An Act to amend and codify the law relating to marriage among Hindus.

Be it enacted by Parliament in the Sixth Year of the Republic of India as follows.

PRELIMINARY

1. Short title and extent.

(1) This act may be called the Hindu Marriage Act, 1955.

(2) It extends to the whole of India and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories. [The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31-10-2019).]

2. Application of Act.

(1) This Act applies—

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahma, Parthana or Arya Samaj,

(b) to any person who is a Buddhist, Jain or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with here in if this Act had not been passed.

Explanation: The following persons are Hindus, Buddhists, Jain or Sikhs by religion, as the case may be—

(a) any child, legitimate, or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain, or Sikh, by religion and who is brought up as a member of the tribe, community, group of family to which such parent belongs or belonged; and
(c) any person who is a convert or reconvert to the Hindu, Buddhist, Jain or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Schedule Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provision contained in this section.

3. Definitions.

In this Act, unless the context otherwise requires,—

(a) the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force or law among Hindus in any local area, tribe, community, group of family:
Provided that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;

(b) “district court” means, in any area for which there is a city civil court, that court and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;

(c) “full-blood” and “half-blood” — two persons are said to be related to each other by full-blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives ;

(d) “uterine blood” — two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands;

Explanation: In clauses (c) and (d), “ancestor” includes the father and “ancestress” the mother.

(e) “prescribed” means prescribed by rules made under this Act;

(f) (i) “Sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upward in each case from the person concerned, who is to be counted as the first generation;

(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

(g) “degrees of prohibited relationship” — two persons are said to be within the “degrees of prohibited relationship”—

(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
(iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;

Explanation: For the purposes of clauses (f) and (g) relationship includes—

(i) relationship by half or uterine blood as well as by full-blood;
(ii) illegitimate blood relationship as well as legitimate;
(iii) relationship by adoption as well as by blood;

and all terms of relationship in those clauses shall be construed accordingly.

4. Overriding effect of Act.

Save as otherwise expressly provided in this Act—

(a) any test, 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;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.

HINDU MARRIAGES

5. Conditions for a Hindu Marriage.

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

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party—

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) 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; or
(c) has been subject to recurrent attacks of insanity;

(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;

(iv) 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;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

6. Guardianship in marriage.

[Repealed by the Child Marriage Restraint (Amendment) Act, 1978]

7. Ceremonies for a Hindu Marriage.

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the fire), the marriage becomes complete and binding when the seventh step is taken.

8. Registration of Hindu Marriages.

(1) For the purpose of facilitating the proof of Hindu Marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

(3) All rules made under this section shall be laid before the State legislature, as soon as may be, after they are made.

(4) The Hindu Marriage Registrar shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.

(5) Notwithstanding anything contained in this section, the validity of any Hindu Marriage shall in no way be affected by the omission to make the entry.

Related Law Q&A: What Is the Procedure of Registration of Hindu Marriages in India?

RESTITUTION OF CONJUGAL RIGHTS AND JUDICIAL SEPARATION

9. Restitution of conjugal rights.

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Explanation: Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

10. Judicial Separation.

(1) Either party to a marriage, whether solemnised before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.

(2) 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.

NULLITY OF MARRIAGE AND DIVORCE

11. Void marriages.

Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clause (i), (iv) and (v) of section 5.

12. Voidable marriages.

(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:—

(a) that the marriage has not been consummated owing to the impotence of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage—

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if—

(i) the petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied—

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

13. Divorce.

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation: In this clause—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable form of leprosy; or Omitted by Personal Laws (Amendment) Act, 2019. Here is the Original Official PDF.

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.

Explanation: In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for dissolution of the marriage by a decree of divorce on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case, the other wife is alive at the time of presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or,

(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under Section 125 of the Criminal Procedure Code, 1973 or under the corresponding Section 488 (now omitted) of the Code of Criminal Procedure, 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;

(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age but before attaining the age of eighteen years.

Explanation: This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.

13A. Alternate relief in divorce proceedings.

In any proceedings under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree of judicial separation.

13B. Divorce by mutual consent.

(1) Subject to the provisions of this Act, a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, 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.

(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such enquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

14. No petition for divorce to be presented within one year of marriage.

(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce unless at the date of presentation of the petition one year has elapsed since the date of the marriage:
Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of marriage, the court shall have regard to the interests of any children of the marriage and the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.

15. Divorced persons when may marry again.

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.

16. Legitimacy of children of void and voidable marriages.

(1) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

17. Punishment of Bigamy.

Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly.

Related: What Is Bigamy Under Indian Laws and What Happens When a Hindu Converts to Islam for a Second Marriage

18. Punishment for contravention of certain other conditions for a Hindu Marriage.

Every person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the condition specified in clauses (iii), (iv) and (v) of section 5 shall be punishable—

(a) in the case of a contravention of the condition specified in clause (iii) of section 5, with rigorous imprisonment which may extend to two years, or with fine which may extend to one lakh rupees, or with both;

(b) in the case of a contravention of the condition specified in clause (iv) or clause (v) of section 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

JURISDICTION AND PROCEDURE

19. Court to which petition shall be presented.

Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction—

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

20. Contents and verification of petitions.

(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and except in a petition under section 11, shall also state that there is no collusion between the petitioner and the other party to the marriage.

(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.

21. Application of Act 5 of 1908.

Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.

21A. Power to transfer petitions in certain cases.

(1) Where—

(a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13, and

(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree of judicial separation under section 10 or for a decree of divorce under section 13 or any ground, whether in the same district court or in a different district court, in the same State or in a different State,

the petitions shall be dealt with as specified in sub-section (2).

(2) In a case where sub-section (1) applies—

(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by the district court;

(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908, to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.

21B. Special provision relating to trial and disposal of petitions under the Act.

(1) The trial of a petition under this Act shall, so far as it is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.

(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.

21C. Documentary evidence.

Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceedings at the trial of a petition under this Act on the ground that it is not duly stamped or registered.

22. Proceedings to be in camera and may not be printed or published.

(1) Every proceeding under this Act shall be concluded in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the court.

(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees.

23. Decree in proceedings.

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that—

(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub- clause (c) of clause (ii) of section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, or

(bb) where a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or under influence; and

(c) the petition (not being a petition presented under section 11) is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceedings, and

(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:
Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.

(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceedings have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.

23A. Relief for respondent in divorce and other proceedings.

In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she has presented a petition seeking such relief on that ground.

24. Maintenance pendente lite and expenses of proceedings.

Where in any proceedings under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceedings, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.
Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

25. Permanent alimony and maintenance.

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

Related: What Is the Law Related to Alimony in India?

26. Custody of children.

In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, alter the decree, upon application by petition for the purpose: make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made:
Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

27. Disposal of property.

In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

28. Appeal from decrees and orders.

(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decree of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only.

(4) Every appeal under this section shall be preferred within a period of ninety days from the date of the decree or order.

28A. Enforcement of decrees and orders.

All decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction for the time being in forced.

SAVINGS AND REPEALS

29. Savings.

(1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or even to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste.

(2) Nothing contained in this Act shall be deemed to affect any right recognised by customs or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.

(3) Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed.

(4) Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage Act, 1954, with respect to marriages between Hindus solemnized under that Act, whether before or after the commencement of this Act.

30. Repeals.

[Repealed by the Repealing and Amending Act, 1960 (Act no.58 of 1960) section 2 and the first schedule with effect from 16 February, 1960.]

Other Hindu Laws:

• Hindu Succession Act, 1956
• Hindu Disposition of Property Act, 1916
• Hindu Adoptions and Maintenance Act, 1956
• Hindu Minority and Guardianship Act, 1956

Hindu Marriage Act, 1955 (Updated Bare Act)
WritingLaw

Medical Termination of Pregnancy Act

An Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. Be it enacted by Parliament in the Twenty-second Year of the Republic of India as follows-

1. Short title, extent and commencement.

(1) This Act may be called the Medical Termination of Pregnancy Act, 1971.

(2) It extends to the whole of India. The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, s. 95 and the Fifth Schedule. (w.e.f. 31-10-2019)

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions.

In this Act, unless the context otherwise requires,-
(a) “guardian” means a person having the care of the person of a minor or a mentally ill person;

(aa) “Medical Board” means the Medical Board constituted under sub-section (2C) of section 3 of the Act;

(b) “mentally ill person” means a person who is in need of treatment by reason of any mental disorder other than mental retardation;

(c) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his majority;

(d) “registered medical practitioner” means a medical practitioner who possesses any recognised medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), whose name has been entered in a State Medical Register and who has such experience or training in gynaecology and obstetrics as may be prescribed by rules made under this Act.

(e) “termination of pregnancy” means a procedure to terminate a pregnancy by using medical or surgical methods.

3. When pregnancies may be terminated by registered medical practitioners.

(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are,

of the opinion, formed in good faith, that-

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

Explanation 1-
For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2-
For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

(2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.

(2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.

(2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.

(2D) The Medical Board shall consist of the following, namely:-

(a) a Gynaecologist;
(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

4. Place where pregnancy may be terminated.

No termination of pregnancy shall be made in accordance with this Act at any place other than-

(a) a hospital established or maintained by Government, or
(b) a place for the time being approved for the purpose of this Act by Government or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said Committee:

Provided that the District Level Committee shall consist of not less than three and not more than five members including the Chairperson, as the Government may specify from time to time.

5. Sections 3 and 4 when not to apply.

(1) The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of pregnancy by a person who is not a registered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years under that Code, and that Code shall, to this extent, stand modified.

(3) Whoever terminates any pregnancy in a place other than that mentioned in section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.

(4) Any person being owner of a place which is not approved under clause (b) of section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.

Explanation 1-
For the purposes of this section, the expression “owner” in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.

Explanation 2-
For the purposes of this section, so much of the provisions of clause (d) of section 2 as relate to the possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply.

5A. Protection of privacy of a woman.

(1) No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force.

(2) Whoever contravenes the provisions of sub-section (1) shall be punishable with imprisonment which may extend to one year, or with fine, or with both.”.

6. Power to make rules.

(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) the experience or training, or both, which a registered medical practitioner shall have if he intends to terminate any pregnancy under this Act; and
(aa) the category of woman under clause (b) of sub-section (2) of section 3;
(ab) the norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age under sub-section (2A) of section 3;
(ac) the powers and functions of the Medical Board under sub-section (2C) of section 3.
(b) such other matters as are required to be or may be, provided by rules made under this Act.

(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Medical Termination of Pregnancy Rules, 2003 PDF (Courtesy of India Code)

7. Power to make regulations.

(1) The State Government may, by regulations,-

(a) require any such opinion as is referred to in sub-section (2) of section 3 to be certified by a registered medical practitioner or practitioners concerned, in such form and at such time as may be specified in such regulations, and the preservation or disposal of such certificates;
(b) require any registered medical practitioner, who terminates a pregnancy, to give intimation of such termination and such other information relating to the termination as may be specified in such regulations;
(c) prohibit the disclosure, except to such persons and for such purposes as may be specified in such regulations, of intimations given or information furnished in pursuance of such regulations.

(2) The intimation given and the information furnished in pursuance of regulations made by virtue of clause (b) of sub-section (1) shall be given or furnished, as the case may be, to the Chief Medical Officer of the State.

(2A) Every regulation made by the State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislature.

(3) Any person who wilfully contravenes or wilfully fails to comply with the requirements of any regulation made under sub-section (1) shall be liable to be punished with fine which may extend to one thousand rupees.

Medical Termination of Pregnancy Regulations, 2003 PDF (Courtesy of India Code)

8. Protection of action taken in good faith.

No suit or other legal proceeding shall lie against any registered medical practitioner for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.

Medical Termination of Pregnancy Act, 1971
WritingLaw

Chapter XX of the Indian Penal Code, 1860, deals with offences related to marriage. Section 494 of this chapter addresses the offence of a spouse marrying again during the existence of the first marriage. This offence is called an offence of bigamy under IPC. The scope of this section is wide enough to include both males and females within its ambit.

Section 494 of IPC states:

• whoever has a husband or wife living,
• marries again, and the second marriage is void because it is taking place during the life of such husband or wife,
• such person shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to a fine.

However, in the case of hidden former marriages, the perpetrator may be punished with imprisonment of either description for a term of up to ten years and fined. (Section 495 of IPC)

This law note deals with the offence of bigamy, its essentials, and the current judgements of the Supreme Court of India.

Essential Ingredients for the Offence of Bigamy

These are the three essentials for the offence of bigamy:

Let us read about them in detail below.

1. Existence of a Previous Marriage

The first marriage must still exist at the time of the second marriage, and it must be valid. The second marriage does not constitute bigamy if the first marriage is not valid. At the time of the second marriage, the first spouse should still be alive.

However, section 494 of IPC does not attract when:

1. Marrying after the first marriage has been declared void by a court of law; or
2. The former has been continuously absent for seven years, and there has been no communication with the other party; or
3. A divorce has taken place between husband and wife according to the provision of law.

2. Second Marriage to Be a Valid One

The first marriage, as well as the second marriage, must be valid to qualify for the provision of section 494. The parties to the marriage must have performed all the necessary ceremonies required by their laws.

In Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra & Anr (1965), the Supreme Court held that to constitute the offence of bigamy, not only the first marriage but also the second marriage should be a valid one. Further, the court said that marriage must be celebrated with proper ceremonies and in due form.

3. Second Marriage to Be Void Because of First Husband or Wife Is Still Living

To constitute bigamy, the second marriage must be declared void since it occurs during the lifetime of the first wife or husband. It does not apply to cases where the parties’ customs or personal laws permit a second marriage.

For example:

• Section 17 of the Hindu Marriage Act makes a second marriage void. Thus because of section 17 of the Hindu Marriage Act, section 494 of IPC is made applicable to Hindus.
• In Muslim personal law, the second marriage of a Muslim male is not void; thus, section 494 of IPC does not apply to Muslim marriages.

Read: Muta Marriage Under Islam – A Marriage Only for Pleasure

Bigamy: Effect of Conversion to Other Religions – What Happens When a Hindu Converts to Islam for Second Marriage

Conversion means converting oneself from one religion to another. After the enactment of the Hindu Marriage Act, it was shown that many Hindu husbands converted to Islam and married again as per Muslim personal law to exonerate themselves from the criminal liability of bigamy, as the offence of bigamy does not apply to a Muslim marriage. The matter came before the Supreme Court for the first time in the case of Sarla Mudgal vs Union of India (1995).

Sarla Mudgal vs Union of India (1995)

The questions before the Supreme Court were:

1. Can Hindus who have married under the law of Hinduism be married again under the law of Islam?
2. What will be the authenticity of such a marriage?
3. Does the converted husband commit the offence under section 494 of the IPC?

The Supreme Court answered:

1. A marriage celebrated under Hindu law cannot automatically be dissolved by converting to another religion. Where a marriage takes place under Hindu law, the parties acquire certain rights by the marriage itself. Such as the wife’s right to be maintained by the husband, having an equal share in the husband’s property, etc. These rights will not be dissolved just because the husband converted to another religion. If he wants to end his liability, he has to divorce his wife as per Hindu law.
2. On the question of the validity of such marriage, the court said, in the case of a Hindu husband who marries a second time after converting to Islam, the marriage is void because it occurs during the lifetime of his first wife.
3. In this situation, parties who have been married under the Hindu Marriage Act continue to be married according to Hindu law even if their husband embraces Islam to seek another wife.
4. As for the applicability of section 494 IPC, the court ruled that the second marriage is void since it takes place during the lifetime of the first wife, making the accused liable for bigamy.

Lily Thomas vs Union of India (2000)

The petitioner challenged the decision of Sarla Mudgal. According to him, the decision violated the right to life and liberty, as well as rights to freedom of religion protected by Articles 20, 21, 25 and 26 of the Constitution.

The Supreme Court affirmed its decision on Sarla Mudgal and held that the second marriage solemnised by a Hindu during the subsistence of the first marriage is an offence punishable under penal law.

The Constitution guarantees that every individual has not only the right to believe in the religion of his choice but also the right to express his beliefs and ideas in a manner that does not infringe on someone else’s religious freedom and personal rights. According to the court, when a Hindu husband contracted a second marriage after converting, he was not doing so out of conscience but to achieve his ulterior motives. According to Article 25 of the Constitution, these rights are guaranteed without encroaching on similar rights of others.

The court further said it is not possible for the husband or wife to end the marital bonds already established as a result of a valid Hindu marriage by converting to another religion. Therefore, during the lifetime of the first marriage, another marriage cannot be performed, even under any other personal law. And if such a marriage were to take place, the person would be subject to prosecution under section 494 of IPC.

Read Next:
1. Why Marital Rape Should Be Criminalised and Why It Shouldn’t
2. Legality of Child Marriage Under Indian Laws
3. Adultery in India – Meaning, Punishment and Recent Decision
4. What to Do if Wife Forces You to Separate From Your Parents?

What Is Bigamy Under Indian Laws and What Happens When a Hindu Converts to Islam for Second Marriage?
Ritesh Kumar

Marriage is similar to an investment where two people invest time, energy and money. When a marriage breaks, the person suffers not only mental trauma but also financial difficulties. Alimony refers to the maintenance or financial support provided by the spouse after divorce. It is given so that the spouse who has no means to carry out basic activities is provided with financial aid.

Eligibility to Get Alimony

The wife or the husband is eligible to get the alimony in accordance with their circumstances. The court will analyse and recognise their individual capacity. If a wife is not earning, the court will consider her educational qualification and ability to earn. The court will then decide her alimony. If the husband is not able to earn or is disabled and the wife is earning, the court will consider giving alimony to the husband.

As per section 25 of the Hindu Marriage Act, alimony of permanent nature is provided by the court to the wife or even the husband. If there is a considerable difference in the wife’s earnings compared to that of her husband and he is earning more, she is provided with the alimony so that she can maintain the same standard of living.

Further, section 125 of the Code of Criminal Procedure provides for the maintenance of wives, children and parents.

Related: Maintenance Under the Criminal Procedure Code

Calculation of Alimony

Alimony is paid either monthly, yearly or as a one-time payment. There is no hard and fast rule followed in calculating the alimony. Usually, it is ⅓ or ⅕ of the husband’s income. The court considers several factors such as standard of living, the conduct of both the parties, financial status and so on when it comes to fixing the alimony.

Thus the law relating to alimony helps the person who is financially not sound to face a difficult situation like this in a better way.

Read Next:
1. Law for Maintenance of Parents, Wife, and Children in India
2. List of Important Sections of Hindu Law

What Is the Law Related to Alimony in India?
Sidhida Varma S

Dowry Prohibition Act, 1961

(Act number 28 of 1961)

An Act to prohibit the giving or taking of dowry. Be it enacted by Parliament in the Twelfth Year of the Republic of India as follows:-

1. Short title, extent and commencement.

(1) This Act may be called the Dowry Prohibition Act, 1961.

(2) It extends to the whole of India. The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31-10-2019).

(3) It shall come into force on such date’ as the Central Government may, by notification in the Official Gazette, appoint.

2. Definition of “dowry”.

In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I- Omitted by Act 63 of 1984, sec 2(b) (w.e.f 2-10-1985)

Explanation II- The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code. (45 of 1860.)

STATE AMENDMENT

Haryana
For section 2, substitute the following section, namely:-
2. Definitions-  In this Act, unless the context requires,-
(1) “dowry” means any property or valuable security given or agreed to be given either directly or indirectly:-
(a) by one party to a marriage to the other; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,
at or before the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I-
For the removal of doubts it is hereby declared that any presents made at the time of marriage of either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation II-
The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 1860). or indirectly at
“Marriage expenses” shall include expenses incurred directly or indirectly at or before the marriage on,
(a) Thakka, Sagai, Tikka, sagun and milni ceremonies;
(b) The gifts made by one party to a marriage to the other party to the marriage or by the parents, grand-parents and brothers of either party to a marriage, to either party to the marriage or the blood relations thereof;
(c) illumination, food and the arrangements for serving food to the members of the marriage party and other expenses incidental thereto.

Explanation-
For the removal of doubts it is hereby declared that any gifts made by a person other than those specified in sub-clause(b), at the time of marriage to either party to the marriage shall not be deemed to be marriage expenses.

COMMENTS
(i) The definition of “dowry” given in section 2 of the Act would show that the “any is defined comprehensively to include properties of all sorts as it takes within its fol property or valuable security” given or agreed to be given in connection with marriage either directly or indirectly:
Bachni Devi v. State of Haryana, AIR 1098: (2011)4 JT 2011 (2) 2 SCALE 265.

(ii) Dowry’ means any property or valuable security given or agreed to be given either directly or indirectly by one party another, by parents of either party to each other or any other person, at, before or at any time after the marriage and connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law;
Ashok Kumar v. State of Haryana, AIR 2010 SC 2839: JT 2010 (7) SC 460: (2010) 7 SCALE 30

(iii) Payments which are customary payments, e.g, given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression dowry;
Ram Singh v. State of Haryana, 2008 (4) SCC 70: 2008 (2) SCR 216.

(iv) “Dowry” in the sense of the expression contemplated by Dowry Act is a demand for property of valuable security having an inextricable nexus with marriage, that is, it is a consideration from the side of the bride’s parents or relatives to the groom or his parents and/or guardian for the agreement to wed the bride-to-be. But where the demand for property or valuable security has with the no connection with the consideration for the marriage, it will not amount to a demand  for dowry;
Arjun Dhondiba Kamble v. State of Maharashtra, 1995 AIHC 273.

(v) The definition of dowry is wide enough to include all properties, valuable securities, etc, given or agreed to be given directly or indirectly;
Vemuri Venkateswara Rao v. State of Andhra Pradesh, 1992

(vi) While dowry signifies presents given in connection with marriage to the bridal couple as well as others, Stridhan in confined to property given to or meant for the bride;
Hakam Singh v. State of Punjab, 1990

(vii) Dowry means, any property given or agreed to be given by the parents of a party to the marriage at the time of the marriage or before marriage or at any time the marriage in connection with the marriage. So, where the husband had demanded a sum of Rs. 50,000 some days after the marriage from his father-in-law and on not being given became angry, tortured the wife and threatened to go for another marriage, it was held that the amount was being demanded in connection with the marriage and it was a demand for dowry though it was demanded after the marriage;
Y.K. Bansal v. Anju, 1989 All LJ 914.

(viii) The furnishing of a list of ornaments and other household articles such as refrigerator, furniture, electrical appliances, etc., at the time of the settlement of the marriage amounts to demand of dowry within the meaning of section 2 of the Dowry Prohibition Act, 1961;
Madhu Sudan Malhotra v. K.C. Bhandari, 1988 BLUR 360 (SC).

(ix) A sum of money paid by a Mohemmadan in connection with his daughter’s marriage to prospective bridegroom for the purchase of a piece of land in the joint name of his daughter and would-be son-in-law is not ‘dowry’ within the meaning of the Act;
Kunju Moideen v. Syed Mohamed, AIR 1986 Ker 48.

(x) Where the demand was made after the marriage for the purchase of a car, it was held that it did not fall within the definition of dowry;
Nirdosh Kumar v. Padma Rani, 1984 (2) Rec Cr R 239. 

(xi) Where the demand was made at the time when marriage ceremony was in progress and was repeated after the marriage, it was held that it fell within the definition of dowry;
L.V. Jadhav v. Shankar Rao, 1983

(xii) Definition of ‘dowry’ is not restricted to agreement or demand for payment of dowry before and at the marriage but also includes demands made subsequent to marriage;
State of Andhra Pradesh v. Raj Gopal AIR  2004 SCW 1566.

3. Penalty for giving or taking dowry.

(1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years and with fine which shall not be less than fifteen thousand rupees, or the amount of the value of such dowry, whichever is more.
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.

(2) Nothing in sub-section (1) shall apply to, or in relation to,-
(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):
Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;
(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf):
Provided that such presents and entered in a list maintained in accordance with the rules made under this Act.
Provided further that where such presents are made by or on behalf of the bride or any person related to the bride such presents are of customary nature and the value thereof is not excessive having regard to the financial status of the person by home or on whose behalf such presents are given.

STATE AMENDMENTS

Bihar
For section 3, substitute the following section, namely:
3. Penalty for giving or taking dowry- lf any person after the commencement of this Act, gives takes or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees.
[Vide Bihar Act 4 of 1976, sec. 2 (w.e.f. 20-1-1976)]

Haryana
For section 3, substitute the following section, namely-
3. Bar of certain acts No person shall:-
(a) give or take or abet the giving or taking of dowry;
(b) demand, directly or indirectly from the parents or guardians of a bride or bridegroom, as the case may be, any dowry
(c) incur marriage expenses the aggregate value thereof exceeds five thousand rupees;
(d) display any gifts made at or before the marriage in the form of cash, ornaments, clothes or other articles.
(e) take or carry in excess of-
(i) twenty-five members of the marriage party; and
(ii) eleven members of the band;
(f) deny conjugal rights to his wife on the ground that dowry has not been given or the dowry given is insufficient.
[Vide Haryana Act 38 of 1976, sec. 2 (w.e.f. 11-8-1976).]

Himachal Pradesh
For section 3, substitute the following section, namely-
3. Penalty for giving or taking dowery- If any person gives or or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees.
[vide Himachal Pradesh Act 25 of 1976, sec. 2 (w.e.f. 24-6-1976)]

COMMENTS
(i) Section 3 does not contravene articles 14, 19, 21 and 22 of the Constitution and therefore this section is not ultra vires of the said articles;
Indrawati v. union of India, I (1991) DMC 117 (All). 

(ii) The offence is founded in the relationship of the property demanded as abettor with the nature of demand. It should not bear a mere connection with marriage:
Madan Lal v. Amar Nath, (1984) 2 Rec Cr 581.

(iii) Abetment is a preparatory act and connotes active complicity on the part of the abettor at a point of time prior to the actual commission of the offence;
Muthummal v Maruthal, 1981 Cr LJ 833 (Mad).

4. Penalty for demanding dowry.

If any person, after the commencement of this Act, demands, directly or indirectly, from the parents, relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to 2 years and with fine which may extend to Rs.10,000.
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.

STATE AMENDMENTS

Himachal Pradesh
After section 4, insert the following sections-

4A. Bar of certain acts- Any person who-

(i) displays any present made at the time of marriage in the form of cash, ornaments, clothes or other articles, or

(ii) gives in the form of “Shagun” at the time of “tahaka”, betrothal or Tikka” any thing the value of which exceeds eleven rupees; or

(iii) gives to the parerts or any other relation to a party to the marriage anything on the occasion of “milni” or any other ceremony performed in relation to betrothal or marriage;

shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees, or with both.

4B. Penalty for depriving any party of the rights and privileges of marriage-

(1) If after the marriage any party to the marriage with or without assistance of any other person deprives the other party of the rights and privileges of marriage or tortures or refuses to maintain the said other party for non-payment of dowry before, during or after marriage, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees.

(2) The provision of this section shall be in addition to and not in derogation of any provision or the subject contained in any other law for the time being in force.

[Vide Himachal Pradesh Act 25 of 1976, sec. 4 (w.e.f. 24-6-1976).]

Punjab
After section 4, insert the following sections, namely-

4A. Bar of certain Acts- Any person who-

(i) display any presents made at the time of such marriage in the form of cash, ornaments, clothes or other articles; or

(ii) takes in a marriage party more than twenty- five persons exclusive of minors and the members of the band; or

(iii) gives in the form of sagun at the time of thaka, betrothal or marriage anything the value of which exceeds eleven rupees; or

(iv) gives to the parents or any other relation of a party to the marriage anything on the occasion of “milni” or any other ceremony performed in relation to betrothal or marriage; or

(v) serves to the marriage party more than two principal meals,

Shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees or with both.

Explanation- Here “principal meal” means lunch or dinner.

4B. Penalty for depriving any party of rights and privileges of marriage-

Any Party to the marriage who after marriage, deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said other party, for non-payment of dowry, and any person who assists such party in the commission of such offence, shall be punishable with imprisonment for a term which may extend to one year and fine which may extend to Rs.5000.
[Vide Punjab Act 26 of 1976, sec. 4 (w.e.f, 20-5-1976).]

West Bengal
After section 4, insert the following section, namely:-
4A. Penalty for depriving any party of the rights and privileges of marriage-
(1) if after the marriage, any party to the marriage with or without assistance of his parents or guardians deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said other party for non-payment of dowry before, during or after marriage, he shall be punishable with imprisonment which shall not be less than three months, but may extend to one year or with fine which shall not be less than Rs.2000, but may extend to Rs.5000 or with both.

(2) The provisions section be in addition to, and not in derogation of any provisions on the subject contained in any other law for the time being in force.

COMMENTS
(i) Mere demand for “dowry” before marriage, at the time of marriage or any time after the marriage is an offence;
Bachni Devi v. State of Haryana, AIR 2011

(ii) The offence of demanding dowry stood committed even before the marriage was performed and also when the demand was repeated again and again after the performance of marriage in respect of the same items of dowry;
Harbans Singh v. Smt Gurcharan Kaur alias Sharan Kaur, 1993

(iii) The deceased had before being set on fire by her in-laws written a letter to her father that she was being ill-treated, harassed and threatened of dire consequences for non-satisfaction of demand of dowry. Thereby proving that an offence of demanding dowry under section 4 had been committed;
Bhoora Singh v. State of uttar Pradesh, 1993

(iv) There had been no agreement between either parties to the marriage nor their relations to give any property or valuable security to the other party at or before or after the marriage. Held that the demand of TV, refrigerator, gas connection, cash of Rs. 50,000 and 15 tolas of gold will not amount to demand of dowry but demand of valuable security and the said offence does not attract section 4 of the Dowry Prohibition Act;
Shankar Prasad Shaw v. State, 1992

(v) Furnishing of a list of ornaments and other household articles at the time of settlement of marriage amounts to demand of dowry and accused are liable to be convicted under section 4;
Raksha Devi v. Aruna Devi, (1991)

(vi) Section 4 of Dowry Prohibition Act is not ultra vires nor does it contravene articles 14, 19, 21, 22 of the Constitution;
Indrawati versus Union of India, 1991

4A. Ban On Advertisement.

If any person,-

(a) offers, through any advertisement in any newspaper, periodical, journal or through any other media, any share in his property or if any money or both as a share in any business or other interest as consideration for the marriage of his son or daughter or any other relative.
(b) prints or publishes or circulates any advertisement referred to in clause (a),

he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees:
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than six months.

5. Agreement for giving or taking dowry to be void.

Any agreement for the giving or taking of dowry shall be void.

6. Dowry to be for the benefit of the wife or her heirs.

(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman-
(a) if the dowry was received before marriage, within three months after the date of marriage; or
(b) if the dowry was received at the time of or after the marriage within three months after the date of its receipt; or
(c) if the dowry was received when the woman was a minor, within three months after she has attained the age of eighteen years,
and pending such transfer, shall hold it in trust for the benefit of the woman.

(2) If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefor or as required by sub-section (3), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both.

(3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being:
Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall,-
(a) if she has no children, be transferred to her parents, or
(b) if she had children, be transferred to such children and pending such transfer, be held in trust for such children.

(3A) Where a person convicted under sub-section (2) for failure to transfer any property as required by sub-section (1) or sub-section (3) has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto or, as the case may be, her heirs, parents or children, the Court shall, in addition to awarding punishment under that sub-section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be, her heirs, parents or children within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman or, as the case may be, her heirs, parents or children.

(4) Nothing contained in this section shall affect provisions of Section 3 or Section 4.

COMMENTS
(i) Since the woman had died issueless, the articles constituting dowry are to be returned to her parents and not to her husband;
Rajiv versus Ram Kishan Jaiswal, 1994

(ii) The wife had died within less than three months of marriage, therefore not leaving behind any issue and the contention of the husband that he was the heir of the dowry articles was negatived and dowry articles were transferred to the parents of the wife;
Prithichand versus Des Raj Bansal, 1990.
also, Manas Kumar Dutt versus Alok Dutta,1990

(iii) Dowry items are required to be transferred to the parents and not to husband of the deceased;
Pradeep Kumar versus State of Punjab, 1990

7. Cognizance Of Offence.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-

(a) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act;

(b) no Court shall take cognizance of an offence under this Act except upon-
(i) its own knowledge or a police report of the facts which constitute such offence, or
(ii) a complaint by the person aggrieved by offence or a parent or other relative of such person, or by any recognized welfare institution or organisation;

(c) it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of any offence under this Act.

Explanation-
For the purposes of this sub-section, “recognized welfare institution or organisation” means a social welfare institution or organisation recognized in this behalf by the Central or State Government.

(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act.

(3) Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.

COMMENTS
(i) The point of time at which the cognizance is to be charged is the time when cognizance is actually taken;
M.L Sethi v. R.P.Kapoor 1967

(ii) The expression ‘to take cognizance’ has not been defined in this act nor in the code of criminal procedure. The word cognizance is, however used in the code to indicate the point when the magistrate takes judicial notice of an offence. It is a word of indefinite import and is perhaps not always used in exactly the same sense;
Darshan Singh versus State of Maharashtra, 1971

8. Offences To Be Cognizable For Certain Purposes And To Be Non-Bailable And Non-Compoundable.

(1) The Code of Criminal Procedure, 1973 (2 of 1974), shall apply to offences under this Act as if they were cognizable offences-

(a) for the purposes of investigation of such offences, and
(b) for the purpose of matters other than-
(i) matters referred to in Section 42 of that Code, and
(ii) the arrest of a person without a warrant or without an order of a Magistrate.

(2) Every offence under this Act shall be non-bailable and non-compoundable. 

8A. Burden Of Proof In Certain Cases.

Where any person is prosecuted for taking or abetting the taking of any dowry under Section 4, or the demanding of dowry under Section 4, the burden of proving that he has not committed an offence under those sections shall be on him.

STATE AMENDMENTS
Himachal Pradesh
For section 8A, substitute the following section, namely-

8A. Cognizance of offences- No Court shall take cognizance of any offence under this section except on a police report under section 173 the Code of Criminal Procedure, 1973, or a complaint made by a person aggrieved by the offence, as the case may be, within one year from the date of the commission of the offence:

Provided that no Police officer of the rank lower than that of the Deputy Superintendent of Police shall investigate any case registered under this Act:

Provided further that no Court shall take cognizance of any offence under this Act except with the previous sanction of the District magistrate, having jurisdiction in the area.

Ed. This State Amendment relates to section 8A prior to insertion of section 8A by the Central Act 43 of 1986, sec 8 (w.e.f. 19-11-1986)

Punjab
After section 8, insert the following section, namely-

8A. Institution of proceeding- No prosecution shall be instituted against any person in respect of any offence committed under this Act without the previous sanction of the District Magistrate or such officer as the State Government may by special or general order appoint in this behalf.
[vide Punjab Act 26 of 1976, sec. 7( w.e.f. 20-5-1976)]

Ed. This State Amendment was made prior to insertion of section 8A by the Central Act 43 of 1986, sec. 8 (w.e.f. 19-11-1986).

COMMENTS
(i) Where no specific suggestions given to any of the prosecutions witnesses regarding plea of alibi, the plea is not maintainable;
Pandurang Sivaram Kawathkar v. State of Maharashtra, 2001

(ii) If death of wife is within four years of marriage in abnormal conditions and demand of dowry and cruelty is established, the onus to rebut the presumption of dowry death shifts to defence.
vide Cr. Appeal No. 431 of 1997, decided on 4-2-2004

8B. Dowry Prohibition Officers.

(1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act.

(2) Every Dowry Prohibition Officer shall exercise and perform the following powers and functions, namely:-
(a) to see that the provisions of this Act are complied with;
(b) to prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry;
(c) to collect such evidence as may be necessary for the prosecution of persons committing offence under the Act; and
(d) to perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rules made under this Act.

(3) The State Government may, by notification in the official Gazette confer such powers of a police officer as may be specified in the notification, on the Dowry Prohibition Officer who shall exercise such powers subject to such limitation and conditions as may be specified by rules made under this Act.

(4) The State Government may, for the purpose of advising and assisting the Dowry Prohibition Officer in the efficient performance of their functions under this Act, appoint an advisory board consisting of not more than five social welfare workers (out of whom at least two shall be women) from the area in respect of which such Dowry Prohibition Officer exercises jurisdiction under-sub-section (1). 

9. Power To Make Rules.

(1) The Central Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-
(a) the form and manner in which, and the persons by whom, any list of presents referred to in sub-section (2) of Section 3 shall be maintained and all other matters connected therewith; and
(b) the better co-ordination of policy and action with respect to the administration of this Act.

(3) Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be, so, however. that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

STATE AMENDMENT

Himachal Pradesh
In section 9, in subsection (1) , after the words ‘Central Government’ insert the words ‘or the State Government’ with the prior approval of the Central Government.

Punjab
In section 9, in subsection (1) ,after the words ‘Central Government’ insert the words ‘or the State Government’.

COMMENTS
The Supreme Court directed to states and union territories for awareness regarding the provision of the Act and Rules in the public.

10. Power Of The State Government To Make Rules.

(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) the additional functions to be performed by the Dowry Prohibition Officers under sub-section (2) of Section 8B;
(b) limitations and conditions subject to which a Dowry Prohibition Officer may exercise his functions under sub-section (3) of Section 8B.

(3) Every rule made by the State Government under this section shall be laid as soon as may be after it is made before the State Legislature.

You may also like to see:

• Dowry Prohibition Rules, 1985
• Hindu Marriage Act, 1955
• Special Marriage Act, 1954
• Protection of Women From Domestic Violence Act, 2005

Dowry Prohibition Act, 1961
WritingLaw

According to UN Women, an organization that promotes women’s legal rights, every third woman across the globe has experienced violence, either sexual or physical, by a close companion, a non-partner, or both. According to it, in 2018, an estimated one in seven women had experienced physical or sexual violence from an intimate partner or husband.

Further, the International Men Gender Equality Survey conducted by International Centre for Research on Women noted that 1 in 5 men forced their wife or partner to have sexual intercourse with them. The data also shows that 20% of Indian men admit that they forced their wives or partners to have sexual intercourse.

Marital rape is not a crime in India because of which we do not have any specific data against such an act. The Indian criminal law treats marital rape under the clout of domestic violence. Recent results from India National Family Health Survey-5 (NFHS) indicate that nearly three out of ten women experience some form of domestic violence.

Based on data collected by the National Commission for Women, domestic violence against women increased significantly during the lockdown. In the case of domestic violence against women, the data shows a 79% increase from 2019.

What Is Marital Rape?

Marital rape refers to sexual relations between spouses without the consent of the other. The term ‘marital rape’ refers to any sexual act committed by a husband without the consent of his wife, carried out by force or physical violence. Simply put, forced sexual intercourse within a marriage constitutes marital rape.

As per section 375 of the Indian Penal Code, rape is “non-consensual sexual contact with a woman.” However, if a wife is over 15 years old, a husband is exempt from penal consequences for coercing her into intercourse without her consent.

Must Read: Rape In Indian Penal Code, Section 375

In Independent Thought vs Union of India (2017), the Supreme Court increased the age limit from 15 to 18 years. This exception ensures that there will not be rape charges filed against a husband who has sexual relations with his wife who is over 18 years of age without her consent. Because of this exception, husbands have been immune from any rape committed by them on their wives.

This exception in section 375 of IPC is the apple of discord behind the decade-long uproar for criminalizing rape in marriage. At present, the only recourse available in India for victims of marital rape is section 498A of the IPC and Domestic Violence Act, 2005, which deal with cruelty to protect victims against their spouse’s perverse sexual conduct.

18 Reasons Why Marital Rape Should Be Criminalised

Many prominent jurists, women’s rights activists, and social activists have argued for criminalising marital rape. Here is the list of all arguments:

1. Marriage cannot be viewed as a license for a husband to coerce sexual relations on demand.

2. Marriage cannot mean irrevocable implied consent.

3. Article 14 of the Indian Constitution protects people’s right to equality, and marital rape violates that right of a married woman.
Forced sexual cohabitation is also a violation of the fundamental right under Article 21.

4. Marital rape is in direct conflict with section 375 of the IPC. Specifically, section 375 intends to protect women and punishes those who violate them through inhumane acts. Section 375 cannot achieve its objective by exempting husbands from punishment since the consequences of rape are the same whether a woman is married or not.

5. By creating two categories based on marital status, the exception of section 375 IPC immunises men from actions committed against their wives.

6. A woman’s dignity is suppressed in the case of spousal rape if it is not criminalised, which would mean less value is placed on her dignity while she is married.

7. It is a crime against humanity. It is the most heinous violation of a women’s bodily integrity.

8. As an unmarried woman, a married woman has the same right to control her body.

9. According to the Supreme Court in State of Karnataka vs Krishnappa (1993), “sexual violence, as well as being humiliated, is an unlawful intrusion into the privacy and sanctity of a woman. Likewise, the court ruled that non-consensual sexual interaction amounts to physical and sexual violence.”

10. In Suchita Srivastava vs Chandigarh Administration (2009), the Supreme Court equated the right to choose a sexual activity with Article 21 (right to personal liberty, privacy, dignity, and bodily integrity).

11. The Supreme Court recognised the right to privacy of all citizens in Justice K.S. Puttuswamy vs Union of India (2017). An important aspect of privacy is decision-making privacy, particularly when it comes to decisions about one’s sexuality, procreation, or intimate relations.

12. In Joseph Shine vs Union of India (2018), Justice Chandrachud posed the question of whether a woman or a man loses sexual autonomy when they marry. I think ‘no’. In addition, he noted that “the right to refuse sex should also exist after marriage.”

13. In all of these decisions, the Supreme Court upheld Article 21 of the Constitution as granting all women the right to abstain from sexual activity, whether or not they are married.

14. Criminalising marital rape gives women basic human rights while also gives them a sense of security against the most heinous crime that can happen inside marriage. They will get the right to say ‘NO’ when they do not want to indulge in sexual intercourse.

15. Most importantly, criminalising marital rape will provide direct legal remedies for seeking justice.

16. Section 9 of the Hindu Marriage Act, 1955 has been challenged in a Public Interest Litigation because it forces estranged spouses to reconcile. By moving to the court and seeking restitution of conjugal rights, a partner who is living apart can force their partner to stay together. In a marriage, this can also be a factor that leads to marital rape.

17. Taking no action against marital rape violates very fundamental rights of women: their right to privacy, their right to protection from exploitation, their right to bodily integrity, and their rights guaranteed by Article 21 and Article 14 of the Indian Constitution.

18. The Kerala High Court in 2021 noted that treating a wife’s body as something owing to the husband and committing a sexual act against her will is nothing but marital rape. The court observed:

• When the husband disregards the autonomy of his wife, and even though this conduct is not illegal, it falls under the definition of physical and mental cruelty.
• Nowadays, in modern social jurisprudence, husband and wife are treated as equal partners in marriage, and the husband has no right to claim any superiority over the wife about her body or personal status.
• Any disrespect or violation of one’s physical integrity is a violation of one’s right to respect their physical and mental integrity.
• Although marital rape does not qualify for criminal recognition under the Penal Code, courts consider it to be cruelty. Accordingly, the court considered marital rape a valid ground for divorce.

J.S Verma Committee Recommendations

The committee discussed exception (2) of section 375 IPC and recommended that this exception must be removed. In the committee’s opinion, the relationship should not be used to justify leniency in such cases of rape. The fact that the victim and the defendant are married is not a defence that can justify rape. The committee recommended that the Criminal Law Amendment Act, 2013, include marital rape as an offence.

8 Arguments Against Criminalising Marital Rape

As a coin has two faces, many people believe that criminalising rape in marriage will be detrimental to Indian society. Here is the list of all arguments against criminalising marital rape:

1. In its submission to the Delhi High Court in January 2022, the Union Government stated that criminalising rape would thwart the marriage institution and become an easier way for harassing spouses.

2. Justice Dipak Misra, the former Chief Justice of India, said that “in my opinion, marital rape should not be regarded as a crime in India, as it will create anarchy in families, and our country relies on its family platform for its success of upholding family values.”

3. A man’s sexual acts with his wife cannot be recorded as evidence in court, as there is no lasting evidence in such a case.

4. In 2016, an Indian official told the Rajya Sabha that the concept of marital rape is international and could not be applied in Indian contexts due to factors such as poverty, illiteracy, social customs, faiths, and sanctity of marriages.

5. Women may feel pressured to report marital rape due to social stigma, child impact, and family shame.

6. On the question that the husband raped his wife, the wife’s testimony is often the only evidence of the rape.

7. There may have been consensual sexual activity between the spouses before the rape, so DNA or semen samples would be irrelevant.

8. Because both the husband and wife would have engaged in sexual relations frequently, it is almost impossible to prove the absence of consent.

Marital Rape – Conclusion

Raped victims are victims of violence, and the fact that the perpetrator and victim are married enhances the severity of such cases. Merely because the accused is husband and victim is wife, the offence of rape cannot be called off and be categorised as forced rape resulting in domestic violence. Individual autonomy is of the utmost prerogative of Article 21. “Rape is rape, be it marital or non-marital, the victim is women only.”

Read Next:
1. What Is the Legal Status of Marital Rape in India?
2. Death Punishment for Every Rape Has a Problem!
3. Impact of Digital Technology on Domestic Violence

Why Marital Rape Should Be Criminalised and Why It Shouldn’t
Ritesh Kumar

Meaning of Muta Marriage

The meaning of ‘Muta’ is enjoyment. Muta Marriage is a marriage for a fixed period of time that is only for sexual pleasure. Muslim Law in the Shia sect (Athna Ashria school) recognises the concept of Muta Marriage.

Conditions and Essentials of Muta Marriage

1. The parties must have attained the age of puberty, which is above 15 years of age.

2. There is no restriction on the number of Muta wives.

3. There must be free consent by the parties.

4. The time period and Dower must be mentioned in the nikah nama.

5. The cohabitation between the parties is lawful.

6. The children born out of such marriage are legitimate and have the right to inherit the properties of both parents.

7. The husband and wife don’t have any mutual right of inheritance.

8. Muta wife is not entitled to claim maintenance under personal law, but she can claim under Section 125 of CrPC.

9. The wife is entitled to get full Dower if the husband cohabits, but if the husband doesn’t cohabit, then the wife is entitled to half dower.

10. Divorce is not recognised under Muta Marriage.

Termination of Muta Marriage

Muta Marriage can be terminated by one of the following reasons.

1. Expiry of the time period.
2. Death of either party.
3. Hiba I Muddat, that is, husband gifts the unexpired term of the marriage.

Note: The parties must not be under a prohibited degree of relationship.

Read Next:
1. What Is Bigamy Under Indian Laws and What Happens When a Hindu Converts to Islam for Second Marriage
2. Legality of Child Marriage Under Indian Laws

What Is Muta Marriage and What Are Its Conditions
WritingLaw

Child marriage means a marriage where two individuals marry before attaining the age of majority. For marriage, the girl’s age should be 18 years and the boy’s 21 years.

Child marriage is the bad reality of our society, and even after enacting several laws by the parliament, these kinds of marriages are still in practice in India.

Although both boys and girls are the sufferers of child marriage, comparatively, the girl child is the one who suffers the most. Early marriage leads to early responsibilities, early pregnancy, no access to education, etc. Even the girl is not mentally, emotionally, or physically prepared for the marriage and subsequent responsibilities. Such marriage takes away the childhood of a girl.

Child marriage is a violation of human rights as well as the Fundamental Rights of an individual.

In this law note, we will learn about the laws related to child marriage and the issues faced by the girls and boys who enter such marriages.

Meaning of Child Marriage

“Child” means a person who has not completed the age of 21 years in the case of males and 18 years in the case of females”. “Child Marriage” means a marriage to which any of the contracting parties is a child.

Development of Laws on Child Marriage

The origin of child marriage is not certain, but this is a very old concept, and even after making various laws to stop this practice, it is still prevalent in India, especially in rural areas.

The movement against child marriage was first started after the case of Queen vs Haree Mohan Mythee (1890), in which an 11-year-old girl died due to injuries sustained during sexual intercourse with her 35-year-old husband.

The age of consent for sexual intercourse was increased from 10 years to 12 years by the Criminal Law (Amendment) Act, 1891, to protect women from immature cohabitation. Later in 1929, the age of consent was again increased from 12 to 13 years by the same amendment in case of child marriages.

In 1927, a Bill to prevent the solemnisation of child marriages among Hindus by declaring such marriages void if either party was under the age of marriage was presented by Rai Sahib Har Bilas Sarda. The Bill was then converted into the Child Marriage Restraint Act, 1929.

Legislative Provisions for Child Marriage

Legislative provisions brought by the parliament to prevent or restrain child marriages are:

The Child Marriage Restraint Act, 1929

The Child Marriage Restraint Act applies not only to Hindus but also to all the citizens of the society. Initially, the age prescribed in this Act for marriage was 14 years and 18 years for females and males, respectively. Later by an Amendment Act of 1949, the age limit of girls was raised to 15 years. After that, through an amendment in 1978, the age of both boys and girls was increased to 18 and 21 years respectively.

It is believed that an increase in the age of marriage will be better for the development of a girl and her child.

The Child Marriage Restraint Act gives the power to the court to penalise the groom who is above 21 years of age with 3 months of simple imprisonment and a fine for marrying a minor girl. And if the groom is between 18 – 21 years, he shall be punished with simple imprisonment of up to 15 days or a fine of Rs. 1,000 or both.

Parents or guardians can be penalised with simple imprisonment of 3 months along with a fine.

However, a similar option did not exist for a female adult who married a minor boy, probably due to the rare occurrence of such cases.

The Hindu Marriage Act, 1955

The Hindu Marriage Act lays down various conditions for solemnising a valid marriage between a male and a female. Before the enactment of the Child Marriage Restraint Act, 1978, if a male is a minor and has to marry, then the consent of a guardian is a must in such cases. But after the enactment of the Child Marriage Restraint Act, 1978, the age of marriage was increased to 18 years for females and 21 years for males and consent of guardians is not required in such cases.

Section 5 provides the essential conditions for a valid marriage. And if any marriage is performed in contravention of section 5(iii), which specifically lays down the age of parties for performing a marriage, then such a marriage will be voidable.

The Prohibition of Child Marriage Act, 2006 (PCMA)

As per the Prohibition of Child Marriage Act, any party to a child marriage can declare their marriage to be voidable. And a girl can file a petition for a voidable marriage until she attains the age of 20 years or till her remarriage. This Act also allows a girl to take maintenance and residence from the male member (groom) or his parents.

Punishments given under PCMA are quite higher than the Child Marriage Restraint Act of 1929 as the punishment for male adult or anyone who performs, conducts, directs, or abets any child marriage has been enhanced to 2 years of rigorous imprisonment or with a fine up to one lakh rupees or both.

All the offences performed under this Act are cognizable and non-bailable and also allow for an injunction to restrain child marriages.

The provision declaring child marriage invalid and void in specific cases, including kidnapping, abduction, or trafficking of minors, is perhaps the most significant modification made by the Act.

Child Marriage and Reproductive Rights

Every human being has a right to marry voluntarily and the right to reproduction. Child marriage indeed leads to loss of childhood, early pregnancy, etc.

Marrying a girl in her childhood will undoubtedly result in infringement of her reproductive rights as at that age when she is not mature enough to take care of her, how can we expect her to take care of a baby?

The girl is tiny, and she is more prone to become the victim of marital rape, sexual abuse by her husband, undesirable pregnancy, early maternity, and, most importantly, her life is not her own anymore. It is being controlled by her husband or in-laws.

However, Human rights campaigners have long contended that the government must be held responsible for the abuse of reproductive rights because they have a responsibility to defend the human rights of their citizens.

Case Laws Related to Child Marriage

Case laws related to the provisions of child marriage are given below.

Jitender Kumar Sharma vs State (2010)

The court stated that the Prohibition of Child Marriage Restraint Act, 2006, is secular and overrides the Hindu Marriage Act, 1955. However, even after the enactment of the Prohibition of Child Marriage Restraint Act, 2006, there are still certain gaps in the law because it does not prohibit child marriage. The practise of child marriage has been discouraged by regulation, but it is not entirely prohibited.

Naumi vs Narottam (1962)

The Himachal Pradesh High Court held that child marriage is neither void nor voidable.

Mohinder Kaur vs Major Singh (1971)

The Punjab and Haryana High Court observed that the solemnisation of child marriage is not a defence to a claim for conjugal rights restitution.

Conclusion

Child marriage is a severe social problem that infringes on the reproductive rights of girls, which make up the majority of their human rights.

Early marriage and motherhood infringe on a girl’s freedom to manage her own body, limit her educational and professional options, and cause problems for her and her children.

As a result, the human rights of a female child are violated at a time in her life when they are most vulnerable. And even though there are specific legislations enacted by the government to prohibit child marriages, child marriage is still prevalent in our society.

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Legality of Child Marriage Under Indian Laws
Anushka Saxena

In 2006, the Supreme Court of India, in Seema vs Ashwani Kumar, recommended that marriage should be registered mandatorily for all religions.

The legal age for marriage for a male is 21 years, and for a female is 18 years.

The Hindu Marriage Act, 1955 relates to a marriage solemnised between Hindu, Buddhist, Jain, Sikh. And the Special Marriage Act, 1954 relates to a marriage solemnised between any religion.

Who all can get their marriages registered under Hindu Marriage Act, 1955:

• Any citizen of India who is a Hindu by religion.
• Any Buddhist, Jain or Sikh who is eligible for marriage.
• Any citizen who is not Muslim, Parsi or Jew by religion.

For marriage registration, boy and girl should perform customary rites of marriage beforehand, which includes Saptpadi or Sat Phere around the fire.

Couples are required to get their marriage registered within 30 days from the date of marriage. Marriage can be registered before a marriage registrar or a district Tehsildar within whose jurisdiction marriage was solemnised or residence of boy or girl.

Must See: What Is Bigamy Under Indian Laws and What Happens When a Hindu Converts to Islam for Second Marriage

Procedure of Hindu Marriage Registration

1. First, the couple is required to fill the application form.

2. Along with the application form, two photographs of the wedding ceremony or the wedding card is to be attached.

3. Identity proof, address proof and birth certificate of the couple are required to be attached.

4. Attach one notarised affidavit stating that both the couples were single at the time of marriage, their relationship is not prohibited and that they both are not Sapinda of each other.

5. Guardian or parents of both parties should be present at the time of registration.

6. Registration is required to be done in the presence of three witnesses.

In the end, you are required to visit the marriage registrar or a district Tehsildar along with all the documents mentioned above.

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What Is the Procedure of Registration of Hindu Marriages in India?
Ankita Trivedi

Hinduism regards marriage as a sacrament. It considers marriage as a union of two souls. Marriage under Hindu law confers certain marital obligations and provides certain rights to parties in the matrimonial relationship.

The Supreme Court in Smt. Saroj Rani vs Sudarshan Kumar Chadha (AIR 1984) noted that “The essence of marriage is the sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to face in life.”

Marriage presumes that the husband and wife will live together. Both spouses have the right to get comfort from the other, and if either party fails to fulfil its obligations, he or she may be compelled to do so.

Meaning of Restitution of Conjugal Rights

The restitution of conjugal rights means the re-establishment of the marital relationship between husband and wife because the prime objective of marriage is that parties will consummate it and enjoy the society and comfort of each other.

The idea of providing the restitution decree by a court is to preserve the marriage union as far as possible by enabling the courts to intervene between the parties.

Availability of Restitution of Conjugal Rights

In India, the remedy of restitution is available:

• to Hindus under section 9 of the Hindu Marriage Act, 1955.
• to Muslims under the general law.
• to Christians under sections 32 and 33 of the Indian Divorce Act, 1869.
• to Parsi under section 36 of the Parsi Marriage and Divorce Act, 1936.
• And under section 22 of the Special Marriage Act, 1954 for persons married under the Special Marriage Act.

Section 9 of the Hindu Marriage Act, 1955

Section 9 of the Hindu Marriage Act, 1955 talks about the restitution of conjugal rights. It states that:

1. When either the husband or the wife,
2. Without any reasonable excuse, withdraws from the society of others,
3. Then the aggrieved party may apply by petition to the district court for restitution of conjugal rights,
4. And if the court satisfies with the truth of the statement made in the petition and found that there is no legal ground to reject the petition,
5. Then, the court may issue a decree of restitution of conjugal right accordingly.

Essential Elements of Restitution of Conjugal Rights

The essential elements of section 9 of the Hindu Marriage Act, 1955 (restitution of conjugal rights) are as follows:

1. There must be a valid marriage that exists between the parties.
2. One should withdraw from the society of another.
3. This withdrawal must be made without any reasonable excuse.
4. The court must satisfy the truth of the statement that no legal ground exists for refusing the decree.

Who May Apply for a Decree of Restitution?

It is to be noted that any of the spouses can file the petition for restitution under section 9 of the Hindu Marriage Act.

The Apple of discord in section 9 is the word “withdraw from society” and “reasonable excuse.” The terms are nowhere defined, but through several pronouncements, the judiciary states what will be included under these terms.

Now, let us see some judgements that highlight the terms “withdraw from society” and “reasonable excuse.”

Section 9 of Hindu Marriage Act Case Laws

In Sushila Bai vs Prem Narayan Rai (AIR 1985), the court pointed out that if the husband left his wife in her father’s home and did not maintain any connection with her, then it will be considered as withdrawing from the society of his wife and thus decree for restitution was allowed.

In TirathKaur vs Kirpal Singh (AIR 1996), the question before the Punjab and Haryana High Court was ‘whether wife’s employment can be considered a ‘reasonable excuse’ to leave husband’s society and stay away from him. The court applied the traditional approach and held that the wife’s employment is not a reasonable excuse. The court further said that “the wife’s first duty is to submit herself to her husband and remain under his roof and protection.”

Again, in Gaya vs Bhagwati (AIR 1965), the Madhya Pradesh High Court held that under Hindu society, the wife should perform matrimonial responsibility or obligation under the husband’s house, and she cannot take any unilateral decision.

In Shanti Devi vs Ramesh Chandra (AIR 1969), the Allahabad High Court took a progressive approach. It held that during the hardship of employment, if the wife withdraws from her husband’s company, then this withdrawal is considered a valid withdrawal and comes under the clout of reasonable excuse. Thus no decree for restitution was allowed.

What Is a Reasonable Excuse Under Section 9 of HMA?

Generally, the term reasonable excuse includes:

1. The ground on which the party can get matrimonial relief.
2. If the party is guilty of any matrimonial misconduct, but that misconduct does not form any ground for divorce under section 13 of the Hindu Marriage Act. Still, that misconduct is grave and weighty; this may also be considered a reasonable excuse.
3. If the party is guilty of any conjugal act or omission or misconduct that makes the situation not fit for the other party to live with each other.

Constitutional Validity of Section 9 of the Hindu Marriage Act, 1955

T Sareetha vs T VenkataSubbaiah (AIR 1983)

In the Andhra Pradesh High Court, it was argued that section 9 of the Hindu Marriage Act was against the individual’s fundamental right to liberty and dignity guaranteed by Article 21. The Andhra Pradesh High Court held that section 9 was unconstitutional and void because it was against personal liberty.

The court said that “if the wife is compelled to live with her husband, this will also violate her right to privacy.” Further, the court also highlighted that “the remedy of restitution offends the inviolability of the body and mind and invades the marital privacy and domestic intimacies of such person.”

Saroj Rani vs Sudarshan Kumar Chandra (AIR 1984 SC)

In Saroj Rani vs Sudarshan Kumar Chandra, the Supreme Court finally resolved the tussle between section 9 and fundamental rights. The Supreme Court upheld the view put forth by the Delhi High Court in Harvinder Kaur vs Harvinder Singh (AIR 1984 Delhi HC) and held that “the object of the degree was only to offer an inducement for the spouse to live together, and it does not force an unwilling wife to engage in sexual relationships with the husband.”

The remedy of restitution only aims to protect the institution of marriage, and it does not violate the principles enshrined under Articles 14, 19, and 21 of the Indian Constitution. The court further said that the remedy of restitution did not enforce sexual intercourse between the spouse, but it only brings consortium between them.

Consortium in law means “the right of association and companionship with one’s husband or wife.”

Recent Case on Conjugal Rights

In March 2019, the Indian Supreme Court admitted a writ petition in Ojaswa Pathak vs Union of India, challenging the constitutionality of the restitution of conjugal rights present under multiple family laws, including section 9 of the Hindu Marriage Act, 1955.

The objection was raised on the ground that:

1. This provision goes against a woman’s autonomy because it obliges her to return to her husband even if she does not want to go there.
2. The legislation also went against the private interest of sexual autonomy for men and women.
3. It forces the reluctant spouse to engage in unwanted sexual intercourse, thus violating Article 14 and Article 21 of the Indian Constitution.
4. It imposes an unequal burden on women and is thus contrary to Article 14 and Article 15(1) of the Constitution.

The matter is still pending before the three judges bench of the Supreme Court.

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Restitution of Conjugal Rights Under Section 9 of the Hindu Marriage Act
Ritesh Kumar