Section 5 of the Act of 1955 prescribes conditions for a valid Hindu Marriage. A marriage may be solemnized between any two Hindus if the conditions given in section are fulfilled. In this article, we shall study the fourth condition prescribed in the section i.e. No marriage within the degrees of prohibited relationship.

Section 5: the Hindu Marriage Act, 1955:

Condition for a Hindu Marriage:

A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of 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 or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) 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;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) (Omitted)

Section 5 (iv) of the Hindu Marriage Act, 1955:

The parties to the marriage should not be within the degrees of prohibited relationship unless a custom or usage governing each of them permits such a marriage:

Under this clause, a marriage between persons who are within the degrees of prohibited relationship with each other is prohibited. Under the ancient Hindu Law also, such a marriage was not allowed. The Hindu texts went to the extent of prohibiting a man marrying a girl even of the same “gotra” or “pravara” on the theory that his father and the girl’s father were both descendants of a common ancestor in the male line and all such marriages were held invalid until the Hindu Marriage Disabilities Removal Act, 1946 was passed.  

This requirement of a valid Hindu marriage specified in Section 3(iv) is mandatory, and its contravention will render a marriage void unless such a marriage is sanctioned by custom or usage of both the parties.

Reason of Prohibition:

Marriage between parties related to each other within the degrees of prohibited relationship is forbidden to prevent:
a) physical degeneracy of the race which the marriage between near relations would lead to;
b) moral degeneracy and consequent evil results which are apt to affect a society built on the edifice of the joint family system

Understanding the Provisions:

For understanding this section we have to study Section 3(c), 3(d), 3(g) and 5 simultaneously.

Section 3 Subclauses (c) of the Act defines the terms Full blood” and “half-blood” relations as under.

Section 3 (c) Meaning of terms Full blood” and “half-blood” relationship:

two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives;

Section 3 Subclauses (d) of the Act defines the terms Full blood” and “half-blood” relations as under.

Section 3 (d) Meaning of the term “uterine blood” relationship:

two persons are said to be related to each other by uterine blood when they are descended from a common ancestor but by different husbands.

Explanation:

In Clauses (c) and (d) “ancestor” includes the father and “ancestress” the mother;

Section 3 Subclause (g) of the Act defines the term “”degrees of prohibited relationship” as under.

Section 3 (g) Meaning of “degrees of prohibited relationship”

two persons are said to be within the “degrees of prohibited relationship”-

(i) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or

(iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother or the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.

Explanation:

for the purposes of clauses (f) and (g) relationship includes-

(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.

But if the “custom” or “usage” governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship, then such marriage will be valid and binding.

Section 5 (iv) of the Hindu Marriage Act, 1955 deals prohibits marriage between persons who are within the prohibited degrees of relationship with each other. The list of degrees of prohibited relationship for a male is given below. A man cannot marry a woman having a relationship with him as under:

1. A female ascendant in the line.
2. Wife of a descendant in the line.
3. Wife of the brother.
4. Wife of the father’s brother.
5. Wife of the mother’s brother.
6. Wife of the grand father’s brother.
7. Wife of the grand mother’s brother
8. Sister.
9. Brother’s daughter.
10. Sister’s daughter.
11. Father’s sister.
12. Mother’s sister.
13. Father’s sister’s daughter.
14. Father’s brother’s daughter.
15. Mother’s sister’s daughter.
16. Mother’s brother’s daughter.

The list of degrees of prohibited relationship for a female is given below. A woman cannot marry a man having a relationship with him as under:

1. Her lineal ascendant likes Father, Father’s Father.
2. The husband of a lineal ascendant.
3. The husband of a lineal descendant.
4. Brother.
5. Father’s brother.
6. Mother’s brother.
7. Brother’s son.
8. Sister’s son.
9. Father’s brother’s son.
10. Father’s sister’s son.
11. Mother’s brother’s son.
12. Mother’s sister’s son.

Under this clause, a marriage between persons who are within the degrees of prohibited relationship with each other is prohibited. Under the ancient Hindu Law also, such a marriage was not allowed. This requirement of a valid Hindu marriage is mandatory, and its contravention will render a marriage void.

Section 5 (iv) allows such marriage if the “custom” or “usage” governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship. Section 5 (iv) makes such marriage valid and binding.

The custom must not be unreasonable or opposed to public policy. A custom would not be recognized, if it is abhorrent to decency or morality or if it is inconsistent with the practices of good men. A custom prevailing amongst the Jats of Punjab allows marriage with a brother’s widow. In some parts of South India, a marriage of a man with his sister’s daughter is also recognized by custom. In some part of Maharashtra, the girl’s marriage with the father’s sister’s son is valid. In Andhra Pradesh, custom permits marriage with sister’s daughter

A marriage which is performed in breach of this condition is void ab initio under Section 11 of the Hindu Marriage Act, 1955 and a competent Court can declare it to be void, on a petition presented by either party to such a marriage. Further, the persons contravening the provisions of this clause are also liable to be imprisoned or fined (or both) under Section 18(b) of the Act.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Conditions for Valid Hindu Marriage: Degrees of Prohibited Relationship

The post Condition For Valid Marriage: Degrees of Prohibited Relationship appeared first on The Fact Factor.

Section 5 of the Act of 1955 prescribes conditions for a valid Hindu Marriage. A marriage may be solemnized between any two Hindus if the conditions given in section are fulfilled. In this article, we shall study the third condition prescribed in the section. i.e. marriageable age.

Section 5: the Hindu Marriage Act, 1955:
Condition for a Hindu Marriage:

A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of 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 or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) 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;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) (Omitted)

Section 5(iii) of the Hindu Marriage Act, 1955:

The bridegroom should have completed the age of 21 years and the bride the age of 18 years, at the time of marriage:

Under the ancient Hindu Law, no minimum age limits were prescribed for a Hindu marriage. There is an injunction for men that they should marry on the completion of the Brahmacharya Ashram i.e., Study of the Vedas. According to Griha Sutras, the minimum age for the marriage of a girl was 8 years.

Under Section 5(iii) of the Hindu Marriage Act, 1955, at the time of marriage, the age of bridegroom should be more than 21 years and that of the bride should be more than 18 years.

The violation of this clause does not make a marriage void or even voidable.

Child Marriage Restraint Act, 1929:

The Act of 1929 was passed by the efforts of Rai Saheb Harbilas Sarda for the object of checking the evil of the child marriage. Hence this Act is also known as ‘Sarda Act’. The aim of the Act was not to prohibit child marriage but to restrain from it. In this enactment, it was laid down that at the time of marriage, the bride must have completed 14 years and the bridegroom 18 years. Later on, by an amendment, the marriageable age of girls was raised to 15 years. A boy or a girl younger than this was declared a “child” and child marriage was made punishable. But according to this Act the child marriage performed was a valid marriage. The original Hindu Marriage Act 1955 did not differ from this state of law.

The Child Marriage Restraint (Amendment) Act, 1978 laid down that at the time of marriage, the bride must have completed 17 years and the bridegroom 21 years. Accordingly, the Hindu Marriage Act, 1955 and Child Marriage Restraint Act, 1929 was amended. This Amendment was not rendering child marriages void. But, it prescribed some penalties for those persons who are responsible for child marriages. The offences under the Act are not cognizable offences. This means that unless a complaint is filed, no proceedings can be launched in a court,

Prohibition of Child Marriage Act, 2006:

The Child Marriage Restraint Act, 929 Act was replaced by a new Act called the Prohibition of Child Marriage Act, 2006. According to that Act, the minimum age for the bride is 18 years at the time of marriage and for the bridegroom, it is 21 years.

Under Section 9 of the Prohibition of Child Marriage Act, 2006, whoever, being a male adult above 18 years of age, contracts a child marriage, shall be punishable with rigorous imprisonment which may extend to 2 years or with fine which may extend to one lakh rupees or with both.

Under Section 10 of the Prohibition of Child Marriage Act, 2006, whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he had reasons to believe that the marriage was not a child marriage.

Under Section 11(1) of the Prohibition of Child Marriage Act, 2006, here a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful including any member of an organization or association of persons who does any act to promote the marriage, or permits it to be solemnized or negligently fails to prevent it from being solemnized, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to 2 years or with fine which may extend to one lakh rupees. Provided that no woman shall be punishable with imprisonment.

Under Section 11(2) of the Prohibition of Child Marriage Act, 2006, for the purpose of this Section, it shall be presumed, unless and until the contrary is proved that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnized.

Under Section 12 of the Prohibition of Child Marriage Act, 2006, where a child, being a minor a) is taken or enticed out of the keeping of the lawful guardian; or b) by force compelled or by any deceitful means, induced to go from any place; or c) is sold for the purpose of marriage and made to go through a form of marriage or if the minor is married after which, the minor is sold or trafficked or used for immoral purposes, such marriage shall be null be void.

Under Section 3(1) of the Prohibition of Child Marriage Act, 2006,  every child marriage whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage. Provided that, a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.

Under Section 3(2) of the Prohibition of Child Marriage Act, 2006, if at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the child marriage prohibition officer.

Under the Hindu Marriage Act, 1955, a marriage solemnized in contravention of the conditions prescribed for a valid marriage was treated as valid. By invoking the doctrine of Factum Valet, validity was given to child marriages. Later, the Marriage Laws (Amendment) Act, 1976 through 13 (2) (iv), provided relief to a Hindu wife if her marriage was solemnized before attaining 15 years, can repudiate after attaining 15 years and before attaining 18 years. Now the Prohibition of Child Marriage Act, 2006 made a child marriage, voidable.

Under Section 3(3) of the Prohibition of Child Marriage Act, 2006, the petition under this Section may be filed at any time but before the child completes 2 years of attaining majority.

Under Section 14 of the Prohibition of Child Marriage Act, 2006,  any child marriage solemnized in contravention of an injunction order issued prohibiting such marriage, shall be ‘void ab initio’.

Under Section 15 of the Prohibition of Child Marriage Act, 2006, notwithstanding anything contained in the Code of Criminal Procedure 1973, offences punishable under this Act shall be cognizable and non-bailable.

Under Section 13(2) (iv) of The Hindu Marriage Act, 1955, according to the Marriage Laws (Amendment) Act,1976 where the marriage of a girl (whether consummated or not) solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years, the girl can obtain a decree for dissolution of marriage. This is an additional ground made available to a wife. This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Conditions for Valid Hindu Marriage: Age

The post Conditions of Valid Hindu Marriage: The Age S. 5(iii) appeared first on The Fact Factor.

Section 5 of the Act of 1955 prescribes conditions for a valid Hindu Marriage. A marriage may be solemnized between any two Hindus if the conditions given in section are fulfilled. In this article, we shall study the second condition prescribed in the section. i.e. Soundness of mind.

Section 5: the Hindu Marriage Act, 1955:
Condition for a Hindu Marriage:

A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of 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 or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) 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;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) (Omitted)

Section 5(ii) of the Hindu Marriage Act, 1955:

Neither party should be suffering from unsoundness of mind, mental disorder or insanity:

Section 5(ii) lays down that the parties to the marriage are of sound mind and are not suffering from any mental disability so as to be unfit for giving valid consent. The Hindu Marriage Act, 1955 originally laid down that neither party to the marriage should be an idiot or lunatic. Under this Act, the marriage of the idiot or lunatic was only voidable

Judicial Interpretation of Soundness of Mind Before the Act:

Under the old Hindu Law as per the texts, a Hindu marriage was a pure sacrament, and therefore, idiots and lunatics could be lawfully married, as a consenting mind was not necessary.

An “idiot” is “he, that a fool from his birth and knoweth not how to count
or number, or can not name his father or mother, nor of what age he himself is, or such as easy and common matters; so that it appeared that he has no manner of understanding, or reason, or government of himself, or what is for his profit or disprofit

In Amrithammal v. Vallimayil Ammal AIR 1942 Mad 693  and Ratneshwari v. Bhagwati AIR 1950 PC 142 cases the Courts held that according to ‘Smritis’, mental soundness was not a condition for marriage. It necessarily implies that a person of unsound mind could marry and his marriage was legally safeguarded in the name of samskara.

Amendments in Section 5 (ii) :

Originally, Section 5(ii) of the Hindu Marriage Act, 1955 laid down that: “Neither party to the marriage should be an idiot or lunatic at the time of marriage”.

The Marriage Laws (Amendment) Act, 1976 has reframed this clause thus-
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 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 (or epilepsy)

The word epilepsy has been omitted from the H. M. Act, 1955 by the Marriage Laws (Amendment) Act, 1999.

Explanation of Section 5(ii) Soundness of mind Defined:

Under sub-clause (a) of Section 5 Clause (ii), every kind of ‘unsoundness of mind’ is not covered. The unsoundness of mind should be such, which incapacitates a person from giving a valid consent to the marriage. It need not be persistent or continuous unsoundness of mind. It may exist just before the marriage

Under sub-clause (b) of Section 5 Clause (ii), the person is capable of giving a valid consent but suffering from mental disorder of such a kind (or) to such an extent as to be unfit for marriage and the procreation of children. The words “has been suffering” requires that mental disorder should be of some duration. The duration will differ from case to case, and no hard and fast rule can be laid down. It is not every ‘mental disorder’ which renders the marriage voidable, but should satisfy two conditions given in the clause: first, it renders him unfit for marriage, and the second renders him unfit for procreation of children.

In Smt. Alka Sharma v. Abhinesh Chandra Sharma, AIR 1991 MP 205 case, the Court held that nullity of marriage under the word “and” between expression “unfit for marriage” and “procreation of children”, in Sec. 5 (ii) (b) should be read as “and” / “or”. The court can nullify marriage if either condition or both conditions contemplated exist due to mental disorder making living together of parties highly unhappy. The Court also opined that the word “procreate” includes the capacity to rear up children besides the capacity to beget them.

Under sub-section (c) of Section 5 Clause (ii), recurrent attacks of insanity make a person unfit for marriage. He cannot marry even during a lucid interval. This sub-section has made a substantial difference between the original provision and the present provision. The original provision was that neither party was an idiot or a lunatic at the time of the marriage. It could mean that a person who was suffering from recurrent attacks of insanity could marry during a lucid interval because then it could not be said that he was an idiot or a lunatic at the time of marriage. This clause looks at the mental state even before marriage. The Marriage Laws (Amendment) Act, 1999 has omitted the word ‘epilepsy’. Thus now there is no condition of the marriage that a party to the marriage should not suffer from ‘recurrent attacks of epilepsy.

In R. Lakshmi Narayana v. Santhi (2001)4 SCC 688 case, the Court held that the marriage which takes place in contravention of the condition prescribed in Section 5 of the Hindu Marriage Act, 1955 is not per se void but voidable under Sec.12 (1) (b) of the Act.

Conclusion:

As per Section 5(ii), the parties in Hindu marriage should have soundness of mind.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Conditions for Valid Hindu Marriage: Soundness of Mind

The post Conditions of Valid Hindu Marriage: Soundness of Mind S. 5(ii) appeared first on The Fact Factor.

Section 5 of the Act of 1955 prescribes conditions for a valid Hindu Marriage. A marriage may be solemnized between any two Hindus if the conditions given in section are fulfilled. In this article, we shall study the first condition prescribed in the section. i.e. Monogamy.

Section 5: the Hindu Marriage Act, 1955:

Condition for a Hindu Marriage:

A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of 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 or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) 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;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) (Omitted)

Section 5(i) of the Hindu Marriage Act, 1955:

Neither party should have a spouse living at the time of the marriage:

From the Vedic period, though monogamy has been the rule, polygamy as an exception, existed side by side. The rules relating to ‘Anuloma’ marriages allowed a man more than one wife. But the wife who was first wedded was alone the wife in the fullest sense. Manu allowed a second marriage to a man only after the death of his wife. But under certain circumstances, he allowed a second wife. It was only when a wife was barren, diseased, or vicious, that could be superseded and a second marriage was valid; as also when she consented. On the supersession of a wife, the husband had to make provision for her. The first married wife had precedence over the others and her firstborn son over his half-brothers.

Section 5 clause (i) of the Act establishes the rule of monogamy and prohibits polygamy, which was permitted before the Act came into force. It also prohibits polyandry, which was prohibited by the ancient Hindu law also. Under Section 11 of the Act, bigamous marriages are void. A competent court may declare such a marriage to be a nullity on a petition presented by either party to such marriage. Further, Section 17 of the Act makes bigamy a penal offence for both Hindu males and females under Sections 494 and 495 of IPC.

Polyandry permits a female to have more than one husband simultaneously.  

In Krishnan v. Ammalu, 1972 Ker 91  case, the Court observed that in Lahaul valley in Himachal Pradesh and among Thiyyas of South Malabar, polyandry was recognized.

In Palaniappa Chettiar v. Alagan Chetti, (1921)48 I.A 539, 543, case, the Court observed that in some cases, the custom prevents any second marriage without the consent of the first wife and without making provision for her.

In Adhav v. Adhav, AIR. 1988 SC 644 case, the Supreme Court has held that a marriage with a person who has a living spouse is totally null and void; it cannot be treated as voidable under S. 12 of the Act.

Who Can Complain of Bigamy?

Section 5(i) of the Hindu Marriage Act, 1955 provides for monogamy. Thus bigamy is an offence under the Section. Only the person aggrieved can complain in case of bigamy. If it is the wife who is aggrieved, then her father can complain as he is the lineal ascendant of the wife.

Remedies Available to the First Wife:

If a husband/wife is about to take a second wife/husband, the first wife/husband can ask for an injunction from the court. A suit for a perpetual injunction by one spouse against the other can be filed under Section 9, C.P.C read with Section 38, Specific Relief Act, 1963.

The first wife of a bigamous marriage has no right to file a petition for nullity under the Hindu Marriage Act, 1955 since Section 12 clearly lays down that a petition for a declaration that the marriage is null and void can be filed only by either party to the marriage. But the first wife can file a suit in a civil court for a declaration under Section 9, C.P.C. read with Section 34, Specific Relief Act, 1963 that the second marriage of her husband is null and void. She can also file a petition for divorce under Section13 (1) (i) of H.M.Act, 1955 on the ground of Adultery.

Remedy for the Second Wife:

In Jayalakshmi v. Gayatri, AIR 1998 Kant 169 and Savitri Devi v. Manorama Bai, AIR 1998 MP 114 cases the Court held that in a bigamous marriage, the “second wife” has no status of wife. But she is entitled to maintenance under Section 25 of the Hindu Marriage Act, 1955. The second wife can claim interim maintenance under Section 20 of the Hindu Adoption and Maintenance Act, 1956.

In Megh Prasad v. Bhagwanti Bai, AIR 2010 Chhattisgarh 25 (para 9)  case, respondent married the appellant with the consent of his first wife. At the time of alleged marriage of respondent with the appellant, both parties i.e. appellant and respondent were having spouses and their marriages were not dissolved by a decree of divorce or by any recognized custom. The Court held that such marriage is in violation of Section 5 (i) of the Hindu Marriage Act, 1955. The words ‘Hindu wife’ used in Section 18 of the Hindu Adoptions and Maintenance Act, 1956 only include a lawful wife or legally wedded wife and does not include any wife of second marriage during the subsistence of her first marriage. Hence the respondent is not legally wedded wife or lawful wife of the appellant.

In Smt. Sushma Choure v. Hetendra Kumar Borkar, AIR 2010 Chhattisgarh 30 (DB) (paras 12 and 14) case, the court held that the second marriage during the subsistence of first marriage is void.
In Gurmit Kaur v. Buta Singh, AIR 2010 (NOC) 440 (P & H) it was held that when the marriage being void from its inception, no amount of delay can stand in the way of obtaining a declaration as to nullity of marriage.
In Ms. Bhavna Sahar Wasif v. Flying Officer Rajiv Gakhar, AIR 2010 (NOC) 444 (P & H) petition was presented by the husband under Section 11 of the Hindu Marriage Act, 1955 for declaring marriage as null and void on the ground that his wife was already married to person belonging to Muslim religion. It was held that wife being converted to Muslim and was no longer a Hindu, the Hindu Marriage Act, 1955 will have no application to entertain a petition.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Conditions for Valid Hindu Marriage: Monogamy

The post Conditions of Valid Hindu Marriage: Monogamy: S. 5(i) appeared first on The Fact Factor.

Though the sacramental aspects of Hindu marriage still tend to persist, the passing of the Hindu Marriage Act, in 1955, has substantially modified the institution of marriage as recognized by the ancient Hindu law. Transformations have been marked in respect of restrictions in marriage, selection of mates, marriage rites and rituals, age at marriage, the aim of marriage, parental control in marriage, settlement, the stability of marriage, the practice of dowry, etc. The Most Important Changes brought about by the Hindu Marriage Act are mentioned below:

• A Hindu marriage is now not so much concerned with religion. It is more a result of mutual consent than sacramental. It is a contract [Sections 5(ii), (iii), 11 to 13 and 7].
• Section 2 of the Act defined the term “Hindu” and as per this Section, the Act has declared that marriages amongst Hindus, Jains, Sikhs, and Buddhists, are valid Hindu marriages in the eyes of the law. (Section 2.)
• The Act has abolished the divergence between the Mitakshara and the Dayabhaga Schools in connection with the prohibited degrees of relationship for the purposes of a Hindu marriage. (Section 3.)
• The Act has declared polygamy to be illegal. The law provides that no one can marry a second time while the former spouse is alive. Any marriage during the lifetime of a living spouse, wife or husband, has been declared null and void. Thus the Act introduces monogamy for the first time amongst the Hindus and provides for punishment for bigamy under the Indian Penal Code. (Sections 5 and 17.)  This has brought to an end the age-old practice of marrying several women in order to get a son. Bigamy has been made punishable under Section 17 as an offence under the Indian Penal Code, 1860, Sections 494 and 495.
• The Act abolishes the distinction between the marriage of a maiden and that of a widow. Previously the Hindu widows were not allowed to contract a second marriage. Rather the practice of ‘Sati’ was followed. Now the practice of sati has been abolished with the enactment of the law. The Hindu Widow Remarriage Act, 1950 has made provision for remarriage of widows.
• The Act also prescribes the minimum age for marriage, being 21 in the case of a boy, and 18 in the case of a girl. (Section 5.) Ancient Hindu law did not prescribe any such age for marriage. Thus the Hindu Marriage Act, 1955, The Child Marriage Restraint (Amendment) Act, 1978 and Prohibition of Child Marriage Act, 2006, have helped in the reduction of child marriages.
• The Hindu Marriage Act, 1955 has not prescribed any particular form of the eight ancient forms of Hindu marriage. It simply lays down the conditions for a valid marriage. The Act calls marriages solemnized under the Act as Hindu marriages which may be performed in accordance with the customary ceremonies prevalent in the community to which, the bride belongs. (Section 5.)
• Conditions for a valid Hindu marriage have been codified under Section 5 and ceremonies for marriage have been rationalized to suit a diversity of customs, at the same time excluding any whimsical ceremonies not authorized either by a prolonged usage or custom of the marrying parties. These rites and rituals envisaged the Hindu marriage as a religious sacrament, which included Vivah Homa, saptapadi, panigrahana, kanyadana, pradakshina, etc. The Act does not prescribe any particular ceremony for a valid Hindu marriage. It simply lays down the conditions for a valid marriage. The Act calls marriages solemnized under the Act as Hindu marriages which may be performed in accordance with the customary ceremonies prevalent in the community to which, the bride belongs. (Sections 5 and 7.). The Civil Marriage Act of 1954 has made provision for marriages in civil courts. The Arya Samaj and other religious reform movements have made the marriage rituals simple and precise.
• The Act provides, for the first time, for the registration of Hindu marriages. (Section 8.)
• The Act also contains provisions for restitution of conjugal rights of the parties to a marriage. (Section 9.)
• Customarily the Hindu marriage was considered a religious sacrament and an indissoluble bond between the spouses for many births. But with the enactment of Act, the sacramental aspect of the Hindu marriage has been challenged. The Act also lays down grounds on which a judicial separation can be decreed by the Court. (Section 10.)
• The first sacramental characteristic of a Hindu marriage was that it is a permanent union and cannot be dissolved on any ground whatsoever. The Act lays down the grounds on which a divorce can be obtained by any of the parties to Hindu marriage. Further, the concept of divorce by mutual consent has also been introduced in the Act. (Sections 13, 13B and 14.).
• The Act also makes a provision for re-marriage, inasmuch as it provides that after a valid divorce, either party may marry again. (Section 15.)
• The Act also provides for maintenance pendente lite and for expenses of legal proceedings by either of the spouse having no source of income. (Section 24.)
• The Act also provides for permanent alimony and maintenance to by either of the spouse having no source of income. (Section 25.)
• The Act also makes provisions for the custody of children during the pendency of legal proceedings, as also after the passing of a decree. (Section 26.)
• The Act guarantees the security of any property presented at or about the time of marriage (Section 27).
• As a humanitarian gesture, legitimacy has been conferred on such children who are born of void or voidable marriage so as to enable them to inherit the property of their parents.
• The right for disposal of the property presented at or about the time of marriage, which may belong jointly to husband and wife, has also been conferred upon parties by this Act
• Section 18 (a) of the Hindu Marriage Act, 1955 has been modified to make the offence of child marriage a a cognizable and non-bailable offence punishable with rigorous imprisonment for 2 years and/or a fine of one lac rupees.

Social Changes:

Abolishment of Exogamic and Endogamy Principles:

The exogamic principle of Hindu marriage stipulated that one must select his life partner from outside his own groups such as the pinda or pravara or gotra, while the endogamy principle proclaimed that the Hindus are to select their mates inside their own caste group. Even recent time also we see that the violation of the principle of endogamy attracted punishment amounting to ostracizing, excommunication and even honour killing. The Hindu Marriage Act, 1955 has allowed sagotra and sapinda marriage. It has also allowed the cross-cousin marriage where it prevailed customarily. Inter-caste marriages are encouraged by social reformers and the legal system. Even inducements are given by the government for the practice of inter-caste marriage. 

Less Parental Control:

Previously the parents or other relatives were responsible for settling marriages. Their decision regarding the selection of mates was binding. But nowadays, in the wake of modernization, modern values and modern education boys and girls are inculcating individualism and liberalism. These factors helped them to take their own decisions. Hence in the present era, the parents and relatives seek their opinion in marriage.

Changing Social fabric:

The traditional criteria of caste, religion, family background and income are no more considered important in the selection of mates. The emphasis has shifted to the socio-economic status of the bridegroom’s family and his education and earning potential.

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In this Article, we shall understand the conditions for marriage given in ancient Hindu texts regarding marriage. Under old Hindu law, three conditions were required for a valid marriage. These were:

Identity of Caste:

The parties in marriage should belong to the same caste unless sanctioned by custom. If this condition is not satisfied, then the marriage was considered to be invalid.

The old texts prescribe two types of marriages with respect to the case: (i) Pratiloma marriage and (ii) Anuloma marriage.

Pratiloma marriage is a type of marital practice in which a man of lower class/caste/varna marries a girl of higher class/caste/varna.  It is considered Hypogamy form of Marriage. This type of marriage is prohibited in Hinduism. Anuloma marriage is a type of marital practice according to which a boy from upper varna/caste/class can marry a girl from lower varna/caste/class. It is considered a hypergamy form of marriage. During the Vedic Age inter-class marriages used to take place in the form of Anuloma marriage. But they were only allowed among Brahmins, Kshatriyas, and Vaishyas. Anuloma marriage was normally associated with Hindu polygamy. The association of Anuloma marriage with polygamy led to the ugly practice of dowry.

Anuloma and Pratiloma marriage, as a rule of marriage, is an inseparable part of the Hindu caste system. The rule of Anuloma and Pratiloma marriages has greater significance for the caste structure of Hindu society than for the marriage pattern of the Hindus.

During the British regime, many Acts like Arya Samaj Validation Act 1937, Special Marriage Act 1872, Hindu Marriage Disabilities Removal Act 1946, Hindu Marriage validity Act 1949 were passed to validate inter-caste marriages.

Parties Should be Beyond the Prohibited Degrees of Relationship:

 Parties Should be beyond the prohibited degrees of relationship. i.e., were not of the same gotra or pravara and were not the sapinda of each other. This rule is not applicable to shudras, as they had no gotra of their own.

A sapinda relationship, with reference to any person, extends as far as the third generation (inclusive of the third generation) in the line of ascent through the mother, and the fifth generation (inclusive of the fifth generation) in the line of ascent through the father. In determining the sapinda relationship, the line is always to be traced upwards from the person concerned, and such a person has to be counted as the first generation. 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. In Coming Articles, we shall study the sapinda relations in detail.

Proper Performance of Ceremonies of Marriage:

According to Hindu texts, there should be a proper marriage ceremony consisting of Vivah Homa i.e. invocation before sacred fire and saptapadi i.e. seven steps taken by the bride and the bridegroom around the sacred fire. The marriage is complete only when the seventh step is taken. Besides the parties can perform ceremonies as per their customs.

What Changed? Due to the Hindu Marriage Act, 1955

Yagnavalkya in the chapter dealing with marriage stated the conditions necessary for a valid Hindu marriage. The commentators have treated some of the conditions mentioned in this text as mandatory and some as recommendatory.

The mandatory conditions are:

• The bride should not be a sapinda of the bridegroom.
• She should be separated by seven degrees on the father’s side and five degrees on the mother’s side.
• She should not have the same ‘gotra’ or ‘pravara’ as the bridegroom.
• She should not have been married to another earlier.

The recommendatory conditions are:

• She should be good looking.
• She should be younger in years.
• She should be healthy.
• She should have brothers.

The conditions mentioned in Yajnavalkya Smriti have been considerably modified by the Hindu Marriage Act, 1955. The major modifications are:

• According to Yajnavalkya, the bride should be ‘Ananya Purvika’ i.e. she should not have been married to another earlier. So, a widow marriage was not sanctioned.
• According to Yajnavalkya, the bride and bridegroom should not be of the same gotra or pravara. This condition is not prescribed in the Hindu Marriage Act, 1955.
• Yajnavalkya is silent about polygamy. The Hindu Marriage Act, 1955 lays down that neither party should have a spouse living at the time of the marriage. This
  entails a prohibition of polygamy and also forbids polyandry.
• Yajnavalkya prohibits marriages between sapindas. But according to Yajnavalkya, sapinda relationship extends up to 7 degrees on the father’s side and 5 degrees on the mother’s side. The Hindu Marriage Act, 1955 modifies it and lowers these limits to 5 degrees on the father’s side and 3 degrees on the mother’s side
• Yajnavalkya is silent about the age and mental conditions of the bride and bridegroom at the time of marriage.  The Hindu Marriage Act, 1955 lays down that the bridegroom should have completed 21years of age and the bride, 18 years at the time of the marriage. Similarly the Act lays down that 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 procreation of children; or c) has been subject to recurrent attacks of insanity or epilepsy.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Conditions for Marriage in Old Hindu Law

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The Hindu marriage is based upon the extinction of the dominion of the father over his daughter and the creation of the relationship of husband and wife by a religious function. The religious ceremony is essential for all forms of marriage. The mode of extinction of the dominion of the father differs in the various forms of marriage. Prior to the enactment of the Hindu Marriage Act, there were eight forms of marriage, four approved and four unapproved. Thus there were eight forms of marriages of which, four Brahma, Daiva, Arsha, and Prajapatya are approved and remaining four Asura, Gandharva, Rakshasa, and Paisacha are unapproved.

Approved Forms of Marriage:

Brahma form:

The gift of a daughter (kanya danam), after decking her with ornaments and honouring her with jewels to a man learned in the Vedas and of good character, whom the father of the girl himself invites, is called the “Brahma marriage”. In this form of marriage, the bride figured as an object of ‘dana’ or gift by her father or guardian to the bridegroom. In this form, the father invites and receives respectfully the bridegroom and makes a gift of his daughter, thereby putting an end to his dominion over daughter. The important feature of this form is that the parents of the bride do not receive any consideration for giving the girl in marriage. It was believed then that the son born of a Brahma marriage redeems from sin, ten ancestors, ten descendants and himself.

Brahma form of marriage is said to be the best and mostly practiced throughout India. It is considered an advanced stage of social progress.  In the Brahma form of marriage social decency was fully maintained and the religious rites were fully observed. In a Brahma form of marriage, when the woman died, her property devolved upon the legal heirs of the husband, in the absence of the husband and children.

Daiva form:

The Daiva form of marriage was slightly different from the Brahma form of marriage in the sense that the suitor was an official priest. Qualities like good character learned in the Vedas or good family background was not part of selection criteria.  This form of marriage is exclusively for the Brahmins because the Brahmins can only officiate in the sacrifices, as priests. In this form of marriage, the damsel is given to a person who operates as a priest in a sacrifice performed by the father, in lieu of the fee due to the priest. It is inferior to the Brahma because the father derives a benefit, which is not deemed reprehensible. It was believed then that the son born of such a marriage is said to redeem from sin seven parental ascendants and seven male descendants and himself.

Arsha form:

In Arsha form of marriage, the bridegroom makes a present of a cow and a bull or two cows and two bulls to the bride’s father which is accepted for the religious purpose only. Arsha form of marriage symbolizes the pastoral stage of the Hindu society where cattle were considered indispensable. In this form of marriage, the present of a cow and a bull or two cows and two bulls constitute the price of the bride. The number of persons redeemed by the male offspring of such marriage is only six (three male descendants and three female ascendants)

Prajapatya form:

The very name Prajapatya indicates that the pair enters the solemn bond for repayment of debts or rinas (obligations) to Prajapati for procreation and upbringing of children. This form of marriage does not materially differ from the Brahma, but in this, the gift is made with condition that “May both of you perform together, your civil and religious duties”. This form of marriage is an orthodox form where the parental approval figures and the economic complications of betrothal are bypassed.

Unapproved forms:

Asura form:

In the Asura form of marriage, the bride was given to the husband in payment of a consideration called ‘kanya sulkam” or bride-price.  This form of marriage was prevalent in ancient India when the bride was construed to be an article of merchandise.  This form of marriage is based on an agreement between two families as a commercial transaction. Thus in this form of marriage, the dominion of the father over the daughter ceases by his sale of the girl to the bridegroom. The acceptance of some consideration by the father for giving his daughter in marriage is the factor that stamps this marriage as one in the unapproved form.

In ‘Asura’ form of marriage, on the death of the wife, in the absence of her husband & Children, her property devolved upon her parental side.

Gandharva form:

The Gandharva marriage was the union of a man and a woman by mutual consent (love marriage). In this form, the bride with own consent gives herself away to the bridegroom. A minor girl is incompetent to contract this ‘Gandharva’ form of marriage as she is incapable of giving her consent. This form of marriage indicates that the parties must be adults so that they will be capable of sexual enjoyment. This form of marriage was practiced by the tribe called ‘Gandharva’ living on the slopes of the Himalayas. 

Rakshasa form:

This form of marriage may be described as marriage by capture, resembling the right of a victor to the person of the captive in war. This form of marriage was allowed only to the kshatriyas or military classes. Thus the forcible abduction of the bride from her paternal home is the essence of the Rakshasa form. This form of marriage is still practiced among certain classes of Gond tribals of Berar and Betul. In modern Indian society, this form of marriage has been banned, and its practice is a punishable offence under Section 366 of IPC.

Paisacha form:

It is the worst form of marriage among the Hindus. When the lover secretly embraces the damsel, either sleeping of flushed with strong liqueur, or disordered in her intellect, that sinful marriage, called paishacha is the eighth and the lowest form. This form of marriage is a punishable offence under the I.P.C. as rape as the principle of law holds that a culprit should not be allowed to be benefited for any wrong-doings caused by him.

In both Rakshasa and Paisacha, there is a subsequent marriage with sacred texts and it is the original mode of securing the maiden that stamps these marriages as ‘unapproved’. The difference between the ‘Paishacha’ and the ‘Rakshasa’ forms of marriage lies in the fact that whereas in Rakshasa form there is the scope of display of bravery and force at the same time, in the Paishacha form the maiden is taken by deception and fraud. The dominion of the father is completely undermined in the ‘Gandharva’, ‘Paishacha’ and ‘Rakshasa’ forms of marriage. 

The Hindu Marriage Act, 1955 has not prescribed any particular form of marriage. It simply lays down the conditions for a valid marriage. The Act calls marriages solemnized under the Act as Hindu marriages which may be performed in accordance with the customary ceremonies prevalent in the community to which, the bride belongs. In the present Indian scenario, considering the socio-legal point of view, three forms of Hindu marriage appear to be existent. These are the Brahma, Asura and Gandharva forms of marriage. The higher caste Hindus solemnize the Brahma form of marriage in the most cultured form. The Asura form of marriage is commonly practised among the lower castes and the Gandharva marriage is gaining momentum among the modern youths in the form of love marriage.

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Conditions For Marriage in Old Hindu Texts

Indian Legal System > Civil Laws >Family Laws > The Hindu Marriage Act, 1955 > Forms of Marriage

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India is the only country in the world which permits persons belonging to different religions to follow their own personal laws based on their religion. Thus in respect to personal matters like marriage, divorce, succession, and maintenance, different personal laws are followed, depending on the religion of the person. Thus different marriage laws, succession laws, and divorce laws are applicable to different religions like Hinduism, Islam, Christianity, and Parsis. In this article let us study the concept of marriage in Hinduism. In this article, we shall study the concept of a Hindu Marriage.

Marriage as an exclusive and sacramental union also gave birth to polygamy, concubinage, and prostitution. The marriage became monogamous for the woman alone. It became a sacrament for her alone. Hindus refined the institution of marriage and idealized it. In this process, they have laid down detailed rules covering practically all aspects of marriage. While maintaining some continuity with the past, the Hindu Marriage Act, 1955 has simplified the law of marriage.

The Concept of a Marriage in Hinduism:

Marriage (Vivah) is one of the 16 sanskaras enjoined upon every Hindu by the religion.

16 Sanskars or Sacraments in Hindus:

Hindu Marriage as Sacrament:

Marriage is one of the most important of all Samaskaras under the Griha Sutras. Among the Hindu, the marriage was considered as a sacrament. In Hinduism, the ultimate goal of human life is to attain moksha. According to Apasthamba, “Marriage was meant for doing a good deed and for the attainment of Moksha”. It was obligatory for every Hindu through which his well-conducted life progresses to its appointed end. In Hinduism the wife is considered ardhangini, half of her husband and shares with him equally, the fruits of all his acts, good or bad. The rationale behind such a sacramental character was to make the spouse physically, psychically and spiritually united. Thus marriage is an association for life here and hereafter, productive of full partnership with temporal and divine rights and duties. It was held that the marriage was the last of ten sacraments enjoined by the Hindu religion purifying the body from inherited taint. Thus marriage is a religious necessity rather than a mere physical luxury. A Hindu has to marry for a son who alone can save him from narak (hell) after death.

In Tikait v. Basant, ILR 28 Cal. 758,  case, the Court held that marriage under Hindu law was a sacrament, an indissoluble union of flesh with flesh, bone with a bone to be continued even in the next world.

In Shivonandh v. Bhagawanthumma, AIR (1962) Mad. 400 case, the Court observed that marriage was binding for life because a marriage performed by saptapadi before the consecrated fire was a religious tie which could never be united.

The sacramental marriage among Hindus has three main characteristics.

1. It is a permanent union. That means, it cannot be dissolved on any ground whatsoever;
2. It is an eternal union (Janma-janmantar bondhari), extending to a series of births. On this basis widows’ remarriages, were not recognized.
3. It was a holy or sacrosanct union.

Hindu Marriage as a Contract:

Hence such a marriage cannot take place without the performance of sacred rites and ceremony. After the enactment of the Hindu Marriage Act, 1951 Hindu marriage is no longer a sacrament but it is a contract. The first characteristic of sacramental marriage has been affected by Section 13 of the Hindu Marriage Act, 1955, for Hindu marriage can be dissolved on certain grounds specified under the Section. The second characteristic was wiped out with statutory recognition of widow marriage in 1856. The third characteristic’ is still retained in the society.

In Dhanjit Vadra v. Beena Vadra, AIR 1990 Del. 146 at 151  the Court cited observations of a division bench of the Andhra Pradesh High Court: “Section 13-B radically altered the legal basis of a Hindu marriage by treating it as an ordinary form of contract which competent parties can enter into and put an end to like any other contract by mutual consent.”

In Purushottamdas v. Purushottamdas, 21 Bom 23 case, the Court observed that the marriage of Hindu children is a contract made by their parents.

In Bhagwati saran Singh v. Parmeshwari Nandar Singh 1942 ILR All 518 case, the Court held that a Hindu marriage is not only a sacrament but also a contract.

In Muthusami v. Masilamani 33 Mad 342 case observed that marriage, whatever else it is, i.e. sacrament, and institution, is undoubtedly a contract entered into for consideration, with co-relative rights and duties.

In Anjona Dasi v. Ghose, 6 BengalLaw Reporter, 243 case, the Court held that suits relating to marriage deal with that which is the eye of the law must be treated as a civil contract, and important civil rights arise out of that contract.

In most of the Hindu marriages, a religious ceremony is still the sine qua non. Viewed from this side, one may conclude that Hindu marriage has not remained purely a sacrament and at the same time, it has become completely a contract.

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Indian Legal System > Civil Laws > Family laws > The Hindu Marriage Act, 1955 > Concept of Marriage in Hinduism

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