Tag: #HinduMarriageAct

S.no	Contents
1.	Introduction
2.	Stigmas Related to Inter Religion Marriages in India
3.	Introduction to Special Marriage Act, 1954 and its Basic Outline
4.	Inter Religion Marriages under Special Marriage Act 1954
5.	Recent Judgement Related to Inter Religion Marriages
6.	Case Laws Pertaining to Significant Inter Religion Marriage Judgements
7.	Conclusion

Introduction

We all vision our Nation to be at the top of its zenith, be it economically, culturally, socially or politically. But the obstacles we face aren’t just limited to poverty or corruption or mere resolves. The major issue we face every day is fighting the restricted and orthodox mentalities of people. While it’s the common man/woman who helps the Nation progress, it’s they who pull it back with the burden of their thoughts.

While we could flaunt discussing the legality of Same Sex Marriages in India, and say that the taboo of Inter Religion Marriage has been totally eliminated, the case on the ground isn’t that simple.

Inter-religion marriage is a union between two individuals belonging to different religious communities. In India, inter-religion marriage is a socially and culturally sensitive topic, especially when it involves Hindu and non-Hindu communities. The complexity of this issue arises from the fact that India is a country of diverse cultures, languages, religions, and social customs. The practice of inter-religion marriage is often met with social and familial opposition and can even result in legal complications. India is home to many religions, including Hinduism, Islam, Christianity, Sikhism, Buddhism, and Jainism. Each religion has its own set of beliefs, customs, and practices, which can influence inter-religion marriages.

The issue of inter-religion marriage has been the subject of debate in India for several years. While some argue that inter-religion marriage can promote social harmony and unity, others view it as a threat to cultural and religious identities. The Supreme Court of India has consistently upheld the right of individuals to marry the person of their choice, irrespective of religion or caste.

In India, inter-religion marriage is governed by different personal laws that vary according to the religion of the parties involved. For instance, the Hindu Marriage Act 1955, governs Hindu marriages, while the Special Marriage Act 1954^[1], governs marriages between individuals of different religions. The Muslim Personal Law governs marriages in the Muslim community. Further, light is thrown on the Societal issues and taboos related to Inter Religion Marriage, briefly explains all the provisions under the Special Marriage Act, 1954, talks about how Inter Religion Marriages are governed under this law and finally a conclusion with some recent judgements and the Author’s views related to the Topic

Stigmas Related to Inter Religion Marriages in India

Inter-religion marriages in India are still considered taboo in many parts of the country. While the issues are prevalent in different spheres of society, all the possible efforts to culminate it have been effective, but not as effective as expected. The situation can be summarized in the following points which put up a clearer perspective of the antagonistic situation^[2]:

• Social stigma: In India, inter-religion marriages are often frowned upon, and couples can face social stigma and discrimination from their families, communities, and even the society at large.

• Legal hurdles: While inter-religion marriages are legal in India, couples often face legal hurdles when it comes to obtaining marriage registration and other legal documents. This can be especially challenging when one partner belongs to a minority religion.

• Religious barriers: Some religious communities in India do not permit inter-religion marriages, and couples who belong to these communities can face significant opposition from their families and religious leaders.

• Family pressure: In many cases, families put immense pressure on their children to marry within their own religion, which can cause significant stress and strain on the couple’s relationship.

• Violence and threats: In extreme cases, inter-religion couples can face violence and threats from their families and communities, which can make it difficult for them to live together in peace and safety.

• Lack of acceptance: Despite the legal recognition of inter-religion marriages, many people in India still do not accept such unions as legitimate, which can make it difficult for couples to live and work in certain communities.

• Need for social change: Given the challenges faced by inter-religion couples in India, there is a need for greater social acceptance and support for such unions. This requires a change in attitudes and beliefs about marriage and religion, as well as greater legal protection and support for inter-religion couples

Introduction to Special Marriage Act, 1954 and its Basic Outline

The Special Marriage Act 1954 is a legal framework that provides for the solemnization of marriages between individuals of different religions, castes, and nationalities. It is designed to allow for civil marriages and to create a legal mechanism to register such marriages. It provides legal recognition to civil marriages and protects couples from social stigma and discrimination. The Act has been instrumental in promoting secularism and unity in diversity in India. The Act is applicable to the whole of India, except for the state of Jammu and Kashmir^[3]. Some of the Key Provisions of the Act which are evident in the Daily Court Procedures are: –

• Applicability: The Special Marriage Act is applicable to any Indian citizen who wishes to solemnize a marriage regardless of their religion, caste, or creed. It applies to any person who is a resident of India or domiciled in the country, as well as to those who are outside India and intend to marry in the country.

• Notice of Intended Marriage: The Act mandates that both parties intending to marry under this Act must give notice of their intention to do so. The notice must be given in writing to the Marriage Officer of the district where at least one of the parties resides.

• Objections to the Marriage: Once the notice of intended marriage is given, the Marriage Officer must display it in a prominent place in the office for thirty days. If no objections are raised during this time, the marriage can be solemnized. However, if objections are raised, the Marriage Officer must conduct an inquiry to determine whether the objections are valid or not.

• Solemnization of Marriage: Once the Marriage Officer is satisfied that there are no objections to the intended marriage, the marriage can be solemnized in the presence of three witnesses, including the Marriage Officer. The ceremony must conform to the provisions of the Act and can be performed by a registered Marriage Officer, a Registrar of Marriages, or any person authorized by the government to do so.

• Registration of Marriage: After the marriage is solemnized, the Marriage Officer must enter a certificate of marriage in the Marriage Register. The certificate must be signed by the parties to the marriage, the witnesses, and the Marriage Officer. The certificate is conclusive proof of the marriage, and a certified copy can be obtained from the Marriage Officer upon request.

• Dissolution of Marriage: The Special Marriage Act also provides for the dissolution of marriage by mutual consent or on grounds of adultery, cruelty, desertion, or conversion to another religion. The procedure for obtaining a divorce under the Act is similar to that of obtaining a decree of divorce under the Hindu Marriage Act, of 1955.

• Miscellaneous Provisions: The Act also contains provisions relating to maintenance, custody of children, and the rights of children born out of wedlock. It also provides for the registration of marriages performed outside India under this Act.

Inter Religion Marriages under Special Marriage Act 1954

In India, inter-religion marriage can be solemnized under the Special Marriage Act 1954. The Act provides for the registration of marriages between persons of different religions, castes, or creeds. Here are the legal sections and conditions for inter-religion marriage under the Special Marriage Act 1954:

• Eligibility: Any two individuals who are of marriageable age (21 years for the groom and 18 years for the bride) can marry under the Special Marriage Act, irrespective of their religion, caste, or creed. The conditions laid down for the eligibility have been mentioned by Section 4^[4] of the Special Marriage Act 1954, for it also says that they must not be within the degree of a prohibited relationship, and they must not have a living spouse at the time of the marriage.

• Notice of Intended Marriage: The first step is to give a notice of intended marriage to the Marriage Registrar of the district in which at least one of the parties has resided for a minimum of 30 days prior to giving the notice. Section 5 ^[5] of the Special Marriage Act is responsible for this clause of the law.

• Objections: After the notice is published, any person may file an objection to the marriage if they have a valid reason for doing so. According to Section 7^[6] of the Special Marriage Act 1954, Any person may object to the intended marriage within 30 days of the publication of the notice by filing an objection in writing to the Marriage Officer. The Marriage Officer is required to investigate the objection and decide on the validity of the objection.

• Waiting Period: After the notice is published and there are no objections, a waiting period of 30 days is mandatory before the marriage can be solemnized. Based upon Section 6^[7] of the Special Marriage Act 1954, Upon receipt of the notice of intended marriage, the Marriage Officer is required to display the notice at a conspicuous place in his office and issue a copy of the notice to the parties involved.

• Declaration: Both parties must sign a declaration stating that they are not related to each other within the prohibited degrees of the relationship as specified in the Act.

• Solemnization: The marriage can be solemnized in the presence of a Marriage Officer and two witnesses. The Marriage Officer will register the marriage and issue a certificate of marriage. Section 12^[8] of the Special Marriage Act lays down the conditions for the Solemnisation and Registration of the marriages, which are either inter-religious or inter-caste.

• Registration: The marriage must be registered within 90 days of the solemnization, failing which the registration may be done only with the permission of the Marriage Officer and on payment of a penalty.

It is important to note that the Special Marriage Act 1954 does not allow for any religious ceremony or rites during the solemnization of the marriage. The marriage is considered a civil contract and is governed by the provisions of the Act.

Recent Judgement Related to Inter Religion Marriages 

Recently, the Supreme Court turned down a public interest lawsuit recently that contested elements of the Special Marriage Act that require posting interfaith spouses’ personal information ahead of their wedding.

According to Sections 6^[9] and 7^[10] of the law, couples have 30 days before their wedding to invite or consider objections by posting a public notice in a visible place or on the notice board in the marriage officer’s office. Their names, phone numbers, dates of birth, ages, occupations, addresses, and identifying information are all included in the notice’s details.^[11]

The appeal against these two Act clauses, as well as the portions allowing anybody to object to the marriage and the marriage officer’s ability to inquire into a couple’s past, was rejected by a bench of Justices Dinesh Maheshwari and Bela M Trivedi. According to the petitioner’s attorney, his client wed a guy of a different religion in accordance with the Special Marriage Act. The bench answered, “It ceases to be a PIL if it is your personal cause.

The Act had begun to take force in 1954, the court also found, citing Bar and Bench. It asked the attorney, “Where’s your cause of action?” as it rejected the PIL.

Case Laws Pertaining to Significant Inter Religion Marriage Judgements 

• Smt. Lata Singh v. State of UP^[12]: This case marks the Supreme Court announced that a person has the right to choose their life partner and that inter-caste and inter-religion marriages should be encouraged. The court also directed the police to provide protection to couples who marry against the wishes of their parents.

• Salamat Ansari v. State of UP^[13]: Being a legendary case in the history of Family Laws in India, the Judgement of the Supreme Court in the case said that an inter-religious marriage solemnized under the Special Marriage Act is valid and that the consent of parents or guardians is not required.

• Ramesh Kumar v. State of Haryana^[14]: In this case, the Supreme Court held that the choice of an adult to marry a person of their choice is a fundamental right guaranteed under the Constitution of India and that interference by family members or society in such marriages is illegal.

• K. Srinivas Rao v. D.A. Deepa^[15]: As per the Supreme Court, the Special Marriage Act allows parties to register their marriage without any religious ceremonies, and parties to an inter-religious marriage can choose to follow the customs and traditions of their respective religions.

• Sarla Mudgal v. Union of India^[16]: For all those who are well-versed in the case laws of India, they would understand the significance of this specific case. Supreme Court in this Judgement held that a person cannot convert to another religion just for the purpose of marrying a person belonging to that religion and that such conversions are illegal and void. The court also directed the government to enact a law to prevent such conversions

Conclusion to the Unfathomable Taboo of Inter Religion Marriage

Inter-religion marriage has been taboo in India for a long time, and it has been the subject of political and social debate for many years. The laws related to inter-religion marriage have evolved over time to address this issue and provide legal protection to couples who wish to marry outside their religion or caste.

The Special Marriage Act 1954, provides a legal framework for inter-religion and inter-caste marriages in India. It lays down the conditions for the solemnization of special marriages and mandates that the parties involved must give notice of their intention to get married to the Marriage Officer. The Act also provides for objections to the marriage, and the procedure for solemnization of the special marriage.

Despite the legal framework in place, inter-religion marriage continues to face opposition from certain sections of society. Some political parties have also used this issue to further their own agendas. However, in recent years, there has been a shift in the public perception of inter-religion marriage, with more and more people accepting it as a personal choice.

The law has also evolved to keep pace with changing social norms. In 2018, the Supreme Court of India passed a landmark judgement, decriminalizing adultery, which was a major step towards recognizing the individual autonomy of adults in their personal relationships. This judgement, along with other legal developments, has provided greater legal protection to couples in inter-religion and inter-caste marriages.

Inter-religion marriage is often met with resistance from society and families, which can lead to social ostracism and even violence. Families may object to inter-religion marriages on the grounds of cultural and religious differences. The couple may also face legal challenges, such as cases of abduction, forced conversion, and even honour killing.

In conclusion, inter-religion marriage continues to be a contentious issue in India, with social and political factors influencing public perception. However, the legal framework has evolved to provide greater protection to couples who wish to marry outside their religion or caste. While there is still a long way to go, there are signs that society is becoming more accepting of inter-religion marriage, and this is reflected in the changing legal landscape.

---

Endnotes:

1. Special Marriage Act, 1954
2. Maharashtra sets up panel to track interfaith, intercaste marriages, The Indian Express (Dec. 19, 2022), https://indianexpress.com/article/cities/mumbai/maharashtra-sets-up-panel-to-track-interfaith-intercaste-marriages-8323158/
3. Section 1 of the Special Marriage Act, 1954
4. Section 4 of the Special Marriage Act, 1954
5. Section 5 of the Special Marriage Act, 1954
6. Section 7 of the Special Marriage Act, 1954
7. Section 6 of the Special Marriage Act, 1954
8. Section 12 of the Special Marriage Act, 1954
9. Ibid 7
10. Ibid 6
11. Press Trust of India, Government response awaited on the law on inter-faith marriages, The Hindu (Jan. 24, 2022), https://www.thehindu.com/news/national/government-response-awaited-on-law-on-inter-faith-marriages/article38278975.ece.
12. Smt. Lata Singh v. State of UP, (2006) 5 SCC 475 (Sup. Ct. 2006)
13. Salamat Ansari v. State of UP, (2008) 2 SCC 202 (Sup. Ct. 2008).
14. Ramesh Kumar v. State of Haryana, (2017) 12 SCC 588 (Sup. Ct. 2017).
15. K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 (Sup. Ct. 2013).
16. Sarla Mudgal v. Union of India, (1995) 3 SCC 635 (Sup. Ct. 1995)

This article is authored by Rishaan Gupta, a 1st year Student at National Law University, Delhi.

-Report by Anurag Sinha

As part of a petition contesting the blood donor standards, the Union Ministry of Health and Family Welfare has filed an affidavit challenging the guidelines’ outright restriction on transgender people, gay males, female sex workers, and others donating blood.

It has been reported that the National Blood Transfusion Council (NBTC, an organisation made up of medical and scientific professionals) is responsible for determining which groups of people are barred from being blood donors and that this conclusion is grounded in data from scientific studies.

The affidavit begins by arguing that the petition’s concerns are within the purview of the executive and must be evaluated from the perspective of public health rather than individual rights.

Facts:

The Public Interest Litigation by a member of the Transgender community. Thangjam Santa A lawsuit against Singh, represented by lawyer Anindita Pujari, was filed in federal court “Under the auspices of the Central Health Ministry, the National Blood Transfusion Council and the National Aids Control Organization released their 2017 Guidelines for Blood Donor Selection and Blood Donor Referral in October.

Guidelines clauses 12 and 51 exclude transgender people, gay males, and female sex workers from donating blood since they are a high-risk group for contracting HIV/AIDS. The Ministry now claims in its affidavit that there is sufficient information to show “HIV, Hepatitis B, and Hepatitis C diseases pose a threat for transgender people, men who have sex with males, and female sex workers. It claims that the petitioners haven’t contested the exclusion of people at risk for HIV, Hepatitis B, or Hepatitis C infections, but rather the inclusion of transgender people, gay males, and female sex workers in the ‘at risk’ category. The affidavit responded to the challenge by citing the following academic papers in an effort to back up its assertion that the named persons were, in fact, at risk.

Two gay men from Hyderabad have filed a new public interest litigation (PIL) with the Supreme Court of India, arguing for the legalisation of same-sex marriage in India under the Special Marriage Act of 1954.

Our Chief Justice DY. Chandrachud will preside over a Supreme Court bench today.

Supriyo Chakraborty and Abhay Dang, the petitioners, have been in a relationship for over a decade. Because of the epidemic, both couples and their families were reminded of life’s fragility. They were both infected with COVID during the second wave. As soon as they felt well, they made plans to celebrate their 9th anniversary with family and friends by having a wedding-cum-commitment ceremony. In December 2021, they conducted a commitment ceremony when their loved ones gave their approval to their partnership.

Plaintiff’s Contention:

Petitioners argued that the Special Marriage Act violates India’s constitution because it treats same-sex couples differently than those of the opposite sex by denying them the legal protections, social recognition, and legal standing that come with marriage. The petitioners state that the Indian Supreme Court has historically upheld the freedom to marry anyone regardless of caste or religion. The constitutional movement towards same-sex marriage is an extension of this trend. As the Supreme Court has already ruled in the Navtej Singh Johar and Puttaswamy cases that LGBTQ+ people have the same rights to equality, dignity, and privacy as any other citizen, the Petitioners contend that the right to marry the person of one’s choice should also apply to LGBTQ+ people.

Judgement:

The Special Marriage Act, Foreign Marriage Act, and Hindu Marriage Act have all been challenged in nine separate cases before the Delhi High Court and the Kerala High Court, all seeking to recognise same-sex marriage. The Ministry’s Deputy Solicitor General told the Kerala High Court earlier this month that preparations are being made to have all writ petitions transferred to the Supreme Court.

READ FULL JUDGEMENT: https://bit.ly/400UmAJ

This article talks about Section 13(B) and the effects of the cooling period being waived off and various cases to understand this better.

INTRODUCTION 

Marriage is considered one of the essential sacraments for all Hindus. None other than the Hindus have endeavored to Idealize the institution of marriage. Due to this a divorced person was stigmatized and hindered in the Hindu Society but over the years as our nation developed and Hindu Marriage Act came into force eventually the divorce aspects also found their own place in the act. The Hindu Marriage Act, 1955 under Section 13 (B) states that a petition for mutual consent divorce is presented by the parties with the following averments: –

1. That both the spouses are living separately for a period of one year,
2. The Spouses have not been able to live together,
3. Both the spouses have been living separately by consent.

In recent years Supreme Court has given a new perspective to the cooling period in mutual and consented divorce. The court held that this clause of the Hindu Marriage Act,1955 which allows a cooling-off period of six months is not compulsory but just directory to the courts. According to this, the courts in which the divorce proceedings are ongoing under extraordinary cases have the right to suspend this time if other conditions are met, including the fact that the spouses have been piecemeal for a period of more than18 months, that all comforting and concession attempts to reunite the parties have collapsed and the parties have truly resolved their controversies, indeed in regard to alimony.

MEANING OF THE TERM ‘COOLING-OFF PERIOD’?

Under Section 13 of the Hindu Marriage Act, 1955 a married couple can get a divorce on the grounds of mutual consent through filing a petition to the court. It’s a straightforward method to dissolve the marriage where both the parties peacefully agree to the separation. According to Section 13 (b) of the Hindu Marriage Act, 1955 for a statutory interregnum understanding, a cooling period of six months between the first and the last motion for divorce by mutual consent so as the possibility of cohabitation and settlement could be explored. This period of 6 months is called the cooling-off period.

APPLICABILITY OF COOLING PERIOD IN CASES OF DIVORCE

The expenses are the clearest preferred position of consensual divorce. Consensual divorce that stays uncontested is sort of often the foremost economical method of dissolving the wedding. The minimal effort of the cooling period isn’t, be that because it may, but it’s the littlest bit of leeway in consensual divorce. In the event that the degree of contention between the 2 partners stays low, a consensual divorce offers an approach to stay it that way. It is extremely private and progressively helpful and is helpful to keep a greater amount of your advantages in all of your personal assets and not on the hands of the law, and other required things within the procedure of the dissolution of marriage. Separation by mutual consent expels superfluous squabbles and saves a lot of time and money. With the expanding number of uses being applied for a separation, a consensual divorce is the best alternative. Uncontested separation offers to break away life partners the chance to finish their marriage discreetly and with dignity.

UNDER WHAT CIRCUMSTANCES IT CAN BE WAIVED OFF?

In Abhay Chauhan v. Rachna Singh, 2006 both the parties were 30 years old, well educated, and mature and the marriage of the parties was solemnized four years ago and there was absolutely no possibility of reconciliation. The Delhi High Court in such a case held that the cooling period of 6 months can be exempted in certain cases but this controversy is still continuing. High Courts are overwhelmingly waiving this period by calling it directory rather than mandatory provision but some high courts beg to differ.

In an important judgment of Amardeep Singh vs Harveen Kaur on 12th September 2017, the Supreme Court held that this cooling period of 6 months can be waived in cases of mutual consent. Section 13B (1) of the Hindu Marriage Act deals with the petitions sustainability therefore it cannot be abolished and Section 13B (2) in spite of being administrative should be repealed after the details of every situation as they may vary from each other, wherever the little possibility of reconciliation is seen.

In the Avneesh Sood vs. Tithi Sood case and in the Shikha Bhatia case vs Gaurav Bhatia & Ors case, the courts held that a spouse who undertakes to comply with the consent given in the first motion for the dissolution of marriage under Section 13B (1) of the Hindu Marriage Act and for filing a second motion he/she would not be allowed to withdraw such an undertaking subject to an agreement reached between both the spouses.

Rajiv Chhikara vs. Sandhya Mathu, the Delhi High Court held that retracting from mediation would be considered as mental cruelty. The Court also noted in the case that the partner had lived apart since 2009 and that their relationship was now beyond repair. Therefore, under these circumstances, one partner demands that the marital bond be maintained and the same would be as putting the partner in extreme mental cruelty.

In Suman v. Surendra Kumar, the High Court of Rajasthan addressed this question for the purpose of the cooling period whose purpose is to give both the partner time and opportunity to reflect on their decision. The partners or one of them may have second thoughts in this cooling period and may change their minds about the dissolution of marriage.

However, the court always takes into consideration the following aspect before waving off the cooling period:

1. The statutory cooling period of 6 months as given under Section 13B (2) and the period of one year as specified under Section 13B (1) is already over before the commencement of the first movement of the divorce case.
2. If the parties have already dealt with their differences and have come to terms in matters such as alimony, custody of their child, and all other disputes between them then the waiting period only increases their agony and there is no point of it.
3. That all means of conciliation/mediation and efforts made in terms of Section 23(2) of the Hindu Marriage Act,1955 and Order XXXII A Rule of Code of Civil Procedure have failed to reunite and save the marriage, and no hope is left for saving the marriage.

Thus, the Supreme Court has given family courts the discretion to determine whether to waive the six-month cooling-off period or not. The Court also held that the application for a waiver of the cooling period can be made as early as one week after the divorce petition had been filed in the court.

SOME OTHER IMPORTANT CASES UNDER SECTION 13 (B)

In the Sureshta Devi v. Om Prakash case, the Hon’ble Supreme Court held that the phrase ‘living separately’ refers to not living as husband and wife. It has no reference to where the spouses live. It is possible that the partners may are living under the same roof and still may not live as husbands and wives. The partners don’t wish to fulfill marital obligations. The Supreme Court of India had ruled that mutual consent is a sine qua non I.e an essential condition for passing a decree of divorce and the said agreement must be binding and subsist until a final decree of divorce has been issued.

In Hirabai Bharucha vs. Pirojshah Bharucha, the High Court held that the courts are obliged to make every effort to maintain the institution of marriage. That is an arrangement between the partners specifying the terms of settlement runs counter to public policy, they should be regarded as void ab initio and it is unenforceable and, in such cases, it cannot be recourse to contempt proceedings.

The court ruled that where a solicitation is submitted for divorce through common concurrence under Section 13B of the Act, the Court will move that the concurrence granted by the mates persists until the date of the allocation of the divorce decree. And if one mate freely withdraws its support, in view of the provision of Section 13B of the Act, the Court doesn’t have the power to grant a divorce decree by collective concurrence.

CONCLUSION

Consensual divorce refers to that stage where both the partners dissolve their marriage by mutual consent. Divorce is an equally important part of society as marriage. As we all know that all marriages are not perfect and cannot be sustained or continued, ending such marriage is the best possible damage control that can be done for both spouses. Divorce by Mutual-consent is one of the recent addition to the Indian jurisprudence of divorce and is fairly integral. Earlier, Indian couples resorted to the very time-consuming and expensive method of ground-based litigation, which did no good to the parties but rather induced animosity between them and involved many maligning.

Reference: 

1. https://nrilegalconsultants.in/waiving-off-period-of-6-months-cooling-off-period in-case-of-a-mutual-divorce/ 
2. https://www.latestlaws.com/latest-news/couple-gets-divorce-without-6-month cooling-off-period/ 
3. https://www.thehindu.com/news/national/sc-sanctions-divorce-to-couple-without six-months-cooling-off-period/article25237873.ece 
4. https://health.economictimes.indiatimes.com/news/industry/future-of-artificial intelligence-in-healthcare-in-india/56174804

This article is written by Tanya Arya, a second-year law student at Vivekananda Institute of Professional Studies.

The bench of Justices Sanjay Kishan Kaul and Hrikesh Roy issued a notice on whether the children from second marriage would have a share in ancestral property? The Special leave petition was filed against the observation of the High Court of Bombay, Nagpur Bench that the children should not inherit a share in the property of their grandmother, since they were born out of the second wife.

The Court while issuing the notice observed that a larger question relating to inheritance from second marriages is pending before the court in Ravanasiddapa & Anr vs. Mallikarajun & Ors (2011). The Court decided to hear the current petition after a judgment is delivered by a larger bench of this court.

Previous Interpretation by the Supreme Court In Bharatha Matha & Anr vs. R Vijaya Renganathan & others, it was held that children born out of void marriages were not entitled to claim the inheritance of the coparcenary property, but only a share in the self-acquired property of the father.

In Ravanasiddapa & Anr vs. Mallikarajun & ors (2011), the two-judge bench took a contrary view and it was held that the children born out of void marriages shall have an interest in coparcenary as well as the self-acquired property of the parents. Then the three-judge bench upheld the decision of the 2 judge bench regarding the share of children in their parent’s property but upheld the restriction imposed under section 16(3) of the Hindu Marriage Act, 1955. The question regarding restriction in 16(3) is pending before the Supreme Court.

-Report by GURPREET SINGH

-Report by Saksham Srivastava

The Hon’ble High Court of Judicature, Allahabad, refuses to grant custody of a ‘minor’ husband to his wedded ‘major’ wife. The Hon’ble Court says that such an act would amount to an offence under the POCSO Act. The bench headed by Justice J.J Muneer, is of the view, that the marriage between a minor and major is voidable at the option of the party, as given under the POCSO Act and if allowed to stay together, it would result in sanctioning cohabitation between a minor and major.

Petitioner’s Contention

The petitioner, named as Haushila Devi, is the mother of Manish, age 16 years and who is also made as to the petitioner number one by her mother, alleges in hon’ble court that the respondents, namely, Jyoti and her family members forced her son into procuring matrimonial ties with Jyoti, who is a major and is also the respondent number one in the aforesaid case. The learned counsel on behalf of Haushila Devi, claims that her son, Manish has been illegally confined in the house of the respondents, and the conspiracy of the said offence is carried by Jyoti, her mother Pamila Devi, and her two brothers. The petitioner has filed a writ of habeas corpus (to produce the body) in the Hon’ble High Court of Allahabad under Article 226 of the Constitution of India, to retain the care and custody of the minor child, Manish, back to her mother who is also the natural guardian of Manish, as claimed by the petitioner number two, Haushila Devi. The learned counsel argues further, that, Manish being a minor of age 16 years is under no competence to enter into any such life-long holy agreements like marriage. They claim that the marriage so performed is void under the provisions laid down in the Hindu Marriage Act, 1955 and the Prohibition of Child Marriage Act, 2006. The petitioner further claims that since Manish is a minor as per the law, hence, he cannot be entrusted with the decision-making choice of residing with the strangers, thereby the care and custody should be handed over to the natural guardian, i.e.- her mother, Haushila Devi, also the petitioner number two in the said case.

Respondent’ Contention

The learned counsel on behalf of the respondents, i.e.- Jyoti and her family members, contends that the legislature did not outlay any such provisions of the aftermath about the marriage being solemnized in breach of section 5 (3) of the Hindu Marriage Act, 1955. He argues that the marriage is neither void nor voidable, but valid. As per the law, the penal punishment would be inflicted upon the party who was a major at the time of the commission of such foul act. The learned counsel is of the view that if both the party is minor at the time of such acts, then their parents upon whom the responsibility was bestowed, would be dealt as per the law. He further argues that no matter who suffers the penal consequences, the marriage cannot be solemnized being void or voidable. The learned counsel says that holding a marriage to be void under the Prohibition of Child Marriage Act, it should strictly adhere to the stipulations laid down under section 12 of the said Act, else the marriage could be declared as voidable at the option of the party who was minor at the time of marriage. The respondents argued through their learned counsel that Manish who is a minor of 16 years, is about to attain majority and hence, should be bestowed upon with the responsibility of residing with whomsoever he chooses. Section 17 of the Wards Act, 1890 lays down the provision for the minor to chose his/her natural guardian through their own. Therefore since Manish does not want to stay wither mother, he cannot be compelled by the hon’ble court to do so.

Judgment

The bench of Hon’ble High Court of Allahabad, led by Justice J.J Muneer, in the aforesaid case of Manish and Anr v. State of U.P. and 7 others, that the marriage in the said case is voidable at the option of the party who is a minor, i.e.- Manish of age 16 years. The Hon’ble court said it loud and clear that they cannot allow the care and custody of the Manish to be entrusted with his wife as it would originate an event that could facilitate the cohabitation between the minor and the major, regarded as an offence under the POCSO Act, 2006. The court even considered the essential fact of the POCSO Act, that it prevents any sort of cohabitation between the major and the minor. The Lordship also highlighted the sections under the POCSO Act, which defines the offence and also inlays the penal consequences, under sections 3 & 4 respectively, irrespective of the age or sex of the offender. The Hon’ble court ordered to send the minor into the state facilities like ‘Child Home’ to reside till he attains the age of 18 years and thereby he can choose with whom to reside after completion of his age as major. If he still chooses to stay with her mother during the said period, he would have to apply the Child Welfare Committee Act, 2012. The order should comply immediately.

Kerala High court on 3rd June 2021, held that false allegation of impotency or erectile dysfunction against a spouse is considered to be “mental cruelty”. This judgment was made in the divorce case of a doctor- couple.
As per the Hindu marriage act, cruelty means that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty. It may be physical or mental. It may be words or gestures or even by mere silence. That’s the reason here false allegation is considered as “mental cruelty”. Whereas cruelty is also a ground for divorce.

The appeal has filed by the husband against the order of the family court. The respondent accused that her husband was impotent and is not able to perform sexually, which was contradicted by her statements and lack of evidence. Despite it, the husband was willing to undergo a medical test.
The advocate for the applicant relied on K.Srinivas Rao v. D.A. Deepa in which it was held that defamatory allegation against the spouse or his or her relatives in the pleadings amounts to causing mental cruelty to the other spouse. And in Gangadharanv, T.K. Thankam, the court held that false, scandalous, malicious, baseless, and unproved allegation made by one spouse, whether by letter or written statement or by any other mode, amounts to cruelty.

Therefore, the Kerala high court bench of justice Muhamed Mustaque and Kauser Edappagath has held that a false allegation of impotency or erectile dysfunction amounts to mental cruelty.

–Report by Riddhi Dubey