PERSONAL LAW I

TOPIC
HINDU LAW AND MARRIAGE
PERSONAL LAW I Hindu Law and Marriage

INTRODUCTION

Marriage is the tenth and last sacrament according to Hindu law. Even death, according to
Smritikars, cannot end this sacred and religious relationship between husband and wife. The
institution of marriage is a sacrament, not merely a socio-legal agreement.

The goal of marriage was for a man and a woman to be able to execute religious duties and
have children. Every Hindu had to marry, whether he was a man or a woman. As a result,
marriage was almost a requirement, especially for women. A girl may choose her own
husband and marry him. However, as life's circumstances evolved, marriage became an
optional choice for both men and women.

Both males and females were advised to practise monogamy. It was mandatory for females,
but throughout time, exceptions were made for males, and a man may have as many wives as
he pleased unless legislation prevented it. 

There are eight types of Shastric weddings recognised by Hindu law. The first four types of
marriage, Brahma, Daiva, Arsha, and Prajapaiya, were known as "normal" or dharmya
marriages since they essentially consisted of the father giving the daughter to the husband.
The remaining four types of marriages, Asura, Gandharva, Rakshasa, and Paishacha, were
referred to as "irregular" or adharmya. The groom's money was to be provided to the bride's
parent in an Asura marriage, whereas a Gandharva marriage was the outcome of the bride and
groom's mutual amorous yearning. A Rakshasa marriage was when the bride was taken by
force or deception and married, while a Paishacha marriage was when the girl was ravished
while sleeping or drunk or when her mind was deranged.

There were three major stages in which various ceremonies were to be carried out. They
were: 

(i)  Betrothal (Vakdan), which was a formal promise to give the girl in marriage; 
(ii) Kanyadan, This was the ceremonial donation of the bride by her father or the
actual giving away (gift) of the lady in marriage; and 
(iii) Saptapadi, which was a ceremony in which the bride and groom took seven steps
in front of the sacred fire.

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Saptapadi's act signified the end of a marriage. It rendered the union irreversible.
Consummation was not a need for the marriage to be complete.

This traditional Indian marriage concept evolved over time as a result of interactions with
Islamic culture, as well as Christian, Jewish, and Parsi civilizations.

Except for abolishing the practise of Sati and widow's remarriage, Hindu Religious practises
and laws were not disrupted during the Mughal period. The British in India initially did not
tamper with Hindu personal laws, but starting in the early nineteenth century, they supported
social reforms that culminated in legislative reforms.

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PERSONAL LAW I Hindu Law and Marriage

HINDU MARRIAGE ACT 1955

This Act extends to everyone who identifies as a Hindu in any of its forms or manifestations,
including Virashaivas, Lingayats, and Brahmo, Prarthana, or Arya Samaj followers.

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a
Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would
not have been governed by the Hindu law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein if this Act had not been passed.

Under ancient Hindu law, the institution of marriage has undergone fundamental and
significant modifications as a result of the new Act. It is more a result of mutual consent than
sacramental. Marriages between Hindus, Jains, Sikhs, and Buddhists are now legal Hindu
marriages in the eyes of the law.

Let's look at some of the developments that occurred as a result of the act. The Act
establishes monogamy for the first time. The Indian Penal Code officially makes bigamy a
crime. Caste considerations for inter-caste and inter-community marriages have now been
rendered obsolete, removing all limitations. The Act now makes no distinction between a
maiden's marriage and a widow's marriage. The bridegroom must be at least 21 years old and
the bride must be at least 18 years old.

For the first time, Hindu marriages have been allowed to be registered. Either partner may
remarry after a lawful divorce. The Act intends to repeal all existing laws that are in conflict
with the Act, whether they are in the form of ancient writings, customs, usages, or legislative
enactments.

It also replaces any other law contained in any Central or State legislation in force prior to the
commencement of this Act, to the extent that it conflicts with any of the provisions of this
Act. The case of Sankarappa v. Basamma is a good example of this. The court found that
Section 9 of the CPC (1908) and Section 43 of the Specific Relief Act (1963) do not conflict
with any sections of the HMA in this case. Under these regulations, a wife can sue her
husband for barring him from marrying again.

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PERSONAL LAW I Hindu Law and Marriage

The Act does not apply retroactively. It thus has no bearing on the legitimacy of marriages
performed prior to the Act's enactment, i.e. before 18 May 1955, except in the situations
listed in the Act.

This Act does not apply to the Scheduled Tribes. This exception also includes the Chinese
people in India and Tibetan refugees, to whom Hindu law will not apply. This Act, however,
will not apply to people I who have forsaken Hinduism and converted to another religion, or
(ii) who are descended from Hindu ancestors and have been turned into a new unique group
with their own religion usages as a result of marriage or a new employment. The Kalis of
Myanmar, for example, are a community to which Hindu law does not apply. (iii) This rule
will not apply to children whose parents, despite being Hindus, are not raised as Hindus, i.e.
raised as Christians or Mohammedans.

Even if they live outside India, Hindus domiciled in India are covered by the 1955 Act. This
extraterritorial operation of law is preserved not because of a connection with Hindus, but
because of Hindus who live in India. As a result, the 1955 Act will only apply to a Hindu
living outside of India if such Hindu is domiciled in India.

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CONDITIONS FOR A HINDU MARRIAGE

The conditions for a Hindu marriage are enshrined in Section 5.

The condition are as follows:

Parties to be Hindus

Both the parties to the marriage must be Hindus. If one of them isn't a Hindu, it'll be a
problem. The marriage will be exempt from the provisions of this Act. A Hindu married a
Christian woman in Vijaya Kumari v. Devabalan. The Kerala High Court ruled that the
marriage was not lawful under the Hindu Marriage Act.

There are certain conditions:

“(i) neither party should have a spouse living at the time of marriage;

(ii) at the time of marriage, neither party

(a) is incapable of giving a valid consent due to 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 for procreation of children; or

(c) is subject to recurrent attacks of insanity or epilepsy;

(iii) at the time of marriage, the age of the bridegroom should be 21 years complete and
bride's age should be 18 years complete;

(iv) the parties are not within the degrees of prohibited relationship unless the custom permits
such a marriage;

(v) the parties are not Sapindas of each other, unless the custom permits their marriage.”

As laid down in Lila Gupta v. Laxmi Narain all the conditions under Section 5, HMA are not
mandatory. Section 5 makes it mandatory that the parties to marriage must be Hindus. The
word "may" used here in the opening of this section is not directory.1

1
Gullipilli Sowria Raj v Bandaru Pavani [2009] 1 SCC 714 [2008] 2 HLR 612

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Monogamy

The first condition suggests monogamy and forbids polygamy. Polygamy was legal before
the Act was passed, but it is now illegal. Polyandry was illegal in Ancient Hindu law before
1955. This Act also forbids it and encourages absolute monogamy. 2

The term "solemnise" a marriage only refers to the act of marrying; it has no intellectual or
legal value. The marriage cannot be solemnised if the first criterion is not met.

The phrase "neither party has a living spouse" implies that the spouse must be deceased at the
time of the marriage, and that term "spouse" in legal terms refers to a spouse. If the spouse is
still alive at the time of the marriage, it may be impossible for the person to remarry. We can
fairly conclude that a bachelor who has never married, a widow or widower, and a divorcee
who has properly divorced his wife are all eligible to marry. The filing of a divorce petition
does not end the marriage. It lasts until a definitive divorce decree is issued.

However, it should be noted that a person's first marriage, which is a bar to that person's
second marriage, should be a legally legitimate marriage that was lawfully executed, i.e., a
valid and enforceable marriage. If a person remarries in contravention of Section 5(i) despite
having a legitimate marriage, the second marriage will be null and void, and he will face
penalties. In this case, a competent court can declare the second marriage null and void.

The Supreme Court ruled that such a marriage is null and void, not just voidable under
Section 12 of the Act. 3 A marriage can be ruled null and void even after one partner has
died.4

One essential feature of this Act is that it makes no provision for a wife to file a petition for
an injunction prohibiting her husband from marrying another woman. However, an injunction
to prevent a marriage can only be given when a guardian's approval is required and the bride's
best interests require such prohibition. 5

The Scheduled Tribes are exempt from the Act's provisions. However, there must be a
documented tradition to this effect (i.e. for bigamy). 6

2
Nallagonda Kanthamma v Nallagonda Rajyam [2005] 1 HLR 509 (Kant)
3
Yamunabai Anantrao Adhav v Anantrao Shivrram Adhav [1988] 1 SCC 530
4
Krishni Devi v Tulsi Devi, AIR 1972 P&H 305
5
Umashankar v Radha Devi
6
Shakuu Bai v. Siya Bai [1992] 2 HLR 368 (MP).

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Also, a Hindu male cannot change his religion just to marry more than one. 7

The Allahabad High Court dismissed a claim that the provision prohibiting bigamy violates
Article 25 of the Indian Constitution, which provides the right to free profession, practise,
and spread of religion. 8

Absence of idiocy, lunacy and unsoundness of mind

The second condition stipulates that neither party be an idiot, a lunatic, or suffer from
frequent episodes of lunacy or epilepsy.

A marriage is both, a bliss and a burden at one and the same time. A sound mind is a key to a
happy married life.9 This condition which was originally briefly stated in I-MA is now
detailed in three sub-clauses by the Marriage Laws (Amendment) Act, 1976.10

It's worth remembering that a "consenting mind" was not required under old Hindu law. As a
result, an idiot or a lunatic could marry. This system is been abolished under the current
legislation. There are different views on whether a Hindu marriage is actually a contract, but
this Act puts an end to this by stating that lunatics and idiots are not allowed to marry at all.
As a result, "free consent" is a requirement for a legitimate Hindu marriage. This is made
apparent in Section 5(ii) of the amended Act.

An "idiot" is "he, that is a fool from his birth and knoweth not how to count or number, or
cannot name his father or mother, nor of what age he himself is, or suchlike easy and
common matters; so that it appeared that he has no manner of understanding, or reason, or
government of himself, or what is for his profit or disprofit". "Schizophrenia" is not
equivalent to lunacy or idiocy.11

If insanity supervenes subsequent to the marriage, it cannot be annulled.

The burden of proof for insanity or idiocy is on the person who files a petition to annul the
marriage. 12 The presumption favours the validity of the marriage and the mental ability of the

7
Sarla Mudgal v. Union of India [1995] 3 SCC 635
8
Ram Prasad v. State of UP AIR 1961 All 334
9
Sharda v. Dharmpal [2003] 4 SCC 493
10
Gurnam Singh v. Chand Kaur [1980] HLR 134 (P&H)
11
Gurnam Singh v. Chand Kaur [1980] HLR 134 (P&H).
12
Ram Narain Gupta v. Rameshwari Gupta [1988] 4 SCC 247

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spouse entering matrimony. A marriage that occurs in violation of this criterion is not void
per se, but it is voidable under Section 12(1)(b). 13

Age of parties

The third condition concerns the age of the parties involved in the marriage. At the time of
marriage, the bridegroom should be 21 years old and the bride should be eighteen years old.
The old Hindu law did not specify a minimum age for marriage, but the codified law does,
and it is consistent with the Child Marriage Restraint Act. A violation of this provision is
penalised (under S. 18) by simple imprisonment for up to 15 days, a fine of up to one
thousand rupees, or both.

The marriage is not void or voidable if this criterion is violated. That is to say, it is legal, even
if it may result in penalties.' Several High Courts share this viewpoint. The Andhra Pradesh
High Court later reversed its previous decision, which was upheld by the Supreme Court.
This means that breach of this condition provides a cause for divorce. 14
This Act itself
provides a ground for repudiation of the marriage in Section 13(2)(iv).

Under the HMA, child marriage is still considered legal and not void. Hindus are governed
by personal law, which is codified. The Prohibition of Child Marriage Act, 2006 (PCM Act),
on the other hand, is a secular law that recognises this marriage as voidable save in the
circumstances described in Section 12 of the PCM Act. Neither of the aforementioned
statutes considers child marriage to be void from the start or a nullity. As a result, child
marriage cannot be declared null and void. [States v. Court on its Own Motion (Lajja Devi)]

A minor's marriage is illegal under Section 5(iii), yet it is neither unlawful under Section 11
or voidable under Section 12 of the HMA. It can only be prosecuted. Under Section 6(c) of
the Hindu Minority and Guardianship Act, 1956, if the wife is a minor, her husband is
entitled to natural guardianship over her parents. 15

13
R. Lakshmi Narayan v. Santhi, (2001) 4 SCC 688
14
Pinninti Venkataramana v. State, AIR 1977 AP 43.
15
Kokkula Suresh v. State of A.P [2008] SCC OnLine AP 617

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Parties not to be within the "degrees of prohibited relationship”

In Section 3, supra, the term "degree of prohibited relationship" is defined. Marriage between
the offspring of a brother and a sister, 16 or the children of two sisters, 17 or with the wife of a
step-brother, 18 violates this requirement to the extent that it is within the banned degrees.

The Protection of Women from Domestic Violence Act of 2005 does not recognise a
relationship between same-sex partners (gays and lesbians), and such a relationship cannot be
classified as a marriage like relationship under the Act. 19

(f) Parties not to be sapindas of each other

The expression "sapinda" is explained in Section 3, supra. The net of sapinda relationship
extends

(a) as far as the third generation (inclusive) in the line of ascent through the mother, and

(b) as far as the fifth generation (inclusive) in the line of ascent through the father.

The actual definition of the word "line of ascension," i.e. whether the line of ascent through
the mother or through the father includes both parents of the mother or father, is a point of
contention among writers and commentators. On this somewhat challenging subject, no court
clarity is available.

Marriage between sapindas is legal if the custom or usage that applies to each of them
authorises it. However, as stated in Section 3, the custom must be valid.

16
Sanjib Kumar Mondol v. Sipra Mondol [2004] 1 HLR 299 (Cal)
17
Arima Biswas v. Dipankar Biswas [2004] 2 HLR 44 (Cal).
18
Ramavati Gupta v. State of U.P [1985] 1 HLR 214 (All).
19
Indra Sarma v VKV Sarma [2013] 15 SCC 755

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CEREMONIES FOR A HINDU MARRIAGE

After reading Section 7, it is evident that either party’s customary rituals and ceremonies may
be used in marriage. After the Saptapadi is included in such rites and ceremonies, the
marriage becomes full and binding when the seventh step is taken. The Act thus offers
Saptapadi formal legitimacy, but it is important to remember that it does not make Saptapadi
mandatory.

A marriage does not have to be consummated to be lawful and binding. In truth, Section 7 of
the Hindu Marriage Act does not require any specific ceremony to be performed.

A Hindu marriage is both a sacrament and a contract, it must be remembered. The sacrament
consists of (l) the sacred fire's invocation and (2) the Saptapadi, in which the bridegroom and
bride walk seven steps together before the sacred fire. It is possible to have a legal marriage
based on customs that require the completion of such rites.20

The term "ceremony" refers to the customary rituals and customs of either party to the
marriage, as defined by this Act. As judicial rulings have pointed out, Section 7 is not a
particular rule of evidence that requires the prosecution to prove that the seventh step was
taken. Whether or not the seventh step is precisely demonstrated, the proof of the marriage
may be shown in the fact that the second marriage between the parties who seek to have it
conducted went through with it and never attempted to contest it.

When a court finds that a marriage was actually performed, the court will assume that it was a
lawful marriage21 with all requisite rites done. 22
Anyone who opposes the marriage must
refute both of these assumptions. 23

A man and a woman's long cohabitation and acceptance of their status as husband and wife
go a long way toward establishing a legitimate marriage. 24 When there has been a long period
of cohabitation between the parties, Section 7 presumes marital status. 25
When one of the
parties to the document repudiates it, an extract of the Hindu Marriage Register is not

20
Sumitra Devi v. Bhikhan Chaudhary [1985] 1 SCC 637
21
Fakrigauda v. Gangi, ILR [1896] 22 Bom 277
22
Linga v. Ayodhya, AIR 1974 Ori 107
23
Guru Charan Behara v. Adikanda Behara, AIR 1972 Ori 38
24
Challamma v. Tilaga [2009] 9 SCC 299
25
Chanmuniya v. Virendra Kumar Singh Kushwaha, [2011] I SCC 141: [2011] 2 SCC (Cri) 666: [2011] 1 SCC
(Civ) 53

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sufficient proof to prove marriage. When one party repudiates, the other must prove that the
marriage was conducted under Section 7 or 7-A of the HMA. 26

INNOVATION OF NEW CEREMONIES

26
G. Sijala v. M Prabhu [2012] 1 LW 270 (Mad)

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Ceremonies are something which can’t be changed at one’s will. 27

But when it comes to
organisations like Arya Samaj, they did not changed but made the ceremonies simple. In the
same way the Sikhs performed marriage as Anand Karaj. Thus, it was necessary that the acts
validated this marriage.

One more example of it is that of Suryamariyathai marriages, which was validated by an

amendment in the HMA by the Tamil Nadu Legislature.

Validation of ceremonies became an important thing and therefore became the point of
contention. One such case is that of Deivanai Achi v. Chidambaram Chettiar. In this case
there was a cult known as Anti Purohit Organisation or Self Respectors’ cult which existed
for more than 50 years. The organisation did away the ceremonies and traditional rites
practiced by the Hindus and in place of them established some simple rites and ceremonies.
This kind of marriage was known as Surya Mariyathai marriage. In this marriage the
attendants of the marriage are the relatives, friends of the bride and the bridegroom and the
respected persons of the locality. One of the attendants have to preside. Then the couple gets
to know the guest. Then the bride and bridegroom exchanges rings and garlands. After this
there are two ceremonies. One is that of tying the thali and the other one is that the bride and
bridegroom declare that they have accepted each other as husband and wife. The couple are
free to choose any of the remaining two ceremonies.

In Devani case the marriage was held void because no one can alter personal law. But after,
this decision such marriages were recognised and held to be valid and Section 7-A was
inserted by an amendment. This new provision came into force from 17th January, 1968, It
applies to those marriages only which are performed in the State of Tamil Nadu. As a result
of this law change, the parties will have the status of husband and wife simply by signing a
paper stating that they have become husband and wife or making a declaration in the
presence of friends and other people [Section 7-A, Subsection (l)(a)].

REGISTRATION OF HINDU MARRIAGES

Registration of Hindu Marriages is enshrined in Section 8. The validity of a marriage is

unaffected by registration. It is a proof of marriage. In this regard states have the power to
27
Raghubir v. Shanmugh Vadiya AIR 1971 Mad 330

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make their own rules and also to make it compulsory. The details of the marriage are written
down in a register for the very purpose. If someone disobeys the directives given, a fine up to
Rs 25 can be imposed.

Also, a marriage cannot be validated just by merely registering. For validation the essential
parameters like that of age should be fulfilled. The parties must be of marriageable age in
order to register their marriage. If a spouse has not met that requirement, registration can be
applied once they have reached the required age. 28

Marriage cannot be established only on the basis of a marriage registration certificate. Its
observance via traditional rites and ceremonies in conformity with Section 7 must also be
demonstrated. 29

Registration of marriage had no Importance before the HMA. However, in addition to its
evidentiary significance, the National Commission for Women has stated that it is crucial to a
variety of women's issues., such as —

“(i) prevention of child marriages,

(ii) prevention of marriages without the consent of the parties,

(iii) prevention of illegal bigamy or polygamy,

(iv) enabling married women to claim their right to live in the matrimonial home,
maintenance, etc.

(v) enabling the widows to claim their various rights after the death of their husbands,

(vi) deterring men from deserting their wives after marriage, and

(vii) deterring sale of girls under the garb of marriage.”

We've seen how the Supreme Court's directives in Smt. Seema v. Ashwani Kumar are
extremely important. For the first time, the Indian Supreme Court has urged the states to
make registration of marriage mandatory in India. The court enjoined the Convention on the
Elimination of All Forms of Discrimination Against Women to come to its help (CEDAW).

It has been suggested that in such a situation, state registration rules should be framed in such
a way that when a marriage is registered, the parties should be charged a substantial fee, and

28
Baljit Kaur Boparai v. State of Punjab [2008] 70 AIC 485 (P&H)
29
Balwinder Kaur v. Gurmukh Singh [2007] SCC OnLine P&H 63

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from this amount, a fund should be created and managed so that the wives do not go hungry
due to a lack of maintenance. A complete piece of legislation is a must.

CONCLUSION

In India, the laws on marriage have evolved with the passage of time. It has evolved into a
logical, individual friendly as well as towards more egalitarian society. Many of the earlier
evils have been eradicated such as caste base marriages were eradicated. The Act establishes
monogamy for the first time. The Indian Penal Code officially makes bigamy a crime. Caste
considerations for inter-caste and inter-community marriages have now been rendered

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obsolete, removing all limitations. The Act now makes no distinction between a maiden's
marriage and a widow's marriage. The bridegroom must be at least 21 years old and the bride
must be at least 18 years old.

After the act was enacted, it appeared as a great boon to the women. Registration of
marriages helped a lot in the case of women. It helped in prevention of child marriages,
forced marriages, made bigamy illegal, entitled women to live in the home they married, and
also maintenance. It also became an impediment in the sale of girls as well as from desertion.

At last, I would like to conclude by saying that Hindu law in case of marriage has evolved
and evolved for greater good. Its weight has shifted from that of a sacrament to mutually
consenting adults. it also shifted from a religious rite to Anand Karj. It shifted the position of
women from a dependent to an equal partner in a relationship.

Thus, marriage under Hindu law has evolved from a draconian patriarchal system into an
inclusive equal event.

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