Marriage has been considered a very religious and divine process among Hindus. It has been a subject of Dharmashastra since ages. While every aspect of religious laws were being subject to codification, making a law out of shastra was the need of the hour with regards to marriage. There were concepts of polygamy (having more than one wife) among Hindus which have been eliminated through Hindu Marriage Act, 1955. Various other changes have been introduced into the historic Hindu practices of marriage via the HMA Act. Hindu culture is well known for hundreds of rituals during marriages. Saat Pheras (Legally termed as Saptapadi or circles around the holy fire) are taken as the ultimate act necessary for a marriage. But people still have almost zero clarity over how things are legally acceptable. If I have doubts, I will approach lawyers near me. But some prior knowledge will help with better understanding during consultation with marriage or divorce lawyers as provided below.
What is the Hindu Marriage Act?
An Act which is also popularly known as the HMA Act regulates marriages of Hindus. It provides conditions which validate a marriage, nullify it, end the marriage or reconcile married couples. It also provides information about the courts which legally hear the proceedings related to HMA 1955.
Hindu Marriage Act, 1955 is the answer to following questions:
- Who is a Hindu for marriage under the HMA Act?
- What are marriage rules among Hindus?
- What is the age of marriage in India 2022?
- Can I do second marriage without divorce in India?
- Can a man marry two wives legally?
- Is marrying in another cast legal in Hindus?
- What are Hindu Marriage Act divorce processes?
- Can people of other religions marry through pheras (Saptapadi)?
Salient Features of the Hindu Marriage Laws
- A Hindu by birth or by conversion is the subject of Hindu Marriage Act, 1955.
- The definition of Hindu under HMA Act includes Buddhist, Jain and Sikh as well.
- Customary practices (customs/ long-term usages (Reeti-Riwaz)) are well respected under the Hindu Marriage Act, 1955.
- Saptapadi, i.e. steps taken by the bride and groom before holy fire, is a necessary ritual for marriage among Hindus. However, marriage ceremonies are subject to customs and accepted accordingly.
- The concept of divorce among Hindus was introduced through the HMA Act only.
- It also brought an end to the customary practice of bigamy, polygamy or polyandry, i.e multiple marriages.
- Registration of a Hindu marriage is subject to laws applicable in particular states. However, a marriage is not invalid or illegal due to lack of an official certificate.
- Matters of Hindu marriages and divorce follow procedure in family court in India.
- Matters under the Act are taken up by the courts of territorial jurisdiction (city/ town) where the marriage was celebrated, where one of the parties resides or where the husband and wife last resided together.
- Unlike any other matrimonial laws in India, the HMA Act also contains provision of restitution of conjugal rights (RCR). So, if one of the spouses leaves the other without any reasonable excuse, such other spouse may reach the court for restoring their matrimonial relations and bring back the spouse. Consultation with divorce lawyers in Kolkata will help if the matrimonial house of the parties is located in Kolkata.
- A marriage is void (legally invalid from the beginning) if it is a bigamy, sapinda or prohibited relationship.
- Sapinda relations include 3 generations in mother’s family tree and 5 generations in case of father’s family tree. (Eg. X is a girl and Y (boy) the first cousin of X’s mother, they are Sapindas to each other and thus, prohibited from marrying)
- Prohibited relations include certain relations that are prohibited from marrying each other. These include brother and sister, brother’s wife, uncle and niece, etc. These include full blood, half blood and relations through adoption as well.
- To put an end to marriage, understanding of divorce vs legal separation is important. While legal separation is a comma, divorce is the full stop to marriage.
- A marriage is voidable (may be declared invalid and null on request of one of the parties) in certain cases as explained below in detail.
- Hindu Marriage Act, 1955 Section 13 provides for the various grounds on the basis of which, divorce can be granted to one of the spouses if another does not agree to separate. There are special grounds which specifically allow the wife to seek divorce from her husband.
- Although parties are legally not allowed to seek divorce within 1 year of marriage, they can go for judicial separation. However, divorce may be granted before completion of 1 year in special circumstances of exceptional hardship.
- The Act also allows divorce through mutual consent.
- If one spouse is alive and the person remarries, such marriage is not only void but the person is also punishable under Sections 494 and 495 of the Indian Penal Code, 1860.
- Marriage among minors is punishable with imprisonment upto 3 years and/or fine upto Rs 1 lakh.
- Marriage among sapindas or prohibited relations is punishable with imprisonment upto 1 month or fine of upto Rs 1000. The relationship can be easily understood with the help of divorce attorney.
Conditions for Valid Marriage under HMA Act
Section 5 of Hindu Marriage Act provides conditions for a Hindu Marriage which have been explained below:
- No Bigamy - Neither boy nor girl should have a living spouse at the time of marriage.
- Free Consent - Both the parties should be mentally stable to give their consent for marriage.
- Age of Majority - The minimum age for marriage is 18 years for girls and 21 years for boys.
- Sapinda Relations - Marriage between a boy and a girl who are related through mother (upto 3 generations) or father (upto 5 generations) is not valid unless customs allow.
- Prohibited Relations - If bride and groom fall under the prohibited relations, such marriage is invalid unless customs allow.
Voidable Marriage under HMA Act, 1955
A marriage is otherwise legal and valid, but can be declared illegal by one of the parties to marriage. Such conditions for voidable marriage under Section 12 of Hindu Marriage Act are as follows:
- If one or both the parties was minor (below 18 or 21 years of age) at the time of marriage.
- Marriage is not consummated (lack of first sexual intercourse) because one of the spouse is impotent.
- If the wife was pregnant by someone other than her husband at the time of marriage, the husband can seek annulment of marriage.
Hindu Marriage Act - Divorce
Divorce is the act of legal termination of marriage. Before the HMA Act, 1955 was brought, there was no concept of divorce among Hindus. Once marriage used to be solemnized, it used to become a matter of 7 lives with the same partner. While women were supposed to worship their husband all their lives regardless of how devil of a human he was, a man could remarry based on his own whims and fancies.
The Hindu Marriage Act put an end to this discriminative cycle by introducing the concept of divorce. The Hindu Marriage Act, 1955 section 13 explains dissolution of marriage through divorce. Keeping up with the Hindu notions of permanence of marriage, the laws are not so liberal for grant of divorce. There are various grounds for divorce which need to be satisfied in case one of the parties is willing to separate while the other wishes to continue the marriage. Such grounds include cruelty, adultery, mental instability, etc. In case both husband and wife are willing to separate, HMA Section 13B provides for mutual divorce as well. Parties can not seek divorce within 1 year of marriage. Parties are allowed to marry only after the end of the period of appeal after divorce decree is granted.
Apart from permanent end to the marriage, there is a concept of judicial separation as well which is required before grant of divorce. In this case, parties are still married to each other but stay separately unlike a couple.
Suggestions for HMA 1955
Codification or say, making a written law on concepts of Hindu marriages is applaudable since religious matters are sensitive. End of malpractices like child marriage, polygamy, etc. is also a commendable feature of the Act. But nothing is perfect and even Hindu Marriage Act needs some upgradation with time. A provision like ‘Restitution of Conjugal Rights’ is a hurdle in the fast paced and career oriented generation of the current era. Also, while divorce is a much normalized term, grant of contested divorce is so difficult as per the Hindu Marriage Act, 1955 that most of the people end up living their own lives while enduring the namesake tag of ‘being married’. Laws must be there to make lives easier and not a burden.
For Hindu Marriage Act, 1955 Bare Act - Click Here.