Hindu Marriage: A Sacred Bond Beyond Rituals

Hinduism views marriage as a holy, sacred tie that is an integral aspect of a person's spiritual path, rather than merely a union of two people. It is a lifetime commitment that combines spiritual, emotional, and physical elements into one cohesive whole. Hindu marriage, known traditionally as vivah (marriage), is regulated by social, cultural, and religious conventions and is regarded as one of the most significant life stages.

The Concept of Hindu Marriage

INTRODUCTION

Marriage is considered to be one of the essential sanskaras for every Hindu. Hinduism considers marriage as a sacred institution having religious character. Marriage as a sacrament, necessarily implies a permanent, indissoluble and a holy union where a girl is taken as wife by a man.

NATURE OF HINDU MARRIAGE-A SACRAMENT

According to Shastras, a man is said to be only half of himself until he gets married to his wife who completes him. She is ardhangini (half of him).

The wife is the very source of Purushartha, not only dharma, karma and artha, but also of moksha.

In Gopal Kishan v. Mithilesh Kumari (1979), the sacramental aspect of Hindu marriage was observed by the Allahabad High Court and it was held that the institution of matrimony under the Hindu law is a sacrament and not a mere socio-legal contract. It is not to gratify one's physical needs but is primarily for the performance of religious and spiritual duties as well. Therefore, marriage is solemnized with the performance of sacred rites and ceremonies.

With the enactment of Hindu Marriage Act, 1956 the sacramental aspects of Hindu marriage has not been totally shed. Yet certain changes like dissolution of marriage has diluted the sacramental side of Hindu marriage.

CONDITIONS OF A VALID MARRIAGE

Section 5 and 7 of the Hindu Marriage Act, 1955 (HMA) lays down certain conditions as prerequisites for a valid marriage. If marriage contravenes any one of the conditions specified in clauses (1), (iv) and (v) of Section 5 then marriage is considered as null and void under Section 11. If it contravenes Section 5 (ii) then it will be rendered voidable under Section 12.

→ Monogamy

→ soundness of mind

→ Age of marriage

→ Beyond Prohibited Degrees

→ Beyond Sapinda Relationship

→ Performace of Ceremonies

Condition for a Valid Marriage Monogamy

The provision of monogamy is provided under Section 5(i) of HMA.

For a marriage to be valid neither party should have a spouse living at the time of the marriage which means hindu law propounds for monogamy.

Section 17 of HMA renders the offending person liable for prosecution under Section 82 and 83 of Bhartiya Nyaya Sanhita, 2023.

Conditions necessary for prosecution of bigamous marriage:

First marriage should be valid Le first marriage should not be void or voldable.

The second marriage must be solemnized. The second marriage should not be void for the prosecution of bigamy.

Case Laws

Bhaurao Shankar Lokhande v. State of Maharashtra (1965), the Supreme Court has held that proper solemnization of second marriage is necessary to constitute the offence of bigamy.

Priya Bala v. Suresh Chandra (1971), the Supreme Court ruled that simply admitting to contracting a second marriage was insufficient for the accused's case. The prosecution should establish that the second marriage was solemnized.

Lily Thomas v. Union of India (2000). where a husband by taking advantage of Muslim personal laws remarried during the lifetime of the first spouse. The Supreme Court by applying the principles of justice, equity and good conscience declared the second marriage null and void.

Yamunabai v. Anantrao (1988), in the present case, it was held that a second wife has no status of wife as a marriage performed during the lifetime of the first wife is null and void.

Soundness of Mind

The provision of soundness of mind is provided under Section 5(ii) of HMA.

At the time of marriage, neither party should be of unsound mind due to which they cannot give valid consent, or are suffering from mental disorder which makes them unfit for marriage or procreation of

children. Further the person should not be suffering from recurrent attacks of insanity or epilepsy.

Age for Marriage

The provision relating to the age of marriage is provided under Section 5(iii) of HMA.

The bridegroom must have completed the age of 21 years and the bride must be 18 years of age at the time of marriage.

A marriage contracted in contravention to this clause is not void but voidable under Section 3 of Prohibition of Child Marriage Act, 2006.

Further, HMA provides under Section 13(2) (iv) that a wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground:

That her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Degrees of Prohibited Relationship

Section 5(iv) prohibits marriage among persons within the prohibited degrees of relationship unless the custom or usage governing each of them permits a marriage between the two.

Section 3(g) defines "degrees of prohibited relationship" as two persons are said to be within the "degrees of prohibited relationship":

• If one is a lineal ascendant of the other.

• If one was the wife or husband of a lineal ascendant or descendant of the other.

• If one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other.

• If the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.

Sapinda Relationship

Section 5(v) mentions that the parties to the marriage should not be sapindas to each other, unless the custom or usage permits such marriage.

Section 3(f) describes that sapinda relationship extends as far as:

• The third generation (inclusive) in the line of ascent through the mother.

• The fifth generation (inclusive) in the line of ascent through the father.

Performance of Ceremonies

According to Section 7 of the Hindu Marriage Act, 1955:

• As per Clause (1), a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party to marriage thereto.

• As per Clause (2), where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

It is a question of fact whether a ceremony is essential or not. Saptapadi is an essential ceremony whereas Kanyadaan is not.

Unless the essential rights and ceremonies are performed a marriage cannot be said to be solemnized.

When customary ceremonies and rites are not available to parties, then marriage must be performed by the shastric ceremonies and rites. A Hindu marriage cannot be performed by any other method, though Hindus are free to perform a civil marriage.

In Rampiayar v. Deva Roma (1923), the Court said that though vivaha homa is a usual ceremony of a Hindu marriage, but its non-performance does not render the marriage void, if the saptapadi has been performed.

REGISTRATION OF MARRIAGE

Under the Hindu Marriage Act, 1955, there is no mandatory requirement for marriage registration.

Section 8 of HMA provides for registration of Hindu marriage and its clause (1) provides for facilitating the proof of Hindu marriages.

The State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

Punishment for Non Compliance

Section 8 (2) mentions Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person

contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

The provision makes registration an optional choice, emphasizing in Section 8(5) that the absence of registration does not impact the validity of a marriage.

In Seema v. Ashwani Kumar (2006), the Court has mandated the compulsory registration of marriages for all Indian citizens across religions.

Registration helps prevent disputes related to marriage, safeguards women's rights in marital matters, and holds significant evidentiary value in cases involving child custody, children's rights, and the age of the parties involved.

The Supreme Court has directed both the states and the Central Government to take tangible steps in implementing this directive.

VOID MARRIAGE

Section 11 of the Hindu Marriage Act, 1956 provides that any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto be declared so by a decree of nullity if it contravenes any one of the conditions specified under following provisions:

• Section 5(1): If any party to marriage has a spouse living at the time of marriage.

• Section 5 (iv): If the parties are within the degrees of prohibited relationship unless custom or usage governing each of them allow such marriage.

• Section 5 (v): If the parties are sapindas of each other unless the custom or usage governing them allow such marriage.

The operation of Section 11 is prospective i.e. it does not apply to marriages solemnized before the commencement of this Act.

It is only parties to the marriage who can move the court for declaration of marriage as a nullity. In case a party to the marriage dies before filing such a petition the other party can not file for declaration.

The effect of this section is that marriage is rendered void from its very inception.

Requirement of Formal Declaration

Marriages falling under Section 11 of the Act are void from the very inception and are to be seen as non-existent in the eyes of law.

InM.M.Malhotra v. Union of India (2006), it was held by the Supreme Court that though Section 11 permits formal declaration to be made on the presentation of the petition by either party thereto but it is not essential to obtain such a declaration.

Effects

A void marriage has following effects:

• Such a marriage does not create any rights and obligations except where the legislation acknowledges such rights. For example, right to maintenance provided under Section 24 and 25 of HMA would be available.

Children born of vold marriages are considered legitimate as per the provision Section 16 of HMA. Section 16(3) does not confer upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents.

VOIDABLE MARRIAGE

A voidable marriage is not void from its inception but such nullity is imposed only after a decree is passed by the Court. It is a perfectly valid marriage until annulled.

Section 12 mentions certain grounds which render the marriage voidable enumerated as follows:

Impotency

Provided under Section 12 (1)(a) the marriage which has not been consummated owing to the impotence of the respondent is voidable. Impotency means the inability to consummate the marriage. The word consummation refers to full and complete intercourse.

The respondent must be suffering from impotency at the time of marriage and this must continue till the time of institution of proceedings.

In Digvijay Singh v. Pratap Kumari (1970), Supreme Court gave meaning to impotency as a physical or mental condition that makes consummation of marriage practically impossible.

In Shantabai v. Tara Chand (1966), where the wife had absolute repugnance to sexual intercourse though she had normal sexual organs, Court held that such a situation is equivalent to impotency.

In Rita Nijhawan v. Balakishan Nijhawan (1973), the Court stated that impotency is the lack of ability to perform full and complete sexual intercourse. Partial and imperfect intercourse is not consummation and if a party (husband) was incapable of performing the sexual intercourse fully he would be in law deemed to be impotent.

Unsoundness of Mind

A marriage is rendered as voidable under Section 12(1)(b) if the respondent:

(i) Is incapable of giving a valid consent to it in consequence of unsoundness of mind.

(ii) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such a extent, as to be unfit for marriage and the procreation of children.

(iii) Has been subject to recurrent attacks of insanity.

In Bennett v. Bennett (1969), decided in the United States it was held that mere weakness, foolishness, craziness, excessive sentimentalism are not covered under unsoundness of mind. A person is deemed unfit for marriage only if he/she is unable to carry out ordinary duties and obligations of marriage.

Similarly, in R. Lakshmi Narayan v. Santhi (2010) it was held by the Supreme Court that to brand a wife unfit for marriage and procreation of children it is required to be proved that the ailment suffered by her is of such a nature that it makes living an ordinary life impossible.

Consent Obtained by Force and Fraud

Section 12(1)(c) says that if the consent of the petitioner or the consent of the guardian wherever necessary was obtained by fraud or force, then such marriage is voidable.

The word "fraud" in matrimonial law has a technical meaning. It is not every misrepresentation or concealment that amounts to fraud. Deceit is the central element in defining fraud in this context. For Example Withholding information about a uterine prolapse especially if the wife had not experienced menstruation before marriage or failing to disclose a husband's vasectomy operation, constitutes fraud

In Raghunath v. Vijaya (1972), where the wife was suffering from a curable form of epilepsy concealment of such disease was held not to constitute fraud.

In P. v. K. (1982) it was held by the court that suppression of the fact of leading an immoral life before marriage would be fraud.

In Asha Qureshi v. Afaq Qureshi (2002), it was held by the court that active concealment by the wife of her previous marriage and she being a widow amounts to fraud.

'Force' practiced to obtain consent to marry renders such marriage voidable. It not only includes physical force but also threats.

Pregnancy of the wife at the time of marriage: If the wife of the petitioner was pregnant by some other person at the time of marriage then the marriage becomes voidable at the instance of petitioner.

Three further conditions have to be satisfied for this to apply:

• That at the time of the marriage the petitioner was ignorant of such pregnancy.

• That the petitioner has commenced proceedings under Section 12 within one year of the marriage.

• That the petitioner did not have marital intercourse with his wife ever since he discovered that the wife was pregnant by some other man.

In C.S. Rangabhattar v. C. Choodamani (1991), where a woman suppresses her pregnancy at the time of marriage, the burden of proof is upon the petitioner and it does not extend to establishing the scientific impossibility of being father of such a child.

In Nishit Kumar v. Anjali Biswas (1968), where the child was born 167 days after marriage, the Court declared that the child was not the child of the husband as the duration of gestation was too short of natural gestation period being 280 days.

SPECIAL MARRIAGE ACT, 1954

The Special Marriage Act, 1954 allows for a civil marriage between two Indians without requiring them to renounce their respective religions.

This Act facilitates civil marriages that empower individuals to wed without adhering to the specific community requirements, addressing the limitations in community-based laws that may not permit inter-community or inter-caste marriages.

Applicability and Conditions for Marriage under the Act

The Special Marriage Act, 1954 allows 'two persons' to enter into marriage, making inter-religious or inter-communal

marriages possible in India exclusively under this act.

The marriage must adhere to a civil form. though parties are free to incorporate additional rituals or religious ceremonies if desired.

The Act outlines conditions for the solemnization of special marriages under Section 4.

Firstly, neither party should have a living spouse at the time of marriage.

Secondly, both parties must meet the physical and mental capacity similar to those mentioned under Section 5 (ii) of ΗΜΑ.

Thirdly, the male should have reached the age of twenty-one, and the female should be eighteen or older.

Lastly, the parties should not be within the prohibited degree of relationship, unless the custom governing one of the parties permits such a marriage.

The Act incorporates its own list of prohibited degrees in marriage, separate for men and women. Thus, all first cousins- paternal and maternal, parallel and cross- are placed by the Special Marriage Act in the category of prohibited marital relationship.

Violating the conditions as prescribed by Section 4 renders the marriage void as mentioned under Section 24.

Registration of Marriages Under the Act

Section 13 of the Special Marriage Act, 1954 mandates the compulsory registration of marriages, emphasizing that a marriage is considered valid only after registration. After the solemnization of the marriage, the Marriage Officer is required to enter a certificate in the Marriage Certificate Book. This certificate, signed by the parties and three witnesses, serves as conclusive evidence of the marriage.

Section 15 of the Act allows for the registration of marriages celebrated in other forms where the following conditions are fulfilled:

A ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since.

Neither party has at the time of registration more than one spouse living.

Neither party is an idiot or a lunatic at the time of registration.

The parties have completed the age of twenty-one years at the time of registration.

The parties are not within the degrees of prohibited relationship.

Matrimonial Remedies and Divorce under the Act

The Special Marriage Act, 1954, amended by the Marriage Laws (Amendment) Act, 1976 mentions following grounds for divorce under Section 27:

• Voluntary sexual intercourse with any person other than his or her spouse

• Two years of desertion

• Respondent undergoing a sentence of imprisonment for seven. years or more for an offense under the Bhartiya Nyaya Sanhita, 2023.

• Cruelty

• Venereal diseases in a communicable form

• Leprosy

• Incurable insanity or continuous/intermittent mental disorder

• Presumption of death

• Additionally, two specific grounds are provided for the wife alone:

The husband, since the solemnization of marriage, has been guilty of rape, sodomy, or bestiality

Cohabitation has not resumed for one year or more after an order of maintenance has been passed under Section 144 BNSS (Section 125 of CrPC).

Section 28 mentions for the divorce by mutual consent:

• A petition for divorce may be presented to the district court by both the parties together on the ground that they have been living separately for a period of one year or more.

• That they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

• Cooling-Off Period: After the filing of the petition, there's a mandatory cooling-off period of six months, during which the court gives time to the parties for reconciliation. This period can be waived in exceptional circumstances by the court.

In Amardeep Singh v. Harveen Kaur (2017) where the parties requested a waiver of the six-month waiting period for the second motion, citing that they had been residing apart for more than eight years. The Supreme Court held that the period of 6 months, as mentioned in Section 13B(2) of Hindu Marriage Act, 1955 is not mandatory but directory. If the parties have lived separately for a year or longer without making any attempts to reconcile, it is evident that careful consideration has been given to the divorce.

• Second Motion for Divorce: After the cooling-off period, both parties need to appear before the court again and reiterate their desire for divorce. If the court is satisfied with their statements and that the consent is not obtained by fraud, coercion, or undue influence, it grants the divorce decree.

What is the legal definition of Hindu marriage under Hindu law?

Under the Hindu Marriage Act, 1955, Hindu marriage is defined as a sacramental union between two Hindus. It is not just a contract but a sacred bond for life, governed by religious and legal principles. Section 5 of the Act lays down the essential conditions for a valid Hindu marriage, including monogamy, mental capacity, and minimum age.

Is Hindu marriage considered a contract or a sacrament?

Traditionally, Hindu marriage is considered a sacrament, not a contract. It involves religious ceremonies (like saptapadi or seven steps) and is viewed as a spiritual and lifelong union. However, with codification under the Hindu Marriage Act, it now also has legal consequences like rights, duties, and remedies—blending spiritual and legal elements.

Who can marry under the Hindu Marriage Act, 1955?

The Act applies to Hindus, Buddhists, Jains, and Sikhs. Both parties must be Hindus as defined under Section 2 of the Act. It does not apply to Muslims, Christians, Parsis, or Jews, unless they choose to marry under the Special Marriage Act, 1954.