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Conditions of Hindu Marriage

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

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Conditions of Hindu Marriage

Marriage is an exclusive and sacramental union. Before the 1955 era, it was not so easy to get divorced from a Hindu person. Because as per Hindu Religion, the marriage considered as a pious knot. So we cannot find any provision for Divorce in uncodified Hindu Law that is known as, Shashtras, Puranas, Ved and other religious or holy books related to Hindu Religion.

Hindus refined the institution of marriage and idealised it. In this process, they have laid down detailed rules covering practically all aspects of marriage. Under old Hindu law, the conditions required for a valid marriage were strict and elaborate. The legislature has modified the requirements by making various legislative enactments. Now the conditions are altered, liberalised or removed.

Considering various stigmas in the social life of the Hindu, the parliament decided to enact laws related to the Hindu. However, it was a difficult task to do so. The Hindu Marriage Act, 1955 revolves around the valid marriage between the Hindu, Valid rites of Hindu marriage, provisions for maintenance and divorce.

The Hindu Marriage Act, 1955 has simplified the law of marriage. The Hindu Marriage Act, 1955 does not prescribe any particular form of marriage. It merely lays down the conditions for a valid marriage. Now, the performance of marriage by the customary ceremonies prevalent in the community to which, the parties belong is necessary to render the marriage valid.

Conditions of marriage

The Hindu Marriage Act, 1955 have considerably modified the shastric conditions mentioned in Yajnavalkya smriti. Under old Hindu law, three conditions were mandatory for a valid marriage. The identity of caste between parties. i.e., the parties should belong to the same caste, unless sanctioned by custom. Parties to be beyond the prohibited degrees of relationship. i.e., were not of the same gotra or pravara and were not the sapinda of each other.

 

Proper performance of ceremonies of marriage

From Vedic period, though monogamy has been the rule, polygamy as an exception, existed side by side. The laws relating to ‘anuloma’ marriages allowed a man more than one wife. However, the wife who was first wedded was alone the wife in the fullest sense. Manu allowed a second marriage to a man only after the death of his wife. However, under certain circumstances, he allowed a second wife.

Hindu Marriage Act, 1955 prohibits polygamy & polyandry. Sec.5 of Hindu Marriage Act, 1955 provides that “neither party has a spouse living at the time of marriage” This clause strictly enforces monogamy and prohibits polygamy and polyandry.

Section 17 of the Hindu Marriage Act makes it a penal offence for both Hindu males and females under Sections 494 and 495 I.P.C.

Polygamy permits a man to have more than one wife simultaneously.

* Polyandry allows a woman to have more than one husband simultaneously.

The second condition of a valid marriage requires that the parties to the marriage are of sound mind and are not suffering from any mental disability to be unfit for giving valid consent. The Hindu Marriage Act, 1955 originally laid down that neither party to the marriage should be an idiot or lunatic. Under this Act, the union of the idiot or lunatic was only voidable.

Soundness of mind

Section 5(ii) of the Hindu Marriage Act, 1955 laid down that: “Neither party to the marriage should be an idiot or lunatic at the time of marriage”. Every kind of ‘unsoundness of mind’ is not covered. The unsoundness of mind should be such, which incapacitates a person from giving a valid consent to the marriage. It need not be persistent or continuous unsoundness of mind. It may exist just before the wedding.

The Marriage Laws (Amendment) Act, 1999 has omitted epilepsy. Thus now there is no condition of the marriage that a party to a marriage should not suffer from ‘recurrent attacks of epilepsy. The Hindu Marriage Act, 1955 makes “free consent” a necessary element of a valid Hindu marriage.

Age

Under Section 5 (iii) of the Hindu Marriage Act, 1955 the minimum age at the time of marriage for the girl is 18 and 21 for the boy. The Shastric law does not lay down any age for marriage.

Child Marriage Restraint Act, 1929: (Sarda Act): The Act of 1929 enacted by the efforts of Rai Saheb Harbilas Sarda for the object of checking the evil of the child marriage. In this enactment, it laid down that at the time of marriage, the bride must have completed 14 years and the bridegroom 18 years.

Later on, by an amendment, the marriageable age of girls was raised to 15 years. A boy or a girl younger than this was declared a “child” and child marriage was made punishable. Nevertheless, it was a valid marriage. The Sarda Act, 1929 was enacted with a modest purpose in view. It does not purport to prohibit child marriages; it merely wants to restrain them.

A new Act, i.e. Prohibition of Child Marriage Act, 2006 has replaced the 1929 Act. According to that Act, the minimum age for the bride is 18 years at the time of marriage, and for the bridegroom, it is 21 years.

Whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he had reasons to believe that the marriage was not a child marriage.

Every child marriage whether solemnised before or after the commencement of this Act shall be voidable at the option of the contracting party who was a child at the time of the marriage.

Prohibited degrees of relationship

Section 3, cl. (g) And Sec.5 (iv) of the Hindu Marriage Act, 1955 deals with prohibited degrees of relationship. Section 5, cl. ( iv) prohibits marriage between persons who are within the prohibited degrees of relationship with each other.

According to Section 3(g), two persons are said to be within the degrees of prohibited relationship:

  • If one is a lineal ascendant of the other; or
  • If one was the wife or husband of a lineal ascendant or descendant of the other; or
  • If one was the wife of the brother or the father’s or mother’s brother or the grand father’s or grand mother’s brother or the other; or
  • If the two are brother and sister, uncle and niece, aunt and nephew or children of brother and sister or of two brothers or two sisters.
  • However, if the “custom” or “usage” governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship, then such union will be valid and binding.
shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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