Essentials of Valid Marriage under Hindu Law

Introduction:

Marriage under the old Hindu legal system is considered to be a sacred ritual, sacrosanct and also an eternal union or a sacred tie that can’t be broken. Before the codification of Hindu law, marriage was a Samskara. In old Hindu culture, the successful attainment of sixteen samskaras is considered of paramount importance in the course of one’s natural human life and according to the renowned Hindu thinker Manu, the Vivaha Samskara is one of the most important ones.

The relation of husband & wife is considered to make for several lifetimes and once a person enters into marriage it cannot be dissolved, therefore, both have to spend their lives with each other. It is reasoning that the wife is called the Dharmapatni or Sahadharmini or second half. For this reason, a Hindu woman couldn’t remarry after the death of her husband but this rule changed after the commencement of Hindu Widow Remarry Act, 1856.

Definition:

Many ancient Texts provides definition and the methods by which this samskara to be done.

According to Manu Smriti:

I hold your hand for Saubhagya (good luck) that you may grow old with your husband, you are given to me by the just, the creator, the wise and by the learned people.

According to M. Kapadia:

Hindu marriage is a socially approved union of man and a woman aiming at dharma, procreation, sexual pleasure and observance of certain social obligations.

Hindu Marriage joins two individuals for life, so that they can pursue Dharma (duty), Artha (possessions), Kama (physical desires), and Moksha (ultimate spiritual release) together. This is a union of two individuals as husband and wife, and is recognised by law.[1]

Legal Transformation of the Concept of Marriage:

According to law, marriage may mean either the acts, agreements, or ceremonies by which two persons enter into wedlock or their subsequent relation created in that way.

Hindu Marriage Act, 1955 has transformed Hindu law of Marriage. This is a remarkable change in the social legislation because this Act has not simply codified the Hindu law of marriage but has introduced certain important changes in many respects of old laws and removes many defects of the tradition followed by the Hindu Society. This was a very courageous step in regards of the society because society has been always very rigid in matters of the customs of any institution which has been followed for many years and changes in their beliefs are not always acceptable by them.

However, the Parliament followed Dr Radhakrishnan’s words when he remarked, “to survive, we need a revolution in our thoughts and “outlook. From the altar of the past we should take the living fire and not the dead ashes. Let us remember the past, be alive to the present, and create the future with courage in our hearts and faith in ourselves.[2]

Now, the Hindu marriage contemplated by the Act hardly remains sacramental becausethis Act has brought in some changes which have far reaching consequences and have weakened the sacramental and sacrosanct nature of marriage and rendered it contractual in nature in many aspects. The Hindu Marriage Act 1955 provides essential conditions for the validity of a Hindu Marriage, registration of Hindu Marriages, Restitution of Conjugal rights, Judicial separation, Nullity of Marriage, Divorce etc.

In the case of Reema Aggarwal v. Anupam[3], marriage as held to be a junction of three important duties, i.e., social, religious and spiritual.

Section 2 of Hindu Marriage Act, 1955:

According to the Section 2 of this Act both the parties of the marriage should be Hindu, otherwise the marriage will not be considered valid under this Act. If one of the parties to the marriage is not a Hindu and the other is a Hindu, or both parties are Non-Hindus then the marriage will not be a subject matter of this Act and not consider valid under this Act but this will relate to some other laws for example Special Marriage Act, 1954 or any other laws.

In the case of Gullipilli Sowria Raj vs BandaruPavani[4]held that the first and foremost condition for a Hindu Marriage is that both parties should be Hindus. But the expression ‘two Hindus’ means they can be of different castes.


The essential conditions of valid Marriage are given and discussed below:

Monogamous Relationship:

According to section 5(i) of HMA,

neither party has a spouse living at the time of the marriage[5];

Either party should not have a living spouse at the time of the marriage. It implies a monogamous act and makes a barrier on the bigamous or polygamous act. it should be read with the section 11 and section 17 of Hindu Marriage Act, according to section 11, bigamy or polygamy is a null and void act and apart from this, section 17 of HMA, makes this a punishable offence under section 494 and section 495 of Indian Penal Code, 1860. Therefore, the parties to the marriage can be unmarried, widowed, or divorced. The Scheduled Tribes are exempted from the application of the Act but the condition is that there must be a proved custom to this effect.

In Smt. JamunabaiAnant Rao Adhar v. Anant Rao ThiraramAdhar[6], the supreme court held that the marriage becomes null and void when the violation of the first condition of section 5 i.e. bigamous or polygamous act happens then the second marriage becomes void ab inito and ipso facto. The highest court in this regard further observed that the wife in a void marriage cannot claim maintenance under section 125 of the Criminal Procedure Code.

In cases like Dr A.N. Mukerji vs State[7]and Santi Deb Berma vs Smt. Kanchan Prava Devi[8]it was held that the offence of Bigamy would be constituted only when the first marriage is solemnized according to proper ceremonies and rituals.

Free Consent:

According to section 5(ii) of this Act;

at the time of the marriage, neither party;

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity.[9]

This clause was not there when this Act was enacted but it was inserted in the Act through the Marriage Laws (Amendment) Act, 1976. Under this clause of HMA at the time of marriage neither party shall be incapable of giving free valid consent based on unsoundness of mind, mental disorder and insanity (unfit for marriage and procreation of children) hence, free consent is a necessary part of a Hindu Marriage. In a case in this regard, Allahabad High Court held that the validity of marriage will be nullified or said void only if one party can’t remain in the marriage due to the unsoundness of the other party.

In R.Laxmi Narayan v. Santhi[10], it was held that a person would be deemed to be unfit for marriage and procreation of children if he is suffering from mental disorder of such a kind that he can’t lead a normal married life.

In a case of Gogi Reddy Sambi Reddy v. Gogi ReddyJayamma[11], a Hindu Marriage which violates this condition is not per se void but voidable under Section 12 (1)(b) of the Act.

In the case of Anima Roy vs Probodh Mohan Roy[AIR 1969 Cal 304], the Calcutta High Court defined the meaning of the expression “insane” that since that has not been defined under the Act, the meaning and significance of this would be the same as under Section 3(5) of the Insanity Act, according to which any person suffering from mental derangement of any kind may be regarded as an idiot or insane.

Condition of marriageable age:

According to the Section 5(iii) of HMA,

the bridegroom has completed the age of21 years and the bride, the age of 18 years at the time of the marriage[12];

When this Act was enacted, the legal age for the marriage of boy and girl was 18 years and 15 years respectively. However, after the Marriage Laws (Amendment) Act, 1976, it was changed and the minimum age became 21 years and 18 years respectively.

However, violation of this condition mentioned in clause (iii) of section 5 of this Act does not make the marriage void or voidable. It means that it is valid but it may attract penalties and may have consequences. But it can become a legal ground for repudiation of the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for punishment for such marriage.

The punishment is provided in Section 18 of this Act itself, it states that anyone who procures a marriage in violation of the condition is liable to be punished with simple imprisonment which may extend up to 15 days or with fine which may extend up to Rs. 1000. or can be penalised with both. The Section 10 of the Prohibition of Child Marriage Act, 2006, provides that any person who is performing, conducting, directing or abetting a child marriage shall be punished with rigorous imprisonment up to two years and fine of one lakh rupees.

Degree of Prohibited Relationship:

According to Section(iv) of HMA,

The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two[13];

the Act prohibits solemnization of marriage of those persons who are within the prohibited degree of relationship. If any marriage is solemnized in violation of this condition then the marriage would be void under section 11 of the act. And also, if a violation of this clause happens, then it would amount to simple imprisonment up to 1 month or a fine of Rs. 1000/- or both under section 18(b) of the Hindu Marriage Act, 1955.

Section 3(g) of HMA defines those relationships which fall within the prohibited degree of relationships. In simple way we can say that;

A man cannot marry with any of these persons-

His lineal ascendant, (ii) Wife of his lineal ascendant, (iii) Wife of his lineal descendant, (iv) Brother’s wife, (v) Wife of his father’s brother, (vi) Wife of his mother’s brother, (vii) Wife of his grandfather’s brother, (viii) Wife of his grandmother’s brother, (ix) Sister, (x) Sister’s daughter, (xi) Father’s sister, (xii) Mother’s sister, (xiii) Father’s sister’s daughter, (xiv) Father’s brother’s daughter and (xv) Mother’s brother’s daughter.

And a woman cannot marry with any of them;

(i)Her lineal ascendant, (ii) Husband of her lineal ascendant, (iii) Husband of her lineal descendant, (iv) Brother, (v) Father’s brother, (vi) Mother’s brother, (vii) Nephew, (viii) Sister’s son, (ix) Uncle’s son, (x) Father’s sister’s son, (xi) Mother’s sister’s son and (xii) Mother’s brother’s son.

In the case of Shakuntala Devi v. Amar Nath[14], Punjab and Haryana High Court held that two persons can marry within the prohibited relationship but there should be a proof of traditional, established and well-known custom which should be very old and beyond human memory.

Avoidance of Sapinda relationship:

According to the Section 5(v) of HMA;

the parties are not Sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two[15];

A marriage between those persons, who are having sapinda relationship with each other, is prohibited unless there is a recognised custom or tradition which allows them to do so. Any marriage solemnized under violation of this condition would be resulted into a void marriage and under section 11 of the Act and violation of this clause would amount to simple imprisonment up to 1 month or a fine of Rs. 1000/- or both under section 18(b) of the Act.

Section 3(f) defines the Sapinda Relationship and according to this, it extend to the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation. The person who is concerned is considered as the first generation.

Marriage Ceremonies:

Section 7 of HMA states about necessary ceremonial rites, according to this the solemnization of a Hindu Marriage may be performed by all the ceremonies and rituals of both the parties or either of them and these rituals are mainly concerned with; invocation before the sacred fire and Saptapadi which means taking seven rounds around the fire with the partner in the North-East direction; after the completion of these rites the marriage becomes binding and complete for both the parties.

In the case of Bhaurao Shankar Lokhande v. The State of Maharastra[16], it was held by the Apex Court that the unless the marriage is celebrated and performed with proper ceremonies and due form, it cannot be said to be solemnized.

Registration of Marriage:

Section 8 of this Act provides that the Hindu Marriage may be registered within 15 days of solemnization of marriage as the state government prescribes. Registration provides written proof of marriage. However, if such rules violated then the marriage will not be held void but the party can be made liable to pay the fine.

In the case of Seema v. Ashwini Kumar[17], the Supreme Court has directed the Centre and the State to make rules to make the registration of marriage compulsory.

Questions:

  • Why the codification of old Hindu Law is important?

This Act has introduced certain important changes in many respects of old laws and removes many defects of the tradition followed by the Hindu Society. In the word of Dr Radhakrishnan, he remarked, “to survive, we need a revolution in our thoughts and “outlook. From the altar of the past, we should take the living fire and not the dead ashes. Let us remember the past, be alive to the present, and create the future with courage in our hearts and faith in ourselves.

  • Define Hindu Marriage.

Many ancient Texts provides definition and the methods by which this samskara to be done.

According to Manu Smriti:

I hold your hand for Saubhagya (good luck) that you may grow old with your husband, you are given to me by the just, the creator, the wise and by the learned people.

According to M. Kapadia:

Hindu marriage is a socially approved union of a man and a woman aiming at dharma, procreation, sexual pleasure and observance of certain social obligations.

Hindu Marriage joins two individuals for life so that they can pursue Dharma (duty), Artha (possessions), Kama (physical desires), and Moksha (ultimate spiritual release) together. This is a union of two individuals as husband and wife, and is recognised by law.

  • Is inter-caste marriage valid under the Hindu Marriage Act,1955?

According to the Section 2 of this Act both the parties of the marriage should be Hindu, otherwise the marriage will not be considered valid under this Act. If one of the parties to the marriage is not a Hindu and the other is a Hindu, or both parties are Non-Hindus then the marriage will not be a subject matter of this Act and not consider valid under this Act but this will relate to some other laws for example Special Marriage Act, 1954 or any other laws.In the case of Gullipilli Sowria Raj vs BandaruPavaniheld thatthe first and foremost condition for a Hindu Marriage is that the both parties should be Hindus. But the expression ‘two Hindus’ means they can be of different castes.

  • What are the prohibited relationships according to Section 3 of HMA?

Section 3(g) of HMA defines those relationships which fall within the prohibited degree of relationships.

A man cannot marry with any of these persons-

His lineal ascendant, (ii) Wife of his lineal ascendant, (iii) Wife of his lineal descendant, (iv) Brother’s wife, (v) Wife of his father’s brother, (vi) Wife of his mother’s brother, (vii) Wife of his grandfather’s brother, (viii) Wife of his grandmother’s brother, (ix) Sister, (x) Sister’s daughter, (xi) Father’s sister, (xii) Mother’s sister, (xiii) Father’s sister’s daughter, (xiv) Father’s brother’s daughter and (xv) Mother’s brother’s daughter.

And a woman cannot marry with any of them;

(i)Her lineal ascendant, (ii) Husband of her lineal ascendant, (iii) Husband of her lineal descendant, (iv) Brother, (v) Father’s brother, (vi) Mother’s brother, (vii) Nephew, (viii) Sister’s son, (ix) Uncle’s son, (x) Father’s sister’s son, (xi) Mother’s sister’s son and (xii) Mother’s brother’s son.

  • What are those conditions in this Act,whose violation lead to void marriage under law?

Conditions mentioned in the Section 5(i), 5(iv) and 5(v) of this Act, if violated then the marriage will consider as a Void marriage.

References:

[1]Sourav Sinha “Hindu Marriage” https://www.academia.edu/24924018/Hindu_Marriage visited on 13th June 2020

[2]RitvikTyagi “Essential of Hindu Marriage” “Law Circahttps://lawcirca.com/essentials-of-hindu-marriage/ visited on 13th June 2020

[3]AIR (2004) 3 SCC 199

[4]AIR 2009 SC 1085

[5] The Hindu Marriage Act, 1955 https://indiankanoon.org/doc/590166/

[6]AIR 1988 SC 644

[7]AIR 1969 All 489

[8]AIR 1991 SC 816

[9]The Hindu Marriage Act, 1955 https://indiankanoon.org/doc/590166/

[10] AIR 2001 SCC 688

[11]AIR 1972 AP 15

[12]The Hindu Marriage Act, 1955 https://indiankanoon.org/doc/590166/

[13] The Hindu Marriage Act, 1955 https://indiankanoon.org/doc/590166/

[14]AIR 1982 P H 221

[15]The Hindu Marriage Act, 1955  https://indiankanoon.org/doc/590166/

[16]AIR1955 SC 1564

[17] AIR 2006 2 SCC 578

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