This article is written by Ritika Sharma, student of Vivekananda Institute of Professional Studies, GGSIPU. In this article, she has discussed the nature of marriage under Hindu law.
The institution of marriage is known to be the sacred instruction under Hindu law. According to Max Weber marriage is a “stable sexual relationship” allowed and legitimized by the larger kin group and used to determine rules about property rights for children. The concept of marriage refers to a man-woman relationship in the society which evolves a unique family system. The individuals in that tie live together and lead to procreation of children as an important constituent of a family. Many theorists have given different definitions regarding the institution of marriage. According to Horton and Hunt, “Marriage is the approved social pattern whereby two or more persons establish a family.[i] According to the beliefs of Hindus, marriages are the one which is made in heaven and two individuals pledge to live together for the next seven births. Marriage is seen to be the turning point in the life of any person as the person enters in the second phase of his life that is known as the ‘Garhasthyaashram’. According to the historic religious books, the marriage is considered to the duty as an unmarried man is seen to be unable perform some of the most important religious ceremonies in a family
NATURE OF MARRIAGE ACCORDING TO HINDU LAW
The nature of marriage in Hindu law is said to be the sacramental institution. The Hindu Marriage Act, 1955 has seen to be the one which has reformed the marriage in accordance with the Hindu law.[ii] This is Act known as one of the landmark modifications in the entire history of the social legislation. Moreover, this particular is not only responsible for codifying the Hindu marriage law but has also brought about innumerable changes. Marriage in Hindu law is considered to be the holy union of a male and a female. However, the modern nature of the marriage is known to be more of a contractual one than being a sacramental institution. The Hindu Marriage Act has brought in to consideration that in order to get the provisions to be applied on any individual, it necessary that the person should be a Hindu. The term Hindu is clearly defined in Section 2 of the Hindu Marriage Act.[iii]
FORMS OF MARRIAGE
According to Hindu law, there are three types of marriages which are valid marriage. These are valid according to the ancient law.
- Brahm Vivah– in this form of marriage, the bridegroom was gifted to the groom by the bridegroom’s father. This is the arranged marriage which is practised in India till now with some modifications.
- Gandharv Vivah– In this marriage, there used to be the mutual consent of the groom and the bridegroom. This is usually known as love marriage of today’s time. In modern times, the bride and the groom are allowed to select their partners and the marriage takes place according to the mutual consent with the specified ceremonies.
- Asur Vivah– this marriage used to be the forced marriage. It was the aggressive marriage where the bride used to get sold by the father either for money or to uplift the social status.
The Hindu Marriage Act, 1955 does not define and acknowledge any of these forms of marriages.
CONDITIONS FOR A VALID MARRIAGE
Section 5 of the Hindu Marriage Act, 1955 provides for the conditions necessary to constitute a valid marriage.[iv]
- The clause (i) of section 5 prohibits bigamy. According to this clause, no person is allowed to marry while his or her spouse is alive. However, it should be kept in mind that the first marriage of a person should be a legally valid marriage and should be done by fulfilling the requirements of the ceremonies.[v] According to Section 11 of the Act, such marriages are void and Section 17 makes such marriage a penal offence. In the leading case of Lily Thomas v. Union of India,[vi] it was held by the Supreme Court that if a man converts his religion just to get married according to the norms of Muslim law, this marriage will be declared void ab initio.
- The Clause (ii) of the same Section provides for the condition regarding the mental capacity of a person to marry. The person who is suffering from unsoundness of mind is not entitled to give valid consent for the marriage and hence he or she is unfit for the same.
- The Clause (iii) provides that the valid ages of marriage are different for that of a boy and a girl. The girl should be of eighteen years at the time of marriage while the boy should be of twenty in years. If this condition is not fulfilled, the marriage becomes voidable according to Section 12 of the Act. Also, according to Section 18 of Hindu Marriage Act, if anyone who procures a marriage for himself or herself in contravention of Section 5(iii), the punishment is defined to be for fifteen days and fine up to Rs. 1000.
- The Clause (iv) prohibits marriage according to the degrees of prohibited relationships. Section 11 makes this kind of marriage void.
- The Clause (v) of Section 5 prohibits marriage in Sapinda relationship. This marriage, if contracted, is void.
Section 11 and Section 12 provide the provisions for the void and voidable marriages. Section 7 provides that to constitute a valid marriage, the solemnization of the same has to take place. This means that the ceremonies have to be performed according to the set procedure in the Section. In the case of Bhaurao Lokhande v. State of Maharashtra,[vii] it was held that if any man does a second marriage, it will be declared void and the man will be liable to imprisonment which may extend to seven years
According to Hindu Law, marriage is a holy union which is responsible to devolve certain rights and obligations upon both the individuals and it is not a contract. Thus, it is important to note that the institution of marriage is sacramental in the context of Hindu law and is governed by the set provisions of the Act. The provisions are so defined and provided that the marriage cannot be said to be contractual in nature and in order to hold a valid marriage, it should be done according to the provisions of conditions and ceremonies of the Act.
[i] Horton and Hunt, Sociology p.216
[v] Mayne, John, Hindu Law & Usage, 14 th edn. 1998, Bharat Law House,1998
[vi] AIR 2000 SC 1650
[vii] AIR (SC) 1564
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