Remarriage laws in India

Remarriage laws in India: All you need to know

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This article on ‘Remarriage laws in India: All you need to know‘ was written by Pramod Sanap, an intern at Legal Upanishad.

Introduction

Remarriage takes place after the first marriage knot ends due to divorce or the death of the spouse. In ancient India, the remarriage of the widow, especially women, was considered taboo and the ancient customs of India didn’t allow widow remarriage. During the colonial period, the British introduced the Hindu Widow Remarriage Act, of 1856, which made it legal for widows to remarry. This statute received widespread criticism and disapproval from many sections of society in India and was considered an interference of Britishers in Indian culture and religion.

For a long time, Hindu Customs didn’t recognize divorce between spouses and thus disallowed and forbid remarriage in India. But post-independence the parliament passed the Hindu Marriage Act, of 1955 which recognized and legalized divorce under Section 13 of the Act hence allowing remarriage subsequent to the prior marriage end.

Laws Governing Remarriage in India

For many years Indian customs and usage forbade remarriage but the introduction of the Hindu Widow Remarriage Act, of 1856 and the Hindu Marriage Act, of 1955 made widow remarriage and divorce legal. These laws gave new rights and duties to the people and widened the liberty and freedom of people, especially women in India. Hence, it is crucial for us to analyze and introspect on these laws to understand remarriage.

Hindu Widow Remarriage Act, 1856:

This law legalized widow remarriage and was considered one of the most crucial reformations in India during the 19th century. This law especially helped women to a great extent as the females were being subject to oppression and restriction of all sorts in an overwhelmingly patriarchal society. Women were deprived of liberty and freedom during that period and after the death of her spouse, she was even subjugated to hardship by evil practices such as sati.

The Hindu Widows’ Remarriage Act deals with the maintenance, guardianship, succession, and marriage subsequent to the prior marriage end. It is one of the crucial statutes that radically change Hindu law and gave enormous rights to the widow. Section 1 of the Act gave permission to the widow to remarry after the death of the spouse if there is consent between the two Hindus and such marriage would be legal and would not be nullified.

After the remarriage, the widow’s right to inheritance and maintenance ceases according to Section 2 of the act. Section 3 of the act also stipulates the guardianship of the deceased husband’s children if subsequent to the widows’ remarriage the dead husband’s mother, paternal grandmother, father, paternal grandfather, and any relative to the husband can petition the court for the guardianship of the children.  

Law Commission of India’s 81st report recommended repealing the Hindu Widows’ Remarriage Act, 1856 as all the subject matter such as the remarriage of the widow, maintenance, and guardianship is covered by the 4 Acts.

Hindu Adoption and Maintenance Act, 1956; Hindu Marriage Act, 1955; Hindu Minority and Guardianship Act, 1956; and Hindu Succession Act, 1956 all these four enacted laws deal with everything contained in Hindu Widows’ Remarriage Act, 1856, and thusly the 81st law commission report recommended to repeal the Act. The recommendation is based on the rationale that Hindu Widows’ Remarriage Act would further create confusion and ambiguity as said aforementioned.

Remarriage laws in India
Remarriage laws in India

Post-Independence Laws Regarding Widow Remarriage:

The Hindu Marriage Act, of 1955 allows parties to remarry after the divorce between the spouses has been finalized. But the parties had to bear in mind that there is no right to appeal available or expired.

Section 15 of the Hindu Marriage Act allows for remarriage after the divorce but the proviso of the section requires a waiting period of 1 year from the date of the divorce decree. The 1-year waiting has been done away with now but in Sabita Chowdhary v Delali Mandal Chowdhary, the court held that the second marriage of the husband during the pendency of an appeal is void as the wife filed an appeal against the divorce decree and the husband remarried during the pendency.

In Chandra Mohini v Avinash Prasad, the Supreme Court stated the person who procured a divorce decree must have to wait for a reasonable time for remarriage and need to make sure whether an appeal or special leave petition is filed. The purpose of section 15 of the Hindu Marriage Act is to secure the right of the person who has filed an appeal or special leave petition against the divorce decree. It is important to note the restriction provided in section 15 does not apply to the parties who have decided not to pursue the appeal.

The court can also take the practical view by taking a look at circumstances and facts as it took in the case of Ranjana Rani Panda v Sanjay Kumar Panda.   

The remarried spouse is not entitled to maintenance and the remarriage of the mother does not lead to that she would lose the custody of her children. The welfare of the child is paramount to the court while deciding the custody of the children section 13 of the Hindu Minority and Guardianship Act also enshrines the aforementioned.

Conclusion

Remarriage takes place subsequent to the prior marriage ending through a divorce or the death of the spouse. Historically, Indian customs and norms prohibited the remarriage of widows, especially women. The restriction was so rigid that it eventually led to the repression and oppression of women in a patriarchal society. Various reformers tried to reform this and eventually, in 1856 the Britishers introduced Hindu Widows’ Remarriage Act which legalized widow remarriage and also gave protection to the person who marries the widow.

After independence, the Indian parliament introduces 4 acts regarding marriage, maintenance, guardianship, and succession. The Hindu Marriage Act, of 1955 recognized divorce and affirmed the concept of remarriage; this law widened the scope of liberty and freedom, especially for women who have been subjugated to oppression.

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