Hindu Law
MODULE 2
By - Dr. Nivedita
Assistant Professor
Family Law I
Amity Law School
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.
