FAMILY LAW-I

MARRIAGE
 Evolution of Institution of marriage
The men and women of ancient times lived in a nomadic lifestyle. They didn’t spend their lives
looking to find marriage or companionship. However, the society became an agricultural
oriented one with time, following that shift in culture and way of life.

The sense of true self and ownership eventually became crucial to humanity. Sexual activity and
having a progeny had nothing to do with parentage, as it was hard to ascertain the child’s
paternity due to lack of legislation. But the need for boundary arose, with changing times.
Ownership and possession became significant because it gave a sense of security.
After that, there was a need to ascertain the paternity which would require an exclusive relationship
between the man and woman. The men ‘s goal in society became to track down their seeds of life
and, consequently, created the need for marriage institutions.
Men and women then started living together, procreating and having their bloodline and instilling,
among many other values, not only ancestry but also a sense of responsibility and unity. Marriage
now plays an extremely vital part of the life of a person. The concept itself has become more
individualistic in modern times, but it upholds a sense of stability and companionship in life since its
inception.
It also instills the feeling of being. This marriage institution limits itself not only as an agreement
and contract between man and woman but also as a social institution for the couple to live in a
society with specific values and behaviour.

Definition of Marriage
Several scholars have defined marriage in their several distinct ways. These are the perspective
of some of these:

According to a sociologist named H.T Mazumdar “marriage is a socially sanctioned union for a
male and female to establish (a) household (b) sexual relations (c) procreation and (d) care of
offspring.”
George Andrew Lunderberg said it was to ensure that each party, the man and the woman,
should know their right and also their marriage duties and responsibilities. He treated the
marriage institution more like a means or method of providing man and wife with rules and
regulations.
In Shobha Rani v. Madhukar Reddi the Indian courts have defined marriage in which the need
for such an institution was more crucial as marriage also has its legal implications. It helps to
ascertain different aspects of conflicts and protect a child’s rights. Besides, a union also illustrates
cultural values and ideologies and also helps to safeguard it.
There is one commonality, according to various other scholars, where it is observed that
marriage failure and instability in the union could be causing financial stress. It could also be
called one of the major contributors to poverty, a hunger which ultimately leads to robbery.
 Marriage under Hindu Law
Hindu contains a very diverse range of people in it. It’s like a bigger umbrella with a wide range. It
is followed by millions of people but has no unique faith or deity. It encompasses a diversity of
followers. It is an Indian Personal Law. Where personal life matters and shortcomings can be
resolved through them. Hindu law in India includes wedlock, guardianship, divorce, maintenance,
and much more.

Hinduism isn’t like Islam or Christianity. It’s more of a way that one leads one ‘s life. Hinduism is
like cultural identity and not religion.
Despite technically being non-Hindus, all Sikhs, Jains and Buddhists are included under the
definition of Hindu under the 1955 Hindu Marriage Act. Section 1 of the Act signifies that all
Hindus in the Indian union, including Jammu and Kashmir, are subject to the application of this
Act. That will include those Hindus who not residing in India as well.
In India, the marriage concept explores a much fuller insight. It doesn’t just involve the idea of
marriage. But that is seen as a sacrosanct entity. It is an integral part of Hindu cultures and
traditions. It is a part of the Indian ‘Sanskaar.’ A matter of two families and individuals being
united in holy union.
Indus Civilization
The marriages between man and wife were matrilocal during the civilisation of the
Indus Valley. Meaning it was a matriarchal society where, after getting married, the
man would live next to the house of the women’s parents. Their off-springs would live
there, too. A whole clan of female descendants would thus be living together.
Cross-Culture
In the year 2011, there was a discovery where it was observed that there have been
people who also had marital relations during the Harappa Civilization. The people of
Harappa provided the Chalcolithic people with finished goods which is another
modern civilization. Marriages existed between two civilizations.
Polygamy and Polyandry
There is enough evidence to reflect that plural marriage or polygamy (how we know it
in common parlance), and polyandry relationships existed in those eras. A reflection of
that can be seen in the religious texts such as the Mahabharat where five Pandavas
were married to ‘Draupadi. The principle was based on the idea that if the woman of
the family or wife were unable or unable to perform the religious rites and
ceremonies, then the husband or man was entitled to re-marry another woman.
However, with the passage time, this was also replaced. Polygamy and Polyandry
practices lost their significance and Monogamy came into force. Monogamy was given
preference later since the union of two people was now considered holy and spiritual
in mature. Hence it became high in virtue.
Roots of Patriarchal norms
This patriarchy found its roots from the Vedic period. Women were considered
property during this time and became men ‘s responsibility. Women have begun to
lose their independence and their rights as an independent individual have now been
placed upon the shoulder of patriarchy. Moreover, the men know where those who
were thought capable of assuming responsibility were.
Women were now either their father’s responsibility until marriage, and after
marriage, they became their husband’s responsibility.
Marriage Rituals
The rituals of the marriage were to be conducted and blessed by a Vedic priest. This
holy sacrament then wove the man and the woman in holy matrimony. After this, the
family life of the women and men would begin. Following which they have offspring
for their for their family. Thus, this is how society evolved from ancient times to the
present scenario. It shifted from an unregulated society to a modern society where
monogamous marriages have prevalence.

The ceremony of the marriage itself is quite a long and tedious process. It includes
several cultures and traditions which are performed by both the families i.e., the
grooms and the bride’s family. This is a celebration in Hindu culture, which is shared
with family , friends and neighbours.
Core principles of Hindu’s life
1. A man who has renounced the world for taking up renunciation. This man should
get married and lead a family life. It is the Dharm meaning it is his responsibility to get
married and live that life.
2. The man’s life has been divided into four stages. i.e. Bramhacharya, Grishasta,
Vanaspratha, Sannyasa. Out of all the stages, the Grishasta which means home and
family includes the stage where a man is expected to get married and live a family life.
He is also supposed to do it as a matter of dharma. The concept of marriage was first
discovered in Smritis and Vedas.
3. If one is married under the Hindu tradition it is expected of the man and woman to
lead their entire life together and to be only devoted to each other. This also reflects
the value that the marriage is not just a contract but a sacred and holy union of two
souls.
 4. Furthermore, it is also believed that marriage is supposed to last even afterlife and
for the next seven births of the couple. The concept of divorce is a modern tradition
included in the Hindu Marriage Act.

5. According to the Act, marriage can take place between two adults and the man
should be the age of 21 years old and the woman can be 18 years or above. The
concept of child marriages has prohibited and so is the concept of polygamy.

6. In Hindus, the woman is considered a holy and sacred whose role in the marriage is
to take up household chores and live a simple and decent life. Furthermore, she is
expected to live her life with her husband and his parents. And to enjoy the care and
protection of her husband.
Caste System
The Hindu’s have been divided into many castes. Law of Manu includes for major categories:
1. Brahmins
2. Ksthariyas
3. Vaishayas
4. Shudras
Marriage is allowed within one’s caste and marriage in the caste system is usually not
accepted. According to Manu, to produce legitimate offsprings, a man should marry within
the next lower caste itself. This caste system has been prevailing since time immemorial and
is still pretty relevant and adhered to by the Hindus in Modern India also.
Conclusion
With the passage of time and the changing society, the laws and rules within the
Hindu culture have witnessed several changes and evolution. From being nomadic to
living a family life after the union of two souls of marriage. The Hindu Marriage Act
1955 also includes provisions related to divorce. Hence, the concept of non-
dissolution does not hold any prevalence in current times.

The marriage amongst the Hindu community is governed by two laws in India namely;
Hindu Marriage Act and Special Marriage Act under a circumstance where a Hindu
marries a Non-Hindu. These laws protect the interest and rights of the person and
help them live a peaceful, happy life.
 Concept of Marriage under Hindu Law
Introduction
Hindu marriage harmonizes two individuals for ultimate eternity so that they can
pursue dharma, arth, and karma. It is a union of two individuals as spouses and is
recognized by livable continuity. In Hinduism, marriage is followed by traditional
rituals for consummation.

As a part of the Hindu code bill, the Hindu Marriage Act was enacted by parliament in
1955 to amend and to codify marriage law between Hindus and Became on 18th May
1955. It gives meaning to marriage, cohabiting rights for both the bride and groom,
and satisfy for their family and children so that they do not suffer from their parental
issues.
Hindu marriage refers to ‘kanyadan’, which means gifting a girl to the boy by the
father with all the tradition and rites or custom. Hindu marriage is an ancient tradition
which is prevailing form the Vedic period to the modern world with a different
modification that has occurred until now. There are 16 sacraments in the Shastra
humanism in which marriage is one of the important rituals of Hinduism.
It is not only considered as sacred, but it is also a holy union. The main objective of
marriage is to enable a woman and a man to perform their religious duties. Along with
this, they also have to beget progeny. Based on ancient writings, a woman is
considered half of her husband and thus completes him. At the same time, a man is
also regarded as incomplete without a woman.
For a long period, Hindu marriage rites have been changed accordingly due to the needs and
convenience of the people from time to time. It is the relationship between husband and
wife. According to Hinduism, this sacrament is one of the most important sacraments out of
16 sacraments in Hinduism. It is a sacred tie that can’t be broken. It is a relationship from
birth to birth, it is a bond which continues after rebirth and death. According to Veda, a man
is incomplete until he gets married and meets with his partner.
A. Who is a Hindu?
1. Hindu by Religion
The Medieval period of Hinduism lasted from 500 to 1500 AD. Hinduism is the oldest religion
which contains a wide range of tradition and culture which are followed by all the Hindus
across the globe. Any person who is a Hindu by religion or born in Hindu family with Hindu
father or mother in any of
its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Semaj
or any person who is a Buddhist, Jain, or Sikh is also a Hindu by religion. Thus, any person
except a follower of Muslim, Christen, Parsi, or Jew religion is a Hindu.
2. Hindu by Birth
Any person born in a Hindu family or has a Hindu father or mother such a person is
considered as a Hindu by birth. Any person born in any community apart from Muslim,
Christian, and Jews is also a Hindu. Any child, legitimate or illegitimate if either of his parents
is Hindu if he is brought up by the parent who is Hindu shall be considered as Hindu by birth.
Mahatma Gandhi believed that the word “Hindus” didn’t originate from Vedas but when the
Greeks invaded India and started using the same for the country and people living beyond
the Indus River. This belief is well established by many historians and is widely accepted
among the academicians.
B. Marriage as Sacrament
Marriage is one of the most important of all Samskaras under the Girah Sutras.
Among the Hindu, the marriage was considered as a sacrament. In Hinduism, the
ultimate goal of human life is to attain Moksha. Marriage was meant for doing a good
deed and for the attainment of Moksha. It was obligatory for every Hindu through
which his well-conducted life progresses to its appointed end.

In ancient times, there was no need for the girls’ consent. Fathers have to decide the
boy without asking for her advice or consent. It is the sole duty of the father to find a
suitable boy.
Therefore, Religious sacrament in which a man and a woman are bound in a
permanent relationship for the physical, social, and spiritual purposes of dharma,
procreation, and sexual pleasure.” The Vedas hold marriage to be one of the
important sacraments sanctifying the body. That is why marriage is given great
importance by the Hindus. It is said, a man who does not win a wife is really half, and
he is not the full man as long as he does not beget an offspring.

The Hindu Marriage Act a marriage of a minor or unsound person is voidable and not
void. So, although consent is necessary for the absence of consent, marriage becomes
merely voidable and party to the marriage can treat their marriage as a valid marriage.
Hindu marriage is not purely a contract.
Moreover, in the case of Tikait v. Basant, the court held that marriage under Hindu
law was a sacrament, an indissoluble union of flesh, bone which is to be continued
even in the next world.

In the case of Shivonandh v. Bhagwanthumma, the court observed that the

sacraments marriage among Hindus has three main characteristics:
1. It is a permanent union.
2. It is an eternal union.
3. It is a holy or sacrosanct union.
C. Marriage as a Contract
A Hindu marriage cannot take place without the performance of sacred rites. But after
the enactment of the Hindu Marriage Act, 1955 Hindu marriage is no longer a
sacrament but it is a contract.

The nature of modern marriage is contractual. Thus, it accepts the idea of equality and
liberty. It has been adopted due to western Ideas. There must be an agreement of
voluntarily entering into it by both parties. Thus, the Hindu marriage is not a contract
and neither is it a sacrament. But it can be said it is a semblance of both.
The first fundamental of sacrament marriage has been affected by section 13 of
the Hindu Marriage Act, 1955 for Hindu marriage can be dissolved on certain
specified grounds. And the Widow Remarriage Act, 1856 also affected the
sacramental marriage.

Section 5 and 12 of the Hindu Marriage Act, are the pertinent provisions to determine
whether Hindu marriage is sacrament or contract. Clause 2 of section 5 of the Hindu
Marriage Act deals with the mental capacity of the parties. It says that neither party to
the marriage must be incapable of giving a valid consent in consequence of
unsoundness of mind. Further clause 3 of section 5 enumerates that the bridegroom
has completed the age of twenty-one years and the bride, the age of eighteen years
at the time of the marriage.
Moreover, in the case of Bhagwati Seran Singh v. Parmeshwari Nandar Singh, the
court held that Hindu marriage is not only a sacrament but also a contract.
In the case of Anjona Dasi v. Ghose, Court observed that the marriage, whatever else
it is, sacrament and institution, is undoubtedly a contract entered into for
consideration with correlative rights and duties.

In most of the Hindu marriage, a religious ceremony is still the sine qua non. Viewed
from side one may conclude that Hindu marriage has not remained purely a sacrament
and at the same time, it has become complete a contract.
Conclusion
The concept of Hindu marriage is all about marriage as sacrament or contract. So, it
can be concluded that though Hindu marriage has some of the elements of a contract
but it is not purely a contract. It is more of a sacrament as Hindu marriage is a holy and
eternal union of two bodies.
According to Manu, husband and wife are united to each other not merely in this life
but even after death, in the other world. The rule is that “once is a maiden given in
marriage, a true wife must preserve her chastity as much after as before her
husband’s death”.
 Divorce and Theories of Divorce
Introduction
Prior to the Hindu Marriage Act, 1955 marriage was regarded as indissoluble union of
husband and wife. Manu has declared that a wife cannot be released from her
husband either by sale or by abandonment, implying that the marital tie cannot be
severed in any way. Therefore, the ancient Hindu Law does not recognise divorce.

The present Act i.e., has introduced vital and dynamic changes in the Hindu Law of
Marriage and divorce. It has laid down clear provisions regarding Divorce under certain
circumstances.  Divorce is laid down under sections 13, 13-B, 14 and 15 of the Act.
Section 13 deals with the circumstances in which the right to divorce accrues. Section
14 limits the right to obtain a divorce by laying down that divorce petition may not be
made within one year of the date of marriage except when the case is of exceptional
hardship to the petitioner or of
exceptional depravity on the part of the respondent. Section 15 lays down the
limitations on the right of divorced persons to marry again.
Theories of Divorce
1. Divorce at Will Theory.
2. Frustration of Marriage Theory.
3. Offence or Guilt or Fault Theory.
4. Mutual Consent Theory.
5. Irretrievable Breakdown Theory.
1. Divorce at Will Theory
This theory is not recognized under the Hindu Law. According to this theory one can
divorce one’s spouse anytime when that person wants to do so. This is a very well-
known theory in Muslim Law
2. Frustration of Marriage Theory.
If the marriage is being frustrated without there being any marital offence where one
of the spouses is suffering from any physical ailment or mental unsoundness of mind,
or changed his religion or has renounced the world or has disappeared for a very long
period. In such a case the other spouse should be free to put an end to the marriage
by getting divorce. The grounds mentioned in this theory has been supported by the
HINDU MARREAGE ACT, 1955 as the valid grounds of seeking divorce.
3. Offence or Guilt or Fault Theory
According to this theory, the spouse can seek the divorce from the other spouse if he
or she is found in fault of committing a matrimonial offence. The expression
matrimonial offence, includes (1) adultery (2) desertion (3) cruelty (4) Rape (5) sodomy
(6) Bestiality (7) Refusal to obey court’s order to pay maintenance to the wife (8)
Marrying an underage person. This implies that there should be personal injury to the
marital relations of the spouses. This theory implies that one party is guilty and the
other is innocent. But if the aggrieved party condones the act of the guilty party, no
divorce can be granted.
According to the English Law of Doctrine of Recrimination, if both the parties
independent of one another have committed matrimonial offence the marriage
should not be dissolved. The guilt theory is criticized on the basis that it recognizes
divorce only on certain (above mentioned) grounds. Some more grounds are
recognized which led to the renaming of guilt theory as fault theory. The grounds like
insanity and epilepsy are added to the list. Thus, if one of the parties has some fault in
him or her, marriage could be dissolved whether that fault is his or her deliberate or
unintentional act.

Further, the Marriage Laws (Amendment) Act, 1976 has made a radical amendment
and grounds of divorce are increased and some special grounds for divorce are given
to the wife.
4. Mutual Consent Theory
Divorce by mutual consent means that the case is not like usual ones wherein one
party petitions against the other for divorce and the other party resists the same.
Here both the parties make a joint petition to the court for divorce between them.
They genuinely desire to get rid of each other and they part amicably for good. If
divorce is not given their life would be spoiled and it would result in moral
degradation. If divorce by mutual consent is given the parties will not wash their dirty
linen in public.

There are unfounded objections against this type of divorce that consent of the
unwilling party would be obtained by force, fraud or some other contrivance, and this
is a divorce by collusion. But both these arguments and doubts are unfounded. Every
Conclusion is no doubt by consent
but every consent does not mean collusion. Collusion is a secret agreement for a
fraudulent purpose, it is a secret agreement by two or more persons to obtain an
unlawful object. Collusion is different from compulsion. Compulsion occurs when one
party can dominate the will of the other.
The Hindu Marriage Act now permits divorce by mutual consent under Section 13B.
One may well say that from an unbreakable bondage under the Smritis, a Hindu
Marriage has been transferred under the Hindu Marriage Act into a consensual union
between one man and one woman. Everything static must drop and die and ideas of
marriage and divorce are no exception.
5. Irretrievable Breakdown Theory
A marriage is a union of husband and wife for the whole life, but it may happen that
their relations might be strained and they would like to live away from each other. It is
to be remembered that owing to their sexual relations, interdependence and social
censure it is difficult for them to live without each other for a long time. Therefore
there must be some stronger reason for them to live apart and get divorce. There
should be complete absence of emotional attachment between them and there must
develop intense hatred and acrimony between them, so much so, that their marriage
is only in name, a dead one or like a shell sans substance. It is now beyond the hope of
salvage. It is therefore an irretrievable breakdown of marriage.
The breakdown of marriage is defined as “such failure in the matrimonial relationship
or circumstances so adverse to that relation that no reasonable probability remains
for the spouses to live together as husband and wife.” If a marriage has broken down
beyond all possibilities of repair, then it should be brought to an end, without looking
into the causes of breakdown and without fixing any responsibility on either party.
Such marriage should be dissolved, even if one of the parties to the marriage does not
desire it. The empty shell is to be destroyed with the maximum fairness and minimum
bitterness, distress and humiliation.
In Yousuf v. Sowramina, the learned judge said, “While there is no rose which has no
thorns but if what you hold is all thorn and no rose, better throw it away. The ground
for divorce is not conjugal guilt but breakdown of marriage.” In some countries
grounds like “incompatibility of temperament”, “profound and lasting disruption”, etc.
have been added which helped in
claiming divorce under the breakdown theory. Sometimes the determination of the
question whether in fact a marriage has broken down or not is left to the courts. At
other times, the legislature lays down the criterion of breakdown of a marriage and if
that is established, the courts have no option but to dissolve the marriage.
The Law Commission of India in its Seventy first Report (Reforms of the Grounds for
Divorce) has said that it is good to give a de jure recognition to what exists de facto. It
is not a relevant consideration to for granting divorce on the ground of irretrievable
breakdown as to which the party played the villains role leading to such breakdown.
Hence, section 23 (1) (a) will not apply to such a petition.
The Jorden Diengdeh case is the first case wherein the Supreme Court made
recommendations to make irretrievable breakdown of marriage as a ground for
divorce. From this case upto Naveen Kohli case, in a number of cases such
recommendations was reiterated.
Therefore, granting of divorce under this theory totally depends upon the
circumstances and the relationship between the two spouses.