According to the general definition, Marriage is a state of being united to a person of the opposite sex as husband or a wife in a consensual and contractual relationship recognized by law. When it comes to Hindu Law, marriage is termed as a sacred relationship. However, in Muslim law, marriage is a contractual relationship.
The legal status, condition, or relationship that results from a contract by which one man and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of Husband and wife in law for life, or until the legal termination of the relationship.
Marriage is a legally sanctioned contract between a man and a woman. Entering into a marriage contract changes the legal status of both the parties, giving husband and wife new rights and obligations. Public policy is strongly in favour of marriage based on the belief that it preserves the family unit. Traditionally, marriage has been viewed as vital to the preservation of morals and civilizations.
The traditional principle upon which the institution of marriage is founded is that a husband has the obligation to support a wife and that a wife has the duty to serve. In the past, this has meant that the husband has the duty to provide a safe house, to pay for necessities such as food and clothing and to live in the house. A wife’s obligation has traditionally entailed maintaining a home, living in the home, having sexual relations with her husband, and rearing the couple’s children. Changes in society have modified these marital roles to a considerable degree as married women have joined the workforce in large numbers, and more married men have become involved in child rearing.
MARRIAGES UNDER HINDU LAW
Marriages and sonship constitute some of the unique chapters in the literal legis of ancient Hindu Law. As early as the time of Rig Veda, marriage had assumed the sacred character of a sacrament and sanction of religion had heightened the character and importance of the institution of marriage. The basal thought was that marriage was a prime necessity, for that alone could enable a person to discharge properly his religious and secular obligations. The earliest records show that the rules of inheritance depended on the rules of marriage and it was obligatory on the father to give the daughter in marriage as a gift. The smritis deal with the subject of marriage with meticulous care and make a fascinating study. Apastamba treated certain aspects of the law of marriage. Manu expounded the subject, so also did many other smritikars and commentators. Medhatithi wrote: “A girl should be married after giving her raiment and ornaments and she should also be given a portion (Saudayika).
MARRIAGE, A SACRAMENT
Marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. The importance and imperative character of the institution of marriage needs no comment. In Hindu law, marriage is treated as a samskara or a sacrament. It is the last of the 10 sacraments, enjoined by the Hindu religion for regeneration of men and obligatory in case of every Hindu who does not desire to adopt the life of a sanyasi. In Hindu law, there were no less than eight different forms of marriage and each being different from the other and at the same time, each form of marriage depicts a different stage of social progress. In consequence of the varying rates at which society had advanced in different parts of India, the forms of marriage prevailing among the Hindus and the mixed Hindu races, mostly of non-Aryan origin, were of the most varied description. The Indian life presented almost every possible form of conjugal relation, from the grossest polyandry to the purest and the most rational form of monogamy. Of the eight form of marriage, recognized by the ancient Hindu law, four were approved forms and four unapproved. i The only forms recognized under a law in force before the commencement of this Act was the Brahma, which was one of the approved forms, and Asura, which was one of the unapproved forms. What distinguished the one form the other was that in the Brahma form it was a gift of the pure and simple, whereas, in the other, consideration was received by the father or by other guardians for giving the girl in marriage. The essential ceremonies for both these forms of marriage were the same.
It was desirable that there should be only one form of ceremonial marriage and that the rule of succession should be uniform. A great drawback of the existing law was that a Hindu could take another wife although he had a wife living. This and some other rules relating to the conditions of a valid marriage called for substantial changes in the law of marriage.
HINDU MARRIAGES ACT, 1955.
CONDITIONS OF MARRIAGE
The heading of section 5 of the Hindu Marriage Act, 1955 is “condition of marriage”, and not “conditions of a valid Hindu marriage”. It signifies that all conditions mentioned in this section do not have the same effect on the validity of a marriage. A Full Bench of the Andhra Pradesh High Court has held in Pinninti Venkataraman v. State ii that there are some conditions the violation of which vitiates a marriage rendering it either void or voidable. Other conditions are those the contravention of which is punishable, but the marriage is nonetheless valid by the application of the doctrine of factum valet. In Lila Gupta v. Laxmi Narain iii, the Supreme Court held that all conditions under section 5 of the Act are not mandatory.
CONCEPTION OF A HINDU MARRIAGE UNDER THE ACT:
There was some divergence of opinion on the question whether, under Hindu law, as applied by courts in India, marriage was a sacrament or both, a sacrament or contract. That is was a sacrament was questioned but in some cases, the courts expressed the view that it was not merely a sacrament but also a civil contract. Controversy arose when the court had to determine some legal consequences of marriage and resolve certain difficult questions which arose in divorce cases under the law enacted by some states. Introduction of the principal of a civil contract while it helped to support the conclusion reached in the particular case was, however, apt to give rise to a misconception and greater difficulties in other cases. As already pointed out in the Introduction, in Hindu law the admixture of religion and ethics with legal precepts was naturally congruent. It was not possible, indeed, always to draw any hard line of logical demarcation between matters secular and religious because certain questions such as for instance marriage and adoption had the aspects of both. The demarcation between religious and legal precepts particularly on questions of marriage was rather thin and a number of questions were dealt with by the smritikars as appertaining to achara (rituals) and not to vyavahara (law proper). Marriage under Hindu law was primarily and essentially a sacrament. That was its religious aspect. Its secular aspect was of a gift of the bride to the bridegroom and from its very nature, the elements of consensus which must accompany gift and its acceptance had to be present. Having elements both, religious and secular, it was the source and foundation of the status of the parties; and of their right to associate in religious observances and also of correlative rights and duties in temporal matters.
SOLEMNIZATION OF HINDU MARRIAGE:
The Supreme Court has recently held that a long cohabitation leads to a presumption of marriage. iv Reference is invited to the commentary under s. 7 under the heading. ‘Presumption as to marriage and legitimacy’ where this issue has been discussed.
This section lays down the conditions for a Hindu marriage which must be fulfilled in case of any marriage between two Hindus which can be solemnized in accordance with the requirements of this Act. The word ‘solemnize’ means, in this connection, to celebrate the marriage with proper ceremonies and in due form. Unless the marriage is celebrated or performed with proper ceremonies and due form, it cannot be said to be solemnized. v When a marriage was celebrated several decades ago, oral evidence being the only evidence available would have to be accepted. vi Section 7 rules that a Hindu marriage—that is, one under the present Act—must, after the commencement of the Act, be solemnized in accordance with the customary rites and ceremonies of one of the parties to it and where such rites and ceremonies include the saptapadi (taking seven steps by the bridegroom and the bride jointly before the sacred fire), that ceremony must be observed. ‘Solemnized’ refers to the rites and ceremonies of marriage. Non-performance of such rites and ceremonies of prime necessity would be regarded as the failure to solemnize the marriage and no valid Hindu marriage can result. This is because a marriage not duly solemnized by the performance of essential ceremonies is, under the Act, no marriage at all. vii
A marriage solemnized between parties, one of whom is a Christian and the other a Hindu, cannot be dissolved under the provisions of this Act if it had been solemnized in accordance with Christian rites and ceremonies, and proceedings would not be maintainable even if one of the parties is a Hindu. viii If, however, one of the parties to the marriage, being a non-Hindu, has converted to Hinduism, such a marriage is valid. ix
CONDITION OF MARRIAGEABLE AGE
At the time of marriage, the bride must have completed the age of 18 years and the bridegroom of 21 years. Originally the HMA prescribed the age of 15 years for the bride and of 18 years for the bridegroom. The Child Marriage Restraint (Amendment) Act, 1978 raised it to the present provision. This amendment was inspired by the social welfare. x
SECTION 7 CEREMONIES FOR A HINDU MARRIAGE
A Hindu marriage under the Act must be solemnized in accordance with the customary rites and ceremonies of at least one of the two parties thereto and must fulfil the conditions prescribed for the same by Section 5 of the Act. The word ‘solemnize’ means, in this connection, to celebrate the marriage with proper ceremonies and in due form. Unless the marriage is celebrated or performed with the proper ceremonies and in due form, it cannot be said to be ‘solemnized’. Merely going through certain ceremonies with the intention that the parties are taken to be married, will not make them ceremonies prescribed by law or approved by law or approved by an established custom. xi
When essential ceremonies constituting a Hindu marriage are not proved, the mere insurance of a certificate, under Section 15 of the Special Marriage Act, 1954 cannot validate the marriage if one of the parties is not a Hindu and the marriage has not been solemnized as per the requirements of the Act.
The Act does not, however, prescribe the ceremonies requisite for solemnization the marriage but leaves it to the parties to choose a form of ceremonial marriage which is in accordance with any custom or usage applicable to either party; and where the form adopted includes the saptapadi—that it the taking of seven steps by the bridegroom and the bride jointly before the sacred fire (homan)—the marriage becomes complete when the seventh step is taken. The Supreme Court, taking note of the ceremony of saptapadi has held that when the seven rounds are taken around the sacred, they cannot be short of seven steps. xii This is in accordance with existing law. This rule relating to the essential ceremonies of a Hindu marriage proceeds on the principle that marriage is one of the sanskaras for a Hindu male or female, whether belonging to the twice-born castes or a sudra, must be performed with the necessary religious rites and at the same time, recognizes the position that the customary rites and ceremonies vary in different parts of the country and also among different castes and ceremonies.
It has been held, when neither rites nor ceremonies like saptapadi are proved, such a marriage will not be construed as a valid Hindu marriage. xiii
The essential rites which may, however, be said to be the requirement common in all ceremonial marriages are:
i) invocation before the sacred fire; and
Kanyadaan is an essential ceremony. Its absence, however, may not invalidate a marriage. xiv
It is both just and reasonable, therefore, that the question of the requisite ceremonies must be adjusted in accordance with the customs and usage followed by them or either of them. Members of scheduled castes in Maharashtra converted to Buddhism are Hindus according to the Section 2 and the customary form of marriage adopted by them results in a formed, and if appeared on proof that the ceremony had not been undergone, the marriage would not be valid in law. xv
SECTION 8 REGISTRATION OF HINDU MARRIAGE
Under the Indian law, it is open to two Hindus if they so desire it to contract civil marriage and have it solemnized under the Special Marriage Act, 1954. The provisions, relating to the solemnization and registration of a civil marriage are laid down in that Act. Chapter III of that enactment lays down provisions relating also to the registration of marriage celebrated in other forms. It is open to two Hindus married according to the ceremonial form to have their marriage registered under the Chapter, provided they fulfil the conditions therein laid down. Two Hindus, therefore, whose marriage is solemnized in accordance with the provisions of the present enactment, can get their marriage registered under the chapter. The effect of such registration is stated in section 18 of that enactment.
In Seema v. Ashwani Kumar, xvi the Supreme Court has dwelt at length on the topic of registration of marriages. It referred to the International Convention on the Elimination of All Forms of Discrimination against Women, 1979(CEDAW). It lays down for the compulsory registration of marriages. India is a signatory to the CEDAW but she ratified it with a reservation to the clause of compulsory registration of marriages. The government of India pleaded that registration of marriages is not practicable due to the vastness of the country, variety of customs, religious and level of literacy.
- Banerjee, Law of Marriage and Stridhan, fifth edn, 1923, p 32.
- AIR 1977 AP 43(FB)
- (1978) 3 SCC 258.
- Challamma v. Tilaga, 2009 (10) SCALE 511
- Bhaurao v. State of Maharashtra, AIR 1965 SC 1564
- Lakshman v. Kamalamma, AIR 2001 Kant 120.
- Shankerappa v. Sushilabai, AIR 1984 Kant 112.
- Jacintha Kamath v. Padmanabha Kamath, AIR 1992 Kant 372.
- Madhavi Dudani v. Ramesh Dudani, AIR 2006 Bom 94.
- Patel Verabhai Kalidas v. State of Gujarat, (2000) 2 HLR 202 (Guj DB).
- Bhaurao v. State of Maharashtra, AIR 1965 SC 1564 : Priya Bala v. Suresh Chandra, AIR 1971 SC 1153.
- Vishnu Prakash v. Sheela Devi, (2001) 4 SCC 729.
- Margaret Palai v. Savitri Palai, AIR 2010 Ori 45(Christian lady)
- Ramlal Agarwal v. Shantadevi, AIR 1999 AP 251.
- Shanti Dev Berma v. Kanchan Prawa Devi, AIR 1991 SC 816.
- (2006) 2 SCC 578.
- Image Source: https://thedawnlitpost.com/pak-lawmakers-adopt-landmark-hindu-marriage-bill/
- Nagpal, R. C. Modern Hindu Law. Ed. `. 2. Eastern Book Company, n.d.
- Banerjee, Law of Marriage and Stridhan, fifth edn., 1923, p 32
- Hindu Law. Delhi: LexisNexis, 2015.