Unit 3:- Codified Law I

           

             3.1 Marriage under Hindu Law:

                3.1.1 Nature of Hindu Marriage 

                3.1.2 Forms of Marriage 

                3.1.3 Amendments under Hindu Marriage Act, 1955 

                3.1.4 Conditions for a valid marriage 

                3.1.5 Judicial Separation and Divorce: Difference, Grounds

 

Unit 3: Codified Law I (Hindu Marriage Act, 1955)

3.1.1 Nature of Hindu Marriage & 3.1.2 Forms of Marriage

Introduction & Definition

Nature: Traditionally, a Hindu marriage was considered a sacrament (Sanskara), an eternal union that could not be dissolved. It was not just for sexual pleasure but for the performance of religious duties (Dharma) and procreation (Praja).

However, the Hindu Marriage Act, 1955 introduced elements of a contract. Today, it is a unique blend: it requires the “contractual” element of consent but retains the “sacramental” element of ceremonies (like Saptapadi).

Forms: Ancient Hindu Law recognized 8 forms of marriage.

• Approved Forms: Brahma, Daiva, Arsha, Prajapatya.
• Unapproved Forms: Asura, Gandharva (Love marriage), Rakshasa, Paishacha.
• Modern Position: The HMA, 1955 does not recognize these 8 forms. It only recognizes one form: a marriage solemnized in accordance with customary rites and ceremonies.

Statutory Provisions

• Section 7, HMA: Ceremonies for a Hindu marriage.
• Section 5, HMA: Conditions for a Hindu marriage.

Landmark Case Laws regarding Nature of Marriage

1. Gopal Krishan v. Mithilesh Kumari (1979)

• Judgment: The Court held that despite the HMA, 1955, Hindu marriage remains a sacrament. It is a holy union for the performance of religious duties, not a mere civil contract like in Muslim law.

2. Tikait v. Basant (1901)

• Judgment: An older Privy Council judgment stating that Hindu marriage is a “union of flesh with flesh, bone with bone, and soul with soul.”

Exam-Style Conclusion

While the Hindu Marriage Act, 1955 introduced divorce and consent, making marriage look like a contract, the judiciary still interprets it as a sacrament. It is best described as a “Sacramental Union with Contractual Elements.”

3.1.4 Conditions for a Valid Marriage

Introduction & Definition

For a marriage to be legally valid under the HMA, 1955, certain pre-requisites must be met. If these are violated, the marriage may be Void (invalid from the start) or Voidable (valid until annulled).

Statutory Provisions

• Section 5: Conditions for a Hindu Marriage.
• Section 7: Ceremonies (Saptapadi).
• Section 11: Void Marriages.
• Section 12: Voidable Marriages.

Essential Ingredients (The 5 Conditions of Section 5)

A marriage may be solemnized between any two Hindus if:

1. Monogamy (Sec 5(i)): Neither party has a spouse living at the time of the marriage.
2. Mental Capacity (Sec 5(ii)): At the time of marriage, neither party:
   • Is incapable of giving valid consent due to unsoundness of mind.
   • Suffers from a mental disorder making them unfit for marriage/procreation.
   • Suffers from recurrent attacks of insanity.
3. Age of Marriage (Sec 5(iii)): The groom must be 21 years and the bride 18 years.
4. Prohibited Degrees (Sec 5(iv)): The parties are not within the degrees of prohibited relationship (unless custom allows).
5. Sapinda Relationship (Sec 5(v)): The parties are not Sapindas (blood relatives) of each other (unless custom allows).

Statutory Provision: Ceremonies (Section 7)

• A marriage must be solemnized with customary rites.
• Where Saptapadi (7 steps around the fire) is part of the custom, the marriage is complete only when the 7th step is taken.

Landmark Case Laws

1. Bhaurao Shankar Lokhande v. State of Maharashtra (1965)

• Facts: A man was prosecuted for bigamy. He argued the second marriage wasn’t valid because religious ceremonies weren’t performed properly.
• Judgment: The SC held that to prove bigamy, the second marriage must be a validly performed marriage under Section 7. Since essential ceremonies were missing, he was acquitted (a controversial loophole).

2. Seema v. Ashwani Kumar (2006)

• Judgment: The Supreme Court directed that all marriages (irrespective of religion) must be compulsorily registered to prevent child marriages and bigamy.

Legal Exceptions

• Custom: Prohibited degrees and Sapinda relationships can be ignored if a valid Custom or Usage governing the community permits such a marriage (e.g., marriage between uncle and niece in some South Indian communities).

3.1.5 Judicial Separation and Divorce: Difference & Grounds

Introduction & Definition

• Judicial Separation (Section 10): A legal remedy where the court permits the couple to live separately. The marriage tie is suspended but not broken. They cannot remarry.
• Divorce (Section 13): The legal dissolution of the marriage. The marriage tie is severed completely. The parties become single and can remarry.

3.1.3 Amendments (Crucial Note)

• Marriage Laws (Amendment) Act, 1976: This was a game-changer.
  • It made the grounds for Judicial Separation and Divorce identical.
  • It introduced Divorce by Mutual Consent (Section 13B).
  • It added “Cruelty” and “Desertion” as grounds for divorce (earlier they were only for judicial separation).

Grounds for Divorce/Judicial Separation (Section 13(1))

Any spouse can file for divorce on these “Fault Grounds”:

1. Adultery: Voluntary sexual intercourse with a person other than the spouse.
2. Cruelty: Treating the petitioner with cruelty (mental or physical).
3. Desertion: Abandoning the spouse for 2 years without reasonable cause.
4. Conversion: Converting to another religion (Ceasing to be a Hindu).
5. Unsoundness of Mind: Incurable or severe mental disorder.
6. Leprosy: (Omitted by 2019 Amendment).
7. Venereal Disease: Communicable form.
8. Renunciation: Entering a religious order (Sanyas).
9. Presumption of Death: Not heard of for 7 years.

Additional Grounds for Wife (Section 13(2)):

• Bigamy (Husband had another wife before 1955).
• Rape, Sodomy, or Bestiality by the husband.
• Non-resumption of cohabitation after a maintenance order.

Comparison Table: Judicial Separation vs. Divorce

Feature	Judicial Separation (Sec 10)	Divorce (Sec 13)
Effect on Marriage	Marriage subsists (suspended).	Marriage dissolves (ends).
Remarriage	Parties cannot remarry.	Parties can remarry.
Cohabitation	No obligation to cohabit.	No obligation (relationship ends).
Nature of Decree	One-stage process.	Usually two stages (wait period in mutual consent).
Reversibility	Can be rescinded by the court if parties reconcile.	Irreversible once the decree is final.
Purpose	To give time for reconciliation (“Cooling off”).	To end a dead marriage.

Landmark Case Laws

1. N.G. Dastane v. S. Dastane (1975) – [Cruelty]

• Facts: The husband sought divorce due to his wife’s temper, claiming she abused him and his parents.
• Issue: What constitutes “Cruelty”?
• Judgment: The SC held that cruelty need not be physical violence. Even Mental Cruelty (conduct causing mental pain and suffering) is a valid ground. The standard of proof is “preponderance of probabilities,” not “beyond reasonable doubt.”

2. Sureshta Devi v. Om Prakash (1991) – [Mutual Consent]

• Issue: Can a party withdraw consent in a Mutual Consent Divorce (Sec 13B)?
• Judgment: Yes. Consent must exist at the time of filing the First Motion and at the time of the Second Motion (after 6 months). If one party withdraws consent in between, divorce cannot be granted.

3. Sarla Mudgal v. Union of India (1995) – [Conversion/Bigamy]

• Facts: Hindu husbands converted to Islam to marry a second wife without divorcing the first.
• Judgment: The SC held this is Bigamy (Sec 494 IPC). A Hindu marriage can only be dissolved under the HMA. Conversion does not automatically dissolve the marriage.

Exam-Style Conclusion

The Hindu Marriage Act, 1955, transformed Hindu marriage from an indissoluble sacrament to a union that can be dissolved by law. While Section 5 ensures the sanctity of the union through strict conditions (like Monogamy), Sections 10 and 13 provide an exit route for breakdown, balancing tradition with the modern need for individual happiness.