Tuesday, 18 March 2014

Hindu Marriage Act

The Hindu Marriage Act is a law enacted by the Indian Parliament in 1955 as part of the Hindu Code Bills. Three other important acts were also enacted during this time: the Hindu Succession Act (1956), the Hindu Minority and Guardianship Act (1956).

Purpose

As part of the Hindu Code Bill, the Hindu Marriage Act was enacted in 1955 by the Indian Parliament. It is an Act to amend and codify the marriage law among Hindus. Its purpose was to regulate personal life among Hindus, especially the institution of marriage, its validity, conditions for invalidity and applicability.

Applicability

The Act was viewed as conservative because it applied to any person who is Hindu by religion in any of its forms, yet clumps other religions together into the act (Jains, Buddhists, or Sikhs) as specified in Article 44 of the Indian Constitution. This Act also applies to any person who is a permanent resident in the jurisdiction where this Act applies who is not Muslim, Jew, Christian, or Parsi by religion. However, with the passage of Anand Karj marriage act, Sikhs now also have their own personal law related to marriage.

Hindu view of marriage

According to the tenets of Hinduism, marriage is a sacred relationship, a sacrament, and a divine covenant meant for procreation and continuation of family lineage. It is a vow between two people to stay together and uphold traditional family values in accordance with the Dharma. In the traditional Hindu system of marriage, there is no role for the state as marriage remained a private affair within the social realm. Within this traditional framework reference, marriage is undoubtedly the most important transitional point in a Hindu’s life and the most important of all the Hindu ‘’sanskaras’’ (life-cycle rituals).
Therefore there was fierce religious opposition to enacting such laws for marriage, succession and adoption. The greatest opposition was to the provision of equal inheritance by sons and daughters (male and female heirs) whereas until then only the sons inherited property.These Acts were put forth under the leadership of Prime Minister, Jawaharlal Nehru, who strongly believed in enactment of modern laws for Hindus.
Some have argued that Hindu marriage cannot be subjected to legislative intervention. Derrett predicted in his later writings that despite some evidence of modernization, the dominant view in Hindu society for the foreseeable future would remain that marriage is a form of social obligation.

Conditions

The conditions Marriage can be solemnized between two Hindus if neither party has a living spouse at the time of marriage; The conditions also stipulate that at the time of the marriage, neither party is incapable of giving valid consent or suffering from a mental illness that inhibits their fitness for marriage or procreation of children or suffering from recurrent episodes of insanity or epilepsy. In the original Act, the age of valid marriage was fixed at 18 for the boys and 15 for the girls, however this age requirement was later raised to 21 and 18 respectively for the boys and the girls through the Child Marriage Restraint (Amendment) Act 1978. Finally, the Act specifically disallows marriages between prohibited degrees of relationships.

Guardianship

Section 6 of the Hindu Marriage Act specifies the guardianship for marriage. Wherever the consent of a guardian in marriage is necessary for a bride under this Act, the persons entitled to give such consent are the following: the father; the mother; the paternal grandfather; the paternal grandmother; the brother by full blood; the brother by half blood; etc. The Guardianship For Marriage was repealed in 1978 after the Child Marriage Restraint Amendment was passed. This was an amendment that increased the minimum age requirement for marriage in order to prevent child marriages.

Ceremonies

Section 7 of the Hindu Marriage Act recognizes the ceremonies and customs of marriage. Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. Such rites and rituals include the Saptapadi—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.

Registration

As stated in Section 8 of the Act, the state government may make rules for the registration of Hindu marriages that the parties to any of such marriages may have particulars relating to their marriages entered in such a manner and subject to such conditions as may be prescribed in the Hindu Marriage Register. This registration is for the purpose of facilitating the proof of Hindu marriages. All rules made in this section may be laid before the state legislature. The Hindu Marriage Register should be open for inspection at all reasonable times and should be admissible as evidence of the statements contained therein.

Nullity of Marriage and Divorce

Any marriage can be voidable and may be annulled on the following grounds: the marriage has not been consummated due to impotency, contravention of the valid consent mental illness condition specified in Section 5, or that the respondent at the time of the marriage was pregnant by someone other than the petitioner. Divorce can be sought by husband or wife on certain grounds, including: continuous period of desertion for two or more years, conversion to a religion other than Hindu, mental abnormality, venereal disease, and leprosy. A wife can also present a petition for the dissolution of marriage on the ground of if the husband marries again after the commencement of his first marriage or if the husband has been guilty of rape, sodomy, or bestiality. Newly married couples cannot file a petition for divorce within one year of marriage.

Supreme Court ruling in 2012

The Supreme Court of India exercised its powers under Article 142 of the Constitution of India and ruled in August 2012 that marriages can be ended by mutual consent before expiry of the cooling period of six months stipulated in the Hindu Marriage Act, 1955. Section 13-B of the Hindu Marriage Act provides for the couple seeking divorce through mutual consent to wait for a period of six months after making first joint application for divorce. It is only after the expiry of the six months that the couple can move second application for the dissolution of their marriage.
Pronouncing the judgment, Justice Altamas Kabir said: "It is no doubt true that the legislature had in its wisdom stipulated a cooling period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. But there may be occasions when in order to do complete justice to the parties it becomes necessary for this court to invoke its powers under Article 142 in an irreconcilable situation (between the couple). When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months."

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 wife 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.
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 replaces 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.
However, there was strong opposition to this bill due to the objection that it will create hardships for women and that the bill strongly supports one party while both parties should be treated equal in divorce.Therefore the bill was amended to provide for wife's consent for waiver of six-month notice with the words "Upon receipt of petitions by the husband and the wife."
The Bill had not been passed by the parliament until April 2013