1
MARRIAGE :-
Marriage, whether considered as a sacrament or a contract, gives rise to a status.It confers a status of husband and wife on parties to the marriage, and a status of legitimacy onthe children of the marriage. For a valid marriage, in most systems of law, two conditions arenecessary(a) parties must have capacity to marry, and(b) they must undergo the necessary ceremonies and rites of marriage.In some ancientcommunities both the requirements were nominal. Any two persons, a man and a woman, couldlive together as husband and wife if they intended to do so. Even today, in some systems of law,the requirement of capacity and formalities are not very stringent, though most systems requirethat some conditions must be satisfied. Some modern systems still lay down very stringentconditions of capacity and prescribe very elaborate ceremonies and rites of marriage. Some insiston the performance of some public ceremonies, while in others performance of privateceremonies is enough. In our contemporary world, in most systems, marriage is considered either as a contract or a near contract, and the requirements of capacity are laid down by law. Mostsystems even to-day insist on performance of some ceremonies of marriage, religious or secular,elaborate or simple. Hindus refined the institution of marriage and idealized it. In this processthey have laid down detailed rules covering practically all aspects of marriage. Whilemaintaining some continuity with the past, the Hindu Marriage Act has simplified the law of marriage. The Act has also added a chapter on matrimonial causes.In
Tikait Munmohinti
v.
Basant Kumar,¶
it was observed that in Hindu Law, marriage wassacrament, a union, an indissoluble union of flesh with flesh, bone with bone²to be continuedeven in the next world. According to the Hindu texts, a man cannot be said to have a materialexistence until he took a wife. A man is the only half of his self. Therefore he is not fully bornuntil he takes a wife and after marriage alone he becomes complete. That is why the Brahminsdeclare thus : The person known as the husband is verily known as the wife. Nature and concept of Marriage (under the Hindu Marriage Act).²Marriage under the HinduMarriage Act,
1955
no longer remains a sacrament² an eternal union for spiritual purposes.Under the Act, provisions for the divorce are laid down in Sections 13 and 13-B of the Act.Moreover, remarriage of a widow woman or a widower is possible. Therefore, the sacramentalcharacter of the Hindu marriage has been done away with by this Act.Hindu marriage,however, has not become a contract, because essential requirements of contract are lacking in theHindu marriage. Marriage of a person of unsound mind or of a minor is not void, though theagreement entered into by these persons are void. Marriage of a person of unsound mind isvoidable under Section 12 (1) (b) of the Act; and marriage of a minor is valid marriage, though punishable under Section 18 (a) of the Hindu Marriage Act and also under the provisions of the
2
C
hild Marriage Restraint Act, 1929.
Therefore, marriage under the Hindu Marriage Act has not become a contract.
Conditions
f
or
Ma
rri
age u
nd
e
r
H
ind
u Ma
rri
age Ac
t,
1955²
Sec. 5 :- Marriage between aHindu and non-Hindu is void under the Hindu Marriage Act.Now under the Hindu Marriage Act,
1955,
the identity of caste or sub-caste is not necessary for a marriage. Ancient texts on Hindulaw prohibited
Pratiloma
marriage
i.e.,
between males of lower castes and females of higher castes. But they permitted
Anuloma
marriage, marriage between males of higher castes andfemales of lower castes. Under the Hindu Marriage Act inter-caste marriage is valid and legal,whether it is
Anuloma
marriage or
Pratiloma
marriage. There is no bar to an intercaste marriageunder the Hindu Marriage Act. The Act had provided six conditions as prerequisites for a validHindu Marriage, but Act No. 2 of 1978 has omitted the sixth condition relating to guardianshipin marriage and now there are only five conditions as prerequisites for a valid Hindu marriage.In
Valsamma Paul
v.
C
ochin University
A.l.R.(1996)S.C. 1011 the Supreme Court has held thatas regards the validity of a Hindu marriage under the Act recognition of the marriage bycommunity or by parents of the spouses is not any pre-requisite. If the conditions laid down insection
5
are fulfilled, the marriage is valid. Essential conditions of valid marriage may bedescribed under the following heads:(1)
Bigamy.²The
first condition provides that ³neither party has a spouse living at the timeof marriage, [Section
5
(i)].(2)
S
oundness of mind.²At
the time of marriage, neither party,U_ (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; 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 the procreation of children; or
(c)
has been subject to recurrent attacks of insanity or epilepsy. [Section
5
(ii)].(3)
Age of Marriage.²The
third condition is that ³the bridegroom has completed the age of [twenty-one years]25 and the bride the age of [eighteen years]26 at the time of themarriage.´ [Section 5 (iii)].(4)
(4) Beyond prohibited
degrees.²The fourth condition lays down that ³the parties are notwithin the degrees of prohibited relationship, unless the custom or usage governing eachof them permits a marriage between the two.´ [Section
5
(iv)].(5)
Beyond
³sapinda´
relationship.².-The
fifth condition is that ³the parties are not
sapindas
of each other, unless the custom or usage governing each of them permits of amarriage between the two.´ [Section 5 (v)].
Th
e f
irst
c
ondition
² B
i
gamy :-
Monogamy means that one is permitted to have oniy one wifeor one husband at a time. Bigamy is the reverse of monogamy. Section 5(i) of the HinduMarriage Act prohibits bigamy. Section 11 makes a bigamous marriage void and Section 17
3
makes it a penal offence for both 1-lindu males and females under Sections 494 and 495, I.P.C.The offence of bigamy is committed by a Hindu marrying again during the life time of his or her spouse (wife or husband, as the case may be), provided that the first marriage is not null andvoid. If the subsisting marriage is voidable, then also offence of bigamy is committed. Theoffence of bigamy is committed only if the required ceremonies of marriage are performed.¶ Thesecond marriage cannot be taken to be proved by the mere admission of the parties; essentialceremonies and rites must be proved to have taken place.But where a husband had married awoman whose marriage was in subsistence, his subsequent marriage, in such circumstances,would not be bigamous, his first marriage being void. The solemnization of marriage is proved by showing that the marriage was performed with the proper and essential rites and ceremoniesof marriage prescribed under the law or custom applicable to parties. A prosecution for bigamywill fail if what is established is that some sort of ceremonies (not the essential ceremonies as prescribed by law or custom) were performed with the avowed purpose that the parties were to be taken as married, and it is immaterial even if it is established that the parties intendedseriously to marry and thought that; the ceremonies performed by them would confer maritalstatus on them. It is now established that if the second marriage of the accused is declared void before the prosecution is commenced, no prosecution for bigamy can be made. The mereintention of parties, however serious, will not make them husband and wife and the accused willescape prosecution even if he deliberately performed defective ceremonies. So long as thesolemnization of a marriage depends upon the performance of a ceremony, the law cannot beotherwise. Two persons cannot be husband and wife by seriously intending to live and living ashusband and wife, if they do not perform the necessary ceremonies. Similarly, persons who perform bigamous marriage cannot be guilty of bigamy if they omit, deliberately or inadvertently, to perform the essential ceremonies of marriage. The solution lies in prescribingone ceremony for all Hindu marriages, and by providing for registration of marriages. So long aswe recognize all sorts of ceremonies, such things are bound to happen; dupes may takeadvantages and innocent persons may become their victims.In the case of a bigamous marriage, the µsecond wife¶ has no status of wife. But in case she filesa petition for nullity, she can claim both interim and permanent maintenance. If a husband (or wife) is about to take a second wife (or husband), the first wife (or husband) can ask for aninjunction from the court.The Supreme Court in
S
mt. Yamunahai Anant Rao Adhar
v.
Anant Rao Thiraram Adhar,AIR1988
SC
644
held that the marriage becomes null and void where it is in violation of the firstcondition of section 5. It becomes void
ab inito and ipso facto.
The Apex Court observed further that the wife in a void marriage cannot claim maintenance under section 125 of the CriminalProcedure Code..Thus a man whose wife is alive and his marriage is valid and subsisting atthe time, cannot marry another wife. He will be guilty of committing the offence of bigamy, if hemarries another wife during the continuance of the former marriage. So also a woman whosehusband is alive and her marriage is valid and subsisting at the time, cannot marry another husband and she will be committing the offence of bigamy, if she niarries another husband. Butthe parties to void marriage within the purview of Section 11 can contract a valid marriage. Soalso if there has been a dissolution of marriage either by a decree of nullity under Section 12 or by a decree of divorce under Section 13, either party of such a marriage is at liberty to marry
Search History:
Result 00 of 00
00 results for result for
p.
More From This User
Notes
Load more
