the Hindu Marriage Act, and with orders for the maintenance of children .. tha Hindi Marriage it clear that an order for interim maintenance under section. Application of Act. Section 3. Definitions. Section 4. Overriding effect of Act. Section 5. Conditions for a Hindu marriage. Section 6. [Omitted.]. This section-wise study of the Hindu Marriage Act, has been immensely popular amongst the legal fraternity and the general public as well, since the.
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An Act to amend and codify the law relating to marriage among Hindus. 1) This Act may be called the Hindu Marriage Act,. (2) It extends to the whole of. Short title and extent - (1) This act may be called the Hindu Marriage Act, (2 ) It extends to the whole of India except the State of Jammu and Kashmir and. (1) This Act may be called the Hindu. Marriage Act, (2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus.
Purpose[ edit ] The main purpose of the act was to amend and codify the law relating to marriage among Hindus and others. This enactment brought uniformity of law for all sections of Hindus. In India there are religion-specific civil codes that separately govern adherents of certain other religions. Section 2  of the Hindu Marriage Act, says: This Act applies - to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; to any person who is a Buddhist, Jain or Sikh by religion; and to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. This section therefore applies to Hindus by religion in any of its forms and Hindus within the extended meaning i. Buddhist, Jains or Sikh and, in fact, applies to all such persons domiciled in the country who are not Muslims, Christians, Parsi or Jew, unless it is proved that such persons are not governed by the Act under any custom or usage. The Act applies to Hindus outside the territory of India only if such a Hindu is domiciled in the territory of India.
Marriage assumes fitness for it including ability for procreation of children. Disorders of procreation of children is a complex subject which involves not only some psychological disorders, but also gynaecological, andrological, endocrinal, neurological disorders inter alia.
When the contribution for this unfitness by mental disorders is only a fraction, why should there be discrimination by their inclusion and by omission of physical illnesses. The persons with mental disorder of such severe extent would in all probability not get married through natural selection or rejection.
The Supreme Court held in Narayan and Santhi[ 4 ] that to brand a wife as unfit for marriage and procreation of children on account of a mental disorder, it needs to be established that the ailment suffered by her is of such a kind or to such an extent that it is impossible for her to lead a normal married life. The unfitness for marriage and procreation of children contemplated here is one arising from mental disorder only, and not on account of any other disorder. Infertility or sterility as such is not a ground for annulment of marriage under Section 12 or for divorce under Section In this case, the respondent was at the time of marriage suffering from schizophrenia.
The medical evidence regarding the requisite degree of mental disorder is relevant, though not conclusive. Each case of schizophrenia has to be considered on its own merit. Section 5 ii c mentions about recurrent attacks of insanity as a ground for nullity of marriage.
Insanity is an obsolete term. However, it is still used it in legal parlance. Recurrent attacks assume remissions and relapses and lucid intervals. In the field of psychiatry, mood disorders are the most common variety of such recurrent nature. The extent of mood disorders ranges from mild spells of blues to severe psychotic episodes. Moreover, the concept of legal insanity has departed widely from Medical insanity in criminal law, while interpreting the Section 84 of Indian Penal Code.
It is not possible to predict the future recurrences before marriage. It is not possible to give clearance for a person with a single episode of depression that he or she would not suffer from a psychotic episode in future. Similarly, it is not possible to predict a bad prognosis for a person who had a couple of psychotic episodes before marriage. Each case has to be decided on individual merits. Sir, the whole world has been brought inside our bedroom through satellite and high tech modern technology.
There is immense development in medical science. Many complicated and serious diseases are well controllable. Of course it is true that medical facilities are out of the reach of the downtrodden and the poor. Epilepsy nowadays is curable. So it is inhuman to equate epilepsy and insanity together for divorce. The word insanity leaves many unfortunate individuals with stigma and denies the right for marriage.
The majority of the persons with mental disorder can lead a normal life with modern treatment. It is highly deplorable to continue insanity as a bar for marriage. Laws which permit nullification or judicial separation on grounds of unsoundness of mind predominantly emphasize on incurable nature of the illness or such manifestations with which one cannot be reasonably expected to live with the spouse.
The social stigma of mental illness is the main deciding factor in the inclusion of the restricted list. Medical science has developed by leaps and bounds. Mental illness is understood better and treated better in the modern era.
Mental disorder is not a single entity. There are different classificatory systems with their hundreds of varieties starting from minor anxiety disorders to major disorders like dementias.
There is no uniformity either in the course or the prognosis of the mental disorders. Even among the same group of disorders like Schizophrenia, the prognosis varies. An analogy or comparison of this situation is to club all the cases of cough, ranging from common cold to lung cancer into one group and determining the fate of the members.
This unfortunate labeling practice influences adversely the judicial determination of the fate and the legal rights of the individual whether to get married or to stay married. Unfortunately the same information and attitude is not transmitted to the legal circles nor figured in legislative debates. Hence it is high time all the phrases indicating mental disorder to be removed from Section 5 of HMA, Mental disorder as a ground for nullity of marriage: Section 12 i c There is provision in the HMA Section 12 1 c for nullity of marriage on the ground that the consent of the petitioner obtained by force or fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.
Under the above provision concealment of history of mental disorder may be considered as fraud. This usually results in allegations and counter allegations, and litigation for nullity. All this is very stressful for the families of the persons with mental disorder, even if it is a minor one like anxiety disorder.
It is submitted that whether fraud is committed or not can be determined by the application of the doctrine of caveat emptor. It is not the duty of the parties intending to marry that they should themselves come forward to speak of their virtues and vices. If a party, is interested in a particular quality of the other party, e. On enquiry if wrong information is given, or some abuse of confidential position or some deliberate concealment of material facts is made,[ 9 , 10 , 11 ] it is to be reckoned as fraud.
If nothing is concealed on enquiry, but the petitioner himself fails to verify all the facts due to his own carelessness or lethargy or difficulties, it is not fraud. Nambi, past President of Indian Psychiatric Society, has expressed his view at various forums that concealment of history of mental disorder should not be a ground for nullity.
There should be an express legislation in this regard. Judiciary recognizes marriage as social institution of both sacramental and contractual nature. Hindu marriage is sacrosanct, specific ceremonies are mandatory Section 7 of HMA. Amongst Hindus consent has little meaning if the marriage has been performed as per the custom, because the marriage is endorsed by God. Consent for marriage can be taken over an extended period before marriage.
In the case of a person with mental illness, it would be most unlikely that the person would have been acutely disturbed over an extended period so as to be unfit to give valid consent In India marriages are usually arranged by the guardian and consent is usually proxy consent.
There are several court judgments which attest to the fact that proxy consent has been accepted as valid consent Even if it is argued that the patients may be unfit to give a valid consent to marriage, at some point of time, in consequence of unsoundness of mind, the guardian who gives the consent proxy is invariably capable of giving a valid consent as he is of sound mind.
Mental illnesses are strongly discriminated against physical illnesses. Many physical illnesses are very serious and disabling, but they are not included in the restrictive conditions of marriage. In present times effective treatments are available for mental illnesses and most mental disorders have good prognosis. Patients with mental illness have a right to marry and live a life of dignity.
Depriving mental patients the right to marry would be a human rights violation. Besides, many patients with mental illnesses perform better than those without mental illnesses.
In the same line it may be said that if patients with epilepsy can marry, those with mental illness should also have the right to marry. It is to be noted that the real problem is the negative attitude or stigma towards mental illness, not mental illness per se.
It is sad that many patients with mental illnesses are abandoned because of the outdated provisions of HMA. Litigations relating to matrimonial disputes, with one party having a mental disorder continue for years and worsen the situation. It is important to mention that both the parties are adversely affected; children and women are the worst sufferers.
Most disturbing is the observation that even some patients with nonpsychotic illnesses e. In India, marriage is the only social support for most adult patients with mental illness as families are generally unwilling to look after patients with mental illnesses.
Amendments suggested would not change the fate of the severe cases with mental illness, as they would not get married any way in the process of natural selection. Clinicians have observed that an unmarried, divorced or separated status adversely affects the prognosis of the mental illness. Women with severe mental illness, unmarried, divorced or separated, is a major public health problem. Society neither has the means, nor the willingness, to take care of them.
Last, but not the least, legal measures would help in overcoming to a large extent the negative attitude towards mental illnesses. Concealment of every fact about the person is not considered a fraud by the court. Concealment of temporary derangement would not amount to fraud in the court of law. Besides, mental illnesses are treatable like many physical illnesses e. There are contradictory judgments by the courts.
In one judgment concealment was considered as fraud; while in another judgment it was justified. It should be the responsibility of the both sides to enquire about material facts about which they are much concerned. Many people have opined that concealment is justified when there is a good recovery from mental illness as there is a risk of rejection, if the truth is revealed, merely because of the stigma for mental illness.
Last, but not the least, it appears that many litigations can be avoided, marriages saved and relapses of mental illnesses can be prevented if the amendment is made.
The recommendations may be implemented for the other personal laws like Special Marriage Act, on par with HMA, Mental illness in the perpetrator or the victim could be one of the causes of domestic violence. Many patients with psychosis apparently look normal, but due to their delusions, hallucinations or aggression may turn violent. Also, many women with mental illness may not be able to function in accordance with expectations of family, so may become the victims of domestic violence e.
This has been ignored in the Act. Counseling the perpetrator to stop violence, by itself will not work if there is major mental illness in the perpetrator such as alcohol dependence, paranoid schizophrenia etc.
Counseling the perpetrator that he should stop taking alcohol or the drug that caused the violence and counseling the victim alone may not work in all the situations unless supplemented by psychiatric treatment. Under this act demanding dowry is an offence which is cognizable, nonbailable and noncompoundable. It is often abused in the presence of mental illness in one of the parties. When a person with mental illness is married and the fact of mental illness was not disclosed and when it comes to light, because of relapse or residual abnormalities in behavior, the other party without mental illness rejects the party with mental illness, usually female.
The party with mental illness, in order to save the marriage, makes allegations of dowry. Sometimes police complaints are made and the husband or his relatives are arrested.
In the vast majority of cases this results in lot of animosity which closes doors for reconciliation and adversely affects the mental state of the person woman with mental illness.
Dowry is a nonissue in most of the cases, because both the giver and receiver have done it willingly and is a matter of past. Cruelty need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty; Maya Devi v.
Husband is entitled to decree of divorce; Sadhana Srivastava v.
Intention to be cruel is not an essential element of cruelty as envisaged under section 13 1 ia of the Act. It is sufficient that if the cruelty is of such type that it becomes impossible for spouses to live together; Neelu Kohli v. Panduranga Shet v. Vijayalaxmi, AIR Karn Therefore, even though the case of cruelty may not have been proved but as the facts emerging from the record clearly indicate that the living of the two as husband and wife would not only be difficult but impossible, the court has no alternative but to grant a decree of divorce; Poonam Gupta v.
Sundar, AIR Kar Such an attitude is cruelty in itself on the part of the husband; Yudhishter Singh v. Sarita, AIR Raj Hanumantha Rao v. In this transitional period the parties or either of them may have second thoughts; Suman v. It has no reference to the place of living.
The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Mutual consent should continue till the divorce decree is passed.
The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce.
If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented 29 [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 30 [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the 31 [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
Whether the appeal ends in divorce or not, the wife's claim for maintenance qua wife under the definition contained in the explanation b to section of the code continues unless parties make adjustments and come to terms regarding the quantum or the right to maintenance. It is clear that mere divorce does not end the right to maintenance; Captain, Ramesh Chander v. Devaki, AIR Mad However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood.