The remedies including mainly divorce and nullity

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The law contained in the Act is applicable to Hindus of every sect irrespective of howsoever progressive and unorthodox views they propound. It is thus applicable to Lingayats, Brahmas and Arya Samajists as well.

It is applicable to all Hindus and the term Hindu in the present context has been interpreted in wider connotation so as to include Jains, Sikhs and Buddhas as well as to the converts from other religions. Thus the present Act has enabled the followers of different religions to inter-marry. The Act has an overriding effect. Section 4(a) and (b) provides that any texts rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. But matters expressly saved from the application of the Act continues to be governed by the previous law, statutory or otherwise.

Nature of Marriage under the Act of 1955:

The present Act has effected certain changes in the law of marriage, which have a long bearing upon its nature. It no longer remains a pure sacrament and a binding religious duty. In the sacred texts, marriage created an inseparable tie between the husband and wife, which could not be broken in any circumstances whatsoever.

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This fact along with the others ascribed sacramental character to marriage. But the Hindu Marriage Act of 1955 by providing several matrimonial remedies including mainly divorce and nullity of marriage has seriously eroded its sacramental character. S.T. Desai, the revising author of Mulla’s “Principles of Hindu Law” concludes that ‘a Hindu marriage under the Act, it is submitted, is not entirely or necessarily a sacrament but a union of one mien with one woman to the exclusion of all others satisfied by solemnisation of the customary rites and ceremonies of either party essential for a marriage; and directly it creates a relation and status not imposed or defined by contract but by law. However, the Andhra Pradesh High Court maintains that the sacramental character of marriage is still preserved under the Act. It was observed by the court, “There can be no doubt that a Hindu marriage is a religious ceremony. According to all the texts it is a Sanskara or sacrament throughout one’s life for purification of because the marriage rites completed by Saptapadi or the walking of seven steps before the consecreted fire creates a religious tie and this religious tie when once created, cannot be broken.

The person married may be a minor, or even of unsound mind, and yet, if the marriage rile is duly solemnised, there is a valid marriage.” The above view does not remain valid in view of certain provisions of Hindu Marriage Act of 1955 as also the Marriage Law Amendment Act, 1976. It is true that a marriage has to be solemnised as per religious injunctions, but mere solemnisation of marriage with the help of ceremonies does not make it sacramental.

The main theme behind its sacramental character was indissolubility and a sense of binding religious duty, both of which have now been done away under the Act. Moreover, the Act also contained certain provisions e.g., judicial separation, divorce and nullity of marriage which have a telling effect upon the sacramental character of marriage and in fact rendered it contractual in nature. In this regard, the Marriage Laws (Amendment) Act, passed in 1976 made another onslaught upon the sacramental character by providing remedies like divorce by mutual consent. As a matter of fact there has been a gradual erosion of sacramental character of Hindu marriage since 1955. When the Act of 1955 was passed, it was kept in view that if circumstances exist which show that conjugal life has become impossible either by reason of matrimonial offence or by reason of disease, or other specified circumstances, then reality must be recognised and provisions should be made for terminating the bond of marriage. Divorce was provided for a real matrimonial wrong not for trivial ups and downs of married life.

Further, a change was brought about in 1964, by which either party to marriage could seek divorce on the ground that there has been no resumption of cohabitation or non-restitution of conjugal rights for a period of two years or more after passing of a decree for judicial separation or a decree for restitution of conjugal rights. Prior to this amendment only the party who had obtained a decree for judicial separation or restitution of conjugal rights could seek divorce on the ground of continued matrimonial fault of other party after expiry of prescribed period: In 1974 again there was radical departure. The period of two years has now been reduced to one year by Marriage Laws (Amendment) Act, 1976. The question is not one of fault at all. The question is, have the parties been able to come together after the decree was passed whether it was for judicial separation or restitution of conjugal rights? If they have not been able to live together, either party may seek divorce irrespective of whose fault it was that they did not live together. Moreover by the Amendment Act of 1976, the consent theory of divorce also was adopted besides fault theory which was originally incorporated in the Act of 1955. The break-down theory, which systematically and gradually affected the Shastric concept of marriage also found a place in the Act. Thus the liberalisation of divorce enabled the parties to marriage to get rid of marriage bond at their sweet-will without establishing any fault of other’s side.

Now the fault theory of marriage has become subsidiary and the break-down theory ideologically based on western culture assumed a prominent place. But the consent theory has given a fatal blow to the original concept of marriage as a result of which it has lost its sanctity as well as the identity altogether. Perhaps on the basis of this change effected by the Amendment Act of 1976 that Prof. Derrett has concluded that the Amendment has given a death blow to the Hindu concept of marriage. By virtue of the amendment die concept of marriage has undergone such a drastic and fundamental change that a system of marriage, known for its uniqueness and unparallel tenets in the world, has come to an end. Another important change with respect to the age of parties to marriage has been effected by the Hindu Marriage Act, 1955, as per die original concept of Hindu Marriage. The Child Marriage Restraint Act, 1978 enhanced the lower age limit of the bride and bridegroom.

Under this Act the bride must have attained the age of 18 and the bridegroom of 21 years. Since there is now left no question of marriage below 18 years of the bride’s age, the provision for the consent of her guardian or her own competence to consent has met its natural death. The indirect but necessary effect of this provision is that a bride’s marriage could be solemnised only on completion of 18th year of age and after that she herself becomes competent to choose her own life partner. In this circumstance the consent of her guardian in marriage would be meaningless. It was on account of the Act of 1978 that Section 6 of the Hindu Marriage Act was deleted.

It would be not out of the place to mention in this context that the provision for offering the hand of the bride by her guardian under the old Hindu law has become subsidiary. The girl on completing the age of majority would acquire legal competence to settle her own marriage and if she exercises this power of her rights, the resultant marriage would be entirely contractual in nature and not sacramental. But it is noteworthy that despite all the above changes, the Hindu Marriage Act, 1955 still provides that it is still necessary to perform religious rituals and ceremonies or customary rites to complete the marriage. In the event of non-performance of the required religious ritual or rites it would not be a legally valid marriage. The retention of these religious rituals and rites under Section 7 of the Act of 1955 leads only to this conclusion that although sacramental character of Hindu marriage is lost yet the out-sketch of religious ritual in respect thereof has still been preserved. Hence it can be very well concluded that the sacramental character of marriage has been left behind but ceremonial character of marriage has been retained.

Categories: Marriage


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