This article has been written by Mr. Himanshu Soni, a 1st year student of law centre-1, Faculty of Law, Univeristy of Delhi

 

Abstract

For centuries, Hindu marriage has transcended mere legal formalities, existing as a sacred union steeped in tradition and ritual. However, the 21st century presents a unique challenge: navigating this ancient institution within the modern framework of codified law. This article explores the Hindu Marriage Act of 1955, its impact on the legal landscape, and the ongoing debates surrounding its application and potential reform. By examining both the enduring legacy of tradition and the evolving needs of contemporary society, we seek to find a balance that ensures the continued relevance and effectiveness of Hindu marriage in the years to come.

• Introduction

The institution of Hindu marriage stands at a fascinating crossroads. On one hand, it carries the weight of centuries-old traditions and rituals, imbued with spiritual significance and cultural identity. On the other hand, it exists within the ever-evolving legal framework of modern society, governed by codified laws and evolving social norms. This complex interplay of tradition and modernity presents both challenges and opportunities for understanding and navigating the legal framework of Hindu marriage in 2023.

• Exploring Hindu Marriage and its Evolution

Hindu marriage, a cornerstone of Indian society, holds profound significance as one of the 16 sacraments (Sanskaar) vital for spiritual growth. It transcends a mere social contract, representing a sacred union where two souls come together to fulfil dharma (righteousness), arth (material well-being), and karma (duty). This journey begins with the establishment of a lifelong bond between spouses, recognized by a continuous, harmonious co-existence.

• A Historical Perspective:

Traditionally, Hindu marriage was viewed as an unbreakable tie, enshrined as the final of ten sacraments. However, this concept evolved with time. Prior to the 19th century, the notion of divorce was largely absent in Indian legal frameworks. The landmark Hindu Marriage Act of 1955 emerged as a pivotal step, codifying and reforming Hindu marriage laws, paving the way for greater agency and equality within this sacred institution.

• Types of Hindu Marriages:

Historically, four approved and four unapproved forms of Hindu marriage existed, each with unique characteristics and varying degrees of social acceptance:

Approved Forms:

• Brahma: Considered the most ideal, this form involved a learned man marrying a girl based on his Vedic knowledge, often reflecting an arranged marriage.
• Daiva: This form involved offering a daughter in lieu of Dakshina (priestly fees) if she remained unmarried beyond a certain age.
• Arsha: In this form, the groom offered a cow or bull to the bride’s father in exchange for her hand, typically when the groom lacked exceptional qualities.
• Prajapatya: This form emphasized parental consent and bypassed traditional betrothal formalities.

Unapproved Forms:

• Gandharva: This form, based on mutual consent and often associated with passionate love, was considered unorthodox by some due to its lack of parental involvement.
• Asura: This form involved paying a bride-price, often seen as a transactional approach to marriage.
• Rakshasa: This form involved abduction of the bride, deemed unacceptable due to its coercive nature.
• Paisacha: Considered the most reprehensible, this form involved forcible marriage without consent, akin to rape.

• Evolution and Modern Context

While the concept of eight historical forms continues to hold cultural significance, contemporary Hindu marriages primarily follow the framework outlined in the Hindu Marriage Act. This act emphasizes monogamy, sets minimum age limits, and establishes grounds for divorce, including cruelty, adultery, and desertion. Additionally, it empowers women by granting them inheritance rights and the right to initiate divorce proceedings.

• Moving Forward

The evolution of Hindu marriage reflects a continuous strive for greater inclusivity and equality. While significant progress has been made, ongoing discussions focus on addressing remaining disparities, such as raising the minimum age for marriage for girls, expanding gender-neutral grounds for divorce, and ensuring consistent enforcement of the Act across diverse communities.

Hindu marriage, with its rich history and evolving traditions, embodies a profound commitment to spiritual and social well-being. Understanding its various forms, both historical and contemporary, sheds light on the institution’s adaptability and its ongoing journey towards a more equitable and fulfilling experience for all individuals involved.

• Legal Framework of Hindu Marriage

The Hindu Marriage Act of 1955 (HMA) remains a cornerstone in defining the legal framework for Hindu marriages in India. However, navigating its intricacies can be challenging. This guide aims to clarify the key aspects of the HMA in a clear and concise manner.

• Conditions for Valid Hindu Marriage

To ensure a valid Hindu marriage, several conditions must be met:

• Monogamy

• Polygamy is prohibited in India, with bigamy constituting a legal offense.
• The landmark Yamunabai vs Anant Rao case established that a second marriage during a first marriage’s subsistence is invalid, rendering the second wife legally unrecognized as a spouse.
• Regarding religious conversion and marriage, the Sarla Mudgal verdict clarified that apostasy alone does not automatically dissolve a marriage. However, a Hindu apostate’s subsequent marriage during their existing Hindu marriage violates the Hindu Marriage Act.
• The Lily Thomas vs Union of India case revisited the Sarla Mudgal decision, emphasizing that a marriage solemnized under one personal law cannot be dissolved based on a party’s religious conversion under another personal law.
• Effect of contravention of Section 5(i)
  a) The marriage will be null and void under section 11
  b) The person will be liable for punishment for bigamy under section 17 of Hindu Marriage Act read with section 494 and 495 of Indian penal code.

Effect of Contravention Section 5(i)

Contravention of Section 5(i) of the Hindu Marriage Act entails the following consequences:

1. Nullity of Marriage: The marriage automatically becomes null and void under Section 11 of the Act. This means the marriage is legally non-existent and has no binding effect from the outset.
2. Criminal Liability for Bigamy: The person who entered the bigamous marriage is liable for punishment under Section 17 of the Hindu Marriage Act, read with Sections 494 and 495 of the Indian Penal Code (IPC). These sections deal with the offense of bigamy and prescribe imprisonment of up to five years and/or fine.

• Unsoundness of Mind

At the time of marriage, neither party may be capable of valid consent due to:

• Unsoundness of mind: This encompasses conditions that impair the ability to understand the nature and consequences of marriage.
• Mental disorder: A mental disorder that renders a person unfit for marriage and procreation qualifies as a ground for annulment.
• Recurrent attacks of insanity: A history of repeated episodes of insanity constitutes another ground for voiding the marriage.

Effect of contravening Section 5(ii):

If a marriage is solemnized in violation of the conditions stipulated in Section 5(ii), it becomes voidable under Section 12(1)(b). This means the marriage can be annulled by a court upon the petition of the aggrieved party.

• Age

The Hindu Marriage Act of 1955 initially set the minimum age for marriage at 18 years for grooms and 15 years for brides. However, the Child Marriage Restraint (Amendment) Act of 1978 raised the minimum age to 21 for grooms and 18 for brides, recognizing the need for greater protection and maturity in young adults.

Effect of Contravening Section 5(iii):

The Hindu Marriage Act itself does not explicitly declare the consequences of violating the minimum age requirement. Therefore, a marriage in contravention of Section 5(iii) is not automatically void or voidable.

However, several legal ramifications exist:

• Criminal Penalty: Section 18 of the Hindu Marriage Act prescribes punishment for performing or promoting a child marriage. This includes rigorous imprisonment for up to two years, a fine of up to ₹100,000, or both.
• Option of Divorce: Under Section 13(2)(iv) of the Act, if a woman married below the minimum age exercises the “option of puberty” upon reaching maturity, she may seek a divorce.
• Potential Nullity: The Prohibition of Child Marriage Act, 2006, declares every child marriage voidable at the option of the child spouse, offering an avenue for legal annulment.

• Prohibited Relationship:

Section 3(g): Degrees of Prohibited Relationship and Customary Exceptions

This section addresses the concept of prohibited relationships in marriage, with a crucial caveat regarding customary allowances. Parties are not considered within prohibited degrees unless their respective customary or traditional practices permit such a union.

Sub-clauses of Section 3(g):

• i. Lineal Ascendant Relationship: One party is a direct ancestor of the other (e.g., parent-child, grandparent-grandchild).
• ii. Spousal Relationship to Descendant/Ascendant: One party was married to a lineal ancestor or descendant of the other.
• iii. Wife of Brother/Sibling: One party was married to a sibling or paternal/maternal uncle of the other.
• iv. Close Blood Relatives: The parties are siblings, uncle/niece/nephew, or children of siblings or same-lineage cousins.

Rules for Determining Prohibited Relationships:

• Full/Half/Uterine Blood Relationship: All blood relations are considered, regardless of birth order or legitimacy.
• Legitimate/Illegitimate Relationship: Both legitimate and illegitimate children are included in determining prohibited degrees.
• Blood/Adoption Relationship: Both biological and adopted children are considered for determining prohibited relationships.

Consequences of Contravening Section 5(iv):

• Void Marriage: A marriage contracted in violation of Section 5(iv) is declared null and void under Section 11.
• Penalties: Section 18 prescribes potential penalties for such violations, including simple imprisonment for up to one month, a fine of up to 1000 rupees, or both.

• Sapindas

Section 3(f) – Sapinda Relationship:

• Parties are not considered sapindas (within prohibited degrees of relationship) unless permitted by custom or usage governing their respective communities.

Sub-clauses of Section 3(f):

1. Scope of Sapinda Relationship: – Maternal lineage: Extends up to the third generation (inclusive) from the mother. – Paternal lineage: Extends up to the fifth generation (inclusive) from the father. – Lineal ascent: Relationship traced upwards from the individual concerned, who is counted as the first generation.
2. Definition of Sapinda: – Two individuals are sapindas of each other if: – One is a lineal ancestor of the other within the defined sapinda limits. – They share a common lineal ancestor within the defined sapinda limits for each of them.

Rules for Determining Sapinda Relationships:

• Always traced upwards from the individual concerned.
• Mother’s lineage: Three generations (inclusive).
• Father’s lineage: Five generations (inclusive).
• Applies to full, half, and uterine blood relationships.
• Includes both legitimate and illegitimate children.
• Considers both biological and adopted children.

Consequences of Contravening Section 5(v):

• Marriage is deemed void under Section 11.
• Punishable under Section 18 with simple imprisonment for up to one month, a fine of up to 1000 rupees, or both.

• Marriage Ceremonies and Registration

While the HMA does not prescribe specific ceremonies, it recognizes customary rites and ceremonies of both parties (Section 7). Notably, the Saptapadi (taking seven steps together) signifies the completion of the marriage.

Registration of marriages is encouraged but not mandatory under the HMA (Section 8). However, various court rulings and government initiatives have advocated for compulsory registration across religions, including Hindu marriages.

• Void and Voidable Marriages

Understanding the distinction between void and voidable marriages is crucial. A void marriage is considered invalid from the outset and has no legal standing (Section 11). Marriages contravening conditions like monogamy or prohibited relationships fall under this category.

Conversely, a voidable marriage can be annulled by a court decree on specific grounds outlined in Section 12. These include non-consummation due to impotence, consent obtained by force or fraud, and the wife’s pregnancy by another man at the time of marriage. However, certain conditions apply to filing for annulment, such as time limitations and marital cohabitation after discovering the grounds.

Conclusion

The legal framework governing Hindu marriages in India is a complex tapestry woven from ancient customs, codified laws, and evolving judicial interpretations. While it provides a foundation for marital stability and upholds certain social values, it also raises intricate legal and ethical questions.

It is crucial to understand the historical context, the evolving social landscape, and the ongoing legal debates surrounding this complex area of law. By critically examining the strengths and limitations of the current framework, we can contribute to ongoing efforts to ensure that it remains relevant, equitable, and responsive to the needs of a diverse and evolving society.

References

1. This article was originally written by Shivika Agarwal published on Probono India website. The link for the same is herein. http://probono-india.in/Indian-Society/Paper/637_Shivika%20Agrawal-%20Marriage%20and%20Divorce%20under%20the%20Hindu%20Law%20-%20Shivika%20Agrawal.docx
2. This article was originally written by Dr. S.R Meena published on PubMed website. The link for the same is herein. https://pubmed.ncbi.nlm.nih.gov/26330650/
3. This article was originally written by Harsimran Kaur published on ILI website. The link for the same is herein. https://ili.ac.in/pdf/5._Harsimran_Bedi__F_.pdf
4. Hindu Marriage Act: 1955: https://www.indiacode.nic.in/handle/123456789/1560?locale=en