Introduction

The 18th of May marked 65 years since the enactment of the Hindu Marriage Act,1955 (“The Act”). The Act was part of the gamut of the Hindu Code Bill (“The Bill”) which attempted to codify, unify and liberalise Hindu Personal Laws. The Act granted individuals, especially women, greater autonomy in terms of marriage, dissolution of marriage, absolute ownership of property, equal parity in terms of inheritance, adoption, maintenance and guardianship. The Bill applies to Hindu, Sikh, Jain and Buddhist faiths.[1]

It was initially drafted by a committee chaired by BN Rau and this draft was significantly reviewed by Dr. B.R. Ambedkar who introduced it on 11.04.1948 in the Constituent Assembly. The Bill faced severe opposition and an All India Anti-Hindu Code Bill Committee was formed on the grounds that the Constituent Assembly had no right to interfere with the personal laws of Hindus which are based on the dharma shastras. Several other organisations carried out various protests against the enactment of the Bill. The Bill was eventually passed in the Parliament owing to the relentless efforts of Dr. BR Ambedkar and Pandit Jawaharlal Nehru. The Hindu Marriage Act, 1955 is one of the four acts that are a product of the Bill.[2]

The Act, being a social welfare legislation, is constantly evolving, through amendments and judicial precedents, in order to incorporate the interests of the prevalent social and economic milieu and to account for the enlarging and dynamic interests of the people. Further, these judicial pronouncements assist in filling any lacunae in the Act and in expanding the ambit and purpose of the Act. Through the course of this essay, certain important amendments and judicial pronouncements that have helped widen the ambit and applicability of the Act are analysed and explained.

Certain Salient Provisions:

One of the most significant features of the Act is that it granted considerable autonomy to individuals, especially women in terms of marriage, divorce, maintenance, custody rights. The Act is an all-encompassing legislation in terms of granting several legal remedies to those who seek a decree of dissolution of marriage or a decree of restitution of conjugal rights. Among the most important features of the Act is that it specifically lays down conditions of a valid Hindu marriage. A marriage is considered to be valid only if at the time of marriage neither party has a living spouse, neither party is incapable of giving valid consequent due to unsoundness of mind, neither party though capable of giving a valid consent has been suffering from mental disorder making him or her unfit for marriage and procreation of child, person is not subject to recurrent attacks of insanity, the bride has attained the age of 18 years and the groom has attained the age of 21 years[3].  However, some conditions of a void marriage, like if the parties are within the degrees of prohibited relationship and/ or sapindas of each other, are permissible if the custom permits such type of marriages. Therefore, in some instances, there has been some room for customs and traditions, wherein these permissible customs take precedence over the codified law and thus, the custom permits such relations. Further, in the event that a marriage has been entered into wherein the bridegroom is under the age of 21 years and the bride is below the age of 18 years, then a punishment of rigorous imprisonment for a period that may extend up to two years or with a sum that may extend to Rs.1,00,000/- or both is attracted.[4] In the event that a marriage takes place wherein the parties are within the degrees of prohibited relationship or are sapindas to each other and their custom does not provide for it, then a punitive action of simple imprisonment which may extend to one month or with a fine which may extent to Rs.1,000/- or both is attracted.[5] The Act has outlawed bigamy, even if it is customary in certain communities and the punishment for bigamy is imprisonment for a period of seven years, and a fine[6].

Another important aspect of the Act was the differentiation between void and voidable marriages. A void marriage is one wherein the parties are within the degrees of prohibited relationship or are sapindas to each other or the marriage is bigamous in nature[7].  In the event that a marriage is void, then a decree of nullity can be sought. The conditions that make a marriage voidable is enumerated in Section 12 of the Act. In the event that a marriage is voidable, then it may be annulled by a decree of nullity.

The Act provides interim and permanent maintenance to the husband or wife in the proceedings, depending on who files the claim for maintenance, thereby removing any gender barriers in terms of accessing financial support and maintenance. Further, it has been recognised that a woman who actually earns is not entitled to any maintenance.[8] The Act also grants permanent and interim custody of children to either the husband or the wife, depending upon whom the welfare of the child lies with.

Dissolution of marriage through a decree of divorce and important amendments

One of the most important features of the Act is that it introduced the concept of divorce or dissolution of marriage. Prior to the enactment of the Act, the concept of divorce did not exist in India and an aggrieved person could not ask for a grant of dissolution of marriage. Even after the enactment of the Act, it was not easy to get a of decree of divorce from the Courts due to the limited grounds available for dissolution of marriage. Prior to the Marriage Laws (Amendment) Act 1976, the grounds under which a person could seek a grant of divorce was if a person was “living in adultery”, “ceased to be a Hindu”, etc. These grounds were limited, for example a person had to be continuously committing acts of adultery and a single digression would not have sufficed to constitute as grounds for a divorce. Further, mutual consent was not recognised as a ground for divorce and two individuals could not amicably separate from one another.

The Marriage Laws (Amendment) Act 1976 brought with it crucial changes. One crucial change brought about by it was the insertion of the provision of seeking a divorce on the grounds of mutual consent[9]. A petition or first motion petition can be presented by both the parties after the parties have been living separately for a period of one year or more. Thereafter, the second motion petition has to be presented after a period of six months has lapsed and then a decree of divorce is granted to the parties. The statutorily mandated “cooling off period” of six months can be “waived” in certain occasions.

The Hon’ble Supreme Court, in the case of Amardeep Singh v Harveen Kaur[10]  held that since the period of six months mentioned in Section 13B(2) of the Act is not mandatory but directory in nature, it will be the discretion of the concerned Court to exercise its powers, depending on  the facts and circumstances of each case, to waive the cooling off period of six months, where there is no possibility of parties to resume cohabitation and there are chances of alternative rehabilitation. In the event that the concerned Court is satisfied that  all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC and Section 23(2) of the Act and Section 9 of the Family Courts Act, 1984 to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts and that the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties and the waiting period will only prolong their agony, the concerned Court can waive the period of six months mentioned in Section 13B(2) of the Act. The aforementioned judgment of the Supreme Court is helpful as it provides a remedy to parties who wish to reducing the waiting period of 6 months in order to get a grant of decree of divorce. However, the statutorily prescribed waiting period of 6 months has not been invalidated and is still in place which ensures that parties always have the discretion to exercise the waiting period in order to re-think or re-evaluate their decision for dissolution of their marriage. Therefore, the two legal aspects co-exist and are available to parties who either want a decree of divorce be granted immediately or want to exercise the “cooling off period” of six months.

In India, the fault theory of divorce exists which means that the petitioner or the person seeking a divorce has to show that he or she is not at fault and is innocent and the fault lies with the respondent or the spouse. Further, the petitioner has to sufficiently and specifically lay down the fact that he or she has not taken any advantage of his or her wrong or been an accessor to or connived at or condoned the acts of the other party on which the dissolution of marriage has been sought. The Respondent in turn has to prove that he is not at fault. The fault theory of divorce embodies the concept that a marriage is a sacrament that has to be saved and protected. Further, due to the fault theory of divorce occupying centre stage in divorce proceedings in India, grounds such as irretrievable breakdown of marriage does not find a place in the grounds for divorce, despite the Parliament and various Law Commission Reports highlighting the importance of it being a ground for divorce.

Irretrievable breakdown of marriage essentially means that a divorce can be sought by one party on the basis that the marriage is irredeemable, dead letter and beyond repair and the husband and wife are living separately for several years and despite mediation and conciliatory efforts, it is still impossible for the parties to reside together as husband and wife. Even though irretrievable breakdown of marriage is not a statutory provision, the Hon’ble Supreme Court of India has recognised the concept of irretrievable breakdown of marriage, the lacunae in the statute with regard to this as a ground and has granted a divorce in several cases where the marriage has irretrievably broken down by exercising its inherent jurisdiction under Article 142 of the Constitution of India (“the Constitution”) in a plethora of judgments. In the case of Munish Kakkar vs Nidhi Kakkar, the Hon’ble Supreme Court of India held that since the continuity of the marriage between the parties was fruitless and was causing further emotional trauma and disturbance to both the parties, the sooner it comes to an end, the better it would be, for both the parties. Therefore, the Court exercised its inherent jurisdiction under Article 142 of the Constitution and granted a decree of divorce and dissolved the marriage between the parties since  an end to this marriage would permit the parties to go their own way in life after having spent two decades battling each other and have a better life separately.

In another case of R.Srinivas Kumar v R. Sametha, the Supreme Court exercised its inherent power under Article 142 of the Constitution by granting a decree of divorce since the parties have been living separately for more than 22 years and it will not be possible for them  to live together and that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. The Supreme Court also clarifies that if both the parties amicably agree for separation permanently and for a divorce through mutual consent, then they can approach the appropriate forum to seek a divorce. However, if only one party does not agree, then the powers of the Supreme Court under Article 142 of the Constitution can be invoked. There are several other cases in which the Supreme Court has invoked Article 142 of the Constitution such as Naveen Kohli v Neelu Kohli[11] which also recommended the Government to consider amending the Act to incorporate irretrievable breakdown of marriage as a ground for divorce., Samar Ghosh v Jaya Ghosh[12], Sukendhu Das v Reeta Mukherjee[13] amongst others.  

The Law Commission of India in its 71st Report, in as early as April 1978 recommended the Act to be amended in order to insert irretrievable breakdown of marriage as a ground for divorce. Thereafter, in its 217th Report dated 30.03.2009 once again recommended that irretrievable breakdown of marriage should be incorporated as a ground for granting a decree of divorce in light of several Supreme Court precedents that did not exist during the recommendation made in its 7st Report. Further, the Marriage Laws (Amendment) Bill, 2010 was introduced and passed in the Rajya Sabha which sought an amendment to the Act to incorporate irretrievable breakdown of marriage as a ground for divorce. However, the Bill lapsed as the Parliament’s session also lapsed and was thereafter never introduced. Therefore, the prevailing sentiment is that the Act be amended in order to insert irretrievable breakdown of marriage as a ground for divorce and the same has been recognised as being imperative by various Law Commissions.

Another curial feature of the Act is that it conferred legitimacy upon children born from void and voidable marriages and did not automatically render them illegitimate due to no fault of theirs. Before the Marriage Laws (Amendment) Act 1976 was enacted, under Section 16, a child begotten from a void or voidable marriage was considered legitimate only if a degree of nullity was awarded for the marriage between the parents of the child. Further, such a child would be considered to be legitimate as if the marriage between the parents of the child had been dissolved instead of being annulled [14]. Ergo, in the event that the parents of the child did not obtain a declare of nullity for their marriage, the child would be considered an illegitimate child and therefore would be precluded from various inheritance rights. However, after The Marriage Laws (Amendment) Act, 1976 was passed,  a child born from a void or voidable marriage will be considered to be a legitimate child in the same manner as though he was begotten from a valid marriage even if a degree of nullity or annulment has not been obtained by the parents of the child. This was a crucial and important amendment as now illegitimate children’s familial rights would not suffer any infirmity[15].

Another provision of the Act which has been under challenge numerous times and is also presently under challenge is the provision regarding restitution of conjugal rights. Section 9 of the Act provides that in the event that a husband or wife without reasonable cause withdraws from the society of the other, then a petition for the restitution of conjugal rights may be presented by the aggrieved party. The constitutional validity of this provision is presently under challenge in the Supreme Court on the grounds that it is violative of the right to privacy, individual autonomy and dignity of individuals guaranteed under Article 21 of the Constitution. Several countries such as United Kingdom, South Africa and Ireland have abolished provisions and legal actions of restitution of conjugal rights. 

Therefore, to conclude, the Hindu Marriage Act, 1955 is an important piece of social welfare legislation that has provided  a codified framework along with legal remedies with regard to issues of marriage and divorce. Further, the Act is constantly evolving and changing to incorporate the prevailing sentiments and interests of people and the milieu. While there does exist certain lacunae in the Act, the lacunae are filled through various judicial pronouncements. Further, certain provisions are becoming a little gender neutral and are accounting for other circumstances, thereby giving all parties an equal and fair opportunity. 

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Prachi Dutta is a practising Advocate in New Delhi. She studied History at Hindu College, Delhi University and thereafter pursued LLB Hons. from Jindal Global Law School, Sonepat.


[1] India After Gandhi by Ramchandra Guha

[2] Ibid

[3] Section 5 of the Act

[4] Section 18 of the Act

[5] Ibid

[6] Section 494 Indian Penal Code, 1860

[7] Section 11 of the Act

[8] K.N. vs R.G. [MAT. App. (F.C.) 93/2018] , Rupali Gupta vs Rajat Gupta (2016) 234 DLT 693 (DB)

[9] Section 13B of The Act

[10] (2017) 8 SCC 746

[11] (2006) 4 SCC 558

[12] (2007) 4 SCC 511

[13] (2017) 9 SCC 632

[14] Section 16 (pre-amendement)- Legitimacy of children of void and voidable marriages.—Where a decree of nullity is granted in respect of any marriage under section 11 or section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity:

Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

[15] Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi [(1996) 4 SCC 76]

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