Table of Contents
Who are Hindus?
Who are Hindus in India is a controversial question, as religions like Buddhism, Jainism and Sikhism also falls under Hinduism. In other words, people who doesn’t belong to Islam, Christianity and Parsi Can be considered as a Hindu in India.
Section 2 of Hindu Marriage Act, 1955 classifies Hindus as:
The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
Hindu Marriage Act 1955
The Hindu Marriage Act, 1955 applies to any person who is a Hindu by religion in any of its forms and developments (section 2). Thus Lingayats, Brahmos, Aryasamajist, etc who have deviated from orthodox standards of Hinduism in matters of ceremonial observances are Hindus. Even the Buddhists, Jains and Sikhs, persons who are converts or re-converts to Hindu religion, etc are also treated as Hindu. Every person, who falls under the broad connotation of the term Hindu, can enter into a ‘valid marriage’ with any other person from Hindu religion.
The Special Marriage Act, 1954, which was enacted by the parliament to provide a special form of marriage in certain cases, for the registration of marriage and for divorce, and was applicable to all citizens of India domiciled in the country, is also applicable to Hindus if they want to have their marriage with another Hindu or a person belonging to any other community. Accordingly, the rights, obligations and status of the parties to such civil marriage in matters relating to restitution of conjugal rights, judicial separation, nullity of marriage and divorce are regulated by the provisions contained in that enactment. Thus, two Hindus may contract civil marriage under Special Marriages Act.
What are the conditions for a valid marriage?
The conditions for a valid marriage is laid down in section 5 of the Hindu Marriage Act, 1955. According to the aforesaid section, a marriage may be solemnized between two Hindus, if following conditions are fulfilled:
-Neither party has a spouse living at the time of the marriage .
-At the time of the marriage, neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind; or though incapable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or has been subject to recurrent attacks of insanity or epilepsy.
-The bridegroom has completed the age of 21 years and the bride age of 18 years at the time of the marriage;
-The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Under the conditions of a valid marriage, the condition that no spouse should be living at the time of the marriage is absolute and must be necessarily followed. As per section 11 of the Hindu Marriage Act, 1955, A Hindu marriage thus solemnized after the commencement of the Hindu Marriage Act, 1955, is void ipso jure in case of bigamy. Similarly marriages under the prohibited degree of relationship or arising of Sapinda-ship, unless the customs or usage allows, would be void. A decree for nullity of marriage may also be obtained by a party on the grounds which render the marriage voidable.
As regards the mental incapacity of the respondent at the time of marriage, the impotency of the respondent, that the consent of parent or guardian was obtained by force or fraud, that the respondent was pregnant by some other person at the time of marriage and the petitioner was ignorant of the fact, etc in such cases the marriage is voidable at the instance of the petitioner under section 12 of the Hindu Marriage Act, 1955.
Age of Parties
Similarly, the marriage by a Hindu male under the age of 18 years and of Hindu female under the age of 18 years is valid though voidable at the instance of the parties once they attain the required age but the contravention of the condition is punishable as offence under section 18 of the Hindu Marriage Act, 1955. Hence, it can be seen that the non-fulfilment of every one of the conditions and requirements enacted under section 5, does not ipso facto render the marriage null and void.
Degrees of prohibited relationship
This clause states that a marriage is invalid if it is made between persons related to each other within the prohibited degrees, unless such marriage is sanctioned by the custom or usage governing both the parties. The custom which permits a marriage between persons who are within the degrees of prohibited relationship, must fulfil the requirements of a valid custom.
This clause states that a marriage is invalid if it is contracted between parties who are related to each other as sapindas, unless such marriage is sanctioned by usage or custom governing both the parties.
Section 7 of the Hindu Marriage Act, 1955 states the ceremonies for a Hindu marriage. As per this provision, the marriage may be solemnized in accordance with the customary rites and ceremonies of either party; or, where such rites and ceremonies include saptapadi i.e. taking the seven steps before the sacred fire, that requirement must be observed. However, even if saptapadi was not one of the items of marriage ceremony undertaken by the parties but the other items of the marriage was performed; marriage between them is legal and valid. (Subhash Popatlal Shah v. Lata Subhash Shah) (AIR 1994 BOM 43)
Is registration of marriage necessary?
Section 8 of the Hindu Marriage Act, 1955 deals with the registration of the marriage. It is open to two Hindus married according to the ceremonial form to have their marriage registered, provided that they fulfil the conditions laid under the Hindu Marriage Act, 1955. The section says that the State government may make rules relating to the registration of the marriages between two Hindus which obviously facilitates proof of the factum of the marriage in disputed cases. However, the registration of the marriage under this Act is only for the purpose of preserving a record of the same and facilitating their proof. An omission to do so does not affect the validity of the marriage even if the registration is made compulsory by the government.
Void marriages are defined under section 11 of the Hindu Marriage Act, 1955. Any marriage that does not fulfil any one of the conditions specified in clauses (i), (iv) and (v) of section 5, shall be void. The three condition namely
-Neither party has a spouse living at the time of the marriage.
-The parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two.
-The parties are no sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
If any of the condition is violated, then the marriage is void ab initio and either party can obtain a decree of nullity of marriage from the court (Section 11 of Hindu Marriage Act, 1955).
However, the parties whose marriage was solemnized before the commencement of this Act shall not be affected by this rule. As regards the legitimacy of the children born of a void marriage, they are still considered as legitimate for all purposes including succession to the property of the parents. The net effect being that the benefit of legitimacy is conferred upon any child born either before or after the date of the amendment.
Section 12 of the Hindu Marriage Act, 1955 defines voidable marriages. A voidable marriage is that which remain valid and binding and continues to subsist for all purposes, unless a decree is passed by the court annulling the same on any of the grounds mentioned in this section. The grounds on which the marriage is rendered voidable are:
It means incapacity to consummate the marriage, that is to say, incapacity to have conjugal intercourse, which is one of the objects of marriage. A party, incapable of consummating the marriage of his or her mental health or physical condition makes consummation a practical impossibility; this condition is impotency. (Digvijay Singh v. Pratap Kumari [AIR 1970 SC 137])
Unsound mind or mental disorder
This clause means that if a marriage has been solemnized with a person of unsound mind or with one suffering from any mental disorder, then it is voidable at the instance of the other party.
Consent by fraud or force
This clause states that absence of consent or where consent has been obtained by force or fraud, the marriage becomes voidable at the instance of the aggrieved party.
Respondent wife pregnant at the time of marriage
Any marriage is voidable at the instance of the husband if the wife was at the time of the marriage, pregnant by some person other than the petitioner. However, if the husband was aware that the wife was pregnant at the time of marriage and had intercourse with her on his consenting to do so, the marriage would not be voidable. (Rabgabattar v. C. Choodamani [AIR 1992 AP 103])