LAW 203

VALIDITY OF CUSTOMARY
MARRIAGES IN HINDU LAW

SUBMITTED TO: MR.SUNIL KUMAR

SUBMITTED BY: SAGORIKA BASU

(RL2004A22)

Acknowledgment
 At the outset, I would like to express my heartfelt gratitude and thank my Course
Instructor, MR. Sunil Kumar, for instilling confidence in me. I am indeed privileged having
been taught in a prestigious institution like LOVELY PROFESSIONAL UNIVERSITY. I
would also like to express my gratitude to my other Course Instructors, Mentor, family, and
friends for their uncanny help and support.

- SAGORIKA BASU
(RL2004A22)

Introduction
 In a diverse country like India, people with an incredibly vast number of

cultures, origins, religions, languages & communities do co-exist in different parts

of the territory.

The beauty of every community lies in the extent of its distinctiveness in

terms of its cultural & customary fabrics which largely govern the course of

conduct of various events and life activities of its co-habitants. Marriage, being one

of the very significant aspects of human life, does not remain untouched by its

governing customs, which grant social acceptance and validity to it.

Marriage is a sacramental union and is regarded as a sacrosanct. It is not just

a physical union of a male and female but also a pious bond of eternal values

attached to it.

Thus marriage taking place as per the norms of the community to which an

inhabitant belongs is called Customary Marriages.

As such, the underlying aspects related to it like (i) consummation (ii) mutual

rights (iii) obligation (iv) Adoption and Succession and disputes like (v) separation

and (vi) Divorce too, does fall in the ambit of customary traditions attached, in the

absence of which the legislative law prevails.

From a legal viewpoint, Marriage under one’s customary norms is recognized

and grants a legal validity, as customs being a prominent source and guiding path

for the development of any law.

However, law abrogates certain customary practices involved in marriages and

puts a sanction on those who violate it. Example:- Evil practices like ‘Sati’ and

Dowry were punished in ancient times.

Far and wide, in the Indian Communities (i) Saptapadi and tying of Mangalsutra to

the bride are an essential ceremonial ritual. Observance to the rule of ‘sapinda’ is

carefully considered and it is regarded as a prohibition, however certain

communities in South India and Bengal do not consider the same.To constitute a

marriage, the performance of necessary ceremonies and certain rituals are required.

Without the performance of valid ceremonies, the relationship between man and

woman is that of concubinage.

Customary Marriages

If there exists a different custom or rites on the side of any of the parties to the

marriage, its mere performance will be enough to grant validity to such marriage.

But for such validity, they must show and prove the customs which must be from

ancient times and continues, according to public policy. The customary ceremonies

may be secular, non-religious, or non-Shastric or maybe a very simple one.

Among low caste people of Kullu in Himachal Pradesh, the marriage is said

to be solemnized by giving meals to the marriage party or among the poor

by executing a deed.
 Among the Reddy community in Telangana, the only essential ceremonies

are tying of Mangalsutra and putting toe-ring, throwing rice over each

other’s head.

In Punjab, marriage may be solemnized by Chadar Andazi or Karewa

ceremony, under both of which no marriage ceremony is required as such.

The validity of Customary Marriage

According to section 7(a) of the Hindu Marriage Act, 1955 it states that:-

· Performance of necessary rites and ceremonies are essential; and

· If Shashtric or customary rites and ceremonies are prevalent and

recognized on the sides of either of the parties to marriage whether

elaborative or simple, could be performed.

Case Laws

1. Rajaihi Vs. Selliah,1966

 In Tamil Nadu, an association known as self-respector’s cult, an Anti-purohit

organization, whose main objectives were to do away with the traditional rites and

ceremonies, so, they introduced bride and bridegroom to the gathering of a notable

person and asked one of them to preside over the function and then both bride and

bridegroom exchanged the garlands and rings. This marriage was given huge

publicity.

Madras High Court’s Justice Satyanarayana Rao said that it is good to simplify

the marriage ceremony but it will be a dangerous doctrine to lay down, a

community should not have any liberty to introduce new ceremonies without any

statutory authority.

The Court held that the marriage is null and void.

2. Dr. A.N.Mukherji vs. State

Here, the doctor was prosecuted for bigamy. It was alleged that three

ceremonies (mock) were performed.

(i) Oath-taking ceremony in the presence of the Moon;

(ii) Exchange of garlands in Kali Temple, thereby making an imitation of

saptapadi; and

(iii) An imitation of the Sikh ceremony, as the lady was Sikh.

The court held that the performance of mock or imitation of ceremonies does not

constitute a valid marriage and hence, the prosecution for bigamy failed.

Recommendations

1. Recognition and Unification of all customary marriages as being valid for all

legal purposes.

2. The registration of customary unrecognized marriages should be made

mandatory.

3. Prospective and Retrospective effect–All existing and future customary

marriages should be recognized as valid and provide for the equality of husband

and wife which should be automatically applied to all marriages.

4. The recognition of all existing and future customary marriages is necessary for

various other provisions of the Hindu Marriage Act, 1955 such as legal protection

for cohabitation, Judicial Separation, Divorce, Equal Rights, and Powers of both

the spouses, Marital Property Regimes, Etc.

 Conclusion

The doctrine of Factum Valet is applied in the Hindu Laws of Marriage to

validate marriage vitiated by minor regulations. Yajnavalkya prescribed several

conditions for marriage. Some of them are mandatory. If they are violated, the

marriage would automatically become void. It is to their violation that the Doctrine

of Factum Valet is applied.

There are various essentials for a valid marriage. In contradiction to such

conditions, marriage will either turn voidable or void (invalid). Thus, Hindu
Marriage Act, 1955 is a blend of both old customary rules and some newly
adopted rules regarding the validation of marriages.