Conditions for Hindu Marriage (Revisited)

As per Section 5 of the Hindu Marriage Act, 1955, certain essential conditions must be fulfilled for a marriage to be legally valid:

Essential Conditions:

• Monogamy: Neither party should have a living spouse at the time of marriage.
• Soundness of Mind: Both parties must be mentally fit to give valid consent and must not suffer from mental disorders that make them unfit for marriage or procreation.
• Minimum Age: Bride must be at least 18 years old, and groom must be at least 21 years old at the time of marriage.
• Prohibited Degrees: Parties should not fall within the degrees of prohibited relationship unless the custom or usage permits it.
• Sapinda Relationship: Parties should not be sapindas of each other unless permitted by custom.

Ceremonies and Registration

According to Section 7 of the Hindu Marriage Act, a Hindu marriage may be solemnized according to customary rites and ceremonies of either party. This may include:

• Saptapadi: The taking of seven steps by the bride and groom around the sacred fire, which is a crucial element in many Hindu marriages.
• Other rites: Exchange of garlands, mangalsutra tying, or regional rituals accepted as valid by community custom.

Registration of Marriage

Under Section 8 of the Act, state governments may make rules for voluntary registration of Hindu marriages. Though not mandatory, registration provides:

• Legal proof of marriage
• Useful in matters of divorce, inheritance, or visa processing

Restitution of Conjugal Rights (Section 9)

Section 9 provides a remedy when either the husband or wife has withdrawn from the society of the other without reasonable cause.

Legal Provision

The aggrieved party may approach the District Court, and if the court is satisfied of the truth of the statements and no legal ground exists for denial, it may pass a decree of restitution.

Effect of Decree

• The respondent must resume cohabitation and marital obligations.
• Failure to comply with the decree for over a year may be a ground for divorce under Section 13(1A).

Judicial Separation (Section 10)

Judicial separation is a legal remedy that allows spouses to live apart without ending the marital bond.

Grounds for Judicial Separation

Grounds are similar to those for divorce under Section 13, such as:

• Cruelty
• Desertion for more than 2 years
• Adultery
• Conversion to another religion

Effect

• The rights and duties of cohabitation cease.
• If parties do not resume cohabitation for one year after decree, it becomes a ground for divorce.

Divorce (Section 13 and 13B)

Contested Divorce under Section 13

Under this provision, either spouse may file for divorce based on the following grounds:

• Adultery
• Cruelty
• Desertion for over 2 years
• Conversion to another religion
• Incurable mental disorder or communicable disease
• Renunciation of the world (sannyasi)
• Not heard alive for 7 years

Mutual Consent Divorce (Section 13B)

When both parties mutually agree to end the marriage, they can file a petition under Section 13B. Conditions include:

• Parties must have lived separately for at least one year.
• There must be free consent of both spouses.
• A cooling-off period of six months is generally required but can be waived by the court.

Annulment of Marriage and Void Marriages (Section 11)

A Hindu marriage is null and void under Section 11 if it violates any of the three main conditions of Section 5:

• Either party has a living spouse at the time of marriage.
• Parties are within prohibited degrees of relationship.
• Parties are sapindas of each other.

Effect: The marriage is treated as if it never existed and has no legal consequences.

Voidable Marriages (Section 12)

Unlike void marriages, voidable marriages are valid until annulled by a decree of nullity from the court. Grounds under Section 12 include:

• Marriage without valid consent due to force or fraud
• Impotency of either party
• Wife was pregnant by someone else at the time of marriage

Time Limits

• The petition must be filed within one year of discovering the ground.
• The party must not have voluntarily cohabited after discovering the issue.

Upon annulment, the marriage is treated as if it never existed but legitimacy of children born before annulment is preserved.

Maintenance Pendente Lite and Expenses of Proceedings (Section 24)

Section 24 of the Hindu Marriage Act, 1955 empowers either spouse (husband or wife) to claim maintenance during the pendency of matrimonial proceedings, provided they have no independent source of income sufficient for support and legal expenses.

Essentials of Section 24:

• Who can apply: Either the wife or husband, who has no sufficient income.
• When: During the pendency of any proceeding under the Hindu Marriage Act (e.g., divorce, judicial separation, nullity).
• What can be claimed: Monthly maintenance and legal expenses.
• Forum: Application is filed before the same court where the main matrimonial petition is pending.

Key Considerations by the Court

• Income and financial resources of both parties
• Standard of living of the applicant prior to separation
• Expenses incurred for legal representation
• Urgency or immediate need for sustenance

Judicial Observations:

Indian courts have held that the objective of Section 24 is to prevent hardship to the spouse who lacks means during litigation, and to ensure a level playing field in matrimonial disputes.

Illustrative Example:

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Permanent Alimony and Maintenance (Section 25)

Section 25 of the Hindu Marriage Act enables the court to grant permanent alimony and maintenance to either spouse after the passing of a decree for:

• Divorce
• Judicial Separation
• Nullity of Marriage

Salient Features:

• Applicability: Either party, regardless of gender, may claim.
• Time of Application: At the time of decree or any time thereafter.
• Mode of Payment: Monthly, periodic, or lump sum.
• Duration: Usually lifelong, unless varied by subsequent events (e.g., remarriage, change in financial condition).

Factors Determining the Amount

• Financial status and income of both spouses
• Age and health conditions
• Conduct of the parties during the marriage
• Duration of marriage
• Needs of the claimant spouse and obligations of the paying spouse

Modifications and Rescission:

The court may modify, suspend or cancel the maintenance order if:

• The receiving party remarries
• Improved financial condition of either party
• Discovery of concealment or fraud

Illustrative Example:

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Custody of Children (Section 26)

Section 26 of the Hindu Marriage Act empowers the court to make interim and permanent orders related to the custody, maintenance, and education of minor children in matrimonial proceedings.

Key Provisions:

• Applicable during proceedings and even after the decree is passed.
• Either parent can apply.
• Court may issue temporary or permanent custody orders.
• Provision for visitation rights of the non-custodial parent.
• Orders can be modified on application due to changed circumstances.

Principle of Welfare of the Child

The welfare of the child is paramount, overriding even legal rights of parents. The court evaluates:

• Affection and emotional bonding
• Financial ability to provide education and health care
• Psychological and moral development of the child
• Comfort and safety of the child in either household

Types of Custody:

• Sole Custody: Given to one parent exclusively
• Joint Custody: Shared between both parents on agreed terms
• Third-party Custody: In extreme cases where both parents are unfit

Illustrative Example:

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