Who are Hindus?

A person can be called as a Hindu, who:

• Is a Hindu by religion in any form.
• Is a Buddhist, Jaina or Sikh by religion.
• Is born from Hindu parents.
• Is not a Muslim, Parsi, Christian or Jews and are not governed under
Hindu law

The Supreme Court of India in the landmark case of Shastri vs Muldas

expressly defined the term ‘Hindu’.
This case is related to the Swami Narayan temple in Ahmedabad. There is a
group of people called the Satsangi who were managing the temple and they
restricted non-Satsangi Harijans from entering the temple.
They argued that Satsangi is a different religion and they are not bound by
Hindu Law. The Supreme Court of India held that the Satsangi, Arya Samajis
and Radhaswami, all these belong to the Hindu religion because they
originated under Hindu philosophy.

Hindu by Religion:
If any person follows the religion by practising it or by claiming it can be called
as a Hindu.
Conversion and Reconversion to Hinduism:
Under the codified Hindu law, any person converted to Hinduism, Buddhism,
Jainism or Sikhism can be called a Hindu.
From the case of Perumal vs ponnuswami, we can say that a person can be
called a Hindu by conversion.
In this case, Perumal was the father of Poonuswami who got married to an
Indian Christian. In the future due to certain differences, they were living
separately. In the future, the mother of Poonuswami asked Perumal for the

1
share of his properties. Perumal denied and said “marriage between a Hindu
and a Christian is void”. The Supreme Court of India held that a real intention is
sufficient evidence of conversion and no formal ceremony of purification is
needed (Conversion of Hinduism). So, it is not void and Poonuswami would get
a share.
For conversion, the person should have a bonafide intention and also shouldn’t
have any reason to be converted.
Reconversion basically happens, when a person is Hindu and gets converted to
a non-Hindu religion and he will again become Hindu if he/she gets converted
into any four religions of Hindu.
If a person is born from a Hindu family, he/she is a Hindu.
When one of the parents of a child is Hindu and he/she is brought up as a
member of the Hindu family, he/she is a Hindu.
If a child is born from a Hindu mother and a Muslim father and he/she is
brought up as a Hindu then he/she can be considered as a Hindu.
We can conclude that a child’s religion is not necessarily that of a father.
The codified Hindu Law lays down that a person who is not a Muslim, Parsi,
Christian or Jews is governed by Hindu Law is a Hindu.

What are Sources of Hindu law?

There is the two-fold classification of the sources of the Hindu law

• Ancient sources
• Modern sources
• Ancient source

2
Ancient sources are the source that developed the concept of Hindu law in
ancient times.
It is further classified into four categories.

• Shruti
• Smriti
• Customs
• Digest and commentaries

Shruti
The term Shruti means what has been heard.
It contains the sacred words of the god. This source is considered to be the
most important and essential source of all.
Shruti’s are the sacred pure utterance that has been enshrined in the Vedas
and the Upanishads.
They have religious nexus with a person and help him in a way to attain the
knowledge of salvation and incarnation.
It is considered to be the primitive source containing the knowledge of the
law.
Smritis
Smritis are considered as text which has been remembered and then
interpreted by the rishis throughout the generation.
There is a further classification of the term Smritis which are as follows
• Dharma Sutra (Prose)
• Dharma shastras (Poetry)
• Commentaries and digest
The third ancient source of Hindu law is commentaries and digestives.
Commentaries and digestives have expanded the scope of Hindu law.
It played a very major role in developing the very concept of Hindu law. It
helped in the interpretation of the smritis. Single interpretation of the smritis

3
is called as a commentary while different interpretations of the smritis are
known as digestive.
Dayabhaga and Mitakshara are considered to be the two most important
commentaries.

Customs
Customs is the tradition that has been practiced in society since ancient times.
It is the type of practice that is under the continuous observation of the people
and has been followed by the people.
Further, the customs have been classified into two categories-
• Legal customs
• Conventional customs
Legal customs
Legal custom is those customs which are enforceable or sanctioned by law. It
can’t be deemed invalid until the law itself declares it invalid.
There are two types of legal customs.
Local customs: Local customs are the customs that are practiced in a local
area. This type of custom is not highly recognized.
General customs: General customs are the customs or traditions which are
practiced in a large area. This type of custom is highly recognized by people.
Hindu law is not Lex-fori. (local or limited only upto state )
Conventional customs
Conventional customs are customs that are related to the incorporation of an
agreement and it is conditional.

What are the essentials of a custom?

Following are the essential points which constitute a custom-
• A custom must be continuous in practice
• A custom should not be vague or ambiguous

4
 • A custom must have time antiquity
• There must be a complete observation of the custom
• It should be certain and clear
• A custom must not oppose the public policy which will affect the interest
of the general public.

Deivanai Achi v. chidambaram

In this case it was held that in order to become legally sanctioned by law and
binding on the people a custom must be continuous in practice, it should not
be vague and ambiguous and should not oppose the well-established public
policy. A customary rule must be in the complete observation of society.
Laxmi v. bhagwantbuva AIR 2013 SC 1204
In this case, the supreme court stated that a custom becomes legally
enforceable when the majority of people make the continuous use of such
practice.

Onus
Generally, when a custom attains judicial recognition no further proof is
required, however in certain cases where the customary practices do not
attain the judicial recognition, the burden of proving lies on the person who
alleges its existence.
Munna lal v. Raj Kumar AIR 1972 SC 1493
In the instant case the supreme court stated that a custom brought before a
court several times, the court might hold that such custom has been enforced
by the law with the necessity of its proof.

Modern sources
Judicial Decisions
Judicial decisions are considered to be the most important ingredient of
modern sources. Judicial decision is considered to be authoritative and

5
binding. The doctrine of precedent was established and it was applied in the
cases resembling the same facts and circumstances of a case already decided.
The legislation is considered to be the codification of customs which plays an
essential role in expanding the concept of Hindu law. Legislations are enacted
by the parliament.

Justice equity and good conscience

Justice equity and good conscience is the basic rule of law. This rule of law
applies when an existing law doesn’t apply in a case before the court decides
the particular matter by applying its rationality and the concept of justice
equity and good conscience.
This rule is considered to be the fairest and reasonable option available to a
person.
In Gurunath v Kamlabai the supreme court held that in the absence of any
existing law the rule of justice equity and good conscience was applied.

Is it true to Say that Hindu Law is not Lex Loci but a Law of Status?

In fact, it is true to say that Hindu Law is not Lex Loci but a law of
status.

The meaning of this statement is that Hindu Law is not the law of a particular
locality but is a personal law and when a Hindu migrates from one place to
another, he carries his Personal law with him.

It is the law of his place of domicile which would follow him to his place of
migration.

Thus, where a person belonging to Lucknow shifts to Calcutta and is settled

permanently there, he would be governed by Mitakshara law particularly its
Banaras School rather than by dayabhaga law which is the law governing
the Hindus of West Bengal.

But where nothing is known about the place of permanent residence of a

Hindu it would be deemed that he would be governed by the law of the of his
residence.

The Privy Council observed, “if nothing is known about a person except
that he lived in a certain place, it will be assumed that personal law
is the law which prevails in that place.

6
In that sense only: -domicile idle is of importance”

In Regards to PCS-J syllabus we have to cover following four Acts .

Hindu Marriage Act ,1955

Hindu Maintenance & Adoption Act ,1956

Hindu Succession Act, 1956

Hindu Minority and Gurdianship Act , 1956

Hindu Marriage Act,1955

Conditions of a valid Marriage

Marriage is considered as a sacrament in Hindus. It is the last of the 10

sacraments in the Hindu religion for regeneration of men and obligatory for
every Hindu who does not desire to adopt the life of a sanyasi.
The first and foremost condition for a Hindu Marriage is that the both parties
should be Hindus.
This was held in Gullipilli Sowria Raj vs Bandaru Pavani.
Hindu Marriage Act, 1955 has laid down few necessary conditions for a valid
Hindu Marriage. This is given under section 5 of the Act.
In Lila Gupta vs Laxmi Narain & Ors , the apex court held that all conditions
under section 5 of the Act are not mandatory.

The following are the necessary conditions for a valid Hindu Marriage:

1. Monogamy: Section 5(I) of the Act prohibits polygamy and polyandry.

It says that neither party should have a living spouse at the time of the
marriage. Failure of this condition would make the marriage null and void
under section 11 of the Act.

7
 Apart from this, the party would be liable for bigamy under sections 494
and 495 of the Indian Penal Code, 1860 and section 17 of the Hindu
Marriage Act, 1955.
Schedule Tribes are exempted from this but they must have an early and
lasting custom for this.
In cases like Bhogadi Kannababu & Ors vs Vuggina Pydamma & Ors [AIR
2006 SC149] and Yamunabai Anantrao Adhav A vs Ranantrao Shivram
Adhav & Anr [AIR 1988 SC 644], the apex court held that during the
subsistence of first marriage, the second marriage would be null and void.
Offence of Bigamy would be constituted only when the first marriage is
solemnized according to proper ceremonies and rituals.
This was held by court in cases like Dr. A.N. Mukerji vs State [AIR 1969 All
489] and Santi Deb Berma vs Smt. Kanchan Prava Devi [AIR 1991 SC 816].

2. Mental Capacity: This clause was inserted in the Act through The
Marriage Laws (Amendment) Act, 1976.
As per the clause, three conditions must be fulfilled as per section 5(ii)
of the Act for a valid Hindu Marriage.
The conditions are:
neither party, at the time of marriage
a) is incapable of giving a valid consent due to his/her unsound mind
b) 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
c) has been subjected to recurrent attacks of insanity or Epilepsy. ( The
clause of epilepsy was removed through The Marriage Laws
(Amendment) Act, 2001)
If any of these conditions are not fulfilled then marriage is voidable under
section 12(1)(b) of the Act.
Before the enactment of the Amendment in 2001, In the case of Anima Roy vs
Prabodh Mohan Roy, the Calcutta High Court held 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

8
person suffering from mental derangement of any kind may be regarded as
idiot or insane.

Age to the parties:

At the time of enactment of the Act, the legal age for the marriage of boy and
girl was 18 years and 15 years respectively. However, later on, The Marriage
Laws (Amendment) Act, 1976, changed the minimum age to 21 years and 18
years respectively.
According to the ruling in Pinninti Venkataramana and Anr vs State, breaching
of the condition didn’t amount to nullity of the marriage but it is an offence
under section 18(a) of the Act i.e., simple imprisonment up to 15 days or a
fine of Rs. 1000/- or both.
According to section 10 of The Prohibition of Child Marriage Act, 2006, any
person performing, conducting, directing or abetting a child marriage shall be
punished with rigorous imprisonment up to 2 years and fine of one lakh
rupees.

Prohibited Degrees of Relationship:

Section 5(iv) of the Act prohibits solemnization of marriage of persons

falling within prohibited degree of relationship.

If any marriage is solemnized under this then the marriage would be

void under section 11 of the act.

Apart from this, violation of this clause would amount to simple

imprisonment up to 1 month or a fine of Rs. 1000/- or both under section
18(b) of the act.

Section 3(g) defined persons falling within prohibited degree of relationship.

They are:
(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 father’s or mother’s brother or
of the grandfather’s or grandmother’s brother of the other,

(d) If the two are brother and sister, uncle and niece, aunt and nephew, or
children of brother and sister or of two brothers or of two sisters.

9
It also includes

• Relationship by half or uterine blood as well as by full blood;

• Illegitimate blood relationship as well as legitimate;
• Relationship by adoption as well as by blood.

In simple words we can say that a man cannot marry either of the following
persons:

✓ His lineal ascendant

✓ Wife of his lineal ascendant
✓ Wife of his lineal descendant
✓ Brother’s wife
✓ Wife of his father’s brother
✓ Wife of his mother’s brother
✓ Wife of his grandfather’s brother
✓ Wife of his grandmother’s brother
✓ Sister
✓ Sister’s daughter
✓ Father’s sister
✓ Mother’s sister
✓ Father’s sister’s daughter
✓ Father’s brother’s daughter and
✓ Mother’s brother’s daughter.

Similarly, a woman cannot marry either of the following persons:

✓ Her lineal ascendant
✓ Husband of her lineal ascendant
✓ Husband of her lineal descendant
✓ Brother
✓ Father’s brother
✓ Mother’s brother
✓ Nephew
✓ Sister’s son
✓ Uncle’s son
✓ Father’s sister’s son

10
 ✓ Mother’s sister’s son and
✓ Mother’s brother’s son.

In Shakuntala Devi vs Amar Nath [AIR 1982 P H 221],

Punjab and Haryana High Court held that two persons can marry within the
prohibited relationship but there should be a proof of established custom i.e.,
very old and beyond human memory.

Prohibition of Sapinda Relationship:

Section 5(v) of the Act, marriage between the persons having sapinda
relationship is prohibited unless there is a custom which allows them to do so.
Any marriage solemnized under this would be void under section 11 of the Act
and violation of this clause would amount to simple imprisonment up to 1
month or a fine of Rs. 1000/- or both under section 18(b) of the act.
Section 3(f)(ii) of the Act says that Two persons are said to be “sapindas” of
each other if one is a linear ascendant (i.e., is a blood relative in the direct line
of descent – the children, grandchildren, great-grandchildren, etc. of a person)
of the other within the limits of “sapinda” relationship, or if they have a
common lineal ascendant who is within the limits of “sapinda” relationship
with reference to each of them.
According to section 3(f)(i) sapinda relationship extends as far as the third
generation (inclusive) in the line of ascent through the mother, and the fifth
generation (inclusive) in the line of ascent through the father, the line being
traced upwards in each case from the person concerned, who is to be counted
as the first generation.
If there is any common ancestor of 2 persons then both are sapinda to
common ancestor and they would be sapinda of each other.

Ceremonies for a Hindu marriage -Section 7

11
(1) A Hindu marriage may be solemnized in accordance with the customary
rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is, the taking
of seven steps by the bridegroom and the bride jointly before the sacred fire),
the marriage becomes complete and binding when the seventh step is taken.
e.g : withot Sapatpadi marriages are vaild in Reddy community in Telengana .
The registration of marriages
Section 8 of Hindu Marriage Act, 1955
Section 8 of the Hindu Marriage Act, 1955 lays down the registration of
marriages.
Section 8(1) of the act empowers the State Government to make rules for the
purpose of registration of marriages.
The State Governments can make the registration of marriages compulsory but
they cannot make any provision invalidating the marriages as it is against the
Sub-section 5 of the act.
Section 8(2) of the act provides that a Hindu Marriage shall be compulsorily
registered if the State Governments have made rules regarding them. The
State Governments are also giving an option to make rules and conditions for
registering the marriages in a register called Hindu Marriage Register.
Different state governments have enacted rules regarding registration. The
Supreme Court held in Seema v. Ashwani Kumar that the marriage should be
registered in the State.
Section 8(3) of the act states that all such rules made by the State
Governments regarding marriage registration shall be laid before the State
Legislature to give them legal status.
Section 8(4) of the act states that the Hindu Marriage Register is a public
record and it should be open for inspection at all reasonable times (allowing
anyone to obtain proof of marriage), therefore on application it shall be given
by the Registrar on payment to him of the prescribed fee. Also, it should be
admissible as evidence in a court of law.
The Registrar of Marriage is bound to record the divorce in the register
maintained by him on a divorce ordered by a court.

12
Section 8(5) of the act lays down that any omission to make any entry in the
marriage register shall in no way affect its validity.
Effect of Non-Registration and Registration of Marriage
The effect of non-registration of marriage by any person after the enforcement
of Section 8 of Hindu Marriage Act, 1955 is that it would be punishable with
fine which may extend to Rs.25/-.
Both the spouses will be liable for punishment if the entries are not made.
If only one of the spouse had made the entries the other spouse will not be
liable for punishment.
The effect of registration of marriage is that foreign embassies or consulates
grants visa to spouses who have marriage certificate as a proof.
In cases like legal separation, divorce, alimony or custody of children the
courts may insist on seeing marriage certificates so it is useful as an evidence.

Restitution of Conjugal Rights

Restitution of conjugal rights basically comprises of two major words,
“Restitution” and “Conjugal Right”.
RESTITUTION: The restoration of something lost.
CONJUGAL RIGHT: rights relating to marriage or the relationship between
husband and wife.
If either party to a marriage withdraws from the society of the other without
reasonable cause, the aggrieved party has a right to file a petition claiming
relief for restitution of conjugal rights.
The court will grant the relief if there is no legal bar to such decree.
The legal definition given under Section 9 of Hindu marriage act 1955. The
idea of providing for restitution by a court decree is to preserve the marriage
tie as far as possible, by enabling the court to intervene and enjoin upon the
withdrawing party to join the other.
The condition to be satisfied for obtaining such decree are-
✓ The other spouse has withdrawn from the society of the petitioner.

13
 ✓ There is no reasonable excuse for such withdrawal. Should the
respondent allege reasonable excuse, the burden of proof lies on
him/her.
✓ The court satisfied as to the truth of the statements made in the
petition.
✓ No legal grounds exist for refusing the decree.

withdrawal from society when one of the spouses, without reasonable excuse,
terminates an existing relationship with the intention of forsaking the other,
and permanently or indefinitely abandoning such relationship.
Thus, while a husband and wife might be at times living apart, but maintaining
a frequent and regular social and conjugal relationship, in such a case there
would be no withdrawal from society. So, after the solemnization of the
marriage if either of the spouses without reasonable excuse withdraws himself
or herself from the society of the other then aggrieved party has a legal right
to file a petition in the matrimonial court for restitution of conjugal rights.

In Ranjana Kejriwal v. Vinod Kumar Kejriwal, Petitioner Wife alleged that the
husband was already married and had suppressed the fact from her. The Court
held that the petition for restitution of conjugal rights is not maintainable since
there is no legal marriage.

Effect of Decree
The decree of restitution of conjugal rights if passed, make it obligatory for the
respondent to resume marital relationship with the plaintiff. If this is not done
within one year from the date of decree, the party is entitled to seek decree.

Section 10: Judicial Separation

Grounds for Judicial Separation
It is given under Section 10 of the Act; the spouse can file a petition for judicial
separation on the basis of the following grounds:

14
Adultery [Section 13(1)(i)]- It means where any of the spouses voluntarily had
sexual intercourse with any other person except his/her spouse. Here, the
aggrieved party can claim the relief but that intercourse should be placed after
the marriage.

Cruelty [Section 13(1)(i-a)]- When the spouse treats his/her partner with
cruelty or inflicts any mental or physical pain after the marriage. The sufferer
can file a petition on the grounds of cruelty.

Case- Shyamsundar Vs. Santadevi – in this case after the marriage, the wife
was badly harmed by her husband’s relatives and the husband also stood lazily,
taking no steps to protect his wife.
The Court held that the intentional neglect to protect one’s own wife amounts
to cruelty on the husband’s part.
Baker vs Baker:
In this case, it was held that drunkenness itself does not constitute cruelty but
if it results in violence acts inquires to health of other spouse then it will
amount to cruelty.
Case - Sadhana Srivastava v. Arvind Kumar Srivastava (2006, SC)
In this case, it was held that the false criminal proceedings against the husband
amount to mental cruelty. Therefore, husband is entitled to a decree of judicial
separation.
Case – Dastane vs Dastane
It is a leading case on cruelty. In this case, it was alleged by the husband that
his wife threatens him by saying that she will put an end to her own life or that
she will set the house on fire and persistence abuses and insults to him.
The court held that the conduct of the wife was amount to cruelty.

Desertion [Section 13(1) (I-b)]- In this section, it is defined that if the spouse
left the other spouse for any reason without informing him/her for a period

15
not less than 2 years before filing the petition by another spouse, desertion
gives a right to claim relief of judicial separation for the hurt party.
Case- In the case, Guru Bachan Kaur Vs. Preetam Singh, the husband filed a
petition for divorce after 7 years of declared desertion and never understood
the problems of the wife who was also a working woman. But the wife was
willing to live with her husband at her house in the place of her service.
The High Court held that there is nothing like mutual desertion. One party has
to be guilty in desertion.

Labh kaur vs Narayan Singh

In this Case, it was held that desertion means the permanent abandonment of
one spouse by other without any reasonable cause.

Conversion/Apostasy [Section 13(1)(ii)]- If any spouse gets converted into any

other religion other than Hindu, then the other spouse can file for judicial
separation.
Case- In Durga Prasad Rao Vs. Sudharshan Swami, it was observed that in
every conversion case, formal rejection of religion or operation of the
sacrificial ceremony is not essential. Therefore, in the case of conversion, the
question of fact arose.

Unsound mind [Section 13(1)(iii)]- If any spouse in a marriage is suffering from

any mental disease which is difficult to live for the other spouse with the
sufferer. The other spouse can claim relief from judicial separation.
Case- Anima Roy Vs. Prabodh Mohan Ray (AIR 1969) in this case, the
respondent was found suffering from an abnormal disease after 2 months of
marriage. The doctor who checked the respondent also could not find the
particular time of starting the illness. Therefore, it was held that disease was
not proved at the time of marriage.

Leprosy [Section 13(1)(iv)]- If any spouse suffering from any disease like
leprosy, which cannot be recovered, then the other party can file a petition for

16
judicial separation because he/she cannot waste their own time due to the
sufferer.
Illustration- ‘A’ a sufferer of an abnormal disease and ‘B’ is the wife of ‘A’.
If ‘A’ is suffering from a disease that is incurable and the doctor also cannot
understand the disease. In this case, ‘B’ can file a petition for judicial
separation if she doesn’t want to continue with her husband.

Venereal Disease [Section 13(1)(v)]- If any party to a marriage or a spouse has

any type of disease which is incurable and communicable and the spouse does
not know about the fact at the time of marriage, then it could be a valid
ground for the spouse to file petition for judicial separation.
Illustration- ‘A’ is suffering from an abnormal disease that is spread by
communication. The disease which is irrevocable.
In this case, ‘B’ the wife of ‘A’ can file a petition for the judicial separation in
good faith for their future of the two children.

Renounced the World [Section 13(1)(vi)]- In Hindu law, by renouncing the

world means “Sannyasa”. Renunciation from the world conveys that the
person has given up the world and leading a holy life. He is considered a civil
dead. If a spouse renounces the world to live a holy life, his/her partner can file
for judicial separation.
Illustration- If ‘A’ changed his religion and went somewhere, where people
also cannot find him. ‘B’ the wife of ‘A’ got hurt so much by hearing this news.
Therefore, she can file a judicial separation.

Civil death/Presumed death [Section 13(1)(vii)]- If a person is not found for 7

or more years and their relatives or any other person have not heard from
him/her or it is believed that he/she may be dead. Here, the other spouse can
file for judicial separation.
Illustration- ‘A’ and ‘B’ have been husband and wife for 4 years and suddenly
the husband disappeared for about 8 years. ‘B’ as his wife she did her best to

17
find her husband in these 8 years but she couldn’t find him. Then, ‘B’ can file
the judicial separation for this case.

Effect of Judicial separation

Consequences of Judicial Separation:
After a decree is passed in favour of the parties,
•They are not bound to cohabit with each other;
•They are entitled to separate from each other and all basic marital obligations
remain suspended;
•Martial intercourse no longer remains enforceable;
•Martial obligations and rights are not available to them;
•They cannot remarry during the period of separation;
•Either party may be entitled to get maintenance from the other if the
situation so warrants.
•If any of them remarries, he or she will be guilty of bigamy.
•In the event of one of the parties dying, the other party will inherit the
property of the deceased spouse.
(Narasimha Reddy and others v. M. Boosamma AIR 1976 AP 77)

Voidable Marriages (Section 12)

A marriage is voidable on either side of the party is known as voidable

marriage.

It will be valid unless the petition for invalidating the marriage is made. This
marriage is to be declared void by a competent court under the Hindu
Marriage Act, 1955. The parties of such marriage have to decide whether
they want to go with such marriage or make it invalid.

18
The grounds where marriage can be termed as voidable:

IMPOTENCY: The marriage is voidable on the ground of impotency. In fact it

is said that the primary aim of marriage is to procure a child and for that
potentiality is an essential requirement. Therefore, under Hindu law, the
marriage an impotent person whether male or female is deemed to be in
effected. Impotency indicate incapacity to cohabit whether it is physical &
mental and it must be permanent & incurable.

CONSENT OBTAINED BY FORCE OR FRAUD: A marriage becomes voidable

where consent to it is obtained by force or fraud and a decree of nullity could
be obtained in such a case u/s - 12 (1) (c).

But such petition must be presented more than a year after the force has
ceases to operate or as the case may be, fraud has been discovered.

PREGNANCY AT THE TIME OF MARRIAGE: The fourth ground to getting the

marriage nullified U/S - 12 is that the respondent was at the time of marriage
was pregnant other than the petitioner.

The petitioner must satisfy the court that the fact of pregnancy was not known
to them at the time of marriage. Infact, under this clause in order to sustain a
petition, the following conditions must be fulfilled -

1) that at the time of marriage the wife is pregnant;

2) that the pregnancy was by some person other than the petitioner.

3) that the petition was filed within one year from the date of marriage.

4) no marital intercourse has taken place since the discovery by the petitioner
of the respondent's pregnancy.

The party to the marriage is not capable of giving consent due to the
unsoundness of mind.

19
Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and
‘B’ is his wife. ‘B’ gave the consent of the marriage when she was suffering
from an unsound mind. After some years, ‘B’ gets cured and raised that her
consent was invalid and this marriage is voidable because during the time of
the consent of ‘B’, she was in an unsound mind. So, this a ground of voidable
marriage.

The party is suffering from mental disorder which makes her unfit for
reproduction of children.

Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and
‘B’ is his wife.

If ‘B’ is suffering from mental disorder due to which she is unfit for reproduction
of children. Then this can be a ground for voidable marriage.

If the party has been suffering from repeated attacks of insanity.

Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and
‘B’ is his wife. Anyone from ‘A’ or ‘B’ is suffering from repeated attacks of
insanity, then this can also be a ground for voidable marriage.

The consent of marriage by either of the parties is done by force or by fraud.

Illustration: There are two parties ‘A’ and ‘B’ where A is the husband and B
is his wife. If either party gave consent to the marriage by force or fraud, then
it will be a voidable marriage.

If either of the parties are under-aged, bridegroom under 21 years of age and
bride under 18 years of age.

Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and
‘B’ is his wife. If ‘B’ is under the age of 18 years then this marriage will be
considered as voidable or if A is under the age of 21 years then it can also be
considered as voidable marriage.

20
If the respondent is pregnant with a child of someone other than the
bridegroom while marrying.

Illustration: There are two parties ‘A’ and ‘B’ where ‘A’ is the husband and
‘B’ is his wife. During the time of the marriage if ‘B’ is pregnant through another
person. Then the marriage would be voidable.

SECTION - 13 (a): ALTERNATE RELIEF IN DIVORCE PROCEEDINGS

Acc. to Sec. 13 (a) -

In any proceedings under Hindu marriage Act on a petition for dissolution of
marriage by a decree of divorce except in the cases mentioned in clauses (2),
(6) & (7) of sub-section (1) of Sec. 13, the court may pass instead a decree for
judicial separation.
SECTION - 13 (b): DIVORCE BY MUTUAL CONSENT
The provision relating has been added by Marriage Laws Amendment Act,
1976.
It provides for divorce by mutual consent of parties to marriage. Such a
petition is required to be moved jointly by the parties to marriage on the
ground that they have been living separately for a period one year or more
they have not been able to live together and also that they have agreed the
marriage been dissolved.
Therefore, the requirement of Sec. 13(b) are as follows: -
• Petition for divorce has to be presented by both the parties to a
marriage supported by affidavit of both the parties.
• The parties should have been living separately for one year or more.

21
 • The parties could not adjust with each other and had not been able to
live together.
• There should be mutual request by both the parties to marriage to
dissolve the marriage.
After the petition is presented, the parties have to wait for a minimum
period of six months after which they have to move the court once again. If
the parties do not move the court after 6 months & before the 18 months
from the date of presenting the petition then the petition for mutual
divorce will lapse.
Either party can with draw the petition during the court.

SECTION - 14: NO PETITION FOR DIVORCE TO BE PRESENTED WITHIN ONE

YEAR OF MARRIAGE
According to this section No court shall entertain a petition for divorce before
the expiration for a period of one year from the date of marriage prior to the
Marriage Laws Amendment Act, 1976, no court could entertain a petition for
divorce before the expiration of 3 years but this amendment act reduces the
period to one year.
Sec. 14 also provides that they could entertain a petition even before the
expiry of one year in the special circumstances.
According to sub-section 2 of Sec. 14, the interest of the children born of the
marriage & chances of reconciliation between the parties are also kept in view
by the court while deciding such application.
SECTION - 15: DIVORCED PERSON WHEN MAY MARRY AGAIN
Sec. 15 lays down that when the marriage has been dissolved by a decree of
divorce & either, there is no right of appeal against the decree or there is such
a right of appeal the time for appealing has expired without an appeal having
been presented an appeal has been presented but it has been dismissed then
it shall be careful for either party to marriage to marry again.

22
Therefore, according to Sec. 15, the parties to the marriage may marry again if
the following conditions are satisfied:-
1) When the marriage has been dissolved and there is no right of appeal
against the decree of Court or.
2) If there is a right of appeal but the time has expired without filing an appeal.
3) An appeal has been filed but has been dismissed.
SECTION - 16 : LEGITILACY OF CHILDREN BY VOID & VOIDABLE MARRIAGE
According to Sec. 16 notwithstanding that a marriage is null and void U/S - 11.
The child of such marriage who would have been legitimate if the marriage had
been valid, shall be legitimate whether such child is born before or after the
commencement of Marriage Laws (Amendment) Act, 1976.
Besides it, where a decree is granted in respect of a voidable marriage U/S - 12.
Any child begotten or conceived before the decree is made shall be deemed to
the legitimate child notwithstanding the decree of nullity.
Sec. 16 further provides that the children Born of void and voidable marriage
and who have acquired the states of legitimate children by virtue of this
section cannot claim the property of persons other than the parents. It means
such children have no right to succeed the collaterals of the parents or
ascendants of the parents.
SECTION - 19: COURT TO WHICH PETITION SHOULD BE PRESENTED
Sec. 19 of the Act provides that every petition under HMA shall be presented
to the District Court within the local limits of whose -
(i) The marriage is solemnized
(ii) The responded at the time of the presented petition resides or,
(iii) The parties to the marriage last resided together.
(iv) The petitioner is residing at the time of the presentation of the petition
only in following cases: -
• Where the respondent is at the time residing outsides the territories to
which this act extends.
• It has not been heard as being alive for a period of 7 years or more.

23
SECTION - 20: CONTENTS & VERIFICATION OF PETITION
According to Sec. 20, every petition presented under this Act shall state the
nature of the case and the facts on which the claim to relief is founded and
that there is no collision between the petitioner and the other party to
marriage.
Besides it, the statement contained in every petition shall be verified by the
petitioner or any authorised person.
SECTION - 21A: POWER TO TRANSFER PETITIONS
This section was inserted by the Marriage Laws (Amendment) Act, 1976. The
object of this section is to avoid the multiplicity of proceedings. It provides that
where proceedings seeking relief of judicial separation or divorce are filed in
different courts, the court wherein the petition was earlier presented shall try
and dispose of all matters.
According to Sec. 21, the proceedings under HMA shall be regulated as for as
may be by the court of Civil Procedure 1908.
SECTION - 21B: SPECIAL PROVISION RELATING TO TRIAL
This section was inserted by Hindu Marriage Laws (Amendment) Act, 1976 with
the view of speedy trial. IT provides that the trail is required to continue for
matrimonial proceedings from day to day until its conclusion. Where the trial
court adjourns the hearing, it must record the reasons. It further provides that
the court should conclude the trial within six months from the date of the
respondent.
Similarly, the proceedings in appellate courts are
also required to be completed within the period of
three months from the date of the service of notice
of the petition on the respondent. But the provisions of this section are not
mandatory.

SECTION - 22 : PROCEEDINGS TO BE IN CAMERA

According to Sec. 22, every proceeding under HMA shall be conducted in
camera and it shall not be lawful for any person to print or publish any matter
in relation to any proceedings except a judgement of the HC or of the SC
printed or publish with the previous permission of the court. If any person
24
prints or publishes any matter in contravention of the provision, he shall be
punished with fine which may extend to Rs. 1,000.
SECTION - 24 : MAINTENANCE DURING THE PENDENCY OF THE TRIAL
Where in any proceedings under this Act, its appears to the court that either
the wife or the husband (as the case may be) has no independent income
sufficient for her or his support and the necessary expenses of the
proceedings, then it may on the application of the wife or the husband, court
may order to the respondent to pay the petitioner, the expenses of the
proceeding and monthly during the proceeding. Such seem which may seem to
the court to be reasonable.
The application for the payment of the expenses of the proceeding & such
monthly seem during the proceeding shall as for as possible being disposed of
within 60 days from the date of service of notice on the wife or the husband as
the case may be.
SECTION - 25 : PERMANENT ALIMONY & MAINTENANCE
Sec. 25 provides for the grant of alimony and maintenance to any of the party
to the marriage at the time of passing the decree. The court shall take into
account the status of the opposite party in fixing the amount for maintenance.
The court has been empowered to rescind or modify the order at any
subsequent stage if the circumstances to warrant. Infact there are two
condition in which the court may rescind to order its alimony & maintenance:-
(i) if the court is satisfied that there is change in the circumstance of either
party after it has made an order.
(ii) if the party in whose favour the order has been made is remarried.
(iii) if such party is the wife and she has not remained chaste or such party is
husband that he has had sexual intercourse with any woman.
SECTION - 26: CUSTODY & CHILDREN
U/S - 26, the court has been empowered to pass any order or make any
arrangement in respect of custody, maintenance, and education of children
during the pendency of the proceedings or after any decree is passed under
this Act.
SECTION - 27: DISPOSAL & PROPERTY

25
According to Sec. 27, court has power to make proper order with respect to
any property presented at or about the time of marriage which may belong
jointly to both the husband and the wife.
SECTION - 28: ENFORCEMENT OF & APPEAL FROM DECREE & ORDER
According to Sec. 28, all decrees made by the court in matrimonial matters are
appealable & the period of appeal has been fixed as 30 days from the date of
decree or order.

26