Index

1. Introduction 
2. Who The Hindu Marriage Act Applies To
3. Key Points Of The Hindu Marriage Act
4. Theories Of Divorce
5. Key Sections Of The Hindu Marriage Act And Recent Supreme Court Ruling
6. Grounds For Divorce Under The Hindu Marriage Act
7. Required Documents For Filing A Divorce In India (Indian Divorce Act, 1869)
8. Types Of Divorce Under The Hindu Marriage Act
9. Detailed Divorce Procedures Under The Hindu Marriage Act, 1955
10. Maintenance And Alimony
11. Conclusion
12. FAQs

 

Introduction 

The Hindu Marriage Act, established in 1955, standardised marriage laws for Hindus. It also provides guidelines for filing for divorce under specific sections of the law. Marriages are complex and involve deep emotional and financial commitments. This act aims to protect the rights of both the bride and groom according to Hindu marriage traditions.

Who The Hindu Marriage Act Applies To

This Act applies to:

1. Anyone who is a Hindu by religion, including Virashaivas, Lingayats, and followers of the Brahmo, Prarthana, or Arya Samaj.
2.  Anyone who is a Buddhist, Jain, or Sikh by religion.
3. Any other person living in areas where this Act is in effect, who is not a Muslim, Christian, Parsi, or Jew, unless it can be shown that they wouldn’t have been governed by Hindu law or customs if the Act hadn’t been passed.

People considered Hindus, Buddhists, Jains, or Sikhs under this Act include:

1. Any child, legitimate or illegitimate, with both parents being Hindus, Buddhists, Jains, or Sikhs.
2. Any child, legitimate or illegitimate, with one parent who is Hindu, Buddhist, Jain, or Sikh, and who is raised in that parent’s community or family.
3. Anyone who converts or re-converts to the Hindu, Buddhist, Jain, or Sikh religion.

Key Points Of The Hindu Marriage Act

The Hindu Marriage Act is essential for anyone entering a formal marriage. Understanding this law helps the bride and groom grasp the seriousness and consequences of their union. The Act sets important rules to protect their rights, including:

Bigamy: A man cannot have multiple wives at the same time. He must legally divorce his current wife before marrying another woman. If not, he can be punished under sections 494 and 495 of the Indian Penal Code, 1860.

Marriage Age: The legal minimum age for marriage is 21 for boys and 18 for girls. Marriages below this age are not legally valid, and the couple may face legal consequences.

Restitution of Conjugal Rights: If one spouse withdraws from the marriage without a valid reason, the other can request the court to restore their marital rights, helping to preserve the marriage.

Mental Stability: A marriage is void if one or both parties are mentally unfit. Legal consent is required in such cases, as specified in sections 5(ii)(a), (b), and (c) of the Hindu Marriage Act.

Marriage Ceremonies: Marriages performed according to customary rituals are legally binding. Any child born from such a marriage is the legal responsibility of the father.

Theories Of Divorce

Fault Theory: This theory dates back to the 19th century when divorce was seen as a negative concept. It allows divorce if one spouse commits a serious offence like adultery, cruelty, desertion, or refusing to obey a court order. However, if both spouses are at fault or the innocent spouse forgives the guilty one, divorce cannot be granted. Initially, the right to divorce was only given if one spouse was guilty of breaking the marriage contract. Many reasons for divorce in the Hindu Marriage Act, 1955, follow this theory, including adultery, cruelty, desertion, rape, and failure to provide maintenance.

Frustration Theory: This theory views divorce as a way to escape frustration in a marriage. If one spouse’s actions cause deep anguish and mental cruelty over time, it can lead to divorce. Grounds for divorce under this theory include mental disorder, physical ailment, religious conversion, renunciation of the world, or long-term absence. The Hindu Marriage Act, 1955, recognizes these reasons for divorce.

Mutual Consent Theory: Under this theory, if both spouses agree to end the marriage, they can do so by mutual consent. The Hindu Marriage Act now allows divorce by mutual consent under Section 13B, reflecting a shift from the traditional view of marriage as unbreakable to a consensual partnership.

Irretrievable Breakdown Theory: This theory is based on the idea that some marriages break down beyond repair. It defines such breakdown as a failure in the marital relationship where there is no reasonable chance for the spouses to live together again. In such cases, the marriage should be dissolved fairly.

Key Sections Of The Hindu Marriage Act And Recent Supreme Court Ruling

Section 10 of the Hindu Marriage Act covers judicial separation, explaining the lawful process for divorce. It involves filing a petition in the family court, citing grounds for separation. These grounds can be specified under sections 13(i) and (ii).

When a couple agrees to divorce by mutual consent under Section 10A of the Indian Divorce Act, 1869, they must meet these conditions:

1. They should be separated for at least two years and prove they haven’t lived as husband and wife during this time.
2.  They must have been separated for over a year.
3. They should be able to show they can’t live together.
4.  They need to agree on issues like child custody, maintenance, and property rights.

Section 5 outlines the conditions for a Hindu marriage. These conditions are discretionary, not mandatory, meaning a marriage “may” be solemnised under the following conditions:

1. Neither the groom nor the bride is already married at the time of their marriage.
2. Both parties must be capable of giving consent and not suffer from mental incapacity, recurrent insanity, or epilepsy.
3. Both must meet the minimum age requirements which is  21 for the groom and 18 for the bride.
4. Neither party should fall within prohibited relationships unless allowed by their custom.
5. The parties should not be sapindas unless their religion or custom permits it.

Section 13 of the Hindu Marriage Act outlines various conditions under which a divorce can be granted. This section includes multiple grounds for divorce recognized by the courts. Section 13 specifies grounds available only to women and they are :

1. Conversion: If a Hindu converts to another religion such as Parsi, Christianity, or Islam.
2. Insanity: Any prolonged mental illness or mental disorder makes it unreasonable for one to live with the other.
3. Venereal Disease: A sexually transmitted disease.
4. Presumption of Death: If a spouse has been missing and not heard from for seven years.
5. Bigamy: If the husband has married another woman.
6. Rape, Sodomy, or Bestiality: If the husband is guilty of these acts.
7. Maintenance Decree: If the wife has obtained a maintenance order under Section 18 of the HMA or Section 125 of the Penal Code and still wants a divorce.
8. Separate Living: If the wife has been living separately.
9. Underage Marriage: If the marriage occurred before the wife was 15, she can file for divorce before turning 18.
10. Living Separately for One Year: If the couple has lived apart for at least one year.

Section 14 of the Hindu Marriage Act, 1955, states that a marriage cannot be dissolved within the first year. However, exceptions are possible if there is sufficient proof and relevant sections are cited in the petition. The Act emphasises that marriages should be given a fair chance for reconsideration and reconciliation, considering the mental, emotional, and financial impact, especially if children are involved.

Section 15 outlines that both parties can remarry after a divorce decree is granted. However, this right is on hold if there is an existing appeal against the decree. Until any appeal is resolved and dismissed, neither party can lawfully remarry.

Grounds For Divorce Under The Hindu Marriage Act

1. Adultery: Having an extramarital affair or sexual relationship outside the marriage. Example: Jane finds out that her husband, Tom, has been having an affair with another woman for several months.
2. Cruelty: Unjustifiable behaviour causing physical, mental, or emotional harm. Example: Sarah’s husband, Mike, constantly yells at her, insults her, and sometimes even hits her, causing her severe emotional distress and fear.
3. Desertion: Abandonment of the spouse without consent or a valid reason. Example: Emily’s husband, John, left their home two years ago without telling her where he was going, and she hasn’t heard from him since.
4. Conversion to Another Religion: Changing from Hinduism to a non-Hindu religion. Example: Raj, who was married to Priya, converts to Christianity and asks Priya to do the same, but she wants to remain Hindu.
5. Mental Disorder: Any mental illness makes it impossible for the couple to live together. Example: Tina’s husband, Alex, has severe schizophrenia that makes it impossible for them to live a normal life together, despite her efforts to help him.
6. Communicable Disease: Having an STD or any serious contagious disease. Example: Mark finds out that his wife, Laura, has a serious and incurable STD that she did not disclose before their marriage.
7. Renunciation of the World: Leaving the marriage to pursue a religious life and abandoning the family. Example: Maria’s husband, David, decides to leave their home and join a monastery, renouncing all worldly possessions and family responsibilities
8. Presumption of Death: When a spouse has been missing for 7 years or more and is presumed dead. Example: Lily’s husband, Ben, went on a trip seven years ago and never returned. Despite extensive searches, no one has heard from him, and he is presumed dead.
9. Unsound Mind or Continuous Insanity: Any incurable or long-term mental disorder giving the petitioner valid reasons to seek divorce. Example: Linda’s husband, Sam, has been diagnosed with a severe, untreatable mental illness that makes him unable to function in daily life, and she finds it impossible to continue the marriage.

Required Documents For Filing A Divorce In India (Indian Divorce Act, 1869)

To file for divorce in India, you need to provide the following documents:

1. Husband’s address proof
2. Wife’s address proof
3. Marriage certificate
4. Four passport-sized photos of the marriage
5. Proof that the spouses have been living separately for over a year
6. Evidence of failed reconciliation attempts
7. Income tax statements for the last two years
8. Details of profession and current salary
9. Information about family background
10. Details of property and other assets owned by the petitioner

Types Of Divorce Under The Hindu Marriage Act

1. Divorce with Mutual Consent: Both parties agree to the divorce and have their lawyers prepare a memorandum of understanding. This forms the basis of the final petition, which is then filed in court.
2. Divorce Without Mutual Consent: One party does not agree to the divorce. The petitioner files a petition in court, and the family court grants the divorce based on the facts presented.
3. Divorce Notice: An official legal document sent by the petitioner to their spouse, indicating their intention to divorce. It serves as a final warning and gives the spouse a chance to reconsider before legal proceedings begin.

Detailed Divorce Procedures Under The Hindu Marriage Act, 1955

Step 1: Filing the Petition: Both partners (husband and wife) submit a divorce petition in the family court through their respective lawyers. This petition includes details about their separation, terms, and necessary evidence.

Step 2: Court Appearance: A date is set for both parties to appear in court with their lawyers. They must present all relevant information, including family backgrounds, properties, reasons for divorce, child custody (if applicable), and ID proofs.

Step 3: Mediation: The court may send the couple for mediation to explore reconciliation options, as Hindu marriage is considered a sacred and permanent bond. If reconciliation is not possible, the divorce proceedings continue in the family court.

Step 4: Court Examination and First Motion: The judge examines the evidence and statements from both parties. The judge can modify conditions related to alimony, maintenance, or child custody if needed. The first motion is then passed, and the couple is given 6 to 18 months to reconsider their decision and attempt reconciliation.

Step 5: Reconciliation Period: During this period, if the couple reconciles, they can cancel the divorce through their lawyers. If not, the divorce proceedings continue, and final statements are recorded in the second motion.

Step 6: Final Agreement: The spouses sign a final agreement covering alimony, maintenance, and child custody to prevent future conflicts.

Step 7: Divorce Decree: If the court is satisfied that reconciliation is not possible, the final motion is granted, and the divorce decree is issued, making the marriage void and invalid.

Maintenance And Alimony

These are financial support payments that a person must give to their spouse, as ordered by the court, regardless of their divorce status.

Interim maintenance is an amount one partner gives to the other to meet their needs during the divorce process. This ensures that the receiving partner has sufficient funds and is not disadvantaged in the case.

Once the divorce is granted, a specified amount is paid by one partner to the other. If the payer fails to provide this support, the receiving party can seek legal assistance from the court.

The court considers various factors such as future and lifestyle expenses, children’s education costs, inflation, and medical expenses. The amount is based on the financial capabilities of both parties and requires proof of their financial status. It should be realistic, and the payer is obligated to meet these financial responsibilities as decided by the court.

 

Conclusion 

Seeking a divorce under the Hindu Marriage Act of 1955 is a significant and often challenging decision, involving emotional, psychological, and financial strain. Understanding the various sections of the Act is essential for making informed choices. Hiring a lawyer is crucial, as they are knowledgeable about the complexities of divorce proceedings and can anticipate potential challenges. While it is easier to request a divorce than to contest and finalise it, the process can take from 1 to over 10 years, depending on the case’s specifics and the agreement between both parties.

 

FAQs

1. Who does the Hindu Marriage Act apply to?

Answer: The Act applies to Hindus, Buddhists, Jains, Sikhs, and their children. It also includes anyone living in areas where the Act is in effect, except Muslims, Christians, Parsis, or Jews, unless they can show they wouldn’t be governed by Hindu law without the Act.

2.What are the key rules for marriage under the Hindu Marriage Act?

Answer: No bigamy (having multiple spouses), Minimum age for marriage: 21 for boys, 18 for girls, Mental fitness for marriage, Marriage ceremonies must follow customary rituals

3. What are the main grounds for divorce under the Hindu Marriage Act?

Answer: Grounds for divorce include adultery, cruelty, desertion, conversion to another religion, mental disorder, communicable diseases, renunciation of the world, and presumption of death.

4.What is the process for getting a divorce under the Hindu Marriage Act?

Answer: The process includes filing a petition, court appearances, possible mediation, court examination, a reconciliation period, signing a final agreement, and finally, obtaining a divorce decree.

5.What is the difference between divorce with mutual consent and without mutual consent?

Answer: Divorce with mutual consent is when both spouses agree to the divorce and jointly file a petition. Divorce without mutual consent occurs when one spouse does not agree, and the petitioner must present their case in court.

6.What is maintenance and alimony, and how are they decided?

Answer: Maintenance and alimony are financial support payments one spouse gives to the other. The court decides the amount based on factors like living expenses, children’s education, inflation, and medical costs. Interim maintenance is given during the divorce process, and permanent maintenance is decided after the divorce is granted.