Summary Gulliver's Travels Iii

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chools and Sources of Hindu Law

Hindu Marriage Act, 1955

Applicability of Legislation (S2) - Who is a Hindu?
Section 2. Application of Act :-  
(1) This act applies
a. 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, Prarthna or Arya Samaj b. to any person who is a Buddhist, Jaina or Sikh by religion and c. 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 dealth with herein if this Act had not been passed Explanation: the following people are Hindus, Buddhists, Jains or Sikhs by religion as the case may be:- (a) any child, legitimate or illegitimate

Concepts and Forms of Marriage
Conditions for validity of marriage(sec 3 & 5)
Solemnization of Marriage S7
Registration of Marriage S8
V‎oid and Voidable Marriage S11 & S12

1. Surajmani Stella Kujur v Durga Charan Hansdah, 2001
husb - 2nd marriage - 1st wife sues for bigamy under S494 IPC - conceded by appellant that marriage out of HMA in light of S2(2) of the act(Schd Tribe) - appellant relied on alleged custom in tribe which mandates monogamy as a rule - could not prove the same - burden on proof on one who is alleging the custom - court observed S29(2) HMA recognizes importance of customs - to prove that the custom is ancient, certain and reasonable - no proof of alleged custom making the 2nd marriage void - hence no offence under bigamy S494 IPC

2. S. Nagalingam v Sivagami, 2001
appellant-accused second marriage - while 1st marriage still subsisting - 2nd marriage performed under S7A, HMA. - Appellant took plea that the second marriage solemnized without saptapadi therefore not guilty under bigamy - SC held appellant guilty of bigamy - saptapadi is neccessary only when admitted by parties that essential ritual to be performed for the marriage as per the personal law or form of marriage applicable to them - present case appellant performed a valid marriage under S7A, HMA

3. Bhaurao Shankar Lokhande v State of Maharashtra, 1965
Celebrations and ceremonies does not amount to solmenization of HM - essential ceremonies for solemnization of Hindu Marriage are (1) Invocation before the sacred fire (2) Saptapadi - these 2 can be dispensed with only if custom permits - custom itself must be cogently established - S17 of HMA provides that any marriage between two hindus solemnized after commencement of the Act is void if either party had a husband or wife living, and S494, S495 IPC shall apply accordingly - intention to marry while performing ceremonies does not solemnize a marriage - Court observed that parties abandoned some essential ceremonies which were customary in their community - hence second marriage not valid - offence of bigamy not made out - prosecution failed to establish solemnization as per S7a - S3a signinfies custom

4. Lily Thomas v UoI, 2000
Married under Hinu Law - cannot solemnize a 2nd marriage under Muslim Law - Conversion does not dissolve a marriage automatically, it only provides a ground for divorce under S13, HMA - 2nd Marriage void under S11 HMA - Offense created under S17 HMA - S17 HMA - 494,495 IPC - Religious freedom also means not infringing religious right and personal freedom of others - wider scope of Muslim law cannot be allowed to be misused by unscrupulous litigants -  

5. Pinninti Venkataramana v State, 1977
Child Marriage -> valid marriage - court should lean against any provision of law which is liable to render innocent children of the marriage as illegitimate - A full bench AP HC held marriage solemnized in contravention of S5(iii) HMA, 1955 neither void nor voidable - Marriage bw 13yr & 9yr old valid - Voilation of S5(i,iv & v ) marriage null and void - voilation of...
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