Table of Contents
Marriage is a civil and religious contract whereby a man is joined and united to a woman for civilized society.
Marriage is the approved social pattern whereby two or more persons establish a family.
Marriage is a contract for the production and maintenance of children.
Section 5, 11, 12 of the act for the pertinent [important concerning] provisions.
According to section 5, a marriage may be solemnized between any two Hindus if the following conditions are fulfilled:
- Either of the parties at the time of Marriage shall not have a living husband or wife.
- Shall not be of unsound mind.
- The consent must be free.
- The bridegroom must be completed at the age of 21 years and the 18 years for the bride at the time of Marriage.
- The parties are not within the degree of prohibited relationship unless the custom or usage governing each of them permits Marriage between the two.
Degree of prohibited relationship
According to Section 3(g) of the act, two persons are said to be within the degree of prohibited relationship:
- If one is the lineal ascendant of the other.
- If one is the wife or husband of a lineal ascendant or descendant of the other.
- If one was the brother’s wife or the father or mothers brother or the grandfathers or grandmothers brother of the other.
- If the two are the brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or two brothers or two sisters.
According to section 3(f) of the Hindu Marriage Act, 1955
(i) with reference to any person extends as far as 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;
(ii) two persons are said to be sapindas of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;
Five rules to trace out sapnida relationship:
- Prospective shall be traced as 1st generation.
- Line of ascent shall be counted upward.
- Fathers ascent- up to 5th generation (inclusive)
- Mothers ascent- up to 3rd generation (inclusive)
- Lineal ascent- can’t marry.
According to section 11 following marriages to be void:
- Where at the time of Marriage any part has a living spouse.
- Where at the time of marriage fall within sapnida relationship.
- Where parties to the Marriage come with a degree of prohibited relationship.
According to section 12 of the act, in the case of Marriage being voidable, the court may declare it null under the following conditions:
- Where the Marriage has not been consummated owing to the importance of the respondent.
- Where the Marriage is in contravention of the conditions specified in section 5(ii)
- There is punishment under section 18 for contravention of particular conditions:
- For section 5(ii) rigorous imprisonment, which may extend to 2 years or with a fine which may extend to 1 lakh or both.
- For section5(iv)(v), simple imprisonment may be extended to 1month or with fine, extending to 1 thousand rupees or both.
- Where the consent has been obtained by fraud.
- The respondent was at the time of Marriage pregnant by some person other than the petitioner.
Forms of Marriage
I. Ancient form:
|Approved form||Unapproved form|
|Brahma: best and most practiced form throughout India.||Asura: in this form, the bride was given to the husband in payment of consideration called sulka or bride price.|
|Daiva: the gift of a daughter, after having adopted her.||Rakshasa: Marriage by capture, resembling the right of a victor to the person of captive in war.|
|Arsha: when the father gives his daughter away after receiving one pair of kine from the bridegroom, or two pairs for used prescribed by law.||Gandharva: Marriage by mutual consent.|
|Prajapatya: in this form of Marriage, the father gives away his daughter with due honor saying, May both of you perform together with your religious and civil duties.||Paishacha: worst form of Marriage, in this lover, secretly embrace the damsel.|
II. Modern form:
- The Hindu Marriage act 1955 has no prescribed any particular form of Marriage. It simply lays down five conditions for valid Hindu Marriage.
- In Hindu society, mainly two types of Marriage are prevalent:
- Arrange marriage.
- Love marriage.
- There is betrothal or sagai is a contract of Marriage.
Guardianship in Marriage
The child marriage restraint (amendment) act 1978 has deleted section 6 of the Hindu Marriage Act 1955, which deals with guardianship in Marriage, and since the act has raised the age of the Marriage from 15 to 18 for girls and 18 to 21 for girls boys. Then the question of guardianship in Marriage becomes irrelevant.
Ceremonies of Marriage
According to section 7 of the Hindu Marriage Act 1955
(1) A Hindu Marriage may be in accordance with the customary rites.
(2) Where such rites and ceremonies include the saptpadi (i.e. taking seven steps by the bridegroom and the bride jointly before the sacred fire).
Performance of such sastric ceremonies is still necessary for valid Marriage like:
- Vivahahoma [light of holy fire, symbol of divine witness]
Registration of Marriage
Section 8 of the Hindu Marriage Act 1955 deals with Registration
Section 8(1) registration of Marriage is a mode of proof of Marriage.
In Smt. Seema v. Ashwani Kumar (2006), The Supreme Court ordered compulsory Registration of Marriage irrespective of religion.
Section 8(2) Any person contravening any rule made on this behalf shall be punishable with a fine which may be extended to 25000.
Doctrine of Factum Valet
- It is a Latin maxim ‘factum valet quod fieri non debuit’.
- It means ‘what not to be done, become valid when done it already’.
- Before Hindu Marriage Act 1955, there was no codified rule for Marriage; it was regulated only by the ancient Hindu text, Dharmasastras.
In Rajamma v. Mayyamma (1954), The Court held that when marriage relations are once accepted by society and family, the doctrine of factum valet protects such marriage relations.
Inter-caste and Inter-religious Marriage
- Manu prohibited inter-cast or interreligious marriages, marriages between persons of different castes.
- Two forms of inter-cast marriage:
|Anuloma marriage When a male from a higher cast marries a female of lower cast||Partiloma marriage When a female of a higher cast marries a male of a lower caste.|
- In the post-Vedic period, the Hindu sages approved of the Sa-Varna [same caste marriage] and disapproved of inter-Varna [other cast marriage].
- Inter-caste Marriages were made valid for all Hindus by the Hindu marriage act 1949 and Inter-sub caste marriage by the Hindu Marriage (removal of disabilities Act 1946).
Marriages between Hindus and Non-Hindus
- Under the Hindu Marriage Act, marriages between Hindu and Non-Hindu is not possible and such Marriage is performed in India will be invalid.
- The validity of a marriage between Hindu and Non-Hindu is based on lex-loci.
- In Indian, such Marriage will be valid if performed under the special marriage act 1954.