Hindu Law of Marriage In India
- Marriage is a union with a commitment to pursue Dharma, Artha (Property) and Kama (physical desires) together.
- Is Hindu marriage a sacrament or contract?
A marriage to be sacramental shall comprise of following features
- It is permanent or indissoluble [defeated by insertion of sec 13-B in HMA]
- It is eternal [valid not merely in this life but lives to come] [widow remarriage Act, 1856]
- It is holy union [Performance of religious ceremonies is essential] [it is retained by sec 7 HMA].
Why Hindu Marriage is not completely a contract?
Contract between two minor is void ab-initio but not so in case of Marriage under Hindu marriage Act. Conclusion-It is both a sacrament and a civil contract.Before 1955
- One could marry at any age, as there was no lowest age of marriage.
- Inter-religious and inter-caste marriages were prohibited, but the latter could be sanctioned by custom.
- Marriage was indissoluble; divorce was not permitted unless recognized by custom.
- Death did not dissolve a marriage and therefore a widow could not remarry unless permitted by custom to do so. etc
Salient features of HMA 1955
- It lays down uniform and comprehensive rules of marriage applicable to Hindus.[s.2]
- Marriage between persons belonging to Hindu, Jain or Sikh religion is valid.[s.2,4,5]
- Age Limit-21 for Boy and 18 for Girl.[s.5]
- Widow remarriage –allowed
- Prohibited degree of relationship
- Forms of marriage-a/c to custom of communities.
- Marriage ceremonies-[s.7 kanyadan and saptpadi are essential for validity of marriage.
- Registration of marriage[s.8]
- Restitution of conjugal rights[s.9]
- Judicial separation[s.10]
- Nullity of marriage[s11&12]
- Maintenance of minor children
- The Act now makes no distinction between the marriage of a maiden and the marriage of a widow.etc
Validity of Hindu Marriage
- 5-Marriage may be solemnized between any two Hindus if following conditions are fulfilled.
- (i) Neither party has a spouse living at the time of marriage [Bigamy not allowed] –already married but wife died –allowed –A person marries during the life time of his or her spouse, but his early marriage was null and void—does he /she commit bigamy?
- Sec 11 HMA makes it void & Sec 17 makes it punishable fewer than 494&495 of IPC. For prosecution under above-the first marriage should be perfectly valid & should have been solemnized according to proper ceremonies. If first marriage is void or voidable-a person can’t be prosecuted for bigamy.
Sarla Mudgal v.UOI AIR 1995 SC
- Sc put a check on the practice of Hindus to embrace Islam in order to contract a second marriage. Unless and until first marriage is dissolved by decree under HMA, Second marriage during subsistence of first would be void and punishable.
- Judicial Remedies available with aggrieved—one can initiate cri. Proceeding, can claim divorce & file petition for maintenance allowance. The aggrieved can also seek injunction to restrain spouse from marriage under code of civil procedure. In case of bigamous marriage-second wife has no status of wife but she can start cri. Proceeding if she was not aware of existence of first marriage of erring spouse. She can file declaratory suit under Specific Relief Act.
(ii) Mental Capacity [soundness of mind]-if party is of unsound mind-it is voidable at instance of other party. Mental condition-pre-marriage is applicable. If one becomes person of unsound mind after marriage then? Mere mental weakness, foolishness, excessive sentimentalism etc are not covered. Person is ‘unfit’ if unable to carry out the ordinary duties and obligations of marriage.
- Epilepsy is no more a ground of unsoundness.
(iii) Age of Marriage-
- v. venkatraman v state, AIR 1977 A.P.
- A child marriage is perfectly valid marriage. Child marriage under Special Marriage Act 1954 is void. HMA provides for punishment for such marriage. Rigorous Imprisonment Up to 2 years or fine Up to one lakh or both [amendment 2007-earlier 15days or 1000 or both]sec.18. In case of violation of 5 (iv)or(v)-simple imprisonment Up to 1 month or 1000 or both. Doctrine of factum valet, marriage of minor is valid. A minor can’t enter into a contract but can perform necessary Sanskars.
A fact cannot be altered by hundred texts’ or what ought not to be done becomes valid when done’ [applicable to directory prohibition]
- This doctrine has basis in equity, justice and good conscience. (iv)& (v) Prohibition on account of relationship by blood or affinity. All systems prohibit marriage among near relatives. HMA prohibits on account of Sapinda relationship. Pinda means particles of body and sapinda are those persons who have same particles of ancestral body. It is limited to 5 degrees in line of ascendant through father and 3 degrees in line of mother. Two persons cannot marry if they are related to each other within the degree of prohibited relationship.
- Relationship includes legitimate as well as illegitimate by full or half or uterine blood or by adoption. Marriage in violation of 5(iv) and (v) is void. Modern society does not attach much importance to this relation. Corbett v Corbett 1970 All E R
- Question was whether a marriage of boy with another boy who has undergone a sex change operation and became female is valid—held No Sexual constitution of an individual is fixed at birth and can’t be changed. HMA is silent on the issue.
- Suppose there is no evidence of solemnization of marriage-then Sec 114 of IEA-it will be presumed to be valid by continuous cohabitation between the parties unless contrary is proved.