Family Law-I(Hindu

Law)
Unit-3-Institution of Marriage
 Definition of Marriage
 According to Raghunandan a well known
Bhasyakar,The acceptance of bride as wife
by the bridegroom in a gift by her parents is
defined as marriage.
 According to Rigveda the girl is the property

of the god of fire who has entrusted the

father with the responsibility of bringing her
up and to give her in gift to a virtuous
person by invoking the fire god to witness
the act of giving.
Institution of Marriage a
Sacrament or a Contract
 Marriage signifies the ceremony by which the
common intention of a man and woman to
marry is publicly contracted.
 The rights of married persons are determined
by law. Termination of marriage is possible
only in accordance with law.
 Custom of marriage is the basic institution of
human society.
 Acceptance of bride as wife by the groom
through a ceremonial process which is known
as kanyadan.
Institution of Marriage a
Sacrament or a Contract
 Marriage is considered as sacred contract in
most religions.
 Marriage is holy act confirmed by all the

ceremonies and rituals accompanying it.

 It is also believed to be an irrevocable bond

between the man and woman.

 Marriage has been considered as an
indissoluble union between a man and
woman not only during this life but also for
all lives to come.
Institution of Marriage a
Sacrament or a Contract
 Marriage has been placed one of the sixteen
sanskara of a Hindu.
 Sanskara is a socio religious rites by

performance of which life of present Hindus

is sanctified.
 In,Grahasutra,vivah is referred as one of the

most important of all the sanskars.

 It is a union of two personality into one for

the purposive of continuance of the society

by self sacrifice and mutual co-operation.
Institution of Marriage a
Sacrament or a Contract
 According to Vedas marriage is a union of
bones with bones, flesh with flesh & skin
with skin, the husband wife become one
person.
 In Hindu society marriage was not only a

sanskara but also a religious duty of a Hindu

towards his father, family & society to fulfill
certain purposes. Reference to Vedas,
Brahmans and Dharamshastras reveals
following three purposes of marriage under
Hindu Jurisprudence-
Institution of Marriage a
Sacrament or a Contract
 Dharam Sampati(Perform religious rites)
 Praja Sampati(For son to save father from hell)
 Rati Palam(Sexual & other pleasure)
 Hindu, Greek & Roman marriages was a
religious duty as man with his ancestor &
himself.
 Every Hindu is under a religious obligation to
discharge three debts namely-
 Pitra Rin(debt to father)
 Dev Rin(debt to gods)
 Rishi Rin(debt to seers and sages)
Institution of Marriage a
Sacrament or a Contract
 It is simply a religious sacrament and an
obligatory duty.
 Son has to perform funeral rites and to give
sacred obligations to the ancestors on their
death for their salvation.
 Marriage is a religious institution intended to
fulfill religious duties namely dharma,artha,
kama & moksha.
 In Ramayana, wife has been considered to be the
soul of her husband and in Mahabharat,she is
stated to be half part of her husband & his best
friend.
Institution of Marriage a
Sacrament or a Contract
 She is source of salvation & considered to
be dharmapatni i.e. life long companion to
carry out the religious injunctions of Vedas
and Dharamashastras and to perform
religious rites and ceremonies.
 According to Manu remarriage of a women

could not be even imagined. The two seers

known as Narada & Parashar have stated
five conditions in which a wife could
abandon her husband and remarry. These
are-
Institution of Marriage a
Sacrament or a Contract
 Where the husband is lost.
 Dead.
 Has renounced the world and has become a
sanyasi.
 Has become impotent.
 Has been ousted from his caste.
 But these conditions are only for unapproved forms
of marriage.
 The marriage is a sacrament because the marital
relationship are created not on account of any
contract but by virtue of a gift by her father to the
bridegroom.
Institution of Marriage a
Sacrament or a Contract
 The gift is holy & accompanied with the
religious ceremony of saptapadi.
 In absence of such religious ceremonies &

rites marriage is said to have not taken

place at all in the eyes of law.
 It is sacrament union between the husband

and wife till their life.

 It is not contract as it lacks proposal,

acceptance & consideration.

 Kinds of Marriage
 Approved forms of marriage-
 Brahma
 Daiva
 Arsha
 Prajapatya

 Unapproved forms of marriage-

 Asur
 Gandharva
 Rakshas
 Paishach
 Marriage under the old Hindu
Law
Three essential conditions were required-

Identity of caste between the parties.

Parties to marriage must be beyond the

prohibited degree of relationship or should
not be sapinda to each other.

There must be proper performance of marital

ceremonies.
 Guardianship in
Marriage
 Under the Mitakshara the following persons could act as
guardians of the bride for the purpose of giving her in
marriage in the given order-

 Father

 Grandfather

 Brother

 Relatives of the bride's father’s family

 Mother
 Guardianship in
Marriage
 According to Dayabhag,the bride’s maternal
grand father and maternal uncle could also
act as guardians of the bride.
 Hindu Marriage Act,1955
 Sec.1-Name of Act
 Sec.2-Applicability of the Act(About Hindu)
 Sec.3-Definitions( Custom, Usage, District

Court, Full Blood, Half Blood, Uterine

Blood,Sapinda,Prohibited Relationship)
 Sec.4-Effect of Act
 Sec.5-Conditions for a Hindu marriage
 Sec.6-Repealed
 Sec.7-Ceremonies for a Hindu marriage
 Sec.8-Registration of Hindu Marriages
 Hindu Marriage
Act,1955
 Sec.9-Restitution of Conjugal Rights
 Sec.10-Judicial Separation
 Sec.11-Void Marriage
 Sec.12-Voidable Marriages
 Sec.13-Divorce
 Sec.13-A-Alternative Relief in Divorce

Proceedings
 Sec.13-B-Divorce by Mutual Consent
 Sec.14-No Petition for Divorce to be

presented within one year of marriage

 Hindu Marriage
Act,1955
 Sec.15-Divorced persons when may marry
again
 Sec.16-Legitimacy of children of void and

voidable marriages
 Sec.17-Punishment of Bigamy
 Sec.18-Punishment for contravention of certain

other conditions for a Hindu marriage

 Sec.19-Courts to which petition shall be

presented
 Sec.22-Proceedings to be in camera and may

not be printed or published

 Hindu Marriage
Act,1955
 Sec.24-Mainentance pendent elite and
expenses of proceedings
 Sec.25-Permanent alimony and

maintenance
 Sec.26-Custody of children
 Sec.28-Appeal from decrees and orders
Conditions for a valid Hindu Marriage
under Hindu Marriage Act,1955
 Section 5-Monogamy-Neither party has a
living spouse.
 Soundness of Mind-Neither party at the time
of marriage-
 Is incapable of giving a valid consent due to
unsoundness of mind.
 Suffering from mental disorder & procreation
of children.
 Recurring attacks of insanity or epilepsy.
 Age of Marriage-Bridegroom-21 Years & Bride-
18 Years.
Conditions for a valid Hindu Marriage
under Hindu Marriage Act,1955
 Beyond prohibited degree of relationship
unless custom or usage permits marriage.
 Beyond sapinda relationship-Parties are not

sapinda of each other unless custom or

usage permits them.
Prohibited Marriage among
Hindus
 Under Section 5(iv), 3(g) and 3(f) marriage
between persons falling within the
prohibited degree of relationship have been
defined.
 Sarla Mudgal Vs.Union of India
AIR 1995 SC 1531
 The Hindu Marriage Act strictly enforces
Sec.5(i).If one is already married under
Hindu Law, he by embracing Islam can not
solemnize a second marriage under Muslim
Law, which permits polygamy. Such
marriage would amount to bigamy
punishable under section 494 IPC.Hindu
Marriage Act strictly enforces monogamy. A
marriage performed under this Act can not
be dissolved except on grounds of divorce
under section 13.
 Lily Thomas Vs.Union of India
AIR 2000 SC 1650
 Supreme Court observed that the husband
is guilty of offence of bigamy under section
494 IPC.Conversion or apostasy does not
automatically dissolve a marriage already
solemnized under the H.M.Act. Conversion
only provides a ground for divorce under
section 13 of H.M.Act. During first marriage
another marriage can not be performed not
even under any personal law.
 Essential Ceremonies of
Marriage
 Sec.7-Hindu Marriage must be solemnized
in accordance with customary rites &
ceremonies.Fullfill the conditions prescribed
by Sec.5.This section does not prescribe any
particular form of ceremonies. But leaves
the parties to choose any form of marriage.
But where it includes Saptpadi,the marriage
becomes complete when seventh step is
completed around sacred fire.
 Registration of
Marriage
 Sec.8-The State government is authorized to
make rules providing for registration of
marriage compulsory. Marriage register will
be maintained for inspection & will be
admissible for evidence. Any Hindu
marriage shall in no way be affected by non
entry of marriage.
 Restitution of Conjugal
Rights
 Marriage imposes an obligation on both parties
to cohabit with each other. If one party refuses
to live with the other, can the other compel the
former to live with him? The restitution of
conjugal rights means that if one of the parties
of the marriage withdraws from the society of
other, the latter is entitled to compel the former
to live with him. Restitution of Conjugal Rights
is a remedy, which basically means restoration
or reinstatement of one’s marital rights or
privileges.
 Restitution of Conjugal
Rights
 Sec.9-When either the husband or the wife
has without reasonable excuse withdrawn
from the society of the other. The aggrieved
party may apply by petition to the district
court for restitution of conjugal rights and
the court on being satisfied of the truth of
the statement made in such petition and
there is no legal ground why the application
should not be granted may decree
restitution of conjugal rights.
 Restitution of Conjugal
Rights
 Where a question arises whether there has
been reasonable excuse for withdrawal from
the society. The burden of proving
reasonable excuse shall be on the person
who has withdrawn from the society.
Conjugal right is a matrimonial right where
husband and wife have to take care each
other’s society, comfort & affection.
Smt.Ranjana Vinod Kumar Kejriwal Vs.Vinod
Kumar Kejriwal AIR 1997Bom.380

 Subsistence of Marriage-A Prerequisite-A

petition for restitution of conjugal rights was
filed by the wife who had admittedly
married a husband who was already
married to some other lady. Court refused to
grant a decree of restitution in favour of the
wife as the lady who moved to the court for
relief was not a legally wedded wife.
 Sohanlal Vs. Smt.Pratibha Mehra
AIR 2007 Raj.915
 It has been observed that where restitution
of conjugal rights between parties to
marriage for period of one year and
respondent did not honoured the decree
passed u/s 9 & there had been no
restitution of conjugal rights between
parties for period of one year. After passing
of decree for restitution of conjugal rights,
the husband was entitled to divorce u/s 13.
 Leela Sharma Vs.Keshav Sharma
1980 HLR 171
 The court observed that temporary leaving
of a spouse would not amount to withdrawal
from society.Withdrawl from the society is a
mental process apart from physical
separation.
 T.Srinivasan Vs. T.Varalakshmi
AIR 1999 SC 595
 Misconduct was committed by the husband.
The wife was deprived by the husband to
perform her conjugal duties. She demanded to
perform her conjugal rights but the husband
refused & drove her out of the house. He did
not allow his wife to again enter the house. The
supreme court held that these acts of husband
were positive wrongs amounted to misconduct
uncondolable so that husband is not entitled to
relief of divorce on the grounds of absence of
restitution of conjugal rights u/s 9.
 Kailashwati Vs.Ayodhiya Prasad
AIR 1977 Raj.113
 Court held that wife is under an obligation
to live with her husband except in case of
distinct and specific misconduct on the part
of the husband. Where the wife against the
wishes of her husband accepts employment
away from the matrimonial home, she
would be violating the mutual obligations of
husband & wife to live together.
 Mirchulal Vs.Devi Bai
AIR 1977 Raj.113
 The Rajasthan High court observed women are
no longer confined within the walls of their
houses. There might be cases where on account
of family circumstances a women might have to
live by herself while the husband is working at a
place where he can not take his wife along with
him. Again a wife may be bread winner of the
family, The husband being infirm or out of
employment. She should also go to her
husband whenever possible and her husband
could also come to her at his own convenience.
 Smt.Swaraj Garg Vs.K.M.Garg
AIR 1978 Delhi 296
 The husband & wife were employed at two
different places before their marriage. It
was a matter of chance that the husband
well qualified did not get a satisfactory job
and was drawing a pay package of lesser
amount then that of his wife. The parties did
not discuss where their matrimonial home
would be after marriage. The husband filed
a petition of conjugal rights against his wife
on the ground that she had withdrawn from
his association without reasonable excuse.
 Smt.Swaraj Garg Vs.K.M.Garg
AIR 1978 Delhi 296
 Trial court dismissed the petition but single
judge bench allowed the appeal and
granted decree. Against the decree the
matter went before division bench, the
Judge dismissed the decree of restitution
saying women have taken up jobs to help
their family. The marriage had broken down.
 Judicial Separation
 Judicial Separation does not terminate the
marital status of the parties but they are
not obliged to live together. Parties live
separate from each other and all basic
marital obligations remains suspended. If
any one of them remarries, he or she will be
guilty of bigamy. If the parties are still not
willing to continue as husband and wife,
either of them can seek divorce u/s 13.
 Judicial Separation
 Sec.10-Either party to a marriage may
present a petition for a decree of Judicial
Separation on any ground of Sec.13(1) and
in case of a wife on ground of
Sec.13(2).Where a decree for judicial
separation has been passed, it shall no
longer be obligatory for the petitioner to
cohabit with the respondent but the court
on truth of statements rescind the decree if
it considers just and reasonable.
 Suvrai Vs.Saraswati
AIR 1967 Mad.85
 Extra marital affairs-The court held that in most
cases evidence is circumstantial and the
circumstances under which the act is alleged to
have been done must lead to a conclusion of
illicit cohabitation. If a stranger to the family is
found in the bedroom of wife at mid night in
absence of an acceptable explanation, it would
normally be concluded that illicit intercourse
must have taken effect. But if the wife is found
moving on a scooter with a stranger or taking
with him in lonely places, adulterous relations
can not be imagined in modern social context.
 Chandra Mohini Vs.Avinash Srivastav
AIR 1967 SC 581
 The supreme court observed that love letters
written to wife by a certain person however
objectionable contents they might contain be
leading to an inference of adulterous relations
could not establish adultery between the two in
absence of proof of similar letters being
dispatched by the wife to him. In the above case
the husband’s petition for divorce on the ground
of adultery was rejected by the court as the
husband could not produce a single letter which
might have been written by her in response to
those love letters which were sent to her.
Smt.Sadhana Srivastava Vs.Avind
Kumar Srivastava AIR 2006 All.7
 The Allahabad High Court observed that the
false criminal proceedings against the
husband amounts to mental cruelty. Hence
the husband is entitled to a decree of
divorce u/s 13 of H.M.Act.
Parveen Mehta Vs.Inderjeet Mehta
AIR 2002 SC 2582
 Supreme Court observed that there was wife’s
non co-operation about sex from the first day
of marriage and also refusal of medical
treatment. She was abusing and misbehaving
with her husband and family members even
with his friends and relations. She left
matrimonial house few months after marriage
and despite several attempts cohabitation
was not possible for lack of co-operation on
the part of the wife. The court granted the
decree of divorce to the husband.
 Rajendra Singh Vs.Taramati
AIR 1980 Del.213
 The husband was seriously injured in an
accident and was admitted in a hospital. He
remained in the hospital for treatment
about eight months but the wife did not
care to visit him regularly despite the
information of his condition. The court held
that the conduct of wife was so neglectful
that it amounts to cruelty and the husband
is entitled to get a decree of divorce.
 Nullity of Marriage
 Sec.11- Void Marriage-

 Any marriage solemnized shall be null &

void on a petition presented by either party
be declared by a decree of nullity if it
contravenes any one of the condition of
sec.5(i),(iv) & (v).There is no need of court’s
decree for getting the decree of nullity.
 Prabhjot Singh Vs.Prabhjit Kaur
AIR 2010 P & H 994
 It was laid down that the marriage was
solemnized in sapindas and the allegation
of wife was that her marriage was
performed under threat. She and her
husband were within prohibited degree of
relationship. In this case the husband could
not prove by producing any evidence that
he was not governed by Hindu Marriage Act
and customs in his society permit such
marriage. The court declared such marriage
was nullity as per sec. 11 of H.M.Act,1955.
 Leela Vs.Laxmi 1968 All.L.J.
683
 The court held that in void marriage, there
is no need of court’s decree for getting the
decree of nullity.
 Voidable Marriage
 Sec.12-Any marriage solemnized shall be
voidable at the option of aggrieved party &
may be annulled by a decree of nullity. The
grounds u/s 12 are as under-
 Impotency
 Unsoundness of mind
 Consent obtained by fraud or force
 Pregnancy at the time of the marriage
 Jagannath Muduli Vs.Nirupam
Behera AIR 2009 Orissa 59
 The High Court upon the meaning of word
‘impotent’ explained that it means a
practical impossibility to perform sexual act.
In this case the wife was incapable of
having sexual relationship as a result the
court considered it legal as well as mental
cruelty to the husband.
 Dissolution of Marriage
 Different Theories of Divorce
 Fault Theory(Offences or Guilt Theory)
 Mutual Consent Theory
 Irretrievable Breakdown Theory(No

reasonable probability remains for the

spouses again living together as husband
and wife)
 Sec.13(1)-Either the husband or the wife

could sue for divorce

 Sec.13(2)-Wife alone could seek divorce
 Sec.13(1) & (2)
H.M.Act,1955
 The various grounds on which a decree of divorce can be
obtained are as follows-

 Adultery

 Cruelty

 Desertion for two year or more

 Conversion

 Insanity

 Unsoundness of mind
 Sec.13(1) & (2)
H.M.Act,1955
 Veneral disease

 Renunciation of the world

 Presumption of death

 Non resumption of cohabitation after the decree of

judicial separation

 Failure to comply with the decree of restitution of

conjugal rights
Additional ground of Divorce in
favour of Wife
 Sec.13(2)-(i)-Husband’s bigamy

 (ii) Rape,Sodomy or Bestiality

 (iii) Repudiation of marriage (Marriage

before the age of 15 and repudiated the
marriage before 18)

 (iv) Non resumption of cohabitation for one

year or upwards
Sec.13 A and Sec.13 B of
H.M.Act
Sec.13-A-Alternate Relief in Divorce proceedings-
The court may while dealing with the petition for
divorce have a discretion to grant a decree for
judicial separation.
Sec.13-B-Divorce by Mutual Consent-It says 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 be dissolved with effect from the date of
decree.
 Dastane Vs.Dastane
AIR 1976 SC 1534
 Both husband and wife were highly
educated & held academic distinctions.
Both of them were highly sensitive and
great expectations from each
other.However,both of them fell short of
each other’s hope. It was alleged by the
husband that the wife often humiliate the
husband before his students and visitors.
Exchange of abusive language was also
alleged by the husband. He attributed all
this to his wife’s mental disorder.
 Dastane Vs.Dastane
AIR 1976 SC 1534
 The wife’s allegation was that he expected
her to do all his routine like a computer. He
had issued written instructions to her about
what to do & not to do. The court found that
the wife took delight in causing misery to
her husband and relatives, when she
abused day & night. Their lordship observed
that on the basis of the evidence the cruelty
of the wife was established and awarded
judgment in favour of petitioner u/s 13
H.M.Act.
 V.Bhagat Vs.D.Bhagat
AIR 1994 SC 710
 In this case the supreme court examined
the meaning and proof of mental cruelty. A
divorce petition was filed by the husband on
the ground of adultery and later on cruelty.
In this case wife was merely defending
herself against alleged allegations. Despite
all she wanted to live with the petitioner.
Marriage between the parties has broken
down irretrievably and there is no chance of
their coming together.Hence decree of
divorce awarded.
Grounds of Divorce for both
under Special Marriage Act,1954
 Sec.27(1)-A petition for divorce may be
presented to the district court either by the
husband or by the wife on the ground that
the respondent-
 Had done adultery
 Had deserted the petitioner for two years or

more
 Is undergoing a sentence of imprisonment

for seven years or more

 Had treated the petitioner with cruelty
Grounds of Divorce for both
under Special Marriage Act,1954
 Has been of unsound mind
 Has veneral disease
 Leprosy
 Has not been heard for seven years or more
 That there has been no resumption of

Cohabitation between parties for one year

or upwards
 That there has been no restitution of

conjugal rights for one year or upwards

A wife may also present a
petition for divorce u/s 27(1 A)
 Husband been guilty of rape,sodomy or
bestiality

 Cohabitation between parties has not been

resumed for one year or upwards