Marriage: Marriage is a civil and
religious contract whereby a man is joined and united
to a woman for the purpose of civilized society. In law
‘marriage’ may mean either the acts, agreements, or
ceremony by which two persons enter into wedlock,
or their subsequent relation created thereby. Marriage
is the civil status or personal relation of one man and
 one woman joined together in a matrimonial union
which was lawfully entered into.

▪ Characteristics of Marriage: Marriage is universal, It

is for the formation of family, It forges a new social
link, It fixes the responsibility of bringing up children
on the parents, It is a result of civil or religious
ceremony, Legitimization of children born out of such
union which is a social need, In marriage, the male
and female get the right of mutual relationship in
economic, social and biological spheres.

▪ 








▪ Origin of Marriage: The Institute of Marriage evolved

in an evolutionary manner. In the earliest form of
groupings of people, sex was absolutely unregulated
and the children were considered to be the children
of the group. According to Morgan, marriage
institution started with group marriage, then
polygamy and lastly monogamy.

▪ Importance of the Institution of Marriage: The

institute of marriage regulates and socially validates
relatively long-term legitimate sexual relation between
males and females, Marriage serves to start
reproductive process, Marriage is also a way to
acquire new Kinsmen, It is only after marriage a
family comes into being

 ▪ Hindu Marriage:

▪ Matrimonial Rights and Obligations

▪ Duties of a Husband are: to protect his wife, to

give her a home, to maintain her by providing her
with comforts and necessities of life within his
means, to treat her kindly with affection and
courtesy, to honour the wife, not to assault or
commit battery against his wife’s person

▪ Rights of a Husband are: he is entitled to the

custody and the conjugal society of his wife, he
is entitled to succeed to her if she predeceases
him without issue, and can utilise her Sridhana
property to relieve himself in circumstances of
extreme distress

▪ 








▪ Duties of a Wife are: to attend to the needs of

her husband both in religious and household
activities, to show obedience and veneration for
the husband, to live with him wherever he may
choose to reside unless he is guilty of cruelty or
misconduct

▪ Rights of a Wife are: right for maintenance

throughout her life, right of equality in the house
of her husband, right to bring suit for the
 restitution of conjugal rights, right to get divorce
for the cruelty, insults, etc

Different Forms of Hindu Marriage

THE FOUR OBSOLETE APPROVED FORMS
▪ Brahma (to a man learned in vedas)

▪ Daiva (to a preist)

▪ Arsha (father’s taking gift from groom: a cow and a

bull)

▪ Prajapatya (similar to Brahma, gift of a daughter by

father, but bridegroom need not be a bachelor)

THE FOUR UNAPPROVED FORMS

▪ Asura (When groom buys bride through money)

▪ Gandharva (When voluntary union against parent’s

wishes)

▪ Rakshasa (When forcible abduction / kidnapping)

▪ Paishacha (when intoxicated)

Salient Features of Hindu

Marriage Act, 1955
▪ Ancient Hindu Law of Marriage

▪ During Muslim period

▪ During early british rule

▪ Enactments in the British Rule

▪ Enactments in Independent India

▪ The Special Marriage Act, 1954

 ▪ Salient Features of the Hindu Marriage Act, 1955

▪ Main changes introduced in the Hindu Marriage,

1955 by the Marriage Laws (Amendment) Act, 1976

Application of Hindu Marriage

Act, 1955
Definitions
▪ Custom and Usages

▪ Full Blood, Half Blood and Uterine Blood

▪ Sapinda Relationship

▪ Degree of Prohibited Relationship

Overriding Effect of the Hindu Marriage Act, 1955

Conditions of Hindu Marriage

Section 5 of the Hindu Marriage Act, 1955 lists out the
following conditions to be fulfilled for the solemnization
between any two Hindus:-

▪ Monogamy: The first essential condition for a valid

marriage is that neither party should have a spouse
living at the time of marriage. Monogamy is the
voluntary union for life of one man with one woman to
the exclusion of all others. In the case of Varadrajan
v. State, it was held that a party to be bigamous
marriage could be punished only upon the proof of
 the prior marriage having been solemnized according
to religious ceremonies and customs.

▪ Mental Capacity: A marriage is bliss. A sound mind

is a key to a happy married life. Clause (ii) of Section
5 of the Act lays down as one of the conditions for a
Hindu Marriage that neither party must be suffering
from unsoundness of mind, mental disorder, and
insanity.

▪ 








▪ Age of Parties: The Hindu Marriage Act, 1955 lays

down the condition that at the time of the marriage,
the bridegroom must have completed the age of 21
and the bride the age of 18 years. In the case
of Rabindra Prasad v. Sita Devi, the court held that
a child marriage is not void and observed that “the
marriage solemnized in violation of Section 5 (iii)
remains unaffected.

▪ Degrees of Prohibited Relationship: Clause 10 of

Section 5 of the Hindu Marriage Act, 1955 lays down
that no marriage is valid if it is made between
persons related to each other within the prohibited
degrees unless such marriage is sanctioned by
custom or usage governing both the parties.

▪ Beyond Sapinda Relationship: According to

Mitakshara, Sapinda means a person connected by
 the same blood relation. Clause (v) of Section 5 of the
Hindu Marriage Act, 1955 itself provides that the
parties to marriage should not be sapindas of each
other, unless the custom or usage governing each of
them permits of a marriage between two.

▪ The question of virginity of the bride: The Hindu

bride is expected to be a virgin. If the bride had been
made pregnant by another, the husband can have the
marriage set-aside by a decree of nullity, provided (a)
he was ignorant of this fact at the time of marriage;
(b) he did not have marital intercourse after
discovering the fact; (c) petition is brought within one
year from the date of marriage

▪ 








▪ Impotency and other physical infirmities: If the

bridegroom is found impotent after the marriage, the
marriage can be set-aside under section 12 of the
Act. Such marriage is voidable.

▪ Inter-caste Marriage: The Government of India

enacted ‘Hindu Marriages Validating Act, 1949, which
validates intercaste marriages and also marriages
between Hindus, Jains and Sikhs. In the case of Bai
Gulab v. Jiwan Lal, the Bombay High Court upheld
the validity of Anuloma marriages.

 ▪ Doctrine of Factum Valet: It is a doctrine of Hindu

law, which was originally enunciated by the author of
the Dayabhaga, and also recognized by the followers
of the Mitakshara, that ‘a fact cannot be altered by a
hundred texts’. The text referred to are directory
texts, as opposed to mandatory texts. The maxim,
therefore, means that if a fact is accomplished, i.e., if
an act is done and finally completed, although it may
contravene a hundred directory texts, the fact will
nevertheless stand, and the act done will be deemed
to be legal and binding.This doctrine came from
Roman maxim ‘factum valet quod fieri non debuit’
which literally means that ‘what ought not to be done
become valid when done’.In the case of Venkatrama
v. State, the court has applied the doctrine of factum
valet to child marriage and held that the marriage
itself is valid though penal consequences are
attracted. The child marriages are neither void nor
voidable. They continue to be valid even though
punishable.

Ceremonies of Hindu Marriage

▪ No particular form of marriage

▪ Necessary religious ceremonies

▪ Vagdan

▪ Formalities including the recitation of holy texts

before the sacred fire

▪ Saptapadi

 ▪ State amendments

▪ Registration of Hindu Marriages

▪ Types of Marriage: Monogamy, Polygamy, Polyandry

Matrimonial Remedies
Restitution of Conjugal Rights
The meaning of Restitution of Conjugal Rights: Either
husband or wife has without reasonable excuse
withdrawn from the society of other, the aggrieved party,
may approach the court for ‘Restitution of Conjugal
Rights’ and the court on being satisfied on the truth of the
statement in such petition may grant decree for
‘Restitution of Conjugal Rights’.



-> In case, husband or wife lives separately, then they can
avail Conjugal Rights.

-> In case, if there was any valid reason to live separately,
then they cannot avail Conjugal Rights

Case Laws:

1. T. Sareetha v. Venkata Subbaiah

▪ Matrimonial remedies

▪ Restitution of conjugal rights – Section 9

▪ Constitutionality of Section 9

▪ Remedies available

▪ Subsistance

 ▪
Withdrawal from the society

▪
Validity of agreement of separation

▪
Reasonable excuse

▪
Defence available to restitution petition

▪
Can a husband compel his wife to resign her job
and stay with him?

▪ Petition for restitution

Void and Voidable Marriages

Void Marriages

Section 11. Void marriages :- Any marriage solemnized

after the commencement of this Act shall be null and void
and may, on a petition presented by either party thereto,
against the other party be so declared by a decree of
nullity if it contravenes any one of the conditions specified
in clauses (i), (iv) and (v), Section 5.”



A marriage is void in three circumstances:

– at the time of marriage, a party is having living spouse

– two persons come under prohibited degrees of
relationship

– two persons com under sapinda relationships

▪ Constitutionality of Section 11 of the Act

▪ Applicability of Section 11 of the Act

▪ Delay

▪ Death of a spouse

 ▪ Bigamous marriage

▪ Injunction

▪ Third Person

▪ Effects of void marriage

▪ Legitimacy of children

▪ Position of Women

Voidable Marriages

▪ Grounds for the remedy

▪ Impotency

▪ Unsoundness of Mind

▪ Consent obtained by force or fraud

▪ Pregnancy of the bride

▪ Petition for annulment

▪ Decree for annulment

▪ Distinction between void and voidable marriages

▪ Legitimacy of children of void and voidable marriages

Judicial Separation – Section 10 of the

Hindu Marriage Act, 1955
A petition can be filed on any of the grounds specified in
sub-section (1) and (2) of Section 13.

Judicial or legal separation means living apart by the

parties to the marriage. If a decree for judicial separation
is passed by a competent Court, it is no longer obligatory
for either party to cohabit with the other. Such a decree
does not sever or dissolve the marriage. Yet it is equally
true that certain mutual rights and obligations arising from
the marriage are suspended when such a decree is
passed.

In Hiranand S Managaonkar v. Sunanda, the Supreme

Court has observed that a decree of judicial separation
does not dissolve the bond of marriage but rather
provides an opportunity to the spouses for reconciliation
and readjustment.

Grounds

▪ Adultery: Extra-marital voluntary sexual intercourse.

In order to establish extra-marital, one has to depend
on ancillary facts which may be:- circumstantial
evidence, birth of a child to the wife when there is no
evidence of contact with her, contracting of a
venereal disease, admission on the part of the
respondent, discovery of letters which might contain
such contents which suggest sexual relationship
between the two

▪ Cruelty: There is mental as well as physical cruelty.

To establish legal cruelty, it is not necessary that
physical violence should be used. Continuous ill-
treatment, cessation of marital intercourse, verbal
 abuse and insult, refusal to speak, ill-treatment of
children, refusal to have children, etc

▪ Desertion: Desertion is the act of forsaking or

abandoning or the act of quitting without leave with
an intention not to return. Desertion has been defined
in the Indian Divorce Act as “implying an
abandonment against the wish of the person
changing it”.  In the case Shanti Devi v. Govind
Singh, it has been observed that for constituting
‘desertion’ two essential conditions must be fulfilled
namely (i) the factum of separation; and (ii) the
intention to bring cohabitation permanently to an end

▪ Conversion: Ceasing to be a Hindu by conversion on

the part of the either party to the marriage, forms a
ground for a decree of judicial separation.

▪ Unsoundness of Mind: The petitioner has to

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

▪ Leprosy: If either of the party has been suffering from

venereal disease in communicable form, then the
other party can present a petition for decree of
judicial separation. The leprosy which is maligned or
venomous can be termed as virulent. Lepromatous
leprosy is virulent and incurable.

 ▪ Venereal Disease: It requires to establish for judicial

separation that the respondent has been suffering
from venereal disease in a communicable form.

▪ Renunciation of the world: The renunciation implies

a religious order which operates as a civil death and,
therefore, the other party has been given right to
obtain a decree of judicial separation or divorce.

▪ Presumption of death: That the other party has not

been heard of as alive for a period of seven years or
more by those persons who would naturally have
heard of him, had that party been alive.

Additional Grounds

▪ Bigamy: Marrying again during lifetime of husband or

wife: Whoever, having a husband or wife living,
marries in any case in which such marriage is void by
reason of its taking place during the life of such
husband or wife, shall be punished with
imprisonment and fine.

▪ Rape or sodomy or bestiality: The husband has,

since the solemnization of the marriage, been guilty
of rape or sodomy or bestiality.

▪ In maintenance case:  Either in a suit under Section

18 of the Hindu Adoption and Maintenance Act,
1956, or in a proceeding under Section 125 of the
Code of Criminal Procedure, 1973, a decree or order
has been passed against the husband awarding
 maintenance to wife and that since the passing of
such decree or order cohabitation between the
parties had not been resumed for one year or
upwards.

▪ In child marriage case: That, her marriage was

solemnized before she attained the age of 15 years,
and she has repudiated the marriage after attaining
that age but before attaining the age of 18 years.

POWER OF COURT TO RESCIND THE DECREE

OF JUDICIAL SEPARATION
Section 10(2) of the Act empowers the Court to rescind
the decree of the judicial separation if it considers it just
and reasonable to do so.

1. the decree has been obtained by showing reasonable

excuse for his or her absence

2. the parties cohabited with each other after the decree

was passed or they have resumed living together

3. the opposite party has condoned the offence

EFFECTS OF JUDICIAL SEPARATION

1. permits the parties to live separately

2. does not dissolve the marriage

3. husband and wife continue to have the same status

4. not be obligatory for them to cohabit with each other

5. does not prevent the parties from resuming

cohabitation and living together as husband and wife

Divorce – Section 13 of the

Hindu Marriage Act, 1955
Divorce in Ancient Hindu Law
Under Hindu Custom, Marriage is considered as sacred
and they have this relation by the blessings of the God.
They believed the concept of “marriages are made in
heaven”. Hindus considered the separation of couple as a
sin and hence the question of living separately did not
arise in olden days. Once married, the tie lasts till the end
of life.

Divorce means putting an end to the marriage by

dissolution of marital relations. The parties can no longer
be husband and wife. Divorce was unknown to the old
textual Hindu law of marriage. Manu declared that a wife
cannot be separated from her husband either by sale or
by abandonment because marital tie could not be severed
under any circumstances whatsoever. Manu did not
approve of the dissolution of marriage in any condition.

Dissolution of Marriage
▪ Grounds available for both
▪ Adultery:

▪ Cruelty:

 ▪ Desertion:

▪ Conversion:

▪ Unsoundness of mind:

▪ Venereal disease:

▪ Renunciation of the world:

▪ Presumption of death:

▪ Non-resumption of cohabitation after the decree

of judicial separation:

▪ Non-compliance with the decree of restitution of

conjugal rights:

▪ Grounds available for wife

▪ Bigamy:

▪ Rape, Sodomy and bestiality:

▪ Maintenance decreed to Wife:

▪ Repudiation of Marriage by Wife:

Alternate Relief
Section 13A of the Hindu Marriage Act, 1955 states “In
any proceeding under this Act, on a petition for
dissolution of marriage by a decree of divorce, except in
so far as the petition is founded on the grounds
mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of
Section 13, the court may, if considers it just to do having
regard to the circumstances of the case, pass instead a
decree for judicial separation”.

Divorce by mutual consent

Since Divorce is the last remedy available to put an end to
the marital tie, the parties can decide to separate
amicably, divorce petition may be submitted by any one
of the spouses to the District Court on any one of the
grounds given in Section 13 of the Act to take divorce on
mutual consent. Divorce by mutual consent was not
incorporated in the original Act of 1955. It has been
inserted in the Section 13-B by the Hindu Marriage
(Amendment) Act, 1976.

▪ parties living separately for a period of one year or

more

▪ not able to live together

▪ mutual agreement in dissolving the marriage

▪ consent of the parties has been obtained

Distinction between judicial separation

and divorce
▪ The relationship of husband and wife stands
suppressed, while in Divorce the relationship of
husband and wife ceases to exist

▪ Temporarily suspends the marital rights and duties of

parties to marriage for some time by Court, while
Divorce puts an end to the marital relationship
between the parties

▪ The object is the hope of adjustment, reconciliation

and reunion of the spouses, while in Divorce, the
object is to give the last resort

 ▪ The parties to the marriage cannot remarry, while in

Divorce, the parties are entitled to get another
marriage of his/her choice

▪ Original marital relationship can be restored, while in

Divorce, the original marital status cannot be restored

▪ After obtaining the judicial separation, the wife can

file and succeed for the maintenance, while in
Divorce, the divorced woman cannot file for the
maintenance under Hindu Adoption and Maintenance
Act

▪ It is a lesser remedy than divorce, but in Divorce, it is

stronger, drastic and last remedy than judicial
separation

Presentment of petition for divorce

Under Section 14 of the Hindu Marriage Act, 1955, no
Court shall entertain a petition for divorce before
expiration of a period of one year from the date of
marriage, however this section also provides that the
Court may entertain petition for divorce before one year
on the ground of exceptional hardship to the petitioner or
exceptional depravity of the respondent.

In the case of Meghanatha Nayyar v. Smt. Susheela, the

Madras High Court had observed that “Section 14
provides restrictions presumably designed to prevent
party from taking recourse to legal proceedings before the
parties have made real effort to save their marriage from
disaster. It is founded on public policy because marriage
is the foundation of civil society and no part of the laws
and constitution of a country can be of more vital
importance to the subject than those which regulated the
manner and conditions of forming and if necessary, of
dissolving marriage contract.”

Divorced persons when may marry again

Section 15 of the Hindu Marriage Act, 1955 provides:
“When a marriage has been dissolved by a decree of
divorce and either there is no right of appeal against the
decree or, if there is such a right of appeal, the time for
appealing has expired without an appeal have been
presented, or an appeal has been presented but has been
dismissed, it shall be lawful for either party to the
marriage to marry again.”

Punishment of Bigamy and other

matrimonial offences

Section 17 of the Hindu Marriage Act, 1955 states: “Any

marriage between two Hindus solemnized after the
commencement of this Act is void if on the date of such
marriage either party had a husband or wife living; and the
provisions of Sections 494 and 495 of the Indian Penal
Code, 18600, shall apply accordingly.”

In Gopal Lal V. State of Rajasthan, it has been observed

that where a spouse contracts a second marriage while
the first marriage is still subsisting, the spouse would be
of guilty of bigamy under Section 17 of the Act and also
under Section 494 IPC if it is proved that the second
marriage was a valid one in the sense that the necessary
ceremonies required by law or by custom have been
actually performed.

Maintenance and Alimony

Section 24 – Maintenance Pendente Lite
Difference between Section 24 of Hindu Marriage Act,
1955 and Section 18 of Hindu Adoptions and
Maintenance Act, 1956

Section 25 – Permanent Alimony and

Maintenance
Difference between Maintenance pendente lite under
Section 24 and the permanent alimony under Section 25