Women And Hindu
03 November, 2003
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 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.
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" 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.
What is the result
of a Hindu marriage solemnised without fulfillment of the above mentioned
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.
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.
be registered? How is it done?
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.
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