THE HINDU MARRIAGE ACT , 1995

1. NATURE OF HINDU MARRIAGE

SACRAMENT CONTRACT
Hindu marriage is a religious bond Muslim marriage is said is said to be a
between the parties contract between the parties

2. CONDITIONS FOR HINDU MARRIAGE

A. Both Hindus
Here, both Hindus means either Hindus. Jains, Sikhs or Buddhists

GROOM BRIDE NATURE OF MARRIAGE

Raj Seema ✓
(Hindu) (Hindu)
Gurpreet Simran ✓
(Sikh) (Sikh)
Achint Annapuma ✓
(Jain) (Buddhist)
Sachin Harpreet ✓
(Hindu) Sikh
Rohan Chavvi ✓
(Hindu – JAAT) (hindu - PUNJABI) Hindu law allows inter-cast marriages
Samay Shivani Sagotra marriage is allowed under Hindu
(Hindu – Kashyap gotra) (Hindu – Kashyap gotra) law – The only requirement is both the
parties must be Hindus
Abhishek Sakeena For inter – religious marriage , the law is
SPECIAL MARRIAGE ACT
B. Monogamy
Monogamy means marrying another person during the existence of a valid
marriage

WHAT IS CONVERED WHAT IS NOT CONVERED

marrying another person during marriage Marriage after death of the spouse
Marrying another during illness/unsoundness Marriage after divorce
of spouse
BIGAMY APPLICABLE NO BIGAMY

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 C. Sound Mind
Sound mind for the purpose of marriage means capacity to understand the
nature of marriage and to fulfil the obligations attached to marriage and
mental fitness for procreation of children.

D. Legal Age
MALE FEMALES

21 Years 18 Years

E. Parties Not Within Prohibited Degrees

ANCESTORS IN-LAWS BROTHER-SISTER SOME OTHER

CLOSE RELATIONS
Father-daughter Father-n-law & Full blood,half Uncle- Niece
Daughter-in law blood,uterine blood
Mother–son Mother-in-law & Legitimate as well as Aunt-Nephew
son-in law illegitimate
Grandfather- Adoption also Cousins
Granddaughter covered
Brother’s Wife etc.
Grandmother-Grandson

Absolute Prohibition This is subject to

customs which
must be long-
standing and
resonable

F. Parties Not sapinndas of Each-Other

Sapindas means person made up of same blood and same flesh
FATHER’S SIDE MOTHER’SSIDE
Person upto 5 generations Person upto 3 generations

To be traced upwards with person of reference as the 1st degree

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 1. TYPES OF HINDU MARRIAGE
VALID VOIDABLE MARRIAGE VOID
MARRIAGE MARRIAGE
This is a perfectly In this case, one party has an option to It is no marriage in the eyes
legal marriage avoid the marriage of law – it is a nullity
The parties If the marriage is avoided, it is no The parties do not become
acquire the status marriage; if continued, it is a valid husband and wife – they are
of husband and marriage as good as unmarried
wife
All 6 conditions of The grounds of voidable marriage are- The grounds of void
marriage are a) Unsoundness of mind marriage are –
satisfied b) Child marriage A) Bigamy
c) Impotency B) Marriage within
d) Force / fraud prohibited
e) Pre-marriage pregnancy degrees
C) Marriage with
sapindas
GROUNDS OF VOIDABLE MARRIAGE
A. If either party to marriage is of unsound mind, marital bliss is a
remote possibility. Hence, the affected party is allowed to
come out of marriage.
B. CHILD MARRIAGE
➢ Meaning – Child marriage means a marriage in which
either party is a child – the girl is below 18 or the boy is
below 21 or both are under – age
➢ Nature Of Child Marriage
VOID VOIDABLE
X ✓
Making it void would have It is an avoidable marriage
affected the right of
several women
a) Who Can Avoid – the party who was child at the time of marriage
– if both where minors, both have the right to avid the marriage

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 MAINTENANCE
a) To whom

WIFE HUSBAND
✓ ✓
The wife can also claim Even the husband can claim
maintenance under Section maintenance from wife under
125, the Hindu Marriage Act. He
CrPC and the Hindu Adoption cannot do so other Section
and maintenance Act. 125,CrPC

b) Till when
DURING MARRIAGE AFTER DIVORCE

✓ ✓
(Upto re-marriage)

c) Forms of maintenance
ALIMONY MAINTENANCE

It means a lump sum amount it means monthly allowance

paid once which can be allowed even
(The amount paid to a live-in during proceedings –
partner is called palimony) maintenance pendent lite

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 FAMILY LAW

Hindu Marriage Act, 1955

• Applicable to only Hindus

• Personal Laws

Sources - Ancient

• Shruti or Vedas
Shruti is to hear (passed orally over generations)

• Smritis or Dharamashtras
Smritis is that is remembered (collection of ancient writings on Hindu Law)

Note: Commentary - Work done to explain a particular Smriti

Sources - Modern

• Precedent - Article 141

• Article 141 - Law declared by Supreme Court is binding on all courts
• Legislation - Laws made by parliament on Hindu Marriage

eg. Hindu Marriage Act, 1955

eg. Hindu Succession Act, 1956

Hindu Marriage Act, 1955

• Hindu, Jain, Sikh, Buddhist - Applicable

• Muslim, Christian, Jew, Parsi - Not Applicable

Note: Hindu Marriage Act, 1955 - Not Applicable to Scheduled Tribes

Bigamy - Offence of having more than one spouse

• Punishable under Indian Penal Code

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 Bigamy is of 2 types:

• Polygamy - Male having more than 1 wife

• Polyandry - Female have more than 1 husband

Note: Polygamy - Not allowed for Hindu male

Note: Polygamy - Allowed for Muslim male

Polygamy - Muslim man can marry 4 different women

If - Hindu is married to a woman and converts to Islam and marries another woman

Then - Hindu man shall be punished for bigamy because he married again while still married to
a Hindu woman

Conditions for valid Marriage:

• Both parties - Sound mind, Free constant

• Age - Male 21 years, Female 18 years

Note: If minor - Marriage is valid but punishable upto 2 years or fine of Rs.1 Lakh

Note: Marriage of minor girl child - Ground for divorce

Prohibhition of Child Mariage Act, 2006

• Minor Girl Child - Marriage is invalid

Valid Marriage - Proper ceremony must take place

• Conjugal Rights - Rights of both husband/wife on each other after marriage

• Restitution of Conjugal Rights - Petition to restore the conjugal rights
• Annulment of Marriage - Petition cannot be filed for annulment of marriage in a valid
marriage

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 Note: Annulment in valid marriage - Not allowed

• Valid Marriage - Annulment is not possible

• Valid Marriage - Divorce is possible

Void Marriage - Invalid from the beginning

• Bigamy
• Prohibited Degree of Relationship
• Sapinda Relationship
• Non-Ceremonial Marriage
• Minor Marriage i.e. unlawful, forceful, sold, trafficked (void)

Voidable Marriage - Valid until declared by court

• Impotency
• Mental Disorder
• Insanity
• Force or Fraud
• Pregnant by someone else other than husband
• Child Marriage (can be annulled at age upto 18 years)

Dissolution of Marriage - Divorce

1. Mutual

• Living separately for more than 1 years

• Mutually agree to take divorce

2. Disease of either spouse

• Incurable, Communicable
• Unsound of Mind

3. Fault Grounds

• Adultery - Sex with someone else other than husband

• Cruelty – Extreme in nature
• Desertion - Not less than 2 years after date of application
• Conversion - Convert to other religion
• Renunciation - Cut off from the world

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 4. Constructive divorce

• Person has not heard about the spouse for 7 years or more of being alive

5. Grounds for wife only to file divorce

• Bigamy by husband
• Rape by husband
• No cohabitation for 1 year
• Marriage of a Girl before 15 years and she has filed divorce before attaining 18 years

Grounds for Divorce

• No cohabitation
• No conjugal rights
• Irretrievable breakdown of marriage
• Living separately for 1 year after judicial separation order

Note: In judicial separation it is not obligatory to cohabit together

Hindu Succession Act, 1956

• Ascendants - Ancestors of person (father, grandfather)

• Descendants - Off Springs of person (son, grandson)

• Collaterals - Maternal uncle and aunt, paternal uncle and aunt, cousins, brothers, sisters

• Agnate - Male relationship

• Cognate - Female relationship

• Intestate - Person who dies without making a will

• Half Blood - Same father but different mothers

• Uterine blood - Same mother but different fathers

• Escheat - Rule if no heir then property goes to government

• Coparcerner - Rightful people who have joint property of common ancestor

• Karta - Senior member of joint family who manages the property (male or female)

• Matriarchy - Women have power on property

• Patriarchy - Men have power on property

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 Hindu Marriage Act, 1955

• For - Marriage and Divorce

Hindu Succession Act, 1956

• For - Succession of property

Hindu Adoption and Maintenance Act, 1956

• For - Adoption and Maintenance

Muslim Law:

• Dissolution of Marriage Act, 1939

Provide ground under which muslim women can obtain a decree for dissolution of
marriage

• The Muslim Women (protection of rights on divorce) Act, 1986

Provides grounds for maintenance/dower after divorce (during iddat period)

Special Marriage Act, 1954

• Inter-Religion marriages
• Do not require any rituals and ceremonies
eg. Hindu and Muslim marriage

Note: Hindu Succession Act, 1956 - Not applicable on Special Marriage Act, 1954

Note: Hindu Succession Act, 1956 - Only applicable on Hindu Marriage Act, 1955

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 Hindu Adoptions and Maintenance Act, 1956

If - Male or Female want to adopt son or daughter

1. Male or Female should be of sound mind

2. If married then consent of spouse needed for adoption

Note: Father, Mother, Guardian - Can only give child for adoption

Requirement of child who is to be adopted:

• He/She should be Hindu only

• He/She is not already adopted
• Not married
• Age - Less than 15 years
• Adoption of son - Adoptive father or mother doesn’t have Hindu son already
• Adoption of daughter - Adoptive father or mother doesn’t have Hindu daughter already
• Difference of age between adoptive father and to be adopted daughter - 21 years
• Difference of age between adoptive mother and to be adopted son - 21 years
• Same child cannot be adopted by more than one person

MUSLIM LAW

• Shias - Believe in succession of Prophet’s family

• Sunni - Believe in elections out of votes

Primary sources of Muslim law:

• Quran i.e. Reading

• Traditions of Prophet - Hadith

• Ijma - Decisions made by Jurists (like - common law system)

• Qiyas - Decisions made upon written text (like - civil law system)

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 Waqf - Property dedicated to charitable purposes in Muslim Law

Mutawalli - Manager of Waqf

Essentials for Muslim marriage:

• Puberty is attained (before puberty - muslim marriage is not allowed)

• Sound mind - Both parties
• Shia - Man can’t marry non-muslim woman
• Sunni - Man can marry non-muslim woman but only - Kitabia i.e. Christians, Jews
• Proposal (Ijab) and Acceptance (Qubul) is must
• Proposal and Acceptance - In single meeting only
• Mulla - Present in marriage to recite verses

Iddat - Waiting period

i.e. Mourning period for women after death or divorce with husband

• Woman is prohibited from marrying during Iddat period

• Iddat period - 3 months
• If pregnant then till delivery or abortion
• If no sex between husband and wife - Then no Iddat period after divorce
• Iddat after death of husband - 4 months 10 days (or until delivery - which is longer)

Sahih - Regular marriage

Fasid - Irregular marriage

• Marriage with woman undergoing Iddat

• Marriage with 5th women
• Difference in religion of husband and wife

Batil - Void marriage

• Void Marriage - Not recognized by law at all

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Note: Irregular marriage (Sunni) = Void marriage (Shia)

i.e. Irregular marriage in Sunni Law is completely void in Shia Law

Talaq - Divorce

1. Talaq ul Sunnat - Approved form of talaq

• Ahsan - No sex during Iddat (woman is pure)

i.e. This is best form of talaq

Note: Tuhr - State of purity

• Hasan - 3 times said Talaq during Tuhr period (pure period)

2. Talaq ul Biddat - Disapproved form of Talaq

• 3 times said Talaq - Immediate divorce

i.e. Triple Talaq - Unconstitutional (declared by - Allahabad High Court)

Case - Triple Talaq

Petition by - Shayara Bano

- Bhartiya Muslim Mahila Andolan

3. Ila - Husband swears not to cohabit with wife during Iddat period

• Zihar - When husband compares his wife with his mother unlawfully

Note: Wife can refuse to husband to cohabit

• Khula - Wife can ask for divorce from husband

If husband accepts i.e. Khula (divorce at request of wife)

• Mubarat - Divorce by mutual agreement of wife and husband

• Lian - When husband accuses his wife with false charge of adultery

Note: Wife can sue husband and get divorce

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 • Fasakh - Cancellation of marriage by Oazi

Note: Applicable before Muslim Marriage Dissolution Act

Used to be done by muslim woman to get divorce

Dissolution of Muslim Marriage Act, 1939

Grounds for divorce for wife - Applicable for both Shia and Sunni

1. Absence of husband - for 4 years

Probation period - 6 months (court gives probation period)

i.e. if husband returns within 6 months - divorce is cancelled

2. Husband fails to maintain wife - for 2 years

3. Husband is in jail - for 7 or more than 7 years

4. Husband is impotent

5. Husband is cruel to wife - wife can file divorce

6. Husband suffering from non-curable disease

7. Wife married before 15 years of age - can file for divorce before becoming 18

Dower - Sum of money for compensation for wife after divorce

Note: Dower (Mehr) - To mark as a respect of wife from husband

1. Specified Dower - Specified in marriage contract

• Prompt Dower - Payable to wife immediately after marriage

• Deferred Dower - Payable to wife after divorce or death of husband

2. Proper Dower - Not specified in marriage contract

• Given according to customs

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Mohammad Ahmed Khan v. Shah Bano Begum

• Supreme Court - Reasonable maintenance to wife after divorce

• Result - Muslim Women (protection of rights on divorce) Act, 1986

Daniel Latifi v. Union of India

• Supreme Court - Muslim Women (protection of rights on divorce) Act, 1986

• Maintenance of wife after iddat period also which is reasonable and fair

Shariat Act, 1931

• Applicable on all muslins

Note: Khoja Muslims - Originally Hindu but following Islam

Jamait-ul-i-Hind - Greatest muslim religious body and muslim organization

Note: Hadith Muhammad Ali - Manual of Hadith

Things to remember in Hindu Law:

Full Blood - Two children having same father and mother

Half Blood - Two children having same father but different mothers

Uterine Blood - Two children having same mother but different fathers

Step Relation - Two children having different fathers and mothers

Note: No adoption is allowed when a person already have a son and a daughter (Hindu Law)

Marriage in Hindus not allowed:

• Within prohibited degree of relationship

• Sapinda relationship (blood relation)
• Within same gotra (endogamy)
• Inter-Caste marriages
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