Conditions for valid Hindu Marriage
Q.5. What are the essential conditions of a valid marriage under the Hindu Marriage Act, 1955.
Or
Discuss the condition of Hindu marriage as
laid down under Section 5 of the Hindu Marriage Act, 1955.
Or
Examine the conditions of a valid Hindu
Marriage as provided under Section 5 of the Hindu Marriage Act, 1955.
Ans. Conditions of Hindu Marriage.-- The essential conditions of a valid marriage are provided under Section 5.
1. Both persons must be Hindu- By incorporating Section 5 and by imposing certain conditions, the Hindu Marriage Act, 1955 put an end to Sastric Law of marriage and heralded the beginning of a secular law of marriage. To be a valid marriage both the parties to the marriage must be Hindus. If one of them is a non-Hindu, the marriage will not be a subject matter of this Act. In Vijay Kumari v. Devabalan [(2004) 1HLR 7 (Ker B)] , it was held by the Kerala High Court that the marriage was not a valid marriage under the Hindu Marriage Act, 1955 as a Hindu married a Christian woman. The Hindu Marriage Act, 1955 provides the following conditions as pre-requisite for a valid Hindu Marriage.
2. Monogamy.-Section 5 (i) of the Hindu Marriage Act, 1955 provides that neither party to the marriage should have a spouse living. Any person marrying in violation of this condition will be punished in two ways i.e. his marriage will be void and the marriage is punishable under Sections 494 and 495 of the Indian Penal Code for the offence of bigamy.
A woman whose husband is alive and her marriage is valid, cannot marry another husband. But if there is a dissolution of the previous marriage either by a decree of nullity under Section 12, or by a decree of divorce under Section 13 either party to such a marriage may marry again and the prohibition of Section 5 (i) will have no operation. Section 5 (i) of this Act provides the rule of Monogamy and prohibits Polygamy and Polyandry.
The expression 'neither party has a spouse living' depicts that the spouse must not be alive at the time of marriage and that the word spouse means a spouse in the eye of the law. If the spouse is alive at the time of marriage that could bar the remarriage of a person.
If at the time of the performance of the marriage rites or ceremonies, one or other of the parties had a spouse living and the earlier marriage had not already been set aside by the court, the later marriage is no marriage at all as the marriage is not dissolved with the filing of a petition for divorce and it subsists until a final decree for divorce is passed. Being in contravention of the condition laid down in the clause it is void ab initio.
In Sambireddy v. Jayamma [1972 AP 156 (FB)], it was held that Section 5(i) read with Section 17 of the Hindu Marriage Act, 1955 rendering a bigamous marriage void is not ultra vires the constitution on the ground that it contravenes Articles 14, 15 or 25(1) of Constitution of India.
The expression "at the time of the marriage" in this clause is significant In order to find out whether the second marriage is valid or not, it has to be ascertained whether another spouse was living at the time of the second marriage. Where the first marriage of a person is set aside by a court subsequent to the date of the second marriage of that person it does not cure the effect of contravention of clause (i) and the second marriage must be treated as void. The question as to validity of void marriage can be gone into the instance of the third aggrieved party even after the death of one of the spouses to the marriage.
In Varadrajan v. State [AIR 1965 SC 50], it was held that a part to the bigamous marriage could be punished only upon the proof of the prior marriage having been solemnized according to religious ceremonies and customs. In Shanti Deo Verma v. Kanchan Prasad [AIR 1991 SC 816], the court held that by the fact that parties were living like husband and wife with oral evidence to that effect, it cannot be proved that they were validly married and religious ceremonies were duly performed. A Hind male cannot change his religion and accept Islam in order to marry more than one wife. In Sarala Mudgal v. Union of India [1995 3 SCC 635] it was observed that Muslim Law cannot be misused by a Hindu mal and Hindu marriage does not automatically dissolve by apostacy. The husband violates the provision of Hindu Marriage Act and he is covered by Section 494 of Indian Penal Code.
3. Should not be a person of unsound mind.-Section 5 (ii) of the Hindu Marriage Act, 1955 provides that at the time of marriage neither party
(a) is incapable of giving a valid consent to it in consequences 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 subjected to recurrent attacks of insanity.
In Ram Narain Gupta v. Rameshwari Gupta [(1988) 4 S 247], i was held that the onus of proof about lunacy or idiocy lies on him who makes a petition to annul the marriage. The presumption is in favour of validity of marriage and in favour of mental capacity of the spouse entering into matrimony In R. Lakshmi Narayan v. Santhi [(2001) 4 SCC 688] it was held that a marriage which takes in contravention of this condition is not per se void but voidable under Section 12(1)(b) of the Hindu Marriage Act. 1955.
In S. Laxmi Narayan v. Shanti, [AIR 2001 SC 2110] the Supreme Court observed to brand a wife as unfit for marriage and procreation of children on account of a mental disorder it needs to be established that the ailment suffered by is of such a kind or such an extent that it is impossible for her to lead a married life.
To draw an inference merely from the fact that the spouses had no co-habitation for a short period of about a month, is neither reasonable nor permissible. To brand the wife as unfit for marriage and procreation of children on account of the mental disorder, it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a normal married life; R. Lakshmi Narayan v Santhi, AIR 2001 SC 2110.
According to Section 5 (ii) of this Act the parties should not be of unsound mind at the time of marriage. A person who was before marriage not an idiot cannot be as such at the time of marriage. If a person becomes a lunatic subsequent to the date of marriage, the provisions of this clause are not attracted. The marriage in violation of Section 5 (ii) is not a void marriage but a voidable marriage under Section 12, which can be annulled by a decree of nullity on the ground that the other party was an idiot or lunatic at the time of marriage.
4. Age of the parties.-The Hindu Marriage Act, 1955 provides that the bridegroom must have completed the age of twenty-one years and the bride the age of eighteen years at the time of marriage. The marriage solemnized in contravention of age condition is neither void nor voidable. But the person who procures such a marriage of himself or herself to be solemnized will be punishable with rigorous imprisonment which may extend to two years or with a fine which may extend to one lac rupees, or with both.
The leading case on the subject of the age of parties is Pendenti Venkata Ramana v. State of Andhra Pradesh [1977AP 43] The facts of the case are: The marriage of A and B was solemnized by their elders in 1959 when they were respectively 13 and 9 years of age. In 1975. the husband-A married another woman treating his previous marriage with B as void. B- the first wife filed a criminal petition against A under Section 494 of IPC for the offence of bigamy. A cited the case 'Saramma v Ganapatulu [AIR 1975 AP 193]' in which the High Court of Andhra Pradesh decided that a child marriage is void, and is in contravention of Section 5(ii) of Hindu Marriage Act, 1955 and contended that his first marriage was void according to the provisions of the Restraint of Child Marriages Act, 1929 and was against the provisions of Section 5 of the Hindu Marriage Act, 1955.
The High Court of Andhra Pradesh overruled the decision of Saramma v. Ganapatulu case and held that the marriage was valid.
In Rabindra Prasad v. Sita Devi [AIR 1986 Part 128], the court held that a child marriage (i.e.. the marriage in contravention of Section 5(iii)) is not void and observed that "the marriage solemnized in violation of Section 5(ii) remains unaffected. It is neither void nor voidable and the appellant, therefore, cannot obtain disengagement on this score.
The Supreme Court also observed in Lila Gupta v. Lashminarayana [1978 SC 1351 at 1358] that a reference to Child Marriage Restraint Act would show that it was enacted to carry forward the reform movement of prohibiting child marriages and while it made a marriage in contravention of the provisions of that Act punishable, it did not render the marriage void. The same reasoning would apply to a marriage contravening Section 5(iii) of the Act.
However, the bride or bridegroom has an option to cancel the marriage after obtaining their majority like in the Muslim marriages where a bride or bridegroom can revoke their child marriage after attaining his/her puberty if he/she does not like it. If he does not revoke the marriage, the tie continues. Section 12 of the Child Marriage Restraint Act also explains the same thing i.c.. the Civil Court can issue an injunction against the performance of the child marriage, after giving due opportunity to the concerned parties.
5. Non-sapinda that the parties to the marriage should not be sapindas of each other. The marriage performed between sapindas is void. The person who procures a marriage of himself in contravention of this provision will be punished under Section 18 (b) of the Act with simple imprisonment which extend to one month, or with a fine which may extend to one thousand rupees, or with both. But if the custom or usage governing each of p permits such a marriage between the two the marriage shall be valid parties will not be punishable under Section 18 (b) of the Act.
6. Degrees of Prohibited Relationship.-Section 5 (iv) of the Hindu Marriage Act provides that the parties must not be related to each within the prohibited degrees unless such marriage is sanctioned by custom or usage governing both the parties.
Two persons are said to be within the degrees of prohibited relationship:
(i) if one is 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 broth co or of grandfather's or grandmother's brother of 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 sister
Here also 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 by blood.
The marriage in contravention of the above clause will be null and void, and any person who procures such a marriage of himself or hers will be punishable under Section 18 (b) of the Act with simple imprisonment which may extend to one month, or with fine which extends to one thousand rupees, or with both. But if the custom or usage governing each of the parties permits such a marriage between the two, the marriage shall be valid, and the parties will not be punishable under Section (b) of the Act.
7. Marriage ceremonies .-A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto Section 7 (2) of the Act provides that where such rites and ceremonies include the Saptapadi, that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire marriage becomes complete and binding when the seventh step is taken.
The Act prescribes ceremonial marriage and does not invalidate a marriage without any ceremony whatsoever. Where the marital rites and ceremonies include Saptapadi, the marriage becomes binding and complete when the seventh step is completed and till then it is revocable.
All that the Act lays down in Section 7 is that it has to be solemnized in accordance with the customary rites and ceremonies of any one of the parties to the marriage e.g., where the bridegroom is a Hindu and the bride is a Sikh, the marriage may be solemnized in accordance with ceremonies prevalent in the community of either the groom or the bride.
To what extent this performance should be made was answered by Andhra Pradesh High Court in:
Mutalya v. Subhlaxmi (1960) A.P. Wherein Justice Munikanniah observed that if some kind of ceremony has been performed, it will give rise to a presumption that essential ceremonies of marriage have been performed.
However, Justice Fazal Ali dissented from the view of Justice Munikanniah in the case of Phankani v. State (J&K) HC(1962) wherein he said that mere performance of some ceremonies cannot give rise to a presumption that all essential ceremonies are performed. He exemplifies the same saying that whether a ceremony that boy will crook like a crow and a girl will shout like a hen, is sufficient to treat the couple as married. He said this will be totally absurd as then it will allow marriage to be performed in any way one likes.
Therefore, customary rites and ceremonies implies that one need to follow the ceremonies as such i.e they are to be observed in the same way as they are being provided like if Saptpadi prescribes 7 steps, one need to observe 7 steps only, and you cannot take 6 steps.
The Supreme Court in Bhanu Rao Shankar Lokhande v. State of M.P., /(1965) SC 1564] accepted the view of Justice Fazal Ali and observed that while solemnisation of marriage, one has to observe the rituals and ceremonies exactly in the same way in which they are prescribed and one cannot take the form of it and performed it in any way he likes.
Consequences of non-performance of such
ceremonies:
Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the bride or bridegroom must be performed, otherwise, marriage will not be valid. For instance, if a Jain and a Sikh marries, either Saptpadi or Anand Karaj must be performed otherwise marriage will not be valid.
These consequences (non-validity of marriage) are not expressly given in the Section. Section 7 is a provision for whose violation act is not providing any answer i.e if the marriage is not solemnised as per the requirements of Section 7 what will be its implication.
for which Act does not provide will still be governed by the text of Hindu law or customs or usages which were a part of that law, that was existing before coming of the act.
Hence, violation of Section 7 would be governed by the earlier text of Hindu law that was existing prior to Act of 1955. Now the question is what was given in the old Hindu law to deal with the violation of Section 7. Before the present act, 1955, earlier Hindu law also used to prescribe that certain conditions of marriage have to be fulfilled like that of capacity and other formalities (including ceremonies).
If those formalities of marriage were not done, marriage was treated as no marriage. So violation of Section 7 (as per Section 4) will result in "No marriage".
These consequences which we have ruled out from Section 4, need to be expressly provided in the Act of 1955 by making a specific provision to that effect. The adverse result of not providing this provision can also be seen in the effect of Section 16 which confers a legitimacy on the children of void marriages under Section 11.
Section 11 declares a marriage void if it contravenes three conditions of Section 5. However, children of such void marriage though illegitimate are conferred with the status of legitimacy by virtue of Section 16. Now, since violation of 7 Section is not provided in the act, although marriage is void as per old Hindu law, but such void marriage not being covered under Section 11, what will be the status of children of such marriage is a question which arises for consideration.
Including the consequences of violation of Section 7 expressly in the Act, declaring it void will make the provision of Section 16 applicable, whereby, children of such marriage will be conferred with status of legitimacy.
In Surjit Singh Kaul v. Ganja Singh [AIR 1994 SC 135] , the Supreme Court held that if the marriage is not a valid marriage, it is no marriage in the eyes of law. The bare fact of a man and woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even they may hold themselves out before society as husband and wife the society treat them as husband and wife.
If a man and a woman are living under the same roof and cohabiting for a number of years, the law would raise a presumption that they lived as husband and wife; S.P.S. Balasubramanyam v. Suruttayan, AIR 1992 SC 756.
Family law---Paras Diwan
Family law—S.R. Myneni
https://www.iilsindia.com/study-material/880413_1617519779.docx
https://legislative.gov.in/sites/default/files/A2007-06.pdf
https://www.slideshare.net/RashmiDubey21/hindu-marriage-act1955
https://www.indianemployees.com/acts-rules/details/hindu-marriage-act-1955
http://www.legalservicesindia.com/article/558/Salient-features-of-the-Hindu-Marriage[1]Act,-1955.html.
http://www.legalservicesindia.com/article/558/Salient-features-of-the-Hindu-Marriage[1]Act,-1955. html
https://www.iilsindia.com/study-material/880413_1617519779.docx
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