The validity of Hindu Marriage and its Essentials.
October 3, 2019
Before getting into what is a valid marriage and what are its constituents, let us first see what a marriage actually is. Marriage, also known as matrimony or wedlock, is a culturally recognized union between two people, called spouses that establishes rights and obligations between them, as well as between them and their children, and between them and their in-laws. The definition of marriage differs around the globe, not only between different cultures and between different religions but also throughout the history of any given culture and religion. Over time, it has expanded and also constricted who and what is encompassed. Typically, it is an institution in which interpersonal relationships are acknowledged or sanctioned. When defined broadly, marriage is considered a cultural universal institution. Article 16 of the Universal Declaration of Human Rights declare that “men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to form a family. Both the spouses are entitled to equal rights and obligations as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses.”
According to Hinduism, marriage is a sacred
relationship. In some Hindu systems of marriage, there is no role for the
state as marriage is considered to be a private affair within the social
realm. Within this customary framework reference, marriage is indubitably
the most important transitional point in a Hindu person’s life and the most
important of all the Hindu ‘Sanskaras’.
marriage is a culturally recognized union
between two people, called spouses that establishes rights and obligations
between them, as well as between them and their children, and between them and
their in-laws. Legally speaking, a marriage can be defined as a contract made in concurrence with the law,
where a free man and a free woman symbiotically engage to live with each other
during their joint lives, in the union which ought to exist between husband and
wife. The terms freeman and freewoman in the definition above are meant, not
only that they are free and not slaves, but also that they are clear of all
bars to a lawful marriage.
In India, Hindu Marriage Institutions fall within the ambit of the Hindu Marriage Act, 1955. The Hindu Marriage Act is an Act of the Parliament of India enacted in 1955. The main purpose of the act was to amend and codify the law relating to marriage among Hindus and others. Besides amending and codifying Shastrik Law, it introduced separation and divorce, which did not exist in Shastrik Law. This enactment brought uniformity of law for all sections of Hindus. In India, there are religion-specific civil codes that separately govern adherents of certain other religions.
Section 2 of the Hindu Marriage Act, 1955, talks specifically
of the application of the act. On whom will this act be applicable?
Section 2 reads as –
(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
to any person who is a Buddhist, Jain or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed
(d) any person who is a convert or re-convert to the Hindus, Buddhist, Jain or Sikh religion.
(2) Notwithstanding anything contained in
sub-section (1), nothing contained in this Act shall apply to the members of
any Scheduled Tribe within the meaning of clause (25) of Article 366 of the
Constitution unless the Central Government, by notification in the Official
Gazette, otherwise directs.
(3) The expression “Hindus” in any portion of this
Act shall be construed as if it included a person who, though not a Hindu by
religion is, nevertheless, a person whom this Act applies by virtue of the
provisions contained in this section.
What marriage can be deemed to be a valid one?
is a valid marriage? What does it take to consider any marriage to be a valid
marriage? Valid marriages have been talked of in Section 5 of the Hindu
Marriage Act, 1955.
“Section 5. A marriage
may be solemnized between any two Hindus, if the following conditions are
neither party has a spouse living at the time of the marriage
at the time of the marriage, neither party-
is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
though capable of giving 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;
the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage;
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;
the parties are not sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two.”
Essentials of a Valid Marriage
The parties to the marriage 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. The
essential conditions of valid Marriage are given and discussed below.
1. Condition of Monogamy
This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither party has a spouse living” suggests that the spouse of any of the parties to the marriage 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, the fact which must be noted is that the first marriage of a person should be a legally valid marriage. In spite of one’s valid marriage, if the party to marriage remarries in violation of Section 5(i), the second marriage will be deemed 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.
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. In the
case of a bigamous marriage, the “second wife” does not get the status of wife.
Sub-clause (a) says that at the time of marriage neither party should be incapable of giving a valid consent to the marriage due to unsoundness of mind.
Subclause (b) speaks of Mental disorder: According to sub-clause (b) at the time of marriage, neither party to the 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 a child. Subclause (c) – Recurrent attacks of insanity: If a person has been subjected to recurrent attacks of insanity he too is not qualified for marriage under Hindu Marriage Act. He cannot marry even during a lucid period.
Post marriage mental illness: If a party to the marriage is not suffering from any mental defect described under section 5(ii) but falls ill mentally after the marriage, there is no violation of this condition.
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. Child marriage has been prohibited under the Hindu Marriage Act. However, violation of this condition does not make the marriage void or voidable. It means that marriage will be valid whilst attracting penalties.
5. Prohibited Relations
The parties to a 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:
By lineal ascent: If one is a lineal ascendant of the other. This covers the Sapinda relationship which extends up to 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.
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, stepmother and stepson or step-father and stepdaughter are thus within the degrees of prohibited relationship.
According to Section 11 of the Hindu Marriage Act, a marriage in contravention of this condition is void. It is also punishable under section 18(b) of the Act.
Validating a Marriage
make a valid marriage, the parties must be:
Able to contract
Must be willing to contract
valid marriage is not seen as valid if the persons involved are not legally
able to enter a contract. This includes:
Any person who has no legal capacity due to lack of mental capacity and therefore cannot enter into a contract. This includes persons with an unsound mind.
Mental capacity also applies to infants, minors including males under the age of fourteen, and females under the age of twelve. If a minor over those ages marry, they must have the consent of their parents or guardians.
There is no will when the person is mistaken in the party whom he intended to marry including the following examples:
If Pranav is intending to marry Manjulika, through error or mistake of person, in fact, marries Alisha.
An error in the fortune, as if a man marries a woman whom he believes to be rich, and he finds her to be poor.
In the quality, as if he marries a woman whom he took to be chaste, and whom he finds of an opposite character.
faults do not invalidate the marriage, because in these cases the error is only
of some quality or accident, and not in the person. When the marriage is
obtained by force or fraud, it is clear that there is no consent; it is, therefore,
null and void, and may be treated as null by the court in which its validity
may incidentally be called in question.
Tarlochan Singh v. Jit Kaur
Tarlochan Singh and Jit Kaur were married on July 18, 1982, and it was only for a short period that they lived together. It is 10 days as per the husband while according to the wife it was after four months that she left.
It was the case of the husband Tarlochan Singh that his wife was insane both before and after the marriage and this fact was deliberately concealed from him. During the ten days that Jit Kaur lived with him, he stated that she was violent, tore her clothes, attempted to kill herself and injure others. As he could not control her, he sent for her parents and brothers who then came and took her away. A plea was also raised that she had been admitted in the Mental Hospital, Amritsar in 1980 where she was stated to have been treated for insanity.
As regards her admission in the Mental Hospital, the reply of Jit Kaur, as put forth in the return was that she had “once had a minor attack”, but was cured after treatment. That husband’s version of her insanity and abnormal behaviour was described as false and concocted. On her part, Jit Kaur levelled the charge of demand of dowry against Tarlochan Singh by pleading that she had been harassed and tortured and was later turned out of the house in order to pressurise her to bring more dowry.
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.
Mudgal v. Union of India
In the Sarla Mudgal v.
Union of India, there were two main petitioners. The first was Kalyani, a NGO
that works with needy and distressed women, which is headed by Sarla Mudgal.
The next petitioner was Meena Mathur, married to Jitender Mathur, in 1988,
Meena finds that Jitender converted to Islam and solemnized second marriage
with Sunita Narula, also known as Fathima. Meena Mathur complains that her
husband converted to Islam only for the purposes of getting married again and
circumvented the provisions of Section 494 of IPC.
In yet another writ
petition, Geeta Rani, married to Pradeep Kumar alleged physical and mental
violence by her husband. She later found out that her husband, Pradeep, eloped
and married another woman after converting to Islam, in 1991. Sushmita Ghosh,
petitioner in another civil writ petition
married G. C. Ghosh according to Hindu rituals in 1984. The husband told
her that she wanted a divorce and the petitioner argued that she was the
legally wedded wife. The husband embraced Islam and wanted to get married to
Vinita Gupta. The petitioner has prayed to not let her husband to enter a
marriage with Vinita Gupta.
In this case, Section
494 of IPC, article 14, 15, and 20 were discussed in details. The court
discussed in detail these two issues:
Whether a Hindu husband married under Hindu law is allowed to
embrace Islam and then second another?
Whether the husband can be charged under 494 of IPC?
The Court held that the first marriage would have to be dissolved under the Hindu Marriage Act, 1955. The man’s first marriage would, therefore, still be valid and under Hindu law, his second marriage, solemnized after his conversion, would be illegal under Section 494 of the Indian Penal Code, 1860.
Hindu marriage joins two individuals for life, so
that they can pursue dharma together. It is a merger of two individuals as husband and wife,
and is recognized by law. In Hinduism, marriage is followed by classical
rituals for consummation. In fact, marriage is not considered complete or valid until consummation. For a marriage to be deemed as a
valid marriage, the essentials of marriage need to be duly met as mentioned in
the Sections 2 and 5 of the Hindu Marriage Act, 1955.