marriage divorce custody and property
adapted from "A booklet for
published by "Womens Right Initiative"
Lawyers Collective New Delhi
[ ed. note : original text of this booklet is in black ]
with critical commentary from an editor of "Bharat_x_law"
Website note : the booklet
did not seem to be copyright asserted,
and hence we have reproduced it here to our best ability with e&oe.
Since this is a lengthy booklet, we are putting this document on the
site in stages, till then and because in any case this booklet is so interesting,
readers are advised to collect their free personal copy from the WRI at
the address below or by post with s.s.a.e.
editors of "Bharat_x_law" do not necessarily agree with the
views of the WRI/ Lawyers Collective etc, and in fact many a time we
absolutely disagree with the feminist views propagated, so at various
places we have added our critical comments and opinions, (in red
type). The fact of the matter (sic) is that in India the laws of marriage,
divorce and custody are totally in favour of women, and if you are a
man trapped in a divorce situation you can kiss your ass goodbye.
Because of Bxl's unique situation, we hold no brief for either sex,
( our closet holds brief's of both sexes. )
Bharat_x_law is not affiliated
/ sponsored / supported etc.
by any lawyer or legal organisation, and is independent.
The bulk of this document is targeted at those poor fools
(Hindus) who were married by religious rites under the Hindu Marriage
Act 1955. You can save yourself a great deal of heartburn if you and
your spouse, both over 21 years and unmarried Indians, simply have a
civil marriage under the Special Marriages Act 1954. In fact, the
present Hindu Marriage Act 1955, is a clone of the "Special Marriages
Act 1872" which was a combination of the "Natives Act,1869 " and the
"Brahmo Marriage Bill 1871". These Bills were drafted by the Brahmo
Samajis notably Ishwar Chandra VidyaSagar and these Bills/Acts
prove exactly how advanced this religion was even a century ago. At
several places in this commentary we will be referring to the Brahmo
marriage code to place certain matters in a historical perspective.]
List of topics:
who is a hindu ?
2. in what manner can i get married ?
3. what is a valid marriage ?
4. what ceremonies have to be performed for a marriage to be valid ?
5. what is my legal status, and what are my rights if i have been living
together with my partner without getting married ?
6. what do I require to prove that i am married ?
(different kinds of marriages : valid / void / voidable)
7. do marriages have to be registered ?
8. what is meant by a "civil marriage" ?
9. what is the minimum age of marriage ?
10. what is the law on child marriages ?
11. can I be forced to marry against my will ?
12. what is bigamy ? What can i do if my husband marries again
without divorcing me ?
13. what laws will apply to me and my children if i marry someone
from a different religion ?
14. what is the legal status of children of a void or voidable marriage ?
15. what is the difference between dowry and 'stridhan' ?
16. what can i do if dowry is demanded before, during, or after a marriage ?
17. what are the different types of divorce ?
18. are there any legal alternatives to divorce ?
19. how soon after a marriage can i apply for a divorce ?
20. when and how can a married couple opt for a divorce by mutual consent ?
21. can i or my husband refuse a divorce ?
22. what are the different grounds for divorce ?
23. who initiates the divorce ?
24. what are the things to keep in mind before deciding to file for a divorce ?
25. is coing to court the only way of obtaining a divorce ?
26. on what grounds can the Court refuse to grant a divorce ?
27. what can i do if my husband abandons me ?
28. what are my rights regarding confidentiality and privacy in a divorce
29. what is meant by a "settlement" ?
Frequently Asked Questions on Hindu Personal Law
Whether we like it or not,
the law pervades every aspect of our life.
On the one hand, it regulates almost every action of ours whether
mundane or complex, public or private. On the other, it provides all
of us with certain rights as safeguard against injustice. Of course
the law is far from perfect in this regard, many aspects of it
especially those relating to the rights of women are in urgent need
of change. There are also many problems in the way our legal system
is operating today, such as delays and expenses.
[ed.note : Right on baby !]
However, we should recognise
that even the legal right the law does
provide are couched in obscure legal language, and are thus
inaccessible to most of us. The increased awareness of legal rights
is necessary to give people the confidence to deal with the legal
system. In recognition of this fact, legal literacy has been part of
the mandate of the Lawyers Collective since its very inception in the
early 1980s. In the past two years, the Womens Rights Initiative
(WRI) has tried to systematically address the issue with reference to
matters of interest to women.
The present booklet is a small
step in that direction: a compilation
of "Frequently Asked Questions" on personal laws for Hindu women, ie,
laws relating to marriage, divorce, custody and inheritance. Both the
questions and answers have arisen out of the practical experience of
the Lawyers Collective in dealing with queries and anxieties of
clients over the years.
[ ed.note : throughout this WRI/LC document there is this condescending
undertone of lawyers simplifying the law for their anxious, agitated and
ignorant clients. Since the editors of Bharat_x_law have a legendary contempt
for most lawyers, we have no such constraint and consider our readers to be
intelligent and rational people fully capable of handling their own cases and
pleadings personally and thereby saving a bundle in the bargain.]
We should add, as a note of
caution, that the law is always evolving, so the
answers that appear here will require regular updating. You should also note
that the laws vary in detail from State to State, so what is true from our
experience (of practice in Delhi) may not be true elsewhere.
PLEASE NOTE THAT THIS BOOKLET CANNOT SUBSTITUTE FOR
PROFESSIONAL LEGAL ADVICE : it is meant only as a general introduction
to your rights. You must always consult a lawyer with the particular facts of
your case before embarking on any legal journey.
[ ed.note: we rest our case ;-) ]
New Delhi, January 2001
Womens Right Initiative
GF/FF 63/2 Masjid Road
New Delhi 110 014
Phone : 4321102 , 4316925
Tele-Fax : 4321101
e-mail : firstname.lastname@example.org
note : Lawyers are not allowed to advertise or otherwise
promote their services... there are rules about this... SLICK !!]
[BOX] Personal Laws :
Because India is a country
of such great diversity, different
communities have evolved different practices and norms relating to
marriage, divorce, inheritance and custody. In order to preserve and
respect these differences, the laws governing these issues (called
"personal laws") are different for different religious communities.
Hence, the answer to a question such as "what is a valid marriage"
will depend on whether you are a Hindu, Muslim, Parsi or Christian.
[ ed.note : this is a tremendous simplification.. details later]
This booklet deals with personal
laws applicable to Hindus. Originally,
these laws were either contained in religious and philosphical texts,
or interpreted according to local custom. Now many laws have been
codified and passed as statutes by Parliament. Note that statutory
law is never exhaustive - the courts have to use it with case laaw
that has developed over the years when dealing with issues of Hindu
Personal Law. Also most of the statutes listed below make exceptions
for recognised "customary practices" of local communities.
[ ed.note: In simple language, the law is not necessarily what is
written in the statutes (acts etc.), but rather left to the
interpretation of the Judge, based on case-law of a superior court,
ie, the Supreme Court, High Court of that State, High Court of
another State etc. Also to be interpreted in the context of any
international treaties / conventions that India may be signatory to,
like Human Rights Conventions, Rights of the Child etc, United Nation
resolutions etc. Please note, however, that where the language of the
statute is exact, these case-law judgements tend to split hairs to
achieve the particular predetermined result the Judge wants, and
Judges can be and often are highly selective of the portions of
case-law they use to support their decisions.]
Statute dealing with Hindu
[ ed.note : also known as the "Hindu Code"]
Hindu Marriage Act, 1955
Hindu Succession Act, 1956
Hindu Minority and Guardianship Act, 1956
Hindu Adoptions and Maintenance Act, 1956
also refer : the Hindu Caste Removal and Disablities Act.
All these acts are available from Universal Publishers in a single
book costing Rs. 25 or 30, and will soon be available on our site
and is otherwise easily available on the web from various sites.]
I. PERSONAL LAW
Q1. Who is
a Hindu ?
A. In law, the term "Hindu" has a very broad scope, and includes
Sikhs, Buddhists and Jains. Basically anybody Indian who is not
Parsi, Christian or Muslim is considered to be "Hindu."
: This is a very critical section. The question of "who is a
Hindu ?" is still not answered, the matter is presently before an 11
member Supreme Court Constitutional Bench in the context of religious
minorities, but the possibility of this question being fully
decided by the Court is remote (remember Shah Bano). Our readers are
advised to note the sections of the concerned Hindu Code carefully,
eg. section 2 of the Hindu Marriage Act. In our opinion:- Jews,
specified tribals like in the North East etc, original Brahmos, Arya
Samajis, Prathana Samajis, Lingayats and many others are not covered
by the Hindu Code and are not Hindus. With respect, particular
attention may be given to the poor quality of judgements in this
field in recent cases like that of Dr.Stella Oraon, Feb-2001 Supreme
Court. The reader is better advised to rely on classic case-law like
"Rani Bhagwan Koer vs. J.C.Bose and ors" ia. Privy Council 1901.
[30 Cal 11], where for example it is decided that if a [Brahmo]
states that he is not a Hindu it must be taken as conclusive proof
that he is not a Hindu. By extension every citizen of India is free
to declare that he is not a Hindu and hence be governed by the
secular law of India... viz the "Special Marriages Act, 1954, the
Indian Succession Act, the Guardians and Wards Act etc. The editor
considers India to be a secular state in name only, under a dominant
Hindu class endeavouring to subjugate / assimilate other religious
minorities by including classes clearly not Hindu within their fold. Also
the editors wish to clarify that the term "includes as Hindus" does not
mean that Sikhs etc are Hindus, but only that these classes are covered
by the Hindu Law in situations where no special law exists.]
In what manner can I get married ?
A. You can get married in 2 ways: through a "registered civil
marriage" of a non-religious nature (see. Q.8) and through a wedding
which involves traditional Hindu ceremonies or other customary
practices. The laws that govern your marriage are different in each
case - registered marriages are governed by the Special Marriages Act,
1954, while Hindu Marriages are governed by the Hindu Laws (see [box]
[ ed.note: Once again a tremendous simplification. For more on this
field readers are advised to read "Mulla" or "Maynes", the editor
prefers Maynes, but Justices have a partiality to Mulla (grin). If
you, like the editor, are as poor as the proverbial church mouse, you
can read Paras Dewan's Hindu Law for more on the subject. Anyway,
under the SMA'1954 which is the secular law of India for marriage
under special cases, and also for divorce, any 2 persons in the
universe can be legally married under this Act, the following are
examples of valid registered marriages under the Spl Mar Act:-
- Hindu / Sikh
- Sikh / Brahmo
- Hindu / Muslim
- Muslim /Christian
- Tribal / Indian Jew
- Israeli Jew / Palestinian Arab.
- Spock (Vulcan) / Deanna Troy (Betazoid)
would not be a legal marriage under the Spl Mar Act.
- Maneka Gandhi / C.P.Thakur ! ( Hint: dogs not allowed )
is no need for a religious ceremony under the Special Marriage
Act 1954, but if you were already married by religious rites and your
marrige is presently unregistered you may get your marrige registered
under the SMA '54. Caution : please read this entire document and the
suggested readings, before doing anything. Only 2 Hindus can get
married to each other under the Hindu Marriage Act, although there
are a few controversial instances where marriage between a Hindu and
Christian have been held to be valid marriages under the HMA'55 also
but these should not be relied upon.]
Q3. What is a valid marriage?
A. The law recognises certain rights and duties that arise out of a marriage,
as well as those that arise when a marriage is dissolved (eg. the right to
maintenance). However, these rights are available to you only if your marriage
is "valid". For a marriage to be valid, certain ceremonies must be performed
(see Q.4); in addition neither the bride or the groom should be:-
a) Already married to somebody else.
b) Incapable of giving consent,
because of an unsound mind or unfit
for marriage because of a mental disorder.
c) Below the minimum age for marriage (18 for the bride, 21 for the groom)
d) Sapindas of each other,
or within the "prohibited degrees of
relationship" (unless this is a customary practice within your community).
This is basically a distillation of sections of the Hindu Marriage Act.
The reader is advised to read the Act in detail. Also to claim the benefit of
"customary practice" the onus of proof of such custom is on you. See also the
box below on the differences between valid, void and voidable marriages.
Also remember that a marriage that may be invalid, say between 2 cousins,
under the HMA'55 can be validated subsequently by registration under the
SMA'54, although not all such invalid marriages, say for underage parties,
can. Since the authors of the booklet tend to handle cases in Delhi, to get an
insight into the mind and quality of the matrimonial law as practiced in the Delhi
lower courts, viz Tis Hazari the readers are advised to read Jaspal Singh's
book on matrimonial law, he was a DJ (that' District Judge) at Tis Hazari before
he was elevated to the Delhi High Court].
Q4. What ceremonies have
to be performed for a marriage to be valid?
[ editor's note : NONE ... for a marriage under the SMA'54]
A. The ceremonies that must be performed for a mariage to be valid
depend upon the rituals that are prevalent in the community of
either the bride or the groom. The 'saptapadi' [ed.note: "seven
steps"] is normally enough to solemnise a marriage and is required for
all Hindus. However, if you belong to a community which recognises
some other custom (eg. 'anand karaj' in the case of Sikhs) it is that
custom which must be followed. What you must remember is that
whatever custom you perform to get married must be recognised by you
or your husband's community.
[ ed.note: It is incorrect in our opinion to say that 'saptapadi' is
required for all Hindu marriages. Neither the Brahmos nor several
South Indian communities require 'saptapadi', and in fact here binding
the hands with a garland is sufficient. Another essential requirement
for Hindus is of invocation of the sacred fire or 'homam', and in
fact in earlier times it was held that both the 'saptapadi' as well as
the 'homam' were essential requirements for Hindus. Is it necessary to
have a priest conduct your marriage? No, the Hindu Law recognises
various forms of marriage rituals including the asura (bride capture)
and gandharva (love under the moonlight) forms of marriage as valid for
most Hindus, with the caveat that these forms although valid are
undesirable. It is critical that the marriage rituals must be of one
of the parties. A marriage of a Hindu to a Sikh by Arya Samaj rites (all
independently valid under the HMA) is invalid under the HMA, although
this can be registered under the SMA. Avoid those Arya Samaj quickie
marriages, and just directly go for the SMA registration route if religious
mumbo-jumbo is not your scene and you can wait 35 days. ]
Q.5 What is my legal
status and what are my rights if I have been
living together with my partner without getting married?
A. You have no legal rights regarding divorce, maintenance etc. if
you have not been legally married. [ed.note. Under section 125 CrPC
even a mistress or keep can claim maintenance .. of Rs. 500 p.m. in
most states]. However, if you can prove that you have been living
together for a number of years, the Courts will "presume" that you
are in fact married. [ed.note : this is another "feminist" trick to
push the envelope of the law. IJS is possibly referring to certain
sections of the Indian Evidence Act regarding Judicial presumption.
The so called presumption fails when it is contested by o.p.] This
means that you will not have to provide additional proof of marriage
as given in Q6. below; on the contrary, someone who claims that you
are not married will have to provide positive proof to substantiate
that claim. [ ed.note : IJS is deliberately confusing 2 issues here,
YES in a succession / intestacy matter the burden of proof would be
upon someone challenging the legal status of a "common law wife"
(which concept incidentally does not specifically exist in India no
matter what these fems keep preaching), and NO in a matrimonial
dispute wherein the alleged husband stated on oath etc. that he was
unmarried the burden would definitely fall on the "keep" to prove her
Q6. What do I require to prove
that I am married?
A. If you had a marriage under the Special Marriage Act, the
Marriage Certificate is proof of marriage. If your marriage has been
registered (see. Q.7) the registry entry will be sufficient.
Otherwise, you can use invitation cards, tent-house bills,
photographs or video recordings of the marriage ceremony to prove
marriage. A certificate from the temple or priest who performed the
marriage will also suffice. It may become important to prove that the
correct ceremonies were performed.
[ ed.note : tent-house bills ? invitation cards ? Certificate from
the priest etc.? Usually the weddings are held at the bride's
location so the presumption that Mr.X was the groom is a bit far
fetched. Photographs / Videos are a different case and are usually
admissible as corroborating evidence only, but the field is fluid
since the standard of proof in these matters varies considerably.
Usually the contesting advocate will try and trip up the witnesses
by asking them for the names of people in the wedding party, the
sub-assistant priest's name, the slokas invoked etc.]
[Box] Different kinds of marriages
A marriage in law can be of
3 types : valid, void and voidable.
A 'void' marriage is one that has no legal status whasoever. For
example if a man has a lawfully wedded wife he cannot choose to marry
a second time without divorcing his first wife. Even if he goes
through the proper procedure and ceremonies of marriage eith another
woman the law will not consider this second marriage valid. This
means that the second "wife" cannot claim certain rights arising from
the marriage, like the right to maintenance.