Introduction to the Hindu Marriage Act of 1955: Types of Marriages and Divorce

By Sambhav Badkul

Cultural and Legal Backdrop

India is one of the famous countries known for its religious nature. There are various reasons why India is religious in nature, one of which is the existence of marriages and their attachment to religions. Marriage is considered a sacrament in India and is considered to be of great importance, keeping in mind the culture of India. It is also an important social institution. Broadly Marriages in India are between two families rather than two individuals. There are various laws for the various religions that govern their personal marriages, such as the Hindu Marriage Act 1955, the Muslim Personal Law (Shariat) Application Act 1937, the Parsi Marriage and Divorce Act 1936, etc., as these laws govern the person of that religion only, so for persons who are different in religion, they are governed by the Special Merit Act 1954. India is a diverse country with different religions, but the majority of our population is Hindu, so let us look at it.

Types of Hindu Marriages

Marriages in Hinduism are voluntary unions of men and women formed by solemnization and exclude all others. Broadly speaking, in the Hindu Marriage Act, there are three kinds of marriages: 

  • Valid,
  • Void, and 
  • Voidable. 

Let us look at them one by one.

Valid Marriage

A valid marriage is one that contains all the essentials of the Hindu Marriage Act. It includes conditions such as:

  • monopoly, having the mental capacity of giving valid consent at the time of marriage; 
  • if there is no free consent, then it is not a valid marriage; 
  • the age of the parties should be or above 18 years for girls and 21 years for boys; 
  • the party should not be in a prohibited relationship; and 
  • there should not be a sapinda relationship between both persons, including full blood, half blood, uterine blood, illegal, and adoption means.

Void Marriage

A void marriage is one that did not exist from the beginning. A marriage is void if it is in: 

  • degree of a prohibited relationship, 
  • in a sapinda relationship, 
  • or if there is bigamy.

Voidable Marriage

A voidable marriage is one that is not void but is to be declared void by the court of law. Some main conditions for a voidable marriage are that one party is below the age of consent or incapable of giving consent, mental capacity is affected, there is some mental illness at the time of marriage, consent is taken by force or fraud, and the wife is pregnant with the child of another person, etc.

Grounds for Divorce under Hindu Marriage Act

Once the marriage is done, if the relationship fails, then there is a need for divorce, so it is essential to understand the conditions for divorce as well. There are three popular theories of divorce: 

  • the fault theory, 
  • the mutual consent theory, and 
  • the irretrievable breakdown of marriage.

Fault Theory

Fault theory is also known as offense theory or guilty theory. According to the fault theory, either party to the marriage must have committed the matrimonial offense, and it is necessary to have a guilty and innocent party, and only the innocent party can seek the remedy of the divorce. If both parties are at fault, no remedy is available. Hindu Marriage Act divorce was based on fault theory. There are nine grounds for both men and women for divorce, and four extra grounds given to women only according to Sec. 13.

Mutual Consent Theory

According to the mutual consent theory, two people marry by their free will, and they should also be allowed to move by their free will, but only after one year of marriage can a petition be filed for mutual consent divorce, and a minimum 6-month colling-off period is given, which can be extended to a maximum of 18 months.

Irretrievable Breakdown of Marriage

According to irretrievable breakdown of marriage, if, by judicial separation or restitution of conjugal rights, a person is not coming back and one year is over, then it accounts for irretrievable breakdown of marriage, and a petition for divorce can be filed.

Nine Common Grounds for Divorce

Nine common grounds include adultery, which means voluntary or consensual sexual intercourse between a married person and another, whether married or unmarried. Cruelty, which includes both physical and mental cruelty. Desertion, which means rejection by one party to fulfill all obligations of marriage permanently without reasonable cause and without the consent of others for two years continuously, Conversion to another religion, insanity, or a person becoming of an unsound mind—but there are two necessary conditions for insanity, i.e., it needs to be incurable and cannot live with the respondent reasonably. Leprosy, venerable disease if communicable, renunciation of the world, and the presumption of death if you have not heard of living for 7 years.

Additional Grounds for Divorce for Wife

Four conditions were given only to the wife: bigamy, or marriage was done before Hindu marriage in 1955, and husband Marry again, such before commencement; husband found guilty of rape, sodomy, bestiality, etc.; if marriage was solemnized before she reached 15 years of age and she repudiated the marriage after attaining that age but before attaining 18 years of age; if maintenance has been given under the Hindu Adoption and Maintenance Act 1956 or under Section 125 of the CPC and the wife is living apart even after the passing of such a degree, cohabitation between them will not resume for a period of one year or more.

Conclusion

Thus, we can say that the procedure of marriage is not simple; there are many difficulties that may arise in the marriage, firstly in finding the correct partner, and then in taking divorce, other problems may arise. Therefore, it is necessary to choose the partner wisely.

About Author

Sambhav Badkul is a law student pursuing a BA LLB degree and CS EXECUTIVE, Mr. Sambhav badkul is also seeking opportunities to further develop his legal skills and gain practical experience in dynamic legal environment. He is eager to contribute his passion for the law and commitment to justice while expanding my knowledge through challenging and rewarding internships.

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