Marriage under the Hindu Marriage Act, 1955

 Applicable act is Hindu Marriage Act, 1955: enactment 25 of the year 1955 – came into force on 18 th May 1955

 Applies to all Hindus, Buddhists, Jains and Sikhs – Also applicable to anyone who is not Muslim, Christian, Parsi or Jew

 The Hindu code was drafted by the Rau committee and introduced in the legislative assembly in 1947 and referred to

special committee in 1948, however, due to the dissolution of legislative committee, it could not be passed

 Right to marry is a component of the right to life under article 21 of the constitution of India – ‘no person shall be

deprived of his life or personal liberty except according to the procedure established by the law’

 Also backed by the article 16 of universal declaration of human rights 1948


Marriage under the Hindu Marriage Act, 1955
BACKGROUND

 The underpin of a society is found in a family and marriage or rather legally recognized marriage is required to constitute

a family which further, through mutual interdependence and relationships, constitute a society

 In the global context, article 16 of the Universal declaration of human rights 1948 bestows upon two persons of legal

age, a right to marry and constitute a family. This view is seconded by the honourable supreme court of India in Lata

Singh vs. State of Uttar Pradesh 2006 that in a free and democratic country, nobody has a right to deter two individuals

(male and female, though same sex marriage has been legalized in the country by repealing of Article 377 of Indian

Penal Code) of legal age from getting married and constituting a family together. Though earlier verdicts in Mr. X vs.

Hospital Z 1999 stated that this right is not absolute, the later verdicts grant this right upon due privity of both the

parties involved
Conditions for marriage under Hindu Law
CONDITIONS to be fulfilled (section 5, Hindu Marriage Act 1955)

i. None of the parties has a living spouse at the time of marriage

ii. a) None of the parties is incapable of giving consent due to unsoundness of mind, b) or if capable of giving consent but

is suffering from mental disorder which makes them unfit for marriage or procreation, or c) has been subject to

recurrent attacks of insanity

iii. Bridegroom has completed 21 years of age and the bride has attained 18 years of age

iv. The parties are not within the degrees of prohibited relationship unless the custom governing each of them permits the

marriage - the parties are not SAPINDAS of each other, unless the custom governing them permits the marriage
Conditions for solemnization of marriage under
Hindu Law
CONDITIONS FOR SOLEMNIZATION OF MARRIAGE (section 7, Hindu Marriage Act 1955)

1. A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party

2. Where such ceremonies include ‘Saptapadi’ (taking of seven steps jointly before the sacred fire), the marriage becomes

complete and binding when the seventh step is taken – it is not necessary to prove the completion of Saptapadi or any

other particular ceremony to determine the validity of a hindu marriage – a hindu marriage is presumed to be duly

completed if it is shown that the performance of some of the ceremonies usually observed on the occasion of marriage

have taken place – Bai vs. Moti

 Kanyadan is not the essential ceremony – Shanta Devi vs. Ramlal Agarwal
Conditions for solemnization of marriage under
Hindu Law
CONDITIONS FOR SOLEMNIZATION OF MARRIAGE (section 7, Hindu Marriage Act 1955) (J.K. Kamath vs. K.P. Kamath 1992)

 Both the parties have to be Hindus – if a non-hindu converts to Hinduism before marriage and there are facts and

circumstances to indicate the same, the plea of absence of proof of conversion or shudhikaran cannot be raised to seek

declaration of nullity of marriage on the ground that one party was non-hindu – Madhavi Ramesh Dudani vs. Ramesh

Dudani
Special Marriage Act 1954
 Enactment 43 of the year 1954

 Came into enforcement on 9th October 1954

Conditions for Solemnization of Marriage

 Section 4 of Special Marriage Act 1954 stipulates the conditions for solemnization of marriage under this act

 All subsections are same as Hindu Law except for subsection 4 which does not talk about ‘Sapinda’

 Also, subsection 5 talks about solemnization in the state of Jammu & Kashmir when both parties are citizens of India

domiciled in the territories to which this act extends

Matrimonial relief
Grounds for Divorce
 The word divorce comes from Latin word ‘Divortium’, which means to turn aside; to separate – it means the legal

cessation of a matrimonial bond

 The grounds provided for divorce are more or less the same in all personal acts governing the institution of marriage,

though Muslim laws are vastly different on the same

 Grounds include adultery, cruelty, desertion, religious conversion, insanity, virulent and incurable leprosy, venereal

communicable disease, renouncement, or civil absence for a period of 7 years

Special Marriage Act 1954
Grounds for Divorce under Special Marriage Act 1954, Section 27 (1)
Subject to the provisions and rules of this act, a petition for divorce may be presented to district court by either party on

the following grounds that the respondent:

a) has voluntary sexual intercourse with any person other than the spouse after the solemnization of marriage

b) Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation

of the petition

c) Is undergoing a sentence of imprisonment of seven years or more for an offence defined in IPC

d) Has treated the petitioner with cruelty since the solemnization of marriage

e) Has been incurably of unsound mind, or has been suffering continuously/intermittently from mental disorder of such a

kind and extent that the petitioner cannot reasonably be expected to live with the respondent
Special Marriage Act 1954
Grounds for Divorce under Special Marriage Act 1954, Section 27 (1)
f) Has been suffering from venereal disease in a communicable form

g) Has been suffering from leprosy, when the disease is not contracted from the petitioner

h) Has not been heard of as alive for a period of seven years or more by those persons who would naturally have heard of

the respondent if s/he was alive

Special Marriage Act 1954
Grounds for Divorce under Special Marriage Act 1954, Section 27 (1A)
A wife may also present a petition to the district court on the ground:

i) That husband has been guilty of rape, sodomy, or bestiality

ii) That a suit has been passed against the husband (under adoptions act or code of criminal procedure) awarding

maintenance to the wife notwithstanding that she was living apart and since that order, no cohabitation has been

resumed for over one year

Special Marriage Act 1954
Grounds for Divorce under Special Marriage Act 1954, Section 27 (2)
Whether solemnized before or after the commencement of Special Marriage (Amendment) Act 1970

i) There has been no resumption of cohabitation for a period of over one year after the decree of judicial separation

ii) No restitution of conjugal rights for over one year after passing of a decree of restitution of conjugal rights

Divorce by Mutual Consent under Special Marriage Act 1954, Section 28 (1)
iii) If the parties are living separately for a period of over one year and have not been able to live together and they have

mutually agreed that the marriage should be dissolved

Restrictions on petitions for Divorce during first one year after marriage, Section 29

iv) No petition for divorce shall be presented to the district court within the first year of marriage, unless in the case of
Adoption under Hindu Law
 Applicable act is The Hindu Adoption and Maintenance Act 1956

 Enactment 78 of the year 1956

 Came into force on 21st December 1956

 Applicable on Hindus, Sikhs, Jains and Buddhists

 Adoption is covered in Chapter II, section 6

Adoption under Hindu Law
Section 6 – Requisites of a valid adoption

No adoption shall be valid, unless:

i. The person adopting has the right, and also the capacity, to take in adoption

ii. The person giving in adoption has the capacity to do so

iii. The person adopted is capable of being taken in adoption

iv. The adoption is made in compliance with other conditions mentioned in this chapter
Adoption under Hindu Law
Section 7 – Capacity of a male hindu to take in adoption

A hindu male who is of sound mind and legal age has the capacity to adopt a son or a daughter with the consent of his

wife/wives, unless the wife is declared to be of unsound mind, renounced the world, or has ceased to be a hindu

Section 8 – Capacity of a female hindu to take in adoption

A hindu female who is of sound mind and legal age has the capacity to adopt a son or a daughter if she is not married,

whose marriage has been dissolved, whose husband is dead, whose husband has renounced the world, whose husband is

ceased to be a hindu, or whose husband has been declared of unsound mind

Adoption under Hindu Law
Section 9 – Persons capable of giving in adoption

1. No person, except for the father, mother, (not adoptive father or mother) or guardian of the child shall have the

capacity to give in adoption

2. Father, if alive, shall alone have the right to give in adoption with the consent of the wife, unless the wife is dead, is of

unsound mind, renounced the world or ceased to be a Hindu

3. Mother may give in adoption if father is dead, of unsound mind, ceased to be hindu, or has renounced the world

4. When both father and mother are dead, renounced the world, or have abandoned the child; the legal guardian shall

have such right with the previous permission of the court

5. Court (civil or district) shall be satisfied that such adoption is in the welfare of the child, taking due consideration of

his/her wishes and age and no quid pro quo shall be involved in the adoption
Adoption under Hindu Law
Section 10 – Persons who may be adopted

No person shall be capable of being taken into adoption, unless:

i. He or she is a Hindu

ii. He or she is not already adopted

iii. He or she is not married, unless there is a custom that such adoption after marriage is permitted

iv. He or she has not completed age of 15 years, unless the custom permits so
Adoption under Hindu Law
Section 11 – Other conditions for a valid adoption

i. If a son is adopted, the adoptive father or mother shall not have a living Hindu son, son’s son, or son’s son’s son at the

time of adoption (whether by legitimate blood relationship or adoption)

ii. If a daugher is adopted, the adoptive father or mother shall not have a living Hindu daughter or son’s daughter at the

time of adoption (whether by legitimate blood relationship or adoption)

iii. If the adoption is of a daughter by a male, there should be atleast 21 years of age difference, i.e., the adopting father

should be atleast 21 years older than the adoptive daughter

iv. If the adoption is of a son by a female, there should be atleast 21 years of age difference i.e., the adopting mother

should be atleast 21 years older than the adoptive son

v. Same child may not be adopted simultaneously by two or more persons

Adoption under Hindu Law
Section 11 – Other conditions for a valid adoption

vi) The child given in adoption must actually be given and taken in adoption by parents/guardian with intent to transfer the

child from the family of birth – in case of abandoned child, from the place or family where it has been brought up to the

family of its adoption – Datta Homam, ceremony of burning purified butter in fire, shall not be necessary for the validity of

adoption