UNIT -2

MARRIAGE – THE HINDU MARRIAGE ACT 1955

INTRODUCTION.

Under the ancient hindu law the object of marriage was sublime (means it has
wonderful quality that affects you deeply.

According Apasthamba “Marriage was meant for doing good deeds and for
attainment of moksha.

One of the characteristic features of a Hindu Marriage it that it was more

connected with the performance of religious duties and betting of a son, who
enables a man to get deliverance from the sufferings of Hell.

Under the ancient hindu law there were formerly 8 kinds of marriage, 4
approved forms of marriage and other 4 were unapproved forms of marriage.

In approved forms of marriage a wife becomes ‘patni’ and in no condition of

life either of the two could leave or divorce other. The eight kinds of marriage
are as follows

1. Brahma
2. Daiva
3. Arsha
4. Prajapatya
5. Asura
6. Gandharva
7. Rakshasa
8. Paishacha.

APPROVED FORMS OF MARRIAGE

1. BRAHMA FORM:-
 In this form of marriage the daughter is gifted, clothed only with a single-
robe to a man learned in the Vedas, whom her father voluntarily invites,
and respectfully receives.
 The chief feature of this form is that the parents do not receive any
consideration for giving the girl in marriage, their choice of the bridegroom
not being determined by a desire to trade on their daughter.

2. DAIVA FORM:-
 In this type of marriage the damsel is given to a person who
operates as a priest in a sacrifice performed by the father, in
lieu of the dakshina or fee due to the priest.
 It is inferior to the Brahma because the father derives a
benefit, which is not deemed reprehensible.
3. ARSHA:-
 The bridegroom makes a present of a cow and a bull or two
cows and two bulls to the bride’s father which is accepted
for religious purpose only.
4. PRAJAPATYA:-
 This form of marriage does not differ from the , but in this
gift is made with condition that “you two be partners for
performing secular and religious duties.

UNAPPROVED FORMS OF MARRIAGE.

1. ASURA FORM:-
 When the bridegroom having given as much wealth as he
can afford, to the father and paternal kinsman, and to the
damsel herself takes her voluntarily as his bride.
 This kind of marriage is virtual sale of the bride, because the
bride’s parents get pecuniary benefit from this marriage.
2. GANDHARVA:-
  This marriage is the union of man and a women by mutual
consent . this marriage was contracted for the purpose of
amorous embraces and proceeded form sensual inclination.
3. THE RAKSHASA FORM:-
 This consists in the seizure of a maiden by force from her house,
while she weeps and calls for assistance, after her kinsman and
friends have been slain in the battle and wounded, after breaking
their houses open.
 This type of marriage was allowed only to the Kshatriyas or
military classes.
4. PAISHACHA FORM:-
 It is one of the reprehensible marriage of a girl by a man who had
committed a crime of ravishing her either when asleep or when
made drunk by administering intoxicating drug or when in the
state of mental disorder.

HINDU MARRIAGE-

WHETHER A SACRAMENT OR CONTRACT?

According to Hindu texts, a man cannot be said have a material

existence until he took a wife.

According Shastras a man is the only half of his self. Therefore he is not
fully born until he takes a wife and after marriage alone he becomes complete.

Case law

TIKAIT MUNMOHINTI V/S BASANT KUMAR [ILR 28 CAL 758]

It was observed that a Hindu law, marriage was sacrament, a union, an

indissoluble union of flesh with flesh, bone with bone- to be continued even in
the next world.
NATURE AND CONCEPT OF HINDU- MARRIAGE [UNDER THE OLD HINDU
LAW]

Hindu Marriage joins two individuals for life, so that they can pursue
dharma (duty), artha (possessions), kama (physical desires), and moksa
(ultimate spiritual release) together.

It is a union of two individuals from the opposite sex as husband / wife

and is recognized by law. In Hinduism, marriage is followed by traditional
rituals for consummation.

In fact, marriage is not considered complete or valid until

consummation. It also joins two families together.

Marriage involves the transfer of dominion over the damsel from the
father to the husband and which has always been the foundation of peace and
order in any civilized society was, amongst hindus a settled institution with a
religious character attached thereto even at the vedic period.

CASE LAW

GOPAL KISHAN V. MITHILESH KUMARI [AIR 1979 ALL 316]

In this case the Allahabad High court observed ‘the institution of

matrimony under the hindu Law is a sacrament, and not a mere betrothal. Its
context is religious. It is regarded as part of life of the soul.

SHIVANANDY V/S BHAGAWANTHYMMA [AIR 1962 MAD 20]

The court observed that marriage is the binding for life because the
marriage rite completed by saptapadi before the consecrated fire created a
religious tie, and a religious tie when once created cannot be united. It is not a
mere contract in which a consenting mind is indispensable.
Nature and concept of marriage (under Marriage Act)

Marriage under the Hindu marriage Act 1955 no longer remains a

sacrament-an eternal union of spiritual purposes.

Under the Act, provisions for the divorce are laid down, , remarriage of a
widow woman or a widower is possible. Therefore, the sacramental character
of the Hindu marriage has been done away by this act.

However hindu marriage has not become a contract also, because

essential requirements of contract are lacking in the Hindu marriage.

Marriage of person of unsound mind or of a minor is not void though the

agreement entered into by these persons are void.

Marriage of a person of unsound mind is voidable and marriage of a

minor is valid marriage, though punishable under the act and Child marriage
restraint Act 1929. Therefore marriage under the Hindu Marriage Act has not
become a contract.

Conditions of a Hindu marriage (old Hindu law)

Under the old textual Hindu law three conditions were required for a
valid marriage, these conditions were:

1. Identity of case between the parties,

2. Parties to be beyond the prohibited degrees of relationship i. e, were
not of same gotra or pravara and were not the sapinda of each other
and
3. Proper performance of ceremonies of marriage.

HINDU MARRIAGE ACT,1955.

This act is a landmark in the history of social legislation

This enactment is exhaustive and it has brought important and dynamic

changes in Hindu matrimonial concept. It has not simply codified the hindu
law of marriage but has introduced certain important changes in many
respects.
 The Hindu marriage contemplated by the Act hardly remains
sacramental. The Act has introduced some changes of far- reaching
consequences which have undermined the sacramental character of marriage
and rendered it contractual in nature to a great extent.

CHANGES BROUGHT ABOUT BY THE HINDU MARRIAGE ACT 1955.

The following changes were brought about by the Act in the law of marriage
are important,

1. Inter- caste marriage in not prohibited. According to Section 29 of the

Act, the marriage solemnized between the different caste or different
religion is valid.
2. Monogamy which is essentially the voluntary union for life of one man
with one women to the exclusion of all others, is not enforced by
legislation- Section 5(i) . any marriage solemnized after the
commencement of this Act is null and void if at the date of such
marriage either party had a husband or wife living
3. Bigamy has been made punishable as an offence under the Indian Penal
Code (sec 17).
4. The conditions and requirements of a valid Hindu marriage have been
considerably simplified (section 5 to 7).
 The sapinda prohibition has although been accepted yet the
degree of sapinda relationship has been curtailed.
 It has now been confined to fifth degree from the father and third
degree from the mother in upward line.
 Further, the Act has enumerated the list of prohibited degree of
relations, between whom a valid marriage could not take place.
 Several matrimonial relief has been provided by the act. Ex.
Divorce, judicial separation.
 Legitimacy has been conferred on such children who are born of
void and voidable marriage.
 Provision for alimony pendent lite, permanent alimony and
maintenance have been made.
  Wide discretionary powers have been conferred on the court to
pass suitable orders relating to the custody, maintenance and
education of minor children of the parties.

CHANGES BY VIRTUE OF MARRIAGE LAWS(AMENDMENT) ACT, 1976.

A few more changes have been brought by Act of 1976.

1. Section 13-B now provides for divorce by mutual consent of the

parties.
2. Divorce on the ground of adultery has made easy. Now a single
instance of adultery on the part of the other spouse entitles the
spouse to seek divorce.
3. Divorce on the ground of incurable unsoundness of mind, incurable
leprosy or venereal disease, formerly the party seeking divorce could
not file petition for 3 years had elapsed. Now the party seeking
divorce on this ground need not wait for 3 years.
4. Section 21 –B has been added which provides for the continuance of
the trial (day to day) until conclusion of the case.

SECTION 5:- CONDITIONS FOR MARRIAGE UNDER HINDU

MARRIAGE ACT, 1955.

SECTION 5(i): Monogamy.

Section 5(ii):- Soundness of Mind

Section 5(iii):- Age of Marriage

Section 5(iv):- Beyond prohibited degrees

Section 5(v):- Beyond sapinda relationship

1. SECTION 5(i): Monogamy:-

 Before the commencement of this act, a Hindu could marry any number
of wives, even if he had a wife or wives living, although this practice was
always looked with disfavor.

Monogamy :- it means is the state or custom of being married to only

one person at a particular time.

The condition laid down in this clause for a valid marriage is one of
those conditions, contravention of which would make the marriage void under
section 11 of the Act.

Section 17:- this provision further states that the offending party liable
for prosecution under section 494 and 495 of Indian penal code. The
marriage between the two Hindus solemnized after the commencement of the
act is void if at the date of such marriage either party had a husband or wife
living .

Example :- Mr. ‘A’ got married to Mrs. “B’ in the year 2000. In the year
2010 ‘Mr. ‘A’, again get marries to Mrs. ‘X’ when ‘Mrs. ‘B’ is alive and he has
not even given her any divorce. Hence the marriage between A and X is void
and also punishable.

Case law:-

SMT. YAMUNABAI ANANT RAO ADHAR V. ANANT RAO THIRARAM

ADHAR

AIR 1988 SC 644.

In this supreme court held that the marriage becomes null and void
where it is in violation of the first condition of section 5 i.e Monogamy, .

It becomes void ab initio and ipso facto.

The court further explained that the wife in void marriage cannot claim
maintenance under section 125 of the criminal procedure code.
 Thus a man whose wife is alive and his marriage is valid and subsisting
at the time, he cannot marry another wife.

He will be guilty of committing of bigamy. The same principle is

applicable for a wife, a women whose husband is alive and her marriage is
valid and subsisting at the time, she cannot marry another husband. She will
be guilty of bigamy.

So, according to section 5(i) of this Act, a second marriage in the lifetime
of spouse of the first marriage, will be against law and void, even if the second
marriage was contracted outside India.

If a person get second marriage in any part of the world is void.

Things need to be proved for bigamy,

 He or she has already a living spouse.

 Prior marriage had been duly celebrated with the performance of
ceremonies.
 If the previous marriage is not solemnized properly the law
would not recognize it as a marriage and the parties would not be
known as husband and marriage.
 At the same time if a person is prosecuted for having contracted
a second marriage and there is lack of proper and adequate
religious or customary ceremonies as evidence of such marriage
could, he cannot be punished for bigamy.

Case law

SHANTA DEV BERMA V. SMT. KANCHAN PRAVA DEVI [AIR 1991 SC

816]

The supreme court held that the proof of the performance of

ceremonies is essential for a valid marriage.

JOGINDER SINGH V. SMT. JOGINDERO [AIR (1996) S.C 1654]

 In this case the only proof of re-marriage of a wife was the name in the
revenue record which was made by the wife herself.

There was no evidence to show that the wife had ever made any
statement of her re-marriage and the real brother of second husband also
denied the marriage of his brother with wife.

The supreme court held that on the basis of above facts, second
marriage by the wife could not be proved therefore, her re-marriage cannot
be upheld.

If the wife or husband is arranging another marriage without

dissolution of first marriage the other party could move to the court in order
to get a prohibitory injunction so as to restrain the other party from marrying
afresh.

2. Section 5(ii):- Soundness of Mind:-

The parties to the marriage are of sound mind and are not suffering from
any mental disability as to be unfit for giving a valid consent

• It is laid down under the marriage laws (amendment)Act 1976,

• Neither party at the time of marriage is incapable of giving a valid

consent.

• In consequence of unsoundness of mind or has been suffering for

mental disorder of such a kind or to such an extent as to be unfit for
marriage and for the procreation of children, or neither party has been
subject to recurrent attacks of insanity.

AMINA ROY V.S PRABODH MOHAN ROY [AIR 1969 CAL 304]

• In this case the emphasis was upon the unsoundness of mind to a

degree which renders the marriage meaningless.

• The recurrent attacks of insanity have also been added to be ground of

voidability of marriage.
 • Thus mental incapacity of any nature affecting the very purpose of
marriage has been ground of voidability of marriage.

• An objection to a marriage on the ground of mental incapacity must

depend on a question of degree of the defect in order to rebut the
validity of a marriage which has in fact taken place.

• The onus of bringing a case under this clause lies heavily on the
petitioner who seeks annulment of the marriage on the ground of
unsoundness of mind or mental disorder.

Case law

S.LAXMINARAYAN V. SHANTI [AIR 2001 SC 2116]

The supreme court observed that a brand the wife as unfit for marriage
and procreation of children it needs to be established that the ailment
suffered by her is of such a kind or such an extent that it is impossible for
her to lead a married life.

The marriage performed in contravention of section 5(2) is voidable and

not void.

AT THE TIME OF MARRIAGE:-

The words “at the time of marriage” in the clause are important.

Because the person where subsequent to the date of marriage becomes

an idiot or lunatic, the provision of this clause are not attracted.

CASE LAW

AJITRAI SHIVA PD V. BAI VASUMATI [AIR 1969 GUJ 48]

In this case it was laid down that if the condition in section 5(ii) is not
fulfilled the marriage is not a void marriage as provided in section 11 but a
voidable marriage under section 12.

Section 5(iii):- Age of Marriage:-

 • The minimum age of the parties to the marriage is fixed.

• Originally, according to Hindu marriage Act, 1955, the age

provided for the bridegroom was 18 years and for the bride was 15
yrs.

• Though where the bride was below 18, the consent of her guardian
was necessary.

• The child marriage restraint (Amendment)Act 1978, has raised the

minimum age fixed for marriage to 21 years in case of bridegroom
and 18 years in case of bride.

• According to section 13(2)(iv) of the Hindu marriage Laws

(Amendment) Act 1976, where the marriage of a girl was
soleminzed before she attained the age of 15 years and she has
repudiated the marriage after attaining that age but before
attaining the age of 18 years, the girl can obtain a decree for
dissolution of marriage.

The Prohibition of Child Marriage Act 2006

• Prohibits child marriage.

• Section 2(a) child:- means a person who, if a male has not

completed 21 yrs and if female has not completed 18 yrs.

• CHILD MARRIAGE:- means a marriage to which either of the

contracting parties is child.

• A child marriage is voidable, at the option of the contracting party .

According to sec 3.

• A petition under this section can be filed before the child filing the
petition completes 2 years of attaining majority.

• Child marriage is punishable, with rigorous punishment of

maximum 2 years and fine upto 1 lakh.
 • A Judicial magistrate of the first class or a Metropolitan Magistrate
is authorised to issue injunction in order to prevent the child
marriage from being solemnised.

• Such marriage is void.

Section 5(iv):- Beyond prohibited degrees

• This clause prohibits marriage between persons who are within

the prohibited degrees of relationship with each other.

• The following will be within the degrees of prohibited relationship

of a male.

I. A female ascendant (superior) in the line.

II. Wife of an ascendant in the line.

III. Wife of a descendant (a person or a descended) in the line.

IV. iv. Wife of the brother.

V. v. Wife of the father’s brother.

VI. vi. Wife of the mother’s brother.

VII. vii. Wife of the grandfather’s brother.

VIII. viii. Wife of the grandmother’s brother.

IX. ix. Sister

X. x. brother’s daugther.

XI. xi. Sister’s daughter.

XII. xii. Father’s sister.

XIII. xiii. Mother’s sister.

XIV. xiv. Father’s sister’s daughter

 XV. xv. Father’s brother’s daughter

XVI. Xvi. mother’s sister’s daughter

XVII. xvii. mother’s brother’s daughter

A lineal descendant is a descendant in the male line.

There is no limit of degrees, and all descendants in the male line

are lineal descendants counted downwards in unbroken line.

Here:- ‘P’is the lineal descendant of his ancestor FFFFF, in

unbroken line of descent.

Marriage is prohibited with all ancestors or their wives.

The following will be within prohibited degrees of a female-

• A. her lineal ascendant like father, father’s father.

• B. the husband of a lineal ascendant.

• C. the husband of a lineal descendant.

• D. brother.

• E. father’s brother.

• F. mother’s brother

• G. brother’s son.

• H. sister’s son

• i. father’s brother’s son.

• J. father’s sister’s son.

• K. mother’s brother’s son

• L. mother’s sister’s son.

Reason for forbidding marriage within the degree of prohibited

• To prevent-

• 1. physical degeneracy (decline in good qualities) of the race

which the marriage between near relations would lead to;

• 2. moral degeneracy and consequent evil results which are apt to

affect a society built on the deifice of joint family-system.

Smt. Shakuntala devi v/s amar nath [AIR 1982 P & H 22]

• The Punjab high court has held that the validity of marriage under
section 5(iv) is subject to customs and useage accepted in the
particular Hindu community.

Consequence of marriage solemnized between persons coming within

the prohibited degree

• According to sec 11 the marriage would becomes void and

• According to sec 18 (b) it would be punishable and a fine of

Rs.1000/-.

Section 5(v):- Beyond sapinda relationship

SAPINDA :- means one of the “same pinda”.

• According to ancient texts , the word has been used in two senses,
firstly, it means a relation connected through the same body, and
secondly, it means, relation connected through funeral oblation of
food.

Section 11:- VOID MARRIAGES

This provision says, “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 one of the conditions specified in clauses (i), (iv) and (v) of
section 5.

Thus a marriage will be void ab initio-

Section 5(1):- if any party to marriage has a spouse living at the time of the
marriage.

Sec 5(iv) :- if the parties are within the degree of prohibited relationship
unless the custom or usage governing each of them permits such a marriage.

Sec 5(v):- if the parties are ‘sapindas’ of each other, unless the custom or
usage governing each of them permits such a marriage.

Section 11 is not applicable to marriages solemnized before the

commencement of the Hindu Marriage Act 1955.

Where any of the three conditions mentioned in the section exists the
marriage would automatically be null and void, and a decree of nullity may be
passed by the court at the instance of either party to the marriage.

A marriage which violates any of these 3 conditions is void ipso jure. It is

open to the parties to treat it a nullity without even asking for declaration
from the court.

CASE LAW;-

M.M.MALHOTRA VS. UNION OF INDIA

The supreme court has observed that the marriages covered under
section 11 are void the very inception and have to be ignored as not existing
in law at all.

A void marriage does not alter or affect the status of the parties nor does it
create any rights and obligations between the parties which normally arise
from a valid marriage.
VIODABLE MARRIAGES :- Section 12

Any marriage soleminized whether before or after the commencement

of this act shall be voidable and may be annulled by a decree of nullity on the
following grounds.

Section 12(1) (a): Impotency

The primary objet of marriage is procuring of issue and physical capacity

potency is an essential requirement.

Impotency is the permanent and incurable incapacity to consummate the

marriage

It may arise from some incurable mental or moral disability the other spouse
resulting in inability to consummate the marriage.

Medical examination of the parties is essential to annul the marriage on the

ground of impotency

CASE LAW

MOINA VS. AMARDEEP [AIR 1976 DEL 399]

The Delhi High court held that the petitioner would be entitled to a decree of
nullity of marriage if the marriage was not consummated due to impotence of
the respondent spouse.

Proof of Impotency

Even uncorroborated testimony of the petitioner is sufficient if it can be

believed. It can also be established by medical examination.

Where one of the parties of marriage is compelled to undergo medical

examination for established his potency it cannot be said that it is violative of
his personal liberty, right of privacy.
b. UNSOUNDNESS OF MIND

Marriage can be annulled when it contravenes section 5(ii) of the Act

that is neither the party shall suffer from unsoundness of mind at the time of
marriage.

3 circumstances of unsoundness where

1. Is incapable of giving a valid consent

2. Though capable of giving a valid consent but suffering from mental
disorder to that extent to be unfit for marriage and procreation of
children.
3. Has been subject to recurrent attacks of insanity.

Section 12(1) (b) refers that any marriage shall be voidable and may be
annulled if the marriage is in contravention of the condition specified in
section 5(ii)

Section 12(1) (c) consent obtained by force or fraud:-

it states that the marriage is voidable on the ground that the consent of the
petitioner or of the guardian has been obtained by force of fraud.

Child Marriage Act has given minimum age for marriage to male is 21 and
female is 18.

CASE LAW

NAND KISHORE VS. SMT. MUNNI BAI [ AIR 1979 MP. 45]

The High court of Madhya Pradesh has held that the terms force and fraud
means those condition in which there is absence of real consent

It may be any practice

Previously married etc

Must older then the husband

Virginity of girl or boy etc

According to section 12(1) (c) a marriage brought about by force or

fraud may be declared invalid where:-

1. The force or fraud has been committed upon the petitioner himself or
herself
2. Before the commencement of child marriage restraint act 1978 where
the guardian consent was much required if the such consent is acquired
by fraud or force, it may be ceremony material fact etc of the
respondent.

Exception:-

No petition more than 1 yrs after the fraud or force marriage is discovered.

The petitioner has with his/ her full consent has agreed to live together
even after discovering the fraud/force.

D. PREGANCY OF THE WIFE AT THE TIME OF MARRIAGE:-

The marriage can be annulled if the respondant was at the time of the
marriage pregnant by some person other than the petitioner.

CASE LAW

MAHENDRA VS. SUSHILA BAI [AIR 1965 SC 364]

In this case the baby was born to Sushila after 171 days from the date of
marriage (5month 21 days) and the child was fully developed healthy child.

In this case there was no evidence of the husband and wife to meet
before marriage and the wife admitted her pergancy from before the
solemnization of marriage, when the husband had not met her.

Hence the husband was held entitled to the decree.

Limitation:- No petition shall be entertained

 1. That the petitioner was at the time of marriage ignorant of the facts
alleged
2. The petition is filed within one year of such commencement of this Act.
3. The marital intercourse with the consent of the petitioner has not taken
place.

Difference between void and voidable marriage.

VOID MARRIAGE VOIDABLE MARRIAGE
1. It is totally null , void abinitio It is a marriage which is
valid for all purposes
whatever
Unless it is annulled by the
district court on the
petition of the aggrieved
party

2. In this marriage neither the party A fresh marriage

during the
Is liable to the bigamy subsistence of a voidable
Marriage and before it is
Annulled by a decree of
Nulling will be considered a
Bigamous.

Legal impact of declaration of marriage void by a competent court

A void marriage is void from the very beginning.

But a voidable marriage remain valid and binding until a declaration of

nullity is made by a competent court.

Legitimacy of children of void and voidable marriage:-

Section 16 of the Hindu Marriage Act protects the interest of the children
begotten or conceived before the decree is made in the case of void and
voidable marriage under section 12 of the Act
 Children are considered to be legitimate

CASE LAW

PERUMAL GOUNDER VS. POCHAYAPPA [AIR 1990 MAD 110]

If a person marries 2nd wife during the subsistence of 1st valid

marriage the children born of 2nd marriage would be legitimate under
section 16 of the Act.

DIVORCE: section 13

Divorce was unknown to general Hindu Law as marriage was regarded as an

indissoluble union of the husband and wife.

Present Hindu Law:- Hindu Marriage Act 1955

The Act has introduced vital and dynamic changes in the Hindu Law of
marriage and divorce.

CHANGES INTRODUCED IN THE LAW OF DIVORCE BY THE MARRIAGE LAWS

[AMENDMENT] ACT, 1976.

The following main changes have been introduced by this Act,

1. Section 13(1) (i):- the ground of adultery has been made simple and
now a single act of adultery may constitute a sufficient ground for
divorce.
2. Section 13(1) (i-a) and (i-b):-Cruelty and desertion,, which were the
grounds of judicial separation originally, have been made the grounds
for divorce.
3. Section 1 (i) (iv) and (v): the minimum period prescribed under the
other grounds like leprosy and venereal disease etc., has been omitted
in order to facilitate divorce without inordinate delay.
4. Section 13-A :- The court has been given power to exercise its
discretion, in petition of divorce, to grant an alternative relief under
certain circumstances.
 5. Section 13-B :- A vital changes has been made by providing divorce by
mutual consent of the parties. Thus by this amendment, the sacrament
character of a Hindu marriage has been affected in a big way. The
parties can get divorce by an agreement between them.
6. The parties can, now obtain divorce by presenting a petition after one
year of their marriage.

SECTION 13: GROUNDS FOR DIVORCE.

1. AVAILABLE TO HUSBAND AND WIFE BOTH.

1. ADULTERY [SECTION 13(1)(i)]:-

Under the Amendment laws, now it has been replaced by a simple

requirement of adultery, that is, voluntary sexual intercourse with any person
other than his or her spouse.

Now even a single act of adultery may constitute a sufficient ground for
obtaining divorce.

In the present clause the expression ‘voluntary sexual intercourse’ has been
used. Therefore the sexual intercourse by either of the spouse with a person
other than his or her spouse must be a voluntary act. If one of the spouses is
raped it cannot be said that there is voluntary intercourse.

Case law:-

P v. P [AIR 1982 BOM 498]

In this case the wife was seen in a semi-naked state in a hotel with a
stranger, the court did not consider it sufficient to conclude adulterous
relation of wife with the stranger.

The court held that so long the act of cohabitation is not proved beyond doubt.

STANDARD OF PROOF :-
 Adultery from its very nature is a secret act. Direct evidence of an act of
adultery is extremely difficult. Direct evidence, even when produced, the court
will tend to look upon it with disfavor, as it is highly improbable that any
person can be a witness to such acts, as such acts are generally performed
with utmost secrecy.

But the evidence of adultery whether direct or circumstantial, must be

necessarily of such a character as would make a reasonable man to believe
beyond any doubts and mere probability that adultery may have been
committed is not enough.

CASE LAW:-

SMT. PUSHPA DEVI V/S. RADHEYSHAM [AIR 1972 RAJ 26]

In this case it was held that it is not necessary to prove the fact of
adultery by direct evidence and such evidence if produced would normally be
suspected and likely to be discarded.

THIMMAPPA DASAPPA V/S. THIMMVA [AIR 1967 SC 581]

The facts were that the wife used to be usually absent from the house
and found to be in company with strangers. She was also found in the room of
the strangers. She did not have any explainations for being in their company.
On the petition for divorce by the husband the court held that under the
conditions the wife’s living in adultery would be established and the petition
would be decreed.

HARGOVINDA SONI VS. RAM DULARI [AIR 1986 MP 57]

The court observed that it was no longer required that adultery must be
proved beyond all reasonable doubt. It could be established by
preponderance of probabilities.

The law relating to standard of proof is clear and simple. It is not

necessary that the charge of unchastity must be proved beyond all reasonable
doubt. It could be established by preponderance of probabilities.
 2. CREUELTY (SECTION 13(1) (1-a) :- cruelty where the petitioner has
been treated with cruelty after the solemnization of marriage he would
be entitled to get a decree of divorce. Cruelty has become a ground of
divorce as well.

Cruelty is not defined in the act but for the purposes of establishing an act
of cruelty it should be so serious and weighty that cohabitation becomes
impossible. It should be somewhat more serious than ordinary wear and tear
of routine marital life.

CASE LAW

INDIRA GANGELE VS. S.K. GANGELE [AIR 1993 MP 59]

In this case it was stated that only some misunderstanding between

parties was established. It was held that merely saying that parties are
unhappy is not enough not even unruly temper of a spouse or whimsical
nature of a spouse is enough.

Cruelty consists of acts which are dangerous to life, limb or health.

Cruelty for the purpose of the Act means where one spouse has so treated the
other and manifested such feelings towards her or him as to have inflicted
bodily injury, or to have caused reasonable apprehension of bodily injury,
suffering or to have injured health. Cruelty may be physical and mental.

Mental cruelty is the conduct of other spouse which causes mental

suffering or fear to the matrimonial life of the other.

CASE LAWS

SHOBHA RANI V/S. MADHUKAR REDDI [AIR 1988 SC 121]

The Hon’ble Supreme court considerably enlarged the concept of

cruelty and held that the demand for dowry which is prohibited under law
amounts to cruelty entitling the wife to get a decree for dissolution of
marriage.

RAJENDER BHARDWAJ VS. ANITHA [AIR 1993 DEL. 135]

 In this case the wife did not allow the husband to consummate the
marriage for the first seven days and nights. The wife abused her mother-in-
law , wrote a nasty letter to her husband making illegal demand for clothes for
her brother etc., and threatened to burn the whole house by putting gas
cylinder on fire and also to file a false dowry case against the family members.
It was held that wife is guilty of cruelty.

The question of legal cruelty justifying judicial separation or divorce on the

ground may be considered under the following heads:-

a. Actual or threatened physical violence.

b. Verbal abuse and insults
c. Excessive sexual intercourse
d. Refusal of intercourse
e. Neglect
f. Communication of venereal diseases
g. Drunkenness and use of drugs
h. Forcing association with improper persons
i. False charge of immorality against the wife
j. Ill-treatment of children
k. Wife’s association persisting in with another women raising suspicion
of her practicing lesbianism
l. Wife suffering from deadly disease.

3. DESERTION [SECTION 13 (1) (1-b) :-

Where the petitioner has been deserted continuously for a period not
less than 2 years immediately preceding the presentation of the petition
for judicial separation or divorce, such petition may be granted.

Desertion means withdrawing from a matrimonial obligation i.e., not

permitting or allowing and facilitating the cohabitation between the
parties.
 Desertion is not a single act complete in itself, it is a continuous course
of conduct to be determined under the facts and circumstances of each
case.

Desertion by the other party to the marriage without reasonable cause

and without the consent or against the wish of such party and includes the
willful neglect of the petitioner by the other party to the marriage.

For the offence of desertion, so far as the deserting spouse is concerned

two essential conditions must be proved:-

1. The factum of separation

2. The intention to bring cohabitation permanently to an
end.

Desertion is classified into 2 kinds:-

a. Actual desertion
b. Constructive desertion

a. Actual desertion:- in order to constitute actual desertion the

following facts should be established
i. The spouse must have parted or terminated all joint-living
ii. The deserting spouse must have the intention to desert the
other spouse
iii. The deserted spouse must not have agreed to the separation
iv. The desertion must have been without reasonable cause, and
v. This state of affairs must have continued for the period of 2 yrs.

Case law:-

BIPIN CHANDRA V/S PRABHAWATI [AIR 1957 SC 173]

It was a case decided by the Hon’ble Supreme court. It is an case

example on animus deserendi – an intention to bring cohabitation
permanently.
 In this case the wife used to reside with the husband along with the
parents. Their marital life was happy and a son was born to them. Late the
husband left for England for a few months.

During his absence the wife developed intimacy with the old friend of
the husband, and one of the letters containing objectionable contents was
intercepted by the father-in-law of the wife.

On the return of the husband the father-in-law told him everything.

When the husband asked her to explain all this, she refused and on next day
left for her parents place.

Later the husband wrote a letter to her asking her to send the child,
some attempts to reach an understanding were made between them.

When the mother of the wife sent a telegram to the husband to receive his
wife on station, the reply sent back by the husband was that she should not be
sent.

After sometime the husband filed a petition for divorce on the ground of
desertion by the wife. The defence of the wife was that it was petitioner who
by his treatment made her life unbearable and compelled her to leave
matrimonial home.

The supreme court held that the ‘question to be considered is whether

her leaving marital home is consistent with her having deserted her husband
in the sense that she had deliberately decided permanently to forsake all
relationship with him with intention of non-returning to consortium with our
the consent of the husband and against his wishes.

In this case the court concluded that even though the wife leaves
matrimonial home without any cause, she will not be guilty of desertion if
subsequently she shows an inclination to return and is prevented from doing
so by the petitioner.
 b. Constructive desertion:- it consists of that state of things where
one party to marriage has been compelled to leave matrimonial
home owing to repulsive behavior of the other party and the party
thus living separately cannot be held to be deserter but the party
compelling her/him would be held to be the deserter.

CASE LAW

DR. SRIKANT RANGACHARYA VS. SMT. ANURADHA [AIR 2000 SC 1650]

The Karnataka high court held that willful neglect by one spouse to the
other would come within the meaning of desertion. It is not necessary to
prove that one of the parties to marriage is living separately from the other.

4. CONVERSION :- section 13(1) (ii) :- conversion to another religion is

one of the ground for divorce. A decree for divorce can be obtained by
a petitioner where the opposite party has ceased to be a Hindu by
conversion to another religion.

5. UNSOUND MIND [SECTION 13(1) (iii) ]:- incurable unsoundness of

mind or continuous or intermittent mental disorder of such a nature as
to disable the petitioner to live reasonably, with the respondent makes
the petitioner eligible to get a decree of divorce.

CASE LAW

RAM NARAIN GUPTA VS. SMT. RAMESHWARI GUPTA [AIR 1988 SC 2260]

The Supreme Court elaborately described about the decree of mental

disorder which will enable an aggrieved party to a marriage to obtain a decree
of divorce. The court held that the context in which the idea of unsoundness
of ‘mind’ and mental disorder occur in the section as grounds for dissolution
of a marriage, require the assessment of the degree of the ‘mental disorder’. It
degree must be such as that the spouse seeking relief cannot reasonably be
expected to live with the other.
 6. LEPROSY [SECTION 13(1) (iv) ]:- here the spouse presenting the
petition has to show that the other spouse has been suffering from a
virulent and incurable form of leprosy.

Case law

Swarajya laxmi v/s. Dr. G.G.Padma Rao [AIR 1974 SC 165]

The Supreme Court held that lepromatous leprosy is virulent. This type of
leprosy is malignant and contiguous.

It also an incurable form of leprosy and entitles the other spouse to a decree
for divorce.

The petitioner brought the divorce petition against the respondent on the
ground of lepromatous and it was decreed.

7. VENERAL DISEASE [SECTION 13(1) (v) ]:-

it is essential for petitioner to prove that the opposite party is suffering from
venereal disease in a communicable form.

8. RENUNCIATION OF WORLD [SECTION 13(1) (vi) ]:-

Renunciation of the world is regarded tantamount to civil and therefore it is

given as a ground for a decree of divorce.

He or she must perform the ceremonies necessary for entering the class of
sanyasi; without such ceremonies he cannot be regarded dead for worldly
purposes.

9. PRESUMED DEATH [SECTION 13(1) (vii) ]:-

Either of the party may seek divorce on this ground if the other party has not
been heard of as being alive for a period of 7 years or more by those persons
who would naturally have heard of it , had that party been alive.

The aggrieved party may marry again and have legitimate children

10. NON-PRESUMPTION OF COHABITATION AFTER THE DECREE

OF JUDICIAL SEPARATION [SECTION 13(1-A )( 1)]:-

It provides that the either party to a marriage may present a petition for
dissolution of the marriage by a decree of divorce on the grounds that there
has been no resumption of cohabitation between the parties to the marriage
for a period of one year or more after the passing of a decree for judicial
separation in the proceeding to which they were parties.

A party will be entitled to a decree of divorce if a decree of judicial

separation has already been passed and the other party has not resumed
cohabitation within one year thereafter.

11. FAILURE TO COMPLY WITH THE DECREE FOR RESTITUTION

OF CONJUGAL RIGHTS . [SECTION 13(1-A )]:-

A party will be entitled to a decree of divorce also when a decree for

restitution of conjugal rights has been passed and it has not been complied
with within one year of the passing of such a decree.

The spouse who fails to comply with it would do so at his or her risk and it
would not be necessary for the aggrieved spouse to prove that he or she had
made positive efforts to make the other party comply with the same and it
would suffice to show that there was no compliance with the decree.

GROUNDS AVAILABLE TO WIFE ONLY FOR DIVORCE [SECTION 13(2)

4 Additional grounds are available to wife only. They are as follows

1. Section 13(2) (1)- BIGAMY:- A wife may also present a petition for the
dissolution of marriage by a decree of divorce on the ground of second
marriage by husband which was solemnized after the commencement of the
Act .

It is held that the 2nd marriage of the husband was void ab -initio and the 2 nd
marriage of the husband amounted to adultery. The petitioner therefore is
entitled to a decree of divorce under section 13(1) (i) and not under section
13(2).

2. Section 13(2)(II)- Rape, sodomy or bestiality:- the expression rape and

sodomy have been defined in section 375 and 377 of the IPC simultaneously.

A man is said to commit rape who has sexual intercourse with a women.

1. Against her will, or

2. Without her consent or
3. With her consent, when her consent has been obtained by putting her or
any person in whom she is interested in fear of death or of hurt, or
4. With her consent , when the man knows that he is not her husband and
that her consent is given because she believes that he is another man to
whom she is lawfully married or
5. With her consent, when at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome
substance she is unable to understand the nature and consequences of that
to which she gives consent, or
6. With or without her consent when she is under 16 yrs of age .

1. Section 13(2)(III)- NON-RESUMPTION OF COHABITATION AFTER

DECREE OR ORDER OF MAINTENANCE :-

Where the decree or order has been passed against the husband awarding
maintenance to the wife in a suit after passing of such decree or order,
cohabitation between the parties has not been resumed for one year or
upwards, decree of divorce would be granted.
 2. Section 13(2)(IV)- OPTION OF PUBERTY :- where the wife’s marriage
was solemnized before she attained the age of 15 yrs and she
repudiated the marriage after attaining that age but before attaining the
age of 18 yrs. It is immaterial whether the marriage has been
consummated or not.

DIVORCE BY MUTUAL CONSENT [SECTION 13-B]

Divorce can now also be obtained by mutual consent of the parties to

marriage under the marriage law(Amendment ) Act 1976

According section 13-B(1) such a petition is required to be moved

jointly by the parties to marriage on the ground that they have been living
separately for a period of one year or more and they have not been able to live
together and also that they have agreed that the marriage should be dissolved.

Three essential of divorce by mutual consent:-

1. That both the parties have been living separately for a period
of one year or more;
2. That both the parties have not been able to live together
3. That both the parties have mutually agreed that their marriage
should be dissolved.

According to section 23(1)(bb) of the Act, the consent for petition of divorce
by mutual consent must not be obtained by force, fraud or undue influence. If
this elements are found in the agreement, the application will be rejected by
the court.

KRISNA MURI RAO V/S KAMALASHI [AIR 1983 KARNT. 235]

The Karnataka High court has said that on filing a petition jointly by the wife
and husband the following points are to be proved for getting a decree under
this section:-
1. The parties to marriage are living separately for a period of one year or
more;

2. They could not live together.

3. They have reached a compromise that they would dissolve the marriage;
and

4. That they have consented to divorce not under any force or fraud or under
undue influence.

SURESHTA DEVI V/S OM PRAKASH [AIR (1992) S.C.1904].

In this case the court held that a party to the petition for divorce by
mutual consent, can unilaterally withdraw his consent at any time till passing
of the decree under this section.

If subsequent motion seeking divorce decree under sub section (2) is

not of both the parties because of the withdrawal of consent by one of the
parties, the court gets no jurisdiction to pass the decree.

ASHOK HURRA V/S RUPA BIPIN ZAVERI [AIR 1997 SC 1266]

The Supreme court has held that Sureshta devi’s decision that ‘consent can be
withdrawn at any time before decree is passed’ are too wide and requires
reconsideration.

In this case, the petition for divorce by mutual consent was pending for a
considerably long period and the wife had not withdrawn her consent within
18 months from the date of presentation of petition.

Neither divorce decree could be passed nor reconciliation could be brought

about between the spouses.

Moreover, during the pendency of the divorce proceedings, the husband had
contracted another marriage and begot a child.
Civil and criminal proceedings were also filed by the spouse against each
other during pendency of the suit. In the view of the above facts, the supreme
court etc.

The cumulative effect of the various aspects in the case indisputably

point out that the marriage is dead, both emotionally and practically…..and
there is long lapse of years since the filing of the petition; existence of such a
state of affairs warrant the exercise of the jurisdiction of this court under Art
142 of the constitution and grant a decree of divorce by mutual consent….. and
dissolve the marriage between the parties.

The court to meet the ends of justice, exercised its power under Art 142 of the
Indian constitution ‘decree for divorce was granted.

Section 14:- No petition of divorce to be presented before expiry of one

year of marriage.

Divorce has not been made easy, in as much as one year must elapse after
marriage to give jurisdiction to court to entertain a petition for divorce.

Section 14(1):- provides that it shall not be competent for any court to
entertain any petition for dissolution of a marriage by a decree, unless at the
date of the presentation of the petition one year has elapsed since the date of
the marriage.

Exceptions: - application can be permitted by the court on following grounds

i) Exceptional hardship suffered by the petitioner; or

ii) Exceptional depravity on the part of the other party.

REMARRIAGE [SECTION 15]

DIVORCED PERSONS WHEN MAY MARRY AGAIN:-

Under the present law, a provision for dissolution of marriage through divorce
has been made, so remarriage has been declared law full.
According to section 15,

After passing the decree of divorce, the parties to the marriage may
marry again, if the following conditions are satisfied.

1. When a marriage has been dissolved and there is no right of appeal against
the decree of court; or

2. If there is such a right of appeal but the time has been expired without filing
an appeal; or

3. An appeal has been filed but has been dismissed.

A marriage contracted in violation of section 15 of the Hindu Marriage Act is

not void.

LATA KAMAT V/S VILAS [AIR 1989 SC 1477]

In this case a marriage was dissolved by a decree of the court of

competent jurisdiction.

But before an appeal against the said decree was filed he married again and
pleaded for dismissal of the appeal, subsequently filed, on the ground that he
had lawfully married again.

His objection was upheld by the lower appellate court and by the High court.

The Supreme Court however, did not agree with the aforesaid decision.

According to Supreme court, section 15 of the Act only means that where
relationship of marriage has been brought to an end by intervention of court
by a decree, this decree will include a decree under section 11,12 & 13 of the
Act.

VEENA RANI V/S ROMESH KUMAR [AIR 1995 P&H .213]

The decree for the annulment of marriage was in favour of the husband.
The wife preferred an appeal against this decree. During pendency of the
appeal made by wife, the husband solemnized second marriage. The Punjab
and Haryana High court held that the second marriage by the husband, during
pendency of her appeal against the said decree, could not in any way render
the appeal as infructuous.

REMARRIAGE OF WIDOWS:-

Under the old ancient law remarriage of widows was not permitted.

The remarriage of widows had been validated and legalized by the Hindu
Widow’s Remarriage Act 1856.

It is valid and legal under the provisions of Hindu Marriage Act, 1955.

SECTION 16:- LEGITIMACY OF CHILDREN OF VOID AND VOIDABLE

MARRIAGE.

Any child of a null and void marriage under Section 11 who would have
been legitimate if the marriage has been valid, shall be legitimate.

16 (1):- if a marriage is null and void according to section 11 of the Act,

and where a decree of nullity has been granted in respect of a voidable
marriage, children who are born, shall be deemed to be their legitimate
children.

BHAGADI KANNABABU V.S VUGGINA PYDAMMA [AIR 2006 SC 2403]

In this case the deceased died living his first wife and a daughter born of
second marriage. The Supreme court held that the daughters of the second
marriage are entitled to inherit the property of the deceased being legitimate
children of the deceased person.

16(2):- The decree provides that where a decree of nullity is granted in

respect of a voidable marriage under section 12 any child begotten or
conceived before the decree is made, the child will be legitimate.

16(3):- a child of null and void or which is annulled by a decree of nullity

under section 12 shall be entitled to any rights in or to the property of their
parents only and not to the property of any others.
REVANASIDDAPA V/S MALLIKARJUN [2011] II SCC 1.

The supreme court observed that,

a. Removed the stigma of illegitimacy by referring

expressly to the children as legitimate.
b. The section uses the term ‘property’ and does not
qualify it as separate or ancestral.
c. The Hindu Marriage Act brings in the social reform.
d. Law has to change with changing times; and
e. The parent’s folly should not have a reflected on
children’s rights as they are innocent.

The children born out of void or voidable marriage will have no share in the
joint family property and such children cannot ask for partition at the lifetime
of their parents.

SECTION 17:- PUNISHMENT FOR BIGAMY:-

This provision makes a marriage void ab ignition under the following

conditions;

(1). If the marriage is solemnized after the commencement of the Act,

(2). At the date of the marriage either party has a spouse living.

The section declares that bigamy is an offence and is punishable under

section 494 of the Indian Penal code.

LILY THOMAS V.S UNION OF INDIA [AIR 2000 SC 1650]

In this instance case the wife has filed a complaint for the offence under
section 494, IPC on the ground that during the subsistence of the marriage,
her husband had marriage a second wife under some other religion after
converting to that religion, the offence of bigamy pleaded by her would have
be investigated and tried in accordance with the provision of the Hindu
marriage Act.
PROCEDURE FOR REMEDIES UNDER THE HINDU MARRIAGE ACT 1955.

JURISDICTION OF COURTS TO DECREE AND GRANT RELIEFS-COURT TO

WHICH PETITION SHOULD BE MADE.

According to the section 19 of the Act every person shall present to the
District court with in the local limits of whose ordinary civil jurisdiction-

i. The marriage was solemnized.

ii. The respondent, at the time of the presentation of the
petition resided; or
iii. The parties to the marriage last resided together.

iii.a. In case the wife is the petitioner where she is residing on the
date of presentation of the petition; or

iv. The petitioner is residing at the time of the presentation of

the petition, in a case where the respondent is , at tat time,
residing outside the territories to which this Act extends, or
has not been heard of as being alive for a period of seven
years or more by those persons who would naturally have
heard of him if he were alive.

SECTION 20 :- CONTENTS AND VERIFICATION OF PETITION

SECTION 21:- APPLICATION OF CIVIL PROCEDURE CODE

SECTION 21A:- POWER TO TRANSFER PETITIONS IN CERTAIN CASES

SECTION 21B:- SPECIAL PROVISIONS TO TRIAL AND DISPOSAL OF

PETITIONS.

Day to day proceedings

Tried expeditiously

Within 3 months from the date of application

SECTION 22 :- PROCEEDINGS TO BE IN CAMERAL AND MAY NOT BE
PRINTED OR PUBLISHED.

SECTION 23:- DECREE IN PROCEEDINGS

It lays down certain rules for the guidance of the court.

 Standard of proof
 Court cannot decree ex-parte judgments

The court shall consider the following conditions before passing decree
in any proceedings.

a. Not take advantage of his own or her own wrong [section 23(1)(a)]

b. absence of connivance and condonation

section 23(1)(bb) consent for petition of divorce by mutual consent not

vitiated by force, fraud or undue influence.

c. Absence of collusion :- petition filed against the respondent with

collusion. It means an agreement or understanding between the parties.
d. No unreasonable delay [section 23 (1)(d)
e. Absence of legal Bar [section 23(1)(e) that there is no legal ground why
relief should not be granted.

SECTION 24:- MAINTENANCE ‘PENDENTE LITE’ AND EXPENSENS OF

PROCEEDINGS.

This section makes provision for grant of maintenance pendente lite and
expenses of proceedings to either spouse.

This provision is in favour of a needy spouse applies irrespective of whether

such spouse appeared as the initiator of the main proceedings or not.

Once an order is passed no matter what happens to the petitioner thereafter,

the liability to pay maintenance and expenses of the litigation in respect of the
period during which the proceedings were pending cannot be avoided.
Within the 60 days of the service of notice payment shall be made.

In deciding the question of maintenance pendent lite the only issue to be

considered is whether the claimant is or not in a position to maintain herself
or himself.

WHO MAY APPLY?

Here the application for maintenance pendent lite by the person who has
made the application and the party opposing the application or against whom
a claim under this section is made.

MAINTENANCE FOR CHILDREN:-

The court can order the maintenance also for such children who are
dependent on and are living with spouse whose claim has been found justified
by the court

QUANTUM OF MAINTENANCE:-

There is no hard and fast rule regarding the quantum of interim maintenance.

SECTION 25 :- PERMANENT ALIMONY AND MAINTENANCE.

The section 25 lays down that ‘the court at the time of passing any decree or
at the time of filing the application made to it for the purpose either by the
wife or the husband.

According to the order that the respondent shall pay to the applicant for
her or his maintenance and support such gross sum or such monthly or
periodical sum for a term not exceeding the life of the applicant as, having
regard to the respondant’s own income and other property of the applicant
and the conduct of the parties.

RAMESH CHANDRA RAMPRATAPJI DAGA V/S RAMESHWARI R.C. DAGA

[AIR 2005 SC 422]
 The question before the Apex court was whether a women remarried
during the subsistence of her first marriage can claim maintenance from her
second husband inspite of the fact that such marriage being bigamous
marriage is void under the provisions of the Hindu marriage act at the time.

The supreme court in the above case observed that a bigamous

marriage may be declared illegal being in contravention of the provision of the
hindu marriage act, but it cannot be said to be immoral so as to deny even the
right of alimony of maintenance to a spouse financially weak and
economically dependent.

The alimony can be given in cases of decree of divorce and annulment of

marriage is passed.

The maintenance is accepted even in the case of void and voidable marriage.

Court may rescind order-conditions:- section 25 (2) and (3).

There are two condition

1. if the court is satisfied that there is a change in the circumstances, of either

of the spouse.

2. if the court is satisfied that the party in whose favour an order has been
made under this section has remarried, if wife has not remained chaste, or if
the husband has sexual intercourse with other person. The court may modify
or rescind any order which the court may deem just.

CUSTODY OF CHILDREN (SECTION 26)

During the proceedings the court may pass interim orders with respect to
custody of children, maintenance and education of minor children,
consistently with their wishes, wherever possible

Doctrine of Factum valet:-

The doctrine of factum valet was quite well known to Hindu law text – writers
that is a fact cannot be altered by a hundred texts.

The doctrine in the case of marriage of a minor was that the factum of
marriage, which was solemnized, could not be undone by reason of a large
number of legal prohibitions that any text, rule or interpretation of Hindu law
or any custom or usage as part of that law in force immediately before the
commencement of hindu marriage act shall cease to have effect in so far as it
is inconsistent with any of the provisions of the Act.

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