For our studentsFamily Law I

THE HINDU MARRIAGE ACT, 1955

OBJECT OF THE ACT

The purpose or object of the Hindu Marriage Act states that it is “An Act to amend and codify the law relating to marriage among Hindus.”

Normally, one wouldn’t pay much attention to the object of the Act but why is it so different when it comes to the Hindu Marriage Act? This is because the Hindu Marriage Act is a codifying statute. A codifying statute is one that only amends or codifies EXISTING laws. The Hindu Marriage Act can thus be said to be a codified version of the age-old existing Hindu law.

IMPORTANCE OF CODIFIATION:

Codifying laws is an important process in modern law as it –

• Keeps the old laws relevant and up to date with the times by amending, deleting or introducing where the old laws fall short.
• Codification makes it easier and more convenient for not just the judiciary, but also the common man to understand and find provisions relating to law applicable to them. It would be a task for the common man to go through the Shrutis or Smritis, commentaries, digests and old judgments of the Privy Council to understand the law applicable to them. Codification eliminates this ordeal.

Hence the object of the Hindu Marriage Act becomes relevant as it points out the main function of the Act, which is to amend and codify existing Hindu marriage laws.

APPLICATION OF THE ACT

The Act applies to all of India, including Jammu and Kashmir, after the Parliament passed the Jammu and Kashmir Reorganization Act, 2019.

The Act “extends to Hindus domiciled in the territories to which the Act extends who are outside the territories.”. There has been a debate on whether the Hindu Marriage Act applies to all Hindus universally. High Courts across the country were only taking religion of the parties into consideration and completely ignoring the domicile of the parties for the application of the Act. The Supreme Court in 2013 laid this debate to rest and ruled that the Indian law governing marriagesbetween Hindus would apply to Hindu couples residing in other countries or holding citizenship of other countries only if there is proof of domicile in India.

DOMICILE

What is domicile? In simple terms, domicile can be said to be the place which a person intends to make his current residence is domicile. In India, we do not really take the concept of State and country domicile. The Constitution of India states that every person who has domicile in the territory of India shall be a citizen of India provided that he satisfies all conditions contained in clauses (a) to (c) of Article 5. Thus, the concept of domicile was necessary to determine the citizenship of a person at the time of the commencement of the Constitution.

Two elements are taken into consideration while determining the domicile of a person. These are:

• Residence of the persons
• Intention of the persons

Residence in a particular place may not be continuous, but must be definite, not fleeting. For example, lets take the example of Madhavan. Madhavan is a 24 year old B.Com graduate with 3 years of work experience. He is currently residing with his parents in Jaipur, but has been selected for a MBA in INSEAD, France. The duration of the course is 1 year, and Madhavan does not intend to come back to India post his MBA. While pursuing his MBA, Madhavan has applied for jobs across France and has got a positive response from all the potential employers. Is Madhavan’s domicile now France? On the face of it, yes (though domicile would depend on the laws of France as well), but preliminary facts tell us that his current domicile is France. However, the Covid-19 pandemic hits, and Madhavan has no choice to return to India in the recession. His job offers are no longer valid. He hasn’t come back yet to India, as flights have not resumed. He is still stuck in France, but his domicile has automatically changed. Why? “INTENTION”. Intention is the magic word which ultimately defines the domicile of a person. There are three types of domicile:

• Domicile of Origin, i.e., of birth
• Domicile by choice – i.e., one you acquire by choice,
• Domicile by dependency (for example – a legitimate new born child acquires the domicile of the father, while an illegitimate new born child acquires the domicile of the mother)

One needs to keep in mind that India recognizes only one domicile – that of the country, unlike the United States where you have two domiciles – one of the State (like Ohio or Texas), and one domicile of the country (the USA). India has no such concept of a “State domicile.”

The Act further applies to –

• Hindus by religion in any form or development (like Lingayats, followers of Arya Samaj, etc.)
• Buddhists, Jains and Sikhs
• Those identifying themselves as Atheists
• to any other person domiciled in India 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.