Important Acts for Prelims and Mains

Category-I: Category-II Category-III

1. HMA
1. CPC 2. HSA
2. CrPC 3. Limitation Act
4. Specific Relief Act
3. IPC 5. NI Act Rest-All of acts
4. Indian Evidence Act 6. J J Act
7. P D V act
5. TP Act 8. Indian succession act
6. Indian Contract Act 9. Pocso act
 Previous year Questions from Hindu
Marriage Act,1955
1. Discuss the essential conditions for a valid Hindu marriage as per the Hindu Marriage Act, 1955.
2. Explain the concept of "sapinda relationship" and its implications on the validity of a Hindu marriage.
3. What are the grounds for divorce under the Hindu Marriage Act, of 1955? Discuss the procedure for obtaining a
divorce.
4. Analyze the rights and obligations of spouses under the Hindu Marriage Act, 1955, with regard to maintenance,
property, and inheritance.
5. Describe the legal provisions for registration of a Hindu marriage. Discuss its significance and consequences of
non-registration.
6. What are the provisions for restitution of conjugal rights under the Hindu Marriage Act, 1955? Explain the legal
implications and remedies available to the aggrieved party.
7. Discuss the provisions of the Hindu Marriage Act, 1955, regarding the maintenance and custody of children after
divorce.
8. Explain the concept of void and voidable marriages under the Hindu Marriage Act, 1955, along with the legal
consequences of each.
9. Analyze the provisions of the Hindu Marriage Act, 1955, regarding the division of property upon the dissolution of
marriage.
10. Discuss the legal remedies available to an aggrieved party in case of non-compliance with the provisions of the
 Hindu code bills

The Hindu Marriage The Hindu Succession The Hindu Minority and The Hindu Adoptions
Act,1955 Act, 1956 Guardianship Act, 1956 and Maintenance Act,
1956
 The Hindu Marriage Act, 1955
The main purpose of the Hindu Marriage Act:
The Hindu Marriage Act, enacted in 1955, aims to provide safeguards and rights to individuals who wish to
enter into a marital union according to Hindu rituals and customs. Some of the key purposes of the act are:
1. Regu lation of marriage: T h e act establish es ru les and regu lations for th e
solemnization and registration of Hindu marriages. It sets out the essential
conditions and ceremonies required for a valid Hindu marriage.
2. Eligibility criteria: The act def in es the eligibility criteria for both the bride and groom,
including minimum age requirements, mental capacity, and prohibited degrees of
relationship. It prohibits child marriages and ensures the parties involved are capable
of giving free and valid consent.
3. Legal recognition and validity: The act provides legal recognition to Hindu marriages
and makes them legally binding. It outlines the procedures for registering marriages,
which helps establish legal proof of the marital relationship.
4. Rights and obligations: The act def in es the rights and obligations of married
individuals. It lays down provisions regarding maintenance, property rights,
inheritance, and other legal aspects concerning spouses and their children.
5. Dissolution of marriage: The act also deals with the dissolution of Hindu marriages
through divorce. It establishes grounds for divorce and specifies the legal procedures
for obtaining a divorce, including provisions for alimony, child custody, and
maintenance.
 Chapter I:
Preliminary

Chapter VI: Chapter II:

Savings and Hindu
repeals Marriages

The Hindu Marriage

Act, 1955

Chapter III:
Chapter V: Restitution of
Jurisdiction and conjugal rights
procedure and judicial
separation

Chapter IV:
Nullity of
marriage and
divorce
THE HINDU MARRIAGE ACT OF 1955
ACT NO. 25 OF 1955
[18th May, 1955]

Chapter 1:
PRELIMINARY

4. Overriding 1. Short title

effect of Act and extent.

2. Application
3. Definitions
of Act.
1. Short title and extent.
(1)This act may be called the Hindu Marriage Act, of
1955.
(2) It extends to the whole of India except the State
of Jammu and Kashmir and applies also to Hindus
domiciled in the territories to which this Act extends
who are outside the said territories.

2. Application of Act.
(1) This Act applies-
(a) to any person who is a Hindu by religion in any of
its forms or developments, including a Virashaiva, a
Lingayat, or a follower of the Brahma, Parthana, or
Arya Samaj,
(b) to any person who is a Buddhist, Jaina, or Sikh by
religion, and
(c) to any other person domiciled in the territories to
which t his Act e xt e nds who is not a Muslim ,
Christian, Parsi, or Jew by religion unless it is proved
that any such person would not have been governed
by the Hindu Law or by any custom or usage as part
of that law in respect of any of the matters dealt
with here in if this Act had not been passed.
Explanation.—
The following persons are Hindus, Buddhists, Jainas,
or Sikhs by religion, as the case may be:—
(a) Any child, legitimate or illegitimate, both of
whose parents are Hindus, Buddhists, Jainas, or
Sikhs by religion;
(b) Any child, legitimate or illegitimate, one of
whose parents is a Hindu, Buddhist, Jaina, or Sikh by
religion and who is brought up as a member of the
tribe, community, group or family to which such
parent belongs or belonged; and
(c) any person who is a convert or re-convert to the
Hindu, Buddhist, Jaina, or Sikh religion

(2) Notwithstanding anything contained in sub-

section (1), nothing contained in this Act shall apply
to the members of any Scheduled tribe within the
m e aning of clause (25) of ar t icle 366 of t he
Constitution unless the Central Government, by
notification in the Official Gazette, otherwise directs.
(3) The expression “Hindu” in any portion of this Act
shall be construed as if it included a person who,
though not a Hindu by religion, is, nevertheless, a
person to whom this Act applies by virtue of the
provisions contained in this section
3. Def in itions.—In this Act, unless the context
otherwise requires,—
(a) The expressions “custom” and “usage” signify
any rule which, having been continuously and
u ni f or m l y obse r v e d f or a l ong t i m e , h a s
obtained the force of law among Hindus in any
local area, tribe, community, group or family:
P rov i de d t ha t t he r ul e i s ce r t a i n a nd not
unreasonable or opposed to public policy; and
Provided further that in the case of a rule applicable
only to a family it has not been discontinued by the
family;

(b) “district court” means, in any area for which

there is a city civil court, that court, and in any other
area the principal civil court of original jurisdiction,
and includes any other civil court which may be
specified by the State Government, by notification in
the Official Gazette, as having jurisdiction in respect
of the matters dealt with in this Act;
(c) “full blood” and “half blood”—two persons are
said to be related to each other by full blood when
they are descended from a common ancestor by the
same wife and;
by half-blood when they are descended from a
common ancestor but by different wives;
(d) “uterine blood”—two persons are said to be
related to each other by uterine blood when they are
descended from a common ancestress but by
different husbands;
Explanation.—In clauses (c) and (d), “ancestor”
includes the father and “ancestress” the mother;
(e) “prescribed” means prescribed by rules made
under this Act;
(f) (i) “sapinda relationship”
relationship with reference to any
person extends as far as the third generation
(inclusive) in the line of ascent through the mother,
and the f ifth (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;
(ii) two persons are said to be “sapindas” of each
other if one is a lineal ascendant of the other within
the limits of the sapinda relationship, or if they have
a common lineal ascendant who is within the limits
of sapinda relationship with reference to each of
them;
(g) “degrees of prohibited relationship”-two
relationship persons
are said to be within the “degrees of prohibited
relationship”—
(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal
ascendant or descendant of the other; or
(iii) 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; or
(iv) 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;
Explanation.—For
Explanation the purposes of clauses (f) and (g),
the relationship includes—
(i) relationship by half or uterine blood as well as by
full blood;
(ii) illegit im at e blood relat ionship as well as
legitimate;
(iii) relationship by adoption as well as by blood; and
all terms of relationship in those clauses shall be
construed accordingly.
4. Overriding effect of Act.—Save
Act as otherwise
expressly provided in this Act,—
(a) any text rule or interpretation of Hindu law or
any custom or usage as part of that law in force
immediately before the commencement of this
Act shall cease to have effect with respect to
any matter for which provision is made in this
Act;
(b) any other law in force immediately before the
commencement of this Act shall cease to have
effect in so far as it is inconsistent with any of the
provisions contained in this Act.
Chapter 2-Hindu Marriages

5. Conditions for
a Hindu marriage
7. Ceremonies
for a Hindu
marriage
8. Registration of
Hindu marriages
Section-5:Conditions for Marriage

1. Condition of Monogamy:
Section 5 Hindu Marriage Act lays down
f ive essential conditions for marriage to
be governed by its provision. The f irst of
these is monogamy. It means neither
party to the intended marriage should
have a liv ing spouse wit h whom
marriages subsist in the eyes of the law.
bachelors, sprinters, divorcees, widows,
etc therefore lawfully marry.
According to sections 11 and 17 of the
Act, if a man or woman whose earlier
marriage is subsisting in the eyes of the
law marries a second time, it will be void
unde r t he Act and cove re d by ant i-
bigamy provisions of section 494,495 of
IPC.
Case Law: Sarla Mudgal versus Union of India. And
later Lily Thomas versus India
The court ruled that the second marriage of a
converted Muslim, (originally Hindu), a man
solemnized under Muslim law, would be counted
as second marriage for the purpose of the offense
of bigamy an d such men will be liable to be
p un i s he d . In b o th c as e s , the hus b an d had
contracted A nikkah with the second wife and while
in the f irst he was of ficially known by the Muslim
name, in the second case both the husband and
the alleged second wife were using their pre-
converted Hindu names for all of fic ial purposes
Specifying the religion as a Hindu in the of fic ial
records also, it was a clear case of misuse of
constitutional rights of the conversion and the
religion for self ish purpose with the sole objective
of escapin g the prosecution for bigamy an d
exploiting the facility available under different
religions for practice limited polygamy.
II.Condition of sanity
The condition for valid marriage specif ied in section
5 of the Act relates to the mental condition of the
par t ie s. This prov ision v ir t ually prohibit s t he
marriage of the following persons
1. those who are suffering from unsoundness of
mind because of which their consent to marriage
cannot be recognized by the law.
2. Those who are suffering from mental disorder of
kind and extent which is unf it for marriage and
procreation of children even if they give consent for
the marriage and
3. Those having recurrent attacks of insanity.
his provision originally mentioned Epilepsy as an
indication of mental abnormality, but the reference
t o t he dise ase was de le t e d from it by t he
amendment of the Act made in 1999.
The marriage of any such person, if procured, will be
voidable under section 12 of the Act and can be
handled by decree of nullity to be passed by the court.
(iii)Condition of age:
The condition for valid marriage lays down in
section f iv e of the Act related to relates to the
age of the parties to the intended marriage. As
per this provision, the bride must have reached
the age of 18 and the groom must have reached
the age of 21 years at the time of marriage. A
person below these age limits is a minor. And
whose marriage is prohibited by law.
Nevertheless, A miner's marriage is not void but
as per Sect ion 18 of t he Act , a m inor who
procures his or her marriage will be guilty of an
offense punishable with rigorous imprisonment
up to two years & Fine up to 1,00,000 or both.
The remedies provided by the Prohibition of
Child Child Marriage Act, 2006 will also be
available to minors governed by this Act.
Case Law: Shivakumar versus Inspector of
Police,
(iv) Prohibited degrees in Marriage:
The parties are not within the degrees of prohibited
relationship unless the custom or usage governing each
of them permits a marriage between the two;
(Relatives who a person is not allowed to marry) Section
2(g) of the Act mentions such relatives, who in short, will
include the following relatives
1.linear ascendants and descendants and their former
spouses
2. paternal maternal uncles and aunts, their children,
3. siblings, Full, half or Uterine blood and their children.
Men are not allowed to marry former wives of their
brothers and of paternal uncles, maternal uncles, and
grandmothers, notably, a woman is not precluded from
marrying the former husband of her sister or aunt.
A marriage within prohibited degrees in violation of this
condition will be wide under Section 11 of the under
Section 18 in the parties will be guilty of the offense,
punishable with simple imprisonment, up to month f in e,
up to ₹1000, or both. The condition for marriage, however,
excluded from its purview those who plead A contrary,
custom or usage defined in section three of the Act.
(v) Sapinda relationship:
This condition for marriage under Section 5 is that
parties should not be each other spindles as defined
in Section 3 of (f) of the Act. This is a special
feature of the Act not found anywhere in any other
law of the country. if the parties to an intended
marriage or in the direct lineage from the paternal
ascendant up to 5 and are maternal ascendant, up
to 3 degrees of ascent to be counted from the
person concerned, and they are sapindas of each
other and cannot become husband and wife.
7.Solemnisation
7 ( 1 ) T h e A ct s a ys t h a t m a r r i a g e m a y b e
sole m nize d wit h cust om ar y right s and
ceremonies of either party., Saptapadi is the most
important right of the Hindu marriage ceremony.
The word Saptapadi means seven steps, each
step being the exchange of vows step and that is
called Saptapadi. After the 7th step, the couple
legally becomes husband and wife.
Se ct ion 7(1) doe s not m ake t his ce re m ony
compulsory for any marriage, and if any other
ceremonies are followed by the custom of either
par ty’s family, the marriage can be lawfully
solemnized in that ceremony.
the word “may” in section Section 7( 1) indicates
that the solemnization of marriage through any
traditional rites or rituals is not mandatory. This
provision impliedly protects the ceremonies
followed by the Sikhs and arya samaj Hindus for
whose protection special laws were enacted
before independence.
The Supreme Court has held that if there is a
custom in. Either party’s family is not to observe
any religious rights. If the parties follow it, their
marriage will be legally recognized.
Complete and Binding marriage:
Section 7(2) of the Act makes an additional provision saying that if marriage is solemnized
through the Saptapadi ceremony, it will become complete and binding when the 7th step is
taken. The provision is prone to misuse for the sake of Bigamy, as married persons marrying
again can claim That they had taken a lesser number of steps in their f ir st and second
marriages,
When marriage will be complete and binding if it is solemnized through a customer ceremony
different from Saptapadi, remains open question taking undue advantage of the slice of the
act about it unscrupulous bigamist have been escaping application of. Anti bigamy provisions
of the ACT by claiming that either first or the second marriage was not binding and complete.
In an old case, the court had given a judgment favoring A bigamist and account of
incompleteness of customer ceremony and employed for a marriage.
lawshiromani Jain case:
In a case, a Jain man having a wife and a son married another woman who bore him a
daughter. On the f ir st wife, initiating preceding for the decree of nullity of the second
marriage, The courts below ruled that as there was not enough proof of the f irst marriage
having been properly sermonized.
The second marriage was valid in the appeal Supreme Court decided that there was
adequate proof of solemnization of both marriages and hence the second marriage was wide.
Presumption of Marriage:
The existence of marriage between man and woman
may be presumed in a law even in the absence of
p ro o f o f i ts p ro p er s o l em n i zati o n thro ug h the
ceremony. The requirements for using this established
legal principle were examined by the Supreme Court.
In a n umber of cases, the Supreme Court in the
j ud g m e n t B ad ri P ras ad ve rs us Di re c to r o f
Consolidation gave a legal validity to 50 years living
relationship. But in some cases, the Supreme Court
observed that the presumption was rebuttable but the
heavy burden lies on the person who seeks to deprive
the relation ship Of legal origin to prove that n o
m arri ag e to o k p l ace, the l aw l ean s i n f avo r o f
legitimacy and frowns upon a baster.
In Balasubramanyam versus Suruttayn, again, the
Supreme Court held that if a man and woman are living
under the same roof and cohabiting for a number of
years, there will be a presumption under the section
1114 Indian Evidence Act that they live life as husband
and wife and the children born to them will not be
illegitimate.
Chapter-3

9.Restitution
of conjugal
right

10. Judicial
separation
9. Restitution of conjugal right— When either the
husband or the wife has, without reasonable excuse,
wit hdrawn from t he socie t y of t he ot he r, t he
aggrieved party may apply, by petition to the district
court, for restitution of conjugal rights and the court,
on being satisf ie d of the truth of the statements
made in such petition and that there is no legal
ground why the application should not be granted,
may decree restitution of conjugal rights accordingly.
[Explanation.—Where a question arises whether
there has been a reasonable excuse for withdrawal
from the society, the burden of proving a reasonable
excuse shall be on the person who has withdrawn
from the society.
Nature of Remedy
Some of the cases where this relief has been
provided by the court are mentioned below.
In Pallavi Bharadwaj versus Pratap Chauhan(2011),
the court clarif ied that evidence of a valid marriage
is one of the foundational facts to be established for
claiming the restitution of conjugal rights under
Section 9.
In Suman Singh versus Sanjay Singh(2017), the Supreme Court.
Supreme Court noted that from the Percival of the evidence, it is clear
that it was the respondent who withdraw from the company of the
appellant without reasonable cause and not vice versa. Hence the
appellant was entitled to decree of the restitution of conjugal rights.
In Asgar Ali versus Reshma(2014) The Karnataka High Court observed
that marriage undoubtedly confers conjugal rights and both husband
and wife. Hence both are entitled for restitution of conjugal rights.
However, the right to restitution of the conjugate right is not absolute
but subject to lawful excuses
Effect of decree for restitution:
The restitution of conjugal rights does not have a binding force, and
may be ignored by the spouse against whom it has been passed. Nor
it can be enforced or executed by the court against his her wishes. On
the contrary, after one year from the date of the decree, either spouse,
including the person against whom It was made) can seek a divorce
on the grounds of noncompliance with it, without giving any reason for
noncompliance.
Constitutional validity:
During 1983-84, High Court judges had expressed different opinions
on w he the r the re me dy of re stitution of conjugal rights w as
constitutionally valid. An Andra Pradesh High Court judge had ruled
that the provision violated the principle of gender equality under the
Constitution. But a learned Delhi High Court judge dismissed the
Andhra Pradesh ruling asserting,"in a sensitive sphere which is at once
most intimate and de licate introduction of cold principle s of
constitutional law Will have the effect of weakening the marriage bond.
Case law: Saroj Rani vs Sudarshan Kumar Chadha
SC upheld the Delhi High court Ruling.
10. Judicial separation: Nature
of remedy
The remedy of judicial separation means
court-sanctioned freedom for one spouse
not to cohabit with another spouse. This
remedy leads to temporary suspension and
not termination of the marriage.
An aggrieved spouse may, in effort to save
t he m arriage , se e k t his re lie f inst e ad
Divorce. Section 10 of the Hindu Marriage
Act provides for this remedy and originally
specif ied the grounds for seeking it, but the
law was changed later. Now the remedy for
judicial separation can be sought by either
spouse in the circumstances. Amounting to
one or more grounds for divorce laid down
under section 13 of the Act. Say something
Effect of the decree:
A decree for judicial separation, if granted,
does not dissolve the marriage and only
allows the agreed spouse to live separately
from the other spouse. Also, it does not
have binding force or may be ignored by the
spouse against whom it has been passed,
nor it can be enforced or executed by the
court against his or her wishes. On the
contrary, after one year from the date of the
decree, either spouse, including the one
against whom it was made, can seek a
divorce on the ground of non-compliance
wit hout giv ing any re asons for non-
compliance.
It was observed by the Supreme Court in
Hirachand Srinivas versus Sunanda(2001),
that a decree of judicial separation does not
dissolve the bond of marriage, but rather
provides an opportunity to spouses for
reconciliation and readjustment.
Rescission of the decree:
A decree of judicial separation, once granted,
can be re scinde d by t he cour t and t he
application of either party if it is satisf ie d
with the truth of the ground on which the
relief is sought.
Either spouse may apply for the recession of
a decree of judicial separation. Recession
can be re que st e d due to changing
circumstances, and the Courte must be
satisf ie d with the truth of such statements
so that it can f ind it therefore therefrom be
justif ie d, just, and reasonable cause to
re scind t he de cre e . If t he de cre ase is
re scinde d, t he pe t it ione r can insist on
cohabitation.
However, as observed by the Mysore High
Cour t i n K a sha wwa v e r sus P ha de ppa
sanggappa, If the parties cohabit, the decree
automatically becomes ineffective. The
cour t should use this power with great
caution and circumspection.
Chapter-4:Chapter IV: Nullity of Marriage and Divorce
11. Void marriages

12. Voidable marriages

13. Divorce.

13 [13A. Alternate relief in divorce

proceedings

13B. Divorce by mutual consent

14. No petition for divorce to be presented

within one year of marriage

15. Divorced persons when may marry again

16. Legitimacy of children of void and

voidable marriages

17. Punishment of bigamy

18. Punishment for contravention of certain

other conditions for a Hindu marriage.
 11. Void Marriage
Void Marriages Section 11 Hindu Marriage Act deals with void marriages, a marriage that is void does
not have any legal effect and can be nullified by the court decree.
The three void marriages under the Act are those violating in law.
-bigamy,
-prohibited degrees in marriage, and
-sapindas relationships
It was held by the Supreme Court in the Chand Patel case that a void marriage is one which is unlawful
in itself. The prohibition against marriage is perpetual and absolute. A void marriage does not create
any civil rights and obligations between the parties.
It is not compulsory for either party to any of these void marriages to get it, get it declared void by the
degree of knowledge, but if either of them wants to seek any ancillary relief. Under its provision, this
can be done only in proceedings for nullity of marriage under section 11 of the act
This conclusion is supported by the Supreme Court’s observation of Deoki Panjhiyara versus Shastri
Bhushan Narayan-A bigamy marriage can be annulled by the court through a decree of nullity. However,
only one or other party to void the marriage can seek a decree of nullity for its annulment by taking
legal action against the other spouse. Thus the matter would be between the parties to void a
marriage themselves.
Third persons cannot seek this relief but can plead invalidity of void marriage in any other legal
proceedings if it affects their rights or interest.
Notably, if either party to void the marriage has died, this remedy cannot be available to the surviving
spouse.
 12.Voidable Marriages
Voidable marriage remains intact and produces all effects of a valid marriage. It is not
compulsory for either party to such a marriage to seek its annulment. It may, however, be
annulled by a court through a decree of nullity if the legal requirement for availing this
remedy is fulfilled.
The remedy does not provide an absolute right and may or may not be granted, depending
on the circumstances of the particular case. If either party seeks annulment of a voidable
marriage, the courts have to use their discretion with abundant caution, especially if the
marriage has been consummated or the couple already has a child.
In Shiva Kumar versus Inspector of Police, The court has observed that the marriage of a
person with a female below 18 years of age is voidable and the same shall be subsisting
until it is annulled by the competent court under Section 3, Prohibition of Child Marriage Act,
2006. Such marriage is not a valid marriage in a Strict sense, but it is not invalid. Moreover,
the male contracting party does not enjoy all rights which would otherwise emanate from a
valid marriage, Strictly sense, but will enjoy only limited rights.
section 12 of the Act, marriage will be voidable on 4 grounds:
(a) Impotency:
Marriage with a sexually impotent person is not void in itself. If either spouse alleges that the
marriage has not been solemnized due to the impotency of the other party. The marriage can be
annulled by a court by passing a decree of nullity under section 12 (a) of the Act.
In the context of this remedy, the courts have held as follows.
1. Incurability of impotency, not a condition for obtaining this remedy(Samar Roy Chowdury vs
Snigdha Roy Chowdhury)
2. Continued virginity of the wife after marriage is not conclusive proof of her husband's
impotence.
3. The remedy would be available in the case of a normal wife’s total aversion to sexual acts.
4. Marriage is consummated if the intercourse is complete. It is not material that no child is
born due to sexual intercourse.
5. When the wife persistently refused to consummate the marriage and at the same time
refused to submit herself to medical examination, the court can draw the interference that she is
important and grant relief under Section 12 1A Hindu Marriage Act.
12(b) Mental handicap:
If either party to marriage did not fulfill, the at the time of marriage, the condition of mental
normalcy has been def ined as section 5(ii) of the act, The marriage will be voidable under
section 12(1)(b) at the option of either party and can be annulled by the court. In the case
where annulment of voidable marriage was sought under this provision, the Supreme Court
observed:
"The marriage is not per se void but voidable under the clause. Such a condition in the very
nature of things calls for a strict standard of proof. The onus of proof is very heavy on the
party
In Prakash Kumar versus Chanchal, the High Court held that the marriage is voidable under
section 12(1)(b) on the ground of violation of the condition laid down in Section 5(ii) that no
party suffering from mental unsoundness, mental disorder, insanity or epilepsy. It is the
question of the degree of defect.
The standard of proving such a condition is strict. The onus of proof is very heavy and the
party who alleges them for Untying the bond of marriage. If the petitioner continues to
cohabit with the other party as husband and wife, then neither the degree of annulment of
marriage Under section 12(2) nor of divorce can be awarded under section 13
12(c)-want of free consent:
Under section 12(C) of the Act, if either party to marriage alleges and proves that, his or her
consent for marriage was obtained by force or by fraud (concealment of material fact), The
marriage will be voidable at the option of the aggrieved party and can be annulled by the court.
The remedy is, however, to be sought within one year of ceasing of force, or Discovery of
concealed fact, as the case may be.
Some Cases in which the marriage was challenged before the court are mentioned below.
In Parvati Devi versus Dharmachandra Seth, It was held that the party to marriage is incapable of
giving birth to the child due to physical incapacity. If known before the marriage, relates to an
essential fact concealing the said party which should have been disclosed to the other party
beforehand of marriage. Concealing the fact that the wife is incapable of giving birth is fraud
within the meaning of Section 12(1)(c) Hindu Marriage Act.
In Anju Kundu versus Shyamal Kumar Kundu, the High Court observed that where suppression of
the educational qualification of the wife is not material enough to cause prejudice to the husband,
a consummated marriage cannot be annulled on this ground.
Andhra Pradesh High Court in M Devendra versus A.sarika noted that wrong statements were
made by the husband about his social status, f inancial status, and educational qualif ication. This
is a fraud about facts material for marriage.
12(d) Pre-marital pregnancy :
If at the time of marriage, a bride was pregnant, the not known to the groom by another
man, the marriage will be voidable under section 12(1)(d) at his option. thus, it was held
that the pregnancy of the wife, ignorance of this fact by the groom, the starting of
proceedings by the groom within one year of the marriage, and absence of marital
intercourse by the petitioner-husband with his wife, since such discovery are the grounds or
conditions to avail the remedy under section 12(1)(d).
As held by the Supreme Court in Mahindra Nanavati versus Susheela Nanavati that under
this clause(sub-section (1)(d) R/W sub-section(2)(b) The groom had to Establish such facts
and circumstances as would lead the court either to believe that the respondent was
pregnant by someone else at the time of marriage, or to hold that a prudent man, under the
circumstances and on the facts of the case, would be completely satisf ie d that it was so.
The onus of proof lies on the petitioner’s husband to prove this.
A period of one year for the institution of Proceedings is a condition precedent of an
absolute nature and not a period of limitation that may be extended and the general
principle of the law of limitation. The husband has also to prove that he did not cause this
premarital pregnancy.
****The finding of the DNA test will be admissible for obtaining this remedy.
Section:16-Children of Unlawful Marriages
The legitimacy of children of void and voidable marriages.—
(1) Notwithstanding that a marriage is null and void under section 11, any 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 the Marriage
Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted
in respect of that marriage under this Act and whether or not the marriage is held to be
void otherwise than on a petition under this Act.
(2)Where a decree of nullity is granted in respect of a voidable marriage under section 12,
any child begotten or conceived before the decree is made, who would have been the
legitimate child of the parties to the marriage if at the date of the decree it had been
dissolved instead of being annulled, shall be deemed to be their legitimate child
notwithstanding the decree of nullity.
Case: S.P.S Balasubramanyam Vs Suruttayn-First time, when the Supreme Court held the
legitimacy of children born out of a living relationship If a man and woman are living under
the same roof and cohabiting for some years, there will be a presumption under section
114 of Evidence Act that they live as a husband and wife, and children born to them will be
not illegitimate.
Property Rights:
Case: Jinia Keotin vs Kumar Sitaram
Manjhi-Children can acquire the
property of their Parents, suc h
property rights can be through self-
ac qui red of p arents as wel l as
ancestral property.

UOI vs V.R Tripathi: children out of

v oi d m arri ag e are l e g i ti m ate
children.
 13. Divorce Laws
Extra-Marital Sex
The f ir st ground for divorce lay down under the Hindu marriage act is sex by a married person
outside of marriage. As per the provision of section 13(1)(i), if a married man or woman indulges in
sexual activities with 3rd person. It will be ground for divorce in the hands of the aggrieved spouse.
Originally the ground mentioned in this provision was leaving in adultery which means a continuous
course of action. The lavas were later amended and now a single act of extramarital sex by one
spouse will be enough for the other spouse to seek a divorce.
Some cases in which divorce on the ground of adultery was pleaded before the court are
mentioned.
Adultery proved by unrebutted evidence is a ground of divorce.
The allegation of adultery is a serious charge. It is required to be proved behind reasonable doubt
and not by mere preparedness of the probabilities. It cannot be proved from the evidence of an
opportunity alone.
It is proved by the person who alleges it and the other party cannot be asked to prove the
negative. To prove it, the DNA test of a child cannot be ordered if the husband had access to the
wife as provided under section 112 of the Evidence Act 1872.
In Joseph Shine versus Union of India,
section 497, which made adultery a criminal
offense, was struck down as
unconstitutional being violative of Articles
14,15, and 21 of the Constitution. Further, it
was added that if an act of adultery leads to
the suicide of an aggrieved spouse. The
adulteress person can be prosecuted under
section 306 IPC for the appointment of the
suicide. However, the court clarif ie d that
adultery continues to be ground for divorce
13(1)(i-a)Matrimonial Cruelty:
The culture of husbands being Pati dev(Husband God) or Majaki Khuda Khuda(deemed to
be God) For the wives is a thing of the past. The Law does not allow either spouse anymore
to treat the other spouse with cruelty. All family and personal laws in force in the country
now recognize matrimonial cruelty as a ground for legal relief.
In Hindu Marriage Act Section 13(1)(i-a) mentions cruelty on the part of either spouse as a
ground for divorce in the hands of the other spouse. Under the original version of the Act,
cruelty for the purpose was def ined, But the laws changed later, and now it is for the courts
to decide in each case if the ACT complaint about in fact amounts to cruelty, explaining the
concept of the cruelty, the Supreme Court has observed:
"The expression cruelty has been used in relation to human conduct or human behavior. It is
the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a
course or conduct of one which adversely affects the other. The cruelty may be mental or
physical, intentional or unintentional. If it is physical, the court will have no problem in
determining it. It is a question of fact and degree. If it is mental, the problem presents
difficulties.
First, the enquiry must begin as to the nature of the cruel treatment.
Second, the impact of such treatment in the mind of the spouse, whether it is caused
reasonable apprehension that it would be harmful or injury to life with other.
Ultimately it is a matter of Inference to be drawn by taking into account the nature of the
conduct and its effect on the complaining spouse.
However, there may be a case where the conduct complained of itself is bad enough and
per se unlawful or illegal. Then the impact or injurious effect the other spouse need not be
enquired into or considered "
In several other decisions and observations also, the court has explained the possibilities and varieties regarding cruelty as a ground
for divorce. A selection of court views follows.
1. The complainant's spouse education and status, norms of married life in the society which parties belong to, and its social values
will be valid considerations for the court in deciding case.
2. The “intensity, gravity, and stigmatic impact" of alleged cruelty will be decisive in each case.
3. There cannot be a straight jacket formula for determining mental cruelty in matrimonial matters. The concept of cruelty differs
from person to person depending upon upbringing, sensitivity, education, family, cultural background, f inancial positions, social
status, customs, traditions, religious beliefs, and values.
4. Cruelty in matrimonial cases may be of infinite variety. It may be subtle or even brutal, and maybe by gestures or words.
5. persistent and inordinate sexual demands or malpractices by either spouse Can be cruelty if it injures the other spouse.
6. The relief is not restricted to wives. A wife may also be guilty of cruelty towards husband.
7. The expression has an inseparable Nexus with human conduct and human behavior. It is always dependent upon the social strata
are the milieu to which the parties belong, their way of life, the relationship, the temperament and emotion that have been
conditioned by their social status.
8. Staying together under the same roof is not a precondition for mental cruelty. Either spouse can cause mental cruelty to the other
spouse even while living separately.
9. Instances of cruelty are not to be taken in isolation, but the court has to take the cumulative effect of the fax and the
circumstances emerging from the evidence on records.
10. Serious instances of mental cruelty cannot be regarded as ordinary "wear and tear" of married life so as to deny a decree of
divorce.
11. Denial of sexual intercourse by a wife for a long time without sufficient reason amounts to mental cruelty.
13(1)(ib)Desertion
Act says that desertion of either spouse by
t he ot he r spouse will be a ground for
divorce. In the former's hands.it must,
however have listed for continuous period
of 2 years filing of petition for divorce.
"The e xplanat ion at t he e nd of
section 13 clarifies that, The the expression
desertion means the desertion of the
petitioner by the other party to the marriage
without re asonable cause and
without consent, are against the wish of
such party, and includes the willful neglect
of the petitioner by the other party to the
marriage, and its grammatical variation
and cognate expression shall be construed.
Accordingly".
The Supreme Court in Savitri Pandey versus Prem Chandra
Pandey, while explaining the concept of desertion for the purpose
of this act, observed:
" Desertion" for the purpose of seeking divorce under the
Act means that intentional permanent forsaking and
abandonment of one spouse by another without that
others consent and without reasonable cost. In other
words, it is total repudiation of the obligation of marriage.
Desertion is not withdrawn from a place, but from the state of
things. Dissertation means withdrawing f r o m
matrimonial obligations not permitting or allowing a n d
facilitating cohabitation between the parties. The proof of
desertion has to be considered by taking into con s i d e r a t i on
the concept of marriage. Which in law l e g a l i z e s t h e s e x u a l
relationship between the man and woman in the society for
the perpetuation of race, permitting lawful indulgence in
passion to prevent Licentiousness and for propagation of
children. Desertion is not a single act, its complete in
itself. It is a continuous course of conduct to determine the
facts and circumstance of each case”.
Change of religion
unde r se ct ion 13(1)(ii), If e it he r spouse
converts to a religion whose followers are
outside the ambit of the act the other spouse
can seek divorce on this ground. Changing
from one to another religion among the 4
religions whose followers are governed by the
act will not amount to conversion for this
purpose. So, if the Hindu husband becomes
Buddhist or the Hindu wife becomes Sikh. This
will be no grounds for seeking a divorce, but if
either of them becomes a Christian or Muslim,
this will be a case of conversion and hints a
grounds for divorce.
13 (1) (iii) Mental abnormality
has been incurably of unsound mind, or has been
suffering continuously or intermittently from a mental
disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with
the respondent.
E xp l an ati o n .— In thi s cl aus e, — ( a) the
expression “mental disorder” means mental
illness, arrested or incomplete development
of mind, psychopathic disorder, or any other
disorder or disability of mind and includes
schi zop hren i a; ( b ) the exp ressi on
“psychopathic disorder” means a persistent
disorder or disability of mind (whether or
not including sub—normality of intelligence)
which results in abnormally aggressive or
seriously irresponsible conduct on the part
o f the o ther p arty, an d whether o r n o t i t
req ui res o r i s s us c ep ti b l e to m ed i c al
treatment; “
13(1)(iv)-leprosy not a divorce
ground(omitted)

13(1)(v):venereal disease
Under section 13(1)(v) communicable venereal
diseases from which either spouse may be suffering
will be a ground for divorce in the hands of the other
spouse . The incurabilit y of t he dise ase is not
mentioned in this provision as a condition for its
application.
infection Human Immune Def iciency virus (HIV)
leading to acute immunodef iciency symptoms is
cov e re d by grounds of divorce in se ct ion
13(1)(v)(Sunil Lakhotia vs Pratima Lakhotia)
Taking Sanyas:
Section 13(1)(vi) Says that if either
spouse enters into a holy religious order
so as to completely and f inally renounce
the worldly life. The other spouse can
seek a divorce on this ground. This
provision is meant for those cases in
which a married man or woman may
become a hermit or acetic. The Hindu
and Minority and Guardianship Act uses
in this context the Hindi expression
vanaprastha, Yati, and sanyasi..
Disappearance:
Section 13(1)(vi) of the act says that if a
spouse has been missing for 7 or more years
and his or her whereabouts have not been
known to relatives and friends etc throughout
this period other spouse can seek a divorce on
this ground. The duration of disappearance
m ent ioned here corresponds to a sim ilar
provision inIndian Evidence Act of 1872.
Special grounds for wives:
Old bigamy cases:
Section 13(2) of the Act provides some
additional grounds on which a wife can
seek a divorce from her husband. When the
Act was enforced in 1955, strictly
prohibiting bigamy, it was considered
proper and just to give relief also to the
plural wives in the marriages that were then
intact.
Hence Section 13(2)(i) had empowered
them to seek a divorce on the grounds of
the existence of a Co-wife. Now, after 65
years this provision is no use.
Undesirable sexual acts:
Married women indulge in undesirable sexual acts in
rape, sodomy, or bestiality, His wife can seek a divorce
on the ground under section 13(2)(ii) of the act.
Under the IPC, the offenses are dealt with in Sections
375 to 377, which have been the subject of legislative
and judicial reforms in recent years.
The def in ition of rape under the code has now been
largely extended by legislation, and consensual
homosexuality has been decriminalized by the courts.
The im pact of t he se de ve lopm e nt s and t he
interpretation of this provision of the Hindu Marriage
Act is yet to be seen.
Separate maintenance case:
A married woman living separately
from her husband who has obtained
the relief of separate maintenance
under the Hindu Adoption and
Maintenance Act of 1956 Or can seek
a divorce under section 13(2)(iii) if
cohabitation between the parties is
not resumed after one year or more
from the date of the decree or order
providing such relief.
The Supreme Court has clarif ied that
granting or refusing the divorce in
such a case is at the discretion of the
Court.
Girls married during minority:
A girl who was married while she was below
the age of 15 years can, before attaining the
age of 18 years, seek a dissolution of her
m arriage by a de cre e of divorce unde r
section 13(2)(iv) of the Act- even if she has
joined her husband.
A better relief in this regard is provided by
the Prohibition of Child Marriage Act, 2006,
under which she can seek annulment of
marriage until she completes the age of 20
years.
13A. Alternate relief in divorce proceedings:
Under section 13 of the Act added in 1976, where either
spouse had f iled a petition for the divorce, the court may, if it
considered doing so just in the circumstance of the case
instead of pass a decree of judicial separation, which initially
would not dissolve the marriage. This is apparently meant to
give the spouses a chance to save their marriage. However,
the court cannot grant judicial separation if divorce has been
sought on the ground of cruelty, conversion, or sannyasi.
In Prabhakar versus Sathyabama, it was held that Section 13-
A envisages that even where a ground for divorce is made,
the court made it at its discretion to grant judicial separation
instead of divorce. This section cannot be interpreted that
where a ground for divorce is not established, it may grant a
judicial separation.
The reason against this interpretation is that Then every petition for divorce would end up in the grant
of either divorce or judicial separation. There would be no occasion to dismiss the petition for divorce
both where both the parties failed to make out a case of divorce against each other.
Judicial separation may be granted as a middle course to give the parties time to ponder reconciliation.
Trupti das versus Ravindranath Mahapatra, it was held that the court cannot grant judicial separation in
a petition for divorce Su moto in this case. High Court is an appeal granted decree for judicial
separation. Su moto no case was f iled for this. Supreme Court held that the High Court was not
justified in granting a decree for judicial separation.
This section puts certain conditions on the quote to exercise its discretionary power.
1. There must be a petition for divorce before the court
2. The court must formulate an opinion that it is just to grant a judicial separation in instead of a decree
for divorce.
3. The court must come to this opinion on the grounds of the circumstances of the case.
And what may be such circumstances?
1. The disability of the respondent.
2. Wrong done by him to the petitioner.
3. Names of reconciliation between the parties.
13-B Divorce by Mutual Consent
Prescribed procedure:
Section 13 –B of the Act, also added in 1976, provides for divorce by mutual consent of the
spouses in failed marriages. In such cases, neither the spouses nor the spouses need to
plead a specif ic ground for divorce nor can the court ask them to give the reasons for their
decision to break off. They have only to Jointly approach the court and make averments
that they have.
1. Living separately for at least one year;
2. Not being able to live together and;
3. Mutually decided to put an end to the marriage;
And receiving a petition for divorce by mutual consent The court will give them at least 6
months time from the date of f iling this petition to reconsider their decision. In common
parlance, this is known as “the cooling of the period”.Six months from the date Of their
petition earliest chance for them to return to the court and get the relief they asked for
f inally making of their mind. They can take more time, but no longer than 18 months from
the date of their f ir st appearance in the court. Spouses will be free to withdraw their
petition seeking consent for divorce before their second appearance in the court to press
the relief they have asked.
The spouses return to the cour t within the
specif ie d time to ask for the desired relief. The
court will hear them and satisfy itself of the fact
of their marriage and the veracity of their
ave rm e nt s, pass a de cre e of divorce , and
dissolve their marriage from the date of degree.
F r e e c o n s e n t o f b o t h p a r t i e s ( S
-23(1)(bb)(Mohinder Singh vs Jaswinder Kaur-
forced consent)
With drawl of consent
15. Remarriage after Divorce
As we have a hierarchy of courts in which appeal after appeal can be made to the next
higher court, a decree of divorce will obviously dissolve the marriage when it becomes final,
leaving no room for review by any court And before that the parties cannot be allowed to
marry someone else.
To clarify this legal position, Section 15 of the Hindu Marriage Act says that either party to a
marriage dissolved by a decree of divorce will be free to marry elsewhere as provided
below:
1. If in a law there is no right to appeal against the divorce decree passed under the Act, the
parties can remarry whenever they so want.
2. If there is a right to appeal, the parties have to wait until the expiry of the limitation
period prescribed for f iling an appeal- 90 days from the date of the decree- and if no appeal
is filed within that period, they will be free to remarry.
3. If an appeal has been f iled and dismissed by the appellate court, the parties will be free
to remarry without waiting further.
S.19-Procedures of Divorce:
The court where the divorce petition shall be filed should be presented is specified in
Section 19 of the Hindu Marriage Act of 1955. It further emphasizes the requirement that
every petition filed under this Act be filed with the district court within the geographic
boundaries of the original ordinary civil jurisdiction. As a result, the petition may be
submitted in:
The place of the wedding ceremony.
The place where the respondent was residing at the time the petition was filed.
The place of the couple's previous shared residence.
the most recent address of the petitioner's wife.
If the respondent is residing at a place that is outside territorial limits to which the act
extends or not had been heard of being alive for a period of 7 years, then the petitioner
could file a petition depending upon the places where he or she is presently residing.