This article has been written by Miss Vasundhara Sharma, a 2nd year student of Kirit P Mehta School of law, NMIMS college, Mumbai.
I) ABSTRACT-
The concept of marriage is different for different religions and under the Hindu law it is that of attaining a sacrament in the name of ‘Bhagwan’ by performing religious ceremonies and practicing ‘dharma’ which is the philosophy of life and marriage by each person following their duties. The Hindu Marriage Act was established on the 18th of May in 1955, it is a special law which deals with the procedure of marriage. This act is responsible in terms of the procedure in case the parties decide to separate or divorce. As the society keeps developing so do the laws, thus there has been a change in terms of the dimensions involved in the nature of the marriage and divorce, in this article the concept of ‘mutual’ divorce will be analysed under the Hindu marriage act.
Keywords – Dharma, procedure, mutual consent , dimensions
II) INTRODUCTION –
The concept of marriage is considered sacred in different religions , for each marriage there is a specific procedure that is followed in different religions , for instance the Christians got to the church and get married under the guidance and blessings of the pope , in the same way the Hindus have had a long ancestral dimensions by a way of connecting to god and getting married in a sacred place that is the temple under the blessings of a pandit who chants mantra so that the happy couple have a way of starting their new life by being blessed by god. The Hindus are one of the oldest religions that can be traced back to 4000 years and is the third largest religion in the world. India being a cosmopolitan country where the special law overrides the general law i.e. more importance and preference has been given to the special law than the general law , let’s take a hypothecated example to understand this better , let’s say in a country X the law is not to eat meat or consume any non vegetarian item and a particular religion does its worship by consuming that then in this case for the sake of worship they will be allowed to consume it , simply for the reason that it is a special circumstance that has arisen in the religion and cannot be ignored as under article 25 of the Indian constitution one has the right to freedom of religion. There has always been a ‘taboo’ in terms of the concept of divorce , even today it is not taken as well and the society naturally does tend to judge people in terms of their relationships and if the concept of divorce happens to come up at a kitty party then the horror and shock on the faces of people really make the other person feel as though they have committed some sort of crime , which really is not justifiable , the concept of divorce arose because women were being abused or there was no compatibility between the people as they might have married under parental pressure or in terms of dowry which is now a crime under section 304B of the Indian Penal Code. Divorce is not considered a ‘good thing’ as most narrow minded people would say but as the level of progress is increasing some people are accepting it and are realizing that if their own children are not happy in life what point is there to be married and of course problems are naturally going to arise in any marriage for that matter but when it goes beyond control like abuse or violence and after there has been a talk through session and matters still don’t seem to get any better then divorce really is a good solution , at least the mutual parties will be happy and will be able to move on , for instance there was a viral video which depicted a father organizing a grand barat to welcome back home his daughter after a divorce where she was being abused , but as time is evolving the mindsets of people are changing as well. The main objective that the Hindu marriage act aims to achieve is that of updating and codifying the laws of marriage in the Hindu religion, the Sastrik law i.e. one of the oldest Hindu laws contained both divorce and marriage and aimed to modify and codify it and have their own civil rules and regulations.
III) FEATURES –
The main essential features in the Hindu marriage act are the following –
1)Forbidding Bigamy – This act prevents a man from having multiple wives at the same time i.e. it is a one party marriage where if one person has married someone , they cannot marry again except with certain exceptions. This is penalized in section 494 and 495 of the IPC
2)Age of getting married prescribed – The age of marriage has also been mentioned so as to not in any kind of child marriage i.e. prohibition of child marriage act 2006 , where the age of female is 18 and male is that of 21 years
3)Protecting the party’s marriage – The main idea is to ensure that cohabitation is valid under this act as mentioned in section 9
4)Focus on the mental stability of the partners getting married– This act focuses on how a marriage will be declared null and void if they were unfit or were hitched in any form. The importance of consent is signified under this aspect
5)Significance of religious ceremonies – This act makes states that if two people get married with certain religious rituals and rights then the marriage is lawful
By the applicability of these points they have been divided into two aspects of void and voidable marriages and the applicability is dealt within the realms of section 2 which talks about who is eligible to follow these acts along with registration as mentioned under section 8 which talks about how the marriage is lawful and legally binding.
IV) DIVORCE BY MUTUAL CONSENT – SECTION 13 B
The word divorce means dissolution or termination of a marriage , sadly in today’s generation a lot of marriages easily end up in divorce , now understanding in terms of the hindu marriage act , it is essential to understand that this was the first act to actually ‘allow’ for divorce , before this act there was no statue which granted the same as mentioned it was considered as a taboo. The hindu marriage act not only deals with marriage but also divorce and seeks to outline the conditions in which a spouse or both can opt for the termination of this marriage , the court has to intervene in order for the divorce to be valid , there are certain remedies for this separation as well. Section 13 of the marriage act deals with the grounds of divorce on the basis of fraud , desertion , cruelty , insanity , also including abuse and violence. A separate law has also been established known as the DIVORCE ACT 1869 now specifically in the hindu marriage act – Section 13(1) deals with the matrimonial relief which is provided and giving the right to the other party to file a suit in case certain faults arise as mentioned above , section 13-1(a) gives access to remedies under this act. Section 13 B allows for divorce by mutual consent which gives the option to the parties to file for a divorce without having to blame one another for any fault. There is a void and a voidable marriage , in a voidable marriage the marriage can be cancelled at the option of annulment and a void marriage is considered in section 11 of this act if there is bigamy i.e when one person is already married and yet tries to marry another under this case only the second wife has a right to file a petition. There are certain essentials which need to be fulfilled in order for it to be a ground of divorce as mentioned in the case of Rajendar vs Anita (1992) which developed the formed basis of reasons of divorce including –
1) Cruelty
2) Desertion
3) Conversion
4) Insanity
5) Leprosy
6) Renunciation of world
7) Presumption of death
8) Wife’s special grounds for divorce
V) RESTITUTION OF CONJUGAL RIGHTS –
Section 9 of this act provides for the restoration of conjugal rights i.e. cohabitation by respecting each other’s rights of living together which is one of the most common forms of obligation , it signifies the right of a spouse to live with the other who withdrew without any cause. It may be referred to as one of the ways to keep a marriage intact, however the delhi high court had a different perspective and noted the misunderstandings which sparked discussions and challenged the constitutionality , the main reason as discussed was to preserve and protect the marriage rights between two people who ended the cohabitation without any valid reason.
(Lily Thomas vs Union Of India & Ors. On 5 April, 2000) –
A landmark judgment for the same has been mentioned in Lily Thomas vs Union of India (2006). In the matter of Lily Thomas v. Union of India (2006), a Supreme Court petition was brought up about the status of the first marriage in a situation where a non-Muslim converted to the ‘Muslim’ faith without actually changing his or her beliefs or divorcing the first wife. It was decided that unless a divorce decree was acquired, a couple’s marriage would not be dissolved under Hindu law just because they changed their religion. The issues that came up before the Apex Court in this case were:
If non-Muslim converts to the ‘Muslim’ faith without experiencing any real change in faith or belief and only in order to avoid an existing marriage or enter a second marriage, will the marriage he enters after such conversion be void?
Any marriage solemnized by the husband during the course of that marriage, despite his conversion to a different religion, would be a crime that could be tried under Section 17 of the Hindu Marriage Act, 1955, read with Section 494 of the IPC, as bigamous marriage is against the law and has been made into an offense. Any marriage between two Hindus is deemed null and void if the following criteria are met: If either partner had a spouse who was still alive at the time of the marriage and the ceremony took place after the Act’s implementation.
Is the Respondent subject to bigamy prosecution under Section 494 of the IPC?
A person could face prosecution under Section 494 of the IPC if they enter into a second marriage while their first marriage is still active. This second marriage would also be illegal under Sections 11 and 17 of the Hindu Marriage Act, 1955. The case of Robasa Khanum v. Khodadad Irani (1946) was also brought up, in which the learned Judge ruled that the behaviour of a spouse who converts to Islam must be evaluated in accordance with the principles of justice, right, or equity, as well as a good conscience. Whether having a Uniform Civil Code would be a good idea?
Even though uniform legislation is highly desired, the nation’s unity and integrity may suffer if it is enacted all at once. It should bring about progressive change and order over time in a democracy under the rule of law. Because of this, it would be unrealistic and unjust to believe that all laws could be rendered uniform at once. However, the legal system can address mistakes or flaws that develop over time. Regarding the Uniform Civil Code, R.M. Sahai, J.
The other honourable judge who made up the Bench recommended certain actions the government should take to prevent the misuse of religion by dishonest people who, while claiming to have converted, were discovered to be polygamists in reality.
VI) LIVE IN RELATIONSHIPS UNDER HINDU MARRIAGE ACT 1955 –
The concept of live in relationships has also been popularized recently where the people who wish to get married first live in an unofficial way with one another in order for them to understand each other better and learn to take responsibilities among them and divide the ‘work’ among each other so as to make it easy to balance the work-life situation. The concept of live in relationship has been discussed and the court has made it valid in india however certain religions like hinduism have not accepted it as they feel it is unfit for a woman to live with a man who have not been married off properly and societies usually cut off or shun these people from these societies as these practices are not considered as ‘socially acceptable’. Live in relationships have their advantages and disadvantages but in hinduism live in relationships are similar to what can be considered as doing a ‘paap’ i.e. a form of sin. Now with the modern world constantly being developed the world is no longer limited to genders of just man and woman with the LGBTQI+ community being formed and while the law has justified why live in relationships are legal certain religions like hinduism has not accepted it as a part of its special law identity , which is why till date the societies do depend on the judiciary as the last line of defense to resolve these matters.
VII) CONCLUSION –
In conclusion it can be said that the main reason and objective of the hindu marriage act 1955 was to help to codify the law. The act goes on to explain about the justification , essentials and pre-requisites along with the eligibility both for marriage and divorce , there are separate laws in the hindu religion for inheritance and remarriage. This act also provides relief , conjugal rights and remedies. The concept of marriage today has changed and there are new questions arising such as the concept of live in relationships which the religion laws are yet to explain and justify , people’s perception have changed to a certain extent and the laws regarding certain aspects like the LGBTQI+ community and live in relationships need to be explained fully. The hindu marriage act does grant divorce along with mutual consent however one unique characteristic feature is that it provides restitution of conjugal rights as well i.e. one way to protect and uphold the marriage of two people who have withdrawn from another without any reason , this provides and acts as an excellent example of providing a way of divorce; but at the same time protecting and making sure that no situation should arise that divorce which is an ugly way of marriage should come in any marriage.
VIII) REFERENCES –
2) https://acadpubl.eu/hub/2018-120-5/3/249.pdf
3) https://www.ijhssi.org/papers/vol8(2)/Ser%20-%201/H0802013740.pdf
6) https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/
7) https://blog.ipleaders.in/mutual-consent-divorce/
8)https://legalserviceindia.com/legal/article-6487-divorce-under-hindu-marriage-act-1955.html