Hindu Marriage

ALL YOU NEED TO KNOW ABOUT MARRIAGE UNDER HINDU LAW

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The Hindu Marriage Act, 1955 (in short, HMA).

Who Does it Apply to

The HMA applies to Hindus, Sikhs, Buddhists and Jains. (Section 2, HMA)

If your spouse is not a Hindu, you cannot get married under the HMA. In such a case, you can get married under the Special Marriage Act (this is a religion-neutral act under which people from any religion can get married).

Yes, you can, if the conditions for a valid marriage under the HMA are satisfied.

Conditions for a Valid Marriage

The conditions for a valid marriage under the HMA are (Section 5, HMA):

  1. Both spouses must be ‘Hindu’ (i.e. Hindu, Sikh, Buddhist, or Jain)
  2. Neither spouse should be in an existing marriage (i.e. if you are already married, you cannot marry without dissolving the previous marriage).
  3. Both spouses should be mentally sound and capable of giving consent
  4. The bridegroom should be at least 21 years old and bride at least 18 years old
  5. The spouses should not be related so closely that it is prohibited by law (like parent-child, uncle-niece, aunt-nephew, step parent-child, siblings, first cousins, etc.). However, in some communities, marriages between close relations like first cousins and uncle-niece are common. If it is the custom of that community, then the law will not prohibit the marriage.

The marriage can be solemnized by performing the customary ceremonies of the community. If saptapadi(seven steps before the fire) is a customary part of the ceremonies, then saptapadi is must for solemnizing the marriage.

Practical tip: Almost all Hindu communities have saptapadi as part of their customs, and therefore it is a necessary ceremony to solemnize a marriage.

If any of the above conditions are not satisfied, the marriage becomes either void or voidable. Both types are explained in detail below.

Invalid Marriages (Void/voidable)

A void marriage is a marriage which is considered invalid or non-existent from the beginning. A void marriage does not need any formality (like annulment or divorce) to terminate. It is as though the marriage never existed. If you were in a void marriage, it is as though you were not married. (Section 11, HMA)

A marriage becomes void if-

  1. One of the spouses is already married at the time of this marriage (this is called bigamy). OR
  2. If the spouses are so closely related to each other that marriage between them is prohibited by law (see above, conditions for a valid marriage).

A voidable marriage is one which any of the spouses can terminate without having to get a divorce. You can terminate a voidable marriage through a decree of annulment. A voidable marriage is valid when it comes into existence, but becomes invalid when it is annulled. (Section 12, HMA)

A marriage becomes voidable if:

  1. One of the spouses is mentally unsound and incapable of giving consent at the time of marriage
  2. The marriage has not been consummated due to impotency of one of the spouses
  3. The wife was pregnant with another person’s child at the time of marriage (and the husband was unaware about this)

    4. The marriage becomes voidable as soon as any of the above conditions arise.

Conditions to apply for an annulment decree:
  1. File for annulment within 1 year from the marriage becoming voidable
  2. When you find out about the marriage becoming voidable, you should not voluntarily continue to live with your spouse. You should live separately.

    Where to file for annulment- In the District Court in any of the following places:

    • Where the marriage took place
    • Where you stayed together as a married couple
    • Where you currently live
    • Where your spouse currently lives

    3. Practical tip: It will be easiest for you to file for an annulment in the District Court having jurisdiction where you currently live.

In an annulment, the marriage is simply cancelled. After the annulment, it is considered that the marriage never existed.

In a divorce, a valid marriage is dissolved. After the divorce, it is considered that the marriage existed till the divorce was granted. Only after the divorce the marriage will not exist anymore. For more information on divorce, see Divorce.

Children born out of void or voidable marriages are considered legitimate, as if they were born out of a valid marriage. This is because the law does not want to punish a child (by treating him/her as illegitimate) due to no fault of the child. (Section 16, HMA)

Registration of Marriages

In 2006, the Supreme Court ruled that each and every marriage in India should be compulsorily registered, irrespective of religion (Smt. Seema v Ashwani Kumar). Before 2006, each state government had the choice to decide whether to make marriage registration compulsory. Pre-2006, registration of marriage was compulsory in only 5 states (Maharashtra, Gujarat, Karnataka, Himachal Pradesh, and Andhra Pradesh).

When you register your marriage, you will get a Marriage Certificate. This will serve as proof of your marriage.

Generally, with the registrar having jurisdiction over the place where you got married (the venue of your marriage) or where you live after marriage. Each state government prescribes rules about where and how you can register your marriage.

Further Information

No. No law requires you to change your surname after marriage. Women have been changing their surname due to patriarchal customs and not because of law.

If you do not wish to change your surname- While making your Marriage Certificate tell the registrar that you will not be changing your surname, so that they will prepare your certificate accordingly. Your Marriage Certificate will serve as proof of your marriage even when your surname is different.

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Please note: This information has been made available to you for your benefit on an ‘as is’ basis, and is only for your information. It does not constitute legal advice and cannot substitute professional legal advice. Our disclaimer policy can be viewed here ( disclaimer policy)

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