Concept of Hindu Marriage

Concept of Hindu Marriage

Evolution of the Institution of Marriage

Institution of marriage was not established among primitive men.Man lived more or less like animals only.He was engaged in the satisfaction of his primary needs, hunger and shelter.Sex life was absolutely free. Sex promiscuity was the rule (Having casualsexualrelations frequently with different partners; indiscriminate in the choice ofsexualpartners).

As man advanced, twin discoveries were made: of the milch cattle and of the fire. (Milch means cattle that are reared for their milk)It no longer remained necessary for him to wander from place to place in search of food.By the discovery of fire, man used to ward off his enemies, wild animals and other groups of men who attacked him. With the emergence of herds of cattle, the ideas of possession and ownership also emerged,Man started leading some civilized life.

So long as the sex relationship remained unregulated, it was maternity alone which could be known and paternity could not be determined.With the notion of possession and ownership, the human male was seized with the idea of knowing his paternity.This was not possible if sex promiscuity continued to be the rule.Thus, it seems, in mans quest to know the paternity of children lie the seeds of the institution of marriage.By mans acquisition of knowledge cattle breeding, agriculture and industry and using of natural products to the best of his knowledge brought civilization and changes in him, which led to formation of family.

Marriage as SacramentMarriage is a sacramental union of man and woman;Manu Smriti: I hold your hand for Soubhagya (good luck), that you may grow old with your husband, you are given to me by the just, the creator, the wise and by the learned people.Wife is also ardhangini (half of Man)Taittiriya Samhita half is she of the husband, that is wifeMahabharata a wife is half of her husband, she is her husbands best friend, she is the source of Dharma, Artha, and Kama, she is also the source of MokshaRamayana wife is said to be the very soul of her husband

Hindu sages husband is the lord and master;Husband is known as bharati supporter for his wife;He is also known pati protect her dharma must be practiced along with the wife to attain mokshaMarriage is religious union between the man and woman and not a contractIt is an indissoluble union,It is an eternal union

Manu husband and wife are not united for only this life and even after death, which will continue for 7 births;Narada and Parashara - very rare cases woman can abandon husband and some of them are;MissingDeadWhen he becomes asceticWhen he is impotentWhen he as out caste

Kinds of MarriageThere were 8 forms of marriage, 4 approved and 4 unapproved;Approved Marriages;Brahma form: father of the girl respectfully invites the bridegroom; widow could not be married under this form;Daiva: well decorated bride is offered to the priest who preforms religious acts and rituals;Arsha: bride is offered to the person from whom father has accepted a pair of cow/bull for religious rituals only;Prajapathya: bride is decorated, worshipped and then offered to the bridegroom, with the recitation to the effect that they may act religiously throughout and prosper and flourish in life.

Unapproved marriages:1. Asura form: bridegroom gives wealth as much in his means to the father, paternal kinsmen or the damsel herself and voluntarily takes her as his wife;2. Gandharva: there is union of the bride and bridegroom by mutual consent motivated by their mutual love and sexual instincts. 3. Rakshasa: girl is forcibly kidnapped after injuring brides parents or other gurdians;4. Paishach: most condemned form of marriage, cohabitation is done with the girl when she is asleep, intoxicated or in drunken stage, after she is ravished, she is married to one, who has been guilty of such heinous crime.

Essentials of Marriage under old Hindu Law1. Identity of caste between the parties; - ancient Hindu scriptures prohibited pratiloma marriage marriage between a girl of higher caste and boy of lower caste; accepted anuloma marriage males of higher caste marrying the females of lower caste.During British regime many acts were passed to validate the inter-caste marriage Arya Samaj Validation Act, 1937; Special Marriage Act, 1872; Hindu Marriage Disabilities Removal Act, 1946; Hindu Marriages Validity Act, 1949, etc

2. Parties to be beyond prohibited degrees: Vishnu declares that they should not marry wife belonging to the same gotra or pravara; similarly no one should marry one who falls within the sapinda relation3. Performance of religious ceremonies: according to Dharmashastra there were 3 religious ceremonies which were necessary for the completion of Hindu marriage betrothal, recitation of holy texts before the sacred fire, saptapadiAlong with these 3 any other ceremony may validate the marriage as per parties custom.

Guardianship in MarriageUnder Mitakshara, the following persons can give away the girl in marriage;- Father;Grand father;Brother;Relatives of the brides fathers family on the basis of their proximity;Mother.In Dayabhaga, the brides maternal uncle and grandfather could also act as guardians and they come above the mother.A girl was permitted to marry on her own after attaining puberty in case where there is no guardian, or guardian refused act as guardian or failed to marry the girl within a reasonable age.

Old Hindu Marriage in a NutshellMarriage was a holy sanskar; Solemnization would be according to the shastric or customary rites;One could marry at any age and man could marry any number of wives;Inter-religion/ inter-caste marriage is prohibited;Marrying within ones own gothra or pravara was not allowed;Husband and wife would live together, the latter would submit to the wishes of the former;Marriage was indissoluble union; divorce was not permitted;Death did not dissolve the marriage and therefore widow could not re-marry unless permitted by the custom do so.

Hindu marriage Act, 1955The early 8 forms of marriage did not find any place in the new act on marriage.The act received the assent of President and came into force on 18th day of 1955;The enactment is exhaustive and prospective in nature;Hindu marriage which was considered religious duty and sacrament has undergone a change and it has lost its religious sanctity under the act;The act is applicable to all Hindus of every sect irrespective of howsoever progressive and unorthodox views they propound;

Changes made by Hindu Marriage Act, 1955Marriage is a result of mutual consent than sacramental (sec 5(ii), (iii), 11 to 13 and 7);Introduced monogamy; u/s 5 marriage becomes null and void, if at the time of marriage, either party to marriage has a living spouse;Bigamy is prohibited and practicing bigamy is made punishable;The act has permitted inter-caste marriages, (u/s 29);Marriage between the persons belonging to same Gotra has been legalized;The differences between Mitakshara and Dayabhaga is not considered by the act;

7. The act clearly has clearly defined the meaning for the terms sapinda and prohibited degree;Minimum age of marriage for the bridegroom and for the bride has been fixed as 21 and 18 years respectively; (Child Restraint (amd) Act, 1978 and also by the Prohibition of Child Marriage Act, 2006)The Act has introduced some new matrimonial reliefs;Provisions for registration of marriage;Act also provides for maintenance pendente lite; & expenses of legal proceedings (u/s 24)Provides for permanent alimony to either the spouse having no source of income & maintenance (u/s 25)

13. Custody, maintenance and education of minor children during the pendency of legal proceedings and also after passing of the decree (u/s 26);14. legitimacy to children born of void and voidable marriage, so as to enable them to inherit the property of their parents;15. The right for disposal of property presented at or about the time of marriage;16. Provisions for registration of Hindu Marriage has been provided for the first time. (u/s 8)

Changes brought about by the Marriage Laws (amendment) Act, 1976Revolutionary changes were brought about by the Amendment Act of 1976: (27th May 1976) introduction of new section 13(B) divorce by mutual consent; retrospective in nature;Introduction of section 21(B) expedite the trial; day to day hearing; conclude the trial within 6 months from the date of service of notice on the respondent;In appellate court to be completed within a period of 3 months from the date of serving notice on the respondent

divorce on the ground of Adultery has been further liberalized;The period of 3 years required to elapse before a petition could be presented for divorce on the ground of incurable unsoundness, virulent and incurable form of leprosy or venereal disease in communicable form, has been dispensed with;The minimum period of 2 years which was required to elapse after a decree for judicial separation or for restitution of conjugal rights without reconciliation, has been reduced to 1 year;

The law commission in its 71st report recommended to introduce irretrievable breakdown of marriage should be introduced as a ground of divorce sec 13 (c) court will accept the breakdown of marriage only if the parties are residing separately for more than 3 years before filing the petition on this ground;In view of the recommendations made by Law Commission, the Marriage Laws (amd) Bill, 1981 was introduced in Lok Sabha on February 27 1981 but it lapsed because of no attempt was made to incorporate the recommendations of the law commission.

Conditions for valid marriage under the actThe Hindu Marriage Act, 1955 originally provided 6 conditions for a valid marriage but the Child Restraint Act, 1978 omitted the 6th condition relating to guardianship and we have only 5 conditions now.The conditions given are binding and definite, in absence of which the validity becomes doubtful;Section 5 lays down that a marriage may be solemnized between any two Hindus if the following conditions are fulfilled:

1.Monogamy - neither party has a living spouse at the time of marriage;2. Soundness of mind neither party at the time of marriage: (a) is incapable of giving a valid consent to it in consequence of unsoundness of mine; or (b) Though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children; or(c) Has been subject to recurrent attacks of insanity or epilepsy (long-term neurological disorders)

3. Age of marriage: the bridegroom has completed the age of 21 years and the bride 18 years;4. Beyond prohibited degrees of relation: parties are not to be within the prohibited degree of relation with each other;5. Beyond Sapinda relationship: the parties are not sapaindas to each other.

Monogamy 5(i)Sec 5(i) provides for monogamy and prohibits polygamy and polyandry.It is unequivocally that Hindus can have only one marriage subsisting at a timeIn the event of breach of this condition, the mischief will fall under 494 & 495 of IPC and would be liable under u/s 17 of HMA also

Smt. Sarla Mudgal v. Union Of India & Ors on 10 May, 1995marriage dissolved under law, would be a valid marriage qua the first wife who continue to be Hindu? Whether the apostate husband would be guilty of the offenceunderSection494of the IndianPenalCode? There are two petitioners in Writ Petition 1079/89. Petitioner 1 is the President of "KALYANI" - a registered society - which is an organisation working for the welfare of needy-families and women in distress. Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27, 1978. Three children (two sons and a daughter) were born out of the wed-lock.

In early 1988, the petitioner was shocked to learn that her husband had solemnized second marriage with one Sunita Narula @ Fathima;The marriage was solemnized after they converted themselves to Islam and adopted Muslim religion;According to the petitioner, conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing the provisions ofSection 494,IPC;Jitender Mathur asserts that having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu. Rather interestingly Sunita alias Fathima after converting her to Islam;

A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494 IPC;Accordingly the accused was convicted for adultery underSection497 of theIPC.

In Nilesh Narain Rajesh lal V. Kashmira Bhupendra Bai Banker AIR 2010 Guj 3 Husband who was Christian had married a Hindu girl; the marriage was solemnized according to the Hindu rituals and was registered under the Hindu Marriage Act; After some time a baby girl was born after which the wife was deserted by the husband;And he filed a suit u/s 11 of the act for declaration of marriage between the parties as void because at the time of his marriage the first marriage of the girl was subsisting;The court held the marriage to be null and void.

Dr. D.N. Mukerji v. State 1969 All 489 Dr. Mukerji was prosecuted for bigamy;While his first wife was alive, he developed courtship with another woman and performed false marriage;2nd marriage was accomplished with the help of 3 religious ceremonies performed at 3 different times in 3 different ways;First one consisted of marriage in full moon night making moon as witness, calling it as chandra anushtanSecond one in Kali temple where garlands were exchanged and tilak was put on the forehead of the bride;Third being- taking 7 steps around the deity and similar performance was gone through again by guru granth sahib

None of the ceremonies were recognized by the community of either party to marriage or given any religious sanction;Consequently, it could not be said that they had performed their marriage with Harbans Kaur did not constitute the offence of bigamy so as to make Dr. Mukerji liable for punishment u/s 395 of IPC; The non-performance of religious rites and ceremonies under the act or performing them not in conformity therewith, a Hindu male could manage to keep a woman even during the life time of his first wife.

for punishment for the act of bigamyParty to Bigamy can be punished upon the proof of prior marriage;The subsequent marriage would require proof of essential religious ceremonies or rites;At the time of the 2nd marriage the 1st marriage must be in subsistence.

The breach of sec 5(i) results inSuch a marriage would become null and void under section 11;The erring party to such a marriage would be liable to be prosecuted u/s 17 of the act & punishment u/s 494 & 495 of IPCThe parties to the marriage retain their right to seek preventive remedy in case there be apprehension about remarriage of his or her spouse by moving a injunction suit

Lunacy - Sec 5(ii)Sec 5(2) was amended by the Marriage Laws Amendment Act, 1976 and restructured as Neither the party must be suffering from unsoundness of mind, mental disorder, insanity at the time of the marriage;u/s 12(1)(b) at the instance of the aggrieved party, the marriage is voidable;If the parties to marriage were of sound mind but later became insane or mentally unsound then this eventuality would not affect the validity of marriage they can move u/s 13

Age of parties 5(iii)Sec 5(3) prescribed the age of the bridegroom as 18 years and bride as 15 years but; by the Child Marriage Restraint (amendment) Act 1978 the words eighteen and fifteen are replaced by twenty one and eighteen respectively;The breach of the pre-requisite condition did not affect the validity of marriage, but;u/s 18 - the person responsible for such much is attracted by the Penal provisions, punishable up to 15 days imprisonment or 1000/- fine or both;This provision is further amended and now the punishment is 2years imprisonment or with fine of 1lakh or both

In Pinniti Venkatarama v. State AIR 1977 AP 43, the Andhra Pradesh HC laid down that any marriage solemnized in contravention of cl(iii) of Sec 5 is neither void nor voidable, the only consequence being that the persons concerned are liable for punishment u/s 18;By the Marriage Laws (Amendment) Act, 1976, u/s 18(2)(iv) the bride had been married before her attaining 18 years and on attaining 18 years she can repudiate the marriage by filing a divorce petition.

Prohibited relationship - 5(iv) Under this sec the persons falling within the prohibited degree of relationship is prohibited;Sec 3(g) defines degrees of prohibited relationship Two persons would be regarded to be within prohibited degrees If one is a lineal ascendant of the other; orIf one was the wife or the husband of a lineal ascendant or descendant of the other; orIf one was the wife of the brother or of the fathers or mothers brother or of the grand fathers or grand mothers brother of the other; orIf two are brother and sister, uncle and niece, aunt and nephew, or children of two brothers and sisters

The relationship would include a) Relationship by half or uterine blood as well as by full blood;b) Illegitimate blood relationship as well as legitimate;c) Relationship by adoption as well as by bloodException : the custom which allows a marriage between persons within prohibited degrees must fulfill the requirements of a valid custom.

Prohibited degree For men 1. Mother;2. Grandmother how so ever high;3.Former wife of father or grand-father how so ever high;4.Former wife of brother;5.Former wife of either parent's brother;6.Former wife of grand-parents brother;7. Sister;8. Either parents sister;9.Daughter of brother or sister;10.Daughter of either parents brother; 11. Daughter of either parents sister.For women1. Father;2.Grandfather how so ever high;3.Former husband of mother or grand mother how so high ever;4.Brother of former husband;5Nephew of former husband;6.Grand nephew of former husband;7. Brother;8. Either parent's brother;9.Son of a brother or sister;10. Son of either parents brother;11. Son of either parent's sister

Marriage falling u/s 5(iv) is void under u/s 11 of the act;Section 18(b) punishes erring party with the simple imprisonment which may extend up to 1 month; or with fine which may extend to 1000/- rupees, or with both;Where the custom allows marriage with in the prohibited degree, that marriage will receive the recognition of a valid marriage.

Sapinda 5(v)The word sapinda means of the same pinda; having common pinda;pinda is capable of two meanings:- particles of body or an oblation;Dayabhaga - the well known meaning is offerings pinda or rice ball to common ancestor on their ceremony are sapindas to each other; community in the offering of funeral oblations;Mitakshara school says persons connected by the same pinda i.e., particles of same body/blood relation community of the particles of the same body;Mitakshara held that the right to inherit arose from propinquity while Dayabhaga held that it arose from the capacity to bestow spiritual benefit on the deceased owner;The difference is not only in succession to property, it is in the concept of marriage also.

According to sec 3(ii)(f) two persons are said to be 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.The expression lineal ascendant and line of ascent include both male and female ascedants.

Male sapindas would be father, fathers father, fathers fathers father, fathers fathers fathers father, Female sapindas would be mother, mothers mother, fathers mother, fathers fathers mother, fathers fathers fathers mother, fathers mothers fathers mother, fathers mothers mother, daughter, daughers daughter, sons daugher, sons sons daugher, and sons sons sons daugher.

The sapinda relationship under the ancient Hindu law was, the bride should not fall within 7 degrees from fathers side and 5 degrees from the mothers side;By the Hindu Marriage Act, 1955 the sapinda is confined to 3 generations upward from the mothers side and 5 generations upward from fathers side.

Section 6Sec 6 stands omitted by the provisions of the Child Marriage Restraint (Amendment) Act, 1978, provided a different list of guardians; When the age of marriage of the bride and bridegroom was raised to 18 years and 21 years respectively, the need of consent of the guardian for marriage became nugatory, hence sec 6 of the Act of 1955 stands abrogated.

Section 7 Marriage CeremoniesThe same ceremonies as invocation before the sacred fire, sapthapadi etc. were observed as essential for the valid marriage by the Act also;Sec 7(1) provides that a Hindu marriage must be solemnized in accordance with customary rites and ceremonies of either party thereto and must fulfil the conditions prescribed for the same by sec 5 of the act;This section does not prescribe any particular form of ceremonies requisite for solemnization of the marriage but leaves the parties to choose any form of marriage;

In the case of Ashoka Kumar v. Usha Kumari AIR 1984 Del 347 the Delhi HC held that with the passage of time it becomes difficult to prove that at the time of marriage the religious ceremonies has been properly performed; and where two persons are socially recognized as a married couple, a strong presumption is raised in favour of their lawful marriage duly solemnized with the help of customary rites and religious ceremonies and living together in itself is an evidence of their marriage

Section 8 proof of MarriageThe State Government is authorized to make rules providing for registration of marriage;Such rules must provide - parties to enter the particulars relating to their marriage, in the marriage register in such manner and subject to such conditions as may be prescribed.The State Government may, if it thinks fit, make the registration of the particulars of all marriages compulsory in the State.

u/s 8(4) the marriage register, at all reasonable times be open for inspection; it is made admissible as evidence of the statements contained therein.u/s 8(5) marriage not in accordance with 8 shall not affect the marriage in any ways and the validity of the marriage would not be affected.In Vinaya Nair & ors v. Corporation of Kochi AIR 2006 Ker. 275 - husband is employed in Canada, married to a girl residing in Kannur Dist. in Kerala,They submitted application form for registration as per the provisions of The Kerala Hindu Marriage Registration Rules, 1957 to the Corporation of Cochin.It was rejected as he is not domicile of Cochin.