Marriage and Dissolution of Marriage

Section 5: conditions for a valid marriage

1. Monogamy: neither party has a spouse living at the time (5(i)).

2. Sound mind: at the time of marriage neither party is incapable of giving valid consent through unsoundness of mind, or though capable of consent is suffering from a mental disorder of such kind or extent as to be unfit for marriage and procreation of children, or has been subject to recurrent attacks of insanity (5(ii), as amended by the Marriage Laws (Amendment) Act 1999; earlier ‘idiot or lunatic’).

3. Age: bridegroom 21, bride 18 (5(iii)). Penalty under Section 18 HMA is now dominated by the Prohibition of Child Marriage Act 2006 (PCMA).

4. Prohibited degrees: not within degrees of prohibited relationship unless custom permits (5(iv)); defined in Section 3(g).

5. Sapinda: not sapindas of each other unless custom permits (5(v)); sapinda relationship extends up to five degrees in the line of ascent through the father and three through the mother (Section 3(f)).

6. Clause (vi) (guardian’s consent) was omitted in 1978.

Section 7: ceremonies. A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party. Where the rites include the saptapadi (seven steps taken jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. Case law: Bhaurao Shankar Lokhande v State of Maharashtra (1965: ‘solemnise’ means to celebrate with proper ceremonies; Hindu marriage needs essential rites); Priya Bala Ghosh v Suresh Chandra Ghosh (1971). In Dolly Rani v Manish Kumar Chanchal (2024) the Supreme Court held that a Hindu marriage without the requisite ceremonies is not valid merely because a certificate was issued, and a registration under Section 8 does not by itself confer validity (it is evidence of marriage).

Section 8: registration. State Governments may make rules for registration of Hindu marriages; failure to register does not invalidate the marriage (8(5)). Seema v Ashwani Kumar (2006) directed compulsory registration of marriages of all persons of all religions in India.

Section 9–18 (remedies, covered in topic 3). Void and voidable marriages:

Not a ground for nullity: underage marriage (it is not void under HMA; it may be voidable under PCMA at the child’s option).

Section 16: legitimacy of children. Children of void marriages (under Section 11) and of annulled voidable marriages are legitimate. Section 16(3): they have rights only to the property of their parents, not to any other relative’s property. Parayankandiyal Eravath Kanapravan Kalliani Amma v K. Devi (1996) said property rights of such children are confined to the parents’ self-acquired property; Jinia Keotin v Kumar Sitaram Manjhi (2003) similar; Revanasiddappa v Mallikarjun (2023, three-judge bench) held such children are entitled to a share in the parents’ property, self-acquired and ancestral, to the extent of the parents’ share, even in a Hindu joint family.

Bigamy. Section 17 HMA: punishable under IPC 494 and 495, now BNS Section 82. Sarla Mudgal v Union of India (1995) and Lily Thomas v Union of India (2000): conversion to Islam to contract a second marriage does not dissolve the first Hindu marriage; the second marriage is void and an offence. Yamunabai Anantrao Adhav v Anantrao (1988): a woman in a bigamous (void) marriage cannot claim maintenance under Section 125 CrPC; later, Badshah v Urmila Badshah Godse (2014) tempered this where the wife entered marriage in good faith (verify exact holding before using in an examination).

• Section 4: conditions: monogamy, sound mind (same test as HMA), age 21/18, not within prohibited degrees (unless custom permits for both).

• Notice: 30 days’ notice of intended marriage to the Marriage Officer (Section 5), objections within 30 days (Section 7), solemnisation within 3 months of notice (Section 14). Allahabad High Court in Safiya Sultana v State of UP (2021) held that publication of notice is optional and directory at the option of the parties (verify current practice).

• Section 15–18: registration of marriages celebrated in other forms; Section 19: the marriage under the Act of a member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion is deemed to sever him from that family.

• Section 21: succession governed by Indian Succession Act 1925 (except for Hindus, Buddhists, Sikhs and Jains who are governed by Section 21A: succession under the Hindu Succession Act).

• Divorce: Section 27 (fault grounds), Section 28 (mutual consent: 1 year separation), Section 29 (no petition within 1 year of marriage); Section 36–37 alimony; Section 38 custody.

• Relevance: inter-religious and inter-caste couples; protected by Article 21 (Lata Singh v State of UP, 2006; Shakti Vahini v Union of India, 2018; Shafin Jahan v Asokan, 2018: right to marry a person of choice).

Nature: a civil contract (aqd) with religious sanctity. Essentials: (1) proposal (ijab) by one party and acceptance (qubul) by the other in the same meeting; (2) free consent; (3) capacity: sound mind and puberty (presumed at 15 under Hanafi law; majority at 18 under the Indian Majority Act; marriage of a Muslim girl who has attained puberty has been upheld by some High Courts, but the interaction with PCMA 2006 is contested and the Supreme Court issued enforcement guidelines for PCMA in 2024 without settling it: verify); (4) two male Sunni witnesses (or one male and two females); Shia law does not require witnesses; (5) mahr is a consequence, not a condition of validity.

Classification (Sunni): valid (sahih), irregular (fasid), void (batil). Shia: valid or void only.

Muta (temporary marriage) is recognised in Ithna Ashari Shia law only: fixed period, fixed mahr, no maintenance, no mutual inheritance, issue legitimate; iddat is two menstrual courses (about 45 days) after expiry; for widow, four months and ten days.

Polygamy: up to four wives at one time, with equal treatment; courts treat polygamy as not an ‘essential’ practice for Article 25 purposes in some decisions; Uttarakhand UCC Act 2024 bans it for residents (see topic 10).

Legitimacy and presumption. Child born at least six months after marriage and within two years (Hanafi), four years (Shafi’i) or ten months (Shia) after dissolution or death is presumed legitimate. Section 112 Indian Evidence Act (now Section 116 BSA 2023): birth during marriage or within 280 days after dissolution while the mother is unmarried is conclusive proof of legitimacy.

Shayara Bano v Union of India (2017). Five-judge bench held talaq-e-biddat unconstitutional by 3:2. Justices Nariman and Lalit: manifestly arbitrary, violates Article 14 and is not protected by Article 25; Justice Kurian Joseph: against the Quran, hence not part of Shariat; Chief Justice Khehar and Justice Nazeer (dissent): practice is protected personal law under Article 25 but Parliament should legislate. Earlier: Shamim Ara v State of UP (2002) held talaq must be for a reasonable cause, preceded by an attempt at reconciliation, and proved in court; a talaq pleaded in a written statement is not itself a valid pronouncement.

Muslim Women (Protection of Rights on Marriage) Act 2019. Talaq-e-biddat void and illegal (Section 3); imprisonment up to three years and fine (Section 4); offence cognizable only on information from the married woman or her blood or marriage relatives (Section 7); compoundable by the Magistrate on the woman’s application; bail only after hearing the wife; subsistence allowance (Section 5); custody of minor children (Section 6). Applies only to pronouncement of talaq-e-biddat; other forms remain valid.

Dissolution of Muslim Marriages Act 1939, Section 2 grounds for a wife:

1. Whereabouts of husband not known for four years.

2. Failure of husband to maintain her for two years.

3. Husband sentenced to imprisonment for seven years or more.

4. Husband failed to perform marital obligations for three years without reasonable cause.

5. Husband impotent at marriage and continuing to be so.

6. Husband insane for two years or suffering from virulent venereal disease (leprosy was removed by the Personal Laws (Amendment) Act 2019: verify).

7. Repudiation of marriage (option of puberty) by a girl married before 15 and who repudiates before 18, marriage not consummated.

8. Cruelty: habitual assault or making life miserable; associating with women of evil repute; forcing to lead an immoral life; disposing of her property or preventing her from exercising legal rights; obstructing religious practice; unequal treatment of co-wives.

9. Any other ground recognised as valid for dissolution under Muslim law.

Section 4: wife’s renunciation of Islam or conversion does not by itself dissolve her marriage (she may seek dissolution on other grounds if she was a Muslim by birth who reverts); Section 5 protects her dower rights.

Indian Christian Marriage Act 1872: applies where one or both parties are Christian. Section 4–5: marriage solemnised by a clergyman of Church of England, Church of Scotland, a minister of another Church licensed, or a Marriage Registrar; Section 60: conditions (monogamy, age 21/18, consent of the father or guardian if either is a minor); time: between 6 a.m. and 7 p.m. (Section 9 with exceptions); notice and registration provisions. Indian Divorce Act 1869: Section 10 grounds after the 2001 amendment: adultery, conversion, unsound mind for two years, venereal disease, wilful refusal to consummate, desertion for two years, cruelty (introduced 2001), and parity between husband and wife; mutual consent divorce under Section 10A after two years of separation (not one). Nullity under Section 19 (impotence, prohibited degrees, prior spouse, unsoundness of mind).

Parsi Marriage and Divorce Act 1936: ‘Ashirvad’ ceremony performed by a Parsi priest in the presence of two Parsi witnesses (Section 3); prohibited degrees (Schedule I); monogamy (a bigamous Parsi marriage is void and punishable); age 21/18; registration (Section 6). Divorce under Section 32: wilful refusal to consummate within one year; unsound mind; pregnancy by another; adultery, bigamy, rape or unnatural offence; hurt; cruelty; desertion; imprisonment for seven years; non-compliance with decree of restitution; conversion; Section 32B mutual consent after one year separation. Courts are special Parsi Chief Matrimonial Courts and District Matrimonial Courts (with delegates assisting).