santusto bharyaya bharta bhartra bharya tathaiva ca |
yasminneva kule nityam kalyanam tatra vai dhruvam ||
Where there is mutual affection and regard between husband and wife, there alone will there be happiness and welfare.
According to Hindu tradition, marriage is not merely bringing about the relationship of husband and wife between a man and a woman. It is the union of two families, who merge as one.
Hindu Marriage refers to kanyadan which means gifting a girl to the boy by the father with all the traditions and rites or customs. Hindu marriage is an ancient tradition that is prevailing from the Vedic periods to the modern world with different modifications that have occurred until now. There are 16 sacraments in the Shastri Hinduism in which marriage is one of the important sacraments of Hinduism.
Section 2 of the Hindu Marriage Act, 1955 states that this act applies to any person who is a Hindu by birth or who has changed his/her religion to either any of its forms such as Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana or Arya Samaj. Any person who is a Buddhist, Jain, or Sikh also comes under this act. It also applies to any person living outside this territory except who is a Muslim, Christian, Parsi, or Jew by religion or it is proved that such person is being governed by Hindu law.
It is believed that it is the strongest bond between husband and wife. It is an unbreakable bond that remains even after death. The importance of marriage is not to the extent of one generation but it is an in-depth belief of Hinduism. Without a wife, a person is considered incomplete while performing any rites of Hinduism. It is very important to perform all the rites with the wife.
Conditions for a Hindu Marriage
According to Section 5, a valid marriage shall be solemnized between two Hindus if the following conditions are fulfilled:
- Any person doesn’t have a spouse living at the time of the marriage. According to the Hindu Marriage Act, It is not permissible to have two living wives at the same point in time, which amounts to bigamy. It is punishable under Section 494 of the Indian Penal Code.
- The groom shall attain the age of 21 and the bride attains the age of 18. It is necessary at the time of marriage the person shall attain the specified age given in this Act.
- The consent shall not be given by coercion or threat. In the modern world, a father can’t get the girl married to any without a girl’s consent. Marriage will be void.
- They don’t fall under the Sapinda relationship, or within the degree of prohibited relationship unless it is allowed by their custom or tradition.
- The person shall be not suffering from any insanity or mental disorder at the time of the marriage.
Void and Voidable Marriages
Void Marriages according to Section 11 of the Hindu Marriage Act 1996 states that any marriage solemnized after the commencement of the Hindu Marriage Act 1955, if it contravenes any of the provisions of this act, the marriage will be void. The marriage will have not any legal entity nor will it be enforceable.
Voidable Marriages according to Section 12 any marriage solemnized after or before the commencement of this will be voidable on the following grounds:
- No sexual intercourse has been done after the marriage due to the impotence of the Husband.
- Marriage is in contravention of Section 5 (ii) of this Act which states that the bride shall attain the age of 18 and the groom shall attain the age of 21.
- There shall be the consent of the bride.
- If the husband has pregnant another woman other than the wife.
- The wife has filed a request for annulling the marriage.
Divorce under Hindu Marriage Act 1955
Marriage, this seven-letter word itself creates a bonding that not only unites the two people but two families as well. However, until 1955 divorce was completely unknown in the Hindu marriage. According to the traditional belief, a marriage is considered not only as a relationship or a bond that exists for the existing world but it is a bond that also continues beyond. Thus, the essence of staying together was so imbibed in the Hindu society that a divorced person was stigmatized and prejudiced in the existing world. In Hindu communities particularly in the so-called lower social strata, the practice of divorce prevailed as a custom. However, with the changing needs of society, the Hindu Marriage Act was considered and ultimately the divorce aspect also found a place in the Hindu Marriage Act.
Previously as per the Indian culture and tradition, there was no concept of divorce which was considered to be existing however with the dynamic changes in the society the very purpose of divorce is to punish the guilty party and also to protect the innocent or the loyal one tied within the matrimonial bonds. The very institution of marriage is to provide a happy, coordinating partnership between two individuals, however, if this objective of marriage cannot be meted out there is no point to continue the same. Therefore, for a happy free separate, and independent living who were previously tied within the matrimonial bonds the concept and purpose of divorce arose.
According to Section 13 of The Hindu Marriage Act, 1955 the foundation section clearly states the grounds of divorce. These grounds are adultery, cruelty, Desertion, conversion, insanity, leprosy, venereal disease, renunciation, and presumption of death. Thus, on these grounds divorce is bound to take place between the two legally married couples. Section 13(B) also provides a divorce through mutual consent where both the parties don’t want to continue a married life, thus mutually they accept the fact and consents to have a divorce.
Grounds of Divorce under the Hindu Marriage Act 1955
- Adultery had been defined under Section 13(1) (i). It states that after solemnization of marriage if a married person with the ties of marital bonds is having sexual intercourse with another person who is not his or her spouse, is said to have committed adultery. Adultery is a crime in India and also has its penal provision under Section 497 of the Indian Penal Code.
- Cruelty in simple terms means torturing or unreasonable brutal behaviour against one. Thus Section 13(1) (ii) states that even after the solemnization of marriage, treated the petitioner with cruelty can also be considered as a ground for marriage. Cruelty is also a criminal offense and also has statutory provisions for the same. Section 498A of the Indian Penal Code states about the cruelty by the husband or the relative of the husband on the woman or wide.
- Desertion in simple terms can also be considered as an act of abandoning a person. Thus, it had been defined under Section 10(ib) of the Hindu Marriage Act 1955. It states that divorce can happen if the petitioner had been deserted by the respondent for a continuous period of two years immediately after preceding the presentation of the petition. Even if the spouse had left the home but still contacts the petitioner through emails or phone calls it cannot be considered as a ground of divorce or it could be stated that no desertion had taken place. However, if the respondent or the other spouse suddenly without any reasonable cause ceases to live with the petitioner or dismisses all the rights, obligations, and duties tied with the marital bond, then the essence of the only intention which he had was to desert the partner in the marriage. Thus, it could be a valid ground for divorce as well.
- Conversion, as a ground for divorce, had been defined under Section 13(1) (ii) of the Hindu Marriage Act 1955. If one of the spouses within the matrimonial bond ceases to be a Hindu and converts into another religion then the very essence of the Hindu Marriage Act gets destroyed. As a result of which it is considered as a lawful ground of divorce.
- Insanity the word had been derived from the word insane which means not in a correct state of mind. Thus, a person who is not able to understand the difference between right or wrong or who is unable to provide consent or to approve or disapprove of the happenings around him cannot be considered competent enough to tie himself or herself within the matrimonial bonds. Insanity had been defined under Section 13(1) (iii).
- Leprosy, otherwise called Hansen’s ailment, is a chronic infectious disease brought about by Mycobacterium leprae. The sickness essentially affects the skin, the fringe nerves, mucosal surfaces of the upper respiratory tract, and the eyes. Thus, it had been stated under Section 13(1) (iv) that a person whose spouse is suffering from a deadly, infectious, incurable disease known as leprosy can sort a decree of divorce under this ground.
- Venereal disease in simple terms is also known as the sexually transmitted disease. Under Section 13(1) (v) it can also be a ground of divorce. If one of the spouses is experiencing a serious incurable disease that is effectively transferable, a petition of divorce can be filed by the person. The explicitly transmitted illnesses like AIDS are accounted for to be venereal disease.
- Renunciation a person may file a divorce under Section 13(1) (vi) if one of the spouses renounces all the worldly affairs by embracing religion or any other belief. Thus, such a person attains a state of self-actualization as being defined by Maslow and wants to free himself from all worldly bonds, including from the bond of marriage. Thus, when the person himself/herself doesn’t want to take the responsibility of marriage, ties, relationship, and family, it could also be considered as a basic ground for divorce.
- Presumption of death if an individual isn’t seen or heard alive by those who are required to ‘normally known about’ the individual for a persistent time of seven years, the individual is considered to be dead. The other spouse needs to file for divorce if he/she is keen on remarriage. Thus, such a situation is also a ground of divorce as being stated under Section 13(1) (vii).
Divorce by Mutual Consent
Divorce by shared assent is when both parties agree to have a peaceful divorce. It is a basic method for leaving the marriage and dissolving the marriage legitimately. The primary part of such a separation is the mutual consent or the shared assent of the husband and wife. There are sure viewpoints to which the Husband and Wife need to arrive at a consensus. The first is the provision of maintenance issues.
The phrase “Incredible India” is true to itself. Every culture, religion, personal laws, codified laws amuse the society and its upbringing. The change in Hindu society and acceptance of the change in the dynamic society is a matter of immense pleasure and pride being an Indian. Previously the divorce concept was not accepted and it was considered that a girl is bound to adjust and compromise. But through the birth of the Hindu Marriage Act 1955, gradually the concept of divorce and therefore the relevant provision as per the needs of the dynamic society was also established. Hence staying in an abusive marriage is a curtailment of the basic fundamental rights like the Right to live peacefully, freedom of speech and expression, etc. Hence lastly it is only expected from the people that they don’t misuse these powers given by the law to them rather they should uphold the laws and human emotions of love, loyalty, trust, and kindness.