Incredible India! India has been a country where are all the different religions, cultures, etc., people live together, we have different personal laws directed for religious beliefs. This extends to personal laws for a subject of marriage and divorce in the view of Hindus, we have the Hindu Marriage Act which was enacted by parliament in 1955 to amend and codify marriage law between Hindus. This act has evolved with the provisions related to the regulating Institution of marriage which includes the validity and requirements for marriage and it also gives an impression on the aspects of Hindus' personal life and applicability of such lives in the wider Indian community. It also gives the basic leadership for Hindus marriage and divorce and how Hindu is to be in a well-organized marriage Bond and provides laws for both fiancée and fiancé and safety for their family and descendants.
Applicability of the Hindu Marriage Act, 1955:
This act applies to all form of Hinduism and Hindu religion also includes Jains and Buddhists. This act also includes anyone who is a permanent resident in India and is not Muslim, Jew, Christian, or Parsi by religion. Now before we continue let us learn the meaning of Hindu or "who is a Hindu" according to Google the first thing that will come out is Wikipedia's definition: "Hindus (Hindustani) are persons who regard themselves as culturally, ethnically, or religiously adhering to aspects of Hinduism". Historically, the term has also been used as a geographical, cultural, and later religious identifier for people living in the Indian subcontinent. Now the basic question comes out from this definition is "Who coined Hindu" and "What is Hinduism" while many Gurus, Historians, philosophers have developed different meanings or versions on the same. Now let's begin with the question "Who is a Hindu?" The term Hindu was used by the external merchants particularly by the Greeks and the Persians to summon the people living beyond the Indus river Hindu is not an Indian word it was referred by Greece than the Persians to recall the land and its people beyond Sindhu river. Hindus include beliefs which assert positively that the Lord is always present in the universe in different forms, there are many types of followers of Hindu both in India and around the world, Hindu, have their religious confidence like Brahmins of Banaras, the Ascetics and yogis of the Himalayas, Vaishnava’s who believes in Lord Vishnu or Lord Krishna, Shiva’s who honor Lord Shiva and many more.
Now let us begin with the second question that is "What is Hinduism?" again Hinduism was called by the refugees to describe the "ism" of the Hindus distinguish Hindus from Muslims and others. Hinduism is the third largest religion in the whole world and 95% of the world's Hindu lives in India. Hinduism is unique as it does not carry any single religion, beliefs, or philosophies.
'Hindu' from law point: On 14th January 1996 Supreme Court in the case, Sastri Yagnapurushadji and Ors. vs Muldas Brudardas Vaishya and Anr. [AIR 1966 SC 1119], defined the topic by putting the views of Bal Gangadhar Tilak in its judgement, explained that there are three distinguishing features of Hindus that are:
~Hindu highly believes in Supremacy of Vedas,
~Believes in God creation of the universe, and
~Believes in the fact that ways of Salvation are diverse
On whom the Hindu law applies?:
There are many Acts for Hindu laws, some of them are
~Hindu Marriage Act, 1955
~Hindu Succession Act,1956
~The Hindu minority and guardianship Act, 1956
~The Hindu adoption and maintenance act,1956
Section 2 of the Hindu Marriage Act 1955,
Section 2 of the Hindu Succession Act 1956, Section 2 of Hindu adoption and maintenance act 1956, and section 3 of Hindu minority and guardianship Act 1956 acknowledged on whom the Hindu law applies:
1. Hindu by religion: The above laws apply to the person who follows the Hindu religion. The person who follows Virashiva, Lingayat, Brahmo, Arya Samaj, Prarthana, Buddhism, Jainism, and Sikhism, in short, it applies to all the followers who do not follow Islam, Christianity, and Judaism.
~Converters to Hinduism: the person who convert themselves to Hinduism also comes under the shelter of the Hindus laws.
2. Hindu by birth:
1. If both the parents are Hindus, then the child (legitimate or illegitimate) is brought up as a Hindu
2. if either of the parents is Hindu: In the case of Myna Boyee v. of Ootaram (Myna Boyee v. Ootaram (1861)), it was concluded that if either of the parents is Hindu, the child will be a Hindu, and in the case of Maneka Gandhi v. Indira Gandhi and Another, Supreme Court held that if a child is brought up as a Hindu, he must be a Hindu.
Legislative History of the Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955 was dedicated to ensuring the claims of marriage for the fiancée and fiancé who are Hindu and are bound under the holy bond of marriage under any ceremony. As such this law doesn't define the types of the ceremony since there are many ways in which a man and a woman can carry out this spiritual act. This act was drafted after several cases were seen where both men and women were frightened under a cheating case in the name of wedding. This act is binding to any person who is Hindu, Jain, Sikh, and Buddhists and is not a Muslim, Christian, Parsi, this law is binding to any person who is Hindu by Birth or Hindu by Religion. There is a complete definition of Hindu under Section 2 of the Hindu Marriage Act.
Application of Act:
(1) This Act applies:
(a) 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 Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) 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.
The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) 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
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) 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. State Amendment Pondicherry: In section 2, inserted the following sub-section: (2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry.)
This Act was enacted to avoid the various consequences which were widespread due to childish Hindu law for marriage under British Rule.
Section 5 of the Hindu Marriage Act, 1955:
Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, 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; or
(c) has been subject to recurrent attacks of insanity
(iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Under Section 5 of the Hindu Marriage Act 1955, provisions for a Hindu Marriage are been explained. whenever any fiancée or fiancé gets married they require to follow the condition specified therein under section 5 of this act. Hindu marriage is a monogamy theory and it prevents a Hindu to get involved in a Martial relationship with more than one person and if one happens this act than it is a punishable offense under sections 5 and 17 of the Hindu Marriage Act 1955. under Hindu Marriage, Hindu law doesn't give any consideration to the caste system or community system thus, inter-caste marriages are lawful under the Hindu Marriage Act 1985.
Section 5 of the Act, explain some basic condition to be fulfilled before marriage ceremony,
1. There should be no bigamy in the marriage, both fiancé and fiancée are not allowed to have any spouse living at the time of the marriage.
2. While making the plan for the marriage, there should be a full sound mind, and unsoundness of mind is strictly prohibited.
3. There should be no suffering from a mental disorder.
4. Recurrent attacks of insanity should be tested before marriage.
5. Section 5 makes the marriage lawful only if the fiancé has attained the age of 21 years and the fiancée has attained the age of 18 at the time of marriage.
6. Both the parties should not share the relation of sapindas with each other unless a custom or usage governing each of them permits of a marriage.
Saptapadi: Is it necessary for a valid marriage?:
The Saptapadi ceremony builds the dedication that two make to each other during the Hindu wedding tradition. Saptapadi actually literally translates from Sanskrit meaning ‘seven steps’. The couple takes seven full rounds, walking clockwise around the ritual fire, expressing the seven principles and promises they make to each other.
Marriage is not legally ‘celebrated’ if one does not follow the essential functions followed by either community. There are several customer requirements in different parts of the country –generally, in north India, Saptapadi and invocation before the holy fire are considered essential ceremonies. However, these are not considered essential ceremonies in states like Tamil Nadu and Pondicherry. Saptapadi is therefore not necessary for all marriages. However, where saptapadi is observed as a ceremony when the last round took around the holy fire, the marriage will be deemed complete.
Section 7 of the Hindu Marriage Act, 1955 (Ceremonies for a Hindu marriage.)
(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
Section 11 in The Hindu Marriage Act, 1955:
Void marriage: Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.
Section 11 reads about the concept of nullity of marriage and divorce that is void marriage. It explains the provisions after which the marriage shall be void. Under this section, it is given that either husband or wife can file a petition for divorce if any of the acts occurred against the provision mention their section 5(1), (4), and (5).
Section 12 in The Hindu Marriage Act, 1955:
Section 12, states about the voidable marriages, in section 12 we are provided with some grounds for voidable marriage. The conditions are as follows:
1. The marriage shall be voidable if it is found that it is been achieved owing to the impotence of the respondent.
2. If marriage is in infringement of any the provision defined therein section 5.
3. Consent of guardians was obtained by any type of violence or force or by fraud which indeed violates the provisions.
4. If the respondent is pregnant at the time of the marriage by the person other than her husband.
No petition revoking a marriage:
1. If the petition is presented more than one year after the force had a stop or any fraud had been discovered.
2. If the petition with his/her full consent lived with the other party for more than one year.