Hindu Law: Marriage, Divorce, Maintenance, Adoption and Succession — Judicial Services

Weightage: Personal law is tested in the Civil Law or a separate Law paper in many states, and family courts and civil courts hear these disputes daily. The Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956 apply to Hindus, Buddhists, Jains and Sikhs. Where a statute has been amended or a case has recently changed the rule, confirm it on the current text.

1. Who is governed

The Acts apply to Hindus by religion in any of its forms, Buddhists, Jains and Sikhs, and to others who are not Muslims, Christians, Parsis or Jews and are not governed by another law. They do not apply to Scheduled Tribes unless the Central Government so directs.

2. Conditions of a valid marriage: Section 5

A Hindu marriage may be solemnised if, at the time of the marriage:

1. Neither party has a living spouse (monogamy).
2. Neither is incapable of giving valid consent through unsoundness of mind, nor suffers from mental disorder to an unfit degree, nor subject to recurrent insanity.
3. The groom is 21 and the bride 18.
4. The parties are not within the degrees of prohibited relationship, unless custom allows.
5. They are not sapindas of each other, unless custom allows.

Section 7 requires the customary ceremonies, and where the saptapadi (seven steps) is part of the rites, the marriage is complete on the seventh step. Section 8 allows registration as evidence, and non-registration does not invalidate the marriage.

3. Void and voidable marriages

• A marriage is void (Section 11) if it breaches the conditions of monogamy, prohibited degrees or sapinda relationship. A decree of nullity may be sought by either party.
• A marriage is voidable (Section 12) at the option of the aggrieved party if: impotence of the respondent at marriage and until the petition, unsoundness of mind, consent obtained by force or fraud, or the wife pregnant by another person at the time of marriage. The petition must be filed within the prescribed period.

Section 16 gives legitimacy to children of void and voidable marriages. In Revanasiddappa v. Mallikarjun (2011), such children are entitled to a share in the parents' property, not in the coparcenary property of the parents' families.

4. Restitution and judicial separation

Section 9: a spouse who has been withdrawn from by the other without reasonable excuse may petition for restitution of conjugal rights, and the decree is enforced by attachment, not by compelling the person. The Supreme Court upheld the section in Saroj Rani v. Sudarshan Kumar (1984). Section 10 allows judicial separation on the grounds in Section 13.

5. Divorce: Section 13

A petition for divorce may be founded on the other party's:

• Adultery (voluntary sexual intercourse with another).
• Cruelty: physical or mental conduct causing reasonable apprehension of harm. Samar Ghosh v. Jaya Ghosh (2007) listed illustrations of mental cruelty, and Shobha Rani v. Madhukar Reddi (1988) rejected a need to show intent.
• Desertion for a continuous period of at least two years.
• Conversion to another religion.
• Unsound mind or a mental disorder of such a kind that the petitioner cannot reasonably be expected to live with the respondent.
• Venereal disease in a communicable form, and renunciation of the world.
• Presumed death: not heard of as being alive for seven years.

Section 13(1A) allows divorce where there has been no resumption of cohabitation for one year after a decree of judicial separation or restitution. Section 13(2) gives the wife additional grounds, including bigamy by the husband, his rape, sodomy or bestiality, and repudiation of a marriage made before she was fifteen.

6. Mutual consent: Section 13B

A petition by both spouses may be filed if they have been living separately for one year or more, have not been able to live together and have mutually agreed to dissolve the marriage.

The court passes a decree after a six-month waiting period and not later than 18 months. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held the waiting period directory, so it can be waived where the parties have settled and there is no chance of reunion.

Irretrievable breakdown is not a statutory ground, but the Supreme Court has used its Article 142 power to dissolve such marriages (Shilpa Sailesh v. Varun Sreenivasan, 2023).

7. Interim and permanent maintenance

• Section 24: interim maintenance and litigation expenses.
• Section 25: permanent alimony on a decree, taking into account income, property and conduct.
• BNSS 144 (CrPC 125): an independent remedy for a wife, children and parents without means, which applies to all religions. Rajnesh v. Neha (2020) laid down guidelines, including an affidavit of assets by both parties.
• Hindu Adoptions and Maintenance Act, 1956: a wife's maintenance (Section 18) and maintenance of aged parents (Section 20).

8. Guardianship and custody

The natural guardian of a Hindu minor is the father, and after him the mother (Hindu Minority and Guardianship Act, 1956, Section 6), though the Supreme Court in Githa Hariharan v. Reserve Bank of India (1999) read "after" to mean in the father's absence, so a mother can act in appropriate cases. In all custody questions, the welfare of the child is paramount (Section 13, Guardians and Wards Act, 1890, Section 17).

9. Adoption

The Hindu Adoptions and Maintenance Act, 1956 allows adoption by a male or female Hindu with capacity. A married person needs the spouse's consent. The conditions include that the adoptee is a Hindu, unmarried, under 15 and not previously adopted, unless custom allows otherwise. Giving and taking with a ceremony is required, and adoption severs the child's ties with the family of birth. Secular adoption is available under the Juvenile Justice Act, 2015.

10. Succession: the Hindu Succession Act, 1956

Intestate succession to a male Hindu's property goes first to Class I heirs: son, daughter, widow, mother, and the children of a pre-deceased son or daughter, who take simultaneously. Next come Class II heirs, then agnates and cognates.

• Section 6 (as amended in 2005): a daughter is a coparcener by birth with the same rights and liabilities as a son. In Vineeta Sharma v. Rakesh Sharma (2020), this right applies irrespective of whether the father was alive on 9 September 2005.
• Section 14: a Hindu female's property is held as absolute owner, not as a limited estate (Tulasamma v. Sesha Reddy, 1977).
• Section 15: succession to a female's property goes to her husband's heirs and children, then her parents' heirs, with the property's source deciding the line in some cases.
• Section 25: a person who murders the person from whom he would inherit is disqualified.
• Section 30: a Hindu may dispose of his property by will, including a coparcenary interest.

11. A problem-answer pattern

H and W marry in 2015. In 2018, W leaves and lives with her mother, and H files for divorce in 2022 on the ground of desertion. W says she left because of cruelty. Answer in four steps:

1. Desertion under Section 13(1)(ib) needs abandonment without reasonable cause, without consent and against the other's wish, for at least two years.
2. If W left because of cruelty, her departure had reasonable cause and is not desertion.
3. The court must decide the cruelty on the evidence.
4. If cruelty is shown, H's petition fails, and W may seek maintenance and file a cross-petition.

Common traps judicial exams set here

• Treating a marriage in breach of Section 5(i) as voidable. It is void.
• Granting divorce on irretrievable breakdown as a statutory ground. It is not, except under Article 142.
• Applying the six-month wait strictly in every mutual consent case. It is directory.
• Saying a daughter's coparcener right needs the father to be alive. Vineeta Sharma says otherwise.
• Confusing Section 25 permanent alimony with BNSS 144. One is under the Act, the other is a separate remedy.

Memory aids

• "Void: monogamy, degrees, sapinda": Section 11.
• "Two years desertion, seven years presumed death": periods.
• "2005 daughters, 2020 Vineeta Sharma": coparcenary.

Summary

A Hindu marriage needs capacity, monogamy, age, no prohibited relationship and customary ceremonies. Void marriages breach monogamy, degrees or sapinda rules, and voidable marriages rest on impotence, mental disorder, force or fraud.

Divorce grounds are in Section 13 and mutual consent in Section 13B. Maintenance, guardianship and adoption follow their own Acts, and daughters are coparceners by birth under the 2005 amendment.

Exam protocol

• Test void, voidable or valid first.
• Name the ground and its time requirement.
• Say whether maintenance is under the Act or BNSS 144.