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HINDU MARRIAGE AND ITS ESSENTIAL ELEMENTS FOR VALIDITY

Updated: Feb 20, 2022

Written by: Rajeev Sam S.


Introduction


A marriage is considered as holy sacrament where two-person, bride and bridegroom promise to have a harmonious life-long commitment, trust, and intimacy. It provides an opportunity to grow in selflessness and to serve the spouse and children. The Hindu Marriage Act, 1955 extends to whole of India and to the Hindu-Domiciled in the territory to which it extends outside the territory, except Jammu and Kashmir.


The essential elements of a valid Hindu marriage are under Section 5 and the additional conditions are in Section.7 which are ceremonies, Section 8 about registrations of marriages under the Hindu Marriage Act, and Sec. 9 which deals with free consent under the Indian Contract Act. Conditions under Section.5 are of 4 major types, which are Monogamy, Insanity, Age, Prohibited Degrees, and Sapinda relationships. In the absence or issue with any one of the factors in those five conditions, the marriage is considered as void under S.11 and voidable under S.12 of HMA[1]


Sections and Case Laws


Monogamy at the time of marriage i.e the husband or wife should not have a living spouse in a subsisting marriage. S.5 (I) prohibits bigamy and polygamy. Under the Criminal Prosecution Code, Sec. 125 the wife cannot claim maintenance. The Sanity of the spouse at the time of marriage should be of sound mind so that the other spouse can give valid consent to get married and register. This will not apply in a live-in relationship. It can be voidable at the option of the aggrieved party under Sec.12 of HMA. A similar issue was held in Madhya Pradesh High court, Alka Sharma v. Abhinesh Chandra Sharma[2]. The wife was cold and of a nervous temperament and she was unable to look after family chores and kitchen and was not able to understand the physical act which is the union of male and female. The Madhya Pradesh High Court was held the wife unsound-minded. Under the Hindu Law, a marriage on account of the lack of mental capacity of a spouse shall be made voidable at the instance of the party but under the Special Marriage Act, 1954 it is void.


In Ram Narayan v. Rameshwari Gupta[3], it was held that the onus of proof bout lunacy or idiocy (which turns out to be a mental disorder and recurrent attacks of insanity after the 1976 amendment) lies on him who makes a petition annul the marriage on such grounds. The HMA of 1955 talks about the age of the parties to a marriage in which it can be a valid registration is 15 years and 18 years for bride and bridegroom respectively and if the bride is getting married before 15 years, she should have the consent of her guardian considering her parents' absence. Later on, the Child Marriage Restraint Amendment Act, 1978 revised the age of marriage of parties which is 18 years for bride and 21 years for the bridegroom. In contraventions of this clause, the marriage is still valid then punishments could be described under S.18A with rigorous imprisonment for 2 years or a fine imposed of Rs.1 Lakh.


The prohibition of Child Marriage Act, 2006[4] repealed act of predecessor Child restraint Act, 1929, Child Marriage Restraint Act, 2006 gives the option of Puberty to parties under S.3 that will have the overriding effect of The Hindu Marriage Act, 1955. The marriage after imprisonment or enacting a deceitful manner is considered void. Some of the case laws regarding non-disclosure of age and factum if having major children at the same time of marriage amounts to fraudulent act and suppression of materialistic facts having bearing on marriage. In the case of Sunder Lal Soni v. Smt. Namita Jain[5], the court held that the marriage was found on fraud from very inception is a nullity considering the facts.


In the case of Babui Panmato v. Ram Agya Singh[6], it was held that the consent was vitiated as fraud. The misrepresentation as to the age of the bridegroom made to the mother who acted as an agent and the daughter consented for marriage believing the statement to be true and reasonable where it is very well stated in Section 12 (2) of The Hindu Marriage Act, 1955. In Panchireddi Appala Suramma Alias... vs Gadela Ganapatlu[7], the Andhra Pradesh high court held that a child marriage in contravention to S.5 (iii) of the Hindu Marriage Act is void, and contended that his first marriage was void according to provisions of Restraint of Child Marriage Act, 1929.

Theories of Sapinda Relationship


There are two main theories relating to sapinda relationship, Jimutavahana’s and Vignaneshwara’s Theory. The Jimutavahana theory is the Pinda offering to departed ancestors is a customary practice of Hindu. Pindadan extends to seven generations that is self, three ascendants who are Father, Grandfather, and Great Grandfather. The three descendants, Son, Grandson, and Great Grandson who offers Pindas to the same ancestor, they are called “Sapindas”.


Vignaneshwara’s Theory


The next theory is on Vignaneshwara’s theory which is defined as the Pinda is a particle of the same body and father’s particle of the body are present in son’s body and hence the father and the son are the sapindas. The degree of sapinda relationship is seven through the father and five through the mother, but now it is reduced to 5 and 3 respectively. Any marriage solemnized in contraventions to the above rule under Section 5 (V) of the Act is considered void according to Section 11 of The Hindu Marriage Act, 1955. Any person, who procures such marriage shall be punishable with simple imprisonment, which may extend up to a year based on the aggression of the Act, and shall liable to fine, which may extend to 1000 rupees or with both.


The Hindu- Unwritten Law


Additional conditions that were laid down to provide a validity of a Hindu Marriage are Marriage Ceremonies, Registration of Marriage, Free consent of Parties to the Marriage. Marriage ceremonies are of three types which are Shastric, Customary and Statutory. In all these systems, no marriage can be validly performed without certain formalities and rituals that should be made to make a valid Hindu Marriage. The ceremonies bring or confer sanctity and solemnity to the institution of marriage. There are many ceremonies and Rituals that are prescribed or rather say recommended by our ancestors namely Kanyadaan, Saptapadi, Ganpati puja, Nandi Devta Puja, Graha Yagna, Snathaka, Kasi Yatra etc.


The law is thus unsure on that of the rites and ceremony square measure essential and obligatory, or just expression it as Associate in nursing “Unwritten Law” that varies for each Hindu communities as an example South Indian Hindu wedding and North Indian wedding has some variations and similarities. A Hindu wedding is also solemnized in accordance with the customary rites and ceremonies of either party to that marriage, wherever such rites and ceremonies embrace “Saptapadi”, the wedding becomes complete and binding, once the seventh step is taken. A Kanyadaan could be a gift of the bride given by her father to the bridegroom. whereas giving her away, the bride’s father says, “My unwedded girl, who is shining in her decorations and who is fit be devoted married woman, to thee of excellent character and knowledge I offer for the attainment of Dharma, Kartha and Kama". It (Kanyadaan) puts Associate in Nursing finish to the dominion of the genitive family over the lady.

Viva Homa or Homa (often called as “Vivah”) is that the most vital ceremony for the validity of a Hindu wedding is Homa or Homa, that consists oblations to lighting/burning of Holy fireplace, figuration it as divine witnesses and sanctifier of the oral sanskar. On the west of the fireplace is placed a millstone and on the north-east is placed a water-pot. The bridegroom offers oblations to the holy fireplace within which the bride participates by grasping the hand of the bridegroom.


Registration of Marriages


The Registration of wedding, which within Section8 of the Act empowers the government to create rules for the registration of a wedding between two Hindus. Registration permits the parties to prove the wedding within the event of disputes, as per Section.14 Indian jurisprudence, the Parties to the wedding should not solely be competent to offer to provide administered to allow, to convey, to grant, to relinquish, consent rather ought to give free consent to marry. Consent is claimed to be free, once it's not caused by flaws in consent viz., Coercion, Undue Influence or Fraud or falsity or Mistake. The presumption of wedding beneath S.114 of The Indian proof Act, there would be a presumption in favour of marriage if the partners lived along for long spell as husband and wife, however, it might be rebuttable and serious burden lies on the one that seeks to deprive the link of legal origin to prove that no wedding passed off.


Some of the Procedure for Solemnizing wedding beneath this Act square measure as follows:


1. Notice (Section 5)- The parties to the wedding shall provide a notice in writing to the wedding Officer of the District and a minimum of one in all the parties has resided for an amount not but thirty days right away preceding the date of such notice.

2. Publication of the Notice (Section 6): A original copy of the notice shall be filed within the “Marriage Notice Book”.

3. Objection to wedding (under Sections 7& 8): once the notice is revealed, somebody will raise Associate in Nursing objection to the projected wedding. Then, the wedding Officer should build necessary enquiry and might pass acceptable orders. His powers square measure just like the powers of a civil court. The parties will file Associate in Nursing attractiveness before the District Court against the order at intervals thirty days.

4. Declaration of wedding (Section 11): the wedding declaration shall be signed by the parties to the wedding and 3 witnesses and therefore the same is countersigned by the wedding Officer

5. Place and form (Section12): the wedding is also solemnized at the workplace of the wedding Officer or at intervals the affordable distance from the workplace. If the wedding is to require a place outside the workplace, the parties should be able to pay extra fees. The parties shall say within the presence of the wedding Officer and 3 witnesses.

6. Certification of wedding (under Section. 13): once the wedding is solemnized, the wedding Officer enters the wedding within the ‘Marriage Registration and Certification Book’ and provides a wedding certificate. The certificate is to be signed by the parties and therefore the witnesses.


Conclusion


In conclusion, the law of succession applicable to the parties who got married, beneath the Act is the Indian Succession Act, 1925. As a conclusive statement, albeit their square measure many unwritten and statutory personal laws on Hindu and Hindu Marriages, one should be a law-abiding national and don't cross the bounds or do any reasonably unethical practices that aren't accepted by Indian Law’s nor the society.

Bibliography:

[1]The Hindu Marriage Act, 1955 [2]AIR 1991 MP 205; also available at: https://indiankanoon.org/doc/1271198/ [3]1988 AIR 2260; also available at: https://indiankanoon.org/doc/1329391/ [4]THE PROHIBITION OF CHILD MARRIAGE ACT, 2006; also available at: https://legislative.gov.in/sites/default/files/A2007-06.pdf (last modified 7 June 2021) [5]AIR 2006 MP 51; also available at: https://indiankanoon.org/doc/1449055/ [6]AIR 1968 Pat 190; also available at: https://indiankanoon.org/doc/573252/ [7]AIR 1975 AP 193; also available at: https://indiankanoon.org/doc/291607/

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