FAMILY LAW 1

Hindu Marriage Act

Topics covered
◦ Origins and sources of Hindu law
◦ Extra-territorial application of the HMA & domicile
◦ S. 5- Conditions of the validity of marriage
◦ (S. 11) Void, Voidability
◦ Who can marry under the act (gender, religion)
◦ Bigamy- Constitutional validity
Ancient Sources of Hindu Law
Shruti
◦ Word of God or divine utterances
◦ Vedas & Upanishads
◦ Smriti
◦ That which is remembered by the Rishis and passed down from generation to generation.
◦ Eg- Dharmashastras, Manusmritis
◦ Contains rules of morality, religion, ethics
◦ Didn’t make a distinction between law and morality or religious and secular principles
◦ Customs or Sadachara
◦ Local, familial, community customs
◦ Lot of variation
◦ Commentaries
◦ Nibandhas- meant to interpret the Smritis
These sources were categorized by fluidity in interpretation.
Schools of Hindu Law
◦ Mitakshara

◦ Running commentary on the code of Yajnavalkya, written by Vigyaneshwara (11th Century) and
prevails in all parts of India as a Supreme authority except in Assam and Bengal.

◦ Dayabhaga

◦ The Dayabaga School which is followed mainly in Bengal, is not a commentary on any particular
code, but is a digest of all the codes and written by Jimutavahana in 12th Century.
Differences b/w Dayabhaga &
Mitakshara
Key Difference

◦ Inheritance: In the Mitakshara system, the right in the family property is acquired by birth by the male
member of the family. In Dayabhaga, property rights is acquired not at birth, but only through inheritance
or will after the death of the father. No communal rights over property.
How and when did this start to change?
◦ With the advent of colonial rule, courts began to be set up (Presidency courts in Bombay, Calcutta, Madras)
◦ These courts followed an adversarial system.
◦ For harmonious rule, they wanted each community to be governed by their own system of laws. Hence
‘personal’ laws began to be solidified into a concrete body of law. This created an impetus for
homogenization.
◦ Judges did not trust local pandits and qazis who gave contradictory interpretations of customs and texts.
◦ Therefore, European scholars began translating scriptural texts. These texts were preferred over the work of Sanskrit
scholars themselves and were used while adjudicating decisions. Scriptural texts were granted greater recognition
over customs
◦ Principle of stare decisis brought rigidity to the interpretation of local customs that had always been varied and
flexible.
◦ Justice, Equity and Good Conscience- Where the Scripts were silent or no relevant custom could be proved, the
courts relied on this English Principle.
 “In their attempt to make Shastric injunctions precise and definite to suit the structure of the Anglicised
adversarial court system, the British forced it towards a straight jacket mold which led to a loss of
complexities and localized contexts. This also promised the scope for the biases of the English scholars to
creep through into translated texts.”
◦ - Flavia Agnes
Modern Sources of Hindu Law
◦ Legislation

◦ Hindu Marriage Act, 1955

◦ Hindu Succession Act, 1956
◦ Hindu Minority and Guardianship Act, 1956
◦ Hindu Adoptions and Maintenance Act, 1956

◦ Judicial Interpretation
Opposition to the Hindu Code Bill
Who is a ‘Hindu’?
◦ 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 Brahmo, Prarthana 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 this Act extends 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 herein if this Act had not
been passed.
Where does the HMA Apply
◦ 1. Short title and extent.—(1) This Act may be called the Hindu Marriage Act, 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.

◦ Laws made by one country, in general cannot have application in another country because of the principle of state
sovereignty.
◦ Where laws have extra-territorial application, there has to be some nexus or link with India. This link is made by
the word “domiciled” in India u/s 1(2).
◦ But what does ‘domiciled in India’ mean for those settled abroad?
Sondur Gopal v. Sondur Rajini
◦ Supreme Court, 2013

◦ Issue: Wife filed for Judicial Separation u/s 10, HMA in a Mumbai Family Court. Husband challenges
maintainability based on domicile. Maintainability of petition.

◦ What is the scope of extra-territorial application of the law and what constitutes change in domicile?
Factual Timeline
Husband Wife
finds informs
another husband of
Husband job in her
loses job Sydney. decision
Acquired in 2002. Family not to
Married in Swedish Moved to Family visits him return to
Bangalore Citizenshi Sydney in leaves on a Sydney in
1989 p in 1997 1999 Sydney tourist visa Jan 2004

Moved to Moved to Husband Family Wife and

Stockholm Mumbai disposes stays in kids go
and bought (97-99) off Stockholm back to
a house in Swedish till Mumbai in
1993 House in Dec,2002 Dec 2003
2000
Types of Domicile

Domicile of Origin

Domicile of Choice

Domicile by Law
Contentions before the Courts
◦ Husband’s Contention:

◦ Family Court: They are citizens of Sweden presently domiciled in Australia which is their domicile of choice. Having
abandoned their domicile of origin, the jurisdiction of the Family Court is barred u/s 1(2) of the HMA.
◦ Supreme Court: If the court did not accept their claim towards Australian domicile, in any case, they were Swedish
citizens with Swedish domicile and therefore, even in that case, the jurisdiction of Indian courts would be barred.

◦ Wife’s Contention:
◦ Family Court: Domicile of Origin (India) was never given up or abandoned, even though they acquired citizenship of
Sweden and moved to Australia. Further, even if she had the domicile of Sweden, that was abandoned when she moved
to Australia and the domicile of origin, got revived.
◦ Supreme Court: The husband’s specific case was that he was a Swedish citizen of Australian domicile. Cannot be
allowed to contend Swedish domicile at this stage
Orders Passed
• Agreed with the husband. Getting the citizenship of Sweden indicates the giving up of Indian domicile or domicile of origin.
Family • Therefore, petition not maintainable.
Court

• Husband did not prove conclusively that he intended to abandon his domicile of origin
• Agreed with the wife saying that even assuming he did, once the family shifted to Australia, he abandoned his domicile of Sweden, and in this
High Court, way, domicile of India got revived.
Bombay

• Domicile of origin prevails until not only another domicile is acquired, but additionally, a clear intention of abandoning the domicile of origin
must be proved.
• Husband’s argument was that he was domiciled in Australia. So had to prove that. Couldn’t rely on an alternative plea that if that failed, he was
Supreme in any case domiciled in Sweden. He did not claim to be governed by Swedish law or courts.
Court • His proof of Australian domicile (tenancy agreement (18 months), school enrolment, filing for PR status) was insufficient.
Excerpts from Sondur Gopal
◦ On scope of S 1(2), HMA-

◦ “Section 1(2) of the Act has an extra-territorial operation in as much as it lays down, the Act, “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“; a law which has extra territorial operation
cannot directly be enforced in another State but such a law is not invalid and is saved by Article 245(2) of the
Constitution; it does not mean, that a law having extra-territorial operation, which has no nexus at all with
India, can be enacted; if the Act were to apply to Hindus irrespective of their domicile – extra-territorial
operation of the Act would be extended all over the world without any nexus to India; it is inconceivable, a
law should be made by Parliament which has no relationship to India; therefore, the Act will only apply to
Hindus outside the territory of India only if such a Hindu is domiciled in the territory of India; any other
interpretation would render the word ‘domicile’ in the provision redundant and Legislature ordinarily does not
waste its words is an accepted principle of interpretation”
When can domicile be changed?

◦ “Domicile of origin is not necessarily the place of birth. The birth of a child at a place during temporary
absence of the parents from their domicile will not make the place of birth as the domicile of the child.
In domicile of choice one is abandoned and another domicile is acquired but for that, the acquisition of
another domicile is not sufficient. Domicile of origin prevails until not only another domicile is acquired
but it must manifest intention of abandoning the domicile of origin.
◦ “The right to change the domicile of birth is available to any person not legally dependant and such a
person can acquire domicile of choice. It is done by residing in the country of choice with intention of
continuing to reside there indefinitely. Unless proved, there is presumption against the change of
domicile. Therefore, the person who alleges it has to prove that. Intention is always lodged in the mind,
which can be inferred from any act, event or circumstance in the life of such person. Residence, for a
long period, is an evidence of such an intention so also the change of nationality.”
Why did the plea that Australia was the domicile of choice, fail?

◦ “In the aforesaid background, when we consider the husband’s claim of being domicile of Australia we find
no material to endorse this plea. The residential tenancy agreement is only for 18 months which cannot be
termed for a long period. Admittedly, the husband or for that matter, the wife and the children have not
acquired the Australian citizenship. In the absence thereof, it is difficult to accept that they intended to reside
permanently in Australia. The claim that the husband desired to permanently reside in Australia, in the face
of the material available, can only be termed as a dream. It does not establish his intention to reside there
permanently. Husband has admitted that his visa was nothing but a “long term permit” and “not a domicile
document”. Not only this, there is no whisper at all as to how and in what manner the husband had
abandoned the domicile of origin. In the face of it, we find it difficult to accept the case of the husband that
he is domiciled in Australia and he shall continue to be the domicile of origin i.e. India. In view of our
answer that the husband is a domicile of India, the question that the wife shall follow the domicile of
husband is rendered academic.”
Jurisdiction
◦ 19 Court to which petition shall be presented. —Every petition under this Act shall be presented to the
district court within the local limits of whose ordinary original civil jurisdiction—
◦ (i) the marriage was solemnised, or
◦ (ii) the respondent, at the time of the presentation of the petition, resides, or
◦ (iii) the parties to the marriage last resided together, or
◦  [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the
41

petition, or]
◦ (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the
respondent is, at that time, residing outside the territories to which this Act extends, or has not been
heard of as being alive for a period of seven years or more by those persons who would naturally have
heard of him if he were alive.]
Wife not bound by the domicile of
husband
◦ Wife is not bound by husband’s domicile anymore (Karan Goel v. Kanika Goel, Delhi HC, 2020)
◦ “Read together (S. 1, S. 2 and S. 19) contemplates a situation where even if the wife is domiciled in India and
the husband is not, remedies under the the HMA can be availed by the wife.”
◦ Section 19(iii)(a) was added by a 2003 amendment to the HMA in order to prevent hardship in cases
where one party is domiciled elsewhere.
Conditions of Marriage
◦ 5. Conditions for a Hindu marriage.—A marriage may be solemnized between any two Hindus, if the following
conditions are fulfilled, namely:—
◦ (i) neither party has a spouse living at the time of the marriage;
◦ (ii) at the time of the marriage, neither party—
◦ (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
◦ (b) though capable of giving a valid consent, 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; or
◦ (c) has been subject to recurrent attacks of insanity 1***;]
◦ (iii) the bridegroom has completed the age of 2 [twenty-one years] and the bride, the age of 3[eighteen years] at the time of
the marriage;
◦ (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them
permits of a marriage between the two;
◦ (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage
between the two;
Void and Voidability

◦ Section 11- Void marriages (S 5(i), (iv) and (v))

◦ Section 12- Voidable Marriages (S. 5(ii); marriage not been consummated owing to the impotence of the
respondent; consent obtained by fraud; respondent at the time of marriage was pregnant by another
person.)
Who Can Marry Who?
◦ “An Act to amend and codify the law relating to marriage among Hindus”- Preamble

◦ 5. Conditions for a Hindu marriage.—A marriage may be solemnized between any two Hindus, if….

- Is it necessary that both parties have to be Hindu?

Gullipilli Sowria v. Bandaru Pavani, SC
2005
◦ Issue: Is marriage between a Hindu and a Christian valid under the HMA?
◦ Facts: Woman married man thinking him to be Hindu. Misrepresentation on part of the husband. Wife filed for
the declaration of nullity of marriage u/s 12(c) of the HMA.
Husband’s Contention:
- A hindu may marry a non-hindu under the HMA because use of the word ‘may’ in S.5 indicates that the
condition is not mandatory and binding. Further, s. 11 which specifies what would be a void marriage, does not
require both parties to be hindu. S. 11 would therefore override S. 5. At best, marriage could be voidable.
Wife’s Contention:
Looking at the Preamble of the act, there is no doubt that it was meant to apply only to Hindus. Therefore, Sec 5
conditions are mandatory in nature. Who a hindu is defined by S. 2 which specifically excludes Christians+ fraud
 • Petition filed by wife dismissed
Family
Court

• Wife appealed.
High Court
• Allowed appeal saying that the marriage was void ab initio

• Preamble signals the intent of the act

• ‘May’ in S.5 does not make the provision optional. The requirement of both parties to be Hindu is
Supreme mandatory and non-fulfilment of the same would lead to annulment of marriage.
Court • Registration u/s 8 did not validate the marriage.
• Marriage was therefore invalid and void under HMA
Arunkumar & Srija v. Inspector General
of Registration, Madras HC, 2019

◦ Issue: Is marriage between a transgender woman and cis-man valid?

◦ Facts: Arunkumar (Cis-man) got married to Srija (transgender woman) at a temple in Tuticorin as per all
the local hindu rites and customs. While trying to get their marriage registered under R. 5(1) of the
Tamil Nadu Registration of Marriage Rules, the registrar refused to. The couple challenged this refusal.
Contentions of State
◦ Sec 7 of the TN Registration of Marriages Act, 2009 gives the power to the Registrar to refuse
registration of marriages in case it is not performed as per the the personal law of the parties, custom and
usage.
◦ ‘Bride’ as per the Oxford Dictionary means a ‘woman on her wedding day’. Srija is a transgender
and not a woman. Her Aadhar card reflected that Srija was transgender.
◦ Ruling of the Madras HC

◦ Transgender persons under NALSA v. UOI have the right to self-determine their gender identity as male,
female or third gender.
◦ Read this right under the ambit of Art 14 (equality), Article 15, 16 (discrimination on the basis of sex) 19(1)(a)
(freedom of speech and expression) and 21(right to life).
◦ So any transgender or intersex person who perceives herself as a woman can get married under the HMA. No need
for surgery to prove her gender.
◦ The term ‘bride’ u/s 5, HMA cannot have a static, immutable meaning.
◦ Right to of the Constitution of India ( Shafin Jahan v. Union of India) marry a person of one’s choice is
integral to Article 21
Other questions to think about:
◦ Will non-binary persons be recognized under the definition of bride and bridegroom?
◦ What about nullity on grounds of impotence and non-consummation?
◦ Smt Surabhi Trivedi v. Gaurav Trivedi (Misc Petition No. 4820 of 2018)

8. This Court is of the considered opinion that if any evidence having a nexus with the lis between the parties, should be allowed
to be produced. In a matrimonial dispute, if gender of one of the parties is questioned by the other party, it assumes importance
and the party raising such issue also has a right to adduce the evidence in this behalf and the other party, to rebut the same. This
Court is conscious of the fact that one's sex/gender is one's own business, but when it comes to marriage, the other partner's
rights are also closely attached with the same, as it assumes importance to maintain a healthy and peaceful married life, and
since he or she also has a fundamental right to life under Article 21 of the Constitution of India, the rights of both the parties are
evened out. In such circumstances, the plea of violation of privacy or any fundamental right is not tenable.

Should Arunkumar &Srija v. Inspector General of Registration, addressed this?

How does the 2019 Trans Rights Act
change this?
◦ S. 5. A transgender person may make an application to the District Magistrate for issuing a certificate of
identity as a transgender person, in such form and manner, and accompanied with such documents, as may be
prescribed:
◦ Provided that in the case of a minor child, such application shall be made by a parent or guardian of such child.
◦ R.4. Procedure for issue of certificate of identity under section 6:
(1) The District Magistrate shall based on the application, the affidavit and the report of a psychologist of a hospital of
appropriate Government attached therewith, verify the correctness of the said report of psychologist and the place of
residence of the applicant, but without any medical examination, except for issue of certificate of identity under Section 7
of the Act, the procedure for which is prescribed in rule 6.
◦ R.6. Procedure for issue of certificate of identity for change of gender under section 7:
◦ (1) If a transgender person undergoes surgery to change gender either as a male or female, such a person may apply in
the form – 1 of these rules, along with a certificate issued to that effect by the Medical Superintendent or Chief
Medical Officer of the medical institution in which that person has undergone the said surgery, to the District Magistrate
for issue of a revised certificate of identity under section 7.
 Monogamy as a Condition of Marriage
5. Conditions for a Hindu marriage.—A marriage may be solemnized between any two Hindus, if the
following conditions are fulfilled, namely:—
◦ (i) neither party has a spouse living at the time of the marriage;

◦ 11. Void marriages.—Any marriage solemnised after the commencement of this Act shall be null and
void and may, on a petition presented by either party thereto 2[against the other party], be so declared by
a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of
section 5.
◦ 17. Punishment of bigamy.—Any marriage between two Hindus solemnized after the commencement
of this Act is void if at the date of such marriage either party had a husband or wife living; and the
provisions of sections 494 and 495 of the Indian Penal Code, 1860 (45 of 1860), shall apply accordingly.
494, 495 Indian Penal Code, 1860
◦ 494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in
any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall
be punished with imprisonment of either description for a term which may extend to seven years, and shall also be
liable to fine.
◦ (Exception) —This section does not extend to any person whose marriage with such husband or wife has been declared void by a
Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such
husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of
seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such
subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the
real state of facts so far as the same are within his or her knowledge.

◦ 495. Same offence with concealment of former marriage from person with whom subsequent marriage is
contracted.—Whoever commits the offence defined in the last preceding section having concealed from the person
with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprison­
ment of either description for a term which may extend to ten years, and shall also be liable to fine.
Ingredients of the offence
◦ For an offence of bigamy u/s494 to have been committed the following ingredients are required

◦ (i) the accused must have contracted first marriage

◦ (ii) he/she must have married again
◦ (iii) the first marriage must be subsisting (that is no divorce has taken place)
◦ (iv) the first spouse must be living
◦ For an offence u/495, ingredients of the offence are
◦ All of the above
◦ Active concealment of first marriage from the second spouse.

Bailable, non-cognizable, compoundable offence.

Ram Prasad v. State of UP, All HC 1961
◦ Issue: Whether prohibition of bigamy amongst Hindus goes against freedom of religion granted by
Article 25
◦ Facts: Wife unable to bare son and had miscarriages. Husband, a govt employee, believed that according
to Hindu Dharmshastras salvation was not possible without a son and therefore, decided to marry a
second wife in the hope that he will be able to get a son by her. The wife initially consented but later
changed her mind. Rule 27 of the Government Servants' Conduct Rules prohibited an employee from
committing bigamy without the govt’s permission. Husband submitted applications to the State
Government requesting permission to take a second wife. By that time the Hindu Marriage Act had come
into force which prohibited a second marriage during the life time of the first wife. Hence, application
rejected.
◦ Prayer: Declare Rule 27 and anti-bigamy provisions in the HMA as unconstitutional.
Article 25, Indian Constitution
◦ 25. Freedom of conscience and free profession, practice and propagation of religion

◦ (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are
equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
◦ (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making
any law
◦ (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with
religious practice;
◦ (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus
◦ Argument made by Husband:

a) It was a part of the religious belief of all orthodox Hindus that no person could attain salvation without certain
religious obligations being performed by a son. The practice of marrying a second wife in order to obtain a son
when the first wife could not provide one was a practice followed in pursuance of that belief. The belief as well
as the practice stood guaranteed by Clause (1) of Article 25. Did not contravene public order, health or morality.
b) Article 25(1) and (2) needed to be construed harmoniously. It should not be interpreted as taking away by
one hand something which was being given by the other. One could not interfere with a religious belief under
the pretext of social welfare and reform.
c) Further, clause 2(b) of Article 25 was confined to religious institutions only. In other words, social welfare and
reform of Hindu religious institutions.
Court’s Reasoning
On the harmonious reading of clause (1) & (2) of Article 25

The two clauses of Article 25 have undoubtedly to be read so as to be in harmony with each other. There is, however, no real
conflict between the two clauses. The question of one prevailing over the other does not in the circumstances arise. The opening
words of Clause (2) viz. "nothing in this Article shall affect" make it quite clear that if a certain piece of legislation falls within
the four comers of Clause (2) and is covered by it, it will not be affected at all by the first clause. In this sense Clause (2) enacts
an exception to Clause (1). But for this exception the matters covered by Clause (2) would have been governed by Clause (1).

HMA as a social reform legislation

◦ It follows that if some of the sections of the Hindu Marriage Act have been enacted as a measure of social welfare
and reform nothing in the first clause of Article 25 can be allowed to affect that enactment. The legislature of the
country is the best judge of what is necessary for the welfare or reform of a particular community at any particular
stage. Nothing has been urged on hehalf of the appellant to show that this piece of legislation is not a measure of
social welfare and reform
On whether ‘social welfare and reform’ u/clause (2) would apply only to Hindu religious institutions of a
public character-
We find no justification for limiting the application of the words "providing for social welfare and reform" used
in Clause (2) (b) of Article 25 to Hindu religious institutions of a public character. We think Sub-clause (b)
contemplates three classes of legislation.
◦ 1. Laws relating to social welfare.
2. Laws relating to social reform.
3. Laws made for throwing open of Hindu religious institutions to all classes and sections of Hindus.
◦ If the words "providing for social welfare and reform'' are interpreted in the manner suggested by the learned
counsel for the appellant the sub-clause would really become meaningless for it would read "providing for social
welfare and reform ..... of Hindu religious institutions of public character to all classes and sections of Hindus".
The framers of the Constitution could not have intended the sub-clause to be read in this manner.
Therefore, S. 17 is not unconstitutional as against Article 25 of the Indian Constitution
Monogamy- praiseworthy and desirable?

◦ It may not be universally recognised but still it has been admitted by a large volume of world opinion
that monogamy is very desirable and praiseworthy institution. If under the circumstances the law-makers
decide to enact a law which has the effect of making Hindus monogamists it can only be regarded as a
measure of social reform within the competence of the State.
Should Monogamy be mandated by law?
Who really is polygamous?
 Flavia Agnes on the Imposition of
Monogamy
◦ Flavia Agnes,

◦ “The imposition of a uniform norm where none existed has caused further confusion. It needs to be mentioned that
to many of the communities whose ceremonies are discussed above, the Hindu code did not bring any progress as
the communities already recognized divorce and remarriage of women prior to the code. The marriages were
neither sacramental, a union of souls or a bond between a man and woman to the exclusion of everyone else. These
concepts either imposed either by a foreign Christian doctrine or by an upper class Brahmanical tradition do not
have much relevance to these cultures.
◦ The artificial imposition of monogamy has not been able to regulate customary practices of polygamy and
simultaneous marriages. As can be observed, the marriages discussed in the case laws have been performed in full
public view with the participation of community. The pat and Nata were accepted forms of remarriage of divorcees
and widows in the Western region. The point in question is not whether there have been any convictions for bigamy
but whether a norm of monogamy which is far removed from the customs of the community can be effectively
imposed.” (pg 3243)
Ceremonies in a Hindu Marriage
◦ S.7. Ceremonies for a Hindu marriage.—(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.

◦ S.3(a) the expressions “custom” and “usage” signify any rule which, having been continuously and
uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe,
community, group or family:
◦ Provided that the rule is certain and 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;
Bhaurao Lokhande v. State of MH, SC
1965

Case important for:

a) Linking conviction of bigamy to the performance of certain essential ceremonies
b) Raising the bar for the proof of customs.
◦ Facts: Bhaurao married a second time during the lifetime of his first wife, Indubai. Wife filed a criminal
case u/s 494, IPC
◦ Wife’s Argument:
◦ Second marriage was performed as per the rites of gandharva marriage, which is the prevalent custom in the
community.
◦ It is not necessary for the commission of the offence under S. 494 IPC that marriage has to be performed in any one
particular way. A person going through any form of marriage during the lifetime of the spouse would be guilty of
offence u/s 494. Thus, even if the second marriage was void, s. 494 would still be applicable.
◦ Husband’s Argument:
◦ The second marriage was not a valid one since the ‘essential’ ceremonies of a hindu marriage were not performed.
SC’s Reasoning
◦ The marriage between two Hindus is void in view of Section 17 if two conditions are satisfied:
◦ (i) the marriage is solemnized after the commencement of the Act;
◦ (ii) at the date of such marriage, either party had a spouse living.
◦ “The word “solemnize” means, in connection with a marriage, “to celebrate the marriage with proper
ceremonies and in due form”, according to the Shorter Oxford Dictionary. It follows, therefore, that
unless the marriage is “celebrated or performed with proper ceremonies and due form” it cannot be said
to be “solemnized”… Merely going through certain ceremonies with the intention that the parties be
taken to be married, will not make them ceremonies ‘Prescribed by law’ or approved by any established
custom."
◦ Therefore, the two essential ceremonies vivaha homa (invocation before the sacred fire) and saptapadi
(taking 7 rounds around the fire) had to be proved.
Failure to prove custom in court
◦ High threshold for the recognition of custom (Witness 4)
◦ “I had witnessed two Gandharvas before this. For the last 5 or 7 years a Brahmin Priest, a Barber and
a Thakur is not required to perform the Gandharva but formerly it was essential. Formerly the
Brahmin used to chant Mantras and Mangala ashtakas. It was necessary to have a maternal uncle or
any other person to make touch the foreheads of the sponsors together. A Brahmin from Kasara and
Dhandana comes to our village for doing rituals but I do not know their names.”
◦ This statement too, does not establish that the two essential ceremonies are no more necessary to be
performed, for a Gandharva marriage. The mere fact that they were probably not performed in the
two Gandharva marriages Jeebhau had attended, does not establish that their performance is no more
necessary according to the custom in that community. Further, Jeebhau has stated that about five or
seven years earlier the performance of certain ceremonies which, till then, were essential for the
marriage, were given up. If so, the departure from the essentials cannot be said to have become a
custom, as contemplated by the Hindu Marriage Act.
 Proving Customs- a proverbial needle in
the hay stack?
Flavia Agnes on proving customs:
“If a community observed a custom which is contrary to the shastric ritual, the custom had to be privileged
enough to attract the attention of a legal scholar, who would then have the good sense to mention it in a law text
and further, it should have remained static down the ages. In a vast country and within a dynamic society, this
would amount to a proverbial needle in the hay stack and confine societies which are rapidly changing under the
pressures of modernization to fossilized forms totally removed from their contemporary lifestyles”
[…]
“Perhaps a Magistrate who is familiar with customs and traditions of the local area is able to relate these idioms
to people’s lives. Hence we can observe convictions at the level of the trial court. But for the higher judiciary,
presiding over the citadels of justice in their ivory towers, these terms can only mean technicalities which do not
in any way relate to the cultural realities of the people whose lives and legitimacy they determine.”
Strict Proof of Essential Ceremonies
◦ Admission of marriage during matrimonial proceedings is not sufficient proof for conviction under
bigamy. Prosecution needs to prove second marriage with essential ceremonies (Priya Bala Ghosh v.
Suresh Chandra Ghosh;)
◦ Having a priest at the ceremony is not proof in itself that valid ceremonies have been performed.
◦ If a custom to the contrary is to be relied upon, it must be validated by a law text.

Therefore, Bhaurao and subsequent judgments that relied on it made it easy for hindu men to get off the
hook for bigamy fairly easily. Lot of local customs were disregarded in favour of Brahmanical traditions.
Neo-Buddhist Rites and Arya Samajis
◦ Under the mandate of uniformity, practices of diverse communities are erased.

◦ Eg- Neo-Buddhist customs (pg 3240-3241)

◦ Arya Samajis (pg 3242)
Arya Marriage Validation Act, 1937
◦ 1. Short title and extent.—(1) This Act may be called the Arya Marriage Validation Act, 1937. 1[(2) It
extends to the whole of India except 2[the territories which immediately before the 1st November,
1956, were comprised in part B States] and applies also to citizens of India wherever they may be.]
◦ 2. Marriage between Arya Samajists1 not to be invalid.—Notwith­standing any law, usage or custom to
the contrary no marriage contracted whether before or after the commencement of this Act between
two persons being at the time of the marriage Arya Sama­jists shall be invalid or shall be deemed ever
to have been invalid by reason only of the fact that the parties at any time belonged to different castes
or different sub-castes of Hindus or that either or both of the parties at any time belonged to a religion
other than Hinduism.
Sikh Marriages
◦ Anand Marriage Act, 1909- Sikhs can get married as per their own ceremonial customs under the
Anand Marriage Act, 1909.
◦ A recent amendment in 2012 allows registration of Sikh marriages to be undertaken under this act
rather than any other law.
Nagalingam v. Sivagami, SC 2001
◦ Facts: Respondent husband married a second time (1984), while the first wife (1970) had left his home
due to alleged physical and mental torture and cruelty. First wife filed a 494 IPC application.

◦ Husband’s contention: Homa and Saptapadi not performed in the second marriage, hence it is invalid.
◦ Ceremony performed: Tying of thali around bride’s neck, exchange of garlands three times, Kanniyathan by the
bride’s father.

◦ Wife’s contention: Second marriage is ruled by Sec 7A.

◦ Court held:
◦ Section 7A was applicable to the parties because:

◦ Homa & Saptapadi was an essential ceremony for a valid marriage only in cases where it is admitted by the parties
that as per the form of marriage applicable to them, it was an essential ceremony.

◦ No contention by the parties that homa and saptapadi were essential rites as per their custom.
Bigamy and Religious Conversion
◦ Sarla Mudga v. Union of India, 1995, SC

◦ Issues

◦ Whether a Hindu man can solemnise a second marriage w/o dissolving the first marriage? What is the status of the
first marriage on conversion?
◦ Whether the husband would be guilty of S.494 of the IPC?
◦ What happens to the second marriage?

◦ Facts: Batch of 4 petitions where husbands had converted to Islam and married again.
◦ Reasoning:

◦ Court looked at cases during colonial times. Eg-

◦ See Sayeda Khatoon v. M. Obadiah
◦ Robasa Khanum v. Khodada Irani

◦ It concluded from these that:

◦ In India there has never been a matrimonial law of general application. Apart from statute law a
marriage was governed by the personal law of the parties. A marriage solemnised under a particular
statute and according to personal law could not be dissolved according to another personal law,
simply because one of the parties had changed his or her religion.
◦ Courts would be governed by Justice, Equity, Good-Conscience and not personal law of the convertee

◦ Do then the authorities compel me to hold that one spouse can by changing his or her religious opinions
(or purporting to do so) force his or her newly acquired personal law on a party to whom it is entirely
alien and who does not want it? In the name of justice, equity and good conscience, or, in more simple
language, of common sense, why should this be possible? If there were no authority on the point I
(personally) should have thought that so monstrous an absurdity carried its own refutation with it, so
extravagant are the results that follow from it. For it is not only the question of divorce that the plaintiff’s
contention affects. If it is correct, it follows that a Christian husband can embrace Islam and, the next
moment, three additional wives, without even the consent of the original wife."
◦ - Robasa Khanum v. Khodada Irani
SC Held:

◦ Sec 13, HMA contemplates conversion as a ground of divorce. A marriage performed under the HMA
cannot be dissolved except on the grounds available under section 13 of the Act. Therefore, first marriage
remains valid and its legality is not threatened by the husband’s conversion.

◦ A second marriage, during the subsistence of the first is illegal, void and punishable u/s 494, IPC

◦ Such a marriage, performed during the subsistence of the first violates principles of justice, equity and
good conscience.
Observations on UCC in Sarla Mudgal

◦ “Till the time we achieve the goal- a uniform civil code for all the citizens of India- there is an
open inducement to a Hindu husband who wants to enter into second marriage while the first
marriage is subsisting, to become a Muslim”

◦ “A common civil code will help the cause of national integration by removing disparate
loyalties to laws which have conflicting ideologies."

◦ Kuldip Singh J.
◦ Is the existence of polygamy in Muslim communities an open inducement to Hindus to convert?
◦ Can an imposition of uniformity on a diverse country achieve national integration?
◦ Why should monogamy be framed in the language of national integration ?
Lily Thomas v. UOI, SC 2000

◦ Reiteration of the Sarla Mudgal ratio- conversion (feigned or sincere) does not preclude a hindu bigamist
from the application of S.494, or from the voidness of the second marriage.

◦ Thus second marriage would be void both under s. 17 & 11 of the HMA but also punishable u/s 494, IPC.

◦ “Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is
permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of
his exploitation as religion is not a commodity to be exploited.”

◦ Nothing said by the SC on UCC was a binding direction since it did not directly arise in Sarla Mudgal