section 1 to 13

1. Hindu Marriage Act, 1955
Section 1-13
Rachana K.Chawda

2. Hindu code bills
• The Hindu code bills were several laws
passed in the 1950s that aimed to codify
and reform Hindu personal law in India.
• Hindu Succession Act (1956),
• Hindu Minority and Guardianship Act
(1956),
• Hindu Adoptions and Maintenance Act
(1956).

3. • he Hindu law of marriage, as the British rulers of India found, interpreted and
applied, was, in a nutshell, as follows:
(1) Marriage was a holy sanskar, it could be solemnised in one of the eight
forms recognised by law;
(2) The solemnisation would be according to the Shastric or customary rites;
(3) One could marry at any age, as there was no lowest age of marriage;
(4) Inter-religious and inter-caste marriages were prohibited, but the latter
could be sanctioned by custom;
(5) Marrying within one’s gotra or pravara was not allowed, except among the
Shudras;
(6) Husband and wife would live together, the latter would be submit to the
wishes of the former, and the former would maintain the latter;
(7) Marriage was indissoluble; divorce was not permitted unless recognised by
custom;
(8) Death did not dissolve a marriage and therefore a widow could not remarry
unless permitted by custom so to do.
The courts in India recognized, interpreted and applied all these principles in
their minute’s details.
Changes brought about by the Hindu Marriage Act, 1955
The new Act has made radical and substantial changes in the institution of
marriage.

4. Salient features of the Hindu
Marriage Act, 1955
• (1) A Hindu marriage is now not so much concerned with religion. It
is more a result of mutual consent than sacramental [Sections 5(ii),
(iii), 11 to 13 and 7].
(2) Marriages amongst Hindu, Jains, Sikhs and Buddhists are now
valid Hindu marriages in the eyes of the law (Section 2).
(3) As per Section 3 the divergence between the Mitakshara and
Dayabhaga schools in connection with the expression “prohibited
degrees of relationship” for the purpose of marriage is now
removed. The strict rule prohibiting marriages within the limits of
Sapinda relationship, as defined in the Smritis, have been
considerably relaxed. Some new degrees of relationship have also
been added. Thus one cannot now marry a person who was the
wife of the brother of the other.
(4) Monogamy amongst the Hindus is introduced for the first time
by the Act. Bigamy is now punished under the Indian Penal Code.
The conditions and requirements of a valid marriage are now very

5. • (5) Caste considerations for inter-caste and inter-communal marriages
have now been made irrelevant, eliminating all restrictions thereupon.
(6) There were different kinds of marriages in vogue before the Act.
Now they are of no consequence and the only form of marriage will be
that accepted by the parties as prevailing in his or her community
(Section 7).
(7) The Act now makes no distinction between the marriage of a
maiden and the marriage of a widow.
(8) The ancient Hindu law did not prescribe any age for marriage but it
is now a condition of marriage that the bridegroom must have
completed 21 years and the bride must have completed the age of 18
years (Section 5).
(9) The Act now lays down conditions of a valid marriage and does not
recognise any particular form of a Hindu marriage (Section 5).
(10) For a valid Hindu marriage no particular ceremony is prescribed
by the Act. Sections 5 and 7 lay down that such a marriage can be
solemnised in accordance with the customary rights and ceremonies of
any one of the parties to the marriage.
(11) Provision for registration of Hindu marriages has been provided for
the first time (Section 8).

6. • (12) Eliminating restrictions based on gotra, pravara and
Sapinda relationship the Act makes provisions for judicial
separation, for divorce and for annulment of marriages (Section
10 to 14).
(13) Provisions for restitution of conjugal rights of the parties
(Section 9).
(14) After a valid divorce either party may remarry (Section 15).
(15) Provisions for legitimacy of children born out of alliances
which may be subsequently declared annulled or void or
voidable (Section 16).
(16) Provisions for maintenance pendente lite and for expenses
of legal proceedings (Section 24).
(17) Permanent alimony and maintenance (Section 25).
The custody, maintenance and education of minor children
during the pendency of legal proceedings as also after passing
of decree (Section 26).

7. Hindu Marriage Act (1955)
Sections Particulars
Preliminary
1 Short title and extent
2 Application of Act
3 Definitions
4 Over-riding effect of Act
Hindu Marriages
5 Conditions for a Hindu marriage
6 Guardianship in marriage
7 Ceremonies for a Hindu marriage
8 Registration of Hindu marriages
Restitution Of Conjugal Rights And Judicial Separation
9 Restitution of conjugal rights
10 Judicial separation

8. Nullity Of Marriage And Divorce
11 Void marriages
12 Voidable marriages
13 Divorce
13A. Alternate relief in divorce proceedings
13B. Divorce by mutual consent
14 No petition for divorce to be presented within one years
of marriage
15 Divorced persons when may marry again
16 Legitimacy of children of void and voidable, marriages
17 Punishment of bigamy
18 Punishment for contravention of certain other conditions
for a Hindu marriage

9. Jurisdiction And Procedure
19 Court to which petition should be made
20 Contents and verification of petitions
21 Application of Act 5 of 1908
21A. Power to transfer petitions in certain cases
21B. Special provision relating to trial and disposal of petitions under the Act
21C. Documentary evidence
22 Proceedings may be in camera and may not be printed or published
23 Decree in proceedings
23A. Relief for respondent in divorce and other proceedings
24 Maintenance pendente lite and expenses of proceedings
25 Permanent alimony and maintenance
26 Custody of children
27 Disposal of property
28 Enforcement of, and appeal from, decrees and orders
Savings And Repeals
29 Savings
30 Repeals

10. Marriage Laws (Amendment) Bill,
2010
• Based on recommendations of the Law Commission,
a legislation was proposed. The Marriage Laws
(Amendment) Bill, 2010 to amend the Hindu Marriage
Act, 1955 and the Special Marriage Act, 1954 to
making divorce easier on ground of irretrievable
breakdown of marriage was introduced in the
parliament in 2012. The Bill replaces the words "not
earlier than six months" in Section 13-B with the
words "Upon receipt of a petition."
• It also provides a better safeguard to wives by
inserting section 13D by which the wife may oppose
the grant of a decree on the ground that the
dissolution of the marriage will result in grave financial
hardship to her and that it would in all the
circumstances be wrong to dissolve the marriage.

11. • New section 13E provides restriction on decree
for divorce affecting children born out of
wedlock and states that a court shall not pass a
decree of divorce under section 13C unless the
court is satisfied that adequate provision for the
maintenance of children born out of the
marriage has been made consistently with the
financial capacity of the parties to the marriage.
• Marriage Laws (Amendment) Bill, 2010 makes
similar amendments to the Special Marriage
Act, 1954 by replacing the words "not earlier
than six months" in Section 28 with the words
"Upon receipt of a petition" and provides
restriction on decree for divorce affecting
children born out of wedlock

12. 1.Short title and extent.-
• (1) This Act may be called the Hindu
Marriage Act, 1955.
• (2) It extends to the whole of India except
the State of Jammu and Kashmir, and
applies also to Hindus domiciled in the
territories to which this Act extends who
are outside the said territories.

13. 2. Application of Act.-
• (1) This Act applies-
• (a) to any person who is a Hindu by religion in any of its
forms or developments, including a Virashaiva, a Lingayat
or a follower of the Brahmo, Prarthana or Arya Samam,
• (b) to any person who is a Buddhist, Jaina or Sikh by
religion, and
• (c) to any other person domiciled in the territories to which
this Act extends who is not a Muslim, Christian, Parsi or
Jew by religion, unless it is proved that any such person
would not have been governed by the Hindu law or by any
custom or usage as part of that law in respect of any of the
matters dealt with herein if this Act had not been passed.

14. • (2) Notwithstanding any thing contained in sub-section
(1), nothing contained in this Act shall apply to the
members of any Scheduled tribe within the meaning of
clause (25) of article 366 of the Constitution unless the
Central Government, by notification in the Official
Gazette, otherwise directs.
• (3) The expression 'Hindu' in any portion of this Act
shall be construed as if it included a person who,
though not a Hindu by religion is, nevertheless, a
person to whom this Act applies by virtue of the
provisions contained in this section.

15. 3. Definitions.-
a) custom and usage
b) district court
c) full blood and half blood
d) uterine blood
f) sapinda relationship
g) degrees of prohibited relationship

16. • two persons are said to be within the "degrees of
prohibited relationship"-
• (i) if one is a lineal ascendant of the other; or
• (ii) if one was the wife or husband of a lineal
ascendant or descendant of the other; or
• (iii) if one was the wife of the brother or of the
father's or mother's brother or of the grandfather's
or grandmother's brother of the other; or
• (iv) if the two are brother and sister, uncle and
niece, aunt and nephew, or children of brother and
sister or of two brothers or of two sisters;

17. • For the purposes of clauses (f) and (g),
relationship includes-
• (i) relationship by half or uterine blood as well
as by full blood;
• (ii) illegitimate blood relationship as well as
legitimate;
• (iii) relationship by adoption as well as by
blood and all terms of relationship in those
clauses shall be construed accordingly.

19. Marriage is sacrament or a civil
contract?
• Yes, It is both
• Manusmrti shows that there is actually a
gift of the bride.
• Purshottamadas vs Purshottamadas –
marriage of hindu children is a contract
made by their parents
• Anjona das vs Ghose- suits related to
marriage deal with that which in the eye of
thee law must be treated as a civil
contract. Important civil rise out of that
contract

20. Section 5
• Clause (i) – Condition of monogamy
This condition implies monogamy and prohibits
bigamy or polygamy. The expression “neither party
has a spouse living” depicts that the spouse must
not be alive at the time of marriage. If the spouse is
alive at the time of marriage that could bar the
remarriage of a person.
• However one must note that the first marriage of a
person should be a legally valid marriage. In spite of
one’s valid marriage if the person remarries in
violation of Section 5(i), the second marriage will
be null and void and he will be subjected to
penal consequences. The Scheduled Tribes are
exempted from the application of the Act. But there
must be a proved custom to this effect.

21. • Bigamy – Section 5(i)
Section 5(i) prohibits bigamy or polygamy.
Section 11 makes a bigamous marriage void
and Section 17 makes it a penal offence for
both Hindu males and females under
Section 494 and 495 of IPC. The offence of
bigamy is committed only if the required
ceremonies of marriage are performed. The
second marriage cannot be taken to be proved
by the mere admission of the parties; essential
ceremonies and rites must be proved to have
taken place. In the case of a bigamous
marriage, the “second wife” has no status of

22. • The Supreme Court has ruled that children born
out of wedlock have the right to inherit their
father’s ancestral property.In Revanasiddappa
vs Mallikarjun case , Justices G.S. Singhvi and
A.K. Ganguly ruled that children from a second
wife had rights to their father’s ancestral property
• The supreme court of India in Kushboo case
virtually equated Live –in relationship to marital
relationship. In another case ,the supreme court
also said Children born out of live-in are not
illegitimate.
• “The live-in- relationship if continued for such a
long time, cannot be termed in as "walk in and
walk out" relationship and there is a presumption
of marriage between them ..”Supreme Court in
2004 in the Rameshchandra Daga vs
Rameshwari Daga case ,where the maintenance
rights of women in “informal relationships or
invalid marriages” were upheld

23. Clause (ii) – Condition
regarding mental health or
capacity•
Sub clause (a) requires that at the time of marriage
neither party is incapable of giving a valid consent
to marriage due to unsoundness of mind.
Sub clause (b) – Mental disorder: According to sub-
clause (b) at the time of marriage neither party to
marriage should be suffering from a mental disorder of
such nature and to such a degree as to be unfit for
two purposes (i) marriage and (ii) procreation of
child.
• In Tarlochan Singh v. Jit Kaur, the court held the
marriage void on the ground that wife was suffering
from schizophrenia within short period after marriage
and the disease was not disclosed to the husband
before marriage.

24. • Sub clause (c) – Recurrent attacks of
insanity: If a person has been subject to
recurrent attacks of insanity he is also not
qualified for marriage under Hindu
Marriage Act. He cannot marry even during
a lucid period.
Post marriage mental illness: If a party to
a marriage is not suffering from any mental
defect described under section 5(ii) but
falls ill mentally after the marriage, there is
no violation of this condition.

25. Clause (iii) – Condition of
marriageable age
According to this clause, at the time of marriage the
bride must have completed the age of 18 years
and the bridegroom of 21 years.
• Thus a child marriage is prohibited under Hindu
Marriage Act.
• However, violation of this condition does not
make the marriage void or voidable. It means
that it is valid though it may attract penalties. But it
can become a valid ground for repudiation of
the marriage. The Hindu Marriage Act and the
Child Marriage Restraint Act provide for
punishment for such marriage.
• (punishment : riorous imprisionment upto 2 yrs or
fine upto 1 Lakhs or both)

26. • According to Section 18 of Hindu Marriage
Act, anyone who procures a marriage for
himself or herself in contravention of
Section 5(iii) may be punished with upto
15 days imprisonment or with a fine upto
Rs. 1000 or with both. Under the Child
Marriage Restraint Act, 1929, a male
above the age of 25 years marrying a girl
below 15 years is punishable with upto 3
months imprisonment and is also liable to
fine. The Child Marriage Restraint
(Amendment) Act 1978 has also raised the
age of marriage of girl to eighteen.

27. Clause (iv) – Avoidance of
degrees of prohibited
relationship•
The parties to marriage must not fall within the degree
of prohibited relationship. This relationship is defined
under Section 3(g) of the Act.
According to Section 3(g) “degree of prohibited
relationship” means when two persons are related to
each other in any of the following manners:
(i) By lineal ascent: If one is a lineal ascendant of the
other. This relationship covers the Sapinda
relationship which extends upto fifth degree in the
line of father and third degree in the line of the
mother. The distinction of this category is that it
extends even beyond the Sapinda ascendants

28. • (ii) By affinity: If one is the husband or wife of the lineal
ascendants or descendants of the other. For example,
father-in-law and daughter-in-law, mother-in-law and
son-in-law, step mother and step son or step father and
step daughter are thus within the degrees of prohibited
relationship.
•
(iii) Wives of certain brother relations if one was the wife of:
(1) The brother, or
(2) The father’s brother, or
(3) The mother’s brother, or
(4) The father’s father’s brother, or
(5) The mother’s father’s brother, or
(6) The father’s mother’s brother, or
(7) The mother’s mother’s brother.

29. • (iv) Certain close relations if both are:
(1) Brother and sister, or
(2) Niece and uncle (paternal or maternal), or
(3) Nephew and aunt (paternal or maternal),
or
(4) Children of a brother and a sister, or
(5) Children of two brothers, or
(6) Children of two sisters.

30. • According to Section 11 of Hindu Marriage
Act, a marriage in contravention of this
condition is void. It is also punishable under
section 18(b) of the Act.
(i) ‘A’ marries his adopted sister. This is not a
valid marriage, as it falls within the degrees of
Prohibited relationship. (ii) ‘A’ marries with the
wife of Pre-deceased brother. It is not a valid
marriage as it falls within the degree of
Prohibited relationship. (iii) ‘A’ marries his
stepmother’s sister. It is not a valid marriage,
‘A’ is related to his step-mother by half blood
relationship

31. Clause (v) – Avoidance of
sapinda relationship
• According to Section 3(f)(ii) two persons are
said to be “sapindas” of each other if one is a
lineal ascendant of the other within the limits
of sapindas relationship, or if they have a
common lineal ascendant to each of them.
Whereas Section 3(f)(i) states that “sapinda
relationship” with reference to any person
extends as far as the third generation
(inclusive) in the line of ascent through the
mother, and the fifth (inclusive) in the line of
ascent through the father, the line being
traced upwards in each case from the person
concerned, who is to be counted as the first

32. • section 3(a) of Hindu Marriage Act requires is that for maturing into a
custom a rule should have been observed for a long time,
continuously and uniformly.
When essential ceremonies consulting a Hindu marriage are not
proved, the mere issuance of certificate under Special Marriage Act
cannot validate the marriage if the marriage has not been solemnised
as per the requirements of this Act.
The Act does not, however prescribe the ceremonies requisite for
solemnisation of the marriage but leaves it to the parties to choose a
form of ceremonial marriage which is in accordance with any custom
or usage applicable to either party; and where the form adopted
includes the Saptapadi–that is the taking of seven steps by the
bridegroom and the bride jointly before the sacred fire–marriage
becomes complete when the seventh step is taken.
The essential rites which may, however, be said to be the
requirement common in all ceremonial marriages are: (i) invocation
before the sacred fire; and (ii) saptapadi.

33. Void and Voidable marriages
(Sections 11 and 12)
There are three types of marriages under
this Act: (i) valid, (ii) void, and (iii) voidable.
Section 11 deals with void marriages and
Section 12 deals with the voidable
marriage. All other marriages which are
not covered by these two sections are
valid.

34. • Thus a marriage will be void ab initio:
(1) If any party to marriage has a spouse living at
the time of the marriage [Section 5(i)].
(2) If the parties are within the degree of prohibited
relationship unless the custom or usage governing
each of them permits such a marriage [Section
5(iv)].
(3) If the parties are sapindas of each other, unless
the custom or usage governing each of them
permits such a marriage [Section 5(v)].
Section 11 of this Act is prospective in nature. It is
only applicable to marriages solemnised after the

35. Section 11-Void marriages
• It states that any marriage solemnized at the
commencement of this Act shall be null and
void and may, on a petition presented by either
party thereto against the other party be so
declared by a decree of nullity if it contravenes
any of the conditions specified in clauses (i), (iv)
and (v) of Section 5.

36. Effect of Void marriages
• A void marriage is no marriage. It is void since its
inception. No legal rights and duties flow from it.
Therefore, the relationship of husband and wife
does not come into existence from a void
marriage. No declaration of the court is necessary
to this effect.
• The issues from a void marriage are illegitimate
unless legitimatised by law in some way. If one
withdraws from the society of the other, the other
party has no right to the restitution of conjugal
rights. If one of them marries again, he or she is
not guilty of bigamy and the validity of later

37. Section 12-Voidable marriages-A marriage
which can be annulled or avoided at the
option of one or both the parties is known as
a voidable marriage. Section 12 of Hindu
Marriage Act contains relevant provisions of
Voidable Marriage.
• his section lays down four grounds on which a Hindu
marriage becomes voidable. These are:
(1) Inability of the respondent to consummate the
marriage on account of his or her impotency.
(2) Respondents incapacity to consent or suffering from
a mental disorder.
(3) Consent of the petitioner being obtained by fraud or
force.
(4) Concealment of Pre-marriage pregnancy by the
respondent.

38. Impotency [Section 12(1)(a)]
• (1) That the marriage has not been consummated; and
(2) That the non consummation is due to the impotence of
the respondent.
• Regarding impotency, the various principles laid down by the
courts could be summarised as follows:
1) Full and complete penetration is an essential ingredient of
ordinary and complete intercourse, though degree of sexual
satisfaction obtained by the parties is irrelevant. If one
spouse is oversexed and the other is not, it does not amount
to impotency.
(2) Impotency is usually either (a) physical, or (b) mental.
Physical impotency includes malformation of, or structural
defects in the organs, such as unduly large male organ or
abnormally small vagina.

39. • (3) Mental or psychological impotency includes
emotional, psychological or moral repugnance
or aversion to the sexual act. In Shantabai v.
Tara Chand, the wife was alleged to have an
absolute repugnance towards sexual
intercourse although she had normal sexual
organs. Held that it amounts to impotency.
Where immediately after marriage the husband
lived for three nights and days in the same
room with his wife and failed to consummate
the marriage, it was a fair inference that non-
consummation was due to husband’s knowing
refusal arising out of incapacity, nervousness or
hysteria

40. • . In Nijhawan v. Nijhawan, a liberal
interpretation of the word ‘impotence’ was
made by the court. In that case, the wife
felt depressed and frustrated owing to the
failure of husband to perform full and
complete sexual intercourse. Held that
vigorous and harmonious sexual activity is
the foundation of marriage and a marriage
without sex is anathema. The court
considered the husband’s impotency to be
a cause of mental and physical cruelty to
the wife.

41. • (4) If impotency can be cured by medical treatment or
surgery, it would not amount to impotency, unless the
respondent refuses to undergo treatment. In
Rajendra v. Shanti, where the size of wife’s vagina
was after surgical operation one and half inch, but
was fit for intercourse, the court said that wife was not
impotent.
(5) Mere barrenness or incapacity to conceive a child
or sterility does not amount to impotency. In
Shewanti v. Bhaura, the wife was sterile but was
capable of having sexual intercourse held that she
was not impotent.
Burden of Proof: The Burden of Proof lies on
petitioner but when once the impotency is proved
there is a rebuttable presumption in favour of its

42. Consent obtained by force or
fraud [Section 12(1)(c)]
• a marriage is voidable on the ground that the consent of
the petitioner or of the guardian has been obtained by
force or fraud.
• Provided no petition for annulling a marriage:
(1) If the petition presented more than one year after the
force had ceased to operate or, as the case may be, the
fraud had been discovered [Section 12(2)(a)(i)]; or
(2) The petitioners has, with his or her full consent, lived
with the other party to the marriage as husband or wife
after the force had ceased to operate or as the case may
be the fraud had been discovered [Section 12(2)(a)(ii)].

43. •
Force: The word Force is not defined by the
Act. But it may include all cases of compulsion,
coercion or duress. Abduction, terror, coercion
and threat to commit suicide will definitely be
covered by the term force. Whenever owing to
some natural weakness of mind or on account
of some fear, whether entertained reasonably or
unreasonably, but nonetheless really
entertained or when a party is in such a mental
state that he finds it almost impossible to resist
the pressure, it will amount to force.
However, mere pressure or strong advice,
persuasion etc., will not amount to force

44. •
Some important grounds of fraud: (1) Nature of
ceremony, (2) Identity of the party, (3)
Concealment of disease, (4) Concealment of
religion or caste, (5) Concealment of previous
marriage, (6) Concealment of unchastity, (7)
Concealment of illegitimacy, (8) Concealment of
age, (9) Petitioner’s father’s fraud, (10)
Concealment of financial status and nature of
employment.
A petition for nullity must be filed within one year
of the discovery of fraud or cessation of force.
This condition is mandatory.
Thus the operation of Section 12(1)(c) has been

45. Pre-marriage Pregnancy [Section
12(1)(d)]
•
Section 12(1)(d) provides that a marriage is voidable on the
ground that the respondent was at the time of the marriage
pregnant by some person other than the petitioner.
Section 12(1)(d) is to be read with Section 12(2)(b) which
lays down three further conditions which are to be satisfied in
order to avail of the remedy under Section 12(1)(d). These
are:
(1) That at the time of the marriage the petitioner was
ignorant of the facts alleged;
(2) That the petitioner has started proceedings under Section
12 within one year of the marriage; and
(3) That the petitioner did not have, with his consent, marital
intercourse with his wife ever since he discovered that the

46. • Thus the requirements of this ground are:
(1) The respondent was pregnant at the time of
marriage.
(2) The respondent was pregnant from a person
other than the petitioner.
(3) The petitioner was ignorant of this fact at the
time of marriage.
(4) The proceeding is started within one year of the
marriage.
(5) Absence of marital intercourse by the petitioner
husband with his wife since such discovery.

47. • If the girl becomes pregnant by some person before her
marriage and subsequently the same fellow marries her
the section has no application. If the bride becomes
pregnant by some other person than her husband after
marriage the section has no relevance.
Onus of proof lies on the petitioner husband to prove this
wife’s admission of pre-marriage pregnancy plus the fact
that husband had no access to her before marriage is
sufficient to establish her pre marriage pregnancy.
In Nishit v. Anjali, where a bride gave birth to a mature
child within 167 days from the date of marriage, it was
held that it was for the wife to raise a reasonable doubt
that she was pregnant by the person who became her
husband.
A blood test for the ascertainment of the child’s paternity
is also possible. If the wife volunteers for the same then
it is well and good, but it cannot be forced upon her.

48. Void Marriage Voidable Marriage
A marriage which is void ab initio is a total
nullity. A marriage is non-existent in such a
case and does not affect or alter the status
of the parties. Moreover, it does not create
any rights and obligations of the parties,
which normally result from a valid
marriage.
A voidable marriage remains valid and
binding till avoided. It is and continues to
be valid marriage for all the purposes till a
decree annulling it is passed under Section
12.
Parties to a void marriage are criminally
liable.
No penalty is laid down for a voidable
marriage.
A void marriage is void ab initio and it can
be held to be so without a formal
declaration by a court under Section 11.
While for a voidable marriage, to put an
end to it, annulment is necessary.
Section 11 applies to a void marriages only
contracted after the commencement of the
Act.
Section 12 applies to marriages contracted
before or after the commencement of the
Act.
In case of Section 11 the Act itself declares
a marriage to be null and void without any
action on the part of any spouse. Of course,
nobody can stop a spouse from getting a
declaration of nullity for the purpose of
precaution and for the record. Children
born out of void and voidable marriages are
legitimate (Section 16).
The remedy available under Section 12 is
an optional remedy, i.e., the party
concerned has to take the aid of a court for
an annulment decree.
It is not necessary that a decree declaring a
void marriage as void is passed. The parties
to a void marriage may perform another
marriage without getting a decree declaring
their marriage as void and neither will be
guilty of bigamy.
But a voidable marriage will remain a valid
marriage till a decree annulling it is passed.

49. 6. Guardianship in marriage.-
• [Rep. by the Child Marriage Restraint
(Amendment) Act, 1978, (2 of 1978), section 6
and Schedule (w.e.f. 1.10.1978)].
• (1) Wherever the consent of a guardian in marriage
is necessary for a bride under this Act, the persons
entitled to give such consent shall be the following
in the order specified there under, namely:-
• (a) the father;(b) the mother; (c) the paternal
grandfather; (d) the paternal grandmother;
• (e) the brother by full blood; as between brothers
the elder being preferred;
• (f) the brother by half blood; as between brothers by
half blood the elder being preferred:

50. g) the paternal uncle by full blood;
h) the paternal uncle by half blood
(i) the maternal grandfather;
(j) the maternal grandmother;
(k) the maternal uncle by full blood;
2) completed his or her twenty-first year.
3) the person next in order shall be entitled to be the
guardian.
4) In the absence of any such person as is referred to
in sub-section (1), the consent of a guardian shall
not be necessary for a marriage under this Act.

51. 7. Ceremonies for a Hindu
marriage.-
• (1) A Hindu marriage may be solemnized in
accordance with the customary rites and
ceremonies of either party thereto.
• (2) Where such rites and ceremonies include
the Saptapadi (that is, the taking of seven steps
by the bridegroom and the bride jointly before
the sacred fire), the marriage becomes
complete and binding when the seventh step is
taken

52. 8. Registration of Hindu marriages.-
• Section 8(1) of Hindu Marriage Act provides that for
the purpose of facilitating the proof of Hindu
marriages, the state government may make rules
providing that the parties to any such marriage may
have the particulars relating to their marriage entered
on such manner and subject to such conditions, as may
be prescribed in a Hindi Marriage Register kept for the
purpose.
• The certificate is however not a conclusive proof of
marriage.
• It is explicitly laid down in this Act that non registration
does not affect the validity of marriage. Thus marriage
can be valid without registration

53. • besides the evidentiary value, the national commission
for women has pointed that registration of marriage has
critical importance to various women related issues, such
as :–
(a) Prevention of child marriage.
(b) Prevention of marriage without the consent of the
parties.
(c) Prevention of illegal bigamy or polygamy.
(d) Enabling married women to claim their right to live
in the matrimonial home, maintenance, etc.
(e) Enabling the widows to claim various rights after the
death of their husbands.
(f) Deterring men from deserting their wives after
marriage.
(g) Deterring the sale of girl under the garb of marriage.

54. Conjugal Rights mean Right to stay
together.
 Hindu Marriage Act, 1955 (Section 9) says
 If either the husband or the wife, without reasonable
excuses,
 withdraws from the society of the other,
 the aggrieved party may approach the Court for
restitution of conjugal rights

55.  There are three important requisites to be
fulfilled for Section 9
 Spouses must not be staying together.
 Withdrawal of a party from the other must have no
reasonable ground for such withdrawal.
 The aggrieved party must apply for restitution of
conjugal rights
 Section 9 is to save marriage.
 If the suit succeeds then the couple would be
needed to stay together.
 The decree of restitution of conjugal rights cannot
be actioned by forcefully making the party to live
with the one who sets petition for restitution.

56. What does ‘withdrawal from society’
mean?
 does not necessarily have to mean complete
desertion or living separately
 Withdrawal from sexual intercourse,
 Non-cooperation in the performance of marital
obligations,
 Intention to abandon indefinitely
 Cessation of cohabitation by voluntary act of the
Respondent-wife

57. • the petitioner has the burden to prove
that the respondent has left him
• the respondent to prove there is a
reasonable ground to support
Onus
under
Section 9
of Hindu
Marriage
Act
• In the Civil Court in whose jurisdiction
–
• The parties’ marriage was performed.
• The husband and wife stay together.
• The husband and wife last stayed
Where to
complaint
on this?

58. Circumstances in which withdrawal is
justified
 When husband remarries
 Even in the case of Muslim Law, the husband
remarries, he should equitably maintain the first/
existing wife(s). Where such equity and duty is
violated by the husband, the wife has a reasonable
case
 In Kothar Beevi v. Aminuddin, the Madras High
Court denied the relief of restitution of conjugal rights
to a husband who remarried during the pendency of
the suit.

59.  When conduct of husband makes it
impossible for the wife to live with
the husband.
-Moonshi Buzloor Ruheem v. Shamsonnissa
Begum-If there be cruelty to a degree rendering it
unsafe for the wife to return to her husband’s
dominion, the Court will refuse to send her back to
his House ; so also, if there be a gross failure by the
Husband of the performance of obligations.

60. What right accrues if the wife is
living separately due to a
different place of work?
 When economic considerations require the wife to take
up the job

Allahabad High Court - Shanti Nigam v. R. C.
Nigam(2). If both parties can come to each other’s place
then it cannot be said that she has withdrawn herself from
the society of her husband

61. When there is no economic
necessity for the wife to take a
job and live separately
 Smt. Kailash Wati v. Ayodhia Prakash (3)
 When the wife is already working before and at the
time of marriage
 When the husband encourages/allows his wife to
take up employment after marriage
 When the wife accepts employment away from the
matrimonial home, against the wishes of the
husband

62. Basis on which petition for Restitution of
Conjugal Rights can be rejected
 If the respondent is capable of claiming any
matrimonial relief.
 If the petitioner accepts that he has committed any
matrimonial misconduct.
 If the petitioner’s action makes it impossible for the
respondent to stay with him.

63. The following steps are followed:-
 The aggrieved party files a RCR petition in the district
court. This petition can be transferred by an application
in the High Court or the Supreme Court.
 Copy of the petition is sent to the respondent with a
hearing date from the district court.
 The Court requires both parties to be present on the
hearing date in front of the Hon’ble judge.

64.  If both the parties are not available then another date is given.
 After this the court sends the party for court counselling.
 The Court counselling is done mainly by family courts and
usually goes for 3 to 4 times. This might take 4 months
approximately.
 Based on the counselling and the statements made and keeping
in view the conduct of the parties the judge finally grants the
decree.
 During this time the wife can claim maintenance under Section
25
 If the decree is not complied with, then the court goes for
attachment of property.
 If the decree is not followed within one year it can become a
ground for divorce

65. Effects of non –performance of decree
 In case a decree of RCR is passed by the Court, and the party
willfully disobeys the decree then the decree holder can file
an application for execution of decree under Order 21 Rule
32 of Civil Procedure Code, 1908.
 The rule says that where the party against whom a decree for
restitution of conjugal rights, has been passed, and has had an
opportunity of obeying the decree and has willfully failed to obey
it the decree may be enforced by attachment of his property.

66. Constitutionality of Section 9
 in 1983 before the Andhra Pradesh High Court in the
case of T. Sareetha vs T. Venkata Subbaiah the
Hon’ble High Court held this provision as violative of
law and held the impugned provision unconstitutional
on the grounds that it violated the Right of Equality
enshrined in Article of 14 of the Constitution of
India.

67.  However the High Court of Delhi in Harvinder Kaur
v Harminder Singh went to a different line of reason
and held its constitutionality. Ultimately, Supreme
Court in Saroj Rani v. Sudharshan, gave a
judgment which was in line with the Delhi High Court
views and upheld the constitutional validity of the
section 9 and over-ruled the decision given in
T.Sareeta

68. What is judicial separation?
 Judicial separation is an instrument devised under
the law to afford some time for introspection to both
the parties to a troubled marriage.

69. Under Section 13(1), judicial separation
may be sought on the following grounds:
General grounds Grounds are
exclusively reserved
for women
Adultery
Cruelty.
Desertion:
Conversion
Insanity
Leprosy
Venereal disease
Renounced the world
Has not been heard alive
for seven years.
Husband has more than
one wife living
Rape, Sodomy or
Bestiality
Marriage before the age
of fifteen years

70. judicial separation vs divorce
JUDICIAL SEPARATION DIVORCE
 Can file a petition at any
time post marriage.
 Only one stage of
judgement. If grounds are
satisfied, decree granted.
 Temporary suspension of
marriage.
 Cannot remarry after the
passage of decree.
 It is a ground for divorce.
 A single instance of adultery
sufficient for Judicial Sep.
 The possibility of
reconciliation
 Can file only after completion of
one year of marriage.
 Judgement is a two-step
process. First reconciliation,
then divorce.
 Brings marriage to an end.

 Can remarry once decree in
favor of divorce is passed.
 Living in an adulterous
relationship necessary.
 No possibility of reconciliation.

71. Filing a petition for judicial separation
 The marriage was solemnized.
 The respondent, at the time of presentation of
petition, resides.
 The parties to marriage last resided together.
 The petitioner is residing, in case the respondent is
outside territory of India.
 Under Section 21 of the Act, all proceedings under
this Act shall be regulated by the Code of Civil
Procedure

72. Can maintenance be claimed?
 In the case of Sohan Lal vs. Kamlesh it was held
that in case of judicial separation, a wife is allowed to
claim maintenance from husband in case she is not
able to maintain herself.

73. Section – 13 Divorce
 Divorce means dissolution of marriage by competent court.
 THEORIES OF DIVORCE
 FAULT THEORY- under Fault Theory marriage can be dissolved
only when either party to the marriage has committed a matrimonial
offence.
 MUTUAL CONSENT THEORY- This theory states that since two
persons can marry by their free will, they should be allowed to move
out of their relationship of their own free will.
 IRRETRIEVALE BREAKDOWN OF MARRIAGE THEORY-
According to this theory, the breakdown of marriage is defined as
“such failure in the matrimonial relationships or such circumstances
adverse to that relation that no reasonable probability remains for the
spouses again living together as husband & wife.”

74. GROUNDS FOR DIVORCE
General grounds Grounds are
exclusively reserved
for women
Adultery
Cruelty.
Desertion:
Conversion
Insanity
Leprosy
Venereal disease
Renounced the world
Has not been heard alive
for seven years.
Husband has more than
one wife living
Rape, Sodomy or
Bestiality
Marriage before the age
of fifteen years

75.  Adultery – The act of indulging in sexual intercourse
outside marriage is termed as adultery. Adultery is
counted as a criminal offence and substantial proofs
are required to establish it. An amendment to the law in
1976 states that one single act of adultery is enough for
the petitioner to get a divorce.
 https://www.legalbites.in/law-notes-hindu-law-concept-
and-grounds-of-divorce/


76.  Cruelty – A spouse can file a divorce case when he/she is
subjected to any kind of mental and physical injury that
causes danger to life, limb and health. The intangible acts
of cruelty through mental torture are not judged upon one
single act but series of incidents.

77.  Desertion – If one of the spouses voluntarily abandons
his/her partner for at least a period of two years, the
abandoned spouse can file a divorce case on the
ground of desertion

78.  Conversion – In case either of the two converts
himself/herself into another religion, the other spouse
may file a divorce case based on this ground

79.  Mental Disorder – Mental disorder can become a
ground for filing a divorce if the spouse of the petitioner
suffers from incurable mental disorder and therefore
cannot be expected from the couple to stay together.

80.  Leprosy – In case of a ‘virulent and incurable’ form of
leprosy, a petition can be filed by the other spouse
based on this ground

81.  Venereal Disease – If one of the spouses is suffering
from a serious disease that is easily communicable, a
divorce can be filed by the other spouse. The sexually
transmitted diseases like AIDS are accounted to be
venereal diseases.

82.  Renunciation – A spouse is entitled to file for a
divorce if the other renounces all worldly affairs by
embracing a religious order

83.  Not Heard Alive – If a person is not seen or heard
alive by those who are expected to be ‘naturally
heard’ of the person for a continuous period of seven
years, the person is presumed to be dead. The other
spouse need to file a divorce if he/she is interested in
remarriage

84.  No Resumption of Co-habitation – It becomes a
ground for divorce if the couple fails to resume their
co-habitation after the court has passed a decree of
separation

85.  Wife’s Special Grounds for Divorce
 Pre-Act Polygamous Marriage

86.  Rape, Sodomy or Bestiality

87.  Non-Resumption of Cohabitation after a
Decree/Order of Maintenance

88.  Repudiation of Marriage

89. mutual consent under Section 13-B.
 The parties have been living separately for a period
of at least one year
 They have not been able to live together, and
 They have mutually agreed that marriage should be
resolved


90. section 13C- Irretrievable breakdown of
Marriage
 It requires that the parties must have lived separately at least
for 3 years immediately preceding the presentation of the
petition. Here living separately means not living in the same
house.
 In this case as opposed to the divorce by mutual consent the
petition for dissolution of the marriage may be presented by
either party to the marriage and the court may dissolve the
marriage even if the other party objects it. However, the wife
may object to the petition on the grounds of financial hardship.
 https://blog.ipleaders.in/irretrievable-breakdown-marriage-
history-applicability-current-status-india/

91. Section 24- Maintenance pendente lite and
expenses of proceedings.
 The main object of section 24 of the Hindu Marriage Act is to
grant maintenance to the wife so that she can have financial
assistance and she is able to maintain herself during the
pendency of proceedings. Husband also has a right to claim
maintenance from the wife.
 Since the object of section 24 is to provide financial
assistance, the application under section 24 must be disposed
of as expeditiously as possible. However if the main case itself
has been dismissed, there is no provision under which court
can give relief in an application made under section 24

92.  Section 24 is applicable when the marriage itself is valid. If
the marriage itself is not valid (that is it is a void marriage),
then wife cannot claim maintenance under section 24 of
Hindu Marriage Act
 Where in any proceeding under this Act it appears to the
court that either the wife or the husband, as the case may
be, has no independent income sufficient for her or his
support and the necessary expenses of the proceeding, it
may, on the application of the wife or the husband, order the
respondent to pay to the petitioner the expenses of the
proceeding, and monthly during the proceeding such sum
as, having regard to the petitioner's own

93.  As to the nature of the proceedings, it has been held that the
proceedings under section 24 are not original proceedings.
They are merely interlocutory proceedings. Further, lawyers
sometimes compare proceedings under section 24 with with
proceedings under section 125 of Criminal Procedure Code.
In this regard courts have clarified that both the proceedings
are separate and different. Merely because order under
section 125 of Criminal Procedure Code has been passed,
jurisdiction of the court cannot depart under section 24 of
Hindu Marriage Act.
 However it has also been clarified that if two orders under
both the provisions mentioned above have been passed in a
single matrimonial dispute then the husband is only liable to
pay according to the order which mentions a higher amount.

94. Section 25- Permanent alimony and
maintenance
 Sub-section (1) of Section 25 requires that an
application must be made by the wife or the husband
who is party to the main proceeding, if she or he
wants the incidental relief of permanent alimony and
such an application may be made in the main
proceedings either before or at the time of passing
the decree granting substantive relief of divorce or at
any time subsequent to the passing of such decree.

95.  After the amendment of the Hindu Marriage Act in 1976, the
scope of the Act has widened and now it is mandatory for the
court to grant full opportunity to the parties to substantiate their
rival contentions by leading proper evidence. The court should
take into account the other circumstances which may influence
the grant or refusal of permanent alimony besides considering
the income and conduct of the parties.
 The right to permanent alimony accrues only when a decree has
been passed in favour of the petition under Sections 9 to 13. In
case no such decree has been passed in favour of the
petitioner, the right to claim any maintenance or alimony is ruled
out. Thus where a petition of the husband is dismissed under
any of the sections i.e., Sections 9 to 14 the application for
permanent maintenance filed by the wife under Section 25 of the
Act will be rejected

96.  Still the wife could claim maintenance under Section
18(1) of the Hindu Adoption and Maintenance Act,
1956 or under Section 125 of the Criminal Procedure
Code, 1973 The court cannot entertain any claim for
maintenance in any proceeding under Section 25 of
the Hindu Marriage Act, 1955, which are
maintainable under Section 18 of the Hindu Adoption
and Maintenance Act, 1956

97.  In an important case, Gulab v. Kamal, the husband got
the decree of divorce against the wife on the ground of
misconduct and adultery. The wife moved an application
for maintenance under Section 25 of the Act. The court
held that a decree passed against the applicant on the
ground of unchastity is no bar to his or her claiming
maintenance either at the time of passing such decree or
any time subsequent thereto.
 The court has ample discretion to grant or refuse
maintenance and the extent to which to grant the same,
depending on the facts and circumstances of each case.

98.  In Patel Dharmshree Premji v. Bai Shankar Kanji,’ the
Gujarat High Court affirmed the above proposition and
held that even a guilty party to a marriage could obtain
permanent alimony. It has further been said that a
mother claiming maintenance for herself cannot
include the amount of maintenance for her children
therein and she must bring a separate suit for the
purpose. On the question of reducing the amount of
maintenance under Section 25 of the Act in
proceedings for judicial separation the fact that the wife
had been leading an adulterous life would be relevant
and significant

99.  In Verna Kallia v. Jatinder Nath Kallia the husband a doctor had
settled in foreign country leaving his wife and a marriageable
daughter in India. The payment of maintenance was denied by the
husband upon the ground that the husband obtained divorce in
foreign country to which the wife had acquiesced by accepting the
maintenance under foreign judgment.
 The court held that the foreign judgment of divorce was not binding
upon her. Upon the facts of the case relying the Supreme Court’s
view given in Surinder Kaur Sandlin v. Harbax Singh Sandlin.
Further court allowed the decree of divorce in favour of wife upon
the ground of cruelty, desertion and adultery since her husband had
married in foreign country and was having three children there.
Considering the status of parties, their future necessities, and claim
for maintenance by wife for herself and daughter was allowed at
the rate of Rs. 10,000 per month. Husband was also directed to
deposit Rs. 10 lakhs for marriage of his daughter

100.  In Shanta Ram v. Dagoo Devi, the court held that Section
25 of the Act, confers upon a woman whose marriage is
void or is declared to be void, a right of maintenance
against her husband. The right of maintenance can be
enforced by her not only in proceeding under Section 25
but also in any other proceeding where the validity of her
marriage is determined.
 It can be claimed by her not only during the lifetime of her
husband but also after his death against the property of
her husband. Of course, his right of maintenance is
available only during her life time and ceases if she
remarries.