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May 5, 20233 min read

Is Section 4 Of The Hindu Marriage Act Allows For Divorce ?

The Hindu Marriage Act of 1955 shall be applied to a person who is a Hindu, Buddhist, Sikh or Jain by religion, or to an individual who is not a Muslim, Christian, Parsi or Jew.

The Section 4 of the Hindu Marriage Act, 1955 shall have an overriding effect providing that the laws which are inconsistent with this Act, either in the form of ancient texts, customs or legislative enactments would be repealed.


However, the provisions of this Section shall not affect the-

  • Customary practices of marriage which is solemnised between two persons falling within the degrees of prohibited relationship which has been provided under Section 5 of the Act.

  • The customary practice of having marriages solemnised between sapindas.

  • The right allowing the termination of the Hindu marriage which are recognised by the customs is conferred by a special enactment provided under Section 29.

  • Any proceeding which has been pending for the termination of marriage or judicial separation as has been provided under Section 29.

If the Act has any retrospective effect-

It is a widely accepted rule of interpretation that a statute which provides for substantive law could not be implemented with it having a retrospective effect, unless it has been expressly provided by the legislature.

It is a general rule when a statute is passed by replacing or altering an already existing law, it must be presumed that the new law shall be applied to all the cases which are to yet be filed after the establishment of the new rule. Hence, it can be inferred from Section 4 as well as other sections of the Act that the legislature never had any intention for the Act to have a retrospective effect.

Conditions for a valid marriage provided by the Act of 1954-

  • The parties must not have a spouse living at the time of marriage. As has been provided under Section 5 of the Hindu Marriage Act, having more than one spouse at one time is illegal and such marriage shall be void . In case the condition of monogamy is not fulfilled, then such second marriage shall be null and void since the very beginning as provided under Section 11 of the Act.

  • The parties at the time of marriage must be of sound mind. Therefore, as per Section 5 of the Act, the parties to the marriage must not be of unsound mind; or in case the party is incapacitated by a mental disorder, impotency or is unfit for entering marital relations; or in case either of the parties are suffering from an insanity attack, such marriage shall be voidable as mentioned under Section 12 of the Act.

  • The parties to the marriage must have attained the legal age for marriage.

  • The parties shall not fall within degrees of prohibited relationship or shall be sapindas (sharing a common lineal descendant in their parents ancestry) of each other.

Conclusion-

The Section 4 provides for the overriding effect of the Act of 1954. Conditions required for the marriage under Section 5 have to be fulfilled, however if the customary practices of the parties allow for some of these conditions restricted under the Act, then in accordance to Section 4 of the Act, these practices must be allowed. For example, some sections of the hindu community permit sapinda marriages, in these cases the condition related to the restriction of marriage between the Sapindas shall not be applied.


If you are unable to understand the provisions of this Act or in case you are facing a legal suit in relation to family law and wish to talk to a lawyer or seek free legal advice online, you may contact us at Lead India, as we offer you a team of advocates who have been successfully dealing with cases related to family law and can provide you with proper legal assistance for the same.


Also, in case you are dealing with a legal situation related to civil or criminal law or any other legal matter, you may seek legal guidance from Divorce Lawyers In Ghaziabad, Divorce Lawyers In Gurgaon, Divorce Lawyers In Faridabad or in your city, you can also contact us.


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