HINDU MARRIAGE ACT,1955 - IMPORTANT TOPICS FOR JUDICIARY EXAMINATION

HINDU MARRIAGE ACT,1955 - IMPORTANT TOPICS

A. APPLICATION OF THE ACT

1. Hindu by religion

(I) Follower of Hinduism: The Hindu law applies to the person who is a follower of the Hindu religion. This includes the followers of Virashaiva, Lingayat, Brahmo, Prarthana or Arya Samaj. Apart from these it also applies to the persons who are the followers of Buddhism, Jainism or Sikhism. In addition to that, it includes all the persons who are not followers of Islam, Christianity, Zoroastrianism or Judaism.

(II) Converter to Hinduism: This law applies to all those people who convert themselves to Hindu religion. Regarding the conversion, the apex court put down necessary conditions for it in the case of Perumal Nadar (dead) by L.R.S vs Ponnuswami [AIR 1971 SC 2352]. According to this judgment, a person converted as Hindu is considered as same only if:

• He voluntarily puts his intention to live as a Hindu
• He starts living as a Hindu
• Hindu community accepts him as a part of its own.

It is applicable on those people who were Hindu once, converted into another religion and converted again into the Hindu religion. This was held in the case of G. M. Arumugam vs S. Rajgopal & Ors [AIR 1976 SC 939].

2. Hindu by Birth

(I). If both parents are Hindu: The Hindu law is applicable on a child (legitimate or illegitimate), whose both parents are Hindus, Buddhists, Jain or Sikhs by religion and he is brought up as a Hindu.

(II).If either of the parents is Hindu: In the case of Myna Boyee vs Ootaram [8 M.I.A. 400], it was held that if either of the parents is Hindu and child is brought up as Hindu then he would be considered as a Hindu. In another case Menaka Gandhi vs Indira Gandhi And Anr [AIR 1985 Del 114] Delhi High Court held that child brought up as Hindu must be a Hindu.

Section 2(2) of Hindu Marriage Act, 1956 provides that  Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

It is well said that Hindu Law is a Law of Status. It means that wherever a Hindu goes, he will be considered as a person under Hindu Law, even when he moves out of his homeland

To whom Hindu Law does not apply?

To an illegitimate child whose father is a Hindu and mother is Christian and the child is brought up as a Christian. Or also, the illegitimate child of a Hindu father and a Mohammedan mother, because these children are not Hindus either by birth or by religion.

 To the Hindus who are converted to Muslims, Christians, Parsi or Jews.
    

To the Hindus who don’t follow the principles of Sastra.

 B. Sources of Hindu Law

Ancient Sources:

Before the codification of Hindu Law, the ancient literature was the only source of the law. These sources can be divided into four categories:

01. Shruti (Vedas)
Shruti means “what is heard”. It is believed that the rishis and munis had  reached the height of spirituality where they were revealed the knowledge of Vedas. Thus, shruti include the four Vedas – rig, yajur, sam, and athrava along  with their brahmanas. The brahmanas are like the apendices to the Vedas.  Vedas primarily contain theories about sacrifices, rituals, and customs.

02. Smriti
Smriti means “what is remembered”.  With Smritis, a systematic study and  teaching of Vedas started. Many sages, from time to time, have written down  the concepts given in Vedas. So it can be said that Smritis are a written memory of the knowledge of the sages. Immediately after the Vedic period, a need for  the regulation of the society arose.
·
Dharmasutras: The Dharmansutras were written during 800 to 200 BC.  They were mostly written in prose form but also contain verses. It is  clear that they were meant to be training manuals of sages for teaching  students.

 Dharmashastras: Dharmashastras were mostly in metrical verses and  were based of Dharmasutras.  However, they were a lot more systematic and clear.

 Manusmriti: This is the earliest and most important of all. It is not only defined the way of life in India but is also well know in Java, Bali, and Sumatra. The name of the real author is not known because the author has written it under the mythical name of Manu, who is considered to the the first human.

Yajnavalkya Smriti: Though written after Manusmriti, this is a very  important smriti. Its language is very direct and clear. It is also a lot more logical. He also gives a lot of importance to customs but hold the king to be below the law.

Narada Smriti: Narada was from Nepal and this smriti. It is well preserved  and its complete text is available. This is the only smriti that does not  deal with religion and morality at all but concentrates only on civil law.

 03. Commentaries and Digests:

After 200 AD, most the of work was done only on the existing material given in  Smrutis. The work done to explain a particular smriti is called a commentary.  Commentaries were composed in the period immediately after 200 AD. Digests were mainly written after that and incorporated and explained material from all the smrutis. As noted ealier, some of the commentaries were,  manubhashya, manutika, and mitakshara. While the most important digest is  Jimutvahan’s Dayabhag that is applicable in the Bengal and Orissa  area. Mitakshara literally means ‘New Word’ and is paramount source of law in all of India.


04. Customs

Most of the Hindu law is based on customs and practices followed by the people all across the country. Even smrutis have given importance to customs. They have held customs as transcendent law and have advised the Kings to give decisions based on customs after due religious consideration.

Customs are of four types:

Local Custom: These are the customs that are followed in a given geographical area.

 Family Custom: These are the customs that are followed by a family from a long time. These are applicable to families where ever they live.

Class or Caste Custom: These are the customs that are followed by a particular cast or community. It is binding on the members of that community or caste. By far, this is one of the most important source of laws.

 Guild Custom: These are the customs that are followed by traders.
Requirements for a valid custom:
 

•  Ancient
•  Continuous
•  Certain
•  Reasonable
• Not against morality
•  Not against public policy
•  Not against any law

Difference between Usage and Custom:

The term custom and usage is commonly used in commercial law, but “custom” and “usage” can be distinguished. A usage is a repetition of acts whereas custom is the law or general rule that arises from such repetition. A usage may exist without a custom, but a custom cannot arise without a usage accompanying it or preceding it. Usage derives its authority from the assent of the parties to a transaction and is applicable only to consensual arrangements. Custom derives its authority from its adoption into the law and is binding regardless of any acts of assent by the parties. In modern law, however, the two principles are often merged into one by the courts.


Modern Sources:

1.Judicial Decisions (Precedents)
The doctrine of stare decisis started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws.Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state.

2.Legislatures / Statutes (Codification of Hindu Law)
In modern society, this is the only way to bring in new laws. The parliament, in accordance with the needs society, constitutes new laws. For example, a new way of performing Hindu marriages in Tamil Nadu that got rid of rituals and priests was rejected by the SC on the basis that new customs cannot be invented. However, TN later passed an act that recognized these marriages.

3.Justice, equity and good conscience-
Equity means fairness in dealing. Modern judicial systems greatly rely on being impartial. True justice can only be delivered through equity and good conscience. In a situation where no rule is given, a sense of ‘reasonableness’ must prevail. According to Gautama, in such situation, the decision should be given that is acceptable to at least ten people who are knowledgeable in shastras.


C. Schools of Hindu Law

Due to the emergence of various commentaries on SMRITI and SRUTI, different schools of thoughts arose. The commentary in one part of the country varied from the commentary in the other parts of the country.

The Mitakshara School

The Mitakshara School exists throughout India except in the State of Bengal and Assam. The Yagna Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The followers of Mitakshara are grouped together under the Mitakshara School.

Mitakshara school is based on the code of yagnavalkya commented by vigneshwara, a great thinker and a law maker from Gulbarga, Karnataka. The  Inheritance is based on the principle or propinquity i.e. the nearest in blood relationship will get the property.

The school is followed throughout India except Bengal state. Sapinda relationship is of blood. The right to Hindu joint family property is by birth. So, a son immediately after birth gets a right to the property.

•  Dravidian School Of Thought (Madras School)
•  Maharashtra School (Bombay School Of Thought)
•  Banaras School Of Thought
•  Mithila School Of Thought

The Dayabhaga School

It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by Jimootavagana under the title Dayabhaga. It has no sub-school. it differs from Mistakshara School in many respects.
Dayabhaga School is based on the code of yagnavalkya commented by Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It arises by pinda offering i.e. rice ball offering to deceased ancestors.
This school is followed in Bengal state only. Sapinda relation is by pinda offerings.The right to Hindu joint family property is not by birth but only on the death of the father.The system of devolution of property is by inheritance. The legal heirs (sons) have definite shares aIer the death of the father.

D. Concept of marriage

The concept of marriage is to constitute relationship of husband and wife. According to ancient Hindu law, marriage is the last of ten sacraments and is a sacred tie which can never be broken. It is a relation established by birth to birth. According to Smritikars even death cannot break this relation of husband and wife which is not only sacred and religious but is a holy union also.

The object of marriage was to enable a man and a woman perform religious duties and to beget progeny. According to ancient writers a man was incomplete without a woman and a woman is half of her husband (ardhangini) and completes him.

Every Hindu male or female had to marry. Where a person could not remain a perpetual student or where he did not desire to be an ascetic (sanyasi), he was enjoined by the shastra to marry. Marriage, therefore was as good as compulsory and more so in case of a female.

E.Marriage: Sacrament or Contract

Marriage being one of the essential Samskaras is sacramental in nature. The sacramental nature of marriage has three characteristics:
1. It is a permanent union i.e. once tied cannot be untied.
2. It is an eternal union i.e. valid not only in this life but in lives to come.

3. It is a holy union i.e. performance of religious ceremonies is essential.
Since Hindu marriage was considered to be sacrament, the consent of the parties did not occupy any important place. Thus the person married may be a minor or even of unsound mind, if the marriage is duly solemnised there is valid marriage. Under the Contract Act, the contract of a minor or of a person of unsound mind is void. Further, Section 12 of Hindu Marriage Act does lay down that a marriage is voidable if consent is obtained by fraud or force, but it is not laid down that if one’s consent was not obtained the marriage is voidable. This shows that despite the fact that a party is able to prove the absence of consenting mind, the marriage will continue to remain valid.

The modern concept of marriage is contractual in nature. It receives the ideals of liberty and equality (free volition of individuals). Today, it is an established notion of the west that marriage, to be effective, must be an agreement voluntarily entered into by both parties

In the light of modern concept of marriage could we say that Hindu marriage continues to be sacrament? By recognising the divorce and widow remarriage the first two characteristics of sacramental marriage have been waived. However, the third characteristic is still retained.
To sum up the Hindu marriage has not remained a sacrament and has also not become a contract, but it has a semblance of both.

F. Conditions for the validity of marriage (Section 3 and 5)

A marriage may be solemnised 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 in consequences 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 or epilepsy.

(iii) The bridegroom has completed the age of twenty one (21) years and the bride the age of eighteen years at the time of 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.

Ingredients of Section 5

Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other a non Hindu or both are non Hindus, the marriage will not be a subject matter of this Act but will relate to some other law i.e. Special Marriage Act etc.

Clause (i) – Condition of monogamy
This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If the spouse is alive at the time of marriage that could bar the remarriage of a person. However one must note that the first marriage of a person should be a legally valid marriage. In spite of one’s valid marriage if the person remarries in violation of Section 5(i), the second marriage will be null and void and he will be subjected to penal consequences. The Scheduled Tribes are exempted from the application of the Act. But there must be a proved custom to this effect.

Bigamy – Section 5(i)

Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and Section 17 makes it a penal offence for both Hindu males and females under Section 494 and 495 of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are performed. The second marriage cannot be taken to be proved by the mere admission of the parties; essential ceremonies and rites must be proved to have taken place. In the case of a bigamous marriage, the “second wife” has no status of wife.

Clause (ii) – Condition regarding mental health or capacity

Sub clause (a) requires that at the time of marriage neither party is incapable of giving a valid consent to marriage due to unsoundness of mind.
Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither party to marriage should be suffering from a mental disorder of such nature and to such a degree as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan Singh v. Jit Kaur, the court held the marriage void on the ground that wife was suffering from schizophrenia within short period after marriage and the disease was not disclosed to the husband before marriage.
Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even during a lucid period.
Post marriage mental illness: If a party to a marriage is not suffering from any mental defect described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this condition.

Clause (iii) – Condition of marriageable age

According to this clause, at the time of marriage the bride must have completed the age of 18 years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage Act. However, violation of this condition does not make the marriage void or voidable. It means that it is valid though it may attract penalties. But it can become a valid ground for repudiation of the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for punishment for such marriage.
According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978 has also raised the age of marriage of girl to eighteen.

Clause (iv) – Avoidance of degrees of prohibited relationship

The parties to marriage must not fall within the degree of prohibited relationship. This relationship is defined under Section 3(g) of the Act.

According to Section 3(g) “degree of prohibited relationship” means when two persons are related to each other in any of the following manners:

(i) By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the Sapinda relationship which extends upto fifth degree in the line of father and third degree in the line of the mother. The distinction of this category is that it extends even beyond the Sapinda ascendants.

(ii) By affinity: If one is the husband or wife of the lineal ascendants or descendants of the other. For example, father-in-law and daughter-in-law, mother-in-law and son-in-law, step mother and step son or step father and step daughter are thus within the degrees of prohibited relationship.

(iii) Wives of certain brother relations if one was the wife of:

(1) The brother, or
(2) The father’s brother, or
(3) The mother’s brother, or
(4) The father’s father’s brother, or
(5) The mother’s father’s brother, or
(6) The father’s mother’s brother, or
(7) The mother’s mother’s brother.

(iv) Certain close relations if both are:

(1) Brother and sister, or
(2) Niece and uncle (paternal or maternal), or
(3) Nephew and aunt (paternal or maternal), or
(4) Children of a brother and a sister, or
(5) Children of two brothers, or
(6) Children of two sisters.

According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is void. It is also punishable under section 18(b) of the Act.

 "‘A’ marries his adopted sister. This is not a valid marriage, as it falls within the degrees of Prohibited relationship. (ii) ‘A’ marries with the wife of Pre-deceased brother. It is not a valid marriage as it falls within the degree of Prohibited relationship. (iii) ‘A’ marries his stepmother’s sister. It is not a valid marriage, ‘A’ is related to his step-mother by half blood relationship."

Clause (v) – Avoidance of sapinda relationship

According to the Dharmashastra the Sapinda relationship is very important in the matter of marriage. According to Mitakshara Law of Marriage ‘Pinda’ means body and therefore those who are related by body or blood or consanguinity are sapindas among themselves. The Hindu Marriage Act has adopted Mitakshara definition but has limited the extent of Sapinda relationship to 5 degrees in line of ascent through the father and 3 degrees in the line of ascent through the mother.

According to Section 3(f)(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapindas relationship, or if they have a common lineal ascendant to each of them.

Whereas Section 3(f)(i) states that “sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (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.

Rules for determining sapinda relations:

1. The relationship extends as far as the third generation in the line of ascent through the mother in case of both the parties.
2. The relationship extends as far as the fifth generation in the line of ascent through the father in case of both the parties.
3. Sapinda relationship may submit in case of both the parties through the father or in case of both through the mother; or it may subsist in case of one of them through the father and on case of the other through the mother.
4. The line is traced upwards in case of both the parties counting each of them as the first generation; the generations in the line of ascent whether three or five are to be counted inclusive of the persons concerned and the common ancestor or ancestress.
Sapinda relationship includes relationship by half or uterine blood as well as by full blood and by adoption. It also includes both, legitimate and illegitimate blood relationship.

Ceremonies of a Hindu Marriage under Section 7 of Hindu Marriage Act

Section 7 of the Act deals with the ceremonies of a valid Hindu marriage. It lies down that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. Thus, the customary rites and ceremonies of any one of the parties of such marriage must be followed. Further, the marriage must fulfil the five conditions of a valid marriage laid down by Section 5 of the Act, which has been discussed above.

It is clarified by Section 7 that where such rites and ceremonies include the saptapadi (i.e., taking seven steps by the bridegroom and bride jointly before the sacred fire), the marriage becomes complete and binding only when the seventh step is taken.

G.RESTITUTION OF CONJUGAL RIGHTS( SECTION.9)
Restitution of Conjugal Rights, “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied 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.”.

When a spouse is guilty of staying away without any reasonable or a just cause and if the suit of restitution of conjugal rights succeed than the couple would be required to stay together. Thus it can also be inferred that section 9 is the marriage saving clause or section. This remedy was earlier applied in England and later on implemented by the privy council in India, for the first time in a case namely Moonshee Bazloor v. Shamsoonaissa Begum.

However, this matrimonial remedy of restitution of conjugal rights has been removed in England way back in 1970.

There is withdrawal from society when one of the spouses, without reasonable excuse, terminates an existing relationship with the intention of forsaking the other, and permanently or indefinitely abandoning such relationship. Thus, while a husband and wife might be at times living apart, but maintaining a frequent and regular social and conjugal relationship, in such a case there would be no withdrawal from society. So after the solemnization of the marriage if either of the spouses without reasonable excuse withdraws himself or herself from the society of the other then aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights.

There are three important requisites to be fulfilled for Section 9[8]

• Spouses must not be staying together.
• Withdrawal of a party from the other must have no reasonable ground for such withdrawal.  
• The aggrieved party must apply for restitution of conjugal rights

The restitution of conjugal rights is one of the reliefs that are provided to the spouses in distress in the institution of marriage by law. Decree of restitution of conjugal rights could be passed in case of valid marriages only. Apart from legislation relating to matrimonial law, courts in India in case of all communities have passed decrees for restitution of conjugal rights.

Cases on Constitutional validity of Section 9
Sareetha v. Venkata Subbaiah(1983)
The case was decided by the Andhra Pradesh High Court which observed that Section 9 of the said Act was a savage and barbarous remedy violating the right to privacy and human dignity and equality guaranteed by Article 14 & 21 of the Constitution.
Hence, Sec 9 was declared to be constitutionally void for abridging rights guaranteed under Part III of the Constitution. According to the learned Judge, a decree for restitution of conjugal rights deprived of her choice as and when and by whom the various parts of her body should be allowed to be sensed. The court relied on the Scarman Commission’s Report in England that recommended its abolition.

 Harvinder Kaur v. Harmander Singh 1983
It was held that sec 9 was not violative of Articles 14 and 21 of the Constitution since the leading idea behind Sec 9 was to preserve the marriage. The remedy of restitution was aimed at cohabitation and consortium and not merely at sexual intercourse .

H. JUDICIAL SEPARATION (SECTION 10)
Judicial or legal separation means living apart by the parties to the marriage. If  a decree for judicial separation is passed by a competent Court, it is no longer  obligatory for either party to cohabit with the other. Such a decree does not  sever or dissolve the marriage. Yet it is equally true that certain mutual rights  and obligations arising from the marriage are suspended when such a decree is passed.

Judicial Separation is an alternative to divorce, through which both the parties to marriage are given time to resolve their issues and make efforts to save their failed marriage by living separately. Judicial separation doesn’t take away the status of legally wedded husband and wife. This provision has been adopted by the Indian legislature because marriage is considered as a ‘sacrament’ under Hindu Law and it is the duty of the Court to prevent breakdown of such a union.

Section 10(1) provides that either party to Marriage may present a petition praying for a decree of judicial separation on any of the grounds specified in Section 13(1). Further this section also provides additional grounds to wife besides the above ground as mentioned in Section 13(2) of the Act. Thus, it is clear that the judicial separation can be seeked on the grounds mentioned for divorce.

Grounds for Judicial Separation

It is given under Section 10 of the Act; the spouse can file a petition for judicial separation on the basis of the following grounds:

Adultery [Section 13(1)(i)]- It means where any of the spouses voluntarily had sexual intercourse with any other person except his/her spouse. Here, the aggrieved party can claim the relief but that intercourse should be placed after the marriage.

Case- Revathi Vs. Union of India and Ors – In this case, the Court held that Section 497 of IPC is prepared like, a husband can not prosecute the wife for defiling the sanctity of the married tie by the charge of adultery. The law does not permit the husband of the offending wife to prosecute his wife and the wife also has not permitted to prosecute the offending husband for being disloyal to her. Therefore, both the husband and wife have no right to strike each other with the weapon of criminal law.

Cruelty [Section 13(1)(i-a)]- When the spouse treats his/her partner with cruelty or inflicts any mental or physical pain after the marriage. The sufferer can file a petition on the grounds of cruelty.

Case- Shyamsundar Vs. Santadevi – in this case after the marriage, the wife was badly harmed by her husband’s relatives and the husband also stood lazily, taking no steps to protect his wife.

The Court held that the intentional neglect to protect one’s own wife amounts to cruelty on the husband’s part.

Desertion [Section 13(1)(i-b)]- In this section, it is defined that if the spouse left the other spouse for any reason without informing him/her for a period not less than 2 years before filing the petition by another spouse, desertion gives a right to claim relief of judicial separation for the hurt party.

Case- In the case, Guru Bachan Kaur Vs. Preetam Singh, the husband filed a petition for divorce after 7 years of declared desertion and never understood the problems of the wife who was also a working woman. But the wife was willing to live with her husband at her house in the place of her service.

The High Court held that there is nothing like mutual desertion. One party has to be guilty in desertion.

Conversion/Apostasy [Section 13(1)(ii)]- If any spouse gets converted into any other religion other than Hindu, then the other spouse can file for judicial separation.

Case- In Durga Prasad Rao Vs. Sudharshan Swami, it was observed that in every conversion case, formal rejection of religion or operation of the sacrificial ceremony is not essential. Therefore, in the case of conversion, the question of fact arose.

Unsound mind [Section 13(1)(iii)]- If any spouse in a marriage is suffering from any mental disease which is difficult to live for the other spouse with the sufferer. The other spouse can claim relief from judicial separation.

Case- Anima Roy Vs. Prabadh Mohan Ray (AIR 1969) in this case, the respondent was found suffering from an abnormal disease after 2 months of marriage. The doctor who checked the respondent also could not find the particular time of starting the illness. Therefore, it was held that disease was not proved at the time of marriage.

Leprosy [Section 13(1)(iv)]- If any spouse suffering from any disease like leprosy,  which can not be recovered, then the other party can file a petition for judicial separation because he/she can not waste their own time due to the sufferer.

Illustration- ‘A’ a sufferer of an abnormal disease and ‘B’ is the wife of ‘A’. If ‘A’ is suffering from a disease that is incurable and the doctor also can not understand the disease. In this case, ‘B’ can file a petition for judicial separation if she doesn’t want to continue with her husband.

Venereal Disease [Section 13(1)(v)]- If any party to a marriage or a spouse has any type of disease which is incurable and communicable and the spouse does not know about the fact at the time of marriage, then it could be a valid ground for the spouse to file petition for judicial separation.

Illustration- ‘A’ is suffering from an abnormal disease that is spread by communication. The disease which is irrevocable. In this case, ‘B’ the wife of ‘A’ can file a petition for the judicial separation in good faith for their future of the two children.

Renounced the World [Section 13(1)(vi)]- In Hindu law, by renouncing the world means “Sannyasa”. Renunciation from the world conveys that the person has given up the world and leading a holy life. He is considered a civil dead. If a spouse renounces the world to live a holy life, his/her partner can file for judicial separation.

Illustration- If ‘A’ changed his religion and went somewhere, where people also can not find him. ‘B’ the wife of ‘A’ got hurt so much by hearing this news. Therefore she can file a judicial separation.

Civil death/Presumed death [Section 13(1)(vii)]- If a person is not found for 7 or more years and their relatives or any other person have not heard from him/her or it is believed that he/she may be dead. Here, the other spouse can file for judicial separation.

Illustration- ‘A’ and ‘B’ have been husband and wife for 4 years and suddenly the husband disappeared for about 8 years. ‘B’ as his wife she did her best to find her husband in these 8 years but she couldn’t find him. Then, ‘B’ can file the judicial separation for this case.
Additional grounds for the wife to claim justice

Bigamy [Section 13(2)(i)]- It means if the husband is remarried while he is already married, both of his wives have a right to claim the petition for judicial separation with a condition that, the other wife is also alive at the same time of filing.

Illustration- ‘A’ and ‘B’ are the husband and wife for 5 years and they are happy with their family. Suddenly ‘A’ remarried another woman ‘C’ without the consent of his 1st wife ‘B’ and ‘C’ also did not have any idea that ‘A’ is married earlier. When ‘B’ and ‘C’ got to know about this. ‘B’ can file a petition for judicial separation.

Rape, sodomy or Bestiality [Section 13(2)(ii)]- The wife has a right to file a petition for judicial separation if her husband is guilty of charges like rape, bestiality or sodomy after the marriage.

Illustration- ‘A’ and ‘B’ are the husband and wife from 3 years, if the husband ‘A’ raped any other woman and he is found guilty for that, then, in this case, the wife ‘B’ can file the petition for judicial separation.

Repudiation of marriage/A option of puberty [Section 13(2)(iv)]- If a girl’s marriage happened before attending 15 years of age, then, she has a right to claim judicial separation.

Illustration- There is a girl of 14 years old and she is from a tribal area. There,  child marriage is a very common nature, her parents give her as a present to the bridegroom without her consent. After marriage, this Act does not allow for leaving a relationship without any valid reason. There should be particular grounds on which the spouse can file a case for judicial separation or divorce.

This Act has a great rule to solve the disputes between the spouses and free them from marital ties. In this case, she filed a petition for judicial separation because of her below age.

I. Concept of Void and Voidable Marriages

The concept of marriage is to form a relationship between husband and wife. Marriage is a religious tie which cannot be broken. According to Section 5 of Hindu Marriage Act, 1955 it was accepted that a Hindu Marriage was a religious ceremony and also a Sanskara (performed as a purification rite). It was also established that every and any Hindu could marry. The exceptions to this are the ones prohibition which is on the basis of caste, gotra, religion and blood relationship. Such prohibition is based on some rules which are endogamy (where a man cannot marry a woman, who is of his relation) and exogamy (a man cannot marry a woman who belongs to another tribe). Endogamy and Exogamy are illegal in the view of Hindu Marriage Act, 1955.

Types of Marriage

There are three types of marriage-

1.     Valid Marriage

2.     Void Marriage

3.     Voidable Marriage

Valid Marriage

Section 5 of the Hindu Marriage Act,1955 states the conditions for a valid marriage. A marriage can be said valid, if it fulfils following conditions:

•        None of these parties have spouses living at the time of the marriage.
•         During the time of the marriage, neither party should be-

Incapable of giving valid consent due to the unsoundness of mind.

Suffering from mental disorder to an extent as to be unfit for marriage and procreation of children.

Subjected to repeated attacks of insanity.

•        Age- The bridegroom must be 21 years or above and the bride must be 18 years or above.
•        The parties are not in a degree of prohibited relationship.
•       Parties are not sapindas (blood relation) to each other.

Provision of Void and Voidable Marriages under HMA,1955

Void Marriages (Section 11)

A marriage is considered void under the Hindu Marriage Act if it doesn’t fulfils the following conditions of Section 5 of the Hindu Marriage Act:

1. Bigamy

If any of the parties have another spouse living at the time of marriage. It shall be considered as null and void.

Illustration: there are three parties ‘A’,’B’ and ‘C’ where ‘A’ has a living spouse ‘B’, but he again marries to ‘C’ then this will be called as bigamy and it will be void.

2. Prohibited Degree

If the parties are within a prohibited relationship unless the customs allows it.

Illustration: there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his wife. They both went on a relationship which is prohibited by law. This marriage can also be called void marriage.

3. Sapindas

A marriage between the parties who are sapindas or in other words a marriage between the parties who are of his or her relations or of the same family.

Illustration: there are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is the wife, who has blood relation or close relation to A which can also be termed as Sapinda. So, this process will be treated as void.

Consequences of a Void Marriage

The consequences of void marriage are:

•       The parties don’t have the position of husband and wife in a void marriage.
•        Childrens are called legitimate in a void marriage (Section 16 of Hindu Marriage Act, 1955).
•        Mutual rights and obligations are not present in a void marriage.

Voidable Marriages (Section 12)

A marriage is voidable on either side of the party is known as voidable marriage. It will be valid unless the petition for invalidating the marriage is made. This marriage is to be declared void by a competent court under the Hindu Marriage Act, 1955. The parties of such marriage have to decide whether they want to go with such marriage or make it invalid.

The grounds where marriage can be termed as voidable:

1. The party to the marriage is not capable of giving consent due to the unsoundness of mind. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. ‘B’ gave the consent of the marriage when she was suffering from an unsound mind. After some years, ‘B’ gets cured and raised that her consent was invalid and this marriage is voidable because during the time of the consent of ‘B’, she was in an unsound mind. So, this a ground of voidable marriage.

2. The party is suffering from mental disorder which makes her unfit for reproduction of children.

 Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is suffering from mental disorder due to which she is unfit for reproduction of children. Then this can be a ground for voidable marriage. 

3. If the party has been suffering from repeated attacks of insanity.

 Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. Anyone from ‘A’ or ‘B’ is suffering from repeated attacks of insanity, then this can also be a ground for voidable marriage.  

4. The consent of marriage by either of the parties is done by force or by fraud.

Illustration: There are two parties ‘A’ and ‘B’ where A is the husband and B is his wife. If either party gave consent to the marriage by force or fraud, then it will be a voidable marriage.

5. If either of the parties are under-aged, bridegroom under 21 years of age and bride under 18 years of age.

Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is under the age of 18 years then this marriage will be considered as voidable or if A is under the age of 21 years then it can also be considered as voidable marriage. 

6. If the respondent is pregnant with a child of someone other than the bridegroom while marrying.

Illustration: There are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is his wife. During the time of the marriage if ‘B’ is pregnant through another person. Then the marriage would be voidable.

Necessary conditions to be fulfilled by a petition under Section 12 for nullity of a Voidable Marriage

•        On the plea of fraud or application of force on marriage, a petition can be filed before the court within one year of discovery of such fraud or application of force.
•        The allegation based upon which the petition is filed was beyond the knowledge of the petitioner at the time of solemnization of marriage.
•        The petition on such an allegation must be presented in the court within one year of knowledge of such facts.
•        No sexual relationship is established after knowing about alleged facts.

 Difference between Void and Voidable Marriage

Void Marriage	Voidable Marriage
A wife does not have the right to claim maintenance in the void marriage	A wife has the right to claim maintenance in the voidable marriage.
In a void marriage, the parties do not have the status of husband and wife.	Husband and wife have the status in the voidable marriage
In a void marriage, no decree of nullity is required.	In a voidable marriage decree of nullity is required.
A void marriage is none in the eyes of law.	A void marriage is to be declared void by a competent court.
The children in a void marriage are treated as legitimate.	The children in a voidable marriage are treated as illegitimate but this distinction is deleted by the Supreme Court and said a child cannot be said termed as illegitimate.

J. Concept of Divorce under Hindu Law

Marriage, also called matrimony or wedlock, is a socially or ritually recognized union between spouses that establishes rights and obligations between those spouses, as well as between them and any resulting biological or adopted children and affinity (in-laws and other family through marriage). The definition of marriage varies around the world not only between cultures and between religions, but also throughout the history of any given culture and religion, evolving to both expand and constrict in who and what is encompassed, but typically it is principally an institution in which interpersonal relationships, usually sexual, are acknowledged or sanctioned.

India, being a cosmopolitan country, allows each citizen to be governed under personal laws relevant to religious views. This extends to personal laws inter alia in the matter of marriage and divorce. Under Hindu law divorce are mostly of two types: mutual and contested. The concept of divorce under Hindu law has been discussed below:-

Mutual Divorce under sec 13b of the Hindu marriage act 1955

By mutual consent if both the parties to a marriage desires to put and end to their marriage, they may present a petition to the district court of their residence on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. And then not less than six months and not more than eighteen months, if the petition is not withdrawn, the Court shall on being satisfied after hearing the parties shall pass a decree of divorce.

Provision for Divorce under the Hindu Marriage Act, 1955 is given under S. 13 which gives an exhaustive list of grounds under which a spouse can seek a divorce.

Section 13 of the Hindu Marriage Act, 1955 gives power to both the spouses (S. 13(1)) and to the wife alone (S.13(2)) to move before a court and seek the remedy of divorce. Grounds of Divorce as per the Hindu Marriage Act are as follows:

Section 13(1) –

Insanity and Leprosy

The Hindu Marriage Act emphasises on the sanity of parties at the time of marriage. Up until 1976, for grounds like mental illness, leprosy and contagious venereal disease the respondent spouse must have been suffering from it for a period of three years such that it could become a ground of divorce. The Marriage Laws (Amendment.) Act, 1976 has greatly modified the Act, by removing the time stretch and by enlarging the varieties of “mental illnesses” to be covered for a reason of divorce.

Case Law – 1. In case of Pankaj Mahajan v. Dimple– In this case the appellant husband brought an evidence to show that the respondent wife was suffering from schizophrenia and asked for a divorce. The Hon’ble Supreme Court while discussing about insanity as a ground of divorce held that the husband should be granted a decree of divorce on this ground.

2. In Swarajya Lakshmi v. G.G. Padma Rao the Hon’ble Supreme Court while discussing about leprosy as a ground of divorce observed that in case of an incurable and virulent form of leprosy decree of divorce can be granted and based upon this reasoning granted a decree of divorce.

Venereal Disease

Under the Hindu Marriage Act, a spouse can ask for a divorce when his/her partner is suffering from a contagious venereal disease which could spread due to mutual cohabitation.

Case Law – 1. In the case of Mr. X v. Hospital Z, a doctor informed the fiancé about her soon to be husband’s communicable venereal disease because of which she refused to marry him. In a suit filed before the Hon’ble Supreme Court it was held that this act of the doctor didn’t violate Mr. X’s privacy and was for a greater good. It was also held that in cases like this a divorce is permissible.

Desertion

Desertion without a reasonable cause lasting for two years is a ground for divorce under the Hindu Marriage Act. In the past desertion (of two years’ duration) constituted a ground for judicial separation. However, after the 1976 amendment, the grounds for judicial separation and divorce have been merged under that Act. The civil marriage law and the Hindu law are, thus, now identical in respect of desertion as a ground for divorce but under the Indian Divorce Act, desertion lasting for two years without excuse is ground only for judicial separation and not divorce.

 If a spouse is missing for a long period, the other spouse gets a ground for divorce under all the laws except the divorce law of Christians. The minimum duration of disappearance which will create such right is seven years under the Hindu Marriage Act.

Case Law – 1. In case of Adhyatma Bhattar Alwar v. AdhyatmaBhattar Sri Devi, Hon’ble Supreme Court while discussing desertion as a ground of divorce observed that desertion has two different essentials and once both of them are fulfilled the spouse can claim a divorce. The burden of proof is on both the spouses on their parts.

Cruelty

Cruelty is a ground for divorce under the Hindu Marriage Act (as amended in 1976) and the Dissolution of Muslim Marriages Act, 1939. But under the Hindu law the concept, of cruelty is left undefined, whereas in Muslim law cruelty is specified to be in a form of habitual assault, notorious lifestyle, association with ill-reputed women, immoral life, interference with personal property and obstruction in religious practices.

Case Law–1. In the case of Darshan Gupta v. Radhika Gupta, the Supreme Court while discussing about the concept of Divorce observed that divorce in cases where ground is that of cruelty can only be decreed if the other party is at no fault. Based upon this reasoning the suit for divorce by the husband was set aside.

Extra-marital sex (Adultery)

Extra marital sex is a ground of divorce under Hindu Law. A wife can also apply for a divorce if her husband has committed rape, sodomy or bestiality. Ordinarily, adultery is, under the Act, is a ground for judicial separation available to both spouses.

 Under Section 10 of the Indian Divorce Act, a wife may present a petition for the dissolution of her marriage on the ground that “the husband has been guilty of rape, sodomy or bestiality”. A similar provision is also given under Section 13(2)(ii) of the Hindu Marriage Act with improvised to make it clear that such lapses must have taken place “since the solemnization of marriage” and not before.

Case Law – 1. In Ballabhdas v. Sushila Bai, Honorable Supreme Court observed that in case where ground of divorce is adultery the party making the condemnation should prove beyond reasonable doubt that the other party has indeed been adulterous and only then a court can decree for a divorce.

Wife living separate

The Marriage Laws (Amendment) Act, 1976 has added to the Hindu Marriage Act a new ground for divorce under Section 13 (1A) which says that non-cohabitation for one year or more or non-restitution of conjugal rights following a decree or order entitles either of the parties to the marriage to proceed for divorce. This does not lead to a divorce directly but leads to an order of judicial separation.

Conversion

Conversion to another religion is a ground for divorce in the Hindu Law. In Hindu law, there is no conversion so long as a person remains a Hindu, Buddhist, Sikh or Jain. For divorce, under this, there is no recourse of a judicial separation because a valid marriage cannot be presumed between the Hindu spouse and the “converted” spouse. The Act is, however, silent regarding the effect of the wife’s conversion.

 In Hindu Law sanyas i.e. renunciation of material life for spiritual and religious life, is a ground for divorce. This is exclusively for the Hindus and has no place either under the Special Marriage Act or any other personal law operating in India.

Case Law 1. In Suresh Babu v. Leela, it was held that conversion to a non-hindu religion does not automatically dissolved the marital bond but only provides the aggrieved spouse to move towards a court for a decree of divorce and in this relation the court admitted the decree of divorce.

Option of Puberty

This concept has been introduced, into the Hindu Marriage Act, 1955 in 1976. Adopted from the Muslim law of Khayyar a Bulugh i.e. Option of Puberty and implemented under Section 13(2)(iv), a Hindu wife may petition for divorce on the ground that her marriage was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age of 15, but before attaining 18 years of age.

Section 13(2) – These grounds are reserved only for the wife

 1. That the marriage was solemnized before the commencement of the Act, and the husband had remarried before such commencement or already had a wife who is living before such commencement at the time of the marriage.

 2. That the husband after the marriage has been charged with rape, sodomy or bestiality.

3. That the bride’s marriage was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years.

K. Petition for divorce (Section 14)
Under Section 14 of the Hindu Marriage Act, 1955, no Court shall entertain a  petition for divorce before expiration of a period of one year from the date of marriage, however this section also provides that the Court may entertain petition for divorce before one year on the ground of exceptional hardship to the petitioner or exceptional depravity of the respondent.
 
In the case of Meghanatha Nayyar v. Smt. Susheela, the Madras High Court had observed that “Section 14 provides restrictions presumably designed to prevent party from taking recourse to legal proceedings before the parties have made real e;ort to save their marriage from disaster. It is founded on public policy because marriage is the foundation of civil society and no part of the laws and constitution of a country can be of more vital importance to the subject than those which regulated the manner and conditions of forming and if necessary, of dissolving marriage contract.
 
It will thus be seen that the Act does not prescribe any special ceremony for a Hindu marriage. It is to be noted that even the saptapadi is not obligatory under the Act. The Act only lays down when the marriage is deemed to be complete in cases where the saptapadi is included in the rites and ceremonies of either party to the marriage.

L.Legitimacy of Children of Void and Voidable Marriages (S.16)

Under the Hindu law, an illegitimate child has never been considered and he had no right of inheritance or survivor ship in the presence of natural son.

Broadly speaking, a child born within lawful wedlock has been considered to be a legitimate child, and a child who is born outside the lawful wedlock to be an illegitimate child. Section 112 of the Indian Evidence Act, 1872 lays down a rule of presumption in this regard. it lays down that :

(1) a child born within the lawful wedlock (at any time, even soon after the marriage) or,

(2)a child born within 280 days of the dissolution of marriage by death or divorce, will be conclusively presumed to be the child of his father, provided the mother remained unmarried.

The position regarding the children of void and voidable marriage under the Hindu marriage act (S.16) and special marriage act (Section 26) is:

(1) Children of unannulled voidable marriage are legitimate in the same way as children of an otherwise valid marriage are.

(2) Children of annulled voidable and void marriages are legitimate but they will inherit the property of their parents alone and of none else.

It may be noted that before the 1976 Amendment to the Hindu Marriage Act, a status of legitimacy was conferred on the children of those void marriages, which were declared null and void. If marriage was not declared null and void the children remained illegitimate. but the position has been changed by the 1976 Amendment. Now such a declaration (i.e. a decree of nullity) is not required to confer a status of legitimacy.

Under Section 16, by a fictio juris (legal fiction), a child born of a void or voidable marriage is deemed to be the legitimate child of his parents.

(3) If the marriage is void or voidable under any other provision of the law, except section 11 and 12 (which lays down the grounds of void and voidable marriages) the children will be illegitimate. Such a case will be, for instance, when the marriage is void for lack of performance of valid ceremonies.

This would normally cause great hardship to a child (for no fault of his own), and therefore, S. 16 provides that notwithstanding that a marriage is null and void under Section 11, any child of such a marriage, who would have been legitimate if the marriage had been valid, is to be considered to be a legitimate child. It is immaterial whether or not a decree of nullity is granted in respect of that marriage under the Act, and whether or not the marriage is held to be void otherwise than on a petition under this Act.

It has also been provided that if a decree of nullity is granted in respect of a voidable marriage under S. 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, is to be deemed to be their legitimate child, notwithstanding the decree of nullity.

Thus, by a fictio juris (legal fiction), a child born of a void or voidable marriage is deemed to be the legitimate child of his parents. The effect of this fiction is that for all purposes, including rights of inheritance and succession, such a child is to be regarded as a legitimate child of the parents.

Judiciary on Illegitimacy

The court has given some landmark judgement in the field of illegitimacy.

Some of such decisions are:

1.The Supreme Court of India in Revanasiddappa v. Mallikarjun opined that: the constitutional values enshrined in the Preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents.
A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage.

2. In Jinia Keotin v. Kumar Sitaram Manjhi, the Supreme Court has said:
Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardizing the children born of the parties to such marriage.

M. Is marrying twice(Bigamy) a crime in India?

 Section 17 of The Hindu Marriage Act 1955. Punishment for bigamy under Hindu Law and Indian Penal Code section 494 and 495.

A person whose husband or wife is living marry again will be punishable Section 17 of the Hindu Marriage Act 1955. Provisions of Indian Penal Code Section 494 and 495 are also applicable in this case.

Section 17 of the Hindu Marriage Act 1955 - Punishment for 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 (45 of 1860) shall apply accordingly.

Section 494 of the Indian Penal Code says that:

"who ever 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 of a term which may extend to seven years and shall also liable to fine".

But this section does not intend to any person whose marriage with such husband or wife has been declared void by a Court of Competent Jurisdiction.

Section 495 of the Indian Penal Code has provision of:

Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.

"Whoever commits the offence defined in the last proceeding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable for fine."

N.Concept of Maintenance in Hindu Marriage Act, 1955(S. 24 &25)

Maintenance is often referred to as “alimony” or a kind of monetary support from the spouse i.e. spousal assistance. Maintenance on the other hand, is an act of bearing the financial expenses or reducing the burden of the spouse whose burden increases and economical position gets materially changed on the decree of divorce.

Further, the main purpose of granting maintenance is to maintain the standard of living of the spouse equivalent to that of the other spouse and in accordance with status prior to the separation. It is granted during the proceeding of decree or after the decree of divorce and ceases to exist on the death or remarriage of the alimony holder. The spousal maintenance is determined on the existence of various factors by the court as follows:

•        No separate source of income. The most important factor to be considered before granting maintenance or alimony is to check whether the spouse seeking maintenance has any separate source of income or not or  is solely dependant on the income of his/her spouse.
•            Standard of living of both the litigating parties before separation.
•             Expenses required to maintain children.
•      Requirement to maintain the same standard of living of the spouse as it was before the separation.
•        Skills,capabilities and educational background of the spouse to earn his/her living and maintain themselves etc.

Prior Status of Right of Maintenance

Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 initially dealt with the provisions of granting maintenance. The Hindu Marriage Act was formed in the year 1955 and applies specifically on individuals who are Hindus including Sikh, Jains and Buddhists and persons who come under the ambit of Section 2 of Hindu Marriage Act, 1955. Also children whose either of a parent is a Hindu, Sikh, Jains or Buddhist and are brought up under the same religion will also be considered as a Hindu and will be entitled to maintenance. Under old Hindu law, a Hindu male was under an obligation to maintain the following persons:

• His wife,
• Unmarried daughter,
•  Legitimate sons,
•  Illegitimate sons, and
•   Aged parents.

Thus, only Hindus (the applicability of which could be checked from Section 2 of Hindu Marriage Act, 1955) are covered under this Act.

Obligation To Maintain Wife, Children And Parents In India

The statutory provisions laid down under various acts and Cr.P.C makes it mandatory to maintain the dependant spouse, children and spouse in India.

Hindu Marriage Act, 1955

Obligation To Maintain Wife

Section 24 and Section 25 of the said act deals with the provisions of allowing pendente lite and permanent maintenance respectively. In Dr. Kulbhushan v/s Raj  Kumari and Anr, the court while deciding the amount of maintenance observed that it is determined based on the facts of each case and declared that if the court enhances or moulds the amount of maintenance, then such a decision would be justified. It was further held in this case that it would be fair to provide wife with 25% of husband’s net salary as maintenance.

Under Section 24 of the act if the court considers fit and is satisfied that either wife or husband does not have an independent income, then it can order the respondent to pay the maintenance to the petitioner in accordance with the provisions of this Section. Thus, the claimant can be a husband as well.   

Further, according to the provisions of Section 25 of the Act, which deals with the granting of alimony on a permanent basis, the court may on the application made by the respondent , order to provide for maintenance either in the form of periodical payments or a gross sum to be provided. Thus, in this case as well the respondent can either be a wife or a husband. 

The purpose of interpreting the provision in this way is to avoid the discrimination because both husband and wife are equal in the eyes of law.

Delhi High Court recently in the case of  Rani Sethi v/s Sunil Sethi, ordered wife( respondent) to pay maintenance to her husband (petitioner) of Rs 20,000 and Rs.10,000 as litigation expenses. Further a Zen car was ordered to be given for the use of the petitioner.

Wife on being aggrieved by the same order approached the High Court, where the scope of Section 24 of HMA was construed and it was held that the purpose of this Section to provide support to the suppose who is incapable of earning his/her independent income.

Obligation To  Maintain Children And Parents

Section 26 of the same act deals with the custody, maintenance and education of minor children. Court may, as it considers necessary and deems fit, from time to time pass interim orders in this regard and at the same time has the power to revoke, suspend or vary such an order. Obligation to maintain lies on both father and mother of the child or on either of the parents as ordered by the court. Section 20 of Hindu Adoption and Maintenance Act, 1956 lays down an  obligation on a hindu male or female to maintain their legitimate/ illegitimate minor children and aged/ infirm parents, the amount of which is to be determined by the competent court on the following factors-:

•    Economic position and status of the litigating parties.
•      Reasonable wants and needs of the parties.
•      Dependence of the parties, etc.

In Sukhjinder singh saini v/s Harvinder kaur, certain observations were made by the Delhi High Court while dealing with the issue of deciding the maintenance to be granted for a child:

•        Both the parents have a legal, social and a moral obligation to maintain their children and   provide them with the best standard of living, depending on the financial footing of the parties.
•       They are equally obligated to provide means for best education.
•       It was further held that even if the child is living with the spouse whose income is sufficient enough to maintain the child cannot be taken as a good ground by the other spouse of not maintaining the child or taking care of the child’s welfare.

Maintenance Under Section 125 Cr.P.C

According to this Section magistrate of first class has the power to order the person to provide monthly allowance to:

•           His parents,
•           Wife, or
•           To his legitimate or illegitimate minor children who are unable to maintain themselves.
•           Legitimate or illegitimate major child not being married daughters, who are unable to maintain themselves due to    any physical injury or abnormality.
•              Married daughter till she attains her majority if her husband is unable to maintain her
•        His or her father or mother if they are unable to maintain themselves,whoever neglects or refuses to do so.

Magistrate may issue warrants for levying the amount due, in case of non-compliance with the order. Making of an application is mandatory to the court for levying such amount within a period of one year from the date on which the amount was due, otherwise warrant cannot be issued.

Where in case a wife is living separately without any sufficient reason or is living in adultery or they have separated through a mutual consent, then in such cases she is not entitled to receive allowance.