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Does Hindu marriage sacrament or contract

Shivendra Pratap Singh

Advocate

31/07/2015

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Does Hindu marriage sacramental or contract? It is now subject of debate that Hindu marriage became a contract or still sacrament. We are living in a new era which is the result of the industrial revolution, the most significant contribution of the industrial revolution is the emergence of the concept of that all human and social relations must be based on the free volition of the individual.

Marriage is the highest social relationship of a human being. People demanded that this relationship too must be squarely based on the free volition of the individual. Section 5 and 12 of the Hindu Marriage Act, are the pertinent provisions to determine whether Hindu marriage is sacrament or contract.

Clause 2 of section 5 enumerates that: A marriage may be solemnized between any two Hindus if the following conditions are fulfilled, if at the time of the wedding, neither party.

  • Incapable of giving a valid consent to it in consequence of unsoundness of mind; or
  • Though capable of giving 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
  • Has been subject to recurrent attacks of insanity.

Clause 3 enumerates that the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage.

Section 12 of Hindu Marriage Act enumerates that: Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity in the ground that the marriage is in contravention of the condition specified in clause 2 of section 5.

So the above provisions laid down that parties to the marriage should be sound mind, capable of giving valid consent, attained stipulates age and must capable of understanding the purpose of marriage. According to section 11 of the Indian Contract Act above mentioned conditions are necessary for a valid contract. In the absence of these elements, the contract becomes void.

However, section 12 of the Hindu Marriage Act render the marriage voidable. We can say that although consent is necessary for the valid marriage; therefore in the absence of consent, marriage becomes voidable. Hence, a party to the marriage can treat their marriage as a valid marriage. Eventually, Hindu Marriage is sacramental. However, there is some element of the contract.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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