HINDU MARRIAGE ACT 1955

The following persons are Hindu ,Buddhists, Jainas or Sikhs by religion, as the case may be:-

(a) any child, legitimate or illegtimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion.

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhists, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression 'Hindu' in any portion of this Act shall be construed as if it included a person who though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

Conditions for a Hindu marriage:

Section 5 of Hindu Marriage Act provides the conditions of a valid Hindu marriage--

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of the marriage;

[(ii) at the time of the marriage, neither party---

(a) is incapable of giving a valid consent to it in consquence of unsoundness of mind;or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity.]

(iii) the bridegroom has completed the age of [ twenty one years] andthe bride,the age of [eighteen years] at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two ;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

Comments

A valid Hindu marriage must satisfy the condition laid down in secton 5 and should be solemnised as specified in section 7 of the Act.

Ceremonies for a Hindu marriage:

Section 7 of the Hindu marriage Act provides method of ceremonies for a Hindu marriage---

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

Comments.-

Divorce:

Section 13 of the Hindu Marriage Act, 1955 provides the specefic ground for divorce,on the basis of which one can get the Decree of Divorce from the court against their spouse.

Ground of divorce ---

13 (1) ---Any marriage solemnized, whether before or after the commencement of this Act, may,on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party---

[ ( i ) has,after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, or

( i-a ) has, after the solemnization of the marriage, treated the petitoner with cruelty; or

( i-b ) has, deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or ]

( ii ) has ceased to be a Hindu by conversion to another religion; or

[ ( iii ) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation--- In this clause ----

( a ) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or dsability of mind and includes schizophrenia;

( b ) the expressin "psychopathic disorder " means a persistent disorder or dis ability of mind ( whether or not including sub normality of intelligence ) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whetheror not it requires or is susceptible to medical treatment; or]

( iv ) has been suffering from virulent and incurable form of leprosy; or

( v ) has been suffering from venereal disease in a communicable form; or

( vi ) has renounced the world by entering any religious order; or

( vii ) 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 it, had that party been alive;

[ Explanation -- In this sub - section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage ,and its grammatical variations and cognate expressions shall be construed accordingly.]

[ ( 1-A ) Either party to a marriage, whether solemnized before or after the commencement of this act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground ----

( i )that there has been no resumption of cohabitation as between the parties to the marriage for a period of [ one year ] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

( ii ) that there has been no restitution of conjugal rights as between the parties to the marriage for aperiod of [one year ] or upward after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

( 2 ) A wife may also present a petition for the dissolution of her marriage by decree of divorce,--

(i) In the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner;

Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) That the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoption and Maintenance Act , 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Civil Procedure ,1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898(5 of 1898), a decree or order , as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards ; or

(iv)that her marriage (whether consummated or not ) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation—this clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act 1976.]

State Amendment-[Uttar Pradesh] –

In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in S. 13-

(i ) in sub s.( 1 ), after clause (i),insert (and shall be deemed always to have been inserted ) the following, namely-

“(1-a) has persistently or repeatedly treated the petitioner with such Cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or”, and

(ii) for ci. (viii) (since repealed,) substitute (and shall be deemed always to have been so substituted) the following, namely:-

"(viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and-

( a ) a period of two years has elapsed since the passing of such decree, or

( b ) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or"-- Uttar Pradesh Act 13 of 1962 , S. 2 (w.e.f 7-11-1962 ).

Comment---

GROUNDS OF DIVORCE.-

"A Hindu marriage solemnized under the act can only be dissollved on any of the grounds specified under the Act" : Mudgal PresiSarla dent, Kalyani v. Union of India . ( 1995 ) 2 D.M.C. 351 ( S. C. ).

Grounds of Cruelty.

Cruelty-meaning:- in matrimonial relationship,cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leadsto various outbursts of behaviour which can be termed as cruelty.Cruelty in a matrimonial relationship may take the form of violence,some time it may take a different form. At times, it may be just an attitude or an approach.Silence in some situations may amount to cruelty.Therefore,cruelty in matrimonial behaviour defies any definition and its category can never be closed.Whether husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any pre-determind rigid formula.Cruelty in matrimonial cases can be of infinite variety-it may be subtle or even brutal and may be by gestures and words.2010(1)UAD 757(supreme court of India)Ravi kumar v.Julmi Devi.

Mental Cruelty: Hindu Marriage Act 1955, –Section 13(1) (ia),

Expression ‘Cruelty’ includes both ( i ) physical cruelty: and ( ii ) mental cruelty.

Section 13 of the Hindu Marriage Act provides for grant of divorce in certain cases. It enacts that any marriage solemnized whether before or after the commencement of the Act may be dissolved on a petition presented either by the husband or by the wife on any of the grounds specified there in. Clause ( ia ) of sub section ( 1 ) of section 13 declares that a decree of divorce may be passed by a court on the ground that after the solemnization of marriage, the opposite party has treated the petitioner with cruelty

Now it is well-settled that the Expression ‘Cruelty’ includes both ( i ) physical cruelty: and ( ii ) mental cruelty.

2009 ( 1 ) SCCD 16 ( SC ) Civil Appeal No. 6582 of 2008, Decided on November 7. 2008, Suman Kapoor Versus Sudhir Kapur.

Mental Cruelty

Hindu marriage Act, 1955, Sec. 13. and Family Courts Act, 1984. Sec. 19

Divorce petition by husband, on the ground of cruelty by wife.

Allegation by husband--insulting husband before friends and relatives by saying "tu cori hea, teri ma bhi cori hea", and has lodged First Information Report against petitioner, his mother and sisters u/s 498A/323/506/308 I.P.C. Petitioner had to remain in jail in connection with the said case.

Held, utterances quoted above certainly constitute the mental cruelty to the husband and cannot be set aside lightly.---Considering the economic status of the parties, and facts and circumstances of the case. we think it just and proper to pass the conditional decree of divorce by directing the husband to pay a lumsum permanent alimony amount of Rs. 6,00,000/ to the wife (respondent) within a period of three month.

2011 (1) UAD 354, UTTARAKHAND HIGH COURT. Yogesh Chandra joshi versus Munni Joshi

Mental Cruelty.

“No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii)Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset, may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of year will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife under goes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an actof the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty”.

Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 : 2007 (2) SCCD 589.

DIVORCE:

Grounds of Desertion. Desertion-proving:-The party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.2010(1)UAD 757 Ravi kumar v.Julmi Devi.

DIVORCE:

Grounds of Mental Disorder. Every mental disorder or every degree of mental disorder cannot be said to be a sufficient ground for granting a decree of divorce but where the petitioner successfully proves that the mental disorder is of such kind due to which he/she cannot reasonably be expected to live with his/her spouse ,it does make out a ground for decree of divorce as mention in clause( )of sub section 1 of section 13 of Hindu Marriage Act 1955,read with the explanation to the said clause.Smt Sheela v. Shri Baldeve Singh.2010(1)UAD 267. Uttarakhand High Court.

DIVORCE:

Divorce as per Custom in Community. Marriage dissoved by Panchayat as per custom in community--- Held, dissolution of marriage through Panchayat as per custom prevailing in community, could not be ground for granting divorce under section 13. 2011 (2) SCCD 761 (SC) Mahendra Nath Yadav vs Sheela Devi.

DIVORCE

Ground of Adultery – proof of adultery:

Held –Adultery is an act, which is not committed in open. It is an act, which is normally done in the closed door. P.W. 1,2,3,4, all state that after petitioner Prakash Chandra used to leave his house for office thereafter many persons used to come to respondent no.1 and she had relation with them. In the above circumstances having reassessed the entire evidence on record, we find that in the present case the petitioner/appellant has successfully proved his case for divorce on the ground of adultery and he is entitled to the decree of divorce.

Prakash Chandra versus Smt Janki Arya & anr

2011 (2) UAD 111

UTTARANCHAL HIGH COURT ,

Mandatory Provision

Section 21-B (2)

Sub section 2 of Section 21-B Hindu Marriage Act provide, “Every petition under this act shall be tried as expeditiously as possible, and endeavor shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent”

This court is of the considered opinion that the mandatory provision has been enumerated in the act keeping in mind that delay in such matter will adversely affect both the parties in different manner. Delay will also certainly adversely affect the mind of small child born out of wedlock .The trial court must not overlook the mandatory provision contained under the act.

Sri Vikas Sharma vs. Smt Anita Sharma, 2010 (1) UAD 894