- Day - 02 - AIBE Exam Material
- Topic :- Hindu Marriage Act & Family Law Related Notes
Important Sections Hindu Marriage Act
- Section 2 – Application of Act.
Section 3 – Definitions.
Section 5 – Conditions for a Hindu Marriage.
Section 7 – Ceremonies for a Hindu Marriage.
Section 8 – Registration of Hindu Marriages.Section 9 – Restitution of conjugal rights.
Section 10 – Judicial Separation.
Section 11 – Void marriages.
Section 12 – Voidable marriages. (Difference between Void and Voidable Marriage)Section 13 – Divorce.
Section 13B – Divorce by mutual consent. (6 Month Time - Maximum 18 Months)
Section 14 – No petition for divorce to be presented within one year of marriage.
Section 16 – Legitimacy of children of void and voidable marriages.
Section 17 – Punishment of Bigamy.
Section 23 – Decree in proceedings.
Section 24 – Maintenance pendent elite and expenses of proceedings.
Section 25 – Permanent alimony and maintenance.DIVORCE
There are various theories regarding divorce such as:
-
Offence or guilty or fault theory
According to section 13 of the Hindu Marriage Act, 1955 any marriage solemnized whether before or commencement of the Act may on a petition presented by either husband or wife be dissolved by a decree of divorce on the ground that other party:
-
Has after the solemnization of the marriage had voluntary sexual intercourse with any person other than his/her spouse and has committed the offence of adultery.
-
Has, after the solemnization of marriage, treated the petitioner with cruelty. It may be mental or physical intentional or unintentional. In DASTANE V. DASTANE the court held that cruelty generally happens when a spouse does not care for the feelings and happiness of the other spouse and does a number of acts to injure the other spouse. It is a cumulative effect which makes behaviour cruel.
-
Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion may be actual, constructive or wilful neglect. The cause to leave the spouse must be sufficiently grave and weighty so as to justify living away.
-
Has been incurably of unsound mind or has been suffering continuously from mental disorder of such a kind and to such extent that the petitioner cannot reasonably be expected to live with the respondent.
-
Has ceased to be a Hindu by conversion to another religion. Mere renunciation of Hinduism and leading unorthodox life does not make a person cease to be a Hindu.
-
Has renounced the world by entering any religious order.
-
Has not been heard as being alive for a period of 7 years or more by those persons who naturally would have heard of it, had the party been alive.
Besides the above mentioned grounds, a wife has been provided four additional grounds of divorce:
-
Where any marriage solemnized before the commencement of Hindu Marriage Act, 1955 and the husband had married again before such commencement, then the first wife of pre-Act marriage may file a petition for divorce on the ground that her husband has remarried. Similarly, the second wife of the pre-Act marriage may file a petition for divorce on the ground that her husband’s first wife was alive at the time of solemnization of marriage. This ground will be available if both the marriages are valid and both the wives are alive when a petition of divorce is filed.
-
If the husband, since the solemnization of marriage is guilty for the commission of the offence of rape (sexual intercourse by a man with a woman), sodomy (anal intercourse by a man with his wife/another woman or with a man) or bestiality (sexual intercourse by a man with an animal).
A man is not guilty of raping his own wife unless she is under the age of 15 years.
-
If a wife has obtained an order of maintenance under section 125 CrPC or a decree under section 18, Hindu Adoption and Maintenance Act 1956 and cohabitation between the parties has not been resumed for one year or upwards after passing of the order or decree, then the wife may sue for divorce.
-
A wife who has married before she had attained the age of 15 years and who had repudiated the marriage either expressly (written or spoken words) or impliedly (through conduct) before she attains the age of 18 years, irrespective of the fact whether the marriage has been consummated or not may bring petition for divorce after she attains the age of 18 years on this. (repudiation and dissolution of marriage is not the same thing)
-
Irretrievable breakdown theory
Section 13 (1A) of the Hindu Marriage Act, 1955 states that any marriage whether solemnized before or after the commencement of this Act, may present a petition for dissolution of marriage by a decree of divorce on the following grounds:
-
There has been no resumption of cohabitation as between the parties to marriage for a period of one year or upwards after the passing of a decree of judicial separation in proceeding to which they were parties
-
There has been no restitution of conjugal rights as between the parties to marriage for a period of one year or upwards after the passing of a decree of restitution of conjugal rights in proceeding to which they were parties
-
Mutual consent theory
According to section 13 B of Hindu Marriage Act, 1955, where any marriage solemnized before or after the commencement of Hindu Marriage Act, 1955 the parties to the marriage can mutually dissolve their marriage, if they fulfil the following conditions:
-
A joint petition is to be filed by both the spouses stating that they have been living separately for a period of one year;
-
After presentation of the petition the parties are required to wait for 6 months though not more than 18 months (this is known as ‘cooling period’) and then move a motion in the court that divorce be granted.
-
After the due enquiries and on satisfaction that the consent of the parties is free the court shall pass a decree of divorce.
No appeal against a decree of divorce under section 13B of Hindu Marriage Act, 1955 shall lie unless the party finds himself/herself deceived.
JUDICIAL SEPARATION
Section 10 of Hindu Marriage Act, 1955 provides that either party to marriage may present a petition for a decree of judicial separation on any of the grounds as mentioned above for divorce under section 13(1) of Hindu Marriage Act, 1955 eg. adultery, cruelty, desertion etc. and wife have additional four grounds as mentioned under section 13(2) of Hindu Marriage Act, 1955 besides these.
Where a decree for judicial separation is passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent.
MAINTENANCE
Under Hindu Marriage Act, 1955 either spouse can claim maintenance while under CrPC and Hindu Adoption and Maintenance Act only wife can claim maintenance.
Under section 24 of Hindu Marriage Act, 1955 either spouse may claim personal maintenance and expenses of proceeding.
Under section 125 of CrPC, 1973 irrespective of the personal law following persons can claim maintenance from a husband, father, son or daughter:
-
Wife of a valid marriage (not living in adultery and has not remarried) who is unable to maintain herself
-
Legitimate or illegitimate minor child whether married or not, unable to maintain itself
-
Legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child, by reason of physical or mental abnormality or injury , is unable to maintain itself
-
Father or mother, unable to maintain themselves.
It is important that a person from whom maintenance is claimed must have sufficient means to maintain and he must have neglected or refused to maintain the person entitled to claim maintenance from him.
-
-
Child Custody laws
- Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children
- Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)
- Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faith
- Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.
Void and Voidable Marriage
-
Law Governing Void and Voidable Marriages: A void marriage as par Hindu marriage act is one that requires no formality to terminate, as it was invalid from the very beginning as it did not follow the strict grounds of a valid marriage as prescribed in the act.
-
Nullification of Marriage - An Annulled Marriage: annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this.
-
Annulment of Marriage under Hindu Law
Restitution of Conjugal Right
-
Restitution of Conjugal Right
-
Restitution of Conjugal Rights: After solemnization of marriage if one of the spouses abandons the other, the aggrieved party has a legal right to restore Conjugal Rights.
-
Restitution of Conjugal Rights: 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.
Adultery laws
-
Adultery law: Adultery is defined as a voluntary sexual intercourse by a married person with a partner other than his/her spouse.
-
Adultery: The dying voices analyzing and criticizing every aspect of the law have risen again. The insistence of the National commission.
-
Adultery in India - A ground for Divorce: In case of adultery direct proof is difficult to get and one has to rely for proof thereof on circumstantial evidence and the same may be sufficiently proved from which adultery maybe inferred. The burden of proving adultery in a matrimonial case is on the person who makes the allegation.
Void and Voidable Marriage
-
Law Governing Void and Voidable Marriages: A void marriage as par Hindu marriage act is one that requires no formality to terminate, as it was invalid from the very beginning as it did not follow the strict grounds of a valid marriage as prescribed in the act.
-
Nullification of Marriage - An Annulled Marriage: annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this.
-
Annulment of Marriage under Hindu Law
Restitution of Conjugal Right
-
Restitution of Conjugal Right
-
Restitution of Conjugal Rights: After solemnization of marriage if one of the spouses abandons the other, the aggrieved party has a legal right to restore Conjugal Rights.
-
Restitution of Conjugal Rights: 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.
Adultery laws
-
Adultery law: Adultery is defined as a voluntary sexual intercourse by a married person with a partner other than his/her spouse.
-
Adultery: The dying voices analyzing and criticizing every aspect of the law have risen again. The insistence of the National commission.
-
Adultery in India - A ground for Divorce: In case of adultery direct proof is difficult to get and one has to rely for proof thereof on circumstantial evidence and the same may be sufficiently proved from which adultery maybe inferred. The burden of proving adultery in a matrimonial case is on the person who makes the allegation.
- The bridegroom must be at least 21 years of age, and the bride must have attained the age of 18 years. However, if the couple or either the boy or girl have not attained the minimum required age for marriage and yet get married, it is not void. The marriage is voidable at the option of either party.
Most Important Sections of the Hindu Succession Act
Section 3 – Definitions and interpretations.
Section 5 – Act not to apply to certain properties.
Section 6 – Devolution of interest in coparcenary property.
Section 8- General rules of succession in the case of males.
Section 9 – Order of succession among heirs in the Schedule.
Section 10 – Distribution of property among heirs in Class I of the Schedule.
Section 11 – Distribution of property among heirs in class II of the Schedule.
Section 12 – Order of succession among agnates and cognates.Section 14 – Property of a female Hindu to be her absolute property.
Section 15 – General rules of succession in the case of female Hindus.
Section 16 – Order of succession and manner of distribution among heirs of a female Hindu.
Section 19 – Mode of succession of two or more heirs.
Section 21 – Presumption in cases of simultaneous deaths.
Section 25 – Murderer disqualified.
Section 26 – Convert’s descendants disqualified.
Section 29 – Failure of heirs.
Section 30 – Testamentary succession.