Author: Suvigya Agarwal– IFTM University : Hindu Marriage Law

A legal system governing life of Hindus has been in existence for more than five thousand years which continue to harmonize the diverse elements of their religious and cultural life. Before we dive deep into the concept of Hindu Marriage Laws, let us first gain some knowledge about the heart and soul of Hindu Laws.

Hindus believe that the ultimate goal of life is to attain ‘Moksha’. Due to this fundamental idea or belief, came into existence the philosophy of ‘karma’. Karma is the way by which it becomes possible for a human to attain Moksha and get freed from the chain of birth and death. With this background, Hindus consider their law as of divine origin which was revealed to them by some great rishis who could directly communicate with God.

Sources of Hindu Law

We can classify the sources of Hindu law under the following two heads:

1. Ancient Sources: These are those sources of Hindu law which are available to Hindus since a long time and are of ancient origin. These include:
2. Shruti: The term ‘Shruti’ means something that is heard. It includes Upanishads, Vedangs and the four Vedas. It is believed to be of divine revelation.
3. Smritis: The term ‘Smriti’ means to remember or something that is remembered. These are believed to have originated from divine inspiration but are not divine revelation. Smriti embrace what the sages learned from their discoveries.
4. Commentaries and Digests: The next stage in the evolution of Hindu Law was creation of Commentaries and Digests which expounded upon the teachings and principles founded in the smritis. These laid down the foundation stone of various Hindu Law schools.
5. Customs: These are those activities, practices, traditions, etc. that has been practiced from time immemorial and holds the position of law. The state recognises only those customs which are valid, continued, and not harmful to public good.
6. Modern Sources: These are those sources of Hindu law which came into existence after the introduction of modern legal system. Under its purview comes the following:
7. Legislation: These are those codified laws, which in the form of acts are passed by the legislative bodies. These are binding upon all the people coming under its purview.
8. Judicial Precedents: These are decisions delivered by the court of law from time to time. If there is reasonable similarity between the present case and an already decided case then the later case serves as the precedent for the former.
9. Justice, Equity and Good Conscience: If no legislation, precedent or any ancient source of law is present for settlement of a case, then the case is decided by the judges using the principle of natural justice. Justice, Equity and Good Conscience have no specific rule; the judge delivers justice using his own expertise and conscience.

Schools of Hindu Law

There are two main schools of Hindu Law, namely:

1. Mitakshara: The Mitakshara is a running commentary written by Vijnaneshwara on the Smriti of Yajnavalkya, from this school derives its name. It is prevalent in all most whole of India except Bengal and Assam. The Mitakshara School of Hindu Law can be divided into five sub-schools:
   • The Benaras School
   • The Mithila School
   • The Bombay School
   • The Madras School
   • The Punjab School
2. Dayabhaga: The Dayabhaga School is named after Jimutvahana’s digest on leading Smritis. It is prevalent in Bengal and Assam. It deals only with partition and Inheritance. Matters on which the Dayabhaga is silent, the Mitakshara holds good even in Bengal and Assam.

Hindu Marriages

Hindu Marriages in India is governed by Hindu Marriage Act, 1955 (hereafter HMA, 1955). It governs various aspects of Hindu marriages such as conditions of marriage, registration, Divorce, alimony and maintenance, etc. It is divided into six chapters. Let us understand some of the main provisions of the HMA, 1955.

Extent of the HMA

The Act extends to whole of India. Prior to the Jammu and Kashmir Reorganisation Act, 2019, the Act was not applicable to the State of Jammu and Kashmir; but now the whole of India comes under the purview of the Act. It also applies to Hindus domiciled in the territories to which this Act extends who are outside the said territories [Section 1].

Application of HMA

As per HMA, this Act applies to any person who is a Hindu by religion, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. Apart from this, HMA also applies to Buddhists, Jainas or Sikhs by religion or any other person 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 if this Act had not been passed. This section also provides explanation as to which persons are Hindus, Buddhists, Jainas or Sikhs by religion. A child whether legitimate or illegitimate, one or both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion and who is brought up as a member of the tribe community, group or family to which such parent(s) belongs or belonged is a Hindu, Buddhist, Jaina or Sikh by religion as the case may be. Apart from this, a person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion will also come under the purview of this Act [Section 2].

Conditions for a Hindu Marriage

According to section 5 of HMA, for solemnization of marriage between two Hindus there are some conditions which need to be fulfilled by the parties. It should be noted that a marriage between a Hindu and a non-Hindu does not come under the purview of this Act. The conditions laid down by the Act are as follows:

1. No living spouse at the time of the marriage: None of the parties to the marriage can remarry in the lifetime of a partner while in a legal valid marriage. Section 5(i) of HMA prohibits bigamy or polygamy. Prior to HMA, 1955, Hindu males were permitted to marry multiple times. Any such marriage solemnized after the commencement of HMA is null and void under section 11 of HMA, 1955. Section 17 of HMA provides for the punishment of bigamy which is in accordance with section 494 and section 495 of the Indian Penal Code.
2. Mental capacity to give valid consent: It is necessary for the parties to marriage to be able to give valid consent to it. Any mental incapacity of such a kind which disables a party to give valid consent for the marriage makes a marriage voidable under section 12. As per section 5(ii), neither party should, at the time of marriage, be incapable of giving valid consent because of unsoundness of mind; or though capable of giving valid consent, has been suffering from mental disorder which makes him unfit for marriage and the procreation of children; or has been subject to recurrent attack of insanity. This condition, if not fulfilled makes the marriage voidable at the discretion of the aggrieved party and does not make the marriage void ab initio.
3. Marriageable age: According to section 5(iii) of HMA, the bridegroom must have completed the age of 21 years and bride that of 18 years at the time of marriage. This is in accordance with the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978). Any marriage solemnized in contravention of section 5(iii) is neither void nor voidable the only consequence being that the persons concerned are liable for punishment under section 18 and further if requirements of clause (iv) of section 13(2) are satisfied a decree for divorce can be granted at the instance of the bride.
4. Parties not within degrees of prohibited relationship: According to section 5(iv), for a marriage to be solemnized between any two Hindus the parties should not be within the degree of prohibited relationship unless the custom or usage governing each of them permits such marriage. What comes under the purview of degrees of prohibited relationship is given under section 3(g), HMA. Any marriage in contravention of section 5(iv) is void under section 11 and any person concerned is liable for punishment under section 18.
5. Parties not sapindas: As per section 5(v), a marriage between persons who are sapindas of each other is not permissible unless the custom or usage governing each of them permits it. What comes under the purview of sapinda relations is given under section 3(f) of the Act. Any marriage which contravenes the provisions of section 5(v) of HMA is void under section 11 and persons concerned are liable for punishment under section 18. Recently, constitutionality of this section was questioned in case of Neetu Grover v. Union of India & Ors., 2024 on the ground that prohibition of sapinda marriage unless there is an established custom, is violation of right to equality which is conferred under Article 14 of the Indian Constitution. Delhi High Court in this case rejected the challenge and upheld the validity of this provision.

Divorce under Hindu Marriage Act

Under the ancient Hindu law there is no provision of divorce. It is rather an unbreakable sacramental union. But as of today, in the modern legal system, there are provisions regarding divorce in the Hindu Marriage Act, 1955. There are grounds of divorce expressly provided in the HMA under section 13. These are as follows:

1. Adultery: If any person voluntarily establishes sexual relations with any person other than his/her marital partner, then such extra marital relations provide a valid ground for divorce under section 13(1)(i).
2. Cruelty: Any such cruelty towards the partner in a marriage, which makes the life of the spouse miserable and it causes grave harm to physical, mental, emotional, financial or social health of the spouse and survival of partner becomes very difficult, then the aggrieved spouse is entitled to divorce under section 13(1)(ia). Dastane v. Dastane^[1], the Supreme Court made it clear that the cruelty need not be of such nature as to cause danger to life, limb or health of the spouse. In this case, wife was held guilty of treating her husband with cruelty.
3. Desertion: If without any reasonable cause, the spouse has deserted the petitioner for at least two years, immediately before the presentation of petition, then the petitioner is entitled to divorce on account of desertion under section 13(1)(ib).
4. Conversion: When one of the parties converts his/her religion voluntarily to some other religion and has ceased to be a Hindu, HMA entitles the other party to divorce under section 13(1) (ii).
5. Mental incapacity: If any of the parties to the marriage is not in such a state of mind as to reasonably be expected to live in marriage relation such as, he/she has been incurably of unsound mind or suffering from mental disorder then the other party is entitled to divorce under section 13(1)(iii). Meaning of the expression “mental disorder” and “psychopathic disorder” is given under Explanation to clause (iii) of section 13(1).
6. Venereal Disease: When any of the parties to marriage has been suffering from such a venereal disease which is communicable and can affect the health of the other spouse, then the marriage can be dissolved  under section 13(1)(v).
7. Renunciation: If any of the parties to the marriage has renounced the world by entering any religious order and devotee life permanently to some religious activity and to such extent as to not be able to live in a marriage then the marriage can be dissolved under section 13(1)(vi).
8. Presumption of Death: If any of the parties to marriage has not been heard of being alive for a period of at least seven years by those who would naturally have heard of it, had that party been alive, then that marriage can be dissolved by a decree of divorce on a petition under section 13(1)(vii).

There are other grounds of divorce as given in the HMA such as special grounds of divorce for wife, alternate relief and divorce by mutual consent. Contact us

[1] (1975) 2 SCC 326