Hindu Law of Marriage

 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].
 Hindu Law of Marriage
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]
 Monogamy-[s.5]
 Widow remarriage –allowed
 Prohibited degree of relationship
 Forms of marriage-a/c to custom of communities.
 Marriage ceromonies-[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]
 Divorce
 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
 Sec.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 under
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.
 Validity of Hindu marriage
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.
 Validity of Hindu marriage
 (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-
 P.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 Upto 2 years or fine Upto 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 Upto 1 month or 1000 or
both.
 Validity of Hindu marriage
 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.
 Validity of Hindu marriage
 (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 ascendent
through father and 3 degrees in line of mother.
 Validity of Hindu marriage
 Two persons can not 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 do not attach much importance to these 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.