Concept of Marriage under Hindu Marriage Act

Section 2 of the Hindu Marriage Act 1955 states that this act applies to any person who is a Hindu by birth or who has changed his/her religion to either any of its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. ^[1] Any person who is a Buddhist, Jain, or Sikh also comes under this act. It also applies to any person living outside this territory except who is a Muslim, Christan, Parsi, or Jew by religion or it is proved that such person is being governed by Hindu law. It is believed that it is the strongest bond between husband and wife. It is an unbreakable bond that remains even after death. The importance of marriage is not to the extent of one generation but it is an in-depth belief of Hinduism. Without a wife, a person is considered incomplete while performing any rites of Hinduism. It is very important to perform all the rites with the wife.

Hindu marriage is “a non-secular sacrament in which a man and a woman are sure in a permanent relationship for the physical, social and religious need of dharma, procreation and sexual pleasure.” 

There are three traits of the sacramental nature of marriage: 

1.It is an enduring bond of the husband and spouse which is permanent and tied even after dying and they will stay together after the death. 

2.Once it is tied cannot be untied. 

3.It is a spiritual and holy union of the bride and groom which is imperative to be carried out by means of religious ceremonies and rites. 

Hindu marriage is regarded as one of the most essential sacraments. In ancient times, there was once no want for the girls’ consent. Fathers have to determine the boy barring asking for her advice or consent. It is the sole obligation of the father to discover a suitable boy. If the man or woman was of unsound thinking or minor at the time of the marriage, it was not considered as a void marriage. But in the existing world, consent and intellectual soundness of the man or woman are a very essential phase of the Hindu Marriage, besides the absence of any such element marriage will be annulled or void or no felony entity.

Section 12 of the Hindu Marriage Act 1955 lays down that when one’s consent is not obtained; the marriage is considered void. It shows that despite the absence of consent of the bride, the marriage is valid and legal. ^[2]

The nature of modern marriage is contractual. Thus, it accepts the idea of equality and liberty. It has been adopted due to western Ideas. There must be an agreement of voluntarily entering into it by both parties.

Thus, the Hindu marriage is not a contract and neither is it a sacrament. But it can be said it is a semblance of both.

Conditions for validity of a Hindu Marriage 

Section 5 A valid marriage shall be solemnized between two Hindus if the following conditions are fulfilled:^[3]

Any person doesn’t have a spouse living at the time of the marriage. According to the Hindu Marriage Act, it is not permissible to have two living wives at the same point in time, which amounts to bigamy. It is punishable under Section 494 of the Indian Penal Code.

The groom shall attain the age of 21 and the bride attains the age of 18. It is necessary at the time of marriage the person shall attain the specified age given in this Act.

The consent shall not be given by coercion or threat. In the modern world, a father can’t get the girl married to any without a girl’s consent. Marriage will be void. 

They don’t fall under the Sapinda relationship, or within the degree of prohibited relationship unless it is allowed by their custom or tradition.

The person shall be not suffering from any insanity or mental disorder at the time of the marriage.

Essential elements of Section 5

Condition of monogamy

Section 5 (i) of the Hindu marriage act 1955 states that at the time of the marriage a person should not have a living spouse. It is not permissible in Shastri law to have two married women at a point in time. It is also punishable under the Indian penal code 1955.  (Veeraswami v. Appaswami,(1863)1 Mad.HC 231)[4]

Bigamy

Bigamy amounts to having two living wives at the same time which is illegal in Hindu law; without finalizing the divorce from the first marriage, a person can’t marry someone else. The first one will be considered a legal marriage. The provision of section 494 and 495 of the Indian Penal Code 1860 will be applicable to the person performing the second marriage after already having a living husband and wife.

Conditions regarding mental health or capacity

Section 5 (ii) (a),(b),(c) Hindu marriage Act 1955 discusses the condition of valid of Hindu marriage related to mental health or capacity of the person; if a person is suffering from unsoundness of mind at the time of marriage, Marriage will be considered as void. It is necessary that a person shall be capable of giving valid consent at the time of the marriage. (Smt. Kiran Bala v. Bhairav Pd.,AIR 1982 All) [5]

Condition for marriageable age

• Section 5 (iii) of the Hindu Marriage Act 1955 states that the bridegroom has completed the age of twenty-one and the bride has completed the age of eighteen years at the time of the marriage. If the person has not attained given in section 5 (iii) the marriage will be void it has no legal status. ( Smt. Naumi v.Narottam,1963 HP 15 and  Mohinder kaur v. Major Sigh ,AIR  1972 P & H 184)[6]

Sapinda relationship

All prohibited relationships are Sapinda but all Sapinda relationships are not prohibited relationships. Sapinda relationship is the chain of all the relationship from the side of the brother and sister in the family; they can’t marry each other due to prohibited relationship and also their generation till three generations from the girl side and five-generation from the boy side, till that they all are in Sapinda relationship. Avoidance of Sapinda can be achieved as the girl reaches the fourth generation and boy (brother) reaches the sixth generation after that both families can have a marriage that will be neither prohibited relationship nor Sapinda relationship.(Ravindra Nath v. State 1969 Cal.55).

Registration of Marriage (Section 8)

Section 8 states that:

The state government is facilitating the provision as a proof to Hindu so that the person comes into a valid marriage with the prescribed manner.^[7]

All the rules made in this section shall be laid before the state legislature as soon as May.

Hindu marriage registrar has all the powers and reasonable time open for the inspection and collects evidence and certified them after the payment of a prescribed fee. 

Void Marriages (Section 11)

Section 11 of the Hindu Marriage Act 1996 states that any marriage solemnized after the commencement of the Hindu Marriage Act 1955, if it contravenes any of the provisions of this act, the marriage will be void. ^[8] The marriage will have not any legal entity nor will it be enforceable.

Voidable Marriages (Section 12)

Any marriage solemnized after or before the commencement of this will be voidable on the following grounds:

No sexual intercourse has been done after the marriage due to the impotence of the Husband.

Marriage is in contravention of Section 5 (ii) of this Act which states that the bride shall attain the age of 18 and the groom shall attain the age of 21.

There shall be a consent of the bride.

If the husband has pregnant another woman other than the wife.

The wife has filed a request for annulling the marriage.

 Ceremonies To Be Performed by Hindu Marriage 

Marriage in the Hindu religion is a sacred tie performed by certain ceremonies and rites which are necessary for a valid marriage. There are three important stages wherein certain ceremonies are to be performed.

Sagai – Hindu engagement is an necessary pre-wedding ritual in Indian culture, it is a kind of tradition in which the bride and groom come face to face and are engaged with a religious bond through each other’s families. The Hindu subculture of “Vagdanam” dates again to Vedic duration the place the groom’s father offers their phrases to the bride’s father that they will accept their daughter and will be accountable for their future wellbeing. There are a number terms which are used instead of engagement in specific locations like Mangi, Sagai, Ashirbad, Nishchayam etc. 

 Kanyadan– The phrase kanyadan consists of two words- Kanya which is maiden or girl and daan which ability donation. It is the donation of a girl. It is an age-old culture the place the bride’s father affords his daughter to the groom, giving him accountability for her future wellbeing. It is an emotional and sentimental weighted down ritual which acknowledges the sacrifice a father makes in order to make certain her daughter’s happiness. It is observed till now from the Vedic times. It is a necessary part of usual Hindu marriage.

Saptapadi– saptapadi is a very necessary and essential factor of a common Hindu marriage. It is an exercise which is undertaken via the bride and groom in front of the furnace god, where couples go around the sacred furnace seven times while reciting sure vows. This movement is also known as phera. Fire or Agni is considered noticeably sacred in the Hindu religion, vows taken in front of the Agni are unbreakable. The god of fire, Agni deva is considered to be a witness to be solemnization of the marriage as well as a representative of the supreme being to provide his blessing to the newlywed couple. Section 7 of the Hindu marriage act 1955 states the solemnization of the Hindu marriage, a Hindu marriage may be performed by means of all the ceremonies and rituals of each the party or either anyone. It is involved with the Saptapadi which skill that taking seven rounds around the fire with their partner; after its completion, marriage becomes complete.

Conclusion       

This article discusses the idea of Hindu marriage and all about marriage as a sacrament or contract. So, it can be concluded that that though Hindu marriage has some of the elements of a contract however it is not in basic terms a contract. it is more of sacrament as a Hindu marriage is a holy and everlasting union of two bodies. According to this, husband and wife are united to each other now not merely in this lifestyle however even after death, in the different word. The rule is that ”once is a maiden given in the marriage a proper spouse must hold the chastity as a good deal some distance the as a great deal after as earlier than her husband’s death”

[1] https://indiankanoon.org/doc/590166/

[2] https://indiankanoon.org/doc/590166/

[3] https://indiankanoon.org/doc/590166/

[4] https://www.prolawctor.com

[5] https://www.prolawctor.com

[6] https://www.prolawctor.com

[7] https://indiankanoon.org/doc/590166/

[8] https://indiankanoon.org/doc/590166/

Author Details: Sanchita Rajdev [Student, Law college Durgapur]