The Hindu Marriage Act, 1955

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

The Hindu Marriage Act, 1955
Emblem of India.svg
Parliament of India
CitationAct No. 25 of 1955
Enacted byParliament of India
Enacted18 May 1955
Commenced18 May 1955
Status: In force

PurposeEdit

The main purpose of the act was to amend and codify the law relating to DIVORCE in marriage among Hindus and others.[1] Besides amending and codifying Sastrik Law (Laws of the Shastras), it introduced separation and divorce, which did not exist in Sastrik Law. This enactment brought uniformity of Marriage Break Down law for all sections of Hindus.
While there was no mention of Divorce in Hinduism, Jainism, Buddhism, Sikhism, etc as these are more based on the Universal Laws of Nature and can't be classified as religions. Often such practices have been misunderstood with religions specifically from the Mediterranean regions.
Most Mediterranean regions have been following family break up laws for centuries.
Whereas Indians & some other South Asian Communities made laws to cohesively integrate families and developed complex societal structures.
The first state intervention in marriages that is recorded in recent history is in the Hammurabi Codes in Babylonia. This code legalizes the practice of dower (provided by the groom's family), dowry (provided by the bride's family), divorce (3 Ds that break down marriages). The After effects of this marriage breakdown act has been unverified but it is stated that Babylonia's positive influence reduced and was over ruled by even smaller tribes, since soldiers could not go back home with peace and harmony

The basic difference between the Mediterranean concept and Indian marriage is that in India marriage is between two persons, rather than two inanimate properties, whereas in Mediterranean regions, property exchange in marriages is codified by law.

PROBLEMS & ISSUES IN THE ACTEdit

1. The Act should be read as Hindu Marriage BREAK DOWN / DIVORCE / SEPARATION Act

2. There is a faint mention Hindus can get married as per the cultural context, however it has many sections which state who CAN'T Get married to each other.

3. There has been a hue and cry against enactment of this act since it does not conform to the time tested practices of Sanatan Dharma (read as Hinduism). As per time tested practices (please refer to ManuSmriti), marriages can happen under many circumstance & types, however marriage is a consent to start a Family.

4. Further-more, A Couple becomes a Biological Family once own child is born out of them. This becomes a permanent bond between the couples. This is based on the universal laws of nature, rather than human made laws. The growth of the child depends on the parenting between the two adults (Father & Mother).

5. However there is no simple and common sense definition of Family in any of the Post Independence Personal Laws including the Hindu Marriage (breakdown) Act.

6. There is no clear section to help retain & continue relationships of the entire set of extended families involved as well as their children.

7. There is no standard operating procedure to help the child maintain contact between both parents. The assumption is always that the parents will fight contentious litigation. While there is a section of Restitution of Conjugal Rights (RCR), there is no section on Restitution of Familial Rights (RFR) or Restitution of Child Rights (RChR) or Restitution of Cohabitation Rights (RcHR)

8. The biggest drawback is in the Family Courts Act 1984 itself. Where there is no Standard Operating Procedure to keep the family united. It gives power to the judge to penalize, asks them to proceed on divorce cases, yet it tells the judge to avoid disputes.The Family Courts Act by itself has no definition of Family, but has too many administrative definitions which has no link to resolution of Family Disputes. Which is why there is no separate classification of couple disputes (couples without children) and Family disputes (biological families with children)

9. Unlike the Juvenile Justice Act 2015 & the UNCRC 1989, this act does not protect from break down of families if there is a child and does not address child access rights & prevents parents to amicably resolve disputes.

10. While it states that it is gender neutral, but the ground practices are strictly biased against fathers & children. The Practice keeps children away from the safety and security of own Fathers.

11. There is no officially recorded data on the effects in the society on implementation of this Act which is linked up to many other acts.

12. This is Part of many other acts which effectively are used to break down families, particularly of minor children, where children are not at fault and are very aggrieved. In Large number of cases, fathers are denied access rights to their own children, or are provided very nominal monthly or weekly access which is not sufficient for parenting any child.

13. The Misuse & Negative effects of this Act are much higher than the so called purpose

14. The Entire set of Family Laws & Procedures do not provide classifications and importance to various forms of relationships

TYPES OF RELATIONSHIPS NOT CLASSIFIED SCIENTIFICALLY IN THE POST INDEPENDENCE PERSONAL LAWS & DO NOT HAVE AUTOMATED RESTORATION PROCEDURESEdit

1. CONSANGUINITY or relationships of blood which run into generations such as the parent child bond

2. AFFINITY or relationships which are not of blood but are based on friendship and acquaintances such as the relationships between the spouses before birth of child

3. Hence Scientifically the relations can be broken only BEFORE any child birth. This critical aspect has not been addressed in any act. However this scientific aspect has not been explicitly mentioned in any personal laws including this Act itself.


Post Independence India, Non Traditional Family Court Breakups

1. Due to a lot of confusion in the laws, the father, mother & child are treated as separated entities which gives rise to very un healthy disputes, which creates more harm and trauma to the children and the affected parents.
2. It does not classify the difference between simple husband-wife disputes (without own children) and family matters where relations have already been established due to birth of a child.
3. Post Independence Family Courts are not time tested and do not have adequate data to infer whether their intervention have helped children grow up normally or as half baked adults. Since neither the acts nor the laws are of positive nature, but are of negative in nature.

 
Breakups due to Non Traditional Family Courts



TRADITIONAL INDIAN FAMILY COURTS

India already had time tested traditional family courts systems which helped retain relationships upto 4th generations. The Ancient Indian Family Courts were in perfect sync with the civil society, hence complicated matters could be easily resolved. The children & parents would be safe adn not be aggrieved.

 
Traditional Family Courts & Safety in Relationships with dispute resolutions

ApplicabilityEdit

Section 2 [2] of the Hindu Marriage Act, 1955 says:

  1. This Act applies -
    1. to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
    2. to any person who is a Buddhist, Jain or Sikh by religion; and
    3. to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

This section therefore applies to Hindus by religion in any of its forms and Hindus within the extended meaning i.e. Buddhist, Jains or Sikh and, in fact, applies to all such persons domiciled in the country who are not Muslims, Christians, Parsi or Jew, unless it is proved that such persons are not governed by the Act under any custom or usage. The Act applies to Hindus outside the territory of India only if such a Hindu is domiciled in the territory of India.[3]

The Act was viewed as conservative because it applied to any person who is Hindu by religion in any of its forms, yet groups other religions into the act (Jains, Buddhists, or Sikhs) as specified in Article 44 of the Indian Constitution.[4] However, with the passage of Anand Marriage (Amendment) Bill in 2012, Sikhs now also have their own personal law related to marriage.[5]

A Marriage (Arya Samaj Marriage or an arranged Marriage) is directly registered by the Registrar of Marriage under section 8 of Hindu Marriage Act-1955 on the same working day. Verification of all the documents is carried out on the date of application and thereafter Marriage is registered on the same working day by the registrar of marriage appointed by the Govt. of India and marriage certificate is issued.[6]

Hindu view of marriageEdit

According to Sanatan Dharma, Marriage is between consenting adults to give rise to a biological family. The creation of Family being biological in nature is governed by the universal laws of nature. Hence it is best to comply with the nature's laws.
According to the UNCRC 1989, Family is a tree that the child grows up in.
According to an old Proverb "It takes a village to raise a child"
According to the Ancient Indian Family Courts, the judicial magistrates had complete powers to retain families upto 4th generation.
According to modern science, the nature and characteristics are inherited by children from their biological parents. This is inherited and handed over to the next generations. Currently the human genome project has linked genes till about 3 lakh years ago.

Hence, according to Hinduism, marriage is a sacred relationship.[7] In some Hindu systems of marriage, there is no role for the state as marriage remained a private affair within the social realm.[8] Within this traditional framework reference, marriage is undoubtedly the most important transitional point in a Hindu’s life and one of the most important of all the Hindu ‘’sanskaras’’ (life-cycle rituals).[8]

The Congress Government diluted the Hindu Marriage in 1955 by enactment of HMA and then in 1983 by introduction of 498A. Special Marriage Act in 2000.

Therefore there was fierce religious opposition to enacting such laws for marriage, succession and adoption. The greatest opposition was to the provision of divorce, something which is anathema to the Sanatan Dharma Principles of Life Sciences. Also resisted was the principle of equating property with marriage, wherein exactly equal inheritance by sons and daughters was enacted, regardless of whether the daughter was married or unwed.[9] This was contrary to the Hindu view of family, where inheritance of parents responsibilities was a part of the life cycle.

Unlike the Mediterranean practices of acquisition of property through dower or dowry, the Hindu view expects children to take equitable responsibilities after their parents, based on their capacity to deliver. This is irrespective of the caste, gender, marital status, etc. Hence mixing up property matters with family responsibilities as being exact equal was considered too primitive by the Hindu society. In the Hindu society, married daughters were regarded as belonging to the family of their husband, and heirs of their parents responsibilities (which could include properties as per their parents wealth). 

Some have argued that Hindu marriage cannot be subjected to legislative intervention. Derrett predicted in his later writings that despite some evidence of modernization, the dominant view in Hindu society for the foreseeable future would remain that marriage is a form of social obligation.[8]

ConditionsEdit

Section 5[2] of Hindu Marriage Act, 1955 states:-

"Section 5. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely-

  1. neither party has a spouse living at the time of the marriage
  2. at the time of the marriage, neither party-
    1. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
    2. 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;
  3. the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage;
  4. 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;
  5. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two."


GuardianshipEdit

Section 6 of the Hindu Marriage Act specifies the guardianship for marriage. Wherever the consent of a guardian in marriage is necessary for a bride under this Act, the persons entitled to give such consent are the following: the father; the mother; the paternal grandfather; the paternal grandmother; the brother by full blood; the brother by half blood; etc.[10] The Guardianship For Marriage was repealed in 1978 after the Child Marriage Restraint Amendment was passed. This was an amendment that increased the minimum age requirement for marriage in order to prevent child marriages.[11]

SectionEdit

Section 7 of the Hindu Marriage Act recognizes the ceremonies and customs of marriage. Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. Such rites and rituals include the Saptapadi—the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. The marriage becomes complete and binding when the seventh step is taken. [12]

RegistrationEdit

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

Nullity of marriage and divorceEdit

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

Maintenance & Child Access - What the Acts Actually Say vs What is the malpractice in the Family CourtsEdit

Maintenance
While maintenance is supposed to go to the economically poorer spouse and dependent children, to be decided on the merits of the case and upon verification of documents and records. Interim maintenance is applied typically on the husbands and fathers without considering actual ground situations.
As Per CrPc 125 the person who pays needs to have Sufficient Means to survive. However this is never checked in the court procedures. Often, persons who don;t have sufficient means can be put under severe pressure including arbitrary arrest warrants, to pay off maintenance amounts. However in-spite of too much of pendencies in the lower courts, somehow the cases get more complicated, than resolved.

Child Access
As per the Juvenile Justice Act 2015, the Father, Mother & extended family are all legal guardians of the child, unless any party due to unforeseen circumstances beyond their control, gives off the right to parent the child (example:- extreme poverty, or death of all adults in the biological family)
However in the Family Law mechanisms the non custodial parents have to struggle for years (typically fathers in most cases, and mothers in few cases) in the current version of Family Courts, just to see their children. While there is no act or law to deny the access rights, however the malpractice is very high. Most order sheets decide and close the fate of such children, and provide access rights to the parents, lasting from a few hours a month, or a few hours a week, or nominal weekend access. Which is very insufficient time for any parent to spend with their children, especially in the growing up days
In spite of Supreme Court Judgements and Madras High Court Judgements on Parental Alienation, most Family courts, high courts and lower courts are completely ignorant about this serious cause of trauma on minor children.
Many Countries like Mexico, Brazil, State of Texas, Many European Countries (due to European Parliament's enactments) have already introduced mandatory shared parenting or joint custody.
Which is why most non custodial parents in India (mostly fathers and a few mothers) do find that the Current Post independence Family Courts systems and procedures are a human rights disaster for their minor children. Most of the children from divorces grow up into incomplete adults, forced into single parent household, completely alienated from their own non custodial parents. This is in spite of the fact that India has had traditional family systems and courts lasting for more than thousands of years.
It has been often found that if the parents have sufficient wealth then their cases frequently go to the high courts and up to supreme court to resolve their private family disputes. Whether the current model of Family Courts have provided any justice to the civil society or not, there is no official data kept by the government of India

Supreme Court ruling in 2012Edit

The Supreme Court of India exercised its powers under Article 142 of the Constitution of India and ruled in August 2012 that marriages can be ended by mutual consent before expiry of the cooling period of six months stipulated in the Hindu Marriage Act, 1955. Section 13-B of the Hindu Marriage Act provides for the couple seeking divorce through mutual consent to wait for a period of six months after making first joint application for divorce. It is only after the expiry of the six months that the couple can move second application for the dissolution of their marriage.[13]

Pronouncing the judgment, Justice Altamas Kabir said: "It is no doubt true that the legislature had in its wisdom stipulated a cooling period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. But there may be occasions when in order to do complete justice to the parties it becomes necessary for this court to invoke its powers under Article 142 in an irreconcilable situation (between the couple). When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months."

Marriage Laws (Amendment) Bill, 2010Edit

Based on recommendations of the Law Commission, a legislation was proposed. The Marriage Laws (Amendment) Bill, 2010 to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to making divorce easier on ground of irretrievable breakdown of marriage was introduced in the parliament in 2012. The Bill replaces the words "not earlier than six months" in Section 13-B with the words "Upon receipt of a petition."

It also provides a better safeguard to wives by inserting section 13D by which the wife may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.

New section 13E provides restriction on decree for divorce affecting children born out of wedlock and states that a court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.

Marriage Laws (Amendment) Bill, 2010 makes similar amendments to the Special Marriage Act, 1954 by replacing the words "not earlier than six months" in Section 28 with the words "Upon receipt of a petition" and provides restriction on decree for divorce affecting children born out of wedlock.

However, there was strong opposition to this bill due to the objection that it will create hardships for women and that the bill strongly supports one party while both parties should be treated equal in divorce.[14] Therefore, the bill was amended to provide for the wife's consent for waiver of six-month notice with the words "Upon receipt of petitions by the husband and the wife."

The Bill was passed by the Rajya Sabha in 2013,[15] though it was not passed in the Lok Sabha.

There was widespread protest against the bill. Hridaya, a Kolkata-based NGO, demonstrated against the bill. Amartya Talukdar (a Men's Right Activist) raised concern that the bill introduces no-fault divorce for Hindus only. According to him, "If the Government really wants to bring about empowerment of women, let them make it open for all sections of the society. Let them bring a uniform civil code. Why is it only for the Hindus?" [16][17][18]

See alsoEdit

ReferencesEdit

  1. ^ "In Fact: Between void and voidable, scope for greater protection for girl child".
  2. ^ a b "Bare" (PDF). Retrieved 1 April 2014.
  3. ^ "Sondur Gopal Vs Sondur Rajini (Supreme Court)".
  4. ^ Department of Revenue, Rehabilitation and Disaster Management - "Hindu Marriage Act, 1955" d
  5. ^ TNN 23 May 2012, 05.24AM IST (23 May 2012). "Sikhs welcome passage of Anand Marriage Act - Times of India". Articles.timesofindia.indiatimes.com. Retrieved 25 December 2012.
  6. ^ "Hindu Court Marriage in Delhi". Courtmarriageindia.org. Retrieved 5 June 2018.
  7. ^ "Hindu Marriage Act,1955 And Special Marriage Act, 1954". indiankanoon.org. Retrieved 27 August 2015.
  8. ^ a b c Menski, Werner. 2003. Hindu Law: Beyond Tradition and Modernity. Delhi: Oxford UP.
  9. ^ "Co parcenary - The system of copartionary". lawteacher.net. Retrieved 27 August 2015.
  10. ^ "The Hindu Marriage Act 1955". vakilno1.com. Retrieved 27 August 2015.
  11. ^ "The Child Marriage Restraint Act in India". divorcelawyerindia.com. Retrieved 27 August 2015.
  12. ^ "The Hindu Marriage Act 1955". vakilno1.com. Retrieved 27 August 2015.
  13. ^ "Marriages can be ended before cooling period: SC". IBNLive. Retrieved 27 August 2015.
  14. ^ "Easier Divorce Bill Tabled in Rajya Sabha", "Deccan Chronicle", 1 May 2012.
  15. ^ "Rajya Sabha passes women-friendly marriage bill". Times of India. 26 August 2013.
  16. ^ "Men wear sarees in Kolkata to protest against Marital Amendment Bill". 16 February 2014.
  17. ^ "Protest against Marriage Bill". 26 August 2013. Archived from the original on 23 October 2014.
  18. ^ "Rajya Sabha approves bill to make divorce friendly for women". The Indian Express. 26 August 2013. Retrieved 27 August 2015.

External linksEdit

  The full text of Hindu Marriage Act, 1955 at Wikisource