• Research/Scholar Paper name – Section 25(3) of The Hindu Marriage Act, 1955: from a Constitutional lens
  • Author: Yajur Sood
  • Institution: University Institute of legal studies, Panjab University
  • Affiliation: Centre for Study of Contemporary Legal Issues
  • Date of Publication: 04/10/2021

Abstract:

In order to reduce the ambiguousness in Hindu Personal laws, and to make it an engine for reform in the Hindu society so that it could get rid of its social evils, The Hindu Marriage Act, 1955 was passed. The provision of divorce, restitution and maintenance were made a qualified statutory right for the common Hindu, yet there are some elements of these provisions, that withhold reform rather than facilitate it. One such provision is that of permanent alimony in The Hindu Marriage Act, 1955 (HMA), according to which if a former spouse, after a decree of divorce and maintenance has been passed in their favour, has sexual intercourse with anyone, he or she can lose their alimony awarded, if filed for so, by the other party. If one may take the Constitutional Law into perspective, such a provision is clearly violative of one’s right to life and dignity given under Article 21 of the Constitution. This section becomes a plank to the narrative, that if one is at the pay rolls of their spouse or former spouse, one has to now choose between whether they want a decent survival in life or fulfillment of one’s basic and rudimentary biological needs i.e. need for sexual intimacy. Naturally, the worst sufferers of this become the women who are usually dependent on former spouses for maintenance. The question that would haunts a person in such a situation would be- Is my sexual urge more important or financial survival? Pitting one essential need against the other is like asking a person, whether they’d like to part with their left eye or the right one. This question must be approached with a conservative mindset as is prevalent in India, where sexual relations outside wedlock are highly stigmatized. This paper shall explore the various aspects of Indian Constitutional Law to analyze where this impugned law stands in relation to it.

Section 25(3) of The Hindu Marriage Act, 1955: from a Constitutional lens

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