Hindu Marriage Law FAQ

What is meant when the law uses the term "Hindu"?

The term "Hindu" in post-independence Hindu law governing marriage, divorce, adoption, maintenance, guardianship and succession, describes not only persons who are Hindu by religion, but also those who are Sikh, Buddhist, and Jain. Roughly speaking, the term "Hindu" encompasses those Indians who are not Christian, Parsi, Muslim, or Jewish for the purposes of the law.

What should be minimum age of bride and bride-groom at the time of marriage?

Bride-18 years, Bride-groom-21 years.

What is a proper or valid Hindu marriage?

Since in India various communities have different customs and ceremonies, the law says that a marriage can be performed or "solemnised" according to the customary rituals and ceremonies of the community to which either the bride or the groom belongs. It is very important to understand that the rituals and ceremonies carried out must be recognised and accepted by the community concerned as being the proper ones for formalising a marriage. For example, the law makes it very clear that in a Hindu marriage, where the ceremony includes the saptpadi, the ritual of circling the sacred fire seven times, the ceremony becomes complete and the marriage binding when the seventh round is completed.

Is it possible for Hindus to marry without undergoing Hindu marriage rituals and still remain Hindu for other aspects of the law?

Yes. Hindus can opt for a civil marriage, often incorrectly referred to as a "court marriage," under the Special Marriage Act, 1954. Provisions in the Act govern civil marriages and require no religious ritual or ceremony of any kind. The necessary requirement is that the persons intending to marry inform the marriage officer of the district in which at least one of them lives. The marriage officer then posts the information on a public notice board and keeps it up for 30 days. During those 30 days, any person can object to the marriage on grounds such as the intended bride is under age or that she is too closely related to the bridegroom or that she has been married before. If no valid objections are received, the couple signs a declaration in the marriage office in the presence of three witnesses. The marriage officer then issues a certificate of marriage to the couple as proof of the marriage. The Special Marriage Act, in S.21-A clearly states that if a special or civil marriage takes place between two persons both of whom are Hindus, Buddhist, Sikh or Jain, such persons continue to be governed by other aspects of Hindu personal law, such as the law relating to succession.

What conditions do persons wishing to marry have to fulfill before a proper Hindu marriage can be solemnized?

• Neither bride nor groom should already be married or have a living husband or wife. A divorced person, a widow or widower is free to remarry;
• Both should have reached the minimum age for marriage: 18 years in case of the bride and 21 in case of the groom;
• Apart from being able to give their voluntary consent to the marriage, both must also be free of any mental disorder which could make them unfit for marriage;
• The bride and groom should not be within the "prohibited degrees of relationship" nor should they be "sapindas"1 of each other (these expressions are explained in detail in s.3 (f) and 3(g) of the Hindu Marriage Act). This rule does not apply if it can be established that a custom or usage is applicable to each permitting marriage between the two. Significantly, the rule does apply when the relationship is based on adoption.

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What is the result of a Hindu marriage solemnised without fulfillment of the above mentioned necessary conditions?

In three situations such a marriage is said to be void, which means that it is invalid, as if it never took place:

• If one of the parties to the marriage has a living husband or wife; or
• If the parties are within the prohibited degrees of relationship; or
• If they are sapindas of each other.

If the conditions regarding valid consent have not been fulfilled, the resulting marriage is void. That means that the party wishing to challenge it can approach the court for a decree of nullity. Once such a decree is passed, the marriage would have no legal force whatsoever. For example, if after the solemnization of the marriage it is found that the groom could not have given his valid consent because of the unsoundness of his mind, the woman can get the marriage nullified through the court. Naturally, the court must be satisfied with the proof of mental disorder and unsoundness of mind claim. If voidable marriages are not challenged in court, they remain valid for all legal purposes.

But what is the remedy if a woman has been married off before she turned 18?

A woman whose marriage was performed when she was under 15 years of age can reject the marriage, or "repudiate" it and get a divorce on that ground alone. She can only take the step after turning 15, but before turning 18. However, by doing so she loses the right to maintenance or alimony which a divorced woman can claim legally.

Are customary marriages such as Kreva marriage valid?

Ans. The Hindu Marriage can be solemnized in accordance with customary rights and ceremonies of

either party thereto. So, customary marriages such as Kreva marriages, where such customs are

recognized can be a valid marriage if there is no violation of any other provision of the Act.

What marriages are void and what marriages are voidable?

Void Marriages Voidable Marriages Where it contravenes any one of the following conditions:

a) Either party has a spouse living at the time of marriage.

b) Parties are within prohibited relationship.

c) Parties are sapindas of each other.

Marriage may be annulled by a decree of nullity on any of the following grounds:

1. Impotency of respondent.

2(a) Respondent was Incapable of giving a valid consent to marriage because of unsoundness of mind.

(b) Respondent was suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children.

(c) Respondent was subject to recurrent attacks of insanity.

3 The consent of the petitioner was obtained by force or by fraud.

4 The respondent at the time of marriage was pregnant by some person other than the petitioner. 

If a woman has been forced into a marriage, is such a marriage void or voidable? What if a fraud has been played on her?

Such marriages are voidable. If the consent of the complaining party has been obtained by force or by fraud relating to the nature of the ceremony performed or to any significant fact or circumstance concerning the opposing party, the marriage can be voided. However, a petition for annulment in such a case must be presented within one year after the force ceased to operate or the fraud has been discovered. Most important of all, the petitioner or complaining party should not have lived willingly with the other after the end of the force or after discovering the fraud. A marriage is also voidable if it can be proven that the wife was pregnant at the time of marriage by another man. In this situation the husband must file his petition within one year of the date of the marriage.

If a woman is being forced to marry against her will, what remedy does she have?

A woman can seek the help of the police to help her stop her marriage if she is being forced to marry against her will. However, given the level of mistrust that prevails in our society vis-à-vis the police, such an intervention can boomerang on the woman and may lead to more trouble. In such situations, social pressure applied judiciously might work better on her parents as opposed to legal interventions. A young woman being forced to marry against her will by her parents should first try to identify and approach influential people within her own community or extended family who have the moral clout to influence her parent's decision. Alternatively, sympathetic teachers or respected social workers in the area could also be approached for help. However, these social interventions are outside the realm of legal rights and in extreme cases where social pressure does not work, police help may be sought.

Should marriages be registered? How is it done?

The registration of Hindu marriages is not compulsory. However, registration of one's marriage provides proof of it for legal purposes and therefore we highly recommend it for women as a safety measure. A Hindu marriage register is found in the Office of the Registrar of Marriages, usually located in District or Divisional court compounds. The Registrar is normally some type of magistrate. A Hindu marriage can also be registered under the Special Marriage Act, 1954 if both parties so desire. If that is done, the marriage is treated as a civil marriage governed by that Act from the date of registration.

What options are open to a woman whose husband marries someone else while still married to her? Is that bigamy?

Yes, marrying again during the lifetime of one's wife or husband is known as bigamy. It is a criminal offence, punishable with imprisonment and fine. A bigamous marriage is void, a complete nullity (see answer to question No.5). If a woman has prima facie evidence that she is lawfully married to a man who is about to or has remarried, she can register a criminal complaint and the police are expected to stop him from getting remarried. If a wife learns that her husband is going to marry again she can get an injunction from the court forbidding the marriage before it occurs. After it has taken place, a wife can ask the court for a "declaration" that the second or bigamous marriage is null and void. Proving bigamy, however, is not easy. The complainant wife has to prove that both the marriages, her own as well as the second bigamous one, have been performed properly according to the appropriate ceremonies. Most prosecutions for bigamy fail because the complainant does not have the proof of the bigamous marriage. The accused husband can usually successfully claim against all efforts to prove the contrary that essential parts of the ceremony were never carried out and escape punishment.

If a Hindu wishes to marry a person who is not a Hindu, under what law can they do so?

If the couple wishes to have a religious marriage governed by Hindu law, then the non-Hindu partner must convert to Hinduism. If the non-Hindu partner is a Christian then it is also possible for the couple to marry according to Christian rites under the Indian Christian Marriage Act, 1872. Christian Personal Law then governs the marriage. The third option, in some ways the simplest, is to have a civil marriage under the Special Marriage Act which facilitates marriages between any two people, including members of any two religious communities. It does not involve conversion and also permits people to avoid various complications that arise from marriages under various religion-based personal laws.

What rights does a Hindu child, who is born to persons whose marriage is declared void or voidable have under the Hindu Marriage Act?

Such a child is considered legitimate regardless of the status of the parent's marriage, if the marriage was performed according to Hindu rites under the Hindu Marriage Act, 1955 or was a civil marriage under the Special Marriage Act, 1954. Such a child may inherit the property of his parents. However, he/she does not acquire rights in relation to joint family or ancestral property.

What are the grounds on which divorce can be obtained under Hindu Marriage Act?

A petition for divorce may be filed after one year of the marriage. In case of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, a petition may be allowed to be presented before one year.

Marriage may be dissolve by a decree of divorce on the following grounds:

1. Respondent had voluntary sexual intercourse with any person other than the spouse after the marriage.

2. Respondent has treated the petitioner with cruelty.

3. Respondent has deserted the petitioner for a continuous period of not less than two years.

4. Respondent ceased to be a Hindu.

5. Respondent has been incurably of unsound mind.

6. Respondent has been suffering from virulent and incurable form of leprosy.

7. Respondent has been suffering from venereal disease in a communicable form.

8. Respondent has renounced the world by entering any religious order.

9. Respondent not heard of as being alive for a period of seven years or more. Either party may obtain divorce:

10. On the ground that there was no resumption of cohabitation for period of one year or more after decree of judicial separation 

11. There has been no restitution of conjugal rights for a period of one year or more after decree for restitution of conjugal rights.

Wife may also seek divorce on the following ground:

12. In case of marriage before 1955 act, the husband had married again before such commencement or that any other wife of the husband was alive at the time of solemnization of marriage of petitioner.

13. The husband, after marriage, has been guilty of rape, sodomy or bestiality.

14. Co-habitation not resumed for one year or more since passing of decree/order for maintenance against husband under Section 125 Cr.P.C or under Hindu Adoptions & Maintenance Act, 1956.

15. Marriage was solemnized when petitioner was below 15 years of age and she has repudiated the marriage, after attaining the age of 15 years, and before attaining the age of 18 years. Divorce under customary law is recognized under Section 29 of Hindu Marriage Act. Such custom and usage should have been continuously observed for a long time, having obtained the force of law among Hindus in any local area, Tribe, Community, groups or family. Rule should be certain and not opposed to public policy.

When can a person re-marry after passing of decree of divorce? 

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal

against the decree or if there is such a right of appeal the time for appealing has expired without an

appeal having been presented, or an appeal has been presented but has been dismissed, it shall be

lawful for either party to marry again. 

What are the provisions regarding grant of interim maintenance?

Ans. Where it appears to Court that the wife or the husband, as the case may be, has no

independent income sufficient for his/her support and the necessary expenses of the proceedings, it

may grant interim maintenance to the applicant.

What are the provision regarding permanent alimony?

Ans. At the time of passing of decree or at any time subsequent thereto the Court on application

made by either party, order that the other party shall pay to the applicant for his/her maintenance and

support, a gross sum or such monthly or periodical sums as may seem to the Court to be just.

NRI Marriages and Divorce Issues - FAQs

1.Can I File divorce petition without coming to India

Yes, you can file divorce petition without coming to India. You can file Divorce petition from the place of residence of the respondent(in case if husband is petitioner or in case wife is petitioner), or the place of marriage or the place where the couple last lived together. wife can file wherever she resides after separation.

2. How many times I have to attend the court hearing  for divorce  case in India?

Its depends upon circumstances. Means if your cross examination is over on the same day then rest of proceedings are for lawyers.

3. How many times I have to attend the court for mutual consent divorce ?

In case of mutual consent divorce you have to attend/appear in court twice for the purpose of recording the statement in court. In so many courts now camera/video conferencing has been started and you can record your statement through the video conferencing but its totally depends upon the court to court as there are so many complication.

3. Should both the spouses attend the court hearing for divorce in India?

If it is for divorce by mutual consent, both of them should attend the hearing for the purpose of recording the statement but some time court may consider one if other is out of country and he or she has given the power of attorney to represent her or him in court, but remember its totally depends upon court.

4.  can a person seek divorce Under Hindu Law within a year of marriage?

Under Section 14 of the Hindu Marriage Act, 1955, no petition for divorce can be filed within one year of the marriage. But in  exceptional circumstances, The Honourable High Court is in empowered to grant leave to file the case before the expiry of one year.

5. How much time it will take to get divorce in India?

If it is a divorce by mutual consent of the spouses, Six months from the date of filing. It is possible to get divorce before six months, recently The Honorable Supreme court has dissolved the marriage before expiry of six months.

6. How much it will cost me for getting in India?

It depends on the lawyer to lawyer as in India there is no fix fees schedules.

7. What are the Documents require for mutual consent divorce?

Address proof, passport size photograph of petitioner, marriage card if available, marriage certificate, marriage photographs and ID proof..etc.

8.how I can annulled or Nullity of my marriage ?or what is the procedure to annulment of marriage in India?

Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(a) that the marriage has not been consummated owing to the impotency of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

9.can I claim or seek maintenance in divorce case proceeding?

 As per section 24 of Hindu marriage act, Maintenance Pendente lite and expenses proceedings. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner' s own income and the income of the respondent, it may seem to the court to be reasonable

10.can I seek child custody or child visitation in divorce ?

As per section 26 of HMAct, Custody of children. In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such, orders and provisions with respect to the custody, maintenance and education of such children as, might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made

11.Judicial separation in India meaning and procedure.

Petition for Judicial separation may be presented on any of the grounds specified in divorce like--adultery, desertion, cruelty, chronic illness etcor on grounds of failure to comply with RCR--then it shall be no longer obligatory for the petitioner to cohabit with the respondent.

12.How I can transfer divorce petition from court where its filed by my husband  at my place ?

The Supreme Court has the power to transfer the cases from one High Court to another and even from one District Court of a particular state to another District Court of the other state. In such transfer cases the Hon’ble Supreme Court transfer only those cases if they really lack appropriate territorial jurisdiction and those cases which were otherwise supposed to be filed under the transferred jurisdiction. Hon’ble Supreme Court often looks at the real ground / reason for such transfer petition in supreme court ,transfer divorce petition, petition for divorce in supreme court, transfer of divorce case from one state to other

13.I am in USA and got divorce, is it valid in India ?

A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction.

(b) where it has not been given on the merits of the case.

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.

(d) where the proceedings in which the judgment was obtained are opposed to natural justice.

(e) where it has been obtained by fraud.

(f) where it sustains a claim founded on a breach of any law in force in India.

14.I am in India my husband/wife  filed divorce petition in USA/UK/Australia/foreign, I am not able to contest the proceeding, if he or she obtain the decree of divorce in foreign, is it valid in India ?

foreign judgement decree of divorce then it will be valid for dissolving such Indian marriage as has been held by the Supreme Court of India in several of its judgements  The very first condition is with regard to Jurisdiction of such foreign court, what it means that both or either of the parties should be residing in the foreign country where from such decree of divorce has been obtained. The second important condition is with regard to merits of the case for divorce, whether those merits considered by the foreign court to arrive on this conclusion or not. Next, a proper notice was served to the other party with regard to such divorce proceedings & the other party was assigned a sufficient time to file his or her defence against the case, hence following the principle of natural justice. There was no fraud or force involved in such case & both the parties either mutually agreed to surrender itself to such foreign court for getting the decree of divorce or neither of them objected to such foreign court proceeding with such matter & deciding it accordingly. Lastly the decree so passed by the foreign court should not be such which may not be executable in India