S.S.

Jain Subodh Law College

Hindu Marriage : A Study of element of mental Capacity

Submission To: Submitted By:

MS. Bhavya Gangwal Gaurav Upmanyu
Assistant Professor Roll no:- 2
Semester 5th Section A

1
 CERTIFICATE
This is to certify that Gaurav Upmanyu student of B.A. L.L.B. of S.S. Jain Subodh Law
Collage, has completed his project on under the guidance of Bhavya Gangwal, Assistant
Professor, S.S. Jain Subodh Law Collage, Jaipur. This project is an original, independent work to
the best of my knowledge and has not been published anywhere and has been pursued solely for
academic interest.

(Signature of Teacher)
Bhavya Gangwal

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 ACKNOWLEDGEMENT
The project is incomplete without thanking a few people who have been my pillar of support
throughout this work.
I would like to express my deep and sincere gratitude to my teacher Bhavya Gangwal for her
continuous support. She have always been there to listen , guide me and help has been constantly
monitoring the progress of my work and show me the different way to approach a research
problem and also the need to become persistent to accomplish any mission.
I am also obliged to acknowledge the college administration for providing a wonderful library
which is a store house of knowledge and also for providing all the electronics resource without
which no such research could have been possible.
Finally, I would like to thank everybody, who played a significant role in the successful
completion of my dissertation.

(Student Signature)
Gaurav Upmanyu

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 Table Of Content

1. Introduction
2. Concept Of Hindu Marriage
3. Marriage under Hindu Marriage act, 1955
4. Essential Conditions for a Hindu marriage
5. Void Marriage
6. Voidable Marriage
7. Forms of Marriage According to Hindu Law
8. Guardianship in marriage
9. Ceremonies of a Hindu Marriage
10. Divorce
11. Conclusion
12. Bibliography

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 Introduction
Hindu marriage joins two individuals for life, so that they can pursue dharma (duty), artha
(possessions), and kama (physical desires). It is a union of two individuals as husband and wife,
and is recognized by law. In Hinduism, marriage is followed by traditional rituals
for consummation. In fact, marriage is not considered complete or valid until consummation. It
also joins two families together. Favorable colours are normally red and gold for this occasion.
The use of jathakam or Janam Kundali (astrological chart at the time of birth) of the son/daughter
to match with the help of a priest is common, but not universal. Parents also take advice from the
brahman called 'Jothidar' in Tamil or 'panthulu or siddanthi ' in Telugu and Kundali Milaan in
northern India, who has details of many people looking to get married. Some communities, like
the Brahmans in Mithila, use genealogical records ("Panjikas") maintained by the specialists.
Jatakam or Kundali is drawn based on the placement of the stars and planets at the time of birth.
The maximum points for any match can be 36 and the minimum points for matching is 18. Any
match with points under 18 is not considered as an auspicious match for a harmonious
relationship. If the astrological chart of the two individuals (male and female) achieve the
required threshold in points then further talks are considered for prospective marriage. Also the
man and woman are given a chance to talk and understand each other. Once there is an
agreement then an auspicious time is chosen for the wedding to take place.
In recent years, with the onset of dating culture in India, arranged marriages have seen a
marginal decrease, with prospective brides and grooms preferring to choose a spouse on their
own and not necessarily only the one whom their parents find agreeable; this has been more
pronounced in urban and suburban areas than rural regions.
A Hindu wedding is Vivaha (Sanskrit: विवाह)1 and the wedding ceremony is called Vivaah
Sanskar in North India and Kalyanam (generally) in South India.2 Hindus attach a great deal of
importance to marriage. The wedding ceremonies are very colourful, and celebrations may
extend for several days. The bride's and groom's home—entrance, doors, wall, floor, roof—are
sometimes decorated with colors, balloons, and other decorations.
The rituals and process in a Hindu wedding vary widely. Nevertheless, the Hindu wedding
ceremony at its core is essentially a Vedic yajna ritual and three key rituals are almost
universal: Kanyadaan, Panigrahana, and Saptapadi—which are respectively, giving away of his
daughter by the father, voluntarily holding hands near the fire to signify union, and taking seven
‘steps before fire’.

1
Sanskrit English Dictionary, entry for Vivaha. Germany: University of Koeln.
2
Prinja, N. (2009 August 24). Hinduism & Weddings. London, UK: BBC News

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At each step promises are made by (in the long form—see below) each to the other. The primary
witness of a Hindu marriage is the fire-deity (or the Sacred Fire) Agni, in the presence of family
and friends. The ceremony is traditionally conducted entirely or at least partially in Sanskrit,
considered by Hindus as the language of holy ceremonies. The local language of the bride and
groom may also be used. The rituals are prescribed in the Gruhya sutra composed by
various rishis such as Baudhayana and Ashvalayana.
The pre-wedding and post-wedding rituals and celebrations vary by region, preference and the
resources of the groom, bride and their families. They can range from one day to multi-day
events. Pre-wedding ceremonies include engagement, which involves vagdana (betrothal)
and lagna-patra (written declaration),3 and the arrival of the groom's party at the bride's
residence, often as a formal procession with dancing and music. The post-wedding ceremonies
may include Abhishek, Anna Prashashan, Aashirvadah, and Grihapravesa – the welcoming of the
bride to her new home. The wedding marks the start of the Grihastha (householder) stage of
life for the new couple.
In India, by law and tradition, no Hindu marriage is binding or complete unless the ritual of
seven steps and vows in presence of fire (Saptapadi) is completed by the bride and the groom
together. This requirement is under debate, given that several Hindu communities (such as
the Nayars of Kerala or Bunts of Tulu Nadu) do not observe these rites.

3
Pandey, R. (1969). Hindu Saṁskāras: Socio-religious Study of the Hindu Sacraments, see Chapter VIII,
pp. 153–233.

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Concept Of Hindu Marriage

Whether a Sacrament or a Civil Contract – Essay

For a Hindu, marriage is a samskara (religious rite or sacrament). It is in fact, the last of the ten
sacraments, enjoined upon him by the Hindu religion for purifying the body from inherited taint.
This view has been accepted by the High Courts of Bombay and Madras. Thus, a Hindu marriage
is looked upon as something which is more of a religious necessity and less of a physical luxury.
As once observed by the Calcutta High Court, a Hindu marriage is “more religious than secular
in character.”

According to the Vedas, a marriage is “the union of flesh with flesh and bone with bone”. It is a
union which the Vedas regard as indissoluble. As long as her husband is alive, the wife is
enjoined to regard him as her God; likewise, the wife is declared to be half the body of her
husband (Ardhangini) and shares with him equally, the fruits of all his acts, good or bad.

It may be noted that the concept of a Hindu marriage as a sacrament continues to exist even after
the enactment of the Hindu Marriage Act. This concept is not, in any way, inconsistent with the
provisions of the Act, which has merely laid down certain conditions for a valid Hindu marriage,
and certain grounds for obtaining judicial separation and divorce. The concept of divorce was, of
course, not recognised by the ancient Hindu Law, and this is a vital innovation introduced by the
law in the Hindu social framework.

It may be noted that a marriage under Hindu Law is not only a samskara or sacrament, but the
only samskara prescribed for women under Hindu Law. Although there was a conflict of
decisions on the point, it was generally accepted that a Hindu marriage is also a contract.

A reference to Manu shows that there is actually a gift of the bride. Thus, an essential part of the
marriage ceremony is what is called kanyadan. Such kanyadan fulfils all the requirements of a
gift under the Hindu Law. It is, therefore, clear that to the extent that a marriage is a gift, it is
also a contract.

Writers on Hindu Law, both ancient and modern, have also generally taken the view that a Hindu
marriage is not only a sacrament, but also a contract. The editor of the tenth edition of Mayne’s
Book also observes that “while marriage according to Hindu Law is a sacrament, it is also a civil
contract, which takes the form of a gift.”

Similar observations are to be found in several decided cases, a few of which are given below:

(i) In Purshottamdas v. Purshottamdas (21 Bom. 23), the Court observed that “Marriage of Hindu
children is a contract made by their parents.”

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(ii) In Bhagwati Saran Singh v. Parmeshwari Nandar Singh, (1942 ILR All. 518), the Court after
quoting extensively from Macnaghten’s Hindu Law, Strange’s Hindu law and Vyavastha
Chandrika, expressed the view that a Hindu marriage is not only a sacrament, but also a contract.

(iii) In Muthusami v. Masilamani, (33 Mad. 342), the Court observed: “A marriage, whatever
else it is, i.e., a sacrament, and institution, is undoubtedly a contract entered into for
consideration, with co-relative rights and duties.”

(iv) The Calcutta High Court has also observed, in Anjona Dasi v. Ghose (6 Bengal Law
Reporter, 243), that suits relating to marriage deal with that which in the eye of the law must be
treated as a civil contract, and important civil rights arise out of that contract.

In view of the above-mentioned and other cases, it can safely be concluded that under the
ancient, uncodified Hindu Law, a Hindu Marriage was not only a sacrament, but also a contract.

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Marriage under Hindu marriage act 1955

The Hindu Marriage Act by an Act of the Parliament of India enacted in 1955. Three other
important acts were also enacted as part of the Hindu Code Bills during this time: the Hindu
Succession Act (1956), the Hindu Minority and Guardianship Act (1956), the Hindu Adoptions
and Maintenance Act (1956).

The main purpose of the act was to amend and codify the law relating to marriage
among Hindus and others.4Besides amending and codifying Sastrik Law, it introduced separation
and divorce, which did not exist in Sastrik Law. This enactment brought uniformity of law for all
sections of Hindus. In India there are religion-specific civil codes that separately govern
adherents of certain other religions.

Section 2 of the Hindu Marriage Act, 1955 says:

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, Jain 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.
This section therefore applies to Hindus by religion in any of its forms and Hindus within the
extended meaning i.e. Buddhist, Jains or Sikh and, in fact, applies to all such persons domiciled
in the country who are not Muslims, Christians, Parsi or Jew, unless it is proved that such
persons are not governed by the Act under any custom or usage. The Act applies to Hindus
outside the territory of India only if such a Hindu is domiciled in the territory of India.
The Act was viewed as conservative because it applied to any person who is Hindu by religion in
any of its forms, yet groups other religions into the act (Jains, Buddhists, or Sikhs) as specified in
Article 44 of the Indian Constitution. However, with the passage of Anand Marriage
(Amendment) Bill in 2012, Sikhs now also have their own personal law related to marriage.
A Marriage (Arya Samaj Marriage or an arranged Marriage) is directly registered by the
Registrar of Marriage under section 8 of Hindu Marriage Act-1955 on the same working day.

4
"In Fact: Between void and voidable, scope for greater protection for girl child"

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Essential Conditions for a Hindu marriage

Section 5 of Hindu Marriage Act, 1955 states:-

"Section 5. A marriage may be solemnized between any two Hindus, if the following conditions
are fulfilled, namely-

1. neither party has a spouse living at the time of the marriage

2. 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;
3. the bridegroom has completed the age of twenty-one years and the bride the age of
eighteen years at the time of the marriage;
4. 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;
5. the parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two."
Marriage can be solemnized between two Hindus if neither party has a living spouse at the time
of marriage.
The conditions also stipulate that at the time of the marriage, neither party is incapable of giving
valid consent or suffering from a mental illness that inhibits their fitness for marriage or
procreation of children or suffering from recurrent episodes of insanity or epilepsy. In the
original Act, the age of valid marriage was fixed at 18 for the boys and 15 for the girls, however
this age requirement was later raised to 21 and 18 respectively for the boys and the girls through
the Child Marriage Restraint (Amendment) Act 1978. Marriage of a female less than 18 years of
age or a male of less than 21 years of age is voidable but not void: The marriage will become
valid if no steps are taken by the minor spouse to seek a declaration that the marriage is void.
Finally, the Act specifically disallows marriages between prohibited degrees of relationships.

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VOID MARRIAGE

Before, Hindu Marriage Act 1955 was enacted, divorce & nullity of marriage both were not
recognised in Hindu law. The term nullity of marriage was first introduced after the enactment of
Hindu Marriage Act 1955, under section 11 which says as under:

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 11 [against the other party], be so
declared by a decree of nullity if it contravenes any one of the conditions specified in clauses,
read with section 5 of Hindu marriage act.

Before, the enactment of this act the term nullity of marriage didn’t exist in Hindu law, although
some relief in respect of marriage could be obtained under general law. Under Hindu marriage
act 1955 matrimonial causes have been introduced for all Hindus. The act recognises the
following four matrimonial causes:

1. Nullity of Marriage
2. Judicial Separation
3. Dissolution of Marriage
4. Restitution of Conjugal Rights

A marriage is voluntary union of one man with one woman to the exclusion of all others. In this
regard section5 lays down certain conditions for a valid marriage.

Section 11 clearly lays down that any marriage solemnised after the commencement of this act
shall be null and void and may be declared so by a court on presentation of petition of either
parties against the other. If any of the three condition specified in the clauses 1, 4 & 5 of section
5 of Hindu Marriage Act 1955 is violated than the court and pass a decree of nullity declaring it
to be void.

Meaning of void marriage: A void marriage is a marriage which doesn’t exist from its beginning
it is called a marriage because two persons have undergone the ceremonies of marriage. Since
they absolutely lack capacity to marry they cannot, by just undergoing ceremonies become
husband and wife.

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Consequences of a void marriage

The parties have no status of wife and husband

Children of a void marriage are illegitimate (this is subject to the provision of section 16 of
Hindu Marriage Act 1955).

A void marriage doesn’t give rise to mutual rights and obligations.

Declaration of Nullity

Void marriages are wholly non-extent marriages, without any effect. It is therefore, not
obligatory for a spouse to obtain decree of nullity. However, such a decree in sort for the purpose
of precaution or for record. If one of the spouse is dead the other can’t seek a decree of nullity;
because death of one spouse doesn’t validate the marriage.

A bigamous marriage is null and void under this section. The second marriage must also be a
valid one or else it is no marriage and in such a case it is not bigamy. In case of bigamy of
husband the wife can’t seek a decree of nullity of the second marriage under this section but she
can file a suite for the declaration that the second marriage of the husband is void.

GROUNDS FOR VOID MARRIAGE:

Under section 11 Hindu Marriage Act 1955, a marriage is void on any of the following three
grounds (these grounds apply to marriage, solemnised after the commencement of the act, i.e
after May 18, 1955)

 That at the time of marriage, either party has its spouse living. In other words bigamous
marriage is void. Such a marriage will be void only if the first marriage is valid. If the
first marriage is void then seconds marriage will be valid

 The parties are sapinda to each other, the term “sapinda” relationship means the persons
relating to same blood. In other words one can’t marry to the same family. The traditional
law for the sapinda relationship says as follows that one can’t marry to a person of:
1. Seven generation from paternal side
2. Five generation from maternal side

But after the enactment of this act the law says as follows that one can’t marry to a person of:

1. Five generation from paternal side

2. Three generations from maternal side

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 3. The parties are within the prohibited degree of relationship. The section 3(g) of the Hindu
Marriage Act 1955 talks about degree of prohibited relationship that is as follows:

On any of these grounds either party can file a petition for declaration that the marriage is null
and void.

CONCEALMENT OF PRE-MARRIAGE PREGNANCY

Concealment of pre-marriage pregnancy by the respondent is a ground of voidable marriage. The

requirements for this grounds are:

1. The respondent was pregnant at the time of marriage.

2. She was pregnant from a person other than petitioner.
3. The petitioner at the time of marriage didn’t know of the respondent pregnancy.
4. The petition must be presented within one year
5. Marital Intercourse didn’t take place with the consent of the petitioner at the respondent
pregnancy by the petitioner.

VOIDABLE MARRIAGE

A marriage which can be annulled or avoided at the option of one or both the parties is known as
a voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable
Marriage. This section lays down four grounds on which a Hindu marriage becomes voidable.
These are:

1. Inability of the respondent to consummate the marriage on account of his or her

impotency.
2. Respondent’s incapacity to consent or suffering from a mental disorder.
3. Consent of the petitioner being obtained by fraud or force.
4. Concealment of Pre-marriage pregnancy by the respondent.

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Forms of Marriage According to Hindu Law

The old textual law provided for eight forms of marriage, four of them were approved and four
others were disapproved. The legal consequences in approved and unapproved forms of marriage
are not similar.

The wife in the approved forms of marriage enjoyed the status of Dharmpatni and all its
consequential rights whereas the wife in an unapproved form does not enjoy such status.
Moreover the approved forms of marriage were viewed with respect while the unapproved forms
were considered to be disgraceful.

The eight forms of marriage were as under:

(1) Brahma,
(2) Daiva,
(3) Arsha,
(4) Prajapatya,
(5) Asur,
(6) Gandharva,
(7) Rakshas,
(8) Paishach

Guardianship in marriage

(1) Wherever the consent of a guardian in marriage is necessary for a bride under this Act, the
persons entitled to give such consent shall be the following in the order specified there under,
namely:-

(a) the father;

(b) the mother;

(c) the paternal grandfather;

(d) the paternal grandmother;

(e) the brother by full blood; as between brothers the elder being preferred;

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(f) the brother by half blood; as between brothers by half blood the elder being preferred:

(f)Provided that the bride is living with him and is being brought up by him;

(g) the paternal uncle by full blood; as between paternal uncles the elder being preferred;

(h) the paternal uncle by half blood; as between paternal uncles by half blood the elder being
preferred:

Provided that the bride is living with him and is being brought up by him;

(i) the maternal grandfather;

(j) the maternal grandmother;

(k) the maternal uncle by full blood; as between maternal uncles the elder being preferred:

Provided that the bride is living with him and is being brought up by him.

(2) No person shall be entitled to act as a guardian in marriage under the provisions of this
section unless such person has himself completed his or her twenty-first year.

(3) Where any person entitled to be the guardian in marriage under the foregoing provisions
refuses, or is for any cause unable or unfit, to act as such, the person next in order shall be
entitled to be the guardian.

(4) In the absence of any such person as is referred to in sub-section (1), the consent of a
guardian shall not be necessary for a marriage under this Act.

(5) Nothing in this Act shall affect the jurisdiction of a court to prohibit by injunction an
intended marriage, if in the interest of the bride for whose marriage consent is required, the court
thinks it necessary to do so.

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Ceremonies of a Hindu Marriage

Section 7 of the Hindu Marriage Act 1955 recognizes the ceremonies and customs of marriage.
A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of
either party to the marriage .The parties to the marriage fulfill the conditions prescribed as
follows:

(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 saptpadi (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.

Ceremonies vary according to custom. The presentation of a pair of cloth by the bridegroom to
the bride (pudava koda) is an important customary rite among the Nair caste in Kerala. Tying of
a sacred thread around the neck of the bride (Mangalya Sutra or Tali ) is another rite. Exchange
of rings or garlands also is common.

The Supreme Court of India has ordered the compulsory registration of all marriages in India,
irrespective of the religion. In India a marriage can be registered under either of the two
marriages Act:

The Hindu Marriage Act, 1955

The Special Marriage Act, 1954

The Hindu Marriage Act is applicable only to the Hindus, The Hindu Marriage Act provides for
registration of an already solemnized marriage. It does not provide for solemnization of marriage
by the Registrar. For facilitating the proof of Hindu marriages, the state government may make
rules for the registration of marriages. Section 8 of the Hindu Marriage Act, 1955 provides for
the registration of Marriage. All rules made in this section may be laid before the state
legislature.
A Hindu marriage, which has already been solemnized in accordance with the religious customs
and rituals, can be registered under the Hindu Marriage Act, 1955. The Hindu Marriage Act is
applicable in cases where both husband and wife are Hindus, Buddhists, Jains or Sikhs or where
they have converted into any of these religions. The parties to the marriage have to apply to the
concerned authority in whose Jurisdiction the marriage is solemnized or either party to the
marriage has been residing. Along with the application form they have to attach two photographs
of the marriage ceremonies, invitation card of marriage, age and address proof of both parties,

16
affidavit of Notary/Executive Magistrate to prove that the couple is married under Hindu
Marriage Act 1955, fit mental condition, non relationship between the parties within the degree
of prohibition.

Both the parties have to appear before the Registrar along with their parents or guardians or other
witnesses within one month from the date of marriage. Marriage is registered before a marriage
registrar/tahsildar of the district, wherever the parties got married. The registration under the
Hindu marriage Act does not require any notice. It can be done on the same day of the filing of
application or a few days of moving the application for marriage. The parties will receive a
marriage certificate within few days, which is a proof of registration of marriage.

The Special Marriage Act, 1954

The Special Marriage Act is applicable to all citizens of India. Any person, irrespective of
religion such as Hindus, Buddhists, Jains, Sikhs, Muslim, Christian, Parsi, or Jewish can perform
marriage under the Special Marriage Act, 1954. Special Marriage Act provides for solemnization
of a marriage as well as registration by a Marriage Officer/Registrar. Under the Special Marriage
Act one months notice period is a statutory provision, which cannot be avoided.

The parties to the marriage have to given a Notice of Marriage in the specified form to the
Marriage Registrar of the district in which at least one of the parties to the marriage has resided
for a period of not less than thirty days immediately preceding the date on which such notice is
given. A copy of notice is affixed on the notice board of the registration office and a copy of the
notice is sent to the marriage officer of the area where either of the parties having
present/permanent addresses for similar publication. After the expiration of one month from the
date of publication of the notice, if no objections are received the marriage may be solemnized. If
any objections are received, the Marriage Officer has to enquire into them and take a decision
either to solemnize the marriage or to refuse it.

Both parties to be present on the date of registration of marriage with the proof of age and
address of both parties, affidavit with regard to these as well marital status, fit mental condition,
non relationship between the parties within the degree of prohibition, passport size photographs
and with three witnesses. In the presence of these three witnesses the marriage is solemnized by
the Marriage officer .The Marriage officer registers the marriage and a marriage certificate is
issued within few days of marriage.

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Divorce

Earlier divorce was unknown to general Hindu law as marriage was regarded as an indissoluble
union of the husband and wife. Manu declared that a wife cannot be released by her husband
either by sale or by abandonment, implying that the marital tie cannot be severed in anyway.
Although Hindu law does not contemplate divorce yet it has been held that where it is recognized
as an established custom it would have the force of law.

According to Kautilya’s Arthashatra, marriage might be dissolved by mutual consent in the case
of the unapproved form of marriage. But, Manu does not believe in discontinuance of marriage.
He declares” let mutual fidelity continue till death; this in brief may be understood to be the
highest dharma of the husband and wife.”

However, this changed when divorce was introduced in the Hindu Marriage Act, 1955.

Theories of Divorce
There are basically three theories for divorce-fault theory, mutual consent theory & irretrievable
breakdown of marriage theory.

Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved only
when either party to the marriage has committed a matrimonial offence. It is necessary to have a
guilty and an innocent party, and only innocent party can seek the remedy of divorce. However
the most striking feature and drawback is that if both parties have been at fault, there is no
remedy available.

Another theory of divorce is that of mutual consent. The underlying rationale is that since two
persons can marry by their free will, they should also be allowed to move out of their
relationship of their own free will. However critics of this theory say that this approach will
promote immorality as it will lead to hasty divorces and parties would dissolve their marriage
even if there were slight incompatibility of temperament.

The third theory relates to the irretrievable breakdown of marriage. The breakdown of marriage
is defined as “such failure in the matrimonial relationships or such circumstances adverse to that
relation that no reasonable probability remains for the spouses again living together as husband
& wife.” Such marriage should be dissolved with maximum fairness & minimum bitterness,
distress & humiliation.

Some of the grounds available under Hindu Marriage Act can be said to be under the theory of
frustration by reason of specified circumstances. These include civil death, renouncement of the
world etc.

18
Grounds for Divorce Under Hindu Marriage Act
It is conceded in all jurisdictions that public policy, good morals & the interests of society
require that marital relation should be surrounded with every safeguard and its severance be
allowed only in the manner and for the cause specified by law. Divorce is not favored or
encouraged, and is permitted only for grave reasons.

In the modern Hindu law, all the three theories of divorce are recognized & divorce can be
obtained on the basis of any one of them. The Hindu Marriage Act, 1955 originally, based
divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) on which either the
husband or wife could sue for divorce, and two fault grounds in section 13(2) on which wife
alone could seek divorce. In 1964, by an amendment, certain clauses of Section 13(1) were
amended in the form of Section 13(1A), thus recognizing two grounds of breakdown of
marriage. The 1976 amendment Act inserted two additional fault grounds of divorce for wife & a
new section 13B for divorce by mutual consent.

The various grounds on which a decree of divorce can be obtained are as follows-

Adultery
While adultery may not have been recognized as a criminal offence in all countries, the
matrimonial offence of adultery or the fault ground of adultery is recognized in most. Even under
the Shastric Hindu law, where divorce had not been recognized, adultery was condemned in the
most unequivocal terms. There is no clear definition of the matrimonial offence of adultery. In
adultery there must be voluntary or consensual sexual intercourse between a married person and
another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during
the subsistence of marriage. Thus, intercourse with the former or latter wife of a polygamous
marriage is not adultery. But if the second marriage is void, then sexual intercourse with the
second wife will amount to adultery.

Though initially a divorce could be granted only if such spouse was living in adultery, by the
Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is that
it considers even the single act of adultery enough for the decree of divorce.

Since adultery is an offence against marriage, it is necessary to establish that at the time of the
act of adultery the marriage was subsisting. Also, it follows that unless one willingly consents to
the act, there can be no adultery. If the wife can establish that the co-respondent raped her, then
the husband would not be entitled to divorce.

In Swapna Ghose v. Sadanand Ghose5 the wife found her husband and the adulteress to be lying

5
Swapna Ghosh vs Sadananda Ghosh And Anr. on 22 July, 1988

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in the same bed at night and further evidence of the neighbors that the husband was living with
the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is
that direct proof of adultery is very rare.

The offence of adultery may be proved by:

Circumstantial evidence
Contracting venereal disease

Cruelty
The concept of cruelty is a changing concept. The modern concept of cruelty includes both
mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different
factors in the life of spouses, and their surroundings and therefore; each case has to be decided
on the basis of its own set of facts. While physical cruelty is easy to determine, it is difficult to
say what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness,
which inflicts pain of such a degree and duration that it adversely affects the health, mental or
bodily, of the spouse on whom it is inflicted. In Pravin Mehta v. Inderjeet Mehta, the court has
defined mental cruelty as ‘the state of mind.’

Some Instances of Cruelty are as follows–

A. false accusations of adultery or unchastity
B. demand of dowry
C. refusal to have marital intercourse/children
D. impotency
E. birth of child
F. drunkenness
G. threat to commit suicide
H. wife’s writing false complaints to employer of the husband
I. incompatibility of temperament
J. irretrievable breakdown of marriage

The following do not amount to cruelty-

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 A. ordinary wear & tear of married life
B. wife’s refusal to resign her job
C. desertion per se
D. outbursts of temper without rancor.

Desertion
Desertion means the rejection by one party of all the obligations of marriage- the permanent
forsaking or abandonment of one spouse by the other without any reasonable cause and without
the consent of the other. It means a total repudiation of marital obligation.

The following 5 conditions must be present to constitute a desertion; they must co-exist to
present a ground for divorce:

A. the factum of separation

B. animus deserdendi (intention to desert)
C. desertion without any reasonable cause
D. desertion without consent of other party
E. statutory period of two years must have run out before a petition is presented.

In Bipinchandra v. Prabhavati the Supreme Court held that where the respondent leaves the
matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently
he shows an inclination to return & is prevented from doing so by the petitioner.

Conversion
When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam,
Christianity, Judaism, Zorostrianism, a divorce can be granted.

Insanity
Insanity as a ground of divorce has the following two requirements-

i) The respondent has been incurably of unsound mind

ii) The respondent has been suffering continuously or intermittently from mental disorder of such
a kind and to such an extent that the petitioner cannot reasonably be expected to live with the
respondent.

Leprosy
Contagiousness of leprosy and repulsive outward manifestations are responsible for creating a

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psychology where man not only shuns the company of lepers but looks at them scornfully. Thus,
it is provided as a ground for divorce. The onus of proving this is on the petitioner.

Venereal Disease
At present, it is a ground for divorce if it is communicable by nature irrespective of the period for
which the respondent has suffered from it. The ground is made out if it is shown that the disease
is in communicable form & it is not necessary that it should have been communicated to the
petitioner (even if done innocently).

Renunciation
“Renunciation of the world” is a ground for divorce only under Hindu law, as renunciation of the
world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may seek
divorce if the other party has renounced the world and has entered a holy order. A person who
does this is considered as civilly dead. Such renunciation by entering into a religious order must
be unequivocal & absolute.

Presumption Of Death
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for
a period of at least seven years. The burden of proof that the whereabouts of the respondent are
not known for the requisite period is on the petitioner under all the matrimonial laws. This is a
presumption of universal acceptance as it aids proof in cases where it would be extremely
difficult if not impossible to prove that fact. A decree of divorce granted under this clause is
valid & effective even if it subsequently transpires that the respondent was in fact alive at the
time when the decree was passed.

Wife’s Special Grounds For Divorce

Besides the grounds enumerated above, a wife has been provided four additional grounds of
divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-

Pre-Act Polygamous Marriage

This clause states the ground for divorce as, “That the husband has another wife from before the
commencement of the Act, alive at the time of the solemnization of the marriage of the
petitioner. For example, the case of Venkatame v. Patil[ix] where a man had two wives, one of
whom sued for divorce, and while the petition was pending, he divorced the second wife. He
then averred that since he was left only with one wife, and the petition should be dismissed. The
Court rejected the plea.

Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife)
should be present at the time of filing of the petition. However, today this ground is no more of
practical importance.

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Rape, Sodomy Or Bestiality
Under this clause, a divorce petition can be presented if the husband has, since the solemnization
of the marriage, been guilty of rape, sodomy or bestiality.

Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance

If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973
or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not
been resumed between parties after one year or upwards, then this is a valid ground for suing for
divorce.

Repudiation Of Marriage
This provision provides a ground for divorce to the wife when the marriage was solemnized
before she attained the age of fifteen years, and she has repudiated the marriage, but before the
age of eighteen. Such repudiation may be express (written or spoken words) or may be implied
from the conduct of the wife (left husband & refused to come back). Moreover, this right (added
by the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of the
fact that the marriage was solemnized before or after such amendment.

Irretrievable Breakdown Of Marriage

Irrespective of the three remedies available to parties that is: restitution of conjugal rights,
judicial separation and divorce, the judiciary in India is demanding irretrievable breakdown of
marriage as a special ground for divorce, as sometimes courts face some difficulties in granting
the decree of divorce due to some of the technical loopholes in the existing theories of divorce.
Both the Supreme Court and Law Committee consider the implementation of such a theory as a
boon to parties who for one or the other reasons are unable to seek the decree of divorce.
Therefore in the opinion of the Supreme Court and Law Commission of India, it is very essential
to make it a special and separate ground mission that introduction of irretrievable breakdown of
marriage, as a special ground will do any public good.

Under Hindu Marriage Act, 1955 primarily there are three theories under which divorce is
granted:

(i) Guilt theory or Fault theory,

(ii) Consent theory,

(iii) Supervening circumstances theory.

The Irretrievable breakdown theory of divorce is the fourth and the most controversial theory in
legal jurisprudence, based on the principle that marriage is a union of two persons based on love
affection and respect for each other. If any of these is hampered due to any reason and if the
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matrimonial relation between the spouses reaches to such an extent from where it becomes
completely irreparable, that is a point where neither of the spouse can live peacefully with each
other and acquire the benefits of a matrimonial relations, than it is better to dissolve the marriage
as now there is no point of stretching such a dead relationship, which exist only in name and not
in reality.

The breakdown of relationship is presumed de facto. The fact that parties to marriage are living
separately for reasonably longer period of time (say two or three years), with any reasonable
cause (like cruelty, adultery, desertion) or even without any reasonable cause (which shows the
unwillingness of the parties or even of one of the party to live together) and all their attempts to
reunite failed, it will be presumed by law that relationship is dead now.

Recently the Supreme Court Naveen Kohli v. Neelu Kohli has recommended an amendment to
the Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage as a
reason to seek divorce. Expressing the concern that divorce could not be granted in number of
cases where marriages were virtually dead due to the absence of the provision of irretrievable
breakdown, the court strongly advocated incorporating this concept in the law in view of the
change of circumstances.

The Court observed that public interest demands that the married status should, as far as
possible, as long as possible and whenever possible, be maintained. However, where a marriage
has been wrecked beyond any hope of being repaired, public interest requires the recognition of
the fact. The judgment notes that there is no acceptable way in which a spouse can be compelled
to resume life with the consort and that situations causing misery should not be allowed to
continue indefinitely as law has a responsibility to adequately respond to the needs of the society.
The profound reasoning is that in situations when there is absolutely no chance to live again
jointly or when it is beyond repair, in such a case it would be futile to keep the marital tie alive.
Here the ground of irretrievable breakdown is really needed. But it should not be oblivious that
the ground, when introduced, needs to provide safeguards to ensure that no party is exploited.

Merits
The only merit of the theory as has been propounded by the jurists is that a marriage, which in
practice is considered to be sacramental institution, should be based on grounds on which a
sound marriage is built- that is tolerance, adjustment and respecting each other. If any of the
party to marriage is not ready to live with the other party the relationship will not be a happy
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relationship. Stretching such a relationship will do no good, rather will develop hatred and
frustration among the parties for each other. Therefore to protect the sanctity of marriage, to
reduce the number of unhappy marriages and to prevent from getting wasted the precious years
of life of the spouses, it is necessary to dissolve such a marriage.

Demerits
The Law Commission Of India in Chapter 4 of the 71st report has dealt in detail the demerits of
the irretrievable breakdown theory. The two main oppositions discussed in the report are as
follows:

(i) It will make divorce easy. It will allow the spouses or even to any one of the spouses to
dissolve the marriage out of their own pleasure.

(ii) It will allow the guilty spouse to take the advantage of his own fault by getting separated and
dissolving the marriage.

Conclusion

Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there
was no provision for divorce. The concept of getting divorced was too radical for the Indian
society then. The wives were the silent victims of such a rigid system. However, time has

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changed; situations have changed; social ladder has turned. Now the law provides for a way to
get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors of
such a provision are women who no longer have to silently endure the harassment or injustice
caused to them by their husbands. But the manner in which the judiciary is dealing with the
subject of irretrievable break down of marriage, it is feared that it will completely pause the
system of marriages. Every theory has its negative and positive traits. There applicability differs
from situation to situation. Therefore it is very essential that the lawmakers of our country should
deal with the subject in a very cautious manner after considering in detail its future implications.

BIBLIOGRAPHY

 BOOKS:

o Agarwala R.K. - “Hindu Law”, 21st edn. 2003, Central Law Agency, Allahabad.

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o 7. Dr. Paras Diwan- “Modern Hindu Law”, 18th edn. 2007, Allahabad Law
Agency, Faridabad (Haryana).

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