Essentials of Hindu Marriage

HINDU MARRIAGE Hindus have divided human life into four ashrams or stages first is Bramhacharya (studentship), the second the Grihasta Ashrama (life of householder), the third the Vanaprastha Ashrama (life of a recluse) and the last is Sanyasa Ashrama (the life of renunciation) Marriage between Hindus is governed by Hindu Marriage Act, 1955 (HMA). For Hindus, marriage is a Sanskar or a Sacrament as opposed to contract. Every Hindu is enjoined to marry, to enter the Grihastha-Ashrama (i.e. life of a householder)

Essential conditions of a valid Hindu marriage Caste System has been abolished in India. Inter sub-caste marriages were validated under the Hindu Marriage (Removal of Disabilities) Act 1946. The Hindu Marriage Act 1955 refers to “any two Hindus, without requiring them to be of the same caste or sub-caste. Thus, in order to get married to someone under Hindu law today, both parties do not have to belong to the same caste but have to necessarily profess to the Hindu Religion. As per Section 5 of the Hindu Marriage Act, 1955 1. Section 5 (1) Must not have a spouse alive. Essential ceremonies are a must for committing the offence of second marriage. Mere admission by the parties is not enough. Proof of essential ceremonies is required. Monogamy means that one is permitted to have only one wife or one husband at a time. Bigamy is the reverse of monogamy. Section 5(i) of the Hindu Marriage Act prohibits bigamy. Section 11 makes a bigamous marriage void and Section 17 makes it a penal offence for both 1-lindu males and females under Sections 494 and 495, I.P.C. The offence of bigamy is committed by a Hindu marrying again during the life time of his or her spouse (wife or husband, as the case may be), provided that the first marriage is not null and void. If the subsisting marriage is voidable, then also offence of bigamy is committed. 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. But where a husband had married a woman whose marriage was in subsistence, his subsequent marriage, in such circumstances, would not be bigamous, his first marriage being void.

The solemnization of marriage is proved by showing that the marriage was performed with the proper and essential rites and ceremonies of marriage prescribed under the law or custom applicable to parties. A prosecution for bigamy will fail if what is established is that some sort of ceremonies (not the essential ceremonies as prescribed by law or custom) were performed with the avowed purpose that the parties were to be taken as married, and it is immaterial even if it is established that the parties intended seriously to marry and thought that; the ceremonies performed by them would confer marital status on them. It is now established that if the second marriage of the accused is declared void before the prosecution is commenced, no prosecution for bigamy can be made. The mere intention of parties, however serious, will not make them husband and wife and the accused will escape prosecution even if he deliberately performed defective ceremonies. So long as the solemnization of a marriage depends upon the performance of a ceremony, the law cannot be otherwise. Two persons cannot be husband and wife by seriously intending to live and living as husband and wife, if they do not perform the necessary ceremonies. Similarly, persons who perform bigamous marriage cannot be guilty of bigamy if they omit, deliberately or inadvertently, to perform the essential ceremonies of marriage. The solution lies in prescribing one ceremony for all Hindu marriages, and by providing for registration of marriages. So long as we recognize all sorts of ceremonies, such things are bound to happen; dupes may take advantages and innocent persons may become their victims. In the case of a bigamous marriage, the second wife has no status of wife. But in case she files a petition for nullity, she can claim both interim and permanent maintenance. If a husband (or wife) is about to take a second wife (or husband), the first wife (or husband) can ask for an injunction from the court. 2. Section 5 (2) neither party is a. incapable of giving consent due to unsoundness of mind. b. though capable of giving consent, is unfit for marriage and procreation of children due to mental disorder. Alka vs Abhinash - MP HC held that "and" must be read as "or". c. Suffers from recurrent attacks of insanity. - "Incurable" is not a requirement. Only recurrent attacks, irrespective of whether curable or incurable, provided enough ground. These three clauses of Section 5(ii) are independent of each other. If a case is covered under any of these clauses, the marriage can be annulled. Under clause (a) every kind of µunsoundness of mind´ is not covered. The unsoundness of mind should be such which incapacitates a person from giving a valid consent to marriage. It need not be persistent or continuous ³unsoundness of mind´. It may exist just before the marriage. An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to

rebut the validity of a 1arriage which has in fact taken place. The onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. ‘At the time of marriage’. The words ‘at the time of marriage’ in the clause are important. It follows from this that where a person subsequent to the date of marriage becomes an idiot or lunatic, the provisions of this clause are not attracted. Subsequent lunacy will not affect the marriage nor will the subsequent recovery serve it. The Hindu Marriage Act still does not say that a valid consent is necessary for marriage. That seems to be the position even now. Thus, unsoundness of mind which incapacitates a person from giving a valid consent to marriage will render the marriage voidable, but non-consent will not render the marriage void or voidable. 3. Boy is over 21 and girl is over 18. The bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage; Rabindra vs Sita - Marriage in contravention of this clause is, nevertheless, valid. But under present law, Section 3(a) of the Prohibition of Child Marriage Act, 2006 makes this marriage voidable. And In certain circumstances it may be declared as Void. (See Sections 12, 13 & 14 of the Prohibition of Child Marriage Act, 2006) 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; (Section 3 (g) of HMA goes on to clarify the conditions under which two persons are said to be within the "degrees of prohibited relationship). The following will be within the degrees of prohibited relationship of a male: 1) 2) 3) 4) 5) 6)

A female ascendant in the line, Wife of an ascendant in the line, Wife of a descendant in the line, Wife of the brother, Wife of the father’s brother, Wife of the mother’s brother,

7) 8) 9) 10) 11) 12) 13) 14) 15) 16) 17)

Wife of the grandfather’s brother, Wife of the grandmother’s brother, Sister, Brother’s daughter, Sister’s daughter, Father’s sister, Mother’s sister, Father’s sister’s daughter, Father’s brother’s daughter, Mother’s sister’s daughter, Mother’s brother’s daughter.

The following will be within the prohibited degrees of a female18) 19) 20) 21) 22) 23) 24) 25) 26) 27) 28) 29)

Her lineal ascendant like father, father’s father, The husband of a lineal ascendant, The husband of a lineal descendant, Brother, Father’s brother, Mother’s brother, Brother’s son, Sister’s son, Father’s brother’s son, Father’s sister’s son, Mother’s brother’s son, Mothers Sisters son

5. The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. (See Section 3 (f) of HMA) Theories of Sapinda Relationship: a) Oblation theory (By Dayabhag School), and b) Particles of the same body theory (By Mitakshara School). Before Vijnaneshwara, the sapinda relationship was linked with the oblations that one offered to his departed ancestors. The Hindus believe in ancestor worship and offer pinda-dan to their departed ancestors. Every year in the shradha fortnight, offerings are made to departed ancestors. These offerings are mainly in the form of pinda. The pinda literally means a ball, the pinda is usually made from rice. The rule is that oneoffers one full pinda each to his three paternal ancestors and one full pinda each to his two maternal ancestors. One also offers one

divided pinda (lep) each to his three next paternal ancestors and one divided pinda each to his two next maternal ancestors. Thus, he is connected by pinda dan to the six ancestors on the paternal side and the four ancestors on the maternal sideand is sapinda to them. When two persons offer pindas to the same ancestor, they are also sapindas to each other. The other theory, the particles-of-the-same-body theory, was propounded by Vijnaneshwara. He changed the meaning of pinda from ball to particles-of-the-same-body. According to him, the sapinda relationship arises between two persons on account of their being connected by particles of one body. The great jurist said, one ought to know that whenever the word sapinda is used, there exist between the persons to whom it is applied a connection with one body, either immediately or by descent. This is something like saying that all those who have the same blood are related to each other. But, obviously such a definition of sapinda is too wide as such relationship can exist in eternal circles of birth. It may exist upto 10, 20 or 100 or more generations, so long as one can trace his descent through a male or female to a common ancestor or ancestress. Realizing this, Vijnaneshwara proceeded to limit it by saying that it existed upto seventh degree on the father’s side, and upto fifth degree on the mother’s side. He fixed this limit on the basis of traditional meaning of sapinda relationship, otherwise itdid not fit rationally into his definition. But one merit of Vijnaneshwara’s change of meaning of sapinda is that it explained many prohibited relationships in marriage which could not be explained on the basis of the oblation theory. Consider Section 3(f) of the HM Act, which defines sapinda relationship as extending 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‘ and holds that two persons are said to 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. Punishment Section 17 says that section 494 (bigamy without concealment - 7yr + fine) and 495 (bigamy with concealment - 10 Yrs + fine) of IPC will apply for bigamy.

Section 18(a): Rigorous Imprisonment which may extend to 2 years or fine upto one lakh as amended in the year 2007 (by Prohibition of Child Marriage Act, 2006) (under old law 15 days + 1000/-) for contravention of Section 5(iii) Section 18(b): One month (30 days) or fine upto 1000/- or both for contravention of Section 5(iv) and Section 5(v)

It is suggested to go through class notes also.