HOW TO BREAK UP HINDU MARRIAGE IN INDIA?

Author: By Harsha Sharma

MARRIAGE

According to Hinduism, marriage is a sacred relationship. In some Hindu systems of marriage, there is no role for the state as marriage remained a private affair within the social realm. Within this traditional framework reference, marriage is undoubtedly the most important transitional point in a Hindu’s life and the most important of all the Hindu “sanskaras” (life-cycle rituals).

Conditions of a Marriage as Hindu Marriage Act which states that-

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely-

neither party has a spouse living at the time of the marriage.
at the time of the marriage, neither party-
1. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
2. 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;
the bridegroom has completed the age of twenty-one years at the time of the marriage;
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;
the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.” For example, lineal descendants are termed as sapindas in Hinds and marriage in a sapinda relationship is considered invalid, unless the laws approve of the same.

JUDICIAL SEPARATION

Any party may file a petition for decree for judicial separation on any of the grounds of divorce that might have been presented. Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

ANNULMENT OF MARRIAGE

Annulment is a legal procedure declaring a marriage null and void. There are many grounds for declaring a marriage voidable which is as follows:-

Inability to consummate the marriage– If either of the spouses is chronically unable to have sexual intercourse or is impotent.
Mental Disorder– If either of the spouses was suffering from a mental disorder at the time of marriage owing to which he or she cannot be considered fit for marriage or procreate children.
Incapable of giving Consent– If either of the spouses or guardian of the spouse was incapable of giving consent at the time of the marriage.
Insanity or epilepsy– If either of the spouses suffered from recurrent attacks of insanity or epilepsy then it serves as a ground for getting an annulment.
Under the legal marriage age– In India, the legal age of marriage for males is 21 years and for females is 18 years. If either of the spouses is under this age then annulment can be sought.

VOIDABLE MARRIAGES

As per Section 12 of the Hindu Marriage Act , marriage is considered voidable if-

Consent is obtained by fraud
Forced Consent- If consent to marriage is obtained through coercion or physical threat then such forced consent is a valid ground to seek an annulment.
Concealment of material facts- If any material fact like the age, past, or criminal record has been concealed by the parties then the aggrieved spouse can seek an annulment on this ground.
Pregnancy- If at the time of the marriage the respondent is carrying a child of some other person the husband can seek an annulment but this right is forfeited if the marriage is consummated after he came to know of this fact.

LEGITIMACY OF CHILDREN BORN OUT OF VOID AND VOIDABLE MARRIAGES

Any child born out of void or voidable marriage shall be considered legitimate and have full right to inherit the properties of their parents.

DIVORCE

As per Section 13 of the Hindu Marriage Act, divorce can be done both through mutual divorce or contested divorce.

Section 13 (i) of the Hindu Marriage Act- CONTESTED DIVORCE

Adultery– Either husband or wife have voluntary sexual intercourse with any other person other than his or her spouse;
Cruelty – Being treated with mental or physical cruelty by your spouse is a valid ground to seek divorce.
Desertion – Marriage gives the husband and wife a right against each other to stay together. If one of the spouses has withdrawn from the company/ society of the other for not less than 2 years before filing the divorce petition, courts may be convinced to grant divorce.
Unsound mind – If the lack of sanity (soundness of mind) of one spouse is making it impossible to lead a normal married life for another spouse, divorce may be granted.
Religion Renounced – In case a couple marries as per Hindu religious traditions and one spouse ceases be Hindu, it is a valid ground to break up a marriage in India.
Venereal Diseases – If one spouse is suffering from a sexually transmittable disease in communicable form, the other may seek breaking up a marriage on this ground.
World Renounced – If someone has renounced the world, completely withdrawing from the society for spiritual fulfilment, such person’s spouse can also seek freedom from the marriage.
Not Heard Alive – If a spouse is not heard of being alive for 7 or more years, divorcing such spouse may give the right to move on.

DIVORCE BY MUTUAL CONSENT

A petition for dissolution of marriage can be made by both the parties to marriage together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. Couples who do not wish to live together can just simply go to the court and file for the mutual consent divorce as in this kind of divorce with recent modifications the cooling-off period of six months has been waived off.

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Disclaimer:- The content of this blog have been prepared on the basis of legal provisions existing at the time of preparation and does not constitute legal opinion for this subject matter. We, at Lawnians assume no liability for use of this information. For detailed analysis and legal advice, you are requested to contact with our expert professionals of this subject matter.