HINDU MARRIAGE ACT
- Hindu Marriage Act
- Specifics of the Law
- Marriage Act and Hindu Connection
Hindu Marriage Act
The Hindu Marriage Act had essentially come to effect from 18th May, 1955. The scope of the law encompasses all Hindu marriages throughout the nation except the state of Jammu & Kashmir.
Specifics of the Law
A Hindu when married to a non-Hindu, the law states that the non-Hindu spouse must convert to Hinduism. If the non-Hindu spouse happens to be a Christian, then as per the law, the couple may marry under the Christian Marriage Act of 1872. In that case their marriage would be governed under the Christian Marriage Act of 1872. A third option has also been kept open i.e Civil Marriage, for the mixed religion couples of India.
The law restricts the minimum age for marriage at 21 years for men and 18 years for women. The other parameter that has been established by the Act is that the couple must have a sound mind and body so that they are physically and mentally able to have consent for their marriage and are in healthy shape to have children.
The Act is applicable only to couples who are Hindus.
The Act applies to :
Any person who is Hindu, Buddhist, Jain or Sikh by religion.
Any person who is born to Hindu parents.
Any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by any other law.
The Act does not apply :
To persons who are Muslims, Christians, Parsis or Jews by religion.
To members of the scheduled tribes coming within the meaning of clause (25) of Article 366 of the Constitution of India unless the Central Government by notice otherwise directs.
A marriage to be valid has to fulfill the following conditions:
- Neither party should have a spouse living at the time of marriage. The spouse does not include a divorced husband/ wife.
- At the time of marriage, the parties should be capable of giving a valid consent to the marriage. A person who is of a sound mind shall be considered to be a person capable to give a valid consent. Neither party, though capable of giving a valid consent should be suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children. Neither party should be suffering from recurrent attacks of insanity or epilepsy.
- The bridegroom should have attained the age of 21 years and the bride should have attained the age of 18 years at the time of marriage.
- The parties should not be within the degrees of prohibited relationships, unless the customs or usage, permits such a marriage.
Marriage Act and Hindu Connection
What is meant when the law uses the term “Hindu”?
The term “Hindu” in post-independence Hindu law governing marriage, divorce, adoption, maintenance, guardianship and succession, describes not only persons who are Hindu by religion, but also those who are Sikh, Buddhist, and Jain. Roughly speaking, the term “Hindu” encompasses those Indians who are not Christian, Parsi, Muslim, or Jewish for the purposes of the law.
What is a proper or valid Hindu marriage?
Owing to the prevalence of diversity in India, the law clearly states that the marriage can be performed or “solemnized” in accordance to the rituals and ceremonies which are customary to the community of either the bride or the groom. The law essentially states that the rituals and the ceremonies that are carried out must be accepted and recognized by the concerned communities.
Is it possible for Hindus to marry without undergoing Hindu marriage rituals and still remain Hindu for other aspects of the law?
Yes. Hindus can opt for a civil marriage, often incorrectly referred to as a “court marriage,” under the Special Marriage Act, 1954. Provisions in the Act govern civil marriages and require no religious ritual or ceremony of any kind.
The requirement in such a case is that the couple intending to get married should inform the Marriage Officer of the district in which at least one of them resides. The Officer then posts the information on a public notice board for a period of 30 days. In this period of 30 days, any person can raise objection to the marriage. The grounds for raising such objections may be that the bride is too closely related to the bridegroom, she has been married before or that the bride is underage. After the above period if no such valid objection is received by the Office, the couple signs a declaration in the Marriage Office in the presence of three witnesses. The Marriage Officer thereafter issues a certificate of marriage to the concerned couple as a proof of their marriage. The Special Marriage Act, S.21-A clearly specifies that if a special or civil marriage takes place between two individuals, both of whom are Hindus, Buddhists, Jains or Sikhs, such individuals continue to be governed under the aspects of Hindu Law.
What conditions do persons wishing to marry have to fulfill before a proper Hindu marriage can be solemnized?
Neither the bride nor groom should already be married or have a living husband or wife. A divorced person, a widow or widower is free to remarry; Both should have reached the minimum age for marriage: 18 years in case of the bride and 21 in case of the groom; Apart from being able to give their voluntary consent to the marriage, the couple must also be free of any mental disorder which could make them unfit for undertaking marriage; The bride and groom should not be within the “prohibited degrees of relationship” nor should they be “sapindas” of each other (these expressions are explained in detail in s.3 (f) and 3(g) of the Hindu Marriage Act). This rule does not apply if it can be established that a custom or usage is applicable to each permitting marriage between the two. Significantly, the rule is very much prevalent when the relationship is based on adoption.
What is the result of a Hindu marriage solemnised without fulfillment of the above mentioned necessary conditions?
In three situations such a marriage is said to be void, which means that it is invalid, as if it never took place: If one of the parties to the marriage has a living husband or wife; or If the parties are within the prohibited degrees of relationship; or If they are sapindas of each other.
If the conditions regarding valid consent have not been fulfilled, the resulting marriage is void. That means that the party wishing to challenge it can approach the court for a decree of nullity. Once such a decree is passed, the marriage would have no legal force whatsoever. For example, if after the solemnization of the marriage it is found that the groom could not have given his valid consent because of the unsoundness of his mind, the woman can get the marriage nullified through the court. Naturally, the court must be satisfied with the proof of mental disorder and unsoundness of mind claim. If voidable marriages are not challenged in court, they remain valid for all legal purposes.
Hindu Marriage Act and Women
What is the remedy if a woman has been married off before she turned 18?
A woman whose marriage was performed when she was under 15 years of age can reject the marriage, or “repudiate” it and get a divorce on that ground alone. She can only take the step after turning 15, but before turning 18. However, by doing so she loses the right to maintenance or alimony which a divorced woman can claim legally.
If a woman has been forced into a marriage, is such a marriage void or voidable? What if a fraud has been played on her?
Such marriages may very well be nullified. If the consent of the complaining party has been obtained by force or by fraud relating to the nature of the ceremony performed or to any significant circumstance or fact concerning the opposing party, the marriage can be voided. However, in such a case a petition for annulment must be presented within one year after the force has ceased to operate or the fraud has been discovered. Most important of all, the petitioner or complaining party should not have lived willingly with the other after the end of the force or after discovering the fraud. A marriage is also voidable if it can be proven that the wife was pregnant at the time of marriage by another man. In this situation the husband must file his petition within one year of the date of the marriage.
If a woman is being forced to marry against her will, what remedy does she have?
A woman can seek the help of the police to help her stop her marriage if she is being forced to marry against her will. However, given the level of mistrust that prevails in our society vis-à-vis the police, such an intervention can boomerang on the woman and may lead to more trouble. In such situations, social pressure applied judiciously might work better on her parents as opposed to legal interventions. A woman being forced to marry, especially against her will by her parents, may first try to approach influential people in her community or some individual in the family who has the necessary moral clout to influence her parents’ decision. However, in the case of extremities the help of the police may be sought.
Should marriages be registered? How is it done?
Though the registration of marriages is not compulsory, the same is highly recommended as it is essentially a proof of the marriage for any legal purpose. This provides the women a safe documentation as a proof of marriage. A register also called the Hindu Marriage register is found in the Office of the Registrar of Marriages, which is usually located in the District or Divisional court compounds. The registrar is an equivalent of some type of a magistrate. A Hindu marriage can also be registered under the Special Marriage Act, 1954 if both parties so desire. If that is done, the marriage is treated as a civil marriage governed by that Act from the date of registration.
What options are open to a woman whose husband marries someone else while still married to her? Is that bigamy?
Yes, marrying again during the lifetime of one’s wife or husband is known as bigamy. It is a criminal offence, punishable with imprisonment and fine. A bigamous marriage is void, which can be completely nullified (see answer to question No.5). If a woman has prima facie evidence that she is lawfully married to a man who is about to or has remarried, she can register a criminal complaint against him and the police are expected to stop him from getting remarried. If a wife learns that her husband is going to marry again, she can get an injunction from the court forbidding the marriage before it occurs. After it has taken place, a wife can ask the court for a “declaration” that the second or bigamous marriage is null and void. Proving bigamy, however, is not as easy. The complainant wife has to prove that both the marriages, her own as well as the second bigamous one, have been performed properly according to the appropriate ceremonies. Most prosecutions for bigamy fail owing to the fact that the complainant does not have the proof of the bigamous marriage. The accused husband can usually successfully claim against all efforts to prove the contrary that essential parts of the ceremony were never carried out and escape punishment.
If a Hindu wishes to marry a person who is not a Hindu, under what law can they do so?
If the couple wishes to have a religious marriage governed by Hindu law, then the non-Hindu partner must convert to Hinduism. If the non-Hindu partner is a Christian then it is also possible for the couple to marry according to Christian rites under the Indian Christian Marriage Act, 1872. Christian Personal Law then governs the marriage. The third option, in some ways the simplest, is to have a civil marriage under the Special Marriage Act which facilitates marriages between any two people, including members of any two religious communities. It does not involve conversion and also permits people to avoid various complications that arise from marriages under various religion-based personal laws.
What rights does a Hindu child, who is born to persons whose marriage is declared void or voidable have under the Hindu Marriage Act?
Such a child is deemed to be or considered legitimate regardless of the status of the parent’s marriage, if the marriage was performed according to Hindu rites under the Hindu Marriage Act, 1955 or was a civil marriage under the Special Marriage Act, 1954. Such a child may inherit the property of his parents. However, he/she does not acquire the rights in relation to joint family or ancestral property.