Brief of Hindu Marriage Act 1955 Richa Shukla BASICS OF LAW Mon, Feb 15, 2021, at ,04:09 PM Introduction - The Hindu Marriage Act 1955 was passed on 18 May 1955. The Act applies to Hindus. There is no precise definition of the term Hindu' available in any statute. However, since Hindu applies to all those persons who are Hindus it is necessary to know who Hindus are. This act is only applicable for any person who is Hindu, Jain, Sikh and Buddhists and not for particularly Muslims, Christians, Parsis and Jews who are being governed by some other law. This law is only applicable for the person who is a Hindu by birth or Hindu by religion. Hindu as is propounded is not a religion like Christianity and Islam. Anyone born in India is automatically a Hindu (the ethnicity fallacy). Neither the Vedas nor the epics such as Mahabharata and Ramayana mention any religion as Hinduism. People who lived on the either side of Sindhu River were called as Hindus. The actual term Hindu first occured as a Persian geographical term for the people who lived beyond the river Indus (Sanskrit: Sindhu). The term Hindu then was a geographical term and did not refer to a religion. Ø Section 2:The persons to whom Hindu law applies may be put in the following three categories-Any person who is a Hindu, Jain, Sikh, or Buddhist by religion i.e, Hindus by religionØ Any person who is born of Hindu parents (viz., when both the parents or one of the Parents is a Hindu, Jain, Sikh or Buddhist by religion) ie Hindus by birth, andØ Any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by Any other law.As per the Explanation appended to the section, the following persons are Hindus, Buddhists, Jains, or Sikhs by religion;· Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas by religion Any old, legitimate, or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or Family to which such parent belongs or belonged; and· Any person who is converted or reconvert to the Hindu. Buddhist, Jaina, or Sikh religion. Concept of Hindu Marriage: Sacrament or Contract-Hindus have always considered their marriage as a sacrament (sanskara), which implies that it is permanent, indissoluble (i.e. Valid not merely in this life but in lives to come), and holy (i.e. performance of religious ceremonies is essential), Wife is also ardhangini (half of man) to her husband.According to Satpatha Brahmana, "The wife is verily the half of the husband. Man is only half not complete until he marries." A Hindu marriage is different to a Muslim Marriage 'which only requires an offer and acceptance. Further, unlike Muslim marriage law, the only purpose of a Hindu marriage is not to beget children and get them legitimated; it is a holy union to perform religious duties. In a Marriage among the Hindus, a man and a woman are believed to come together as a husband and wife primarily for spiritual reasons rather than sexual or material, although they may not be mentally aware of the fact. Once married, the couples are expected to carry out their respective traditional duties as householders and upholders of family traditions and work for the material and spiritual welfare of each other, the members of their family and also society. Hindu marriage is sacramental and hence at times the conditions laid down in the law are not fulfilled yet it is a valid marriage.Section 7- Ceremonies for a Hindu marriage. Ø A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.Ø Where such rites and ceremonies include the saptpadi (that is, the 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 Thus according to section 7 of the HMA 1955, a marriage may be solemnized by the customary rites or ceremonies of either party thereto- · The Shastri ceremonies and rites as prescribed by Hindu Law· The customary ceremony and rites which prevail in the caste or community to which one of the parties (or both) belongs.Section 4 is of vital importance and gives an overriding effect to the provisions of the Act. It abrogates all rules of the law of marriage thereto applicable to Hindus, whether by virtue of any text or law, in respect of all matters dealt within the Act. Another section is section 29 which states that nothing contained in the Act is to be deemed to affect any right recognized by custom or conferred by any special enactment to the same. The merely wearing mangalsutra or sindoor on forehead does not constitute legally accepted marriage, if other rites like saptapadi before holy fire were not performed. But Homa or Kanyadhan is not obligatory in Hindu marriage Act. A clear proof of usage outweighs the written text on the ceremonies of marriage among the Hindus. Ø Result of Non-performance of Necessary Rites and CeremoniesA marriage without requisite ceremonies is null and void. Necessary ceremonies, shastric Customary, whichever are prevalent on the side of the bride of bridegroom must be performed; otherwise the marriage will not be valid. For instance, if a Jain and a Sikh marry, it is necessary That either the saptpadi (which is a Jain ceremony) or the Anand Karaj (which is a Sikh ceremony) must be performed, otherwise the marriage will not be valid. The performance of necessary ceremonies is a vital question in bigamy case. On failure to prove that necessary ceremonies were performed, prosecution for bigamy cannot succeed. In Dr. N.A. Mukherji v. State, AIR 1969 All 489, a physician was prosecuted for bigamy. It was alleged that three ceremonies of marriage at three different times were performed; one was the moon ceremony, second ceremony was of exchange of garlands in the Kali temple after walking seven steps, an imitation of saptpadi and the third ceremony was performed before the Guru Granth Sahib, an imitation of Sikh Ceremony, since the woman was Sikh. The court held that performance of such mock ceremonies of marriage does not constitute valid ceremonies and therefore, the prosecution for bigamy failed. Two-person cannot be husband and wife by just intending to be living as husband and wife, if they do not perform the necessary ceremonies. Presumption of MarriageSection 114 of the Indian Evidence Act, 1872 lays down that where independent evidence of solemnization of marriage is not available, it will be presumed to be a valid marriage by continuous. Cohabitation between the parties unless contrary is proved. It is the policy of law to lean in favour of validity of marriage; once it is proved that it has existed de facto. If a community of neighbors treat a couple as husband and wife, they are thus reputed to be married, the burden of proof that they are not properly married lies on the party asserting so. The presumption does not apply to Cases of restitution of conjugal rights and bigamy where the solemnization of marriage, as a fact, has to be proved.Section 5– Conditions for a Hindu marriageA marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely- I. Neither party has a spouse living at the time of the marriage; II. at the time of the marriage, neither party-· is incapable of giving a valid consent to it in consequence of unsoundness of mind; or though capable of giving a 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;· the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;· the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;· The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. BIGAMY-SECTION 5 (i)The Hindu Marriage Act, 1955 only permits monogamy. A person who re-marries during the life-time of his or her spouse, provided that the first marriage is not null and void, commits the offence of Bigamy. Bigamy includes both polygamy and polyandry. Polygamy denotes a male to have more than one wife simultaneously. Section 11 of the Hindu Marriage Act, 1955 makes a bigamous marriage void and Section 17 makes it a penal offence, punishable under Sections 494 & 495 of the Indian Penal Code, 1860.Section 17. Punishment of bigamy.—Any marriage between two Hindus (including Buddhist, Jaina or Sikh) solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly.Classification of OffenceThe offence of Bigamy is non-cognizable (except in State of Andhra Pradesh). Also, the offence is bailable (except in the State of Andhra Pradesh). Ø Landmark Judgments- A. Bhaurao v. State of Maharashtra, AIR 1965 SC 1364, The Supreme Court held that essential ceremonies of Hindu Marriage are: (a) invocation before the sacred fire, and (b) saptpadi. These ceremonies can be dispensed with effect only if the custom permits, and the custom itself must be cogently established. In this case, the appellant was alleged to have committed bigamy. The case of the prosecution was that the second marriage was duly performed in accordance with the customary rites prevalent in the community of the appellant for gandharva form of marriage and that, therefore, the second marriage of the appellant was valid. It was urged for the appellants that the essential ceremonies for a valid marriage are not performed so the second marriage was not valid.B. Sarla Madgal v. Union of India, AIR 1995 SC 1531 The Supreme Court held that, the second marriage would be invalid because unless and until the first marriage is dissolved by a decree under the Hindu Marriage Act 1955, the second marriage during subsistence of the first one would be in violation of the Hindu Marriage Act which strictly professes Monogamy. Such a marriage would amount to bigamy punishable under Section 494 IPC. It further observed that a marriage performed under this Act cannot be dissolved except on grounds available under Section 13. Therefore, parties who have solemnized the marriage under this Act remained married even when the husband embraces Islam in pursuit of another wife. Till the time a Hindu marriage is dissolved under the Hindu Marriage Act none of the spouses can contract a second marriage. C. Lily Thomas v. Union of India, AIR 2000 SC 1650 The respondent being already married under the Hindu law contracted a second marriage after converting to Islam in the year 1992. One law prior to the contentions raised by the respondent was that the law declared in Sarla Mudgal case cannot be applied to persons who have solemnized marriages in violation of the mandate the date of judgment. The Supreme Court refusing to accept this contention held that in Sarla Mudgal's case the Court had not laid down any law but only interpreted the existing law which was in force. Judicial Remedies to Aggrieved Spouse in case of Bigamy In the case of a bigamous marriage the "second wife" has no status of wife. But in case she files a petition for nullity, she can claim both interim and permanent maintenance. If a husband for instance, is about to take a second wife (or husband), the first wife (or husband) can ask for an injunction from the court. The first wife of a bigamous marriage has no right to file a petition for nullity under the Hindu Marriage Act, since Section 11 lays down that a petition for a declaration that the marriage is null and void can be filed only by either party to the marriage .She can also file a petition for divorce under Section 13(1)(i) on the ground of adultery. Mental Capacity: Section 5(ii) According to this clause, if either party to the marriage is incapable of giving a valid consent due to unsoundness of mind, or thought capable of giving a valid consent has been suffering from the mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children, or has been subject to recurrent attacks of insanity or epilepsy, such a marriage is voidable and the aggrieved party has to apply to the court to get their marriage annulled. The mental condition specified in Section 5(ii) is related to pre-marriage conditions and not to post-marriage mental conditions for which other reliefs like divorce is available.Child Marriage: Section 5(iii) As per this clause, for a valid marriage, the bride should have completed the age of 18 years and the bridegroom the age of 21 years. Violation of this condition does not make the marriage null and void. The Hindu Marriage Act, 1955 only provides for some punishment for such marriage under section 18 of the Act. Section 18 (a) of the Act lays down that Every person who procures a marriage of himself or herself to solemnized under this Act in contravention of the conditions specified in clauses (iii) of section 5 shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both. Prohibition on account of Blood Relationship or Affinity: section 5 (iv) and (v)As per Section 5(iv) and (v) for a valid marriage, the parties must not be within the degrees of Prohibited relationship and must not be sapindas of each other unless the custom or usage governing each of them permits marriage between the two. According to Section 3(g), two persons are said to be within the "degrees of prohibited relationship"Ø if one is a lineal ascendant of the other, or Ø if one was the wife or husband of a lineal ascendant or descendant of the other, orØ if one was the wife of the brother or the father's or mother's brother or the grandfather's or grandmother's brother of the other, orØ if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brother or two sisters. Section 8 – Registration of Hindu marriage The Hindu Marriage Act is applicable in cases where both husband and wife are Hindus, Buddhists, Jains, or Sikhs or where they have converted into any of these religions. Where either of the husband or wife or both are not Hindus, Buddhists, Jains, or Sikhs, the marriage is registered under The Special Marriage Act, 1954.Ø For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.Ø Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.Ø All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.Ø The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.Ø Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry. Conclusion:The saptpadi is the most material of all the nuptial rites, as marriage becomes complete and irrevocable on the completion of the seventh step. According to Manu : "The nuptial texts are certain rules in regards to wed-lock ; and the bridal contract is known by the learned to be complete and irrevocable on the seventh step of the married pair, hand in hand, after those texts have been pronounced." Apart from the mentioned ceremonies in the above article, judicial pronouncements have been towards one important ceremony that is ‘saptapadi’, though in some community this has been dispensed.