The Hindu Marriage Act,1955 | Family Law - CLAT PG PDF Download

Introduction 

• Marriage in Anglo-Saxon society was a means to forge  strategic alliances  between two empires.
• According to  Stephanie Coontz  , marriage was a way to establish  peaceful and trading relationships  and mutual obligations.
• Marriage was often based on the  king's will  and his desire to acquire  property  , rather than the consent of the woman.
•  Divorce  was difficult and rare before 1858, with couples often living in  misery  rather than separating. Changes in laws in India and other countries eventually opened the doors for divorce

Law Prior to Hindu Marriage 

Rig Veda highlighted the sacred character of marriage as a religious sanction for fulfilling religious and secular obligations .Hindu Law views marriage as a Sanskara , a sacrament essential for regeneration , and is the last of the ten sacraments mandated for Hindus who do not choose the life of a Sanyasi.
A significant drawback in existing laws was the allowance for a Hindu to take another wife while having a living wife. This, along with other rules regarding valid marriage conditions, necessitated substantial changes in marriage law. The need for codification of marriage and succession laws had become virtually indispensable.

1. Hindu Law  did not permit divorce except in certain lower social strata communities where it was allowed by custom. There was strong sentiment against any divorce provisions in the new legislation being formulated. Interestingly, some smritikaras, though not addressing divorce in the contemporary sense, indicated circumstances under which a woman could remarry. The famous test of  Narada  allowed a woman to take a second husband under five calamities: if the husband was missing, dead, retired from the world, impotent, or degraded.

2. Marriage  , whether viewed as a sacrament or a contract, confers the statuses of husband and wife on the parties involved and legitimacy on their children. For a valid marriage in most legal systems, two conditions are necessary:

•  Capacity to Marry:  The parties must have the legal capacity to marry.
•  Ceremonies and Rites:  The parties must undergo the necessary ceremonies and rites of marriage.

Even today, most legal systems insist on the performance of some form of marriage ceremonies, whether religious or secular, elaborate or simple.
In ancient Hindu law, eight forms of marriage were recognized, of which only three were considered valid before 1955: Brahma, Gandharva, and Asura.
The Hindu Marriage Act  1955  has refined and simplified the institution of marriage. It does not specify any particular form of marriage but recognizes marriage solemnized under the Act as a Hindu Marriage, which may be conducted in accordance with  Shastra  rites and ceremonies or the customs prevailing in the community of either the bride or the bridegroom.

Forms of Hindu Marriage

The Hindu scriptures acknowledge the following eight forms of marriage:

1. Brahma Marriage: 

• In Brahma marriage, a girl adorned with clothing and ornaments is given in marriage to a learned and gentle bridegroom. This form of marriage is prevalent in contemporary Hindu society.

2. Prajapatya Marriage: 

• In Prajapatya marriage, the daughter is offered to the bridegroom with blessings for the enjoyment of marital bliss and the fulfillment of dharma.

3. Aarsh Marriage: 

• Aarsh marriage involves a rishi accepting a girl in marriage after providing a cow or bull and some clothes to the girl's parents. These items were not the price of the bride but signified the rishi's commitment to a household life. According to P.K. Acharya, the term "aarsh" is derived from "rishi."

4. Daiva Marriage: 

• In Daiva marriage, a girl adorned with ornaments and clothing is offered to the person who performs the role of a Purohit in the yajna.

5. Asura Marriage: 

• In Asura marriage, the bridegroom acquires the bride in exchange for money or articles given to the bride's family members. This type of marriage was exemplified in the case of Pandu marrying Madri.

6. Gandharva Marriage: 

• Gandharva marriage arises from the mutual affection and love between the bride and bridegroom. An example of this type of marriage is the union of King Dushyanta and Shakuntala. In Gandharva marriage, the ceremonies can be performed after a sexual relationship between the bride and bridegroom. The Taittiriya Samhita notes that this type of marriage is named after its prevalence among the Gandharvas.

7. Rakshas Marriage: 

• Rakshas marriage was common in an era when women were considered prizes of war. In this type of marriage, the bridegroom forcibly takes the bride from her home, often after harming her relatives.

8. Paisach Marriage: 

• Paisach marriage is considered the most degenerate form. It involves a man entering into a sexual relationship with a sleeping, drunk, or unconscious woman. Such acts were legitimized after a marriage ceremony, which occurred post the physical relationship between the man and woman.

Changes Brought by Hindu Marriage Act, 1955 

The passing of the  Hindu Marriage Act  in 1955 significantly transformed the institution of marriage as recognized by ancient Hindu law. The Act introduced several radical changes, including:

• 1. The Act recognizes marriages among  Hindus, Jains, Sikhs, and Buddhists  as valid Hindu marriages in the eyes of the law.
• 2. It abolishes the distinction between the  Mitakshara and Dayabhaga Schools  regarding prohibited degrees of relationship for Hindu marriage.
• 3. The Act introduces  monogamy  among Hindus for the first time and prescribes punishment for bigamy under the Indian Penal Code.
• 4. It eliminates the distinction between the marriage of a  maiden and that of a widow  .
• 5. The Act sets the  minimum age for marriage  at 21 for boys and 18 for girls, a requirement absent in ancient Hindu law.
• 6. It does not endorse any specific form of the eight ancient forms of Hindu marriage but establishes conditions for a valid Hindu marriage.
• 7. The Act does not mandate any particular ceremony for a valid Hindu marriage, allowing it to be solemnized according to the customary rites and ceremonies of either party.
• 8. For the first time, the Act provides for the  registration of Hindu marriages  .
• 9. It includes provisions for  restitution of conjugal rights  , grounds for judicial separation, divorce, and re-marriage.
• 10. The Act addresses  maintenance  ,  alimony  ,  custody of children  , and legal proceedings.

Essentials of Valid Hindu Marriage

Section 5 of the Hindu Marriage Act, 1955 outlines the essential conditions for a valid Hindu marriage.

Monogamous Relationship 

• As per Section 5(i) of the Hindu Marriage Act, a valid Hindu marriage requires that neither party should have a living spouse at the time of marriage.
• Section 5(i) should be read with Sections 11 and 17 of the Hindu Marriage Act, which address the issue of bigamy.
• Bigamy is considered an offense under Section 494 of the Indian Penal Code.

Sarla Mudgal vs. Union of India 

Key Questions: 

• Can a Hindu husband, married under Hindu law, solemnize a second marriage by converting to Islam?
• Would such a marriage be valid concerning the first wife, who remains a Hindu, if the first marriage is not legally dissolved?
• Would the husband be guilty of bigamy under Section 494 of the IPC?

Petitioners' Argument: 

• The petitioners argued that the respondents converted to Islam to evade the bigamy laws under Section 494 IPC and to facilitate a second marriage.

Respondents' Argument: 

• The respondents claimed that upon converting to Islam, they were entitled to have four wives, despite the first wife remaining a Hindu.
• They argued that they were not bound by the Hindu Marriage Act, 1955, and IPC.

Court's Decision:  The court ruled that a Hindu who converts to Islam cannot validly enter into a second marriage without dissolving the first marriage, regardless of the allowance of polygamy in Islamic law.

Free Consent 

• Section 5(ii) of the Hindu Marriage Act stipulates that both parties must be capable of giving free and valid consent at the time of marriage. Factors such as unsoundness of mind, mental disorder, or insanity can affect this capability.
• Free consent is a crucial element in a Hindu marriage. If a marriage is conducted in violation of this condition, it is not automatically void but voidable under Section 12(1)(b) of the Act.

Age 

• According to Section 5(iii) of the Hindu Marriage Act, the minimum age for the male party is 21 years and for the female party is 18 years at the time of marriage.
• If the age requirement is violated, the marriage is not void but voidable at the instance of the minor when they reach the age of majority.
• Violation of this condition is punishable under Section 18(a) of the Act with simple imprisonment for up to fifteen days, or with a fine, or both.

Prohibited Relationship 

• As per Section 5(iv) of the Hindu Marriage Act, neither party should fall within the degrees of prohibited relationship unless such a union is permitted by custom or usage.
• A marriage solemnized within the prohibited degrees of relationship is void under Section 11 of the Act and is punishable under Section 18(b) with simple imprisonment for up to one month, or with a fine, or both.
• If a custom allows such a marriage, it must be a valid custom as per Section 3(a) of the Hindu Marriage Act. Marriages within degrees of prohibited relationship become legal and valid only if there exists a valid custom.

Sapinda Relationship 

• According to Section 3(f)(ii) of the Hindu Marriage Act, two individuals are considered "sapindas" of each other if one is a lineal descendant of the other within the limits of sapinda relationship, or if they share a common lineal ancestor within the limits of sapinda relationship.
• Sapinda marriages are prohibited and subject to punishment under Section 18(b), unless such unions are allowed by custom or usage. Therefore, marriages between individuals related by blood are void.

Some Other Essential Provisions for a Hindu Marriage  

Solemnization of Marriage 

• According to Section 7 of the Hindu Marriage Act, 1955, a Hindu marriage may be solemnized by the ceremonies and rituals of either party or both.
• The key ceremony is  Saptapadi  , which involves taking seven rounds around the sacred fire, making the marriage complete and binding.
• Other ways to solemnize include:  Declaration of intent  in any understood language,  Exchanging rings  ,  Tying the Thali  .
• A marriage is valid if performed according to the customary ceremonies of either or both parties. Children born after such a marriage are legitimate. The marriage is not dissolved by the birth of a child before marriage.
• It is the father's duty to raise his daughter, find a suitable husband for her, and perform  Kanyadan  . The girl leaves her family (gotra) and joins her husband's family (gotra), creating an unbreakable bond passed down through generations. This bond is considered a sacrament, not a contract.

 Ceremonies to be Performed in a Hindu Marriage 

•  Sagai:  Hindu engagement is a significant pre-wedding ritual where the bride and groom are formally engaged with the consent of their families. This tradition, known as  "Vagdanam,"  has its roots in the Vedic period. The groom's family commits to taking care of the bride's future well-being. Different regions have various terms for engagement, such as Mangi, Sagai, Ashirbad, Nishchayam, etc.
•  Kanyadan:  Kanyadan, meaning the donation of a girl, is a timeless tradition where the bride's father presents his daughter to the groom, entrusting him with her future welfare. This emotional ritual acknowledges the father's sacrifice to ensure his daughter's happiness and has been practiced since Vedic times. It remains a vital part of traditional Hindu marriages.
•  Saptapadi:  Saptapadi, or the seven steps around the sacred fire, is a crucial aspect of Hindu marriage. The bride and groom make seven rounds around the fire, reciting vows in front of the fire god, Agni. This act, also known as phera, symbolizes the unbreakable vows taken in the presence of Agni, who witnesses the marriage and represents the supreme being. Section 7 of the Hindu Marriage Act, 1955, emphasizes the importance of Saptapadi in the solemnization of Hindu marriages.

 Hanmuniya v. Virendra Kumar Singh Kushwaha 

• According to Section 7 of the Hindu Marriage Act, 1955, a marriage performed without the customary rites and ceremonies of either party is invalid.
• Simply intending to live together as husband and wife is insufficient to establish a valid marriage.
• The term "wife" in Section 125 of the Code should be interpreted to mean only a legally wedded wife, excluding women not lawfully married.