ESSENTIALS OF HINDU MARRIAGE

Introduction

Definition of Marriage –

According to Raghunandan, a well known Bhasykar, “The acceptance of bride as his wife by the bridegroom in a gift by her parents is defined as marriage.” In the process of gift the father of the bride chooses the bridegroom as a suitable person to whom the girl is given. The pious duty of giving away the girl in marriage by a way of gift has been thrust upon the father or her guardian in his absence, as according to Rig-Veda, the girl is the property of the god of fire who has entrusted  the father with the responsibility of bringing her up & to give hr in gift to virtuous person by invoking the fire god to witness the act of giving. According to Manu, even if the girl attains the age of puberty & she has to live in father’s home for her whole life, she is not to be given in a marriage to a person, who is devoid of virtues & is worthless.

There are eight forms of marriages (before 1955) :-

Approved forms –

1. Brahma
2. Daivas
3. Arsha
4. Prajapatya

Unapproved forms –

5. Asur
6. Gandharva
7. Rakshas
8. Paishach

Marriage under the Hindu Marriage Act,1955 –

Hindu Marriage Act was come into force on 18th May, 1955. The law contained in the act is applicable to all sections of the society including Lingayats, Brahmas & Arya Samajists as well. It is applicable to all Hindu & the term Hindu in the present context has been interpreted in wider connotation so as to include Jains, Sikhs & Buddhas.

The Act has an overriding effect. Section4(a) & (b) provides that any texts rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall ceases to have effect with respect to any matter for which provision is made in this Act.

Nature of Marriage under the Act of 1955 –

The present Act has effected certain changes in the law of marriage, which has a long bearing on its nature. In the sacred texts, marriage created an inseparable tie between a husband & a wife, which could not be broken in any circumstances whatsoever. But the Hindu Marriage Act of 1955 by providing several matrimonial remedies including mainly divorce & nullity of marriages has seriously eroded its sacramental character.

The traditional view of family law is that it is essentially about marriage and its consequences. If a couple is married they automatically have certain rights and duties. The Hindu Marriage Act 1955 provides for essential conditions for the validity of a Hindu Marriage, registration of Hindu Marriages, Restitution of Conjugal rights, Judicial separation, Nullity of Marriage, Divorce etc. (Given in Sections 5- 13 under the topic Marriage)

Essentials of Valid Hindu Marriage

Under the Hindu Marriage Act ,1955 certain conditions are necessary for a valid Hindu Marriage. Those conditions have been laid own in Sec 5 and 7of the Act. Section reads as follows.

By virtue of section 5 of the Hindu Marriage Act 1955, a marriage will be valid only if both the parties to the marriage are Hindus. If one of the parties to the marriage is a Christian or Muslim, the marriage will not be a valid Hindu marriage

“A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

1.        Neither party has a spouse living at the time of the marriage;

2.       At the time of marriage, neither party:
a) is incapable of giving a valid consent to it in consequence of unsoundness of mind;
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;
c) has been subject to recurrent attacks of insanity or epilepsy.

3.       The bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage;.

4.       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.

5.      The parties are not sapindas (one is a lineal ascendant of the other) of each other, unless the custom or usage governing each of them permits of a marriage between the two.

Ingredients of Section 5

Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other a non Hindu or both are non Hindus, the marriage will not be a subject matter of this Act but will relate to some other law i.e. Special Marriage Act etc.
This section lays down five conditions for a valid marriage. They are:

1. Monogamy (Sec 5 Clause (1))

This condition implies monogamy and prohibits bigamy or polygamy. The marriage should be monogamous. The expression “neither party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If the spouse is alive at the time of marriage that could bar the remarriage of a person. However one must note that the first marriage of a person should be a legally valid marriage. In spite of one’s valid marriage if the person remarries in violation of Section 5(i), the second marriage will be null and void and he will be subjected to penal consequences. The Scheduled Tribes are exempted from the application of the Act. But there must be a proved custom to this effect.

 Bigamy – Section 5(i)

Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and Section 17 makes it a penal offence for both Hindu males and females under Section 494 and 495 of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are performed. The second marriage cannot be taken to be proved by the mere admission of the parties; essential ceremonies and rites must be proved to have taken place. In the case of a bigamous marriage, the “second wife” has no status of wife.

2. Mental Capacity (Sec 5 Clause (2))

Sub clause (a) – requires that at the time of marriage neither party is incapable of giving a valid consent to marriage due to unsoundness of mind.
Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither party to marriage should be suffering from a mental disorder of such nature and to such a degree as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan Singh v. Jit Kaur, the court held the marriage void on the ground that wife was suffering from schizophrenia within short period after marriage and the disease was not disclosed to the husband before marriage.
Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even during a lucid period.
Post marriage mental illness: If a party to a marriage is not suffering from any mental defect described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this condition.

3.Age to the parties (Sec 5 Clause (3))

According to this clause, at the time of marriage the bride must have completed the age of 18 years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage Act. However, violation of this condition does not make the marriage void or voidable. It means that it is valid though it may attract penalties. But it can become a valid ground for repudiation of the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for punishment for such marriage.
According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978 has also raised the age of marriage of girl to eighteen.

Punishment :- By Section 18 of the Act ,anyone who procures a marriage in violation of the condition is liable to be punished with simple imprisonment which may extent up to 15 days or with fine which may extend upto Rs. 1000/- or with both.

4.Degrees of Prohibited relationship (Sec 5 Clause (4))

The parties to marriage must not fall within the degree of prohibited relationship. This relationship is defined under Section 3(g) of the Act.
According to Section 3(g) “degree of prohibited relationship” means when two persons are related to each other in any of the following manners:

(i) By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the Sapinda relationship which extends upto fifth degree in the line of father and third degree in the line of the mother. The distinction of this category is that it extends even beyond the Sapinda ascendants.

(ii) By affinity: If one is the husband or wife of the lineal ascendants or descendants of the other. For example, father-in-law and daughter-in-law, mother-in-law and son-in-law, step mother and step son or step father and step daughter are thus within the degrees of prohibited relationship.

(iii) Wives of certain brother relations if one was the wife of:

1.  The brother, or

2.  The father’s brother, or

3.  The mother’s brother, or

4. The father’s father’s brother, or

5.  The mother’s father’s brother, or

6.  The father’s mother’s brother, or

7. The mother’s mother’s brother.

(iv) Certain close relations if both are:

1. Brother and sister, or

2. Niece and uncle (paternal or maternal), or

3.  Nephew and aunt (paternal or maternal), or

4.  Children of a brother and a sister, or

5.  Children of two brothers, or

6.  Children of two sisters.

According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is void. It is also punishable under section 18(b) of the Act.

(i) ‘A’ marries his adopted sister. This is not a valid marriage, as it falls within the degrees of Prohibited relationship. (ii) ‘A’ marries with the wife of Pre-deceased brother. It is not a valid marriage as it falls within the degree of Prohibited relationship. (iii) ‘A’ marries his stepmother’s sister. It is not a valid marriage; ‘A’ is related to his step-mother by half blood relationship.

Punishment :-According to Sec.18(b) A marriage solemnized between the parties within the degrees of prohibited relationship is null and void and the parties of such marriage are liable to be punished with simple imprisonment for a period of one month of fine or Rs. 10000/- or with both.

5.Sapinda Relationship (Sec 5 Clause (5))

According to the Dharmashastra the Sapinda relationship is very important in the matter of marriage. According to Mitakshara Law of Marriage ‘Pinda’ means body and therefore those who are related by body or blood or consanguinity are sapindas among themselves. The Hindu Marriage Act has adopted Mitakshara definition but has limited the extent of Sapinda relationship to 5 degrees in line of ascent through the father and 3 degrees in the line of ascent through the mother.
According to Section 3(f)(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapindas relationship, or if they have a common lineal ascendant to each of them.
Whereas Section 3(f)(i) states that “sapinda relationship” 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.

Rules for determining sapinda relations:

1. The relationship extends as far as the third generation in the line of ascent through the mother in case of both the parties.
2. The relationship extends as far as the fifth generation in the line of ascent through the father in case of both the parties.
3. Sapinda relationship may submit in case of both the parties through the father or in case of both through the mother; or it may subsist in case of one of them through the father and on case of the other through the mother.
4. The line is traced upwards in case of both the parties counting each of them as the first generation; the generations in the line of ascent whether three or five are to be counted inclusive of the persons concerned and the common ancestor or ancestress.

Sapinda relationship includes relationship by half or uterine blood as well as by full blood and by adoption. It also includes both, legitimate and illegitimate blood relationship.

Punishment: -A marriage in contravention of this clause is void. Under Sec 18(b)A person contravening this provision is liable to be punished with simple imprisonment which may be extended to Rs. 1000/- or with both.