Second Draft- Research paper Topic – Hindu marriage act (By-Ankit Sharma)
Second Draft-
Research paper
Topic – Hindu
marriage act
Name - Ankit Sharma
KEYWORDS:
HINDU, SHPINDA,GOTRA,VIVHA,BHRMA
VIVHA,GANDHRBA VIVHA, RAKSHAS VIVHA,KANYADAN,VAR,VADHU,ETC
Introduction:
According to Hinduism, marriage is a sacred
relationship. In some Hindu systems of marriage, there is no role for the
state as marriage remained a private affair within the social realm.Within this
traditional framework reference, marriage is undoubtedly the most important
transitional point in a Hindu’s life and the most important of all the Hindu
‘’sanskaras’’ (life-cycle rituals).The Congress Government diluted the Hindu
Marriage in 1955 by enactment of HMA and then in 1983 by introduction of 498A.
Special Marriage Act in 2000. Therefore there was fierce religious opposition
to enacting such laws for marriage, succession and adoption. The greatest
opposition was to the provision of divorce, something which is anathema to the
Hindu religion. Also resisted was the principle of equal inheritance by sons
and daughters regardless of whether the daughter was married or
unwed. This was contrary to the Hindu view of family, where married
daughters were regarded as belonging to the family of their husband, not to the
family of their father.
Some
have argued that Hindu marriage cannot be subjected to legislative
intervention. Derrett predicted in his later writings that despite some
evidence of modernization, the dominant view in Hindu society for the
foreseeable future would remain that marriage is a form of social obligation.
Research
Methodology
The researcher has used observational
research method that is based on the observation of data which was published by
different institution. Context and contents has been taken from various books,
articles and the books of eminent authors. While the concepts HINDU MARRIAGE
ACT 1955 is very well known. Will be explained utilizing the doctrinal
approach. The data will be collected from the published research works and
published data from different sources.
Judicial
Interpretation On Hindu Marriage Act 1955
In Hindu mythology
there are 16 sacraments, among these 16 sacraments one is marriage. Father has
a moral duty to up bring his daughter and after she attains the age of marriage
find a suitable groom for her and give his daughter as benefaction {KANYADAN}. The above definition is
given by Raghunandan.
The Vedas are large
body of religious texts originating in ancient India. There are four Vedas: the
Rigveda, the Yajurveda, the Samaveda, and the Atharvaveda. According to Rigveda
it is whole and sole fathers discretion that whom he want to marry his daughter
but it is also the responsibility of a father that he must have to find a
virtuous person for his daughter and have to perform some religious sacrament
such as 7 rounds {SAATH FERE} around fire god and after all the religious
sacrament girl becomes bride but according the Rigveda the girl have no right
to give consent for marriage. Here it is his father’s absolute right that he
can make marry his daughter to anyone. It is assumed that the father cannot even
think to do wrong for his daughter.
Ø CASE LAW- TIKATI MUNMOHNTI V.S
BASANT KUMAR (1901) ILR 28 Cal 751
The points laid down
in this case are as follow-
1. Hindu Marriage is sacrament not a
contract
2. Male and female make a indissoluble
bond
3. They now becomes the Husband and wife
for 7 worlds
v Significance of Marriage according to Hindu mythology- Marriage is to fulfill religious
duties and begetting of a son who enables a man to get deliverance from
sufferings of hell.
Hindu Marriage Act-1955
Act to amend and codify the law relating to marriage among Hindus.
BE it enacted by Parliament in the Sixth Year
of the Republic of India as follows.
Ø SECTION-1 - Short title and extent
Ø SECTION-2- Application of act
Ø SECTION-3-Definations
Ø SECTION-4- Overriding effect of act
Ø SECTION-5- Condition of Hindu
Marriage
Ø SECTION-7- Ceremonies for a Hindu marriage
Ø SECTION-8- Registration of Hindu
marriages
Ø SECTION-9-Restitution of conjugal
rights
Ø SECTION-10-Judicial Separation
Ø SECTION-11-Void Marriages
Ø SECTION-12-Voidable Marriages
Ø SECTION-13-Divorce
Ø SECTION-13(A)-Alternate relief in
divorce proceedings
Ø SECTION-13(B)-Divorce by mutual
consent
Ø SECTION-14-No petition for divorce to
be presented within one year of marriages
Ø SECTION-15- Divorced persons when may marry again
Ø SECTION-16-Legitimacy of children of void and
voidable marriages
Ø SECTION-17-Punishment of bigamy
Ø SECTION-18-Punishment for contravention of
certain otherconditions for a Hindu
marriages
Ø SECTION-19- Court to which petition shall be presented
Ø SECTION-20-Contents and verification of
petitions
Ø SECTION-21-Application of Act 5 of 1908
Ø SECTION-21(A)- Power to transfer petitions
in certain cases
Ø SECTION-21(B) -Special provision relating
to trial and disposal of petitions under the Act
Ø SECTION-21(C)-Documentary evidence
Ø SECTION-22-Proceedings to be in camera and
may not be printed or published
Ø SECTION-23-Decree in proceedings.
Ø SECTION-23(A)-Relief for respondent in
divorce and other proceedings
Ø SECTION-24-Maintenance pendent lite and
expenses of proceedings
Ø SECTION-25-Permanent alimony and maintenance
Ø SECTION-26- Custody of children
Ø SECTION-27- Disposal of property
Ø SECTION-28- Appeals from decrees and orders
Ø SECTION-28(A)-Enforcement of decrees and
orders
Ø SECTION-29-Savings
Ø SECTION-30- This act is repealed
Essentials Of Hindu Marriage Act,
1955 Along With Penalties
The following are the necessary conditions for a valid
Hindu Marriage:
1. Monogamy: Section 5(i) of the
Act prohibits polygamy and polyandry. It says that neither party should have a
living spouse at the time of the marriage. Failure of this condition would make
the marriage null and void under section 11 of the Act. Apart from this, the
party would be liable for bigamy under sections 494 and 495 of the Indian Penal
Code, 1860 and section 17 of the Hindu Marriage Act, 1955. Schedule Tribes are
exempted from this but they must have an early and lasting custom for this. In
cases like Bhogadi Kannababu & Ors vs Vuggina Pydamma & Ors [AIR 2006
SC149] and Yamunabai Anantrao Adhav A vs Ranantrao Shivram Adhav & Anr [AIR
1988 SC 644], the apex court held that during the subsistence of first marriage,
the second marriage would be null and void.
2. Mental Capaacity : This clause was
inserted in the Act through The Marriage Laws (Amendment) Act, 1976. As per the
clause, three conditions must be fulfilled as per section 5(ii) of the Act for
a valid Hindu Marriage. The conditions are: neither party, at the time of
marriage (a) is incapable of giving a valid consent due to his/her unsound mind
(b) has been suffering from mental disorder of such a kind or to such an extent
as to be unfit for marriage and the procreation of children (c) has been
subjected to recurrent attacks of insanity. If any of these conditions is not
fulfilled then marriage is voidable under section 12(1)(b) of the Act. The
clause of epilepsy was removed through The Marriage Laws (Amendment) Act, 2001.
3. Age of the parties : At the time of
enactment of the Act, the legal age for the marriage of boy and girl was 18
years and 15 years respectively. However, later on The Marriage Laws
(Amendment) Act, 1976, changed the minimum age to 21 years and 18 years
respectively. According to the ruling in Pinninti Venkataramana and Anr vs
State [AIR 1977 AP 43], breaching of the condition didn’t amount to nullity of
the marriage but it is an offence under section 18(a) of the Act i.e. simple
imprisonment up to 15 days or a fine of Rs. 1000/- or both. According to
section 10 of The Prohibition of Child Marriage Act, 2006, any person
performing, conducting, directing or abetting a child marriage shall be
punished with rigorous imprisonment up to two years and fine of one lakh
rupees.
4. Prohibition of Sapinda Relationship : Section
5(v) of the Act, marriage between the persons having sapinda relationship is
prohibited unless there is a custom which allows them to do so. Any marriage
solemnized under this would be void under section 11 of the Act and violation
of this clause would amount to simple imprisonment upto 1 month or a fine of
Rs. 1000/- or both under section 18(b) of the act
Conclusion
To
any person who is a Hindu by religion in any of its forms or developments,
including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or
Arya Samam,
To
any person who is a Buddhist, Jaina or Sikh by religion, and
To
any other person domiciled in the territories to which this Act extends 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 or by any custom or
usage as part of that law in respect of any of the matters dealt with herein if
this Act had not been passed.
Explanation.
- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as
the case may be:-
Any
child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists,
Jainas or Sikhs by religion;
any
child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist,
Jaina or Sikh by religion and who is brought up as a member of the tribe,
community,
group
or family to which such parent belongs or belonged; and
Any
person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh
religion.
Notwithstanding
anything contained in sub-section (1), nothing contained in this Act shall
apply to the members of any Scheduled tribe within the meaning of clause (25)
of article 366 of the Constitution unless the Central Government, by
notification in the Official Gazette, otherwise directs.
(3)
The expression 'Hindu' in any portion of this Act shall be construed as if it
included a person who, though not a Hindu by religion is, nevertheless, a
person to whom this Act applies by virtue of the provisions contained in this
section.
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