Family Law II Notes | LL.B. (3 years) Semester 3 | Mumbai University | munotes

Polygamy. A general word for marriage to more than one spouse at a time. It has two species, and an answer that stops at the general word loses marks.

Polygyny. One husband with more than one wife at the same time. This is what was permitted to Hindu men before 1955 and is what section 5(i) abolished.

Polyandry. One wife with more than one husband at the same time. It was practised in some communities, notably in parts of the Himalayan region and among some south Indian groups, and is sometimes divided into fraternal polyandry, where the husbands are brothers, and non-fraternal polyandry, where they are not.

Endogamy and exogamy. Endogamy is the rule that one must marry inside a defined group, such as a caste. Exogamy is the rule that one must marry outside a defined group, such as a gotra or a village. Hindu marriage has classically been both at once: endogamous as to caste and exogamous as to gotra and sapinda relationship, which is why the rules in sections 5(iv) and 5(v) look like prohibitions rather than permissions.

The eight forms of Hindu marriage

The classical texts, and Manu in particular, list eight forms. They are traditionally divided into four approved and four disapproved, and the division tells you what the tradition valued.

The four approved forms:

Brahma. The father gives his daughter, after decking her with ornaments, to a man of good conduct learned in the Vedas whom he has himself invited. This is the highest form and the model on which the modern ceremony is built.

Daiva. The daughter is given to a priest who officiates at a sacrifice, in the course of the rite.

Arsha. The father gives the daughter after receiving from the bridegroom a cow and a bull, or two pairs, for the purpose of the sacrifice and not as a price.

Prajapatya. The father gives the daughter with the injunction that the two are to perform their civil and religious duties together.

The four disapproved forms:

Asura. The bridegroom gives wealth to the bride's family and to the bride, and receives her. This is marriage by purchase, and the condemnation of it in the texts is the ancestor of the modern law against dowry, though it runs the other way.

Gandharva. A union by the mutual consent and desire of the man and the woman, arising out of attachment. This is the form the modern law most resembles, and it is the one at issue in Bhaurao Lokhande, discussed in [Conditions, Ceremonies and Registration of a Hindu Marriage], where the Supreme Court held that even a gandharva marriage requires the essential ceremonies unless custom has modified them.

Rakshasa. Marriage by capture, the forcible seizure of the woman.

Paisacha. The seduction of a woman who is asleep, intoxicated or of unsound mind. The texts call it the basest of all.

Two things follow that are worth writing. First, the disapproved forms were still marriages: they were condemned, not void, which is a very different thing from the modern law. Second, the modern Act has swept all eight away. Section 7 requires only the customary rites of either party, and section 5 sets the conditions. The eight forms survive as history and as an examination topic, not as law.

Marriage as sacrament and marriage as contract

This is the thread of the whole module, and MU expects it in an answer on evolution.

The classical position: a sacrament. Hindu marriage was a samskara, one of the sacraments marking the stages of life. It was a religious duty rather than an agreement; its purpose was the performance of religious rites, the continuance of the line and the discharge of debts to the ancestors. It was indissoluble, because a sacrament once performed cannot be undone. It was for the families as much as for the couple, which is why the gift of the bride by her father is the centre of the highest form. And the consent of the parties was not essential, which is how child marriage was possible at all.

The modern position: not quite a contract. The Hindu Marriage Act has taken most of that apart. It sets conditions of capacity, including a marrying age and a requirement of capacity to consent. It permits nullity, judicial separation and divorce. It allows divorce by mutual consent. It provides for maintenance, custody and property.

But it has not made marriage a contract, and this is the point to be precise about. A contract can be made by anyone competent, on any lawful terms, and dissolved by agreement at any time. A Hindu marriage still requires a ceremony, still cannot be dissolved except by a court, still cannot be varied by agreement in its essentials, and still confers a status that binds third parties.

The accurate statement is that Hindu marriage has moved a long way from sacrament towards contract without arriving, and that what it now is, is a statutory status entered by ceremony and dissolved by decree. That formulation will serve for any question on the sacramental character of Hindu marriage.

The family, and where it is going

The last part of topic 1.1 is the family rather than the marriage, and the standard account is a movement from the large to the small.

The classical unit was the joint family, several generations living together, holding property together, with authority in the eldest male. That unit is the subject of Module II and is still legally alive.

What has happened around it is well documented: migration to cities, wage employment that does not depend on family land, education, the entry of women into paid work, and legislation that gives individuals rights against the group. The nuclear family of a couple and their children has become the ordinary residential unit even where the joint family survives as a property-holding one.

Two cautions worth having in an answer. First, the joint family has not disappeared. It survives as a legal institution, as a taxable unit under the Income-tax Act, and as a set of expectations about obligation. Second, the direction of legal change has not been simply towards the individual: the Maintenance and Welfare of Parents and Senior Citizens Act 2007, taken later in this book, is Parliament putting back by statute an obligation the joint family used to supply by itself. When the family stopped maintaining its old, the State had to make it do so.

A worked example

An examiner asks: "Trace the evolution of marriage and the family, and say whether Hindu marriage is a sacrament or a contract."

Begin with the theories. Promiscuity, that early society had no regulated unions; the matriarchal theory, that descent was first traced through the mother; the patriarchal theory, associated with Maine, that the family was from the first under the father's authority; and Westermarck's pairing theory, that the pairing family was the earliest and most stable form.

Then Maine's formula. The movement of progressive societies has been from status to contract, and it names the direction the law of marriage has since travelled.

Then the forms. Monogamy, one spouse at a time; polygamy, more than one, of which the species are polygyny, one man with several wives, and polyandry, one woman with several husbands. Alongside these run endogamy, marrying within a group, and exogamy, marrying outside it, and Hindu marriage works both at once: within the caste, outside the sapinda circle.

Then the eight classical forms. Four approved, Brahma, Daiva, Arsha and Prajapatya; four disapproved, Asura, Gandharva, Rakshasa and Paisacha. Section 7 of the Hindu Marriage Act abolished them in substance by adopting whatever ceremony the custom of either party provides.

Then the sacrament-or-contract question. As a sacrament it was indissoluble, of religious obligation, and entered by ceremony. As a contract it would require free consent and be terminable by agreement.

And the correct answer. It is now neither: a statutory status entered by ceremony and ended by decree. Consent matters, since unsoundness of mind and fraud make a marriage voidable; but the parties cannot fix their own terms, and only a court can dissolve it.

What it does NOT mean

Polygamy is not polygyny. Polygamy is the genus; polygyny and polyandry are its species.

Endogamy and exogamy are not alternatives. Hindu marriage requires both, within the group and outside the prohibited circle.

The eight forms are not eight ceremonies still in use. Section 7 adopts the custom of either party and prescribes no form.

"Sacrament" does not mean the marriage is indissoluble today. Section 13 dissolves it.

"Contract" does not mean the parties may set their own terms. The conditions are statutory and the marriage ends only by decree.

Maine's formula is not a rule of law. It describes a movement, and it is quoted for that.

Quick revision

• Theories of origin: promiscuity; matriarchal; patriarchal, associated with Maine; and Westermarck's pairing theory. Maine: progressive societies move from status to contract.
• Forms of marriage: monogamy; polygamy, whose species are polygyny and polyandry; with endogamy and exogamy operating together.
• The eight Hindu forms: approved, Brahma, Daiva, Arsha, Prajapatya; disapproved, Asura, Gandharva, Rakshasa, Paisacha. All abolished in substance by s.7.
• Sacrament or contract: neither. Hindu marriage is now a statutory status, entered by ceremony under s.7 and ended by decree under s.13.
• The family: moving from joint to nuclear, from status to individual right, and from a unit of production to a unit of consumption.

Test yourself

1. Name the theories of the origin of the family. The theory of promiscuity; the matriarchal theory; the patriarchal theory, associated with Maine; and Westermarck's pairing theory.

2. What are the eight forms of Hindu marriage? The four approved forms, Brahma, Daiva, Arsha and Prajapatya, and the four disapproved forms, Asura, Gandharva, Rakshasa and Paisacha.

3. Distinguish polygyny from polyandry. Both are species of polygamy. Polygyny is the marriage of one man to more than one woman at the same time; polyandry is the marriage of one woman to more than one man.

4. Is Hindu marriage a sacrament or a contract? Neither, as the law now stands. It retains the sacramental element in that it is entered by ceremony under section 7, and it has contractual elements in that consent matters, so that unsoundness of mind or fraud makes it voidable. But the parties cannot settle their own terms and cannot dissolve it by agreement alone; it is a statutory status entered by ceremony and ended by a decree of court.

What it takes to succeed

Srinivas is careful, and a good answer follows him rather than the textbook shorthand.

Sanskritization does not automatically raise a group's status. The group must clearly claim to belong to a particular varna, Vaishya, Kshatriya or Brahman; it must alter its customs, diet and way of life to match; and where the claim has inconsistencies it must explain them, if necessary by inventing an appropriate myth.

It takes generations. The group must maintain continuous pressure and wait an indefinite period. Srinivas explains why: the people who first hear the claim know the caste is trying to pass for something it is not, so the claim has a better chance with their children and grandchildren.

It can fail, and it can backfire. A caste may overreach and incur disapproval instead of moving up. A claim that succeeds in one area or period may fail in another.

Wealth is relevant but not decisive. Economic betterment, political power, education, leadership and a desire to move up are all relevant, and each case mixes them in different measures. Srinivas expressly declines to say that economic betterment is a necessary precondition.

Group mobility, not individual mobility

This is the sentence that distinguishes caste from class, and it is worth memorising in that form. In a class system it is the individual and the family that move up or down. In a caste system the mobility is of the group. Srinivas draws the consequence: the group must be large enough to be an endogamous unit by itself, or else it takes girls in marriage from the original group without giving girls in return, which itself signals that the splinter group is regarded as superior.

He therefore calls Sanskritization a source of fission in the caste system, and says it both precedes and sets the seal on social mobility. Without it, he says, the caste system would have been subjected to great strain: it is the traditional medium through which change inside the system could be expressed.

Westernization

Srinivas uses this term for the changes brought about in Indian society and culture by more than a century and a half of British rule.

What the British changed by force of law

The nineteenth-century British found institutions in India which they considered barbarous and used all the power at their disposal to fight: slavery, human sacrifice, suttee, thuggery, and in some parts of the country female infanticide. Other institutions they disapproved of but did not try to abolish directly.

That list should be read straight into [Sati, and the Commission of Sati (Prevention) Act 1987]. Suttee is on it, and the fact that the practice needed a fresh statute in 1987 is the measure of how incompletely a law abolishes a custom.

What it did to Indian self-understanding

Because the rulers looked down on much of Indian life, the leaders of Indian society were thrown on the defensive, and Srinivas traces two opposite reactions.

Reform. Movements such as the Brahmo Samaj set out to rid Hinduism of what they saw as its evils. The Arya Samaj wanted a return to a Vedic Hinduism unlike the contemporary kind.

Notice where those two names appear again. Section 2(1)(a) of the Hindu Marriage Act applies the Act to a follower of the Brahmo, Prarthana or Arya Samaj, expressly. Parliament in 1955 was still legislating around a nineteenth-century argument about who counted as a Hindu, which is exactly what [The Hindu Marriage Act: Application, and Who is a Hindu] describes.

Defensive pride. Western and Western-inspired scholarship, and the rediscovery of Sanskrit, gave Indians confidence; tributes from scholars such as Max Muller were gratefully received; and it became common for educated Indians to make extravagant claims for their own culture and to dismiss the West as materialistic.

The dilemma of the upper castes

This is the most useful passage in the paper for a family law student.

The upper castes had a literary tradition and were opposed to blood sacrifice, but in other customs they were further removed from the British than the lower castes were. The lower castes ate meat, some ate pork and beef, and drank liquor; among them women enjoyed greater freedom, and divorce and widow remarriage were not prohibited.

So the Indian leaders were caught. The customs they had looked down on were also their masters' customs, and their masters held political and economic power, a new technology, scientific knowledge and a great literature. The Westernized upper castes therefore began acquiring habits not unlike the ones they had despised. And, Srinivas adds, the evils of upper-caste Hindu society came to be treated as the evils of the whole society.

Hold that against the Hindu Marriage Act. Divorce and widow remarriage, which the Act gave to all Hindus, were not innovations imported from England; they were already the practice of most of the population, and were forbidden chiefly at the top of the hierarchy. The 1955 Act did not simply Westernize Hindu marriage. It generalised the practice of the many against the prohibition of the few.

Westernization is uneven

Srinivas insists the pace and form varied by region and by section of the population. One group Westernized in dress, diet, manners, speech, sports and gadgets; another absorbed Western science, knowledge and literature while staying relatively untouched in externals. He accepts the distinction cannot be hard and fast and is one of relative emphasis, but it must be made to tell the types apart.

Modernization, and how the three fit together

MU asks for "modernization and sanskritization" in one breath, so the third term needs an answer.

Modernization is the wider and later idea, and it is not the same as Westernization. Westernization names a source, the West, and so describes borrowing from a particular civilisation. Modernization names a direction: the movement of a society towards industry, cities, formal education, science, a money economy, and a legal order of individual rights rather than status.

Srinivas's own paper points at the part of this that matters for law: increasing Westernization brings the greater secularization of the outlook of the people, and he sets that beside the professed aim of the government of a classless and casteless society. Secularization of outlook is the connecting idea, and it is what a court is doing when it decides a family dispute by the welfare of the child rather than by the authority of a text.

The paradox to write in an answer

Srinivas states it himself and calls it one of the interesting contradictions of modern Hindu social life. While the Brahmans are becoming more and more Westernized, the other castes are becoming more and more Sanskritized. In the lower reaches of the hierarchy, castes are taking up the very customs that the Brahmans are busy discarding.

He goes further, and this is the sentence to reproduce in substance: for those castes, Sanskritization looks like an essential preliminary to Westernization. A group climbs by Sanskritizing, and having climbed, begins to Westernize.

That is the answer to any question that asks how the two are related. They are not two rival theories. They are two currents running in opposite directions through the same society, and the same group may travel on both in turn.

Srinivas ends with a caution worth borrowing. To describe change in modern India in these terms is to describe it culturally and not structurally, and structural analysis is much harder.

A worked example

An examiner asks a law student why a course on family law begins with three sociological terms.

Take a caste group that adopts vegetarianism and teetotalism, drops widow remarriage, and begins to call itself Kshatriya. That is Sanskritization, coined by M. N. Srinivas in 1952: a low group rises by adopting the customs, rites and beliefs of a higher one and claims a varna. It works over generations, it may fail, and it moves a group rather than an individual. Notice what it does to a family lawyer's material: the group's custom changes, and custom is a source of law and a defence under section 3(a) of the Hindu Marriage Act.

Now take the same period from the other side. British rule abolished suttee and comparable practices by law, and produced both reform movements and a defensive pride in tradition. That is Westernization, and the paradox is that the upper castes, highest in the traditional order, were Westernized into habits they had once despised, at the very time that groups below them were Sanskritizing towards the model those groups were leaving.

And the broader movement. Modernization: industry, science, cities and individual right. The part that reaches the law is the secularization of outlook, and it is what makes the codification of 1955 and 1956 possible and a uniform civil code arguable.

How does a student use this in an answer? Three ways. It explains why custom still matters and why it changes. It explains why the reforming statutes exist, from the sati regulation to the Prohibition of Child Marriage Act. And it supplies the argument in [The Uniform Civil Code: Article 44 and Religious Pluralism] about whether a rule is religion or a secular activity associated with religion.

What it does NOT mean

Sanskritization is not conversion. It is the adoption of the customs, rites and beliefs of a higher group, together with a claim to a varna.

It is not individual mobility. It is a group rising, and it takes generations and may fail.

It does not change the system. The hierarchy stays; only the position of a group within it moves.

Westernization is not modernization. It names the changes British rule produced in Indian society; modernization is the broader movement.

It did not produce only reform. It produced defensive pride in tradition as well.

Modernization is not Westernization by another name. Its content is industry, science, cities and individual right, and the part that reaches the law is the secularization of outlook.

Secularization is not irreligion. It is the retreat of religious authority from areas the law now governs.

Quick revision

• Sanskritization: coined by M. N. Srinivas in 1952. A low group rises by adopting the customs, rites and beliefs of a higher one, typically vegetarianism and teetotalism, and claims a varna. It works over generations, may fail, and is a mobility of groups, not individuals; the hierarchy itself is unchanged.
• Westernization: the changes British rule produced in Indian society, including the abolition of suttee and comparable practices by law, the growth of reform movements, and a defensive pride in tradition; the upper castes were Westernized into habits they had once despised.
• Modernization: the broader movement towards industry, science, cities and individual right; the part that reaches the law is the secularization of outlook.
• The paradox: the groups highest in the traditional order were the first to Westernize, while groups lower down were Sanskritizing towards the model those groups were leaving.

Test yourself

1. What is Sanskritization, and who named it? The process by which a low Hindu caste, or a tribal or other group, changes its customs, ritual, ideology and way of life in the direction of a high and frequently twice-born caste, and claims a higher position in the hierarchy. The term was coined by M. N. Srinivas in 1952.

2. Is Sanskritization mobility of individuals? No. It is a mobility of groups, it operates over generations, and it may fail if the claim is not accepted. The hierarchy itself is not altered by it.

3. What is meant by Westernization? The changes brought about in Indian society and culture as a result of over a hundred and fifty years of British rule, including changes at the levels of technology, institutions, ideology and values, the abolition of practices such as suttee by legislation, and the growth of both reform movements and a defensive pride in tradition.

4. Which part of modernization reaches the law? The secularization of outlook, that is, the withdrawal of religious authority from areas the law now regulates, which is what makes a uniform civil code arguable and what underlies the codification of Hindu law.

What the statute did with all this

Section 7 of the Hindu Marriage Act is a remarkable provision when read against that background, because it prescribes no ceremony at all. It says a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party, and then adds that where those rites include saptapadi the marriage is complete when the seventh step is taken.

Parliament in 1955 could have prescribed a national ceremony. It declined. The reason is the diversity of Hindu practice: a rite that is essential in one community is unknown in another, and communities exist whose customary marriage involves no fire and no seven steps. So the Act adopted custom instead of replacing it, and the burden of proving what the applicable custom is falls on whoever asserts it.

That is the clearest possible illustration of MU's topic. The ritual did not merely influence the rule. It is the rule, by statutory adoption.

Ritual as the source of the prohibitions

Sapinda

The word means those connected by pinda, the ball of rice offered to the ancestors in the funeral rites. The classical sapinda group was the group of relations who shared in those offerings, which is a ritual relationship before it is anything else.

From that grew a marriage prohibition, on the reasoning that persons connected by the offering are too close to marry. Section 5(v) of the Hindu Marriage Act carries the prohibition forward, and section 3(f) replaces the classical measurement with a statutory one, three generations in the line of ascent through the mother and five through the father. The rule is now arithmetic. Its origin is a funeral rite.

Gotra and pravara

The classical exogamy rules also forbade marriage within the gotra, the descent group traced to a common sage, and within the pravara, the line of ancestral sages invoked at sacrifice. Both are ritual categories, and both were marriage prohibitions.

The modern Act has dropped them. Gotra is nowhere in the Hindu Marriage Act, and marriage within the same gotra is lawful unless it happens also to fall within the prohibited degrees or the sapinda limits. Where a community still observes gotra exogamy, it does so as social practice and not as law.

Custom as the escape hatch

Sections 5(iv) and 5(v) both allow a custom or usage governing each of the parties to permit a marriage that would otherwise be forbidden. That is how the south Indian marriage between a man and his sister's daughter remains valid while the same marriage elsewhere is void.

So the statute both codifies a ritual prohibition and then lets a contrary ritual practice defeat it, provided the practice meets section 3(a): continuous, uniform, long observed, certain, not unreasonable and not opposed to public policy.

Ritual practices, and the statutes that had to put them down

This is where topic 1.2 becomes examinable, and it is why the next three chapters exist.

Sati. A practice with an explicit religious justification, abolished in the nineteenth century and needing a fresh statute in 1987 after a death at Deorala was followed by processions and a proposal for a temple. The Commission of Sati (Prevention) Act 1987 is unusual in punishing glorification more severely than the widow's own attempt, which tells you the legislature understood it as a community practice rather than an individual crime. See [Sati, and the Commission of Sati (Prevention) Act 1987].

Dowry. Grew out of the gifts made at a daughter's marriage and the giving of the bride, hardened into demand, and required the Dowry Prohibition Act 1961 and two later amendments. Notice that the classical texts themselves condemned the asura form, in which the bridegroom's side pays: the tradition disapproved of purchase, and the practice ran the other way regardless. See [Dowry, and the Dowry Prohibition Act 1961].

Child marriage. Follows directly from the sacramental theory. If marriage is a sacrament performed by the giving of a daughter, and consent is not essential, there is no reason in the system itself why the daughter must be adult. The age condition had to be imposed from outside, and the modern Act still cannot bring itself to make a child marriage void. See [Child Marriage, and the Prohibition of Child Marriage Act 2006].

Each of the three is the same story: a practice with a place inside a religious framework, which the law has had to attack from outside because the framework would not yield.

A worked example

A couple marry in a temple. The bride's family follows a custom in which the essential ceremony is the tying of the thali; the groom's family performs saptapadi. Neither family's rite is fully completed: they exchange garlands, take four steps, and the priest declares them married. Years later the wife prosecutes the husband for bigamy over a later ceremony.

Was the first marriage validly solemnized? Section 7(1): a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. So the couple may use the bride's rite or the groom's, and the Act prescribes no ceremony of its own.

Does it matter that the seventh step was not taken? Section 7(2): where the rites include saptapadi, the marriage becomes complete and binding when the seventh step is taken. If the ceremony chosen was saptapadi, four steps do not marry them.

And if the customary rite is the thali? Then the marriage is complete when that rite is performed, because the section adopts the custom rather than any particular ritual.

Why does that matter to the bigamy charge? Because a prosecution must prove the ceremonies of the second marriage, and that is where such prosecutions usually fail; the point is developed in [Bigamy and the Punishments the Act Imposes].

Where do the prohibitions come from? From ritual too. Sapinda derives from the funeral offering, the pinda, and it is now measured by section 3(f), three generations up through the mother and five through the father, counting the person as the first. Gotra and pravara, which the classical law used, have dropped out of the law altogether.

And the practices that grew around the ritual? Sati, dowry and child marriage, each of which required a statute to put it down.

What it does NOT mean

Ritual is not a formality here. It is constitutive: the marriage exists because the ceremony was performed.

Section 7 does not prescribe a ceremony. It adopts the custom of either party.

Saptapadi is not required. It is required only where the rite chosen includes it.

Sapinda is no longer a ritual test. It is whatever section 3(f) defines, and the definition counts generations.

Gotra is not a legal prohibition. It has dropped out of the Act.

The three statutes are not about ritual as such. They are about the practices that grew around it.

Quick revision

• Ritual as the constitutive act: s.7(1) adopts the customary rites and ceremonies of either party; s.7(2) completes a saptapadi marriage at the seventh step.
• Ritual as the source of the prohibitions: sapinda from the pinda, the funeral offering, now measured by s.3(f), three generations up through the mother and five through the father, counting the person as the first; gotra and pravara have no place in the Act.
• The practices that grew around it, and the statutes that answer them: sati, the Commission of Sati (Prevention) Act 1987; dowry, the Dowry Prohibition Act 1961; and child marriage, the Prohibition of Child Marriage Act 2006.

Test yourself

1. How does the Hindu Marriage Act treat ceremonies? Section 7(1) provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. The Act prescribes no ceremony of its own.

2. What is the significance of saptapadi? Where the rites and ceremonies include the saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken, under section 7(2).

3. What is sapinda relationship, and where does the term come from? It comes from the pinda, the ball of rice offered to ancestors at the funeral rite. Under section 3(f) it extends, in the line of ascent, three generations through the mother and five through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.

4. Does gotra still matter in law? No. Gotra and pravara, which the classical law used to bar certain marriages, have no place in the Hindu Marriage Act.

Custom

Custom is the fourth source and the practically most powerful. A valid custom prevails over the smriti and the commentaries, which is the exception to the ranking above.

Custom is not abolished by the codifying Acts, because they invite it back in. Section 3(a) of the Hindu Marriage Act puts the classical requirements into statutory form: a rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in a local area, tribe, community, group or family, provided it is certain and not unreasonable or opposed to public policy, and provided a family custom has not been discontinued by the family.

Sections 5(iv), 5(v) and 7 of that Act then let custom decide who may marry whom and by what ceremony. So custom is not a historical curiosity in this subject; it is a live defence.

Customs are usually classified as local (obtaining in a particular area), class or caste (obtaining among a community wherever it lives), and family (obtaining in one family). The classification matters because the burden of proving a family custom is heavier and it can be lost by discontinuance.

The modern sources

To the four classical sources, three modern ones are always added: legislation, which is now the largest source by far; judicial precedent, which the classical system did not recognise and the British courts introduced; and justice, equity and good conscience, the residual source a court falls back on where nothing else supplies a rule.

The two schools

Why there are schools at all

There was never a Hindu law that differed by belief. What differed was which commentary a region's courts treated as authoritative. Because the commentaries read the same smritis differently, principally on when a son acquires an interest in family property, two systems grew up.

Dayabhaga prevailed in Bengal and Assam. Mitakshara prevailed everywhere else.

The difference that matters

Everything else follows from one point.

Under Mitakshara, a son acquires an interest in the ancestral property by birth. The father and his three generations of male descendants hold it together; nobody owns a defined share; the shares fluctuate as members are born and die; and on a coparcener's death his interest passes by survivorship to the others rather than to his heirs.

Under Dayabhaga, nobody acquires an interest by birth. The sons take only on the father's death. During his lifetime the father is the absolute owner and may deal with the property as he likes. Each heir then takes a defined share, which he may dispose of, and on his death that share passes to his own heirs. There is no survivorship.

Two consequences worth stating in an answer. Under Dayabhaga a coparcener may sell or will away his share, and under Mitakshara he classically could not. And under Dayabhaga a widow could succeed to her husband's share in the family property, which under Mitakshara she could not, because survivorship carried it to the other coparceners.

What is left of the difference

Section 6 of the Hindu Succession Act, as substituted in 2005, has narrowed the gap considerably. Survivorship in a Mitakshara coparcenary has been displaced for the purpose of devolution, daughters are coparceners by birth, and the pious obligation of the son has been abolished for debts contracted after the amendment. The schools remain, but a great deal of what distinguished them is now statute. Module III takes this in detail.

Unobstructed and obstructed heritage

MU asks for these by name, in Sanskrit, so learn both words. They are a Mitakshara distinction.

Apratibandha daya, unobstructed heritage, is property in which a person acquires an interest by birth, because of his relationship to the last owner. Property inherited by a Hindu male from his father, father's father or father's father's father is unobstructed heritage in the hands of his own sons: their right arises at birth and nothing obstructs it.

Sapratibandha daya, obstructed heritage, is property in which a person acquires an interest only on the death of the last owner. Property inherited from anyone other than those three direct male ancestors, from a maternal uncle or a brother for instance, is obstructed heritage: the existence of the owner is itself the obstruction, and until he dies nobody has a right.

The neat way to hold it: unobstructed heritage is obstructed by nothing, and obstructed heritage is obstructed by the owner staying alive.

The sub-schools of Mitakshara

Because Mitakshara covered the whole country outside Bengal, regional differences developed, and the Mitakshara school is conventionally divided into sub-schools.

Textbooks differ on how many, and this book says so rather than pretending otherwise. The division most often given is fourfold: Benares, Mithila, Maharashtra (also called Bombay), and Dravida (also called Madras). Many Indian textbooks add Punjab as a fifth, on the footing that its law was governed principally by custom. Any answer that names the four and adds that Punjab is often counted as a fifth is safe.

The differences between sub-schools were never differences of principle. They concerned matters such as the order of heirs and the extent of a woman's rights, and they have largely been superseded by the Hindu Succession Act.

The doctrine of factum valet

MU asks for this with an example, so the example is given.

The maxim is factum valet quod fieri non debuit: a fact which ought not to have been done is nevertheless valid. It entered Hindu law through the authors of the Dayabhaga and was accepted by the followers of the Mitakshara as well.

What it means. Where a text prescribes how something is to be done but attaches no penalty and does not declare a breach void, an act done in breach of it is nonetheless valid once it is complete. The doctrine cures a directory irregularity. It does not cure a breach of a mandatory rule, and it cannot validate what a text expressly forbids or declares void.

The example. The classic one is marriage. Where the classical texts required the bride to be given in marriage by a particular guardian in a particular order of preference, and she was in fact given by another, the marriage once solemnized was held good: the fact accomplished prevailed over the rule about who should have accomplished it. The same reasoning was applied where a formality of the ceremony had been omitted, provided the essential ceremonies were performed.

Its limit, and this is what an examiner is testing. Factum valet cannot validate a marriage that the law makes void. A marriage in breach of section 5(i), 5(iv) or 5(v) of the Hindu Marriage Act is null under section 11, and no accomplished fact saves it. The doctrine cures irregularity, not illegality, and a student who writes that factum valet validates any completed marriage has gone wrong.

Sapinda relationship

The word means those connected by pinda, the funeral rice-ball offered to ancestors, and the classical idea was of the group of relations connected through offerings to common ancestors. In the classical law the rule extended further than it now does, and the two schools measured it differently.

The statute has replaced the classical measurement entirely, and it is the statutory version that must be written. Section 3(f) of the Hindu Marriage Act extends sapinda relationship as far as the third generation inclusive in the line of ascent through the mother, and the fifth inclusive through the father, counting the person concerned as the first generation. Two persons are sapindas if one is a lineal ascendant of the other within those limits, or if they have a common lineal ascendant within those limits with reference to each of them.

Section 5(v) makes a marriage between sapindas void unless the custom governing each of them permits it, and by the Explanation to section 3 the relationship includes half and uterine blood, illegitimate relationship and relationship by adoption.

A worked example

A family in Nashik follows a custom by which a man may marry his mother's brother's daughter. Another family in Kolkata disputes whether a son may demand partition against his living father. A third asks whether a marriage celebrated in breach of a directory rule can be upset years later.

The Nashik custom. Custom is a source of Hindu law, and in practice it prevails over the smriti texts where it is proved. Under the Hindu Marriage Act it must satisfy section 3(a): continuously and uniformly observed for a long time, certain, not unreasonable, and not opposed to public policy; and section 5(v) lets it override the sapinda bar.

The Kolkata question. It is a question of school. Dayabhaga, the commentary of Jimutavahana, applies in Bengal and Assam, and under it no right arises by birth, so a son cannot demand partition against his living father. Mitakshara, Vijnaneswara's commentary on the Yajnavalkya Smriti, applies everywhere else, and under it he can.

The third question. That is factum valet: quod fieri non debuit factum valet, what ought not to be done becomes valid when done. It validates an accomplished fact against a merely directory rule, and it can never validate what the law makes void.

Where do the sources rank? Sruti, then smriti, then commentaries and digests, then custom, with custom prevailing in practice; and today legislation, precedent and equity, justice and good conscience besides.

What are the sub-schools? Of Mitakshara: Banaras, Mithila, Dravida or Madras, and Maharashtra or Bombay, with Punjab counted as a fifth by some.

And the two kinds of heritage? Unobstructed heritage, apratibandha daya, vests by birth; obstructed heritage, sapratibandha daya, vests only on the death of the owner.

What it does NOT mean

The classical ranking is not the practical ranking. Sruti ranks first in theory; custom prevails in practice where it is proved.

Custom is not any usage. It must be ancient, certain, reasonable, continuous and not opposed to public policy.

The two schools are not two religions. They are two commentaries, and the difference that matters is the right by birth and survivorship.

Factum valet does not cure a void act. It applies to a directory rule only.

Unobstructed heritage is not inherited property generally. It is property in which the right vests by birth.

A sub-school is not a separate law. It is a variation within Mitakshara.

Sapinda is no longer the classical circle. It is whatever section 3(f) of the Hindu Marriage Act defines.

Quick revision

• Sources, classically: sruti, smriti, commentaries and digests, custom; in practice custom prevails. Today also legislation, precedent, and equity, justice and good conscience.
• Custom under s.3(a) of the Hindu Marriage Act: continuously and uniformly observed for a long time, certain, not unreasonable, not opposed to public policy, and, for a family custom, not discontinued.
• The two schools: Mitakshara, Vijnaneswara on the Yajnavalkya Smriti, everywhere but Bengal and Assam; Dayabhaga, Jimutavahana, in Bengal and Assam. Mitakshara has the right by birth and survivorship; Dayabhaga has neither.
• Sub-schools of Mitakshara: Banaras, Mithila, Dravida (Madras), Maharashtra (Bombay), and Punjab as a fifth on some counts.
• Heritage: unobstructed (apratibandha daya) vests by birth; obstructed (sapratibandha daya) vests on the owner's death.
• Factum valet: quod fieri non debuit factum valet; it validates an accomplished fact against a directory rule, never against a void one.
• Sapinda: now defined by s.3(f).

Test yourself

1. Name the sources of Hindu law and say which prevails. Sruti, smriti, the commentaries and digests, and custom, with legislation, precedent and equity, justice and good conscience added by the modern law. In practice a proved custom prevails over the texts.

2. What must be shown to establish a custom? Under section 3(a) of the Hindu Marriage Act, that the rule has been continuously and uniformly observed for a long time and has obtained the force of law among Hindus in any local area, tribe, community, group or family; that it is certain; that it is not unreasonable or opposed to public policy; and, in the case of a family rule, that it has not been discontinued by the family.

3. What is the difference between the two schools? Under the Mitakshara, the commentary of Vijnaneswara on the Yajnavalkya Smriti, a son takes an interest in the coparcenary property by birth and the interest passes by survivorship. Under the Dayabhaga of Jimutavahana, applicable in Bengal and Assam, no right arises by birth, the father is the absolute owner, and the interest passes by succession.

4. What is the doctrine of factum valet? Quod fieri non debuit factum valet: what ought not to be done becomes valid when done. An act done in breach of a directory rule of Hindu law is not invalidated by the breach; but the doctrine cannot validate an act that the law declares void.

Mahr is excluded. Dower or mahr under Muslim personal law is not dowry. It is a right of the wife against the husband, not a payment to him, and the Act says so expressly.

The three offences

Section 3: giving or taking

Section 3(1) provides that if any person gives or takes, or abets the giving or taking of, dowry, he shall be punishable with imprisonment for a term not less than five years and with fine not less than fifteen thousand rupees, or the amount of the value of such dowry, whichever is more. The proviso allows the court, for adequate and special reasons recorded in the judgment, to impose a term of less than five years.

Note that the giver is guilty too. The bride's father who pays is committing the same offence as the groom's family who receive. That is a real difficulty in enforcement and it is the reason section 7(1)(b) had to be written as it was.

Section 3(2) carves out presents. Nothing in sub-section (1) applies to:

• (a) presents given at the time of a marriage to the bride, without any demand having been made, provided they are entered in a list maintained under the rules; and
• (b) presents given at the time of a marriage to the bridegroom, without any demand having been made, provided they are entered in such a list, and provided further that where they are made by or on behalf of the bride or a person related to her, they are of a customary nature and not excessive having regard to the financial status of the giver.

Read the two clauses against each other. Presents to the bride need only be undemanded and listed. Presents to the bridegroom need that, and must also be customary and not excessive. The Act is harder on gifts flowing towards the husband, which is the direction the abuse runs in.

Section 4: demanding

Section 4 provides that if any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, any dowry, he shall be punishable with imprisonment for a term not less than six months, extending to two years, and with fine which may extend to ten thousand rupees. The proviso again allows a lesser term for adequate and special reasons mentioned in the judgment.

The offence is the demand alone. Nothing need be given, nothing need be received, and the marriage need not take place. This section was substituted wholesale by the 1984 amendment, and it is the section MU asks about most often, usually in the form "what is the punishment for demanding dowry".

Section 4A: the advertisement ban

Section 4A, inserted in 1986, makes it an offence to offer, through an advertisement in any newspaper, periodical, journal or other media, any share in property or money or any share in a business as consideration for the marriage of a son, daughter or other relative; and equally an offence to print, publish or circulate such an advertisement. The punishment is imprisonment not less than six months, extending to five years, or fine up to fifteen thousand rupees, with the usual proviso.

Section 5: agreements are void

Section 5 is one sentence: any agreement for the giving or taking of dowry shall be void.

It follows that no suit lies to enforce such an agreement, on either side. A family that promised dowry and did not pay cannot be sued for it; a family that paid cannot sue to recover it under the agreement. Recovery, where it is available at all, comes from section 6.

Section 6: dowry is for the wife

This is the section that turns a criminal statute into a property remedy, and it is worth learning properly.

Section 6(1) provides that 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 received before the marriage, within three months after the date of marriage;
• (b) if received at the time of or after the marriage, within three months after the date of its receipt; and
• (c) if received when the woman was a minor, within three months after she attains the age of eighteen.

And pending transfer, that person holds it in trust for her benefit. The three-month periods were substituted for "one year" by the 1984 amendment.

Section 6(2) makes failure to transfer an offence: imprisonment not less than six months, extending to two years, or a fine not less than five thousand and not more than ten thousand rupees, or both.

Section 6(3) provides that where the woman dies before receiving the property, her heirs may claim it from whoever holds it. The proviso, inserted in 1986, is the important one: where the woman dies within seven years of her marriage otherwise than due to natural causes, the property goes to her parents if she has no children, and to her children if she has, being held in trust for them pending transfer.

That proviso exists so that a family suspected of causing a young wife's death cannot inherit what they took from her. It is the civil counterpart of the seven-year presumption that Indian criminal law applies to dowry deaths.

Section 6(3A) adds teeth. Where a person convicted under sub-section (2) has still not transferred the property, the court must, in addition to punishing him, order the transfer within a specified period; and if he does not comply, an amount equal to the value of the property may be recovered from him as if it were a fine and paid to the woman or her heirs, parents or children.

Section 6(4) preserves sections 3 and 4. Handing the property over does not undo the offence of giving, taking or demanding it.

Sections 7 to 10: how the Act is enforced

Section 7 deals with cognizance, and each limb answers a practical problem.

• (a) No court inferior to a Metropolitan Magistrate or a Judicial Magistrate of the first class may try an offence under the Act.
• (b) No court may take cognizance except upon its own knowledge, or a police report of the facts, or a complaint by the person aggrieved, or by a parent or other relative of that person, or by a recognised welfare institution or organisation.
• (c) Such a Magistrate may pass any sentence authorised by the Act.

The Explanation defines a recognised welfare institution or organisation as one recognised in that behalf by the Central or a State Government.

Clause (b) is the answer to the difficulty created by section 3. Because the bride's father is himself an offender when he pays, he is not a willing complainant. So the Act lets the court act on its own knowledge, and lets a welfare organisation complain, and does not require the aggrieved woman to move first.

Section 8 makes offences under the Act cognizable for certain purposes, and provides that every offence under the Act shall be non-bailable and non-compoundable. The word was "bailable" until the 1986 amendment substituted "non-bailable". Non-compoundable matters just as much: the parties cannot settle a dowry prosecution between themselves and have it dropped, which is precisely what pressure on a young wife's family would otherwise achieve.

Section 8A reverses the burden of proof, and it is the provision students most often miss. Where a person is prosecuted for taking or abetting the taking of dowry under section 3, or for demanding dowry under section 4, the burden of proving that he had not committed the offence is on him.

Read the section carefully before writing about it, because it does not reverse the burden for everything. It applies to taking and to demanding. It does not by its terms extend to giving under section 3, which is the limb the bride's family would be prosecuted on. So the reverse burden runs only against the side the Act is aimed at, and a student who says "the Act reverses the burden of proof" without that qualification has overstated it.

Section 8B provides for Dowry Prohibition Officers. Sub-section (1) lets the State Government appoint as many as it thinks fit and specify their areas. Sub-section (2) gives them four functions: to see that the Act is complied with; to prevent, as far as possible, the taking or abetting of the taking of, or the demanding of, dowry; to collect such evidence as may be necessary for prosecution; and to perform such additional functions as are assigned to them. Sub-section (3) lets the State Government confer specified powers of a police officer on them. Sub-section (4) allows the State Government to appoint an advisory board of not more than five social welfare workers, of whom at least two must be women, to advise and assist them.

Sections 9 and 10 are the rule-making powers of the Central Government and the State Governments respectively. The list of presents required by section 3(2) is maintained under rules made in exercise of these powers.

A worked example

Before Neha's marriage her father-in-law demanded a car and five lakh rupees from her father, who paid. The gifts were received by the groom's mother, who kept them. Two years later Neha died of burns in her husband's house.

Is what was paid dowry? Section 2: dowry means any property or valuable security given or agreed to be given directly or indirectly by one party to a marriage to the other, or by the parents of either party or by any other person, at or before or any time after the marriage in connection with the marriage. It excludes dower or mahr in the case of persons to whom the Muslim Personal Law applies.

Who is punishable? Section 3 punishes giving or taking dowry with imprisonment of not less than five years and a fine of not less than fifteen thousand rupees or the amount of the value of the dowry, whichever is more. So Neha's father is within the section as well, subject to the exceptions for presents.

And the demand? Section 4 punishes demanding dowry with imprisonment of not less than six months extending to two years and a fine up to ten thousand rupees.

And an advertisement offering a share in property in consideration of marriage? Section 4A: six months to five years, or a fine up to fifteen thousand rupees.

Was the payment agreement enforceable? No. Section 5: any agreement for the giving or taking of dowry is void.

Who is entitled to what was given? Section 6: a person other than the woman who receives dowry holds it in trust for her and must transfer it to her, within three months of receipt or of the marriage or of her attaining eighteen, as the case may be. Where she dies otherwise than by natural causes within seven years of the marriage, it passes to her children, or if none, to her parents.

How is the Act enforced? Offences are cognizable, non-bailable and non-compoundable; a court may take cognizance on a police report, on its own knowledge, or on a complaint by the aggrieved person, a parent or relative, or a recognised welfare institution or organisation; and the burden of proving that he did not demand dowry lies on the person charged.

What it does NOT mean

Dowry is not a gift. Customary presents given without demand, and of a value not excessive having regard to the giver's means, are outside the definition.

It is not limited to what is given before the marriage. The words are "at or before or any time after the marriage".

It is not confined to what passes between the spouses. Parents and any other person are within the definition.

Only the taker is not punished. Section 3 punishes giving as well as taking.

Section 6 does not give the property to the husband's family. They hold it in trust for the wife.

The Act does not require the wife to prove the demand. The burden of proving that he did not demand it lies on the person charged.

Quick revision

• s.2: dowry is property or valuable security given or agreed to be given, directly or indirectly, by a party or a parent or any other person, at, before or any time after the marriage, in connection with it; dower or mahr is excluded.
• s.3: giving or taking dowry: not less than five years and a fine of not less than fifteen thousand rupees or the value of the dowry, whichever is more; customary presents are excepted where they are entered in a list and are not excessive.
• s.4: demanding dowry: six months to two years and a fine up to ten thousand rupees.
• s.4A: advertising a share in property or money in consideration of marriage: six months to five years, or a fine up to fifteen thousand rupees.
• s.5: an agreement for the giving or taking of dowry is void. s.6: dowry received by anyone else is held in trust for the woman and must be transferred within three months; if she dies unnaturally within seven years, it goes to her children, or else her parents.
• ss.7 to 10: offences are cognizable, non-bailable and non-compoundable; cognizance may be taken on a complaint by the person aggrieved, a parent or relative, or a recognised welfare institution; the burden of proof is on the person charged; Dowry Prohibition Officers; and rules.

Test yourself

1. Define dowry. Any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party, or by the parents of either party or by any other person to either party or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties. It does not include dower or mahr in the case of persons to whom the Muslim Personal Law applies.

2. What is the punishment for giving and taking dowry? Imprisonment for a term which shall not be less than five years, and a fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more, under section 3.

3. What is the punishment for demanding dowry? Imprisonment for a term which shall not be less than six months but which may extend to two years, and a fine which may extend to ten thousand rupees, under section 4.

4. Who is entitled to dowry received by somebody other than the wife? The wife. By section 6 the recipient holds it in trust for her and must transfer it to her within three months. If she dies otherwise than by natural causes within seven years of the marriage, the property passes to her children, and if she has none, to her parents.

Glorification, section 2(b)

"Glorification", in relation to sati, whether the sati was committed before or after the commencement of the Act, includes, among other things:

(i) the observance of any ceremony or the taking out of a procession in connection with the commission of sati;

(ii) the supporting, justifying or propagating of the practice of sati in any manner;

(iii) the arranging of any function to eulogise the person who has committed sati; or

(iv) the creation of a trust, the collection of funds, the construction of a temple or other structure, or the carrying on of any form of worship or the performance of any ceremony there, with a view to perpetuate the honour of or preserve the memory of a person who has committed sati.

The words "among other things" make the list inclusive, not exhaustive. Note also that the sati glorified may have been committed before the Act, which is what allows action against long-standing temples.

When MU asks for "any two acts amounting to glorification", any two of those four will do, and the procession and the collection of funds are the easiest to state.

Temple, section 2(e)

"Temple" includes any building or other structure, whether roofed or not, constructed or made to preserve the memory of a person in respect of whom sati has been committed, or used or intended to be used for worship or for the observance of any ceremony in connection with such commission.

The words "whether roofed or not" are there so that a platform or a shrine open to the sky cannot be argued out of section 7.

Section 2(1)(a) defines "Code" as the Code of Criminal Procedure 1973, and section 2(1)(d) defines "Special Court". Section 2(2) provides that words used but not defined here, and defined in the Indian Penal Code or the Code, carry those meanings.

Part II: the offences

Section 3: attempt to commit sati

Whoever attempts to commit sati and does any act towards such commission is punishable with imprisonment up to six months, or fine, or both.

The proviso is unusual and humane, and it deserves a sentence in any answer. Before convicting, the Special Court must take into consideration the circumstances leading to the commission of the offence, the act committed, the state of mind of the person charged at the time, and all other relevant factors.

Read section 3 with section 4 and the design becomes obvious. The woman who attempts sati faces six months and a direction to the court to weigh her state of mind. The people who pushed her towards it face death or life. The Act punishes the widow lightly and deliberately, because it treats her as the victim of everyone around her.

Section 4: abetment

Section 4(1): if any person commits sati, whoever abets the commission, directly or indirectly, is punishable with death or imprisonment for life, and is also liable to fine.

Section 4(2): if any person attempts to commit sati, whoever abets the attempt, directly or indirectly, is punishable with imprisonment for life, and is also liable to fine.

That is the answer to "what is the punishment for abetment of sati": death or life where the sati is committed, life where it is only attempted.

The Explanation deems the following, and the like, to be abetment:

(a) any inducement to a widow or woman to get herself burnt or buried alive with the body of her deceased husband or other relative, or with an article associated with him, irrespective of whether she is in a fit state of mind or is labouring under intoxication or stupefaction or any other cause impeding the exercise of her free will;

(b) making a widow or woman believe that committing sati would bring some spiritual benefit to her, or to the deceased, or to the general well being of the family;

(c) encouraging a widow or woman to remain fixed in her resolve to commit sati, and thus instigating her;

(d) participating in any procession in connection with the commission of sati, or aiding her decision by taking her along with the body to the cremation or burial ground.

Clause (b) is the one to notice. It makes the religious argument itself the offence. Telling a widow that sati will earn merit is abetment, whatever the speaker believes.

Section 5: glorification

Whoever does any act for the glorification of sati is punishable with imprisonment not less than one year, extending to seven years, and with fine not less than five thousand rupees, extending to thirty thousand rupees.

A minimum sentence of a year for glorification, when the widow's own attempt carries a maximum of six months, is the plainest statement of what the Act is aimed at.

Part III: the powers of the Collector or District Magistrate

Section 6: power to prohibit. Where the Collector or District Magistrate is of opinion that sati or any abetment of it is being or is about to be committed, he may by order prohibit the doing of any act towards its commission in a specified area. He may also by order prohibit the glorification of sati in any manner in a specified area. Contravention of either order, where not punishable under another provision of the Act, carries the same sentence as glorification: one to seven years and five thousand to thirty thousand rupees.

Section 7: power to remove temples. Where a temple or structure has been in existence for not less than twenty years and worship or ceremony is carried on there to perpetuate the honour or preserve the memory of a person in respect of whom sati has been committed, the State Government may order its removal. For any other temple or structure, that is, one standing for less than twenty years, the Collector or District Magistrate may order removal. If the order is not complied with, the authority is to have the structure removed through a police officer not below the rank of Sub-Inspector, at the cost of the defaulter.

The twenty-year line is the examinable detail. The older the shrine, and so the more sensitive its removal, the higher the authority that must order it.

Section 8: power to seize property. Where the Collector or District Magistrate has reason to believe that funds or property have been collected or acquired for the purpose of glorifying a sati, or are found in circumstances creating suspicion of an offence under the Act, he may seize them. He must report the seizure to the Special Court and await its orders as to disposal.

Part IV: Special Courts, and the rest

Section 9 provides that all offences under the Act are triable only by a Special Court. The State Government constitutes one or more, by notification, with jurisdiction over the whole or part of the State. A Special Court is presided over by a Judge appointed by the State Government with the concurrence of the Chief Justice of the High Court, and nobody may be appointed unless he is, immediately before the appointment, a Sessions Judge or Additional Sessions Judge.

Section 10 provides for Special Public Prosecutors, section 11 for the procedure and powers of Special Courts, section 12 for the trial of connected offences, section 13 for forfeiture of funds or property on conviction, and section 14 for an appeal, which lies as a matter of right. Section 15 protects action taken in good faith.

Section 16: burden of proof. Where a person is prosecuted of an offence under section 4, the burden of proving that he had not committed it is on him. This is a reverse burden, and it is confined to abetment. It does not apply to section 3 or section 5.

Section 17: obligation to report. All officers of Government are required and empowered to assist the police in executing the Act. All village officers, and such other officers as the Collector or District Magistrate specifies for an area, and the inhabitants of that area, must report forthwith to the nearest police station if they have reason to believe or know that sati is about to be, or has been, committed. Contravention carries imprisonment of either description up to two years and a fine.

Section 17(2) is worth pausing on. It places a duty on the inhabitants of the area, not only on officials. Silence in the village is itself an offence.

Section 18: disqualification from inheriting. A person convicted of an offence under section 4(1), that is, of abetting a sati that was actually committed, is disqualified from inheriting the property of the person in respect of whom the sati was committed, and the property of any other person which he would have been entitled to inherit on that person's death.

This is where a criminal statute reaches back into the law of succession, and it is why the section is worth carrying into Module III. It is a disqualification of the same family as the murderer's disqualification, and it is the answer to a problem question in which the abettor stands to inherit from the widow he helped to kill.

Section 19 is repealed. It amended another Act and was repealed by the Repealing and Amending Act 2001 with effect from 3 September 2001. Section 20 gives the Act overriding effect, section 21 the rule-making power, and section 22 repeals existing laws on the subject.

A worked example

A widow is placed on her husband's pyre. Her brother-in-law leads the procession and tells the crowd she will attain heaven. She is pulled out alive. A month later the village builds a small shrine at the spot, collects donations for it, and a local leader publishes a eulogy. He then stands for election.

Is this sati? Section 2(1)(c): sati is the burning or burying alive of a widow along with the body of her deceased husband or any other relative, or with any article, object or thing associated with the husband or such relative, whether or not such burning or burying is claimed to be voluntary, and it extends to any woman along with the body of any of her relatives, irrespective of whether she is a widow.

She survived. What follows? Section 3: attempting to commit sati is punishable with imprisonment up to six months or fine or both, and the court is directed to have regard to the circumstances and to her state of mind.

The brother-in-law. Section 4: abetment of sati carries death or imprisonment for life and a fine. And section 4(2) deems certain acts to be abetment: inducing the widow, making her follow her husband's body, encouraging her resolve, promising spiritual benefit, praising past satis, and participating in the procession.

The shrine, the fund and the eulogy. Section 5: glorification carries one to seven years and a fine of five to thirty thousand rupees, and by section 2(1)(b) glorification includes any ceremony or procession in connection with the commission of sati, supporting, justifying or propagating the practice, arranging any function to eulogise the person who committed it, creating a trust or collecting funds, constructing a temple, or performing any ceremony or rite at the place.

Who acts against the shrine? Sections 6 and 7: the Collector or District Magistrate may prohibit acts towards the commission or glorification of sati and may seize funds and property; and while the State Government removes temples or structures more than twenty years old, the Collector removes those constructed more recently.

And the election? Section 18: a person convicted of an offence under section 4 is disqualified from inheriting the property of the person in respect of whom the sati was committed, and the Act provides for disqualification from contesting elections.

Where is the case tried? Part IV: by a Special Court, and the offences are triable summarily where the Act so provides.

What it does NOT mean

Sati is not confined to a widow with her husband. The definition reaches any woman burnt or buried alive with the body of any of her relatives.

It is not confined to a body. It includes burning or burying with any article, object or thing associated with the husband or relative.

Voluntariness is no answer. The definition applies "whether or not such burning or burying is claimed to be voluntary".

Glorification is not only a ceremony. It includes propagating the practice, eulogising the woman, collecting funds, and building a temple.

Attempting sati is not treated like an ordinary attempt. The court is directed to consider the woman's state of mind.

The Collector's power over shrines is not unlimited. Structures more than twenty years old are for the State Government.

Quick revision

• s.2(1)(c): sati is the burning or burying alive of a widow with the body of her deceased husband or any other relative, or with any article, object or thing associated with him, whether or not claimed to be voluntary; and of any woman with the body of any of her relatives, whether or not she is a widow.
• s.2(1)(a) "glorification" includes any ceremony or procession; supporting, justifying or propagating the practice; any function to eulogise the person; creating a trust or collecting funds; constructing a temple; and performing any ceremony or rite at the place.
• s.3: attempt to commit sati: up to six months or fine or both, the court having regard to the woman's state of mind.
• s.4: abetment: death or imprisonment for life and fine; sub-section (2) deems as abetment inducement, making her follow the body, encouraging her resolve, promising spiritual benefit, praising past satis, and joining the procession.
• s.5: glorification: one to seven years and a fine of five to thirty thousand rupees.
• ss.6 and 7: the Collector or District Magistrate may prohibit and seize; the State Government removes temples over twenty years old, the Collector the newer ones.
• Part IV: Special Courts; s.18: a person convicted under s.4 is disqualified from inheriting the property of the person concerned.

Test yourself

1. Define sati under the Act. The burning or burying alive of any widow along with the body of her deceased husband or any other relative or with any article, object or thing associated with the husband or such relative, whether or not such burning or burying is claimed to be voluntary; or of any woman along with the body of any of her relatives, irrespective of whether such burning or burying is claimed to be voluntary and irrespective of whether she is a widow.

2. What is the punishment for attempting to commit sati? Imprisonment for a term which may extend to six months, or with fine, or with both, under section 3; and the court is to have regard to the circumstances of the case and to the state of mind of the woman.

3. State any two acts amounting to abetment of sati. Inducing a widow or woman to get burnt or buried alive along with the body of her deceased husband or any other relative, or to remain fixed in her resolve; making her follow the body in a procession; encouraging her in her resolve by carrying her with the body to the cremation ground; being present at the place as an active participant; or holding out that the commission of sati will result in some spiritual benefit.

4. What is the punishment for glorification of sati? Imprisonment for a term which shall not be less than one year but which may extend to seven years, and a fine which shall not be less than five thousand rupees but which may extend to thirty thousand rupees, under section 5.

Matriarchal. Authority is in the senior female. Genuine matriarchy, in the sense of a society where women systematically hold authority, is rare and disputed, and an honest answer says so rather than treating matriarchy as the mirror image of patriarchy.

That is the heart of the most frequently asked question in these papers. Matrilineal societies are common; matriarchal societies are not the same thing and are not common. In a matrilineal family such as a Kerala tarwad, descent and property pass through women, but management of the tarwad lay with the karanavan, its senior male member, usually the eldest maternal uncle. Descent through the mother, authority in a man.

So the difference between patriarchal and matriarchal is a difference about who exercises authority, while the difference between patrilineal and matrilineal is about through whom descent and property pass. Write both sentences and the answer is complete.

Location: patrilocal and matrilocal

Location, or residence, is about where a couple lives after marriage. MU names two; a third is worth knowing because it is what has actually happened in Indian cities.

Patrilocal. The couple lives with or near the husband's family. This is the ordinary Hindu pattern, and it is the residential fact that produces most of the law in this course: the wife enters a household that is not hers, which is the situation the shared household provisions of the Protection of Women from Domestic Violence Act 2005 were written for, and the situation in which dowry demands are made.

Matrilocal. The couple lives with or near the wife's family. It is the pattern in matrilineal communities and in some others.

Neolocal. The couple sets up a separate household of its own. MU does not print the word, but it is the direction of change described in [Sanskritization, Westernization and Modernization], and it is what turns a joint family into a set of nuclear ones without any partition of property.

Number of conjugal units: nuclear, extended, joint and composite

A conjugal unit is a married couple. This axis simply counts them, and the four types MU names form a sequence.

Nuclear family. One conjugal unit: a husband, a wife and their unmarried children. It is the smallest complete family and is now the ordinary residential unit in Indian cities.

Extended family. A nuclear family plus other relatives who are not themselves a second conjugal unit: a widowed parent, an unmarried sibling, an aunt. There is still one married couple; there are simply more people.

Joint family. Two or more conjugal units related lineally, living together, typically a man and his wife with their married sons and their wives and children, holding property and hearth in common. In Hindu law the joint family is more than a residential arrangement: it is a property-holding institution with a karta, and that is Module II.

Composite family. Two or more conjugal units related collaterally rather than lineally, most obviously where two or more brothers live together with their wives and children after the parents' death. The word is also used where the plural conjugal units arise from polygyny, one man with more than one wife each forming a unit.

The distinction between joint and composite is the distinction between vertical and horizontal: a joint family is generations, a composite family is siblings.

Holding the four axes together

An answer that describes a single family on all four axes shows the classification is understood, and it is worth practising.

The ordinary north Indian Hindu joint family is patrilineal in descent, patriarchal in authority, patrilocal in residence, and joint in the number of conjugal units. All four line up, which is why students assume they always must.

The Kerala tarwad is matrilineal in descent, not matriarchal but managed by the karanavan, matrilocal in residence, and joint in structure. Two axes point one way and one points the other, which is the example to give when asked to distinguish lineage from authority.

The couple who marry in Mumbai and rent a flat are patrilineal in descent, neolocal in residence, and nuclear in structure, and the question of authority hardly arises because there is no group to have authority over. That is the direction of travel and it is what the last part of this topic is about.

A worked example

A question asks for the difference between a patriarchal and a matriarchal family, and for the kinds of family.

First, say that the classification runs on four independent axes. A family is placed on each of them separately, and the answer that treats them as one is the answer that goes wrong.

Lineage. Patrilineal, descent and inheritance through the father; matrilineal, through the mother. This decides membership and inheritance, and it is the axis the marumakkattayam tarwad sits on.

Authority. Patriarchal, authority in the father or senior male; matriarchal, in the mother or senior female. True matriarchy is rare, which is exactly why the matrilineal tarwad was still managed by the karanavan, its senior male.

Location. Patrilocal, the couple lives with or near the husband's family; matrilocal, with the wife's; and neolocal, in a new home of their own, which is where the cities have gone.

Number of conjugal units. Nuclear, one couple and their children; extended, one couple plus other relatives; joint, two or more couples related in a line, as father and sons; composite, two or more side by side, as brothers.

Then answer the examiner's question directly. Patriarchal and matriarchal are about authority; patrilineal and matrilineal are about descent. A society may be matrilineal and patriarchal at once, and the tarwad was.

What it does NOT mean

Matrilineal is not matriarchal. Descent is one axis, authority another.

Patrilocal is not patriarchal either. Residence is a third axis.

A joint family is not simply a large family. It is two or more conjugal units in a line.

A composite family is not a joint family. Its units are side by side, as brothers, not in a line.

An extended family is not a joint family. It is one couple plus relatives, not two couples.

Nuclear is not modern by definition. It describes a structure, not a period.

Quick revision

• Four independent axes, and a family is placed on each separately.
• Lineage: patrilineal or matrilineal; it decides membership and inheritance.
• Authority: patriarchal or matriarchal; true matriarchy is rare, and the matrilineal tarwad was managed by the karanavan, its senior male.
• Location: patrilocal, matrilocal, and neolocal.
• Conjugal units: nuclear, one; extended, one plus relatives; joint, two or more in a line; composite, two or more side by side.
• The examiner's question: patriarchal and matriarchal are about authority; patrilineal and matrilineal are about descent.

Test yourself

1. What is the difference between a patriarchal and a matriarchal family? The difference is one of authority. In a patriarchal family authority rests with the father or the senior male; in a matriarchal family it rests with the mother or the senior female. It is not the same as the difference between patrilineal and matrilineal, which is about the line through which descent and inheritance are traced.

2. What is a patrilocal family? One in which the married couple resides with or near the husband's family. A matrilocal family is one in which they reside with or near the wife's family, and a neolocal family is one in which they set up a household of their own.

3. Distinguish the nuclear, extended, joint and composite family. A nuclear family is one conjugal unit, a couple and their unmarried children. An extended family is a nuclear family together with other relatives. A joint family consists of two or more conjugal units related in a line, as a father and his married sons. A composite family consists of two or more conjugal units side by side, as married brothers.

4. Can a family be matrilineal and patriarchal at the same time? Yes. The marumakkattayam tarwad traced descent and property through women but was managed by the karanavan, its senior male member, so it was matrilineal in lineage and patriarchal in authority.

The unifying point for an answer is that both concepts describe relationships the law of marriage does not reach, and both are picked up, imperfectly and only for women, by the 2005 Act.

The bridge: "relationship in the nature of marriage"

Section 2(f) of the Protection of Women from Domestic Violence Act 2005 defines a domestic relationship as a relationship between two persons who live or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption, or are family members living together as a joint family.

Those seven words are the only doorway the law offers to a relationship that is not a marriage. Everything turns on how wide they are, and the Supreme Court has answered that twice.

D. Velusamy: the four conditions

D. Velusamy v. D. Patchaiammal, AIR 2011 SC 479, decided on 21 October 2010.

Facts. A maintenance claim in which the courts below had declared the appellant married to the respondent woman, notwithstanding that another woman, Lakshmi, claimed to be his wife. Lakshmi had never been made a party and had never been given notice.

Held. Two things. On procedure, any declaration about Lakshmi's marital status made without hearing her was null and void as violating natural justice; and if no such declaration could be made, neither could the declaration that the appellant was validly married to the respondent, because if Lakshmi was his wife he could not have married again without divorcing her.

On substance, a relationship in the nature of marriage under the 2005 Act is akin to a common law marriage, and requires that the couple, though not formally married:

(a) hold themselves out to society as being akin to spouses; (b) be of legal age to marry; (c) be otherwise qualified to enter into a legal marriage, including being unmarried; and (d) have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

In addition, the parties must have lived together in a shared household as defined in section 2(s). Merely spending weekends together, or a one night stand, does not make a domestic relationship.

The Court went further and said that not all live-in relationships amount to a relationship in the nature of marriage. A woman whom a man maintains financially and uses mainly for a sexual purpose, or as a servant, is not in one. It acknowledged frankly that this view excludes many women who have had a live-in relationship from the benefit of the Act, but held that Parliament had used the words "relationship in the nature of marriage" and not "live in relationship", and that a court cannot change the language of a statute in the guise of interpretation.

Why it matters here. Condition (c) is the one that decides cases and it is the one that catches maitri sambandh. If the man is already married, the couple are not otherwise qualified to enter into a legal marriage, so the relationship is not in the nature of marriage, so it is not a domestic relationship, so the Act does not apply. A maitri sambandh entered into by a married man therefore gives the woman nothing at all.

Indra Sarma: the test applied, and its cost

Indra Sarma v. V. K. V. Sarma, (2013) 15 SCC 755, decided on 26 November 2013.

Facts. The appellant had lived with the respondent for many years, knowing throughout that he was married and that his wife and children opposed the relationship. She claimed relief under the Domestic Violence Act.

Held. The appeal was dismissed. Having been fully aware that the respondent was a married person, the appellant could not have entered into a live-in relationship in the nature of marriage. All live-in relationships are not relationships in the nature of marriage; this one had no inherent or essential characteristic of a marriage; the appellant's status was lower than the status of a wife; and the relationship therefore fell outside section 2(f), so that nothing the respondent did in connection with it could be domestic violence under section 3. To hold otherwise, the Court said, would do an injustice to the legally wedded wife and children, who had opposed the relationship. Ordering maintenance would be at their cost.

The Court set out five illustrative categories for testing section 2(f), which turn on whether each party was married and, where the man was married, on whether the woman knew:

• an unmarried adult woman with an unmarried adult male, which falls within section 2(f);
• an unmarried woman with a married adult male, knowingly;
• a married adult woman with an unmarried adult male, knowingly;
• an unmarried woman who unknowingly enters a relationship with a married male, which may in a given situation fall within section 2(f); and
• a relationship between partners of the same sex.

Why it matters here. It shows how the Velusamy test works on the commonest facts, and it is unusually candid about the consequence. The Court found the appellant to be a mistress in distress, said that the position of such women, and of the children born of such relationships, is a matter of serious concern, especially where they are poor and illiterate, and called for remedial measures by Parliament through proper legislation. Parliament has not legislated.

How to write the answer

MU can ask this either as a one-sentence question or as a short note, and the shape is the same.

Start with what the concepts are. Maitri sambandh is a written friendship arrangement, associated with Gujarat, by which a man and a woman agree to live together while he remains married to another. A divided home is a household broken in fact but not in law.

State the legal position flatly. Neither is a marriage. Neither creates the status of husband and wife. Neither confers maintenance as a spouse, succession, or legitimacy as the children of a marriage.

Then give the one route in. Section 2(f) of the 2005 Act reaches a relationship in the nature of marriage, and Velusamy gives the four conditions plus a shared household.

Then close it again where it closes. Because condition (c) requires that the parties be qualified to marry, including being unmarried, a maitri sambandh with a married man fails the test, as Indra Sarma holds; and the Court itself said the remedy for that must come from Parliament.

If there is room, say what the pattern shows. The law has moved from refusing to notice these relationships at all to protecting the women in some of them from violence. It has not moved to giving any of them the economic consequences of marriage. That gap is what MU means by calling these concepts "emerging".

A worked example

Two households. In the first, Jayesh and Rekha sign a written maitri sambandh; Jayesh is married to somebody else and Rekha knows it. In the second, Kiran and Sneha, both unmarried and both over twenty-one, have lived together for eight years, introduced each other as husband and wife, and share a household. Both women are turned out.

Is either a marriage? Neither. A maitri sambandh is an agreement, not a marriage; it creates no status, and neither party becomes a spouse.

Can Rekha claim maintenance as a wife? No, because there is no marriage.

Can she claim under the Domestic Violence Act? The doorway is section 2(f), a relationship "in the nature of marriage", and the test is in D. Velusamy v. D. Patchaiammal: the parties must hold themselves out as spouses, be of legal age to marry, be otherwise qualified to enter a legal marriage, including being unmarried, have voluntarily cohabited for a significant period, and have lived in a shared household. Jayesh was married, so the relationship fails the third requirement.

Is that the end of it for her? On Indra Sarma v. V. K. V. Sarma it is: a woman who entered such a relationship knowing the man was married is outside the Act. The Court described her as a mistress in distress and left the remedy to Parliament.

And Sneha? She satisfies every requirement in Velusamy, so hers is a relationship in the nature of marriage and the reliefs of the Act are open to her: a protection order, a residence order, monetary relief, custody and compensation.

Does that make her Kiran's wife? No. The Act gives her its own reliefs; it confers no matrimonial status, and she inherits nothing from him as a widow would.

What it does NOT mean

A maitri sambandh is not a marriage. It is an agreement, and it creates no status; neither party becomes a spouse.

It does not confer maintenance or succession rights. No provision of the Hindu Marriage Act or the Hindu Succession Act attaches to it.

A divided home is not a legal category. It describes a household the law of marriage does not reach.

"Relationship in the nature of marriage" is not every live-in relationship. On Velusamy the parties must hold themselves out as spouses, be of legal age, be otherwise qualified to marry, including being unmarried, have voluntarily cohabited for a significant period, and have lived in a shared household.

A woman who knows her partner is married is not within it. Indra Sarma holds so, and describes her as a mistress in distress, asking Parliament to act.

The Domestic Violence Act does not make such a relationship a marriage. It gives the reliefs of that Act to a woman who satisfies section 2(f); it confers no matrimonial status.

Quick revision

• Maitri sambandh: an agreement by which a man and a woman agree to live as friends; it is not a marriage and creates no status, no maintenance and no succession.
• The divided home: a household the law of marriage does not reach, so the parties fall outside the matrimonial statutes.
• The doorway: s.2(f) of the Protection of Women from Domestic Violence Act 2005, which covers a relationship "in the nature of marriage".
• D. Velusamy v. D. Patchaiammal: the parties must hold themselves out to society as spouses; be of legal age to marry; be otherwise qualified to enter a legal marriage, including being unmarried; have voluntarily cohabited and held themselves out to the world as spouses for a significant period; and have lived in a shared household.
• Indra Sarma v. V. K. V. Sarma: a woman who entered the relationship knowing the man was married is outside the Act; the Court called her a mistress in distress and left the remedy to Parliament.

Test yourself

1. What is maitri sambandh, and what is its legal effect? An arrangement, found chiefly in parts of Gujarat, by which a man and a woman agree in writing to live together as friends. It is an agreement and not a marriage; it creates no matrimonial status, and neither party acquires the rights of a spouse to maintenance or succession.

2. Which statutory provision may reach such a household? Section 2(f) of the Protection of Women from Domestic Violence Act 2005, which defines a domestic relationship to include a relationship in the nature of marriage.

3. What must be shown for a relationship in the nature of marriage? On D. Velusamy v. D. Patchaiammal, that the couple held themselves out to society as being akin to spouses; that they were of legal age to marry; that they were otherwise qualified to enter into a legal marriage, including being unmarried; and that they voluntarily cohabited and held themselves out to the world as spouses for a significant period of time, in a shared household.

4. Is a woman who knew her partner was married protected? On Indra Sarma v. V. K. V. Sarma she is not: such a relationship is not one in the nature of marriage for the purposes of the Act, and the Court, describing her as a mistress in distress, left it to Parliament to provide a remedy.

The Explanation

The Explanation to section 2 answers the question the section raises about children. A person is a Hindu, Buddhist, Jaina or Sikh:

(a) if both parents are, whether the child is legitimate or illegitimate;

(b) if one parent is, and the child is brought up as a member of the tribe, community, group or family to which that parent belongs or belonged, again whether legitimate or illegitimate; or

(c) if the person is a convert or re-convert to any of those religions.

Clause (b) is the one to hold on to. Where the parents are of different religions the child's status is not decided by which parent, or by the father, but by how the child was actually brought up. That is a question of fact.

Two more sub-sections that are easy to miss

Section 2(2) takes members of a Scheduled Tribe, within the meaning of Article 366(25) of the Constitution, out of the Act altogether, unless the Central Government directs otherwise by notification. They remain governed by their own custom. This is a real exception and MU has asked about it.

Section 2(3) provides that "Hindu" anywhere in the Act is to be read as including a person who, though not a Hindu by religion, is a person to whom the Act applies by virtue of section 2. It closes the loop: once clause (c) catches you, every later section that says "Hindu" means you.

Section 3: the definitions the rest of the Act runs on

Section 3 defines seven expressions. Four of them decide questions elsewhere in the Act.

Custom and usage, section 3(a). Any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in a local area, tribe, community, group or family. Two provisos qualify it: the rule must be certain and not unreasonable or opposed to public policy, and a rule applicable only to a family must not have been discontinued by that family.

This is the definition that lets a custom override the Act in the places where the Act allows it, most importantly in section 5(iv) and 5(v) on prohibited relationships and sapindas, and in section 7 on ceremonies. Note what has to be proved: continuity, uniformity, long observance, certainty, and that the rule is not unreasonable or against public policy. A practice is not a custom because it is old and common; it must have obtained the force of law.

District court, section 3(b). Where there is a city civil court, that court; elsewhere the principal civil court of original jurisdiction, and any other civil court the State Government notifies. This matters for the jurisdiction chapter, where section 19 decides which district court a petition goes to.

Full blood, half blood and uterine blood, sections 3(c) and 3(d). Two people are related by full blood when descended from a common ancestor by the same wife, and by half blood when descended from a common ancestor but by different wives. They are related by uterine blood when descended from a common ancestress but by different husbands. The Explanation adds that "ancestor" includes the father and "ancestress" the mother.

Sapinda relationship, section 3(f). This is asked almost every year, and the numbers have to be right.

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 generation inclusive in the line of ascent through the father. The line is traced upwards in each case from the person concerned, who is counted as the first generation.

Two persons are sapindas of each other if one is a lineal ascendant of the other within those limits, or if they have a common lineal ascendant who is within those limits with reference to each of them.

Count carefully. The person concerned is generation one, not generation zero. So on the father's side you go up to the great-great-great-grandfather, and on the mother's side to the great-grandmother.

Degrees of prohibited relationship, section 3(g). Two persons are within the degrees of prohibited relationship:

• if one is a lineal ascendant of the other;
• if one was the wife or husband of a lineal ascendant or descendant of the other;
• 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
• 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.

The Explanation to clauses (f) and (g) is the part students forget. For both sapinda relationship and prohibited relationship, "relationship" includes relationship by half or uterine blood as well as full blood, illegitimate blood relationship as well as legitimate, and relationship by adoption as well as by blood. An adopted child acquires these disabilities in the adoptive family exactly as a natural child would.

Section 4: overriding effect

Section 4 provides that, save as otherwise expressly provided in the Act:

(a) any text, rule or interpretation of Hindu law, or any custom or usage as part of that law, in force immediately before the Act commenced ceases to have effect with respect to any matter for which provision is made in the Act; and

(b) any other law in force immediately before the commencement ceases to have effect in so far as it is inconsistent with the Act.

This is the hinge between this module and the whole of Module II. The classical law is not abolished wholesale. It ceases to have effect with respect to any matter for which provision is made in this Act, and no further. So the classical law of marriage is displaced, because the Act provides for marriage; the classical law of the joint family survives, because this Act says nothing about it.

The words "save as otherwise expressly provided" are what allow custom to keep operating in sections 5(iv), 5(v) and 7. Where the Act itself invites custom in, section 4 does not shut it out.

A worked example

Anil's father is a Hindu and his mother a Christian. He was brought up in his mother's church and married a Christian in church. His brother Sunil was brought up as a Hindu and married a Hindu by saptapadi. Their cousin, a member of a Scheduled Tribe in Jharkhand, married by tribal custom.

Does the Act apply to Anil? Probably not. Section 2(1)(c) applies the Act to a person domiciled in India who is not a Muslim, Christian, Parsi or Jew by religion, and the Explanation (b) treats as a Hindu any child, legitimate or illegitimate, one of whose parents is a Hindu and who is brought up as a member of the tribe, community, group or family to which such parent belongs. Anil was brought up a Christian, so he is not a Hindu for the Act.

And Sunil? Explanation (b) makes him a Hindu, and the Act applies.

And the cousin? Section 2(2): nothing in the Act applies to a member of a Scheduled Tribe within the meaning of Article 366(25) unless the Central Government by notification otherwise directs. His marriage is governed by his tribal custom.

Suppose Sunil later converts to Christianity. He is no longer a Hindu, but the Act still governs his existing marriage: his conversion becomes a ground of divorce for his wife under section 13(1)(ii), and it does not dissolve the marriage by itself.

What if he reconverts? Explanation (c) treats a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion as a Hindu.

Which definitions does the rest of the Act run on? Section 3: custom and usage; district court; full blood, half blood and uterine blood; degrees of prohibited relationship; and sapinda, three generations up through the mother and five through the father, counting the person as the first.

And what happens to the old law? Section 4: any text, rule or interpretation of Hindu law or custom ceases to have effect on matters for which the Act makes provision, and any inconsistent other law ceases to apply. That is why the joint family survives: the Act makes no provision for it.

What it does NOT mean

The Act does not define a Hindu positively. It applies to Hindus, Buddhists, Jainas and Sikhs, and then residually to whoever in India is not a Muslim, Christian, Parsi or Jew.

Birth does not settle it. A child of mixed parentage follows the community in which the child is brought up.

A Scheduled Tribe is not covered. Not unless the Central Government notifies otherwise.

Section 4 does not sweep away all the classical law. It displaces it only where the Act makes provision.

Sapinda is not counted from the ancestor. The line is traced upwards from the person concerned, who is the first generation.

The two lines are not the same length. Three generations through the mother, five through the father.

Quick revision

• s.1: the Act extends to the whole of India. s.2: applies to Hindus, Buddhists, Jainas and Sikhs by religion, and residually to any person domiciled in India who is not a Muslim, Christian, Parsi or Jew; the Explanation covers a child both of whose parents are Hindus, a child one of whose parents is and who is brought up in that parent's community, and a convert or reconvert. s.2(2): not to a Scheduled Tribe unless notified.
• s.3: custom and usage, continuously and uniformly observed, certain, not unreasonable, not opposed to public policy; district court; full, half and uterine blood; degrees of prohibited relationship; and sapinda, three generations up through the mother, five through the father, counting the person as the first.
• s.4: overriding effect; the old law ceases to have effect on matters for which the Act makes provision, which is why the joint family survives.

Test yourself

1. To whom does the Hindu Marriage Act apply? To any person who is a Hindu, Buddhist, Jaina or Sikh by religion in any of its forms or developments; and to any other person domiciled in India who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that such person would not have been governed by Hindu law had the Act not been passed. It does not apply to a member of a Scheduled Tribe unless the Central Government by notification otherwise directs.

2. A child has one Hindu parent. Is the child a Hindu for the Act? Only if the child is brought up as a member of the tribe, community, group or family to which the Hindu parent belongs or belonged. That is Explanation (b) to section 2(1).

3. What is sapinda relationship? Under section 3(f), it 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 upwards in each case from the person concerned, who is to be counted as the first generation. Two persons are sapindas if one is a lineal ascendant of the other within those limits, or if they have a common lineal ascendant within them.

4. What is the effect of section 4? Any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement ceases to have effect with respect to any matter for which provision is made in the Act, and any other law in force before the commencement ceases to apply so far as it is inconsistent with the Act.

The row that surprises everybody is (iii). A marriage in breach of the age condition is a perfectly valid Hindu marriage under this Act. Section 11 makes a marriage void only if it contravenes clauses (i), (iv) and (v) of section 5, and the age condition is not among them. The consequences of underage marriage come from section 18(a), and from a different statute altogether.

The punishments in section 18 are worth the exact figures, because they are asked as one-sentence questions. A person who procures his or her own marriage in breach of clause (iii), the age condition, is punishable with rigorous imprisonment up to two years, or fine up to one lakh rupees, or both. A breach of clause (iv) or (v), prohibited relationship or sapinda, is punishable with simple imprisonment up to one month, or fine up to one thousand rupees, or both. Notice the mismatch: the breach that does not affect validity carries by far the heavier sentence, because Parliament raised it while leaving the older penalty alone.

Section 6 is omitted

Section 6 was headed "Guardianship in marriage" and was omitted by the Child Marriage Restraint (Amendment) Act 1978, section 6 and the Schedule, with effect from 1 October 1978. The number is dead. It is mentioned here because a reader who counts from 5 to 7 should know why nothing is missing.

Section 7: ceremonies

Section 7(1) provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party to it.

Section 7(2) provides that where such rites and ceremonies include the saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken.

Two things follow, and they pull in opposite directions.

The Act prescribes no ceremony of its own. It sends you to the custom of either party, and different communities have different rites. So a marriage may be validly solemnized by rites that involve no fire and no seven steps at all, if that is what the custom of one of the parties provides.

But where saptapadi is part of the applicable rites, section 7(2) fixes the exact moment of completion, and until the seventh step there is no marriage. That is not a technicality. It decides cases.

Bhaurao Lokhande, and why bigamy prosecutions fail

Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564, decided on 1 February 1965.

Facts. The first appellant was convicted under section 494 of the Indian Penal Code for going through a marriage during the lifetime of his first wife, and the second appellant of abetting him. It was not disputed that at the second marriage the two ceremonies of invocation before the sacred fire and saptapadi had not been performed.

Held. The conviction could not stand. For section 17 of this Act, and for section 494 of the Penal Code, the second marriage must have been solemnized, and a marriage is not solemnized unless it is celebrated or performed with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married does not make those ceremonies ones prescribed by law or approved by an established custom. Invocation before the sacred fire and saptapadi are essential to the validity of a Hindu marriage, and are a requisite part of a gandharva marriage too, unless it is shown that custom in the particular community or caste has modified them.

Why it matters here. It is the working authority on section 7. It also decides how section 17 operates. The practical result is that a prosecution for bigamy must prove the ceremonies of the second marriage, and proof that the parties lived together as husband and wife, or even an admission that they married, will not do. That is the single largest reason section 17 prosecutions are so rarely successful, and it is a favourite examination point.

Section 8: registration

Section 8(1) provides that for the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties may have the particulars of their marriage entered in a Hindu Marriage Register.

Section 8(2) permits the State Government, where it thinks it necessary or expedient, to make that entry compulsory, in the whole State or a part of it, in all cases or in specified cases; and where such a direction has been issued, a person contravening a rule made in that behalf is punishable with fine which may extend to twenty-five rupees. The figure has never been revised and is worth quoting, because it shows how lightly the Act treated registration.

Section 8(3) requires rules made under the section to be laid before the State legislature. Section 8(4) provides that the Hindu Marriage Register is open for inspection at all reasonable times, is admissible as evidence of the statements in it, and that certified extracts are to be given by the Registrar on payment of the prescribed fee.

Then comes section 8(5), which answers the examination question: notwithstanding anything in the section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry. Registration is a matter of proof, not of validity. An unregistered Hindu marriage that satisfies sections 5 and 7 is a perfectly good marriage; a registered marriage that fails section 5 is still void.

Seema v. Ashwani Kumar

Seema v. Ashwani Kumar, (2006) 2 SCC 578, order of 14 February 2006, with a further order of 9 July 2008.

Facts. A transfer petition, in which the Supreme Court took up the wider question of the registration of marriages in India rather than confining itself to the dispute before it.

Held. The Court gave directions to the States and Union Territories about framing the necessary rules. The procedure for registration was to be notified by each State within three months, by amending existing rules or framing new ones, after inviting objections from members of the public and giving due publicity. The order of 9 July 2008 followed up on compliance.

Why it matters here. That is why every State now has a registration rule and why registration is in practice compulsory across India. It is also why students conclude, wrongly, that an unregistered marriage is invalid. The direction changed the administrative position. It did not and could not amend the closing words of section 8.

A worked example

Ravi married Sita in 2020. At the time Ravi had a wife living. Sita was seventeen. They married by saptapadi. Ravi's brother married a woman within the sapinda relationship, and a third brother married a woman who was of sound mind but subject to recurrent attacks of insanity. None of the marriages was registered.

Ravi's marriage. Section 5(i) requires that neither party has a spouse living. Breach makes the marriage void under section 11, and it attracts section 17.

Sita's age. Section 5(iii) requires the bridegroom to have completed twenty-one and the bride eighteen. Breach makes the marriage neither void nor voidable under this Act; it is punished under section 18(a), and the Prohibition of Child Marriage Act 2006 makes it voidable at Sita's option, taken in [Child Marriage, and the Prohibition of Child Marriage Act 2006].

The sapinda marriage. Section 5(v) forbids it unless the custom or usage governing each of them permits it. Breach makes the marriage void under section 11.

The third brother's marriage. Section 5(ii)(c), recurrent attacks of insanity, makes the marriage voidable under section 12(1)(b).

Was the saptapadi enough? Section 7(1) adopts the customary rites and ceremonies of either party; section 7(2) completes a saptapadi marriage at the seventh step. If the seventh step was not taken there is no marriage, which is the point in Bhaurao Lokhande.

Does non-registration invalidate anything? No. Section 8(5): the validity of a marriage is in no way affected by the omission to make an entry. But section 8(2) allows a State to make registration compulsory, and after Seema v. Ashwani Kumar registration of marriages of all citizens has become compulsory in practice.

And section 6? Omitted. It had required the consent of a guardian in marriage.

What it does NOT mean

The five conditions do not carry the same consequence. Monogamy, prohibited degrees and sapinda make a marriage void; the three mental-capacity limbs make it voidable; age makes it neither under this Act.

Section 5(ii) is not one condition. It is three: incapable of giving valid consent through unsoundness of mind; mental disorder of a kind or extent unfitting the person for marriage and the procreation of children; and recurrent attacks of insanity.

Section 7 does not prescribe a ceremony. It adopts the custom of either party.

Saptapadi is not always required. Only where the rite chosen includes it.

Registration does not make a marriage valid. Section 8(5) says the validity is in no way affected by an omission to register.

Registration is not therefore useless. The entry is evidence and, after Seema, is compulsory in practice.

Section 6 no longer exists. The guardianship in marriage it required has been omitted.

Quick revision

• s.5, five conditions: (i) neither party has a spouse living; (ii) neither is incapable of consent through unsoundness of mind, nor suffering from a mental disorder unfitting for marriage and procreation, nor subject to recurrent attacks of insanity; (iii) the bridegroom has completed twenty-one and the bride eighteen; (iv) the parties are not within the degrees of prohibited relationship unless custom permits; (v) they are not sapindas unless custom permits.
• Consequences: (i), (iv), (v) make the marriage void under s.11; (ii) makes it voidable under s.12; (iii) makes it neither, and is punished under s.18(a).
• s.6: omitted.
• s.7: solemnization in accordance with the customary rites and ceremonies of either party; where they include saptapadi, the marriage is complete at the seventh step.
• s.8: registration for facilitating proof; a State may make it compulsory; the register is open to inspection and is evidence; and by s.8(5) the validity of a marriage is in no way affected by an omission to register.

Test yourself

1. State the conditions of a valid Hindu marriage. Neither party has a spouse living at the time of the marriage; neither is incapable of giving a valid consent in consequence of unsoundness of mind, or though capable has been suffering from a mental disorder of such a kind or extent as to be unfit for marriage and the procreation of children, or has been subject to recurrent attacks of insanity; the bridegroom has completed twenty-one years and the bride eighteen; the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits a marriage between the two; and they are not sapindas of each other unless such a custom or usage permits it.

2. Which of those conditions makes a marriage void, and which voidable? Breach of conditions (i), (iv) and (v) makes the marriage void under section 11. Breach of condition (ii) makes it voidable under section 12(1)(b). Breach of the age condition (iii) makes it neither void nor voidable under this Act, though it is an offence under section 18(a).

3. What ceremonies does the Act require? None of its own. Section 7(1) provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party, and section 7(2) that where those rites include the saptapadi the marriage becomes complete and binding when the seventh step is taken.

4. Does failure to register affect the validity of a marriage? No. Section 8(5) provides that the validity of any Hindu marriage shall in no way be affected by the omission to make the entry, though the entry is admissible as evidence and a State Government may make registration compulsory.

"Minor", section 2(f), means a person who under the Majority Act 1875 is deemed not to have attained majority, that is, a person under eighteen.

Do not confuse "child" with "minor" in this Act. A man of twenty is a child for the purposes of the Act but is not a minor. The distinction decides who may file a petition alone, under section 3(2).

Section 3: voidable at the child's option

Section 3(1) provides that every child marriage, whether solemnised before or after the commencement of the Act, is voidable at the option of the contracting party who was a child at the time of the marriage. The proviso restricts who may file: a petition for annulment by a decree of nullity may be filed in the district court only by a contracting party who was a child at the time of the marriage.

Section 3(2) provides that if at the time of filing the petitioner is a minor, the petition may be filed through a guardian or next friend along with the Child Marriage Prohibition Officer.

Section 3(3) fixes the time limit, and it is the detail MU is most likely to ask for: the petition may be filed at any time but before the child filing it completes two years of attaining majority. So a woman married as a child must petition before she turns twenty; a man before he turns twenty.

Section 3(4) provides that while granting a decree of nullity the district court shall order both parties, and their parents or guardians, to return the money, valuables, ornaments and other gifts received on the occasion of the marriage from the other side, or an amount equal to their value. The proviso requires notice and an opportunity to show cause before such an order.

Sections 4 and 5: what the court must do for the woman and the children

Section 4: maintenance and residence. While granting a decree under section 3, the district court may make an interim or final order directing the male contracting party, or if he is a minor his parent or guardian, to pay maintenance to the female contracting party until her remarriage. The quantum is determined having regard to the needs of the child, the lifestyle she enjoyed during the marriage, and the means of the paying party. It may be monthly or a lump sum. Where the petitioner is the female party, the court may also make a suitable order as to her residence until her remarriage.

Section 5: custody and maintenance of the children. Where there are children of the child marriage, the district court shall make an appropriate order for their custody, and in doing so the welfare and best interests of the child shall be the paramount consideration. The order may include access for the other party, and the court may order maintenance for the child by a party to the marriage or by their parents or guardians.

Section 6: legitimacy. Notwithstanding that the marriage has been annulled under section 3, every child begotten or conceived of the marriage before the decree, whether born before or after the commencement of the Act, shall be deemed to be a legitimate child for all purposes.

Compare that with section 16 of the Hindu Marriage Act, which does the same work for void and voidable marriages. The legislature has consistently refused to visit the parents' breach on the child.

Section 7 lets the district court add to, modify or revoke any order under sections 4 or 5 if circumstances change, during the petition and even after its final disposal. Section 8 gives a wide choice of forum: the district court having jurisdiction includes the court where the defendant or the child resides, where the marriage was solemnised, where the parties last resided together, or where the petitioner is residing on the date of the petition.

The offences

Section 9: the adult male. Whoever, being a male adult above eighteen years of age, contracts a child marriage is punishable with rigorous imprisonment up to two years, or fine up to one lakh rupees, or both.

Note who is not punished. A female adult who marries a male child commits no offence under section 9, and a child of either sex commits none. The Act punishes the adult man and nobody else in the couple.

Section 10: solemnising. Whoever performs, conducts, directs or abets any child marriage is punishable with rigorous imprisonment up to two years and liable to a fine up to one lakh rupees, unless he proves that he had reasons to believe that the marriage was not a child marriage. The burden of that belief is on him.

Section 11: promoting or permitting. Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or in any other capacity, lawful or unlawful, including a member of an organisation or association of persons, who does any act to promote the marriage, or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, is punishable with rigorous imprisonment up to two years and liable to a fine up to one lakh rupees. The proviso is that no woman shall be punishable with imprisonment.

Two things in that sentence are worth pausing on. The words "including attending or participating" make the guests offenders, which is how the Act reaches a whole village. And section 11(2) adds a presumption: where a minor child has contracted a marriage, it shall be presumed, unless and until the contrary is proved, that the person having charge of the minor negligently failed to prevent it. The parent therefore starts the trial having to explain himself.

Section 12: when the marriage is void. This is the exception to section 3, and it must be learned as an exception. Where a child, being a minor:

(a) is taken or enticed out of the keeping of the lawful guardian; or (b) is by force compelled, or by any deceitful means induced, to go from any place; or (c) is sold for the purpose of marriage, and made to go through a form of marriage, or is married and thereafter sold or trafficked or used for immoral purposes,

such marriage shall be null and void.

So the ordinary child marriage is voidable, and the trafficked or abducted child's marriage is void outright, without any petition. The child in section 12 must be a minor, not merely a "child" as defined, which is where the distinction drawn earlier does its work.

Sections 13 and 14: the injunction. Section 13 empowers a Judicial Magistrate of the first class or a Metropolitan Magistrate, on the application of a Child Marriage Prohibition Officer or on a complaint or information from any person, to issue an injunction prohibiting a child marriage that has been arranged or is about to be solemnised, against any person including a member of an organisation. A complaint may be made by any person with personal knowledge or reason to believe, and by a non-governmental organisation with reasonable information. The Magistrate may also act suo motu on a reliable report.

Section 13(4) is the memorable one. For the purpose of preventing mass child marriages on certain days such as Akshaya Trutiya, the District Magistrate is deemed to be the Child Marriage Prohibition Officer with all the powers of that office; and by section 13(5) he has additional powers to stop or prevent such marriages, taking all appropriate measures and using the minimum force required.

Section 13(6) requires notice and an opportunity to show cause before an injunction issues, with a power to grant an interim injunction in urgency. Section 14 provides that a child marriage solemnised in contravention of an injunction order is void.

Section 15 makes offences under the Act cognizable and non-bailable.

Sections 16 and 17 provide for Child Marriage Prohibition Officers, appointed by the State Government, whose duties include preventing child marriages, collecting evidence for prosecution, advising individuals or the community generally against child marriages, and creating awareness. Section 17 makes them public servants.

A worked example

Asha was married at fifteen to Ravi, who was twenty-four. Her uncle arranged it and a priest solemnised it. She is now twenty-one and wants out. She has a child.

Is she a "child"? She was. Section 2(a) of the Prohibition of Child Marriage Act 2006: a male under twenty-one or a female under eighteen. A child marriage is one where either party is a child.

Is the marriage void? No. Section 3(1): it is voidable at the option of the party who was a child at the time.

Who may petition, and when? Only that party, by section 3(2) through a next friend while a minor, and by section 3(3) the petition must be filed before the child completes two years after attaining majority. Asha is twenty-one, so she is within time; she had until twenty.

What can the court order? By section 3(4), the return of money, valuables, ornaments and gifts; by section 4, maintenance for the female until her remarriage, and a residence; and by section 5, custody of the children, decided on their welfare, with access to the other party.

What of the child? Section 6: every child born of a child marriage is deemed legitimate for all purposes, whether the marriage is annulled or not.

Who is punishable? Section 9: an adult male above eighteen who contracts a child marriage: rigorous imprisonment up to two years or a fine up to one lakh rupees or both. Section 10: whoever performs, conducts, directs or abets it, the same. Section 11: a parent or guardian who promotes or permits it or negligently fails to prevent it, the same, with a presumption against a person having charge of the child, and a proviso that no woman shall be punished with imprisonment.

When is a child marriage void, not voidable? Section 12: where the child is taken or enticed away from the lawful guardian, or compelled or deceived into going, or sold or trafficked for the purpose of marriage.

And the contradiction to notice. Section 5(iii) of the Hindu Marriage Act sets the age, section 11 of that Act does not make such a marriage void, and this Act makes it voidable at the child's option while punishing the adult male.

What it does NOT mean

A child marriage is not void. It is voidable at the option of the party who was a child, except in the cases in section 12.

Nobody else may avoid it. The petition lies at the instance of that party alone.

The right does not last indefinitely. It must be exercised before two years after attaining majority.

Annulment does not bastardise the children. Section 6 deems every child of a child marriage legitimate for all purposes.

The Act does not punish the child. It punishes the adult male, the solemniser, and the parent or guardian.

And it does not imprison a woman. The proviso to section 11 forbids it.

The Hindu Marriage Act does not make the marriage void either. Section 11 of that Act omits section 5(iii) from its list, which is the contradiction to state.

Quick revision

• s.2(a): a child is a male under twenty-one or a female under eighteen; a child marriage is one where either party is a child.
• s.3: voidable at the option of the party who was a child; petition by that party, through a next friend while a minor; to be filed before two years after attaining majority; the court may order the return of money, valuables, ornaments and gifts.
• s.4: maintenance and residence for the female party until her remarriage. s.5: custody on the welfare principle, with access. s.6: children of a child marriage are legitimate whether or not the marriage is annulled.
• s.9: an adult male above eighteen contracting a child marriage: rigorous imprisonment up to two years or a fine up to one lakh rupees or both. s.10: whoever performs, conducts, directs or abets it, the same. s.11: a parent or guardian who promotes, permits or negligently fails to prevent it, the same, with a presumption and the proviso that no woman shall be imprisoned.
• s.12: the marriage is void where the child is taken or enticed from the lawful guardian, compelled or deceived, or sold or trafficked for marriage.
• The contradiction: HMA s.5(iii) sets the age, HMA s.11 does not make breach void, and this Act makes it voidable at the child's option while punishing the adult male.

Test yourself

1. Who is a child under the Prohibition of Child Marriage Act 2006? A male who has not completed twenty-one years of age, and a female who has not completed eighteen. A child marriage is a marriage to which either of the contracting parties is a child.

2. Is a child marriage void or voidable? Voidable at the option of the contracting party who was a child at the time of the marriage, under section 3. It is void under section 12 where the child was taken or enticed out of the keeping of the lawful guardian, compelled or deceived into going, or sold or trafficked for the purpose of marriage.

3. Within what time must the petition be filed? Before the child filing it completes two years after attaining majority. While the petitioner is a minor the petition may be filed through a guardian or next friend along with the Child Marriage Prohibition Officer.

4. What is the punishment for a male adult marrying a child? Under section 9, rigorous imprisonment which may extend to two years, or a fine which may extend to one lakh rupees, or both. The same punishment applies under section 10 to whoever performs, conducts, directs or abets such a marriage, and under section 11 to a parent or guardian who promotes or permits it or negligently fails to prevent it, except that no woman shall be punishable with imprisonment.

Section 12: voidable marriages

Section 12(1) provides that any marriage solemnised, whether before or after the commencement of the Act, shall be voidable and may be annulled by a decree of nullity on any of four grounds.

(a) Impotence. That the marriage has not been consummated owing to the impotence of the respondent. The clause was substituted in 1976. Read it precisely: the ground is non-consummation caused by the respondent's impotence, so mere wilful refusal is not within this clause, and impotence that has not prevented consummation is not within it either. Impotence may be general or relative to the particular spouse.

(b) Mental capacity. That the marriage is in contravention of clause (ii) of section 5, that is, incapacity to consent through unsoundness of mind, or mental disorder making the party unfit for marriage and the procreation of children, or recurrent attacks of insanity.

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

The words after "fraud" were added in 1976 and matter a great deal. Before the amendment, fraud had to be as to the nature of the ceremony, which is a very narrow thing. Now a material fact or circumstance concerning the respondent will do, which is what brings concealment of a serious pre-existing condition or of a previous marriage within the section.

(d) Pre-marriage pregnancy. That the respondent was at the time of the marriage pregnant by some person other than the petitioner.

The bars in section 12(2)

The two later grounds are hedged, and the bars are as examinable as the grounds.

For clause (c), force or fraud, no petition is entertained if:

• it is presented more than one year after the force ceased to operate or, as the case may be, the fraud was discovered; or
• the petitioner has, with full consent, lived with the other party as husband or wife after the force ceased or the fraud was discovered.

For clause (d), pregnancy, no petition is entertained unless the court is satisfied:

• that the petitioner was at the time of the marriage ignorant of the facts alleged;
• that proceedings were instituted within one year of the marriage, or within one year of the commencement of the Act for a marriage solemnised before it; and
• that marital intercourse has not taken place with the petitioner's consent since the petitioner discovered the pregnancy.

The pattern is the same in both: knowledge plus continued cohabitation defeats the petition. A person who learns the truth and stays cannot afterwards complain.

Void and voidable, side by side

Section 16: the legitimacy of the children

This is where the Act is at its most humane, and where an examiner is most likely to probe.

What the section gives

Section 16(1). Notwithstanding that a marriage is null and void under section 11, any child of such a marriage who would have been legitimate if the marriage had been valid shall be legitimate, whether born before or after the 1976 amendment, and whether or not a decree of nullity is granted, and whether or not the marriage is held void otherwise than on a petition under the Act.

The words "whether or not a decree of nullity is granted" are the 1976 amendment's most important contribution, and there is a reason for them. Under the section as originally enacted, legitimacy depended on a decree of annulment being passed, which in practice would never happen if the parties simply stayed away from court. The result was that the children who most needed the provision were precisely the ones it did not reach. The Supreme Court in Revanasiddappa records that this anomaly was noticed both by earlier decisions and by the Fifty-ninth Report of the Law Commission of India of March 1974, and that the legislature deliberately chose the widest of the possible positions: that these children should in all cases succeed to their parents as if legitimate.

Section 16(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, who would have been the legitimate child of the parties if the marriage had at the date of the decree been dissolved instead of annulled, is deemed to be their legitimate child notwithstanding the decree.

Section 16(3). Nothing in sub-sections (1) or (2) confers on such a child any rights in or to the property of any person other than the parents, in a case where but for the Act the child would have been incapable of possessing or acquiring such rights by reason of illegitimacy.

The limit, and what the Supreme Court has now settled

Sub-section (3) is the sting. The child is legitimate for all purposes but takes only from the parents. Not from the grandfather, not from the uncle, not from the joint family as such.

That left a hard question. If the father was a coparcener in a Mitakshara joint family, what exactly is "the property of the parent"? Does the legitimated child take a share of it, and if so how is it identified?

Revanasiddappa v. Mallikarjun, 2023 INSC 783, decided on 1 September 2023.

Facts. A reference to a three-judge Bench of the Supreme Court on what section 16 gives a child of a void or annulled marriage, and in particular whether such a child can claim in the coparcenary property of a Mitakshara joint family of which the parent was a member.

Held. By Dr D. Y. Chandrachud CJI, with J. B. Pardiwala and Manoj Misra JJ, the reference was answered. A child conferred with legitimacy by section 16(1) or (2) is entitled to a share in the property of the parents, and by section 16(3) to no rights in the property of any person other than the parents. Where the parent was a coparcener, the parent's share is ascertained by the notional partition that the Hindu Succession Act requires, that is, by assuming a partition of the coparcenary property immediately before the coparcener's death. Once that share is ascertained, the heirs, including the children legitimated by section 16, are entitled to their share in it. The provisions of the Hindu Succession Act 1956 must be harmonised with the mandate in section 16(3). The Court expressly confined the reference to joint Hindu families governed by Mitakshara law.

Why it matters here. It disposes of the standard trap in one move. The legitimated child does not become a coparcener and acquires no interest by birth in the joint family property. What the child gets is a share in whatever the parent's own notional-partition share turns out to be. Read this chapter with the section 6 chapter in Module III, where the notional partition is worked through.

A worked example

MU's February 2023 paper puts this as a problem: a husband has an adulterous relationship and a child is born of it; what can the wife do, and does the child inherit?

The answer has two halves and they are governed by different sections.

The wife's remedy is under section 13(1)(i), voluntary sexual intercourse with any person other than the spouse after the solemnisation of the marriage, which is a ground of divorce. She may also seek judicial separation on the same ground under section 10, and maintenance under section 24 or section 25.

The child's position is not governed by section 16 at all, and this is the trap. Section 16 legitimates the children of void and voidable marriages. A child born of an adulterous relationship where there was no marriage between the parents is not the child of a void marriage; there is no marriage to be void. Such a child is illegitimate, and takes from the mother under section 15 of the Hindu Succession Act rather than from the father.

Say that distinction out loud in an answer. It is the difference between a marriage that failed a condition and no marriage at all.

What it does NOT mean

A void marriage is not a marriage at all. It is a nullity from the beginning, and a decree under section 11 declares rather than creates that.

A voidable marriage is not invalid until annulled. It is valid for all purposes until a decree is passed.

Section 11 does not cover every breach of section 5. It covers clauses (i), (iv) and (v) only.

Section 11 does not apply to old marriages. It reaches marriages solemnized after the commencement of the Act.

Anybody may raise a void marriage; only a party may annul a voidable one. Section 12 requires a petition by a party, and delay or cohabitation may bar it.

Section 16 does not depend on a decree. The children are legitimate whether or not a decree of nullity is granted.

Section 16(3) does not give the child a share in the family property. It confines the child to the property of the parents, and on Revanasiddappa the route where the parent was a coparcener is through the parent's notional-partition share, never by becoming a coparcener.

Quick revision

• Void: a nullity from the start, on three grounds under s.11, breach of s.5(i) bigamy, s.5(iv) prohibited degrees, and s.5(v) sapinda, for marriages after the Act; anyone may raise it and no decree is necessary.
• Voidable: valid until annulled, on four grounds under s.12: impotence, that is non-consummation owing to the respondent's impotence; contravention of s.5(ii), the mental-capacity limbs; consent obtained by force or fraud; and the respondent being pregnant by another at the marriage.
• s.12(2) bars the last two: for force or fraud, a petition presented more than one year after the force ceased or the fraud was discovered, or cohabitation with full consent after that; for pregnancy, ignorance of the fact at the marriage, a petition after one year, and no marital intercourse since the discovery.
• s.16: children of a void marriage, and of a voidable marriage annulled under s.12, are legitimate, whether or not a decree is passed and whether or not the marriage is held void otherwise than on a petition.
• s.16(3): they take no rights in the property of any person other than the parents. Revanasiddappa: where the parent was a coparcener, the child shares in the parent's notional-partition share and does not become a coparcener.

Test yourself

1. Distinguish a void from a voidable marriage. A void marriage is no marriage at all: it is a nullity from the beginning, its invalidity may be set up by anyone and at any time, and no decree is necessary, though either party may obtain one under section 11. A voidable marriage is valid and subsisting until it is annulled by a decree under section 12, which only a party to it may seek, and the right may be lost by delay or by conduct.

2. On what grounds is a marriage void? Under section 11, for marriages solemnized after the commencement of the Act, if it contravenes section 5(i), a spouse living; section 5(iv), the degrees of prohibited relationship; or section 5(v), sapinda relationship.

3. On what grounds is a marriage voidable? Under section 12: that it has not been consummated owing to the impotence of the respondent; that it contravenes the mental-capacity conditions in section 5(ii); that the consent of the petitioner or, where required, of the guardian was obtained by force or by fraud as to the ceremony or a material fact or circumstance concerning the respondent; and that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

4. What is the position of the children of such marriages? By section 16 they are legitimate, whether or not a decree of nullity is granted and whether or not the marriage is held to be void otherwise than on a petition under the Act. By section 16(3) they take no rights in the property of any person other than the parents; and on Revanasiddappa, where the parent was a coparcener the child's share comes through the parent's notional-partition share and the child does not become a coparcener.

How a decree is enforced, and why that is the whole answer

A decree under section 9 is not enforced by physically returning the spouse. Execution is governed by Order XXI Rule 32 of the Code of Civil Procedure 1908, and that rule treats a restitution decree differently from every other decree it covers.

Rule 32(1) provides that where the party against whom a decree for specific performance of a contract, or for restitution of conjugal rights, or for an injunction has been passed has had an opportunity of obeying it and has wilfully failed to do so, the decree may be enforced, in the case of a decree for restitution of conjugal rights by the attachment of his property, and in the case of specific performance or an injunction by detention in the civil prison, or by attachment, or by both.

Read those two limbs against each other. For specific performance and injunctions, civil imprisonment is available. For restitution of conjugal rights it is not: attachment of property is the only route. Rule 32(3) then provides that where an attachment has remained in force for six months and the judgment debtor has still not obeyed, the decree holder may apply to have the attached property sold, and out of the proceeds the court may award such compensation as it thinks fit.

So the sanction is financial, not personal. That single fact carries most of the constitutional argument, and it is what the Supreme Court relied on when it said the method of execution must be kept in view.

The constitutional debate on section 9

This is the sequence MU asks for.

First, T. Sareetha v. T. Venkata Subbaiah, AIR 1983 Andhra Pradesh 356.

Facts. Not set out here. This book has not read that judgment in the original, and says so rather than inventing a summary of it.

Held. The Andhra Pradesh High Court held section 9 of the Hindu Marriage Act to be unconstitutional.

Second, Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Delhi 66.

Facts. Again not set out here, and for the same reason.

Held. The Delhi High Court took the contrary view and upheld section 9.

Why both are stated so briefly. The reason is recorded openly in authorities/cases.json. Neither judgment has been read in the original; what is stated above about each is what the Supreme Court's own report in Saroj Rani says about it, which is enough to establish the outcome of each and no more. Do not attribute reasoning to either judgment on the strength of this chapter. What matters for the examination is the sequence and the result, and both are safe.

Third, and decisively, Saroj Rani v. Sudarshan Kumar Chadha, AIR 1984 SC 1562, decided on 8 August 1984.

Facts. The wife sued under section 9 for restitution of conjugal rights. The husband consented to a decree being passed. A year later he petitioned for divorce under section 13(1A) on the footing that there had been no restitution of conjugal rights after the decree. The wife resisted on two grounds: that the husband was disentitled by his own wrong under section 23(1)(a), and that section 9 was itself arbitrary and void as offending Article 14.

Held. The appeal was dismissed. The Court held:

1. In India, conjugal rights, meaning the right of a husband or wife to the society of the other, are not merely the creature of the statute. Such a right is inherent in the very institution of marriage itself. There are sufficient safeguards in section 9 to prevent it from becoming a tyranny.
2. Section 9 is only a codification of pre-existing law. Order XXI Rule 32 of the Code of Civil Procedure deals with the execution of such a decree.
3. Section 9 is not violative of Article 14 or Article 21 of the Constitution, if the purpose of the decree for restitution of conjugal rights is understood in its proper perspective and if the method of execution in cases of disobedience is kept in view.
4. T. Sareetha was overruled. Harvinder Kaur was approved.

Why it matters here. It is the settled answer on the constitutionality of section 9, and the case that decides the conflict between the two High Courts. The end of the judgment is worth knowing and is almost always left out of answers: having granted the husband his decree because the law gave him one, the Court directed that he continue to pay maintenance to the wife until she remarried, and maintain the daughter until she married, fixing figures and giving liberty to apply for variation. The Court did equity inside a statutory result it could not avoid.

Section 10: judicial separation

Section 10(1), as substituted by the 1976 amendment, provides that either party to a marriage, whether solemnised before or after the commencement of the Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in section 13(1), and in the case of a wife also on any of the grounds specified in section 13(2), as grounds on which a petition for divorce might have been presented.

Section 10(2) provides that 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 petition of either party and on being satisfied of the truth of the statements made, rescind the decree if it considers it just and reasonable to do so.

What the 1976 amendment changed

Before 1976 section 10 had its own separate list of grounds, shorter than the grounds of divorce and differently worded. The amendment abolished that list and simply pointed at section 13. The result is that every ground of divorce is now a ground of judicial separation, and the wife's four additional grounds in section 13(2) are available to her for separation too.

That is a point worth making in an answer, because it means the choice between the two remedies is a choice of relief, not of grounds. A petitioner with a good ground may ask for either.

The effects of a decree

• The petitioner is no longer obliged to cohabit with the respondent. The marriage subsists; the duty to live together does not.
• The marriage is not dissolved. Neither party may remarry. Rights of inheritance between the spouses are unaffected by the decree itself.
• The decree may be rescinded under section 10(2) if the court thinks it just and reasonable, which usually means the parties have reconciled.
• After one year without resumption of cohabitation, the decree becomes a ground of divorce under section 13(1A)(i).

Judicial separation and divorce compared

A worked example

Meera left her husband Rohit in January after he insisted she give up her job. Rohit petitions under section 9. Meera counter-claims under section 10 on the ground of cruelty. Two years pass and neither has moved.

What must Rohit show? Section 9: that Meera has withdrawn from his society without reasonable excuse, and that the court is satisfied of the truth of the statements and that there is no legal ground why the relief should not be granted.

Who proves the excuse? The Explanation: where the question arises whether there has been reasonable excuse for the withdrawal, the burden of proving reasonable excuse shall be on the person who has withdrawn. So it lies on Meera.

Is insisting she give up her job an excuse? It goes to whether the withdrawal was reasonable, and, if it amounts to cruelty, to her own petition under section 10.

How is a section 9 decree executed? Not against the person. Order XXI Rule 32 of the Code of Civil Procedure allows execution by attachment of property, and that is why the section survives.

Is section 9 constitutional? T. Sareetha held it was not, as a violation of privacy and human dignity. Harvinder Kaur disagreed. Saroj Rani v. Sudarshan Kumar Chadha upheld the section, overruling T. Sareetha and approving Harvinder Kaur: the remedy serves the social purpose of preventing the breakdown of marriage, and it is not enforced against the body.

What does section 10 give Meera? A decree of judicial separation on any of the grounds of divorce in section 13(1), and, for a wife, in section 13(2). It is no longer obligatory for the parties to cohabit, but the marriage subsists.

Can it be undone? Section 10(2): the court may, on the petition of either party and on being satisfied of the truth of the statements, rescind the decree if it considers it just and reasonable.

What does two years of inaction produce? Section 13(1A): either party may petition for divorce where there has been no resumption of cohabitation for one year or upwards after a decree of judicial separation, or no restitution of conjugal rights for one year or upwards after a decree under section 9.

What it does NOT mean

Restitution is not specific performance against the person. It is executed under Order XXI Rule 32 by attachment of property.

The burden is not on the petitioner. The Explanation puts the burden of proving a reasonable excuse on the spouse who withdrew.

Judicial separation is not divorce. The marriage subsists; only the duty to cohabit is suspended.

Its grounds are not narrower than divorce. They are the same grounds, in section 13(1) and, for a wife, section 13(2).

A decree of judicial separation is not final. It may be rescinded under section 10(2).

Section 13(1A) is not a fault ground. Either party may use it, including the one who disobeyed the decree.

T. Sareetha is not the law. Saroj Rani overruled it and approved Harvinder Kaur.

Quick revision

• s.9: where either spouse has withdrawn from the society of the other without reasonable excuse, the aggrieved party may petition, and the court decrees restitution if satisfied of the statements and that there is no legal ground against it. The Explanation puts the burden of proving reasonable excuse on the person who withdrew.
• Execution: Order XXI Rule 32 of the Code of Civil Procedure, by attachment of property, not against the person.
• The constitutional debate: T. Sareetha held s.9 void; Harvinder Kaur disagreed; Saroj Rani upheld the section, overruling T. Sareetha and approving Harvinder Kaur.
• s.10: judicial separation on any ground on which a divorce petition might be presented under s.13(1), and for a wife under s.13(2); thereafter it is no longer obligatory for the petitioner to cohabit, but the marriage subsists. s.10(2): the decree may be rescinded.
• Both decrees ripen: s.13(1A) gives either party divorce after one year without resumption of cohabitation or without restitution.

Test yourself

1. When can a Hindu spouse obtain a decree for restitution of conjugal rights? Where the other spouse has, without reasonable excuse, withdrawn from his or her society, and the court is satisfied of the truth of the statements made in the petition and that there is no legal ground why the application should not be granted.

2. Who bears the burden of proving reasonable excuse? The person who has withdrawn from the society of the other, by the Explanation to section 9.

3. Is section 9 constitutional? Yes. In Saroj Rani v. Sudarshan Kumar Chadha the Supreme Court upheld it, overruling T. Sareetha v. T. Venkata Subbaiah and approving Harvinder Kaur v. Harmander Singh Choudhry. The remedy serves the social purpose of preventing the breakdown of the marriage, and the decree is enforced not against the person but by attachment of property under Order XXI Rule 32 of the Code of Civil Procedure.

4. Distinguish judicial separation from divorce. Judicial separation suspends the obligation to cohabit but the marriage subsists, so neither party may remarry, and the decree may be rescinded under section 10(2). Divorce dissolves the marriage and leaves the parties free to remarry, subject to section 15. The grounds are the same, and after one year without resumption of cohabitation a decree of judicial separation itself becomes a ground of divorce under section 13(1A).

Why it matters here. It is the only place cruelty is given usable content, and the last item is the bridge to the breakdown discussion below. Note the two words to write before reciting any of it: illustrative and not exhaustive. The Court refused to define cruelty and a student who presents the fourteen as a closed list has misread the case.

Constructive desertion and cruelty. MU asks about "constructive desertion" (June 2018 Q1.4), and it belongs beside cruelty. Desertion is not merely leaving; where one spouse by conduct makes it impossible for the other to remain, the spouse who drives the other out is the deserter, even though it was the other who physically departed. The same conduct will usually be cruelty as well.

(ib) Desertion

That the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

The Explanation at the end of section 13(1) defines it: desertion means the desertion of the petitioner by the other party without reasonable cause and without the consent or against the wish of the petitioner, and includes the wilful neglect of the petitioner by the other party.

Take the elements from that Explanation and from the clause together:

• the fact of separation;
• the intention to desert, that is, to bring cohabitation permanently to an end;
• absence of reasonable cause;
• absence of the petitioner's consent; and
• continuity for two years or more immediately before the petition.

All five must run together for the whole two years. If the deserting spouse offers a genuine reconciliation and it is refused, or if the parties resume cohabitation, the desertion is interrupted and the clock restarts. The words "wilful neglect" are what let a spouse who never left the house still be a deserter.

(ii) Conversion

That the other party has ceased to be a Hindu by conversion to another religion.

Two things to hold. The ground belongs to the spouse who remains a Hindu, not to the convert. And the conversion does not by itself dissolve the marriage: it gives a ground, which somebody must come to court and use. That is the point Sarla Mudgal turns on, and it is dealt with in [Bigamy and the Punishments the Act Imposes].

(iii) Unsoundness of mind and mental disorder

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

The clause, substituted in 1976, carries its own Explanation. "Mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind, and includes schizophrenia. "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, whether or not it requires or is susceptible to medical treatment.

The test is not the diagnosis but the effect: the disorder must be of such a kind and extent that the petitioner cannot reasonably be expected to live with the respondent. A named illness proves nothing by itself.

(iv) Omitted

Clause (iv) was the ground of leprosy, and it was omitted by Act 6 of 2019 with effect from 1 March 2019. It is no longer a ground of divorce, and a book or a lecture that still lists it is out of date. The number is left empty in the Act.

(v) Venereal disease

That the other party has been suffering from venereal disease in a communicable form. Words requiring a minimum period were omitted in 1976, so the ground now turns on the disease being communicable rather than on how long it has lasted.

(vi) Renunciation

That the other party has renounced the world by entering any religious order.

Both limbs are needed. A person who becomes devout, or withdraws from family life, has not renounced the world within the clause; there must be entry into a religious order by the recognised rites.

(vii) Presumed death

That the other party 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.

Note that this is a ground of divorce and not merely a presumption of death. The petitioner is expected to take a decree rather than remarry on the strength of the presumption alone, because if the missing spouse reappears a remarriage contracted without a decree would be bigamous.

Clauses (viii) and (ix) as originally enacted were omitted by Act 44 of 1964, which converted them into what is now section 13(1A).

Section 13(1A): the failed decree

Either party may petition for divorce on the ground:

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

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

The period was reduced from two years to one in 1976.

This is not a fault ground, and that is what makes it important. Either party may use it, including the party who disobeyed the decree. That is precisely what happened in Saroj Rani, discussed in the previous chapter, where the husband consented to a restitution decree and then used its non-compliance to obtain a divorce. The only control is section 23(1)(a), the bar on a petitioner taking advantage of his own wrong, and the Supreme Court held there that mere non-compliance with the decree is not by itself such a "wrong".

Section 13(2): the wife's additional grounds

A wife may also present a petition on four further grounds.

(i) A pre-Act polygamous marriage. In the case of a marriage solemnized before the commencement of the Act, that the husband had married again before the commencement, or that any other wife married before the commencement was alive at the time of the petitioner's marriage; provided in either case that the other wife is alive at the time the petition is presented.

This is a transitional provision. Polygamous Hindu marriages before 1955 were valid, and this clause gave the wives of such marriages a way out.

(ii) Rape, sodomy or bestiality. That the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality. The word "bestiality" was substituted in 1976.

(iii) A maintenance order not followed by cohabitation. That in a suit under section 18 of the Hindu Adoptions and Maintenance Act 1956, or in a proceeding under section 125 of the Code of Criminal Procedure 1973 (or the corresponding section 488 of the 1898 Code), a decree or order has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart, and that since that decree or order cohabitation has not been resumed for one year or upwards.

(iv) Repudiation of a child marriage. 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 that age but before attaining the age of eighteen. The Explanation provides that the clause applies whether the marriage was solemnized before or after the 1976 amendment.

This is the "option of puberty" in statutory form, and it is much narrower than the remedy in section 3 of the Prohibition of Child Marriage Act 2006, taken in [Child Marriage, and the Prohibition of Child Marriage Act 2006]. Both survive, and a well-advised petitioner uses the later Act.

Irretrievable breakdown: what the Act does not contain

MU sets this constantly and the answer has three steps.

It is not a ground. Section 13 is a fault-based section, and breakdown appears nowhere in it.

The Supreme Court has asked Parliament to add it. In Naveen Kohli, AIR 2006 SC 1675, decided on 21 March 2006, the Court held that irretrievable breakdown is not a ground under the Act, that whether to add it is for the Legislature, and recorded its considered opinion that the Legislature must consider irretrievable breakdown as a ground for divorce under the Act. It set out at length the recommendation of the 71st Report of the Law Commission of India, submitted to the Government on 7 April 1978, which had examined the fault theory against the breakdown theory. Parliament has not acted.

What the Supreme Court does instead. In Shilpa Sailesh, decided on 1 May 2023, a Constitution Bench held that the Supreme Court may, under Article 142(1) of the Constitution, dissolve a marriage on the ground of complete and irretrievable breakdown, even where the other spouse opposes. That is a constitutional power belonging to one court, not a statutory ground available to any court. It is set out in the next chapter.

Written in that order, the answer is complete and consistent.

A worked example

Latika has been married ten years. Her husband has been cruel and, after three years apart, has now converted to Islam and taken a second wife. She has an order of maintenance in her favour, and they have not cohabited since.

Which grounds are open to her? Cruelty, section 13(1)(ia); desertion for a continuous period of not less than two years, section 13(1)(ib); and conversion, that he has ceased to be a Hindu by conversion to another religion, section 13(1)(ii).

What is cruelty? Samar Ghosh v. Jaya Ghosh refuses to define it and gives fourteen illustrative instances, so an answer states that it is not exhaustively defined and gives some of them.

And his second marriage? It does not dissolve the first: on Sarla Mudgal the conversion gives her a ground of divorce and makes his second marriage void and bigamous, taken in [Bigamy and the Punishments the Act Imposes].

Has she any additional ground as a wife? Section 13(2)(iii): that in a suit or proceeding a decree or order awarding maintenance has been passed against the husband, and that since then cohabitation has not been resumed for one year or upwards.

And the maintenance order alone? Not enough by itself; the year without cohabitation must have passed.

Suppose there had been a decree of judicial separation three years ago. Section 13(1A)(i): either party may petition where there has been no resumption of cohabitation for one year or upwards after such a decree, whether or not either was at fault.

And if he had simply disappeared? Section 13(1)(vii): that he has not been heard of as being alive for seven years or more by those who would naturally have heard of him.

What about irretrievable breakdown? It is not a statutory ground. Only the Supreme Court may dissolve on that footing, under Article 142, on Shilpa Sailesh, taken in [Divorce by Mutual Consent, Alternate Relief and Remarriage].

What it does NOT mean

Adultery is not a course of conduct. A single voluntary act of sexual intercourse with any person other than the spouse is enough under section 13(1)(i).

Cruelty is not defined. Samar Ghosh gives illustrations and expressly declines to define it exhaustively.

Desertion is not merely living apart. It is desertion for a continuous period of not less than two years immediately preceding the petition, and the Explanation includes wilful neglect.

Conversion does not dissolve the marriage. It gives the other spouse a ground, on Sarla Mudgal.

Mental disorder is not a ground by its label. The test is whether it is of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Clause (iv) is empty. The leprosy ground was omitted with effect from 1 March 2019.

Section 13(1A) is not confined to the innocent party. Either party may use it.

Irretrievable breakdown is not in the Act. The Law Commission has recommended it; Parliament has not enacted it.

Quick revision

• s.13(1), grounds open to either spouse: (i) adultery, a single voluntary act; (ia) cruelty; (ib) desertion for not less than two years; (ii) conversion; (iii) mental disorder of a kind and extent such that the petitioner cannot reasonably be expected to live with the respondent; (iv) omitted with effect from 1 March 2019; (v) venereal disease in a communicable form; (vi) renunciation of the world by entering a religious order; (vii) not heard of as alive for seven years.
• Samar Ghosh: fourteen illustrative instances of mental cruelty, and a refusal to define it exhaustively.
• s.13(1A): either party may petition where there has been no resumption of cohabitation for one year after a decree of judicial separation, or no restitution for one year after a decree under s.9.
• s.13(2), the wife's additional grounds: a pre-Act second marriage of the husband, the other wife being alive; the husband guilty of rape, sodomy or bestiality; a decree or order of maintenance followed by no cohabitation for a year; and repudiation of a marriage contracted before she was fifteen, exercised before she is eighteen.
• Irretrievable breakdown: not a statutory ground.

Test yourself

1. State the grounds of divorce available to either spouse. Adultery; cruelty; desertion for a continuous period of not less than two years immediately preceding the presentation of the petition; ceasing to be a Hindu by conversion to another religion; incurable unsoundness of mind or continuous or intermittent mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent; venereal disease in a communicable form; and renunciation of the world by entering a religious order; and that the respondent has not been heard of as being alive for seven years or more.

2. What are the grounds available to a wife alone? That the husband had married again before the commencement of the Act, or that any other wife of his married before that commencement was alive at the time of the petitioner's marriage, that wife being alive at the presentation of the petition; that the husband has since the marriage been guilty of rape, sodomy or bestiality; that a decree or order awarding maintenance has been passed against him and cohabitation has not been resumed for one year or upwards since; and that her marriage was solemnized before she attained fifteen and she repudiated it after attaining fifteen but before eighteen.

3. What is the effect of section 13(1A)? Either party to a marriage may present a petition for divorce on the ground that there has been no resumption of cohabitation for one year or upwards after the passing of a decree of judicial separation, or no restitution of conjugal rights for one year or upwards after a decree for restitution. The party who disobeyed the decree may also apply.

4. Is cruelty defined by the Act? No. In Samar Ghosh v. Jaya Ghosh the Supreme Court set out fourteen illustrative instances of mental cruelty and expressly declined to give an exhaustive definition, holding that no uniform standard can be laid down and that each case turns on its own facts.

The six months: mandatory or directory

This is the question MU sets, and it has a clear answer.

Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, decided on 12 September 2017.

Facts. The parties married in January 1994 and had two children, born in 1995 and 2003. They had lived separately since 2008, and their disputes had produced both civil and criminal proceedings. On 28 April 2017 they arrived at a settlement resolving everything between them and sought a divorce by mutual consent, asking that the six-month wait for the second motion be waived.

Held. The period of six months in section 13B(2) is directory and not mandatory. Where there is no possibility of the parties resuming cohabitation and there are chances of alternative rehabilitation, it is open to the court to waive it in the exercise of its discretion. The Court added that the waiver application may be filed one week after the first motion, giving reasons; that the discretion is the concerned court's; and that proceedings may be conducted by video conferencing, and representation permitted through close relations such as parents or siblings where a party cannot appear in person for a just and valid reason.

Why it matters here. The waiver is available in the family court itself. It does not require the parties to reach the Supreme Court, and that is the practical difference between this case and the one that follows.

Article 142, and irretrievable breakdown

Now the harder half.

The Act contains no ground of irretrievable breakdown of marriage. Every ground in section 13(1) and 13(2) requires fault or a specific state of affairs, and Parliament has never added breakdown to the list despite repeated recommendations.

Shilpa Sailesh v. Varun Sreenivasan, Transfer Petition (Civil) No. 1118 of 2014, decided on 1 May 2023 by a Constitution Bench of five judges: Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari JJ.

Facts. A reference to a larger Bench, arising because benches of this Court, some High Courts and even some family courts had been dispensing with or reducing the six-month period where there was no possibility of the spouses cohabiting, while earlier decisions had said the power did not exist. Two questions were referred.

Held. Both questions were answered in the affirmative:

1. The Supreme Court may, under Article 142(1) of the Constitution, waive the procedural requirement of the second motion under section 13B(2). The power is to be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh and in Amit Kumar. The Court may also quash and set aside other proceedings and orders, including criminal proceedings.
2. The Supreme Court may, under Article 142(1), dissolve a marriage on the ground of its complete and irretrievable breakdown, even where the other spouse opposes the prayer. The discretion is exercised to do complete justice where the facts established show that the marriage has completely failed, that there is no possibility that the parties will cohabit, and that continuation of the formal legal relationship is unjustified. As a court of equity, the Court must also balance the circumstances and background of the party opposing dissolution.

How to write this in an answer

State it as two propositions and then reconcile them.

Proposition one. Irretrievable breakdown is not a ground of divorce under the Hindu Marriage Act. A family court or a High Court cannot grant a divorce on that basis alone, because it can only apply the statute.

Proposition two. The Supreme Court can dissolve such a marriage under Article 142(1), which empowers it to pass any decree necessary for doing complete justice, and Shilpa Sailesh holds that it may do so even over one spouse's objection.

Why it matters here. It resolves what otherwise reads as a contradiction. The power is constitutional, not statutory. It belongs to one court only and is discretionary. It does not add a ground to section 13, and it does not become available to any other court. So the law of divorce for everyone except a litigant who reaches the Supreme Court remains the law of fault plus mutual consent.

Section 13A: alternate relief

Section 13A provides that in any proceeding under the Act, on a petition for dissolution of marriage by a decree of divorce, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

There is an exception, and it is examinable: section 13A does not apply where the petition is founded on the grounds in clauses (ii), (vi) and (vii) of section 13(1), that is, conversion to another religion, renunciation of the world by entering a religious order, and not having been heard of as alive for seven years.

The logic is that for those three grounds a lesser decree would be pointless. A spouse who has converted, renounced the world or disappeared for seven years is not going to be brought back by an order that merely suspends cohabitation.

Section 13A is one of the 1976 reconciliation provisions and works with section 23(2), which requires the court to attempt reconciliation. It lets a court that thinks the marriage may yet be saved give the lesser relief without dismissing the petition.

Section 14: no divorce within one year of marriage

Section 14(1) provides that it shall not be competent for any court to entertain a petition for dissolution of marriage unless at the date of the presentation of the petition one year has elapsed since the date of the marriage.

The proviso allows the court, on an application made in accordance with rules made by the High Court, to allow a petition to be presented before one year has elapsed on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent.

The proviso then guards against abuse of the leave. If at the hearing it appears that the petitioner obtained leave 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 take effect until the expiry of one year from the date of the marriage; or it may dismiss the petition without prejudice to a fresh petition brought after the year on the same or substantially the same facts.

Section 14(2) directs the court, in disposing of an application for leave, to have regard to the interests of any children of the marriage and to whether there is a reasonable probability of a reconciliation before the year expires.

The one-year bar applies to divorce. It does not bar a petition for judicial separation, for restitution, or for a decree of nullity. That distinction is a favourite one-sentence question.

Section 15: when a divorced person may marry again

Section 15 provides that when a marriage has been dissolved by a decree of divorce, and either there is no right of appeal against the decree, or the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it is lawful for either party to marry again.

The section is about finality. A decree that is still open to appeal, or under appeal, is not a safe foundation for a second marriage, because if it is set aside the second marriage would have been contracted during the subsistence of the first. Section 15 therefore waits for the appellate route to close.

A worked example

Anita and Vikram married in June 2023 and separated in August 2023. In February 2024 they agree to divorce and file a joint petition. They want it over quickly.

Can they file at all? Section 14 bars a petition for divorce within one year of the marriage, unless the court allows it on the ground of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent, and even then it may refuse a decree until the year is out if it finds misrepresentation or concealment. Their marriage is under a year old at the time they agree, so leave is needed.

What must a section 13B petition show? 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.

Have they lived separately for a year? From August 2023, so not until August 2024.

What is the two-motion requirement? Section 13B(2): on the motion of both parties made not earlier than six months after the presentation of the petition and not later than eighteen months, and if the petition is not withdrawn in the meantime, the court passes the decree. Consent must be alive at the second motion.

Can the six months be waived? Amardeep Singh v. Harveen Kaur: the period is directory, not mandatory, and the family court may waive it, on conditions the judgment sets out, including that the statutory period under section 13B(1) has expired before the first motion, that mediation has failed, and that the parties have genuinely settled maintenance and custody. The waiver application may be filed a week after the first motion.

What if only one of them later changes their mind? The decree cannot be passed: consent must subsist at the second motion.

And if they say the marriage has irretrievably broken down? That is not a ground in the Act. On Shilpa Sailesh v. Varun Sreenivasan the Supreme Court may dissolve a marriage on that basis under Article 142, and may do so even over the objection of a party; a family court cannot.

Suppose the court thinks separation would be better than divorce. Section 13A: on a petition for divorce it may pass a decree for judicial separation instead, except where the ground is conversion, renunciation or presumed death.

When may they remarry? Section 15: when the marriage has been dissolved and either there is no right of appeal, or the time for appealing has expired without an appeal, or an appeal has been dismissed.

What it does NOT mean

Section 13B does not require a year's separation before the agreement. It requires that they have been living separately for a year or more when the petition is presented.

"Living separately" is not living in different houses. It means not living as husband and wife.

The six-month period is not mandatory. On Amardeep Singh it is directory and may be waived by the family court on the conditions there set out.

Waiver is not automatic. It is for the court, on an application, and only where the conditions are satisfied.

A petition once filed is not irrevocable. Either party may withdraw before the second motion, and consent must subsist at it.

Irretrievable breakdown is not a ground. Only the Supreme Court may dissolve on it, under Article 142.

Section 14 is not an absolute bar. Leave may be given for exceptional hardship or exceptional depravity.

Section 15 does not require an appeal to be filed. It requires that there be no right of appeal, or that the time has expired, or that an appeal has been dismissed.

Quick revision

• s.13B(1): a joint petition on the ground that the parties have been living separately for one year or more, that they have not been able to live together, and that they have mutually agreed to dissolve the marriage.
• s.13B(2): a second motion by both parties not earlier than six months and not later than eighteen months after presentation, the petition not being withdrawn; consent must subsist.
• Amardeep Singh: the six-month period is directory, and the family court may waive it, the application being made a week after the first motion, where mediation has failed and maintenance and custody are settled.
• Shilpa Sailesh: irretrievable breakdown is not a statutory ground; the Supreme Court may dissolve on it under Article 142, even over a party's objection.
• s.13A: on a petition for divorce the court may grant judicial separation instead, except where the ground is conversion, renunciation or presumed death.
• s.14: no petition within one year of the marriage, unless leave is given for exceptional hardship or exceptional depravity.
• s.15: remarriage is lawful when there is no right of appeal, or the time to appeal has expired, or an appeal has been dismissed.

Test yourself

1. What must be proved for divorce by mutual consent? That the parties 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. On the motion of both parties made not earlier than six months and not later than eighteen months after presentation of the petition, and the petition not having been withdrawn, the court passes the decree.

2. Is the six-month period mandatory? No. In Amardeep Singh v. Harveen Kaur the Supreme Court held it directory, and laid down that a family court may waive it where the statutory period under section 13B(1) has expired before the first motion, mediation and conciliation have failed, the parties have genuinely settled their differences including maintenance and custody, and the waiting period would only prolong their agony; the application may be moved a week after the first motion.

3. Is irretrievable breakdown a ground of divorce? No. It is not a ground under the Hindu Marriage Act. In Shilpa Sailesh v. Varun Sreenivasan the Supreme Court held that it may dissolve a marriage on that basis in exercise of its power under Article 142 of the Constitution, and may do so even if one party opposes; no other court has that power.

4. When may a divorced person marry again? Under section 15, when the 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, the time for appealing has expired without an appeal having been presented, or an appeal has been presented and dismissed.

Conversion does not cure it

The commonest way a second marriage is attempted is by conversion, and the Supreme Court has closed it.

Sarla Mudgal v. Union of India, AIR 1995 SC 1531, decided on 10 May 1995.

Facts. Four petitions under Article 32. In the lead case Meena Mathur had married Jitender Mathur in 1978 and they had three children. In early 1988 she learned that her husband had gone through a second marriage with another woman, both of them having converted to Islam first. The husband's position was that, having embraced Islam, he could have four wives, notwithstanding that his first wife remained a Hindu. In a companion petition the second wife complained that she was now maintained by nobody and protected by neither personal law.

Held. Under Hindu personal law as it stood before the codification of 1955, a Hindu marriage continued to subsist even after one spouse converted to Islam; there was no automatic dissolution, and to allow a convert to dissolve the marriage by adopting a new personal law would destroy the existing rights of the spouse who remains Hindu. The position is no better for the apostate after the 1955 Act, because a marriage can be dissolved only by a decree of divorce on a ground in section 13, and one of those grounds is precisely that the other party has ceased to be a Hindu by conversion. It follows that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of the penal provision, and he is guilty of bigamy. The Court distinguished the Privy Council's decision in Attorney General for Ceylon. Both judges went on to urge the Government to move towards a uniform civil code, and to consider legislation providing that a person who changes religion may not marry again without first divorcing.

Why it matters here. The reasoning is worth reproducing because it is short and it is complete. Conversion gives the other spouse a ground of divorce; it does not dissolve anything by itself. Until a decree is passed the convert is still married. A second marriage while still married is void and bigamous. That is the whole answer, and it is also one of the two or three judgments always cited on the Uniform Civil Code, taken again in the Uniform Civil Code chapter of Module IV.

The penal provisions as they now stand

The Bharatiya Nyaya Sanhita 2023 came into force on 1 July 2024, except for one sub-section not relevant here, and replaced the Indian Penal Code 1860.

Section 82(1), which replaces section 494 of the Penal Code: whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

The Exception to section 82(1) preserves the two familiar escapes. The sub-section does not extend to a person whose marriage with the earlier spouse has been declared void by a Court of competent jurisdiction; nor to a person who contracts a marriage during the life of a former spouse where that spouse has been continually absent for seven years and has not been heard of as being alive within that time, provided the person contracting the subsequent marriage informs the other party of the real state of facts so far as it is within his or her knowledge before the marriage takes place.

That proviso is worth pausing on beside section 13(1)(vii). Seven years of absence gives a ground of divorce under the Hindu Marriage Act, and gives a defence to bigamy under the Sanhita only if the facts were disclosed to the new spouse.

Section 82(2), which replaces section 495: whoever commits the offence under sub-section (1) having concealed from the person with whom the subsequent marriage is contracted the fact of the former marriage shall be punished with imprisonment which may extend to ten years, and shall also be liable to fine.

Section 83, which replaces section 496: whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married knowing that he is not thereby lawfully married, is punishable with imprisonment which may extend to seven years and a fine. This catches the person who stages a marriage that is no marriage, which is a different wrong from bigamy.

Section 81, replacing section 493, punishes a man who by deceit causes a woman who is not lawfully married to him to believe that she is, and to cohabit with him in that belief.

Section 18: the other conditions

Section 18 punishes a person who procures a marriage of himself or herself to be solemnized under the Act in contravention of the conditions in clauses (iii), (iv) and (v) of section 5.

Clause (iii), the age condition. Rigorous imprisonment which may extend to two years, or fine which may extend to one lakh rupees, or both.

Clause (iv) or (v), prohibited relationship or sapinda. Simple imprisonment which may extend to one month, or fine which may extend to one thousand rupees, or both.

Two observations that earn marks.

The punishments are wildly out of proportion to each other, and in the opposite direction to the civil consequences. A sapinda marriage is void and carries a month and a thousand rupees. An underage marriage is valid under this Act and carries two years and a lakh. The explanation is historical: the age penalty was raised when the law on child marriage was strengthened, and the older penalty for the prohibited degrees was left where it stood.

The offence is committed by the person who procures his or her own marriage. Section 18 punishes the parties, not the priest or the parents. Those are reached, for a child marriage, by sections 10 and 11 of the Prohibition of Child Marriage Act 2006.

Clause (i), a spouse living, is not in section 18 at all, because it is dealt with by section 17 and the Sanhita.

Section 30, and the sections around it

Section 30 is repealed. It was the repealing section of the Act itself and was repealed by the Repealing and Amending Act. The number is dead and is noted here so a reader who reaches the end of the Act knows nothing is missing.

Section 29 saves several things and one of them belongs in this chapter. Section 29(1) provides that a marriage solemnized between Hindus before the commencement of the Act, otherwise valid, shall not be deemed invalid or ever to have been invalid by reason only that the parties belonged to the same gotra or pravara, or to different religions, castes or sub-divisions of the same caste.

That is the statutory end of gotra exogamy and of caste as a bar to a Hindu marriage, and it should be read with [Religious Ritual and the Rules of Marriage]. Section 29(2) preserves any right recognised by custom or conferred by a special enactment to obtain the dissolution of a Hindu marriage, which is how customary divorce survives in the communities that had it.

A worked example

Vijay married Sudha under Hindu rites in 2015. In 2022 he converted to Islam and went through a nikah with Farida. Sudha remains a Hindu. She prosecutes him and also wants relief in the matrimonial court. At the trial the only evidence of the second marriage is that Vijay and Farida live together and call each other husband and wife.

Is the second marriage valid? No. On Sarla Mudgal v. Union of India, conversion to Islam does not dissolve a Hindu marriage. Vijay is still married to Sudha, so section 17 makes the second marriage void, and the penal provisions apply.

Will the prosecution succeed on this evidence? Probably not. On Bhaurao Shankar Lokhande v. State of Maharashtra the prosecution must prove that the second marriage was solemnized with the proper ceremonies; cohabitation and reputation are not enough.

Under which provision is he charged? Section 82(1) of the Bharatiya Nyaya Sanhita 2023, seven years and fine; and if he concealed the first marriage from Farida, section 82(2), ten years and fine.

What relief has Sudha in the matrimonial court? Divorce under section 13(1)(ii), that he has ceased to be a Hindu by conversion; and if she prefers, judicial separation on the same ground under section 10.

Suppose instead Vijay had married a woman within the prohibited degrees. That is section 5(iv), the marriage is void under section 11, and section 18(b) punishes him with simple imprisonment up to one month, or a fine up to one thousand rupees, or both.

And if his bride had been seventeen? Section 18(a): rigorous imprisonment up to two years, or a fine up to one lakh rupees, or both, and the marriage is not void under section 11.

What it does NOT mean

Section 17 does not create the offence. It makes the second marriage void and applies the penal law to it.

A second marriage is not proved by living together. The ceremonies of the second marriage must be proved, which is what Bhaurao Lokhande decides and why most prosecutions fail.

Conversion does not dissolve the first marriage. On Sarla Mudgal it gives the other spouse a ground of divorce; the convert remains married, which is why the second marriage is bigamous.

Section 18 does not affect validity. It punishes breach of the age, prohibited-degree and sapinda conditions; the effect on validity is in sections 11 and 12.

A marriage under the age condition is not void. Section 11 does not include section 5(iii).

The penal provisions are no longer in the Penal Code. They are sections 82(1) and 82(2) of the Bharatiya Nyaya Sanhita 2023.

Quick revision

• s.17: any marriage between two Hindus solemnized after the commencement of the Act is void if at its date either party had a husband or wife living, and the penal law applies accordingly.
• Proof: a prosecution must prove the ceremonies of the second marriage; Bhaurao Shankar Lokhande v. State of Maharashtra is the authority, and it is why most such prosecutions fail.
• Sarla Mudgal v. Union of India: conversion to Islam does not dissolve a Hindu marriage; it gives the other spouse a ground of divorce under s.13(1)(ii), so the convert's second marriage is void and bigamous.
• The penal law now: s.82(1) of the Bharatiya Nyaya Sanhita 2023, seven years and fine; s.82(2), where the first marriage is concealed from the person married, ten years and fine. The exceptions are a decree of nullity and seven years' unexplained absence coupled with disclosure to the person married.
• s.18: punishment for contravening the conditions of s.5: clause (a) for the age condition, two years' rigorous imprisonment or a fine up to one lakh rupees or both; clause (b) for the sapinda and prohibited-degree conditions, one month or a fine up to one thousand rupees or both.
• s.30: the repeal section, which carries the savings.

Test yourself

1. What is the effect of a second marriage during the subsistence of the first? By section 17 it is void, and the provisions of the penal law apply. The offence is now punishable under section 82 of the Bharatiya Nyaya Sanhita 2023.

2. Why do bigamy prosecutions often fail? Because the prosecution must prove that the second marriage was solemnized with the proper ceremonies, and mere cohabitation or a public declaration is not enough. Bhaurao Shankar Lokhande v. State of Maharashtra is the leading authority.

3. Does conversion to Islam dissolve a Hindu marriage? No. On Sarla Mudgal v. Union of India the first marriage continues; the conversion gives the other spouse a ground of divorce under section 13(1)(ii), and a second marriage contracted by the convert while the first subsists is void and bigamous.

4. What does section 18 punish? A breach of the conditions in section 5. Contravention of the age condition in section 5(iii) is punishable with rigorous imprisonment up to two years, or a fine up to one lakh rupees, or both; contravention of the sapinda condition in section 5(v) or of the prohibited-degrees condition in section 5(iv) is punishable with simple imprisonment up to one month, or a fine up to one thousand rupees, or both.

as, having regard to the respondent's own income and other property, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, seems 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.

Four things on the face of sub-section (1)

"At the time of passing any decree or at any time subsequent thereto." The application may be made later, after the decree. What it may not be made without is a decree, and that is the practical limit of the section.

The words "while the applicant remains unmarried" were omitted by the 1976 amendment. Remarriage is now dealt with under sub-section (3) as a ground to vary or rescind, rather than as an automatic cut-off.

The four factors are cumulative and one of them is conduct. The words "the conduct of the parties and other circumstances of the case" were inserted in 1976. So conduct is expressly relevant to the amount, though it is not a bar.

A charge on immovable property. This is what makes an order under section 25 worth having. A monthly sum from a person who disappears is worth nothing; a charge on land survives him.

Variation and rescission

Section 25(2). If the court is satisfied that there is a change in the circumstances of either party at any time after an order under sub-section (1), it may at the instance of either party vary, modify or rescind the order as it deems just.

Section 25(3). If the court is satisfied that the party in whose favour the order was made:

• has re-married; or
• being the wife, has not remained chaste; or
• being the husband, has had sexual intercourse with any woman outside wedlock,

it may, at the instance of the other party, vary, modify or rescind the order as it deems just.

Read sub-section (3) carefully, because it is the most examinable sentence in the chapter and it is not what most students expect.

The consequence is not automatic. Before 1976 the words were that the court "shall rescind the order"; they were substituted so that the court now may vary, modify or rescind, in such manner as it deems just. So unchastity or remarriage opens the order to review; it does not end it by operation of law.

The provision is also, on its face, unequal in expression. The wife's conduct is described as not remaining chaste, the husband's as sexual intercourse outside wedlock. Whether those come to the same thing is a fair question for an essay, and the honest answer is that the drafting reflects the standards of 1955 and has never been redrafted.

Section 26: custody of children

Section 26 provides that in any proceeding under the Act the court may, from time to time, pass such interim orders and make such provisions in the decree as it deems just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible; and may after the decree, on application, make from time to time all such orders and provisions with respect to custody, maintenance and education as might have been made by the decree or by interim orders had the proceeding still been pending; and may from time to time revoke, suspend or vary any such orders.

Four features are worth naming.

Only minor children, and only in a proceeding under this Act. A custody dispute where there is no matrimonial petition goes to the Guardians and Wards Act 1890.

Interim, final and post-decree. The section covers all three stages expressly, so the court does not become functus officio on passing the decree.

The child's wishes are named in the section itself, "consistently with their wishes, wherever possible". That is unusual for a statute of 1955 and it should be pointed out.

Everything is variable. The words "from time to time" appear three times, and orders may be revoked, suspended or varied. Custody orders are never final in the way a decree is, because the welfare of a child is a moving fact.

Section 26 does not itself state the welfare principle in terms. That comes from section 13 of the Hindu Minority and Guardianship Act 1956 and section 17 of the Guardians and Wards Act 1890, and the whole subject is drawn together in the custody chapter of Module IV.

Section 27: disposal of property

Section 27 provides that in any proceeding under the 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.

The section is short and its limits are the point.

It reaches only property presented at or about the time of the marriage. Not property acquired afterwards, and not property bought during the marriage.

It reaches only property belonging jointly to both. Property presented to the wife alone is her stridhana and is not within the section; property presented to the husband alone is his.

It operates only through the decree, in a proceeding under the Act.

So section 27 is not a matrimonial property regime. India has none, and that is why MU sets "Existing Legislative Provisions as to Settlement of Spousal Property" as a short note, as it did in February 2023. The honest answer to that question is that the provisions are thin: section 27 of this Act for joint wedding presents, section 6 of the Dowry Prohibition Act 1961 for dowry received by anybody else, which must be transferred to the wife, and the general law of property for everything else. There is no statutory division of matrimonial assets on divorce in India.

That is a real gap and it is worth saying so. A spouse who has spent a marriage running a household and has no title to anything acquires no share in it by the fact of the marriage.

How the four sections fit with the rest of the law

A student should be able to say where else a claim could go.

The lesson of the table is that this Act deals with money and children only as an incident of matrimonial litigation. Every free-standing claim lives in another statute.

A worked example

Nisha has filed for divorce. She has no income; her husband earns well. They have a daughter of six. At the wedding both families gave jewellery which is now in the husband's custody.

While the petition is pending. Section 24: where it appears that either the wife or the husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding, the court may order the respondent to pay the expenses of the proceeding and a monthly sum, having regard to the petitioner's own income and the respondent's income. The application is to be disposed of within sixty days from the date of service of notice as far as possible.

Is it only for the wife? No. It is expressed for either spouse.

At the end of the case. Section 25: at the time of passing any decree or at any time subsequent, the court may order the respondent to pay a gross sum or a monthly or periodical sum for a term not exceeding the applicant's life, having regard to the respondent's income and other property, the applicant's own, the conduct of the parties and other circumstances, and may secure it by a charge on immovable property.

Can it be changed later? Section 25(2): on a change in circumstances the court may vary, modify or rescind the order. Section 25(3): if the party in whose favour it was made remarries, or, being the wife, is not remaining chaste, or, being the husband, has sexual intercourse with a woman outside wedlock, the court may vary, modify or rescind it as it thinks just.

The daughter. Section 26: the court may pass interim orders and make provisions in the decree about the custody, maintenance and education of minor children, consistently with their wishes wherever possible, may make such orders after the decree, and may revoke, suspend or vary them; an application about maintenance and education pending the proceeding is to be disposed of within sixty days of service.

The jewellery. Section 27: in any proceeding under the 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.

And what section 27 does not reach. Property that is hers alone is not "jointly" owned, and her remedy for that lies elsewhere, in the Domestic Violence Act and in the Dowry Prohibition Act.

What it does NOT mean

Section 24 is not a wife's remedy. It is available to either spouse who lacks sufficient independent income.

It is not a maintenance order for the future. It is pendente lite, and it includes the expenses of the proceeding.

Section 25 is not confined to the time of the decree. The court may act at the time of passing any decree or at any time subsequent to it.

Permanent alimony is not necessarily permanent. It may be a gross sum, and any periodical sum is for a term not exceeding the applicant's life, and it may be varied or rescinded.

Rescission on remarriage or unchastity is not automatic. The court may vary, modify or rescind as it thinks just.

Section 26 is not limited to the decree. Orders may be made before it, in it, and after it, and may be revoked, suspended or varied.

Section 27 does not divide all matrimonial property. It reaches property presented at or about the time of marriage which belongs jointly to both.

Quick revision

• s.24, maintenance pendente lite: for either spouse with no independent income sufficient for support and the necessary expenses; the court orders the expenses of the proceeding and a monthly sum, having regard to both incomes; to be disposed of within sixty days of service of notice as far as possible.
• s.25, permanent alimony and maintenance: at the decree or at any time subsequent; a gross sum or a periodical sum for a term not exceeding the applicant's life; regard to income and other property of both, the conduct of the parties and other circumstances; may be secured by a charge on immovable property; may be varied, modified or rescinded on changed circumstances, and on remarriage or unchastity as the court thinks just.
• s.26, custody: interim orders, provisions in the decree and orders after it, about custody, maintenance and education of minor children, consistently with their wishes wherever possible, revocable and variable; the interim application to be disposed of within sixty days.
• s.27, property: provisions in the decree about property presented at or about the time of marriage which may belong jointly to both.

Test yourself

1. Who may claim maintenance pendente lite, and what may be ordered? Either the wife or the husband, where the applicant has no independent income sufficient for his or her support and the necessary expenses of the proceeding. The court may order the respondent to pay the expenses of the proceeding and such monthly sum during the proceeding as it may seem reasonable, having regard to the petitioner's own income and the income of the respondent.

2. What is permanent alimony, and on what is it fixed? An order under section 25 made at the time of passing any decree or at any time subsequent to it, requiring the respondent to pay a gross sum or a monthly or periodical sum for a term not exceeding the applicant's life, having regard to the respondent's own income and other property, the applicant's income and property, the conduct of the parties and other circumstances of the case. It may be secured by a charge on immovable property.

3. When may such an order be varied or rescinded? On a change in the circumstances of either party, under section 25(2); and under section 25(3) if the party in whose favour it was made has remarried, or, being the wife, has not remained chaste, or, being the husband, has had sexual intercourse with any woman outside wedlock, the court may vary, modify or rescind it as it thinks just.

4. What does section 27 allow the court to do? To make, in any proceeding under the Act, 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.

Sub-section (2) is worth remembering because it is unusual. A verified pleading in an ordinary suit is not evidence; here it may be referred to as evidence at the hearing.

Section 21: the Code of Civil Procedure

Section 21 provides that, subject to the other provisions of the Act and to rules made by the High Court, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure 1908.

So the Code supplies everything the Act does not: pleadings, service, amendment, discovery, examination of witnesses, execution, review. The words "as far as may be" allow the court to adapt, and the Act's own provisions prevail where they conflict.

Section 21A: two petitions, two courts

This section, inserted in 1976, deals with the situation where both spouses sue.

Where a petition for judicial separation under section 10 or for divorce under section 13 has been presented by one party to a district court having jurisdiction, and another petition for judicial separation or divorce on any ground is presented thereafter by the other party, whether in the same or a different district court, and whether in the same State or a different State, then:

• if both are in the same district court, both petitions shall be tried and heard together by that court;
• if they are in different district courts, the later petition shall be transferred to the court in which the earlier petition was presented, and both shall be heard and disposed of together there.

Section 21A(3) provides that where the transfer limb applies, the court or Government competent under the Code of Civil Procedure to transfer a suit shall exercise that power as if empowered by the Code.

The rule is simply first in time. It exists because spouses who have separated commonly live in different States, and without it each could litigate the same marriage in a different court with a different result.

Section 21B: speed

Section 21B(1) requires the trial of a petition to be continued from day to day until its conclusion, so far as practicable consistently with the interests of justice, unless the court finds an adjournment beyond the following day necessary for reasons to be recorded.

Section 21B(2) requires every petition to be tried as expeditiously as possible, with an endeavour to conclude the trial within six months from the date of service of notice on the respondent.

Section 21B(3) requires every appeal to be heard as expeditiously as possible, with an endeavour to conclude the hearing within three months from the date of service of notice of appeal.

The figures, six months and three months, are the ones an examiner asks for. The obligations are expressed as an endeavour rather than as a bar, so a trial that takes longer is not a nullity.

Section 21C: documents

Section 21C provides that, notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence at the trial of a petition under this Act on the ground that it is not duly stamped or registered.

This is a small provision doing useful work. Matrimonial cases turn on letters, agreements, receipts and settlement deeds that nobody thought to stamp or register at the time. Section 21C stops the case being decided on a revenue technicality.

Section 22: proceedings in camera

Section 22(1), as substituted in 1976, provides that every proceeding under this Act shall be conducted in camera, and that it shall not be lawful for any person to print or publish any matter in relation to such a proceeding, except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.

Section 22(2) makes contravention punishable with fine which may extend to one thousand rupees.

Note the structure. Before 1976 the court had a discretion to sit in camera; now it is mandatory in every case. The prohibition on publication is separate from the closed hearing and is wider: it binds any person, not merely the parties, and the exception is confined to superior court judgments published with permission.

Section 23: the court's own duty before granting relief

This is the most important procedural section in the Act, and its opening words are the reason: "In any proceeding under this Act, whether defended or not."

Section 23(1) provides that if the court is satisfied of the following, then and in such a case, but not otherwise, the court shall decree such relief accordingly:

(a) that any of the grounds for relief exists, and that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of the relief. There is an exception, inserted in 1976: this limb does not apply where the relief is sought on the ground in sub-clause (a), (b) or (c) of clause (ii) of section 5, that is, the mental capacity grounds.

(b) that where the ground is adultery under section 13(1)(i), the petitioner has not been accessory to, connived at, or condoned the acts complained of; and that where the ground is cruelty, the petitioner has not condoned the cruelty.

(bb) that where divorce is sought on the ground of mutual consent, that consent has not been obtained by force, fraud or undue influence.

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

(d) that there has not been any unnecessary or improper delay in instituting the proceeding.

(e) that there is no other legal ground why relief should not be granted.

Why this section matters more than it looks

It binds the court even where nobody objects. In an undefended petition the respondent may not appear at all. Section 23 still requires the court to satisfy itself of every one of the five matters. A decree granted without that inquiry is bad.

Taking advantage of one's own wrong is the limb that is litigated. It is what the wife argued in Saroj Rani, discussed in the chapter on restitution: the husband had consented to a decree for restitution and then relied on its non-compliance to get a divorce under section 13(1A). The Supreme Court held he was not disentitled, because mere non-compliance with the decree is not by itself a "wrong" within section 23(1)(a). That holding is what makes section 13(1A) work as a real remedy for either party.

The three bars in clause (b) are the classical matrimonial defences: connivance, where the petitioner permitted or encouraged the act; accessory, where the petitioner participated; condonation, where the petitioner forgave and resumed cohabitation with knowledge. Note that for cruelty only condonation is named.

Clause (bb) is the safeguard on section 13B. Consent obtained by force, fraud or undue influence is no consent, and the court must satisfy itself of that before passing a decree by mutual consent.

The duty to attempt reconciliation

Section 23(2) provides that before proceeding to grant any relief it shall be the duty of the court, in the first instance, in every case where it is possible to do so consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.

The proviso excludes six grounds from that duty: clauses (ii), (iii), (iv), (v), (vi) and (vii) of section 13(1). That is conversion, mental disorder, the now-omitted clause (iv), venereal disease, renunciation and presumed death. The logic is the same as for section 13A: reconciliation is not a sensible thing to attempt with a spouse who has renounced the world or has not been heard of for seven years.

Section 23(3) supplies the machinery. For the purpose of aiding reconciliation the court may, if the parties so desire or if the court thinks it just and proper, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to a person named by the parties, or nominated by the court if they do not name one, with directions to report whether reconciliation can be and has been effected; and the court shall have due regard to the report.

Section 23(4) requires that in every case where a marriage is dissolved by a decree of divorce, the court shall give a copy of the decree free of cost to each of the parties.

Section 23A: the respondent's counter-claim

Section 23A provides that in any proceeding for divorce, judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of the petitioner's adultery, cruelty or desertion, but may also make a counter-claim for any relief under the Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give the respondent any relief to which he or she would have been entitled had a petition been presented on that ground.

The section saves a second suit. A wife met with a petition for restitution may, in the same proceeding, prove her husband's cruelty and obtain a decree of divorce, without filing anything of her own beyond the counter-claim. Only three grounds support a counter-claim under this section: adultery, cruelty and desertion.

Sections 28 and 28A: appeals and enforcement

Section 28(1). All decrees made in any proceeding under the Act are appealable as decrees made in the exercise of the court's original civil jurisdiction, and the appeal lies to the court to which appeals ordinarily lie from that court's original civil decisions.

Section 28(2). Orders made under section 25 or section 26, that is, permanent alimony and custody, are appealable if they are not interim orders.

Section 28(3). There is no appeal on the subject of costs only.

Section 28(4). Every appeal must be preferred within ninety days from the date of the decree or order. The period was substituted for thirty days by Act 50 of 2003 with effect from 23 December 2003.

Section 28A provides that all decrees and orders made under the Act shall be enforced in the like manner as decrees and orders made in the exercise of the court's original civil jurisdiction, which is how Order XXI of the Code applies to a restitution decree.

Two examinable points. Interim orders under sections 25 and 26 are not appealable, which is why interim maintenance is challenged by revision rather than appeal. And the appeal period is ninety days, not the thirty days that older textbooks print.

Section 29: savings

Section 29(1) provides that a marriage solemnized between Hindus before the commencement of the Act, otherwise valid, shall not be deemed invalid or ever to have been invalid by reason only that the parties belonged to the same gotra or pravara, or to different religions, castes or sub-divisions of the same caste.

Section 29(2) provides that nothing in the Act affects any right recognised by custom or conferred by a special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the Act.

Section 29(3) provides that nothing in the Act affects any proceeding under any law for the time being in force for declaring a marriage null and void, or for annulment, or for judicial separation, pending at the commencement of the Act.

Sub-section (2) is the one to remember. Customary divorce survives the Act. Where a community has a genuine custom of dissolution, satisfying section 3(a), a divorce by that custom is good without any decree.

A worked example

Sunita married in Nagpur, last lived with her husband in Pune, and now lives in Nashik. Her husband has filed for divorce in Pune; she wants to file for restitution. She fears the newspapers. He does not defend, and offers to let the decree go through.

Where may she file? Section 19 gives five places: where the marriage was solemnized, Nagpur; where the respondent resides, Pune; where the parties last resided together, Pune; where she is residing, Nashik, because she is the petitioner and a wife, under clause (iiia); and, if he were outside India or unheard of for seven years, where she resides.

Two petitions in two districts. Section 21A: where one petition is in one district court and the other in another, the later one is transferred to the court in which the earlier is pending, and they are tried together.

What must her petition contain? Section 20: the facts on which the claim is based and, except in a petition under section 11, a statement that there is no collusion.

Will the press be able to report it? No. Section 22: every proceeding shall be conducted in camera, and it is an offence to print or publish any matter in relation to it, except a judgment of a High Court or the Supreme Court printed with its previous permission.

He is not defending. Can the decree simply be passed? No. Section 23 obliges the court, whether defended or not, to satisfy itself that the ground exists; that the petitioner is not taking advantage of his or her own wrong; that there is no accessory, connivance or condonation; that a consent decree was not obtained by force, fraud or undue influence; that there is no collusion; that there has been no unnecessary or improper delay; and that there is no other legal ground.

Must it try to reconcile them? Section 23(2): yes, before granting relief, except where the ground is one of the six named, including conversion, renunciation and presumed death.

How fast, and where does an appeal go? Section 21B: the trial within six months and an appeal within three, as far as practicable. Sections 28 and 28A: appeal within ninety days, no appeal on costs alone, and enforcement as a decree of the court in its ordinary original civil jurisdiction.

What it does NOT mean

Section 19 does not give one forum. It gives five, and clause (iiia) lets a wife sue where she is residing.

Section 20 does not require a denial of collusion in every petition. It is required except in a petition under section 11.

Section 21 does not create a procedure. It imports the Code of Civil Procedure, subject to the Act and the rules.

Section 21A does not consolidate every pair of petitions. It applies where petitions are presented in different districts and transfers the later one to the court where the earlier is pending.

Section 21B is not a limitation period. It asks for a trial concluded within six months and an appeal within three, so far as practicable.

Section 22 does not merely allow a closed court. Every proceeding shall be conducted in camera, and printing or publishing matter in relation to it is an offence.

Section 23 is not a formality. The court must satisfy itself even where the petition is undefended.

Reconciliation is not attempted in every case. It is excluded where the ground is one of the six named, including conversion, renunciation and presumed death.

Quick revision

• s.19, where to sue: where the marriage was solemnized; where the respondent resides; where the parties last resided together; where the wife is residing, if she is the petitioner, clause (iiia); and where the petitioner resides, if the respondent is outside India or has not been heard of for seven years.
• s.20: the petition must state the facts and, except under s.11, contain a denial of collusion.
• s.21: the Code of Civil Procedure applies, subject to the Act and the rules. s.21A: the later of two petitions in different districts is transferred to the court where the earlier is pending. s.21B: trial in six months, appeal in three, so far as practicable, and day-to-day hearing. s.21C: a document is not inadmissible merely for want of stamp or registration.
• s.22: every proceeding in camera; printing or publishing matter in relation to it is an offence.
• s.23: the court must satisfy itself, defended or not, that the ground exists, that the petitioner is not taking advantage of his or her own wrong, that there is no accessory, connivance or condonation, that a consent decree is not by force, fraud or undue influence, that there is no collusion, that there is no unnecessary or improper delay, and that there is no other legal ground; and it must attempt reconciliation except on six grounds.
• s.23A: the respondent may counter-claim for relief on the petitioner's adultery, cruelty or desertion.
• ss.28 and 28A: appeals against decrees and orders, within ninety days, with no appeal on costs alone; and decrees and orders are enforced as decrees and orders of the court in its ordinary original civil jurisdiction. s.29: savings, including for customary divorce.

Test yourself

1. In which courts may a petition under the Act be presented? In the district court within whose ordinary original civil jurisdiction the marriage was solemnized; or the respondent at the time of presentation resides; or the parties last resided together; or, if the wife is the petitioner, where she is residing on that date; or, if the respondent is residing outside India or has not been heard of as alive for seven years, where the petitioner is residing.

2. What must the court satisfy itself of before granting relief? That any of the grounds for granting relief exists and that the petitioner is not in any way taking advantage of his or her own wrong or disability; that where the ground is adultery the petitioner has not been accessory to or connived at or condoned it, and where the ground is cruelty has not condoned it; that where the petition is for divorce by mutual consent the consent was not obtained by force, fraud or undue influence; that the petition is not presented in collusion; that there has been no unnecessary or improper delay; and that there is no other legal ground why relief should not be granted.

3. When must the court attempt reconciliation? In every case before proceeding to grant relief, except where the ground is conversion, renunciation of the world, not being heard of for seven years, or one of the other grounds named in the proviso to section 23(2).

4. Are the proceedings public? No. Section 22 requires every proceeding under the Act to be conducted in camera, and makes it an offence to print or publish any matter in relation to such a proceeding except a judgment of a High Court or the Supreme Court printed or published with the court's previous permission.

(c) The male has completed the age of twenty-one years and the female the age of eighteen years.

(d) The parties are not within the degrees of prohibited relationship, with a proviso: where a custom governing at least one of the parties permits a marriage between them, the marriage may be solemnized notwithstanding that they are within the prohibited degrees.

(e) Where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which the Act extends.

The three differences from section 5 of the Hindu Marriage Act

This is the comparison MU wants, and it is short.

Religion is irrelevant. Section 5 of the Hindu Marriage Act opens with "between any two Hindus". Section 4 here opens with "between any two persons", and the opening words override any other law on solemnization. A Hindu may marry a Muslim, a Christian a Parsi, or two people of no religion at all, under this Act.

There is no sapinda condition. The Hindu Marriage Act has two relationship bars, prohibited degrees in section 5(iv) and sapindas in section 5(v). This Act has one. What survives is the prohibited degrees, and they are set out not by a definition in the body of the Act but in the First Schedule, Part I listing the relations a man may not marry and Part II those a woman may not.

Custom is defined much more narrowly. Under section 3(a) of the Hindu Marriage Act any rule satisfying the ordinary tests of a custom may be proved in court. Under the Explanation to section 4 of this Act, "custom" means a rule which the State Government has notified in the Official Gazette as applicable to the members of a tribe, community, group or family; and no such notification may be issued unless the State Government is satisfied that the rule has been continuously and uniformly observed for a long time among those members, that it is certain and not unreasonable or opposed to public policy, and that a family rule has not been discontinued by the family.

Read that carefully, because it is the sharpest difference in the chapter. Under the Hindu Marriage Act a custom is proved to a court. Under the Special Marriage Act it is notified by a government, and if there is no notification there is no custom to rely on however ancient the practice. And it is enough that the custom governs at least one of the parties, where the Hindu Marriage Act requires it to govern each of them.

The definitions in section 2

Section 2(b) defines the degrees of prohibited relationship by reference to the First Schedule.

Explanation I provides that relationship includes relationship by half or uterine blood as well as full blood, illegitimate blood relationship as well as legitimate, and relationship by adoption as well as by blood. That is the same rule as the Explanation to section 3 of the Hindu Marriage Act.

Explanations II, III and IV define full blood, half blood and uterine blood in the same words as section 3(c) and 3(d) of the Hindu Marriage Act, and provide that "ancestor" includes the father and "ancestress" the mother.

Section 2(d) defines a Marriage Officer's district. Section 2(e), substituted in 1976, defines district court in the same way as the Hindu Marriage Act does: the city civil court where there is one, otherwise the principal civil court of original jurisdiction, and any other civil court the State Government notifies.

The two Acts side by side

What the choice of Act actually costs

A couple who could marry under either should understand what changes, and the reader should be able to say it in a sentence each.

A thirty-day wait and a public notice. Under the Hindu Marriage Act a marriage may be solemnized the same day. Under this Act notice must be given, published and left open to objection for thirty days. That is the next chapter.

Severance from the joint family. By section 19, a Hindu who marries under this Act is severed from his undivided family, subject to the important exception in section 21A. That is [The Effect on the Joint Family and on Succession].

A different law of succession. By section 21, succession to the property of parties married under this Act is governed by the Indian Succession Act 1925 rather than by the Hindu Succession Act, again subject to section 21A.

None of those is obvious to a couple standing in front of a Marriage Officer, and the third has caught out many families.

A worked example

Farhan, a Muslim, and Priya, a Hindu, wish to marry without either converting. Both are twenty-four. Priya is a coparcener in her father's joint family. Priya's father says the marriage cannot be lawful.

Can they marry? Yes. The Special Marriage Act 1954 is open to any two persons, whatever their religion, and the opening words of section 4 are "notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages".

What must they satisfy? Section 4, four conditions: (a) neither has a spouse living; (b) neither is incapable of giving a valid consent through unsoundness of mind, nor suffering from a mental disorder of a kind or extent unfitting for marriage and the procreation of children, nor subject to recurrent attacks of insanity; (c) the male has completed twenty-one and the female eighteen; (d) they are not within the degrees of prohibited relationship in the First Schedule.

Is there a sapinda bar? No. The Hindu Marriage Act has one; this Act does not.

Can a custom save a prohibited-degree marriage? Yes, but narrowly: the proviso allows it where a custom governing at least one of the parties permits it, and the custom must be one the State Government has notified.

Who solemnizes it? A Marriage Officer, appointed by the State Government under section 3 for the whole or part of the State; for a territory outside India, a diplomatic or consular officer of India.

What does Priya lose? Section 19: a Hindu, Buddhist, Sikh or Jain member of an undivided family who marries under the Act is deemed to be severed from that family. And section 21 moves succession to her property to the Indian Succession Act 1925. Both are taken in [The Effect on the Joint Family and on Succession].

Is that always so? No. Section 21A disapplies sections 19 and 21 where both parties profess the Hindu, Buddhist, Sikh or Jaina religion. Here they do not, so section 19 bites.

And the practical price? A thirty-day public notice, taken in the next chapter.

What it does NOT mean

The Act is not for inter-faith couples only. It is open to any two persons, including two Hindus.

It does not require anybody to convert or to renounce religion.

There is no sapinda condition. Only the prohibited degrees of the First Schedule.

Custom does not save every prohibited-degree marriage. It must be a custom notified by the State Government, and it need govern only one of the parties.

Section 4's age condition is not the same in effect as the Hindu Act's. Breach here makes the marriage void under section 24; under the Hindu Act it does not.

A Marriage Officer is not a registrar of any marriage. He is appointed under section 3 for the purposes of this Act.

Quick revision

• What it is for: a secular law of marriage, open to any two persons whatever their religion, overriding any other law relating to solemnization.
• s.3: the State Government appoints Marriage Officers for the whole or part of the State; abroad, a diplomatic or consular officer.
• s.4, four conditions: (a) neither party has a spouse living; (b) neither is incapable of consent, nor suffering from a mental disorder unfitting for marriage and procreation, nor subject to recurrent attacks of insanity; (c) the male has completed twenty-one, the female eighteen; (d) they are not within the degrees of prohibited relationship in the First Schedule, unless a custom notified by the State Government and governing at least one of them permits it.
• No sapinda bar under this Act.
• The price: a thirty-day public notice; severance from the joint family under s.19; and succession under the Indian Succession Act 1925 under s.21, both disapplied by s.21A where both parties are Hindu, Buddhist, Sikh or Jaina.

Test yourself

1. Who may marry under the Special Marriage Act? Any two persons, whatever their religion, provided the conditions in section 4 are satisfied. Neither party need change religion.

2. State the conditions of a valid marriage under the Act. Neither party has a spouse living; neither is incapable of giving a valid consent in consequence of unsoundness of mind, or though capable has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children, or has been subject to recurrent attacks of insanity; the male has completed twenty-one years and the female eighteen; and the parties are not within the degrees of prohibited relationship in the First Schedule, unless a custom governing at least one of them permits the marriage.

3. Is there a sapinda bar under this Act? No. The Act has only the degrees of prohibited relationship set out in the First Schedule.

4. Who solemnizes a marriage under the Act? A Marriage Officer appointed by the State Government under section 3 for the whole or any part of the State, and, for territories outside India, a diplomatic or consular officer of India appointed as a Marriage Officer.

Note the limits, because a well-informed answer states them. The only permissible ground of objection is that the marriage would contravene section 4: a spouse living, mental capacity, age, prohibited degrees. Disapproval, difference of religion, family opposition and caste are not grounds, and an objection on any of them is bad on its face. But the objection still has to be made, recorded and inquired into, and that takes time.

Section 8: what happens on an objection

Section 8(1) provides that if an objection is made, the Marriage Officer shall not solemnize the marriage until he has inquired into the matter and is satisfied either that it ought not to prevent the solemnization or that the objection is withdrawn; but he shall not take more than thirty days from the date of the objection to inquire and decide.

Section 8(2) provides that if the Marriage Officer upholds the objection and refuses to solemnize, either party may within thirty days of the refusal appeal to the district court within whose jurisdiction the officer has his office; the decision of the district court is final, and the Marriage Officer must act in conformity with it.

So the outer timetable of a contested marriage under this Act is: thirty days' residence, notice, thirty days' publication, up to thirty days' inquiry, and then an appeal to the district court with a further thirty days to file it.

Section 9: the Marriage Officer's powers of inquiry

For an inquiry under section 8 the Marriage Officer has all the powers of a civil court under the Code of Civil Procedure 1908 when trying a suit, in respect of:

• summoning and enforcing the attendance of witnesses and examining them on oath;
• discovery and inspection;
• compelling the production of documents;
• reception of evidence on affidavit; and
• issuing commissions for the examination of witnesses.

Any proceeding before the Marriage Officer is deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code, which is the perjury provision, now carried forward by the Bharatiya Nyaya Sanhita. The Explanation provides that for enforcing attendance the local limits of the officer's jurisdiction are the limits of his district.

That is a substantial power to give an administrative officer, and it is worth noticing: a person objecting to a marriage can be summoned, put on oath and examined.

Section 10: an objection before a Marriage Officer in Jammu and Kashmir

Where an objection is made to a Marriage Officer in respect of an intended marriage in the State of Jammu and Kashmir, and the officer, after such inquiry as he thinks fit, entertains a doubt, he shall not solemnize the marriage but shall transmit the record to the Central Government with a statement, and the Central Government, after such inquiry and advice as it thinks fit, shall give its decision in writing, with which the officer must comply.

Sections 11 and 12: the declaration and the solemnisation

Section 11. Before the marriage is solemnized, the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the form specified in the Third Schedule, and the declaration shall be countersigned by the Marriage Officer.

Section 12(1). The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance as the parties desire, on such conditions and payment of such additional fees as may be prescribed.

Section 12(2). The marriage may be solemnized in any form which the parties may choose to adopt, with a proviso that it shall not be complete and binding unless each party says to the other, in the presence of the Marriage Officer and the three witnesses, and in any language understood by the parties, the words: I take the other to be my lawful wife or husband.

That proviso is the whole ceremony the Act requires, and it repays comparison with section 7 of the Hindu Marriage Act.

Under the Hindu Marriage Act the ceremony is whatever the custom of either party provides, and where saptapadi applies the marriage is complete at the seventh step.

Under this Act the parties may adopt any form they like, religious or not, but nothing they do makes the marriage complete except the words of taking, said aloud, in front of the officer and three witnesses, in a language they understand.

So a couple may go through a religious ceremony and then say the words, or may say nothing else at all. The Act does not object to religion; it simply refuses to let religion do the constitutive work.

Section 13: the certificate

Section 13(1) requires the Marriage Officer, when the marriage has been solemnized, to enter a certificate in the form specified in the Fourth Schedule in the Marriage Certificate Book, signed by the parties and the three witnesses.

Section 13(2) provides that on the certificate being entered, it shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized, and that all formalities respecting the signatures of witnesses have been complied with.

"Conclusive evidence" is the phrase to notice, and it is the sharpest contrast with the Hindu Marriage Act. There, section 8(5) says registration does not affect validity at all. Here, the certificate is conclusive that the marriage happened and that the formalities were observed. A marriage under this Act is proved by producing the certificate, and that is the end of it.

Section 14: lapse of the notice

Section 14 provides that where a marriage is not solemnized within three calendar months of the date the notice was given under section 5, or, where an appeal was filed under section 8(2), within three months of the district court's decision, or, where a record was transmitted under section 10, within three months of the Central Government's decision, the notice and all proceedings arising from it shall be deemed to have lapsed, and no Marriage Officer may solemnize the marriage until a new notice has been given.

Three months from notice, or from the decision on appeal, and then the whole procedure starts again.

The argument about the notice provisions

MU can ask why the Special Marriage Act is criticised, and the argument should be stated fairly and from the sections.

The case against. Sections 5, 6 and 7 require a couple's intention to marry to be published, in a book anyone may inspect free of charge, in a conspicuous place in a public office, and in the district where either of them permanently lives, and to remain open to objection by any person for thirty days. For a couple marrying across religion or caste against their families' wishes, that publication is not a formality; it tells the very people most likely to prevent the marriage exactly where and when it is to happen. The couple who most need a secular law are the couple the procedure exposes.

The case for. The notice is what makes the Marriage Officer's inquiry possible, and the inquiry is what enforces the conditions in section 4. A marriage under this Act is proved conclusively by the certificate under section 13, and the price of a conclusive certificate is a procedure that lets an existing spouse, or a parent of an underage party, be heard first.

What the law is. The provisions stand. Their constitutional validity has been challenged, and this book does not state the outcome of any such challenge because no judgment on it has been read for this book. What a student can safely say is what the sections require, why they are criticised, and that the criticism is directed at the publication in sections 6 and 7 rather than at the Act as a whole.

A worked example

Arjun and Mariam give notice on 1 June to the Marriage Officer of the district where Arjun has lived for six weeks. On 20 June Mariam's father objects that she is already married. On 25 June the Marriage Officer, satisfied that the objection is baseless, offers to marry them at once.

Was the notice properly given? Section 5: notice in the form of the Second Schedule, to the Marriage Officer of a district in which at least one of the parties has resided for not less than thirty days immediately preceding. Arjun's six weeks satisfy it.

Who could see the notice? Section 6: it is entered in the Marriage Notice Book, which any person may inspect free of charge, and a copy is affixed in a conspicuous place in the office.

Was the objection in time and on a proper ground? Section 7: any person may object within thirty days of the publication, but only that the marriage would contravene one or more of the conditions in section 4. A subsisting marriage is a breach of section 4(a), so both requirements are met.

What must the officer do? Section 8: he shall not solemnize until he has inquired into the objection and satisfied himself that it does not prevent solemnization, and he must decide within thirty days. For that inquiry section 9 gives him the powers of a civil court, and he may award costs up to one thousand rupees against a frivolous objector.

And if he had upheld it? An appeal to the district court within thirty days, whose decision is final.

Can he marry them on 25 June? No. Section 46 makes it an offence for a Marriage Officer knowingly and wilfully to solemnize a marriage before the expiry of thirty days from publication of the notice, punishable with one year or five hundred rupees or both. The earliest date is 1 July.

What happens on the day? Section 11: the parties and three witnesses sign a declaration. Section 12: the marriage may be in any form, but is not complete until each says, before the officer and the three witnesses and in a language they understand, that they take the other to be their lawful wife or husband. Section 13: the officer enters a certificate, which is conclusive evidence.

Suppose they postponed to October. Section 14: if the marriage is not solemnized within three months of the notice, the notice and all proceedings on it lapse, and a fresh notice is required.

What it does NOT mean

The notice is not private. It goes into the Marriage Notice Book, which any person may inspect free of charge, and a copy is affixed in a conspicuous place.

An objection is not open on any ground. It may be made only that the marriage would contravene one or more of the conditions in section 4.

The Marriage Officer is not free to take his time. He must inquire and decide within thirty days.

His decision is not final. An appeal lies to the district court within thirty days, and that court's decision is final.

The marriage need not be in any particular form. It may be solemnized in any form the parties choose, but it is not complete until each says, in the officer's presence and before three witnesses, in a language they understand, that they take the other to be their lawful wife or husband.

The certificate is not merely a record. It is conclusive evidence of the marriage.

A notice does not last indefinitely. If the marriage is not solemnized within three months, the notice and all proceedings on it lapse, and a fresh notice is required.

Quick revision

• s.5: a notice in writing in the form of the Second Schedule, given to the Marriage Officer of a district in which at least one party has resided for thirty days immediately before.
• s.6: the notice is entered in the Marriage Notice Book, open to inspection free of charge, and a copy is affixed in a conspicuous place; where neither party is permanently resident there, a copy goes to the Marriage Officer of that district for publication.
• s.7: any person may object within thirty days, but only that the marriage would contravene s.4.
• s.8: on an objection the Marriage Officer must inquire and decide within thirty days; if he upholds it he shall not solemnize, and an appeal lies to the district court within thirty days, whose decision is final.
• s.9: for the inquiry he has the powers of a civil court, may examine on oath, and may award costs up to one thousand rupees against a frivolous objector.
• ss.11 and 12: the parties and three witnesses sign a declaration in the Third Schedule before the officer; the marriage may be in any form, in the Marriage Officer's office or elsewhere at a reasonable distance, but is not complete until each party says to the other, in the presence of the officer and three witnesses and in any language understood by them, "I take thee to be my lawful wife (or husband)".
• s.13: the officer enters a certificate in the Marriage Certificate Book, signed by the parties and three witnesses; it is conclusive evidence. s.14: the notice lapses after three months.

Test yourself

1. What notice is required, and to whom is it given? A notice in writing in the form of the Second Schedule, given to the Marriage Officer of a district in which at least one of the parties has resided for a period of not less than thirty days immediately preceding the date of the notice.

2. Who may object, and on what ground? Any person may object, within thirty days of the publication of the notice, on the ground that the marriage would contravene one or more of the conditions specified in section 4.

3. What happens if an objection is made? The Marriage Officer shall not solemnize the marriage until he has inquired into the objection and satisfied himself that it does not prevent solemnization, or the objection is withdrawn. He must decide within thirty days, and has the powers of a civil court for the inquiry. If he upholds the objection, an appeal lies within thirty days to the district court, whose decision is final.

4. When is a marriage under the Act complete? When each party says to the other, in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties, "I take thee to be my lawful wife (or husband)". The marriage may otherwise be solemnized in any form the parties choose to adopt.

"Neither party has more than one spouse living." Not "no spouse living". The condition is written this way because the parties to the marriage being registered are each other's spouse. What it excludes is a further spouse.

Custom is wider here, and only for old marriages. The proviso to clause (e) lets any law, custom or usage having the force of law defeat the prohibited-degrees bar, without the notification requirement of the Explanation to section 4; but it applies only to a marriage celebrated before the commencement of the Act.

And clause (a) has no counterpart in Chapter II at all: there must have been a ceremony, and the parties must have been living together as husband and wife ever since. A couple who married and separated cannot register.

Section 16: the procedure

On receipt of an application signed by both parties, the Marriage Officer shall:

• give public notice in such manner as may be prescribed;
• allow a period of thirty days for objections;
• hear any objection received within that period; and
• if satisfied that all the conditions in section 15 are fulfilled, enter a certificate of the marriage in the Marriage Certificate Book in the form specified in the Fifth Schedule, signed by the parties and three witnesses.

The same thirty-day public notice appears here as in Chapter II, and the criticism made of it there applies with less force, because the marriage already exists and the parties are already living together.

Section 17: appeal

Any person aggrieved by an order of a Marriage Officer refusing to register a marriage under Chapter III may, within thirty days of the order, appeal to the district court within whose jurisdiction the officer has his office. The decision of the district court is final, and the Marriage Officer must act in conformity with it.

Note that the appeal lies only against a refusal. There is no appeal under this section against a decision to register.

Section 18: the effect of registration

This is the section the chapter exists for, and it does three things.

The marriage becomes a marriage under this Act. Subject to section 24(2), where a certificate has been finally entered in the Marriage Certificate Book under Chapter III, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act.

Two words matter. "From the date of such entry": the conversion is prospective, so the marriage is a marriage under this Act from registration onwards, not from the original ceremony. And "subject to section 24(2)", which is the provision preserving the position where a marriage registered under Chapter III could not have been solemnized under the Act.

The children are legitimate, retrospectively. All children born after the date of the ceremony of marriage, whose names are also to be entered in the Marriage Certificate Book, shall in all respects be deemed to be and always to have been the legitimate children of their parents.

Notice the difference in time. The marriage is converted from the entry; the children are legitimate from the ceremony, and "always to have been". That is deliberate: it protects children born in the years between the ceremony and the registration.

With the familiar limit on property. The proviso provides that nothing in the section confers on such children any rights in or to the property of any person other than their parents, in a case where but for the Act they would have been incapable of possessing or acquiring such rights by reason of illegitimacy.

That is the same limitation as section 16(3) of the Hindu Marriage Act, in almost the same words, and it should be read with [Void and Voidable Marriages, and the Legitimacy of Their Children]. Legitimacy is given fully; property rights are confined to the parents.

Chapter II and Chapter III compared

A worked example

Ramesh and Sara married by a religious ceremony in 2015 and have lived together since. They now wish their marriage to be governed by the Special Marriage Act. Both are over twenty-one and have lived in the same district for two months.

Which Chapter applies? Chapter III. It converts an existing marriage; it does not create one.

What must they satisfy? Section 15, six conditions: a ceremony of marriage has been performed between them and they have been living together as husband and wife ever since; neither has at the time of registration more than one spouse living; neither is an idiot or a lunatic at that time; both have completed twenty-one years; they are not within the degrees of prohibited relationship, subject to the custom proviso; and both have been residing in the district of the Marriage Officer for thirty days immediately preceding.

Do they qualify? On these facts, yes.

What is the procedure? Section 16: an application signed by both; the Marriage Officer gives public notice, waits thirty days for objections, hears any objection, and, if satisfied, enters a certificate in the Fifth Schedule form, signed by the parties and three witnesses.

If he refuses? Section 17: an appeal to the district court within thirty days, whose decision is final.

What does registration do? Section 18: on the entry the marriage is deemed to be solemnized under this Act as from the date of registration, and children born after the date of the ceremony are deemed to be their legitimate children, whose legitimacy dates from the ceremony, subject to the same limit that they take only from their parents.

What does that cost them? The Chapter IV consequences follow, since the marriage is now under this Act. And on these facts section 21A does not save them, because Sara is not Hindu, Buddhist, Sikh or Jaina.

What it does NOT mean

Chapter III does not solemnize a marriage. It registers one already celebrated in another form.

It is not available immediately after the ceremony. The parties must have been living together as husband and wife ever since.

The age is not eighteen for the bride. Under section 15 both must have completed twenty-one.

One spouse living is not a bar. The condition is not more than one spouse living, which is a lower bar than section 4(a).

Registration does not date the marriage back. The marriage is deemed solemnized under this Act from the date of registration; only the children's legitimacy dates from the ceremony.

Refusal is not the end. An appeal lies to the district court within thirty days.

Quick revision

• What it does: converts a marriage already celebrated in another form into a marriage under this Act.
• s.15, six conditions: a ceremony has been performed and they have lived together as husband and wife ever since; not more than one spouse living; neither an idiot or a lunatic; both twenty-one; not within the prohibited degrees, subject to a notified custom; and thirty days' residence in the district by both.
• s.16, procedure: application signed by both; public notice; thirty days for objections; hearing; entry of a certificate in the Fifth Schedule form, signed by the parties and three witnesses.
• s.17: appeal against refusal to the district court within thirty days; the decision is final.
• s.18: on entry the marriage is deemed solemnized under this Act from the date of registration, and children born after the date of the ceremony are the parties' legitimate children, their legitimacy dating from the ceremony, subject to the limit that they take only from their parents.

Test yourself

1. What is Chapter III for? For the registration under the Act of a marriage already celebrated in some other form, so that it becomes a marriage under the Special Marriage Act.

2. State the conditions for such registration. A ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since; neither party has at the time of registration more than one spouse living; neither is an idiot or a lunatic at the time of registration; the parties have completed twenty-one years; they are not within the degrees of prohibited relationship, subject to the proviso about custom; and both have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the application.

3. What is the procedure and what remedy is there against refusal? An application signed by both parties, public notice by the Marriage Officer, thirty days for objections, an inquiry into any objection, and, if satisfied, entry of a certificate in the Fifth Schedule signed by the parties and three witnesses. Against a refusal, an appeal lies within thirty days to the district court, whose decision is final.

4. What is the effect of registration? The marriage is deemed to be solemnized under the Act as from the date of registration, and every child born after the date of the ceremony whose name is entered in the Marriage Certificate Book is deemed to be the legitimate child of the parties, the legitimacy dating from the ceremony, but such a child takes no rights in the property of any person other than the parents.

So sections 19 and 20 pull in opposite directions on purpose. Section 19 severs him from the joint family; section 20 stops that being read as a general forfeiture of his rights of succession.

Section 21: succession under the Indian Succession Act

Section 21 provides that notwithstanding any restrictions in the Indian Succession Act 1925 about its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act, and to the property of the issue of such a marriage, shall be regulated by that Act; and for the purposes of this Act the Indian Succession Act has effect as if Chapter III of Part V, the special rules for Parsi intestates, had been omitted.

Two consequences, and both are examinable.

The Hindu Succession Act is displaced. A Hindu married under this Act does not have his estate distributed by Class I and Class II heirs, agnates and cognates. It goes by the general rules of intestate succession in the Indian Succession Act 1925, which are quite different: they work by degrees of kindred, and the widow's share and the treatment of parents and collaterals do not match.

It reaches the children too. The words are "and to the property of the issue of such marriage". So a son of the marriage is also governed by the Indian Succession Act, whatever his own religion or marriage.

Section 21A: the exception that swallows most of the rule

Section 21A, inserted by the Marriage Laws (Amendment) Act 1976, provides that where the marriage under this Act is of a person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion:

• section 19 shall not apply;
• section 21 shall not apply; and
• so much of section 20 as creates a disability shall also not apply.

So where both parties belong to those four communities, marrying under this Act costs them nothing. The Hindu is not severed from his joint family. His succession stays with the Hindu Succession Act. He is under no disability.

Why the exception was made

The reason is worth a sentence in an answer because it explains the shape of the law. By the 1970s the Special Marriage Act was being used by two kinds of couple: those marrying across religions, for whom it was the only Act available, and two Hindus who simply preferred a civil ceremony, often across caste, or without their families' religious rites. There was no reason to punish the second kind by severing them from their families and changing their law of succession, and section 21A stopped it.

How to apply it

The question is always the same and has two steps.

Step one: are both parties Hindu, Buddhist, Sikh or Jain?

• If yes, section 21A applies. No severance, Hindu Succession Act continues, no disability. The marriage is under this Act for every other purpose, including divorce.
• If no, sections 19, 20 and 21 apply in full. If the Hindu party was a member of an undivided family, the marriage severs him from it, and succession to his property and to his children's property goes to the Indian Succession Act 1925.

Step two, only if section 21A does not apply: was the Hindu party a member of an undivided family? Section 19 severs only a member of such a family. A Hindu who was already separate loses nothing under section 19, though section 21 still moves his succession.

A worked example makes it stick. A Hindu man who is a coparcener marries a Christian woman under this Act: he is severed from the coparcenary on the day of the marriage, and when he dies his estate goes by the Indian Succession Act. The same man marries a Jain woman under the same Act on the same day: nothing happens to his coparcenary interest and the Hindu Succession Act still governs his estate.

A worked example

Two cases. In the first, Anil, a Hindu coparcener, marries Farida, a Muslim, under the Act. In the second, Anil marries Meena, a Hindu, under the Act because they want a civil ceremony.

Anil and Farida. Section 19: the marriage of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from that family. It happens automatically, by the marriage, with no deed and no declaration.

What of his rights generally? Section 20: a person married under the Act shall have the same rights and be subject to the same disabilities in regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act 1850 applies. The point is that the marriage is not treated as a general forfeiture.

And succession to his property? Section 21: notwithstanding anything in the Indian Succession Act 1925, succession to the property of a person married under the Act, and to the property of the issue of such a marriage, is regulated by that Act, with the Parsi intestate succession provisions omitted.

So he leaves the Hindu Succession Act behind. Yes, on these facts.

Anil and Meena. Section 21A, inserted in 1976: where the marriage is between two persons who both profess the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply, and so much of section 20 as creates a disability shall also not apply.

So what happens to Meena and Anil? Nothing. He is not severed, and succession stays under the Hindu Succession Act.

Why does the exception exist? Because the original Chapter IV penalised two Hindus for choosing a civil ceremony, and section 21A removed that penalty.

What is left of the rule? It bites only where at least one party is outside those four religions, which is the inter-faith case the Act was written for.

What it does NOT mean

Section 19 is not a partition. It is a deemed severance of status, which measures his share; the division follows separately.

It does not require any act by him. The marriage itself effects it.

It does not apply to every member of a family. Only to a member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion.

Section 20 is not a forfeiture provision. It borrows the Caste Disabilities Removal Act 1850 so that the marriage is not treated as a forfeiture.

Section 21 does not apply the whole Indian Succession Act. The provisions relating to Parsi intestate succession are omitted.

Section 21A is not a saving for one section. It disapplies s.19 and s.21 entirely and the disability half of s.20.

And it is not available to every couple. Both parties must profess the Hindu, Buddhist, Sikh or Jaina religion.

Quick revision

• s.19: the marriage of a member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion is deemed to effect his severance from that family, automatically.
• s.20: such a person has the same rights and disabilities in regard to succession as a person to whom the Caste Disabilities Removal Act 1850 applies, so the marriage is not a general forfeiture.
• s.21: succession to his property, and to the property of the issue of the marriage, is regulated by the Indian Succession Act 1925, the Parsi intestate succession provisions being omitted.
• s.21A, inserted 1976: where both parties profess the Hindu, Buddhist, Sikh or Jaina religion, ss.19 and 21 do not apply, nor does so much of s.20 as creates a disability.
• The result: Chapter IV now bites only where at least one party is outside those four religions.

Test yourself

1. What does section 19 do? It provides that the marriage solemnized under the Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family. No deed or declaration is needed; the marriage itself severs him.

2. What does section 21 change? Succession to the property of a person whose marriage is solemnized under the Act, and to the property of the issue of such a marriage, is regulated by the Indian Succession Act 1925 instead of by the personal law, save that the provisions of that Act relating to Parsi intestate succession are omitted.

3. What does section 21A provide? That where the marriage solemnized under the Act is between two persons who both profess the Hindu, Buddhist, Sikh or Jaina religion, sections 19 and 21 shall not apply, and so much of section 20 as creates a disability shall also not apply.

4. Why does section 21A matter? Because before it was inserted in 1976, two Hindus who chose a civil ceremony were severed from their joint family and taken out of the Hindu Succession Act, which penalised the use of the secular Act. Section 21A removed that penalty and confined the effect of Chapter IV to marriages where at least one party is outside those four religions.

Section 25: voidable marriages

Any marriage solemnized under the Act shall be voidable and may be annulled by a decree of nullity if:

(i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it; or

(ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or

(iii) the consent of either party was obtained by coercion or fraud, as defined in the Indian Contract Act 1872.

The bars

For clause (ii), pregnancy, no decree unless the court is satisfied that the petitioner was ignorant of the facts at the time of the marriage, that proceedings were instituted within a year of the marriage, and that marital intercourse with the petitioner's consent has not taken place since the discovery.

For clause (iii), coercion or fraud, no decree if proceedings were not instituted within one year after the coercion ceased or the fraud was discovered, or if the petitioner has with free consent lived with the other party as husband and wife after that.

Three differences from section 12 of the Hindu Marriage Act

Wilful refusal is a ground here and is not there. Section 12(1)(a) of the Hindu Marriage Act requires non-consummation owing to the impotence of the respondent. Section 25(i) here requires non-consummation owing to the wilful refusal of the respondent. They are different things: impotence is an incapacity, wilful refusal is a choice. Under this Act both are covered, impotence by section 24 and refusal by section 25. Under the Hindu Marriage Act, wilful refusal alone fits neither section.

"Coercion or fraud, as defined in the Indian Contract Act." The Hindu Marriage Act says "force" and defines fraud itself, as fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. This Act borrows the contract definitions wholesale. That is a secular statute behaving like a secular statute: it treats consent to marriage the way the law treats consent to a contract.

Mental capacity is not here at all, because breach of section 4(b) makes the marriage void under section 24.

Section 26: legitimacy

Section 26, substituted in 1976, reproduces section 16 of the Hindu Marriage Act almost word for word.

Sub-section (1). Notwithstanding that a marriage is null and void under section 24, any child of it who would have been legitimate if the marriage had been valid shall be legitimate, born before or after the 1976 amendment, whether or not a decree of nullity is granted, and whether or not the marriage is held void otherwise than on a petition under the Act.

Sub-section (2). Where a decree of nullity is granted for a voidable marriage under section 25, any child begotten or conceived before the decree who would have been legitimate had the marriage been dissolved rather than annulled is deemed to be their legitimate child notwithstanding the decree.

Sub-section (3). Nothing in the two preceding sub-sections confers on such a child any rights in or to the property of any person other than the parents, in a case where but for the Act the child would have been incapable of possessing or acquiring them by reason of illegitimacy.

Everything said about section 16 of the Hindu Marriage Act in [Void and Voidable Marriages, and the Legitimacy of Their Children] applies here, including the limit in sub-section (3).

Section 27: the grounds of divorce

Section 27(1) provides that a petition for divorce may be presented to the district court by either the husband or the wife on the ground that the respondent:

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

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

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code;

(d) has since the solemnization of the marriage treated the petitioner with cruelty;

(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent, with an Explanation defining mental disorder and psychopathic disorder in the same words as the Hindu Marriage Act;

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

(h) has not been heard of as being alive for seven years or more by those who would naturally have heard of the respondent if the respondent had been alive.

Clause (g) was omitted by Act 6 of 2019 with effect from 1 March 2019, and the number is empty.

The Explanation to section 27(1) defines desertion in the same words as the Hindu Marriage Act: desertion without reasonable cause and without the consent or against the wish of the petitioner, including wilful neglect.

What is here that is not in section 13

Clause (c), a sentence of seven years or more. The Hindu Marriage Act has no such ground. A spouse serving a long sentence gives the other a ground of divorce under this Act and not under that one.

What is in section 13 and not here

Conversion. Section 13(1)(ii) of the Hindu Marriage Act gives a ground where the other party has ceased to be a Hindu by conversion. There is no such ground here, and there could not be: the Act is open to persons of every religion and none, so changing religion changes nothing about the marriage.

Renunciation of the world by entering a religious order. Section 13(1)(vi) there; nothing here, for the same reason.

That pair of absences is the clearest illustration of what a secular marriage law means in practice, and it is a good closing line for a comparative answer.

Section 27(1A): the wife's additional grounds

A wife may also petition on the ground:

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

(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act 1956, or in a proceeding under section 125 of the Code of Criminal Procedure 1973 or the corresponding section 488 of the 1898 Code, a decree or order has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart, and that since then cohabitation has not been resumed for one year or upwards.

The wife has two additional grounds here, where under the Hindu Marriage Act she has four. The two missing are the pre-Act polygamous marriage, which has no application to a secular Act of 1954, and repudiation of a marriage contracted below fifteen, which cannot arise because section 24 makes an underage marriage void outright.

Section 27(2): the failed decree

Either party to a marriage, whether solemnized before or after the Special Marriage (Amendment) Act 1970, may petition for divorce on the ground:

(i) that there has been no resumption of cohabitation for one year or upwards after a decree of judicial separation; or

(ii) that there has been no restitution of conjugal rights for one year or upwards after a decree for restitution.

This mirrors section 13(1A) of the Hindu Marriage Act exactly.

Section 27A: alternative relief

In any proceeding on a petition for divorce, except insofar as the petition is founded on the ground in clause (h) of section 27(1), that is, seven years unheard of, the court may, if it considers it just having regard to the circumstances, pass instead a decree for judicial separation.

Compare section 13A of the Hindu Marriage Act, which excludes three grounds: conversion, renunciation and presumed death. Here only one is excluded, because the other two grounds do not exist in this Act.

Section 28: divorce by mutual consent

Section 28(1) provides that a petition for divorce may be presented to the district court by both parties together on the ground:

• that they have been living separately for a period of one year or more;
• that they have not been able to live together; and
• that they have mutually agreed that the marriage should be dissolved.

Section 28(2) provides that on the motion of both parties made not earlier than six months and not later than eighteen months after the date of presentation, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied after hearing the parties and after such inquiry as it thinks fit that a marriage has been solemnized under this Act and that the averments are true, pass a decree declaring the marriage dissolved with effect from the date of the decree.

This is section 13B of the Hindu Marriage Act in almost identical words, and everything in [Divorce by Mutual Consent, Alternate Relief and Remarriage] applies: the three limbs must all be pleaded, consent must survive to the second motion, and the court is not a rubber stamp.

One point of history is worth a line. Divorce by mutual consent was in this Act from the beginning, in 1954. It reached Hindus only in 1976, when section 13B was inserted. The secular Act was twenty-two years ahead of the personal law, which is a useful fact for an essay on the Uniform Civil Code.

A worked example

Rohit, twenty-two, and Nazia, seventeen, marry under the Special Marriage Act; the Marriage Officer is not told her age. In another case, Aslam and Priya marry under the Act; Aslam wilfully refuses to consummate the marriage. In a third, Mohan is sentenced to eight years' imprisonment and his wife wants a divorce.

Rohit and Nazia. Section 4(c) requires the male to have completed twenty-one and the female eighteen. Section 24(1)(i) makes the marriage void for breach of any of the conditions in clauses (a) to (d) of section 4, and that includes the age condition.

Would it have been void under the Hindu Marriage Act? No. Section 11 of that Act does not include section 5(iii), which is the contrast to draw.

Aslam and Priya. Section 25(i): the marriage has not been consummated owing to the wilful refusal of the respondent, which makes it voidable. Note that wilful refusal is not a ground under the Hindu Marriage Act at all, and that impotence under this Act makes the marriage void under section 24(1)(ii), not voidable.

Suppose Priya had been pregnant by another man at the marriage. Section 25(ii), voidable, subject to the bars: the petitioner must have been ignorant of the fact at the marriage, must institute proceedings within one year, and must have had no marital intercourse since the discovery.

Mohan's wife. Section 27(1)(c): the respondent is undergoing a sentence of imprisonment for seven years or more for an offence. The Hindu Marriage Act has no such ground.

Could she have relied on his conversion instead? There is no ground of conversion under this Act, and none of renunciation; a secular Act does not need them.

Would the court have to give divorce? Section 27A: it may grant judicial separation instead, except where the ground is presumed death.

Could they simply agree? Section 28: divorce by mutual consent, available under this Act since 1954, twenty-two years before it reached the Hindu Marriage Act.

What it does NOT mean

Section 24 is wider than section 11 of the Hindu Marriage Act. Breach of any of the four conditions in section 4 makes the marriage void, including the age condition, which under the Hindu Act does not.

Impotence appears in the wrong place for a Hindu lawyer. Under this Act, the respondent's impotence at the marriage and at the suit makes the marriage void under s.24; under the Hindu Act impotence makes it voidable.

Wilful refusal to consummate is not a ground under the Hindu Act. Here it makes the marriage voidable under s.25.

Coercion and fraud are not defined by this Act. They take the meanings in the Indian Contract Act 1872.

There is no ground of conversion and none of renunciation. A secular Act does not need them.

The wife has two extra grounds, not four. Rape, sodomy or bestiality; and a maintenance order followed by no cohabitation for a year.

Section 27A does not exclude the same grounds as section 13A. It excludes only presumed death.

Divorce by mutual consent is not a Hindu-law borrowing. Section 28 has been in this Act since 1954, twenty-two years before section 13B was inserted into the Hindu Marriage Act.

Quick revision

• s.24, void: breach of any of the four conditions in s.4, including age; and the respondent's impotence at the marriage and at the institution of the suit.
• s.25, voidable: wilful refusal to consummate; the respondent pregnant by another at the marriage; and consent obtained by coercion or fraud as defined in the Indian Contract Act 1872. Bars: for pregnancy, ignorance at the marriage, proceedings within one year, and no marital intercourse since discovery; for coercion or fraud, proceedings within one year and no cohabitation with full consent after it ceased or was discovered.
• s.26: children of a void or annulled marriage are legitimate, taking only from their parents.
• s.27, divorce: adultery; desertion for two years; the respondent undergoing a sentence of imprisonment for seven years or more; cruelty; mental disorder; venereal disease; and not heard of as alive for seven years. No ground of conversion and none of renunciation.
• s.27(1A), the wife's extra grounds: the husband guilty of rape, sodomy or bestiality; and a decree or order of maintenance followed by no cohabitation for one year.
• s.27A: alternative relief, judicial separation instead of divorce, except where the ground is presumed death.
• s.28: divorce by mutual consent, in the Act since 1954.

Test yourself

1. On what grounds is a marriage void under this Act? That any of the conditions in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled, and that the respondent was impotent at the time of the marriage and at the time of the institution of the suit.

2. On what grounds is it voidable? That the marriage has not been consummated owing to the wilful refusal of the respondent; that the respondent was at the time of the marriage pregnant by some person other than the petitioner; and that the consent of either party was obtained by coercion or fraud as defined in the Indian Contract Act 1872.

3. Name three grounds of divorce under section 27 that differ from the Hindu Marriage Act. That the respondent is undergoing a sentence of imprisonment for seven years or more for an offence, which the Hindu Marriage Act does not have; and, on the other side, this Act has no ground of conversion and no ground of renunciation of the world.

4. When did divorce by mutual consent become available under each Act? Under section 28 of the Special Marriage Act from 1954, and under section 13B of the Hindu Marriage Act only from the amendment of 1976.

Section 29(2) requires the court, in disposing of such an application, to have regard to the interests of any children and to whether there is a reasonable probability of reconciliation before the year expires.

Two details. The year runs from the entry of the certificate, not from any ceremony, which matters for a marriage registered under Chapter III. And the period was three years until 1976, when it was reduced to one in both Acts together.

Section 30: remarriage

Section 30 permits remarriage on the same footing as section 15 of the Hindu Marriage Act: once the marriage has been dissolved and either there is no right of appeal, or the time for appealing has expired without an appeal, or an appeal has been dismissed, either party may marry again.

Chapter VII: jurisdiction and procedure

Section 31: which court

Section 31(1) provides that every petition under Chapter V or Chapter VI shall be presented to the district court within whose original civil jurisdiction:

(i) the marriage was solemnized; or (ii) the respondent resides at the time of presentation; or (iii) the parties last resided together; or (iiia) in case the wife is the petitioner, where she is residing on the date of presentation; or (iv) the petitioner is residing at the time of presentation, where the respondent is then residing outside the territories to which the Act extends, or has not been heard of as being alive for seven years.

That is section 19 of the Hindu Marriage Act, clause for clause.

Section 31(2) has no counterpart in the Hindu Marriage Act and should be learned separately. Without prejudice to sub-section (1), the district court may entertain a petition by a wife domiciled in the territories to which the Act extends, for nullity of marriage or for divorce, if she is resident in those territories and has been ordinarily resident there for three years immediately preceding the petition, and the husband is not resident in those territories.

It is a provision for the wife whose husband has gone abroad and stayed there. She may sue in India on three years' ordinary residence of her own, for nullity or divorce, and for nothing else.

Section 32: the petition

Every petition under Chapter V or VI must state, as distinctly as the nature of the case permits, the facts on which the claim to relief is founded, and must also state that there is no collusion. The statements must be verified as a plaint is verified, and may at the hearing be referred to as evidence.

Note that unlike section 20 of the Hindu Marriage Act there is no exception for a nullity petition: the averment of no collusion is required in every case under this Act.

Section 33: in camera

Every proceeding under the Act shall be conducted in camera, and it is not lawful for any person to print or publish any matter in relation to it, except a judgment of the High Court or the Supreme Court printed or published with the previous permission of the Court. Contravention is punishable with fine which may extend to one thousand rupees. This is section 22 of the Hindu Marriage Act in the same words.

Section 34: the court's duty

Section 34(1) provides that in any proceeding under Chapter V or VI, whether defended or not, the court must be satisfied of the same matters as under section 23 of the Hindu Marriage Act before granting relief: that a ground exists; that where the petition is founded on adultery under section 27(1)(a) the petitioner has not been accessory to, connived at or condoned the act; that the petition is not presented or prosecuted in collusion; that there has been no unnecessary or improper delay; and that there is no other legal ground why relief should not be granted.

The section also carries the duty to attempt reconciliation and the machinery for referring the matter out, in terms corresponding to section 23(2) and 23(3) of the Hindu Marriage Act.

Section 35: relief for the respondent

In any proceeding for divorce, judicial separation or restitution, the respondent may not only oppose the relief on the ground of the petitioner's adultery, cruelty or desertion, but may make a counter-claim for any relief under the Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give the respondent the relief to which a petition on that ground would have entitled him or her. This is section 23A of the Hindu Marriage Act.

Sections 36 and 37: maintenance, and the asymmetry

Section 36: alimony pendente lite

Where in any proceeding under Chapter V or VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay her the expenses of the proceeding and weekly or monthly during the proceeding such sum as, having regard to the husband's income, seems reasonable.

The proviso, inserted by Act 49 of 2001 with effect from 24 September 2001, requires the application to be disposed of within sixty days as far as possible, as in the Hindu Marriage Act.

Section 37: permanent alimony and maintenance

Section 37(1) provides that the court may, at the time of passing any decree or at any time afterwards, on application, order that the husband shall secure to the wife for her maintenance and support, if necessary by a charge on the husband's property, such gross sum or such monthly or periodical payment for a term not exceeding her life, as, having regard to her own property, her husband's property and ability, the conduct of the parties and other circumstances of the case, seems just.

Section 37(2) allows variation, modification or rescission at the instance of either party on a change in circumstances.

Section 37(3) provides that if the court is satisfied that the wife in whose favour an order has been made has re-married or is not leading a chaste life, it may at the instance of the husband vary, modify or rescind the order as it deems just.

The asymmetry, stated plainly

The Hindu Marriage Act was made symmetrical in expression, and section 25(3) there refers to both a wife's unchastity and a husband's intercourse outside wedlock. The Special Marriage Act was not amended in the same way. So the secular Act, which is otherwise the more modern statute, is on this one point the less equal of the two. That contrast is worth a sentence in an essay on whether a uniform civil code would be an improvement, because it shows that "secular" and "equal" are not the same word.

Sections 38 to 40C: the remainder

Section 38: custody of children. In any proceeding under Chapter V or VI the district court may from time to time pass interim orders and make provisions in the decree with respect to the custody, maintenance and education of minor children, and may act after the decree and vary its orders, corresponding to section 26 of the Hindu Marriage Act.

Section 39: appeals. Decrees are appealable as decrees of the court in its original civil jurisdiction, orders under the maintenance and custody sections are appealable if not interim, there is no appeal on costs only, and the appeal must be preferred within the prescribed period.

Section 39A: enforcement. Decrees and orders are enforced as decrees and orders of the court made in its original civil jurisdiction.

Section 40: the Code of Civil Procedure. Subject to the Act and to High Court rules, all proceedings under the Act are regulated, as far as may be, by the Code of Civil Procedure 1908.

Section 40A: transfer. Where both parties have petitioned for judicial separation or divorce, in the same or different courts, the later petition is transferred to the court of the earlier and both are heard together, as under section 21A of the Hindu Marriage Act.

Section 40B: speed. Trial to be continued from day to day so far as practicable, with an endeavour to conclude within six months of service, and appeals within three months, as under section 21B.

Section 40C: documents. No document is inadmissible at the trial on the ground that it is not duly stamped or registered, as under section 21C.

Section 41: rules. The High Court may make rules regulating procedure under the Act.

Sections 40A, 40B and 40C were all inserted by the 1976 amendment, which put the two Acts into step on procedure. A student who has learned sections 21A, 21B and 21C of the Hindu Marriage Act has learned these.

A worked example

Kavita married under the Special Marriage Act in March; the certificate was entered on 20 March. In August her husband leaves India for good and stops supporting her. She wants a divorce at once, and money in the meantime.

Can she petition for divorce now? Section 29: no petition for divorce shall be presented within one year from the date of entry of the certificate, that is before 20 March next year, unless the court allows an earlier petition on the ground of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.

Where does she file? Section 31 gives the five ordinary forums, and adds one for exactly her case: where the husband has left India, she may petition in the district court where she is residing.

What can she get in the meantime? Section 36: expenses of the proceeding and maintenance pendente lite, which under this Act is available to the wife alone.

And at the end? Section 37: permanent alimony and maintenance, again for the wife alone.

How does that compare with the Hindu Marriage Act? Sections 24 and 25 of that Act are available to either spouse. On maintenance the secular Act is the less equal of the two, which is worth saying in an essay that praises it in other respects.

Suppose she wanted him back instead. Section 22, restitution of conjugal rights, in the same words as section 9 of the Hindu Marriage Act. And if he disobeyed the decree, section 23 gives her a ground of judicial separation that the Hindu Act does not have.

Will the hearing be public? Section 33: proceedings in camera, and the same restriction on publication. And section 34 obliges the court to satisfy itself of the grounds and to attempt reconciliation before granting relief.

What it does NOT mean

Section 22 is not different from section 9 of the Hindu Marriage Act. It is that section in the same words.

Section 23 is not confined to the divorce grounds. It adds a ground the Hindu Act does not have: failure to comply with a decree for restitution.

Section 29 is not an absolute bar. Leave may be given for exceptional hardship to the petitioner or exceptional depravity on the respondent's part.

The year runs from the certificate. It runs from the date of entry of the certificate of marriage, not from any ceremony.

Section 31 does not give only the five Hindu Act forums. It adds one for a wife whose husband has left India.

Sections 36 and 37 are not the counterparts of sections 24 and 25. They run to the wife alone, whereas the Hindu Act's provisions run to either spouse, which makes the secular Act the less equal of the two on maintenance.

Quick revision

• Chapter V: s.22 restitution of conjugal rights, in the same words as s.9 of the Hindu Marriage Act; s.23 judicial separation, on any ground of divorce and, in addition, on failure to comply with a decree for restitution.
• s.29: no divorce within one year of the entry of the certificate of marriage, unless leave is given for exceptional hardship or exceptional depravity. s.30: remarriage lawful when there is no right of appeal, or the time has expired, or an appeal has been dismissed.
• Chapter VII: s.31 gives the five forums of section 19 of the Hindu Marriage Act plus one where the husband has left India; s.32 the contents of the petition; s.33 proceedings in camera; s.34 the court's duty before granting relief, including reconciliation; s.35 the decree.
• ss.36 and 37: expenses and maintenance pendente lite and permanent alimony, both for the wife alone, unlike ss.24 and 25 of the Hindu Marriage Act, which run to either spouse.
• ss.38 to 40C: custody of children; appeals; enforcement; transitional and saving provisions.

Test yourself

1. What additional ground of judicial separation does this Act have? Failure to comply with a decree for restitution of conjugal rights, under section 23, which the Hindu Marriage Act does not provide as a ground of judicial separation.

2. From what date does the one-year bar on divorce run? From the date of entry of the certificate of marriage in the Marriage Certificate Book, under section 29, and the court may allow an earlier petition on the ground of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.

3. Where may a petition under the Act be presented? In the district court within whose ordinary original civil jurisdiction the marriage was solemnized; or the respondent resides at the time of presentation; or the parties last resided together; or the petitioner is residing at the time of presentation, where the respondent is at that time residing outside the territories to which the Act extends or has not been heard of as alive for seven years; and where the wife is the petitioner, where she is residing.

4. How do sections 36 and 37 differ from sections 24 and 25 of the Hindu Marriage Act? Sections 36 and 37 provide expenses and maintenance pendente lite and permanent alimony for the wife alone, whereas sections 24 and 25 of the Hindu Marriage Act are available to either spouse.

Section 45: false declarations

Every person making, signing or attesting any declaration or certificate required by or under the Act which contains a statement that is false, and which he either knows or believes to be false or does not believe to be true, is guilty of the offence described in section 199 of the Indian Penal Code, which punished a false statement made in a declaration that is by law receivable as evidence. That offence is now section 236 of the Bharatiya Nyaya Sanhita 2023, under the same heading.

The section reaches not only the parties but the three witnesses who sign the declaration under section 11 and the certificate under section 13, which is what makes those signatures worth having.

Section 46: the Marriage Officer's own offence

Any Marriage Officer who knowingly and wilfully solemnizes a marriage under the Act:

(1) without publishing a notice as required by section 5; or (2) within thirty days of the publication of the notice; or (3) in contravention of any other provision of the Act,

is punishable with simple imprisonment which may extend to one year, or fine which may extend to five hundred rupees, or both.

This is the section that gives the notice provisions their teeth, and it explains why a Marriage Officer will not shorten the thirty days however sympathetic the couple. He commits an offence if he does. A student writing about the criticism of the notice period in [Notice, Objection and Solemnisation] should mention section 46, because it shows the wait is not administrative caution but a statutory duty enforced by a criminal sanction.

Sections 47 to 49: the register

Section 47. The Marriage Certificate Book shall at all reasonable times be open for inspection and shall be admissible as evidence of the statements contained in it; and certified extracts shall be given by the Marriage Officer on application and payment of the prescribed fee.

Read this with section 13(2), which makes the certificate conclusive evidence that the marriage was solemnized and the formalities observed. Section 47 is how a party gets hold of that evidence years later.

Section 48. Every Marriage Officer in a State shall send to the Registrar-General of Births, Deaths and Marriages of that State, at prescribed intervals and in prescribed form, a true copy of all entries made in the Marriage Certificate Book since the last interval; and Marriage Officers outside the territories to which the Act extends send theirs to an authority specified by the Central Government.

Section 49. A Marriage Officer who discovers an error in the form or substance of any entry may, within one month after the discovery, correct it in the presence of the persons married, or if they are dead or absent in the presence of two other credible witnesses, by an entry in the margin without any alteration of the original entry, signing the marginal entry and adding the date; and he must make the like marginal entry on the certificate. Every correction must be attested by the witnesses in whose presence it was made, and where a copy has already gone to the Registrar-General under section 48 a separate certificate of the erroneous entry and the marginal correction must be sent.

The method is the point and it is worth a line: the original entry is never altered. A correction is written in the margin, dated and attested, so that the register shows both what was recorded and what it was corrected to. That is how a document keeps its value as conclusive evidence.

Sections 50 and 51: rules and repeals

Section 50 gives the rule-making power: to the Central Government in the case of officers of the Central Government, and to the State Government in all other cases, by notification in the Official Gazette. Section 50(2) lists what the rules may cover: the duties and powers of Marriage Officers and the areas of their jurisdiction; the manner and procedure of inquiries; the form and manner of keeping the books; the fees; the manner of giving public notice under section 16; the form and intervals for sending copies under section 48; and anything else requiring to be prescribed. Section 50(3) requires rules made by the Central Government to be laid before each House of Parliament.

Section 51 deals with repeals. Sub-section (1) repeals the Special Marriage Act 1872 and any corresponding law in force in a Part B State. Sub-section (2) provides that notwithstanding the repeal, all marriages duly solemnized under the Act of 1872, or any such corresponding law, shall be deemed to have been solemnized under this Act, and that all pending matrimonial suits and proceedings shall be dealt with by the court as if originally instituted under this Act. Sub-section (3) preserves section 6 of the General Clauses Act 1897.

The deeming in sub-section (2)(a) is the part to remember: a couple married under the 1872 Act did not have to do anything in 1955. Their marriage became a marriage under this Act by operation of law.

A worked example

Karan is married under Hindu rites. He goes to a Marriage Officer and marries Anjali under the Special Marriage Act, declaring in the notice that he has no spouse living. Two witnesses sign the declaration knowing the truth. The Marriage Officer solemnizes the marriage nine days after the notice.

Is the second marriage valid? No. Section 43: where a person who is already married under any law marries under this Act, the marriage is void and the penal provisions apply, now section 82(1) and (2) of the Bharatiya Nyaya Sanhita 2023.

And the mirror case? Section 44: a person whose marriage is solemnized under this Act who contracts another marriage during its subsistence is subject to the same consequences.

The false declaration. Section 45: any person making a false declaration or statement under the Act is punishable as for the corresponding offence under the Sanhita. The witnesses who sign knowing the truth are within it.

And the Marriage Officer? Section 46: a Marriage Officer who knowingly and wilfully solemnizes a marriage under the Act without publishing the notice or before the expiry of thirty days, or in contravention of any other provision, is punishable with simple imprisonment up to one year, or a fine up to five hundred rupees, or both. That penalty is what makes the waiting period real.

Does the Act invalidate their Hindu marriage? No. Section 42 provides only that the Act does not affect the validity of any marriage not solemnized under it, nor of any other mode of contracting marriage.

What about the register? Sections 47 to 49: the Marriage Certificate Book is open to inspection and its entries are admissible as evidence; certified extracts may be obtained on payment; and corrections are made in the manner the Act provides.

And the rest? Sections 50 and 51: the power to make rules, and the repeals and savings.

What it does NOT mean

Section 42 does not save customary divorce or personal law generally. It says only that the Act does not affect the validity of a marriage not solemnized under it, or of any other mode of contracting marriage.

Sections 43 and 44 are not the same provision twice. The first is for a married person marrying under this Act; the second for a person married under this Act marrying elsewhere.

Section 45 is not confined to the parties. It reaches any person who makes a false declaration or statement, including a witness.

Section 46 is not about the parties at all. It punishes the Marriage Officer.

And it is not a heavy penalty. One year and five hundred rupees; its importance is that it exists.

The register is not private. It is open to inspection, and its entries are admissible as evidence.

Quick revision

• s.42: the Act does not affect the validity of a marriage not solemnized under it, nor of any other mode of contracting marriage.
• s.43: a person already married under any law who marries under this Act: the marriage is void and the penal provisions apply. s.44: a person married under this Act who contracts another marriage: the same.
• The penal law now: s.82(1) of the Bharatiya Nyaya Sanhita 2023, seven years; s.82(2), where the earlier marriage is concealed, ten years.
• s.45: a false declaration or statement under the Act is punishable as the corresponding offence under the Sanhita.
• s.46: a Marriage Officer who knowingly and wilfully solemnizes a marriage without publishing the notice, or before thirty days have expired, or in contravention of any other provision: simple imprisonment up to one year, or a fine up to five hundred rupees, or both.
• ss.47 to 49: the Marriage Certificate Book is open to inspection, its entries are admissible as evidence, certified extracts may be obtained, and corrections are made as provided.
• ss.50 and 51: rules and repeals.

Test yourself

1. What does section 42 save? Only this: that nothing in the Act shall affect the validity of any marriage not solemnized under its provisions, nor shall the Act be deemed directly or indirectly to affect the validity of any marriage customary among any tribe, community, group or family, or of any other mode of contracting marriage.

2. What are the two bigamy provisions? Section 43, which applies where a person who is already married under any law marries again under this Act, and section 44, which applies where a person whose marriage is solemnized under this Act contracts another marriage during its subsistence. In both the second marriage is void and the penal provisions apply.

3. What does section 46 punish? A Marriage Officer who knowingly and wilfully solemnizes a marriage under the Act without publishing a notice of intended marriage as required, or before the expiry of thirty days from the publication of the notice, or in contravention of any other provision. The punishment is simple imprisonment up to one year, or a fine up to five hundred rupees, or both.

4. Is the Marriage Certificate Book public? Yes. It is open to inspection at all reasonable times, certified extracts may be obtained on payment of the prescribed fee, and the entries are admissible as evidence of the marriages to which they relate.

The definition has two limbs and both must be satisfied: they must have lived together in a shared household, and the relationship must be of one of the five listed kinds.

"Relationship in the nature of marriage" is the phrase that reaches a live-in relationship, and it is not open-ended. In D. Velusamy v. D. Patchaiammal, AIR 2011 SC 479, the Supreme Court held that such a relationship is akin to a common law marriage and requires that the couple hold themselves out to society as being akin to spouses, be of legal age to marry, be otherwise qualified to enter a legal marriage including being unmarried, and have voluntarily cohabited and held themselves out as akin to spouses for a significant period, and in addition that they lived together in a shared household. In Indra Sarma v. V. K. V. Sarma, (2013) 15 SCC 755, the Court applied that test to a woman who knew her partner was married and held her outside the Act. Both are set out in full in [Maitri Sambandh, Live-in Relationships and the Divided Home].

"Family members living together as a joint family" should not be overlooked. It brings in a sister, a daughter-in-law, a widowed aunt, anyone living in the joint family, without any question of marriage at all.

Section 2(s): shared household

A shared household means a household where the aggrieved person lives or at any stage has lived in a domestic relationship, either singly or along with the respondent, and includes such a household:

• whether owned or tenanted jointly by the aggrieved person and the respondent; or
• owned or tenanted by either of them, in respect of which either or both, jointly or singly, have any right, title, interest or equity; and
• includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in it.

That last limb is the widest words in the Act. A house belonging to the respondent's joint family is a shared household even though neither he nor she owns any part of it. It is what makes section 17, the right to reside, worth having, because in most Indian households the daughter-in-law owns nothing and her husband may own nothing either.

Section 3: what domestic violence is

For the purposes of the Act, any act, omission or commission or conduct of the respondent constitutes domestic violence if it:

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person, or tends to do so, and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct in clause (a) or (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Notice how wide this is before the Explanations even begin. It covers an omission as well as an act. It covers conduct that tends to harm, so no harm need have occurred. Clause (d) is a residual sweep. And clause (b) makes a dowry demand itself domestic violence, without any violence at all, which is why the Act borrows the definition of dowry from the Dowry Prohibition Act in section 2(h).

Explanation I: the four abuses

Physical abuse means any act or conduct of such a nature as to cause bodily pain, harm or danger to life, limb or health, or impair the health or development of the aggrieved person, and includes assault, criminal intimidation and criminal force.

Sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.

Verbal and emotional abuse includes insults, ridicule, humiliation, name calling, and insults or ridicule specially with regard to not having a child or a male child; and repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

The words about not having a child, and specifically not having a male child, are worth quoting in an answer. Parliament named that particular cruelty because it is so common, and no other Indian statute does.

Economic abuse includes three things, and the Act spells each out.

(a) The deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom, whether payable under an order of a court or otherwise, or which she requires out of necessity, including but not limited to household necessities for her and her children, stridhan, property jointly or separately owned by her, payment of rent related to the shared household, and maintenance.

(b) The disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like, or other property in which she has an interest or is entitled to use by virtue of the domestic relationship, or which may be reasonably required by her or her children, or her stridhan.

(c) The prohibition or restriction of continued access to resources or facilities which she is entitled to use or enjoy by virtue of the domestic relationship, including access to the shared household.

Economic abuse is the head that most surprises students. Cutting off a woman's money, selling the household goods, disposing of her stridhan, stopping the rent, or locking her out of the house is domestic violence under this Act as much as striking her is.

Explanation II: the test is the whole picture

Explanation II provides that for the purpose of determining whether any act, omission, commission or conduct constitutes domestic violence under the section, the overall facts and circumstances of the case shall be taken into consideration.

That is a direction against reading the definitions clause by clause in isolation. A single sharp word is not domestic violence; the same word in a pattern of humiliation may be. It is the same instinct as the direction in Samar Ghosh that a marriage must be reviewed as a whole, and it is worth citing when a problem question turns on conduct that looks trivial in isolation.

How the definitions fit together

The order of questions in a problem is fixed, and answering them out of order produces nonsense.

Is the complainant a woman? If not, the Act does not apply.

Is the person complained against an adult male in a domestic relationship with her, or, where she is a wife or a partner in a relationship in the nature of marriage, a relative of his? If not, there is no respondent.

Have the two lived together, at any time, in a shared household? If not, there is no domestic relationship, whatever the relationship between them.

Is the relationship one of the five kinds in section 2(f)? Consanguinity, marriage, a relationship in the nature of marriage, adoption, or family members living together as a joint family.

Does the conduct fall within section 3? Given the width of clause (a) and the residual clause (d), it usually will if the first four questions are answered yes.

That is also the order in which Velusamy and Indra Sarma were decided. Both failed at the third and fourth questions, not the fifth.

A worked example

Four women ask whether they are within the Act. Sunita is beaten by her husband. Meena is taunted daily by her mother-in-law and her husband's sister for the dowry her family did not bring. Kavita's husband takes her whole salary and gives her nothing for the house. Farah lived with a married man for six years believing him to be single, and has now been turned out.

Sunita. She is an aggrieved person under section 2(a), a woman in a domestic relationship with the respondent; her husband is a respondent under section 2(q), an adult male; and the beating is physical abuse under section 3.

Meena. The taunts are verbal and emotional abuse under section 3, and the demand-related harassment is separately covered: harassing or harming her with a view to coercing her or any person related to her to meet an unlawful demand for dowry is domestic violence in itself. And though the respondent must ordinarily be an adult male, the proviso to section 2(q) lets a wife or a female living in a relationship in the nature of marriage file a complaint against a relative of the husband, which reaches the mother-in-law and the sister-in-law.

Kavita. That is economic abuse, one of the four named abuses and the one students forget: deprivation of the economic or financial resources to which she is entitled, and disposal of household effects and of her stridhan.

Farah. The doorway is section 2(f), a relationship in the nature of marriage, and the test in Velusamy requires the parties to be otherwise qualified to marry, including being unmarried. He was married. Whether her belief that he was single alters that is precisely what Indra Sarma was about, and there the woman knew; this book states the test and does not extend the case beyond what it decided.

And where must they have lived? In a shared household under section 2(s), which includes a household owned or tenanted by either of them, jointly or singly, and one belonging to the joint family of which the respondent is a member, irrespective of whether either has any right, title or interest in it.

What it does NOT mean

Only a woman may complain. An "aggrieved person" under section 2(a) is a woman who is or has been in a domestic relationship with the respondent.

The respondent is not any person. Under section 2(q) he is an adult male in a domestic relationship, and only where the aggrieved person is a wife or a female living in a relationship in the nature of marriage may a complaint be filed against a relative of the husband or the male partner.

A domestic relationship is not any relationship. It requires that the two live or have at any point of time lived together in a shared household, and one of the five relationships: consanguinity, marriage, a relationship in the nature of marriage, adoption, or membership of a joint family.

A shared household is not property the respondent owns. It includes a household owned or tenanted by either of them, jointly or singly, and a house belonging to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in it.

Domestic violence is not confined to acts. It covers an act, omission or commission or conduct, and conduct that merely tends to harm.

Dowry demand is not an incident of some other abuse. Harassment to coerce her or a person related to her to meet an unlawful demand for dowry is domestic violence in itself.

And economic abuse is not a footnote. It is one of the four named abuses and the one students forget.

Quick revision

• s.2(a) aggrieved person: any woman who is or has been in a domestic relationship with the respondent and alleges to have been subjected to any act of domestic violence.
• s.2(q) respondent: any adult male who is or has been in a domestic relationship with her; and where she is a wife or a female living in a relationship in the nature of marriage, a complaint may also lie against a relative of the husband or male partner.
• s.2(f) domestic relationship: two persons who live or have at any point of time lived together in a shared household, related by consanguinity, marriage, a relationship in the nature of marriage, adoption, or as members of a joint family.
• s.2(s) shared household: a household where she lives or has lived in a domestic relationship, owned or tenanted by either of them, jointly or singly, or belonging to the joint family of which the respondent is a member, irrespective of any right, title or interest of either in it.
• s.3 domestic violence: any act, omission or commission or conduct that harms or injures or endangers health, safety, life, limb or wellbeing, whether mental or physical, or tends to do so, and includes physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; harassment to coerce an unlawful dowry demand; and any threat.

Test yourself

1. Who may complain under the Act, and against whom? Any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to an act of domestic violence. The respondent must be an adult male in such a relationship; where the aggrieved person is a wife or a female living in a relationship in the nature of marriage, a complaint may also be filed against a relative of the husband or male partner.

2. What is a domestic relationship? A relationship between two persons who live or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption, or are family members living together as a joint family.

3. What is a shared household? A household where the aggrieved person lives or has lived in a domestic relationship either singly or with the respondent, whether owned or tenanted either jointly by them or by either of them, and includes a household belonging to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in it.

4. What amounts to domestic violence? Any act, omission or commission or conduct of the respondent which harms or injures or endangers the health, safety, life, limb or wellbeing, whether mental or physical, of the aggrieved person, or tends to do so, and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; harassing, harming, injuring or endangering her with a view to coercing her or any person related to her to meet any unlawful demand for dowry or other property or valuable security; and otherwise injuring or causing harm, whether physical or mental, to her.

Sections 6 and 7: shelter and medical aid

Section 6. If the aggrieved person, or a Protection Officer or service provider on her behalf, requests the person in charge of a shelter home to provide shelter, that person shall provide shelter to her in the shelter home.

Section 7. If the aggrieved person, or a Protection Officer or service provider on her behalf, requests the person in charge of a medical facility to provide medical aid, that person shall provide medical aid to her.

Both are one-sentence duties and both use "shall". A shelter home notified under section 2(t), or a medical facility notified under section 2(j), has no discretion to refuse. That is unusual and it is the point: a woman turned away from a shelter at night has no remedy that is any use to her, so the Act removes the possibility.

Section 8: appointment of Protection Officers

Section 8(1) requires the State Government, by notification, to appoint such number of Protection Officers in each district as it considers necessary, and to notify the areas within which each shall exercise his powers and perform his duties.

Section 8(2) provides that Protection Officers shall as far as possible be women, and shall possess such qualifications and experience as may be prescribed.

Section 8(3) leaves the terms and conditions of service to be prescribed.

The office is the Act's central innovation. Nothing like it existed before: an officer of the State whose entire function is to help a woman use a statute.

Section 9: the duties of a Protection Officer

Section 9(1) lists nine duties, and they should be read as a sequence rather than a list, because they follow the course of a case.

(a) To assist the Magistrate in the discharge of his functions under the Act.

(b) To make a domestic incident report to the Magistrate, in the prescribed form, on receipt of a complaint, and to forward copies to the police officer in charge of the police station within whose jurisdiction the violence is alleged to have been committed, and to the service providers in that area.

(c) To make an application to the Magistrate, if the aggrieved person so desires, claiming a protection order.

(d) To ensure that she is provided legal aid under the Legal Services Authorities Act 1987, and to make available free of cost the prescribed complaint form.

(e) To maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in the local area.

(f) To make available a safe shelter home if she requires one, and to forward a copy of his report of having lodged her there to the police station and the Magistrate having jurisdiction where the shelter home is.

(g) To get her medically examined if she has sustained bodily injuries, and forward a copy of the medical report to the police station and the Magistrate having jurisdiction where the violence is alleged to have taken place.

(h) To ensure that an order for monetary relief under section 20 is complied with and executed, in accordance with the procedure prescribed under the Code of Criminal Procedure 1973.

(i) To perform such other duties as may be prescribed.

Section 9(2) provides that the Protection Officer is under the control and supervision of the Magistrate, and shall perform the duties imposed on him by the Magistrate and by the Government.

The two duties that do the most work

The domestic incident report under clause (b) is the document the whole proceeding is built on. It is defined in section 2(e) as a report made in the prescribed form on receipt of a complaint, and the Magistrate is required by section 12 to take it into consideration.

Clause (h) is the one that turns an order into money. A monetary relief order is worthless if the woman must enforce it herself. Section 9(1)(h) makes it the Protection Officer's own duty to see that it is complied with and executed.

Notice also that clause (c) lets the Protection Officer make the application, so a woman who cannot approach a court, or cannot afford to, need not.

Section 10: service providers

Section 10(1) provides that any voluntary association registered under the Societies Registration Act 1860, or a company registered under the Companies Act, or under any other law, with the objective of protecting the rights and interests of women by any lawful means including legal aid, medical, financial or other assistance, shall register itself with the State Government as a service provider.

Section 10(2) gives a registered service provider three powers:

(a) to record the domestic incident report in the prescribed form if the aggrieved person so desires, and forward a copy to the Magistrate and the Protection Officer;

(b) to get her medically examined and forward a copy of the medical report to the Protection Officer and the police station; and

(c) to ensure she is provided shelter in a shelter home if she so requires, and forward a report to the police station.

Section 10(3) protects the service provider: no suit, prosecution or other legal proceeding lies against a service provider, or any member of it, for anything done or intended to be done in good faith in the exercise of powers under the Act.

The design is worth naming in an answer. Parliament did not rely on the State alone. It brought the existing network of women's organisations inside the statute, gave them the same power as the Protection Officer to record the report and to obtain shelter and medical examination, and protected them from suit for acting in good faith.

Section 11: duties of Government

Section 11 requires the Central Government and every State Government to take all measures to ensure that:

• the provisions of the Act are given wide publicity through the media, including television, radio and print, at regular intervals;
• officers of the Central and State Governments, including police officers and members of the judicial service, are given periodic sensitisation and awareness training in the issues addressed by the Act;
• effective coordination between the services provided by concerned Ministries and Departments dealing with law, home affairs including law and order, health and human resources is established, and periodical review of it is conducted; and
• protocols for the various Ministries concerned with the delivery of services to women under the Act, including the courts, are prepared and put in place.

It is easy to skip section 11 as exhortation, and it is worth one line in an answer for a reason: the Act recognised that a statute of this kind fails if the police officer and the Magistrate who first meet the woman have not been trained in it. Publicity and sensitisation are made statutory duties, not aspirations.

A worked example

A neighbour hears a woman being beaten. He does not know her name and does not want to be involved in a case. The woman, when she is found, has injuries and nowhere to go, and does not know she may ask for more than one relief.

Can the neighbour do anything? Section 4(1): any person who has reason to believe that an act of domestic violence has been, is being or is likely to be committed may give information to the concerned Protection Officer.

Is he exposed by doing so? No. Section 4(2): no liability, civil or criminal, is incurred by a person giving such information in good faith.

What must the officer, or the police, tell her? Section 5, five things: her right to apply for one or more reliefs; the availability of service providers; the availability of Protection Officers; her right to free legal services under the Legal Services Authorities Act 1987; and her right to file a complaint under the penal law.

She has nowhere to sleep. Section 6: on a request by her, or by a Protection Officer or service provider on her behalf, the person in charge of a shelter home shall provide shelter.

And her injuries. Section 7: the person in charge of a medical facility shall provide medical aid on the same kind of request.

Who is the Protection Officer? Section 8: appointed by the State Government for each district, as far as possible women, with the prescribed qualifications and experience.

What does he then do? Section 9: assist the Magistrate; make a domestic incident report and forward it; make an application for a protection order if she so desires; ensure she gets legal aid, a safe shelter and a medical examination; and ensure that any monetary order is complied with and executed.

And if a women's organisation helps her instead? Section 10: a registered service provider may record the domestic incident report, get her medically examined, and see that she is placed in a shelter home, and no proceeding lies against it for anything done in good faith.

What it does NOT mean

The Act does not wait for the woman to complain. By section 4 any person who has reason to believe that an act of domestic violence has been, is being or is likely to be committed may give information to the Protection Officer.

An informant is not at risk for a wrong guess. No liability, civil or criminal, lies against a person giving the information in good faith.

Section 5 is not a courtesy. It is a duty on a police officer, Protection Officer, service provider or Magistrate who receives a complaint or is present at the place.

She is not put to a choice of remedies. She must be told of her right to make an application for one or more of the reliefs.

Shelter and medical aid are not discretionary. On a request made by her or on her behalf by a Protection Officer or service provider, the person in charge of a shelter home or medical facility shall provide it.

Protection Officers are not police. They are appointed by the State Government, and are to be women as far as possible.

A service provider is not a volunteer without status. A registered company, society or voluntary association working for women's rights may record a domestic incident report, get her medically examined and get her to a shelter home, and is protected for acts done in good faith.

Quick revision

• s.4: any person may inform a Protection Officer of violence committed, being committed or likely to be committed, and is immune if he acts in good faith.
• s.5: a police officer, Protection Officer, service provider or Magistrate who receives a complaint or is present must inform her: of her right to apply for one or more reliefs; of the availability of service providers; of the availability of Protection Officers; of her right to free legal services under the Legal Services Authorities Act 1987; and of her right to file a complaint under the penal law.
• ss.6 and 7: on a request, a shelter home must accommodate her and a medical facility must provide medical aid.
• s.8: the State Government appoints Protection Officers in each district, women as far as possible, with prescribed qualifications.
• s.9: his duties: assist the Magistrate; make a domestic incident report; make an application for a protection order if she so desires; ensure legal aid, a safe shelter and a medical examination; ensure the monetary order is executed; and perform the other prescribed duties.
• s.10: service providers, registered under the Companies Act, the Societies Registration Act or any other law, with power to record a domestic incident report, arrange a medical examination and a shelter home, and immunity for acts in good faith.
• s.11: duties of Government: publicity, sensitisation and training of officers, protocols, and co-ordination between departments.

Test yourself

1. Who may give information about domestic violence? Any person who has reason to believe that an act of domestic violence has been, is being or is likely to be committed may give information to the concerned Protection Officer, and no liability, civil or criminal, is incurred by a person giving such information in good faith.

2. What must a person who receives a complaint tell the aggrieved woman? Of her right to make an application for obtaining a relief by way of a protection order, an order for monetary relief, a custody order, a residence order, a compensation order or more than one such order; of the availability of the services of service providers and of Protection Officers; of her right to free legal services under the Legal Services Authorities Act 1987; and of her right to file a complaint under the penal law.

3. What are the duties of a Protection Officer? To assist the Magistrate; to make a domestic incident report and forward it; to make an application for a protection order if the aggrieved person so desires; to ensure that she is provided legal aid, a safe shelter and a medical examination if she has sustained injuries; to ensure that any order for monetary relief is complied with and executed; and to perform such other duties as may be prescribed.

4. What is a service provider? A voluntary association registered under the Societies Registration Act 1860, or a company registered under the Companies Act, or any other law, with the object of protecting the rights and interests of women, registered with the State Government. It may record a domestic incident report, get the aggrieved person medically examined and see that she is placed in a shelter home, and no suit or legal proceeding lies against it for anything done in good faith.

Section 13(2) provides that a declaration of service made by the Protection Officer, in the prescribed form, shall be proof that the notice was served, unless the contrary is proved.

Both sub-sections exist to stop the commonest way of defeating an urgent application, which is to avoid service. The Protection Officer serves it, not the applicant; he has two days; and his declaration proves service unless it is disproved.

Section 14: counselling

Section 14(1) allows the Magistrate, at any stage of the proceedings, to direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with a member of a service provider possessing the prescribed qualifications and experience in counselling.

Section 14(2) provides that where such a direction is given, the Magistrate shall fix the next date of hearing within a period not exceeding two months.

Read the two sub-sections together and notice what the second is for. Counselling in a matrimonial case is a well-known way of losing a year. Sub-section (2) caps the delay at two months.

Note also "either singly or jointly". The Magistrate need not order the woman into a room with the man she says has been violent, and the section is drafted so that he does not have to.

Section 15: assistance of a welfare expert

In any proceeding the Magistrate may secure the services of any person, preferably a woman, whether related to the aggrieved person or not, including a person engaged in promoting family welfare, for the purpose of assisting him in discharging his functions.

A short section with a practical purpose. A Magistrate exercising criminal jurisdiction is not trained in family welfare, and section 15 lets him bring in somebody who is.

Section 16: proceedings in camera

If the Magistrate considers that the circumstances of the case so warrant, and if either party so desires, he may conduct the proceedings in camera.

Compare this with section 22 of the Hindu Marriage Act and section 33 of the Special Marriage Act, where in camera proceedings are mandatory in every case. Here it is discretionary and requires a party to ask. That difference is worth a line: this is a proceeding before a criminal court, where open justice is the norm, and the Act adjusts rather than displaces it.

Section 17: the right to reside in a shared household

This is the section the Act is remembered for.

Section 17(1). Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

Section 17(2). The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

Why this changed things

Before 2005, a woman's right to stay in the house she lived in depended on property law. If the house belonged to her husband's father, or to the joint family, or was tenanted in her husband's name, she had no interest in it and could be put out. The remedies she had, maintenance and matrimonial relief, were about money and status, not about a roof.

Section 17 detaches the right to reside from ownership entirely. It is a right that belongs to every woman in a domestic relationship, and it operates notwithstanding any other law, which means the ordinary law of property and tenancy gives way to it.

Read it with the definition of shared household in section 2(s), which expressly includes a household belonging to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in it. Between them, section 2(s) and section 17 cover the ordinary Indian household in which the daughter-in-law owns nothing and her husband may own nothing either.

The limits

It is a right to reside, not a right of ownership. Section 17 gives her no title, no share and nothing to sell or bequeath. It gives her the right to be there.

It runs against the respondent. Sub-section (2) forbids eviction or exclusion by the respondent.

"Save in accordance with the procedure established by law." She may still be removed by a lawful process. What she may not be is put out by the respondent's own act.

The house must be a shared household. She must live or at some stage have lived in it in a domestic relationship. A house she has never lived in is not a shared household, however closely connected to the family.

Section 17 and section 19

Section 17 states the right. Section 19 gives the Magistrate power to make a residence order enforcing it: restraining dispossession, directing the respondent to remove himself, restraining him or his relatives from entering the portion she occupies, restraining alienation of the household, or directing him to secure alternative accommodation of the same level or to pay rent for it. Section 19 is in the next chapter, and the two must be answered together: a question that asks about the right to reside is asking about both.

A worked example

Sunita is beaten by her husband in his parents' house, which belongs to his father. She goes to a Protection Officer, who makes a domestic incident report and applies to the Magistrate on her behalf. She wants to stay in the house and wants him restrained. She has also filed a civil suit for compensation.

Who may apply? Section 12(1): the aggrieved person, or a Protection Officer, or any other person on her behalf, may present an application to the Magistrate seeking one or more reliefs under the Act.

Must the Magistrate look at the report? Yes. Before passing any order he shall take into consideration any domestic incident report received from the Protection Officer or the service provider.

She has claimed compensation twice. Section 12(1) proviso: where she has already obtained compensation in a civil suit, the amount is to be set off against the order under the Act, so nothing is paid twice.

How fast? Section 12(4): the Magistrate shall fix the first date of hearing ordinarily within three days of receipt of the application. Section 12(5): he shall endeavour to dispose of it within sixty days of the first hearing.

How is notice served? Section 13: by the Protection Officer, within two days or such further reasonable time as the Magistrate allows, and his declaration of service is prima facie proof.

Counselling? Section 14: at any stage the Magistrate may direct the parties, singly or jointly, to undergo counselling with a service provider, and shall fix the next hearing within two months.

Any other assistance? Section 15: he may secure the assistance of a person, preferably a woman, engaged in promoting family welfare.

Is the hearing private? Section 16: proceedings may be held in camera if the Magistrate considers that the circumstances warrant it and either party so desires.

Can she be put out of the house? No. Section 17(1): every woman in a domestic relationship has the right to reside in the shared household, whether or not she has any right, title or beneficial interest in it. Section 17(2): she shall not be evicted or excluded except in accordance with the procedure established by law.

What it does NOT mean

The application is not hers alone to make. A Protection Officer or any other person on her behalf may make it.

She need not choose one relief. She may seek one or more.

Compensation is not recoverable twice. The proviso to section 12(1) requires a set-off.

The three-day and sixty-day periods are not jurisdictional. The first hearing is "ordinarily" within three days, and the Magistrate shall "endeavour" to dispose of the case within sixty.

Counselling is not compulsory before an order. It may be directed at any stage, and the Act's reliefs are not conditional on it.

In camera is not automatic. It requires both that the Magistrate thinks the circumstances warrant it and that a party desires it.

Section 17 does not give her ownership. It gives a right to reside, whatever the title, and forbids eviction except by the procedure established by law.

Quick revision

• s.12: an application by the aggrieved person, the Protection Officer or any person on her behalf, for one or more reliefs; the Magistrate must consider the domestic incident report; compensation already obtained in a civil suit is set off; the first hearing ordinarily within three days; disposal endeavoured within sixty days of it.
• s.13: service by the Protection Officer within two days, his declaration being prima facie proof.
• s.14: counselling at any stage, singly or jointly, with the next hearing within two months. s.15: assistance of a person, preferably a woman, engaged in promoting family welfare.
• s.16: proceedings in camera where the Magistrate thinks the circumstances warrant it and either party desires it.
• s.17: every woman in a domestic relationship has the right to reside in the shared household, whether or not she has any right, title or beneficial interest in it, and she shall not be evicted or excluded except in accordance with the procedure established by law.

Test yourself

1. Who may apply to the Magistrate under the Act? The aggrieved person, or a Protection Officer, or any other person on her behalf, seeking one or more reliefs under the Act.

2. What must the Magistrate consider before passing an order? Any domestic incident report received by him from the Protection Officer or the service provider.

3. What time limits does section 12 lay down? The Magistrate shall fix the first date of hearing ordinarily within three days from the date of receipt of the application, and shall endeavour to dispose of every application within sixty days of the first hearing.

4. What is the right to reside in a shared household? By section 17, every woman in a domestic relationship has the right to reside in the shared household, whether or not she has any right, title or beneficial interest in it; and she shall not be evicted or excluded from it or any part of it by the respondent except in accordance with the procedure established by law.

The proviso is examinable and often missed: no order under clause (b) shall be passed against any person who is a woman. So a Magistrate may order the husband out of the house; he may not order the mother-in-law out.

The rest of section 19

Sub-section (2). The Magistrate may impose any additional conditions or pass any other direction reasonably necessary to protect or provide for the safety of the aggrieved person or any child of hers.

Sub-sections (3) and (4). He may require the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence; and such an order is deemed to be an order under Chapter VIII of the Code of Criminal Procedure 1973 and dealt with accordingly.

Sub-section (5). While passing an order under sub-sections (1), (2) or (3), the court may direct the officer in charge of the nearest police station to give her protection, or to assist her or the person applying on her behalf in implementing the order.

Sub-section (6). While making an order under sub-section (1) the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

Sub-section (7). He may direct the officer in charge of the police station in whose jurisdiction he has been approached to assist in the implementation of the protection order.

Sub-section (8). He may direct the respondent to return to her possession her stridhan, or any other property or valuable security to which she is entitled.

Sub-section (8) is a small provision that answers a large practical problem. A woman who leaves usually leaves her jewellery behind, and recovering stridhan by an ordinary suit takes years. Here the Magistrate can simply order it returned.

Section 20: monetary reliefs

Section 20(1) provides that while disposing of an application the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of hers as a result of the domestic violence, and such relief may include, but is not limited to:

(a) the loss of earnings; (b) the medical expenses; (c) the loss caused by the destruction, damage or removal of any property from her control; and (d) the maintenance for her and her children, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure 1973 or any other law.

Sub-section (2). The relief shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

Sub-section (3). The Magistrate may order an appropriate lump sum payment or monthly payments of maintenance.

Sub-section (4). He shall send a copy of the order to the parties and to the officer in charge of the police station where the respondent resides.

Sub-section (5). The respondent shall pay within the period specified in the order.

Sub-section (6). On failure to pay, the Magistrate may direct the employer or a debtor of the respondent to pay directly to the aggrieved person, or to deposit with the court, a portion of the wages, salary or debt due to the respondent, to be adjusted against the monetary relief.

Two points earn marks. The standard in sub-section (2) is not subsistence but the standard of living she is accustomed to, which is a higher and quite deliberate test. And sub-section (6) is attachment of wages at source, which is the most effective enforcement provision in the whole Act, and should be read with the Protection Officer's duty in section 9(1)(h) to see that the order is executed.

Note also that clause (d) allows an order in addition to maintenance under the criminal remedy, so this Act does not displace that jurisdiction.

Section 21: custody orders

Notwithstanding anything contained in any other law, the Magistrate may, at any stage of the hearing of an application for a protection order or for any other relief under the Act, grant temporary custody of any child to the aggrieved person or to the person applying on her behalf, and specify, if necessary, the arrangements for visits by the respondent.

The proviso provides that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child, he shall refuse to allow such a visit.

Three things to say about it.

It is temporary custody only. Permanent custody is for the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956. The Magistrate here is holding the position while the violence is dealt with.

It may be granted at any stage, including before the main application is decided.

The proviso is mandatory. Where visits would harm the child, the Magistrate has no discretion: he shall refuse.

Section 22: compensation orders

In addition to other reliefs, the Magistrate may, on an application by the aggrieved person, direct the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence.

Section 20 and section 22 distinguished

This is a favourite examination point and the distinction is clean.

Put shortly, section 20 covers what the violence cost her, and section 22 covers what it did to her.

Section 23: interim and ex parte orders

Sub-section (1). In any proceeding before him under the Act, the Magistrate may pass such interim order as he deems just and proper.

Sub-section (2). If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed, an act of domestic violence, or that there is a likelihood that he may commit one, he may grant an ex parte order on the basis of the affidavit of the aggrieved person, in the prescribed form, under section 18, section 19, section 20, section 21 or section 22.

Section 23 is what makes the other five sections useful. A woman applying for a residence order because she is about to be put out of the house cannot wait for the respondent to be served, to appear and to file a reply. On her affidavit alone, and on a prima facie disclosure, the Magistrate may make any of the five orders at once and without notice.

The five orders in one table

A worked example

Rekha lives with her husband and his parents in a house owned by her father-in-law. Her husband beats her, has taken her jewellery, has stopped paying anything for her and their daughter, and has told her to get out. She goes to the Magistrate. She is afraid he will act before the hearing.

Can she get an order before he is heard? Section 23(2): if the Magistrate is satisfied on an affidavit in the prescribed form that the respondent is committing, has committed or is likely to commit an act of domestic violence, he may grant an ex parte order under sections 18 to 22.

Stopping the violence. Section 18: a protection order prohibiting him from committing domestic violence, from entering her place of employment, from attempting to communicate with her, and from alienating any assets, including her stridhan and joint bank lockers or accounts.

Staying in the house. Section 19: a residence order restraining him from dispossessing or disturbing her possession of the shared household, "whether or not he has any legal or equitable interest" in it. It is a shared household even though her father-in-law owns it, because it belongs to the joint family of which the respondent is a member.

Can he be sent out instead? Yes: the Magistrate may direct the respondent to remove himself from the shared household. But by the proviso no such order may be passed against any woman, so her mother-in-law cannot be ordered out.

Money. Section 20: monetary relief for loss of earnings, medical expenses, loss caused by destruction, damage or removal of property, and maintenance, which must be adequate, fair and reasonable and consistent with the standard of living to which she is accustomed. If he does not pay, the Magistrate may direct his employer or a debtor to pay her directly.

The daughter. Section 21: temporary custody, with visiting arrangements, and the Magistrate shall refuse a visit if he is of opinion that it may be harmful to the child.

And for what she has suffered. Section 22: compensation and damages for the injuries, including mental torture and emotional distress.

Must she choose between these? No. Section 12 lets her seek one or more of the reliefs, and the Magistrate may grant them together.

What it does NOT mean

The five reliefs are not alternatives. They may be granted together, and section 12 lets her seek one or more.

A protection order does not require violence to have happened. It may be made where the Magistrate is satisfied that domestic violence has taken place or is likely to take place.

A residence order does not turn on ownership. She may be kept in the shared household whether or not he owns it.

And it cannot be made against a woman. The proviso to section 19(1) forbids an order directing any woman to remove herself from the shared household.

Monetary relief is not confined to maintenance. It covers loss of earnings, medical expenses, loss caused by destruction, damage or removal of property, and maintenance, and it must be adequate, fair and reasonable and consistent with the standard of living to which she is accustomed.

A custody order under section 21 is not permanent custody. It is temporary, at any stage of the hearing.

Compensation under section 22 is not the same as monetary relief. It is damages for injuries, including mental torture and emotional distress.

An ex parte order is not made on suspicion. It is made on an affidavit in the prescribed form disclosing that the respondent is committing or has committed or is likely to commit domestic violence.

Quick revision

• s.18, protection order: prohibiting the respondent from committing domestic violence, aiding or abetting it, entering her place of employment or, if she is a child, her school, attempting to communicate with her, alienating any assets including her stridhan or joint bank lockers or accounts, causing violence to her dependants or relatives, or committing any other act specified. It may be made where violence has taken place or is likely to.
• s.19, residence order: restraining dispossession; directing the respondent to remove himself, but never a woman; restraining him or his relatives from entering her portion; restraining alienation or renunciation of the shared household; restraining him from giving up rights in it; or directing him to secure alternative accommodation or pay rent. The court may impose additional conditions, order police protection, require a bond, and direct the return of her stridhan.
• s.20, monetary relief: loss of earnings, medical expenses, loss from destruction, damage or removal of property, and maintenance, adequate, fair, reasonable and consistent with her standard of living, as a lump sum or monthly; failing payment, the Magistrate may direct her employer or debtor to pay her directly.
• s.21, custody order: temporary custody of children, with visiting arrangements, and a harmful visit refused.
• s.22, compensation order: damages for injuries, including mental torture and emotional distress.
• s.23: interim orders as the Magistrate thinks just, and ex parte orders on an affidavit.

Test yourself

1. Name the five reliefs the Magistrate may grant. A protection order under section 18; a residence order under section 19; monetary relief under section 20; a custody order under section 21; and a compensation order under section 22. More than one may be granted.

2. What can a residence order do, and what can it never do? It may restrain the respondent from dispossessing or disturbing her possession of the shared household; direct him to remove himself from it; restrain him or his relatives from entering the portion she occupies; restrain alienation or renunciation of the household; restrain him from giving up his rights in it; or direct him to secure alternative accommodation or pay rent for it. It can never direct a woman to remove herself from the shared household.

3. What may monetary relief cover? The loss of earnings, medical expenses, loss caused by the destruction, damage or removal of property from her control, and maintenance for her and her children, which must be adequate, fair and reasonable and consistent with the standard of living to which she is accustomed. It may be a lump sum or a monthly payment, and on default the Magistrate may direct her employer or a debtor of the respondent to pay her directly.

4. May the Magistrate act before hearing the respondent? Yes. Under section 23 he may pass such interim order as he deems just and proper, and, if satisfied on an affidavit in the prescribed form that the respondent is committing, has committed or is likely to commit an act of domestic violence, may grant an ex parte order under sections 18, 19, 20, 21 or 22.