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Introduction

The aim of this lecture is to explain the nature and scope of marriage. It is
considered a sacramental union between a male and female indissoluble not
only in this world but in the world hereafter. According To Manu, marriage
amongst Hindu's is a religious obligation and both male as well as female is
incomplete without performing marriage. The marriage amongst Hindu's in
terms of classical approach is a pure religious and a sacramental affair. It is
an eternal union between a male and a female not only here but also in the
world here-after. According to Dharamshastra, every male is supposed to
marry in order to beget a son for discharging debts of his ancestors, besides
performing other religious duties. According to the classical approach, no
marriage can be possible without performance of sacred rites and
ceremonies. Marriage, according to Hindu law, is a holy sanskar
(sacrament) and not a contract unlike Muslim law. Polygamy was permitted
in Hindu society but not polyandry. Legislation of laws relating to Hindu
marriage began from the year 1829 when sati was abolished by law and
declared an offence at the instance of Raja Ram Mohan Roy.

Hindu Marriage Act, 1955

The Act treats marriage as a contractual union between a male and female,
which is dissoluble in its nature. Thus, the consent and mental condition of
the parties, which had no role, prior to this Act, plays an important role in
the formation of marriage contract. It recognizes the circumstances under
which a marriage can be treated as void and voidable, thus consequently
making it a dissoluble tie. In brief, the sacramental character of Hindu
marriage is no more ostensibly in existence.

Conditions for a Hindu Marriage

The Act is a self-contained code in the matters enumerated under this Act,
regarding any matter of Hindu marriage.
Section 5 of the Act provides that a marriage may be solemnised between
any two Hindus, if the following conditions are fulfilled:

1. Neither party having a living spouse.

Under the Hindu Marriages Act, 1955, neither polygamy nor polyandry is
not allowed. The special feature of this Act is the provision of monogamy
instead of polygamy, so any marriage solemnised after the commencement
of the Act is absolutely null and void, if it contravened any condition
stipulated therein, including the condition of monogamy. Neither a Hindu
male nor a female can marry during the lifetime of his first wife or her first
husband. A person should be a bachelor or virgin, widower or widow or
divorced at the time of marriage.

A marriage which contravenes any condition laid down under the Act, shall
be liable to be declared null and void in terms of section 11 of the Hindu
Marriages Act,1955, on the petition presented to the court by any party
thereto, even if the parties have lived together as husband and wife and have
even children born thereto. A person who marries in violation of this
condition i.e. monogamy, is liable for the offence of bigamy which is
punishable under sections 494 and 495 of the Indian Penal code,1860.

2. Competence to contract marriage.

Under Hindu law as laid down by old texts and as administered before the
commencement of this Act,a marriage of a lunatic or idiot was valid under
the traditional Hindu law. After the commencement of the Hindu Marriages
Act, 1955, section 5, clause (ii) (as originally enacted) provided for idiocy or
lunacy at the time of marriage, as a legal disability for contracting a valid
marriage. However, the courts took rather a narrow interpretation of the term
'lunacy or idiocy at the time of marriage’ to lay down that any subsequent
lunacy would not affect the validity of the marriage. It will be appropriate to
quote the observation of Punjab and Haryana high court, delivered in
Munishwar Dutta Vashist v. Indra Kumari (AIR 1963, 449) in this respect:

‘An attack of insanity where it amounts to mania or schizophrenia, if comes

after marriage will not furnish a ground for annulling the marriage. What is
momentous, therefore, is the mental condition at the time of marriage which
is the crucial time for determining the question of annulment.’

Keeping judicial decisions of above nature in mind, the entire law relating to
mental capacity under the Act was modified in 1976 and replaced by the
present provision; Clause (a) of sub-clause (1)of section 5 of the Act, speaks
of unsoundness of mind but not every kind of unsoundness of mind. It is
restricted to that type of unsoundness of mind as may, in law, render the
potent incapable of giving a consent which law can recognize. Similarly cl.
(b) indicates that the mental order should have lasted for some length of
time. It does not, however, define the term mental order but simply says that
the mental disorder must be either (i) of such a kind, or (ii) to such an extent,
as to make the patient unfit for marriage and procreation of children.

Under this section, a decree of annulment may be granted if it is proved,

inter alia, that the spouse was of unsound mind or was suffering from a
mental disorder of such a kind or such an extent as to be unfit for marriage
and procreation of children. Cancellation of marriage, however, is being a
drastic relief, the onus of proof lies heavily on the petitioner to prove the
case.

Clause (c) of sub-section (I) of section 5 deals with recurrent attacks of

insanity or epilepsy, as the ground for annulment of marriage, but again the
terms insanity or epilepsy have not been defined. Whether a person has in
fact been subject to recurrent attacks of insanity or epilepsy will have to be
ascertained by the court with the aid of medical opinion and other cogent
evidence.

3. Age of Majority of the parties.

The Hindu Marriage Act being a post independence statute passed in the
background of equality, gender justice and reformation, had to, pave for,
such policy and procedure eliminating thereby, all types of unjust rituals,
irrational practices and ill founded dogmas. The social evil of child marriage
being largely prevalent, had to be eradicated as a sequel to these
reformations. In 1929, an attempt was made to prescribe 15 as the maximum
age for girls and 18 for the boys. However, in 1976 this condition was
modified and marriage age was raised to 18 and 21 respectively.

Though the Act prescribes a minimum age as one of the conditions for a
marriage (under section 5(iii) the bridegroom should have complete the age
of 21 years and the bridge, the age of 18 at the time of marriage), marriage
in breach of this provision is neither void nor voidable. It is only punishable
under section 18 of the Act and under the Child Marriage Restraint Act,
1929 as amended in 1978. In three cases namely (V. Mallikarjunaiah v. H.C.
Gowramma, AIR 1997 Kant. 77; Gajar Naran Bhura v. Kanbi Kunverbai
Partab, AIR 1997 Guj. 187; Harvinder Kaur v. Gursewak Singh, 1998 AIHC
1013), the issue of legal status of a non-age marriage was discussed. In
V.Mallikarjunaiaha the husband sought declaration of marriage as void on
the ground that he had not completed the age of 21 at the time of marriage
(he was 20 years, 1 month and 12 days old). The issue whether such
marriage was valid, void or voidable was discussed at great length. The trail
judge dismissed the husband's petition as it held that there was no cause of
action. In appeal, the arguments raised on behalf of the husband were that
section 11, which provides the grounds for void marriage, should be read
with section 5 and any marriage in breach of conditions laid down in section
5 should be declared as null and void. It was further contended that the law
should not be so interpreted as to defeat its provisions. On the other hand,
for the wife it was contended that the legislature specially excluded section 5
(iii) from the purview of section 11 (void marriage), section 12 (voidable
marriage) and section 13 (grounds for divorce) and this exclusion was
neither by accident nor by oversight, but deliberate. After detailed
arguments, the court came to the conclusion that the law does seek to
discourage marriage of underage boys and girls but not to the extent of
making them void or voidable. The socio cultural conditions of the society
and the consequences of invalidating such marriage, on the girls specially
were highlighted by the court. It observed:

Having regard to the strata in which such marriages were likely to take place
the legislature was cautious of the fact that such provision should not have
the result of rendering a large number of girls or young women virtually
unmarried or destitution. The only security that a girl or woman in such a
situation is entitled to is within the framework of the marriage and if that
marriage can be loosely undone or if it is not recognised by the law, it would
result in disastrous social consequences which is the only reason why this
section was specifically excluded from sections 11 to 12 of the Act. Though
such exclusion does not give a license for underage marriages since they are
punishable under section 18 of the Act, the court suggested that in view of
the rampancy of the practice, there is a need to provide for harsher penalties,
particularly for those responsible for this.
In Gajara Narain Bhura, the husband sought to defeat the wife's application
for maintenance on the ground that the marriage was in violation of the age
requirement prescribed by the Act and hence void. The trial court dismissed
the wife's claim but the lower appellate court granted her maintenance. In
second appeal, the Gujarat High Court held that child marriage by itself is
not invalid nor a nullity unless there has been fraud or force in the
solemnization of such marriage, in which case provisions of section 12 (i)(c)
of the Act would be attracted.
Similarly, in Harwinder Kaur, the wife filed an application for maintenance
under section 125 of the Cr.P.C. The husband alleged that the marriage had
been solemnised when the parties were infants and so the same being void
he was under no liability to maintain her. The court held that such marriage
was not void but only punishable. Reference was made to Lila Gupta v.
Laxmi Narain (AIR 1978 SC 1351), wherein the apex Court had observed
that every marriage solemnised in contravention of one or other condition
prescribed for valid marriage was not void.

4. Degrees of Prohibited Relationship.

Hindu Marriage Act, 1955 has, more or less, retained the traditional cobweb
of gotra relationship as degrees of prohibited relationships. Thus, the Act
clearly provides that any two persons who are major and not within the
prohibited degrees of relationship enumerated under section 3 of the Act,
shall be eligible for contracting a valid marriage. It may not be, out of place,
to make it clear that person/s mean the 'Hindu' as defined under the Act.
Now the question arises as to what does the term "degrees of prohibited
relationship” mean? Section 3(g) of the Act lays down that: Two persons are
said to be within the 'degrees of prohibited relationship: -
i. If one is a lineal ascendant of the other; or
ii. If one was the wife or husband of a lineal ascendant or descendant
of the other; or
iii. If one was the wife of the brother or of the father's or mother's
brother or of the grand-father's or grandmother's brother of the
other;
 iv. If the two are brother and sister, uncle and niece, aunt and nephew,
or children of sister and brother or of two brothers or of two sisters.

The above-prohibited relations include relationship through blood and

adoption. Blood relationship includes all of its three kinds, namely full, half
and uterine. It also includes illegitimate blood relation relationship. Any
marriage solemnised after the commencement of Hindu Marriage Act, 1955
shall be null and void if it contravenes the condition regarding "prohibited
degrees”. A person who procures a marriage of himself or herself in
contravention of this condition shall be punishable with simple
imprisonment which may extend to one month, with fine or with both.
However, if a custom permits a marraige between two persons within the
degrees of prohibited relationship, then such a marriage is valid. For
instance, among the jats of Punjab marriage with brother's widow and in
south India marriage with one's sister's daughter are recognised by custom.
Such marriages are valid under modern Hindu law also.

5. Spinda Relationship.

Another important condition for a valid marriage is that the parties should
not be spindas of each other, unless permitted under custom or usage
governing the parties. The term 'spinda' is a derivative of the word 'pinda'
which means the same. There is a divergence of opinion between two main
schools of Hindu law regarding the real meaning of the term ''spinda''.
According to Mitakshara law spinda means of the same blood so any one
who is having common blood shall be treated to be a spinda. As against this
Dayabhaga law treats spinda as an offering made to ancestors and thereby
demonstrate nearness to their ancestors by performing pindadhaan. While as
Mitakshara jurists have limited the spinda relationship upto 7th degree on
the fathers’ side and 5th degree on mother's side. The Dayabhaga law
recognizes only 6 ancestors on father's side and four on the mother’s side,
constituting the spindas. The Hindu Marriages Act has made suitable
changes in the classical approach by limiting the spinda relationship by two
degrees on either side.
Section 3(f) defines ‘spinda relationship’ as under:
i. Spinda relationship with reference to any person extends as far as the
third generation (inclusive)in the line of ascent through the mother,
and fifth(inclusive) in the line of ascent through the father, the line
being traced upwards in each case from the person concerned who is
to be counted as the first generation.
ii. Two persons are said to be spindas of each other if one is a lineal
ascendant of the other within the limits of sapinda relationship, or if
they have a common lineal ascendant that is within the limits of
sapinda relationship with reference to each of them.
Any marriage solemnised after the commencement of Hindu Marriage Act,
1955 shall be null and void if it contravenes the 'sapinda relationship''
condition and any person who procures a marriage of himself or herself shall
be punished with simple imprisonment which may extend to one month, or
with fine or with both.

6. Consent of Guardian of a minor.

Where the bride has not completed the age of eighteen years, the consent of
her guardian has to be obtained ,before the solemnization of the marriage.
This provision has almost become redundant in view of the fact that after the
enactment of the Child Marriage Restraint Act, no minor can be given in
marriage without his or her consent and before attaining the age of majority
stipulated thereunder.

Ceremonies for Hindu Marriage

Section 7 of the Hindu Marriage Act, 1955 provides:
1. A Hindu marriage may be solemnized in accordance with the
customary rites and ceremonies of either party thereto.
2. Where such rites and ceremonies include the Saptapadi i.e., 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.
The Act makes it obligatory for the parties to solemnize their marriage. The
word 'may’ gives an option, only regarding the kind of ceremony with which
the marriage is to be solemnized. The courts have all along taken the view
that necessary ceremonies as applicable to the parties ought to be performed
to validate a marriage. In Laxman Singh v. Keshar Bai (AIR 1966 MP),it
was observed that necessary ceremonies, shastric or customary, whichever
are prevalent on the side of bride or bridegroom, must be performed,
otherwise marriage will not be valid.

Conclusion
The marriage amongst Hindu's in terms of classical approach is a pure
religious and a sacramental affair. Thus, the matters regarding which
provision has been made in the Act are no more governed by old Hindu law.
However, the Matters regarding which no provision has been made in the
Act and which are not inconsistent therewith will continue to be governed by
the old Hindu Law in force immediately before the commencement of the
Act. The enactment brought uniformity of law for all sections of Hindus.