Concept of Hindu Marriage

Evolution of the Institution of

Marriage
 Introduction
• Institution of marriage was not established among
primitive men.
• Man lived more or less like animals only.
• He was engaged in the satisfaction of his primary
needs, hunger and shelter.
• Sex life was absolutely free.
• Sex promiscuity was the rule (Having
casual sexual relations frequently with different
partners; indiscriminate in the choice
of sexual partners).
 Contd.
• As man advanced, twin discoveries were made: of
the milch cattle and of the fire. (Milch means
cattle that are reared for their milk)
• It no longer remained necessary for him to
wander from place to place in search of food.
• By the discovery of fire, man used to ward off his
enemies, wild animals and other groups of men
who attacked him.
• With the emergence of herds of cattle, the ideas of
possession and ownership also emerged,
• Man started leading some civilized life.
 Contd.
• So long as the sex relationship remained unregulated, it was
maternity alone which could be known and paternity could
not be determined.
• With the notion of possession and ownership, the human
male was seized with the idea of knowing his paternity.
• This was not possible if sex promiscuity continued to be the
rule.
• Thus, it seems, in man’s quest to know the paternity of
children lie the seeds of the institution of marriage.
• By man’s acquisition of knowledge cattle breeding,
agriculture and industry and using of natural products to the
best of his knowledge brought civilization and changes in
him, which led to formation of family.
 Marriage as Sacrament
• Marriage is a sacramental union of man and woman;
• Manu Smriti: “I hold your hand for Soubhagya (good luck),
that you may grow old with your husband, you are given to
me by the just, the creator, the wise and by the learned
people”.
• Wife is also ardhangini (half of Man)
• Taittiriya Samhita – ‘ half is she of the husband, that is
wife’
• Mahabharata – ‘a wife is half of her husband, she is her
husband’s best friend, she is the source of Dharma, Artha,
and Kama, she is also the source of Moksha’
• Ramayana – ‘wife is said to be the very soul of her
husband’
 Contd.
Hindu sages – husband is the lord and master;
Husband is known as bharati – supporter for his
wife;
He is also known pati – protect her
 dharma must be practiced along with the wife to
attain moksha
Marriage is religious union between the man and
woman and not a contract
It is an indissoluble union,
It is an eternal union
 Contd.
• Manu – husband and wife are not united for only
this life and even after death, which will continue
for 7 births;
• Narada and Parashara - very rare cases woman
can abandon husband and some of them are;
 Missing
 Dead
 When he becomes ascetic
 When he is impotent
 When he as out caste
 Kinds of Marriage
There were 8 forms of marriage, 4 approved and 4
unapproved;
Approved Marriages;
1. Brahma form: father of the girl respectfully invites the
bridegroom; widow could not be married under this form;
2. Daiva: well decorated bride is offered to the priest who
preforms religious acts and rituals;
3. Arsha: bride is offered to the person from whom father has
accepted a pair of cow/bull for religious rituals only;
4. Prajapathya: bride is decorated, worshipped and then
offered to the bridegroom, with the recitation to the effect
that they may act religiously throughout and prosper and
flourish in life.
 Contd.
• Unapproved marriages:
1. Asura form: bridegroom gives wealth as much in his means
to the father, paternal kinsmen or the damsel herself and
voluntarily takes her as his wife;
2. Gandharva: there is union of the bride and bridegroom by
mutual consent motivated by their mutual love and sexual
instincts.
3. Rakshasa: girl is forcibly kidnapped after injuring bride’s
parents or other gurdians;
4. Paishach: most condemned form of marriage, cohabitation
is done with the girl when she is asleep, intoxicated or in
drunken stage, after she is ravished, she is married to one, who
has been guilty of such heinous crime.
Essentials of Marriage under old Hindu
Law
1. Identity of caste between the parties; - ancient
Hindu scriptures prohibited “pratiloma marriage” –
marriage between a girl of higher caste and boy of
lower caste; accepted “anuloma marriage” – males
of higher caste marrying the females of lower caste.
During British regime many acts were passed to
validate the inter-caste marriage – Arya Samaj
Validation Act, 1937; Special Marriage Act, 1872;
Hindu Marriage Disabilities Removal Act, 1946;
Hindu Marriages Validity Act, 1949, etc
 Contd.
2. Parties to be beyond prohibited degrees: Vishnu
declares that they should not marry wife belonging to the
same gotra or pravara; similarly no one should marry one
who falls within the sapinda relation
3. Performance of religious ceremonies: according to
Dharmashastra there were 3 religious ceremonies which
were necessary for the completion of Hindu marriage –
betrothal, recitation of holy texts before the sacred fire,
saptapadi
Along with these 3 any other ceremony may validate the
marriage as per parties custom.
 Guardianship in Marriage
• Under Mitakshara, the following persons can give away the girl in
marriage;
- Father;
- Grand father;
- Brother;
- Relatives of the bride’s father’s family on the basis of their proximity;
- Mother.
In Dayabhaga, the bride’s maternal uncle and grandfather could also act as
guardians and they come above the mother.
- A girl was permitted to marry on her own after attaining puberty in case
where there is no guardian, or guardian refused act as guardian or failed to
marry the girl within a reasonable age.
 Old Hindu Marriage in a Nutshell
1. Marriage was a holy sanskar;
2. Solemnization would be according to the shastric or customary
rites;
3. One could marry at any age and man could marry any number of
wives;
4. Inter-religion/ inter-caste marriage is prohibited;
5. Marrying within one’s own gothra or pravara was not allowed;
6. Husband and wife would live together, the latter would submit
to the wishes of the former;
7. Marriage was indissoluble union; divorce was not permitted;
8. Death did not dissolve the marriage and therefore widow could
not re-marry unless permitted by the custom do so.
 Hindu marriage Act, 1955
• The early 8 forms of marriage did not find any place in
the new act on marriage.
• The act received the assent of President and came into
force on 18th day of 1955;
• The enactment is exhaustive and prospective in nature;
• Hindu marriage which was considered religious duty
and sacrament has undergone a change and it has lost
its religious sanctity under the act;
• The act is applicable to all Hindus of every sect
irrespective of howsoever progressive and unorthodox
views they propound;
Changes made by Hindu Marriage Act,
1955
1. Marriage is a result of mutual consent than
sacramental (sec 5(ii), (iii), 11 to 13 and 7);
2. Introduced monogamy; u/s 5 marriage becomes null
and void, if at the time of marriage, either party to
marriage has a living spouse;
3. Bigamy is prohibited and practicing bigamy is made
punishable;
4. The act has permitted inter-caste marriages, (u/s 29);
5. Marriage between the persons belonging to same
Gotra has been legalized;
6. The differences between Mitakshara and Dayabhaga is
not considered by the act;
 Contd.
7. The act clearly has clearly defined the meaning for the
terms ‘sapinda’ and ‘prohibited degree’;
8. Minimum age of marriage for the bridegroom and for
the bride has been fixed as 21 and 18 years
respectively; (Child Restraint (amd) Act, 1978 and
also by the Prohibition of Child Marriage Act, 2006)
9. The Act has introduced some new matrimonial reliefs;
10. Provisions for registration of marriage;
11. Act also provides for maintenance pendente lite; &
expenses of legal proceedings (u/s 24)
12. Provides for permanent alimony to either the spouse
having no source of income & maintenance (u/s 25)
 Contd.
8. Custody, maintenance and education of minor
children during the pendency of legal
proceedings and also after passing of the decree
(u/s 26);
9. legitimacy to children born of void and voidable
marriage, so as to enable them to inherit the
property of their parents;
10. The right for disposal of property presented at or
about the time of marriage;
11. Provisions for registration of Hindu Marriage
has been provided for the first time. (u/s 8)
 Changes brought about by the
Marriage Laws (amd) Act, 1976
Revolutionary changes were brought about by the
Amendment Act of 1976: (27th May 1976)
 introduction of new section 13(B) – divorce by
mutual consent; retrospective in nature;
 Introduction of section 21(B) – expedite the trial;
day to day hearing; conclude the trial within 6
months from the date of service of notice on the
respondent;
 In appellate court to be completed within a period
of 3 months from the date of serving notice on the
respondent
 Contd.
 divorce on the ground of Adultery has been further
liberalized;
 The period of 3 years required to elapse before a
petition could be presented for divorce on the ground of
incurable unsoundness, virulent and incurable form of
leprosy or venereal disease in communicable form, has
been dispensed with;
 The minimum period of 2 years which was required to
elapse after a decree for judicial separation or for
restitution of conjugal rights without reconciliation, has
been reduced to 1 year;
 Contd.
 The law commission in its 71st report recommended to
introduce ‘irretrievable breakdown of marriage’ should
be introduced as a ground of divorce – sec 13 (c) –
court will accept the breakdown of marriage only if the
parties are residing separately for more than 3 years
before filing the petition on this ground;
 In view of the recommendations made by Law
Commission, the Marriage Laws (amd) Bill, 1981 was
introduced in Lok Sabha on february 27 1981 but it
lapsed because of no attempt was made to incorporate
the recommendations of the law commission.
 Conditions for valid marriage under
the act
- The Hindu Marriage Act, 1955 originally
provided 6 conditions for a valid marriage but the
Child Restraint Act, 1978 omitted the 6th
condition relating to guardianship and we have
only 5 conditions now.
- The conditions given are binding and definite, in
absence of which the validity becomes doubtful;
- Section 5 lays down that a marriage may be
solemnized between any two Hindus if the
following conditions are fulfilled:
 Contd.
1.Monogamy - neither party has a living spouse at
the time of marriage;
2. Soundness of mind – neither party at the time of
marriage: (a) is incapable of giving a valid consent
to it in consequence of unsoundness of mine; or
(b) 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
procreation of children; or
(c) Has been subject to recurrent attacks of insanity
or epilepsy ( long-term neurological disorders)
 Contd.
3. Age of marriage: the bridegroom has
completed the age of 21 years and the bride 18
years;
4. Beyond prohibited degrees of relation: parties
are not to be within the prohibited degree of
relation with each other;
5. Beyond Sapinda relationship: the parties are
not sapaindas to each other.
 Monogamy 5(i)
• Sec 5(i) provides for monogamy and prohibits
polygamy and polyandry.
• It is unequivocally that “Hindus can have only
one marriage subsisting at a time”
• In the event of breach of this condition, the
mischief will fall under 494 & 495 of IPC and
would be liable under u/s 17 of HMA also
Smt. Sarla Mudgal v. Union Of India
& Ors on 10 May, 1995
• marriage dissolved under law, would be a valid marriage
qua the first wife who continue to be Hindu? Whether the
apostate husband would be guilty of the
offence under Section 494 of the Indian Penal Code?
• These are four petitions under Article 32 of the Constitution
of India.
• There are two petitioners in Writ Petition 1079/89.
Petitioner 1 is the President of "KALYANI" - a registered
society - which is an organisation working for the welfare of
needy-families and women in distress. Petitioner 2, Meena
Mathur was married to Jitender Mathur on February 27,
1978. Three children (two sons and a daughter) were born
out of the wed-lock.
 Contd.
• In early 1988, the petitioner was shocked to learn that
her husband had solemnized second marriage with one
Sunita Narula @ Fathima;
• The marriage was solemnized after they converted
themselves to Islam and adopted Muslim religion;
• According to the petitioner, conversion of her husband
to Islam was only for the purpose of marrying Sunita
and circumventing the provisions of Section 494, IPC;
• Jitender Mathur asserts that having embraced Islam, he
can have four wives irrespective of the fact that his first
wife continues to be Hindu. Rather interestingly Sunita
alias Fathima after converting her to Islam;
 Contd.
• It was held that the conversion of the Hindu wife
to Mohammedan faith did not ipso facto dissolve
the marriage and she could not during the life
time of her former husband enter into a valid
contract of marriage;
• Accordingly the accused was convicted for
adultery under Section 497 of the IPC.
 Contd.
• In Nilesh Narain Rajesh lal V. Kashmira Bhupendra Bai
Banker AIR 2010 Guj 3 – Husband who was christian
had married a Hindu girl;
• the marriage was solemnized according to the Hindu
rituals and was registered under the Hindu Marriage
Act;
• After some time a baby girl was born after which the
wife was deserted by the husband;
• And he filed a suit u/s 11 of the act for declaration of
marriage between the parties as void because at the
time of his marriage the first marriage was subsisting;
• The court held the marriage to be null and void.
 Contd.
• Dr. D.N. Mukerji v. State 1969 All 489 – Dr. Mukerji was
prosecuted for bigamy;
• While his first wife was alive, he developed courtship with
another woman and performed false marriage;
• 2nd marriage was accomplished with the help of 3 religious
ceremonies performed at 3 different times in 3 different
ways;
• First one consisted of marriage in full moon night making
moon as witness, calling it as ‘chandra anushtan’
• Second one in Kali temple – where garlands were
exchanged and tilak was put on the forehead of the bride;
• Third being- taking 7 steps around the deity and similar
performance was gone through again by ‘guru granth sahib’
 Contd.
• None of the ceremonies were recognized by the
community of either party to marriage or given any
religious sanction;
• Consequently, it could not be said that they had
performed their marriage with Harbans Kaur did not
constitute the offence of bigamy so as to make Dr.
Mukerji liable for punishment u/s 395 of IPC;
• The non-performance of religious rites and ceremonies
under the act or performing them not in conformity
therewith, a Hindu male could manage to keep a
woman even during the life time of his first wife.
 for punishment for the act of bigamy

• Party to Bigamy can be punished upon the proof

of prior marriage;
• The subsequent marriage would require proof of
essential religious ceremonies or rites;
• At the time of the 2nd marriage the 1st marriage
must be in subsistence.
 The breach of sec 5(i) results in

a) Such a marriage would become null and void

under section 11;
b) The erring party to such a marriage would be
liable to be prosecuted u/s 17 of the act &
punishment u/s 494 & 495 of IPC
c) The parties to the marriage retain their right to
seek preventive remedy in case there be
apprehension about remarriage of his or her
spouse by moving a injunction suit
 Lunacy - Sec 5(ii)
• Sec 5(2) was amended by the Marriage Laws
Amendment Act, 1976 and restructured as –
a) Neither the party must be suffering from
unsoundness of mind, mental disorder, insanity
at the time of the marriage;
b) u/s 12(1)(b) at the instance of the aggrieved
party, the marriage is voidable;
c) If the parties to marriage were of sound mind but
later became insane or mentally unsound then
this eventuality would not affect the validity of
marriage – they can move u/s 13
 Age of parties 5(iii)

• Sec 5(3) prescribed the age of the bridegroom as 18 years

and bride as 15 years but;
• by the Child Marriage Restraint (amendment) Act 1978 the
words ‘eighteen and fifteen’ are replaced by ‘ twenty one
and eighteen’ respectively;
• The breach of the pre-requisite condition did not affect the
validity of marriage, but;
• u/s 18 - the person responsible for such much is attracted by
the Penal provisions, punishable up to 15 days
imprisonment or 1000/- fine or both;
• This provision is further amended and now the punishment
is 2years imprisonment or with fine of 1lakh or both
 Contd.
• In Pinniti Venkatarama v. State AIR 1977 AP 43,
the Andhra Pradesh HC laid down that any
marriage solemnized in contravention of cl(iii) of
Sec 5 is neither void nor voidable, the only
consequence being that the persons concerned are
liable for punishment u/s 18;
• By the Marriage Laws (Amendment) Act, 1976,
u/s 18(2)(iv) the bride had been married before
her attaining 18 years and on attaining 18 years
she can repudiate the marriage by filing a divorce
petition.
Prohibited relationship - 5(iv)
• Under this sec the persons falling within the prohibited
degree of relationship is prohibited;
• Sec 3(g) defines degrees of prohibited relationship –
 Two persons would be regarded to be within prohibited
degrees –
a) If one is a lineal ascendant of the other; or
b) If one was the wife or the husband of a lineal ascendant or
descendant of the other; or
c) If one was the wife of the brother or of the father’s or
mother’s brother or of the grand father’s or grand mother’s
brother of the other; or
d) If two are brother and sister, uncle and niece, aunt and
nephew, or children of two brothers and sisters
 Contd.

• The relationship would include –

a) Relationship by half or uterine blood as well as
by full blood;
b) Illegitimate blood relationship as well as
legitimate;
c) Relationship by adoption as well as by blood
Exception : the custom which allows a marriage
between persons within prohibited degrees must
fulfill the requirements of a valid custom.
 Prohibited degree
For men For women

1. Mother; 1. Father;
2. Grandmother how so ever high; 2.Grandfather how so ever high;
3.Former wife of father or grand-father 3.Former husband of mother or
how so ever high; grand – mother how so high ever;
4.Former wife of brother; 4.Brother of former husband;
5.Former wife of either parent's brother; 5Nephew of former husband;
6.Former wife of grand-parent’s brother; 6.Grand nephew of former
7. Sister; husband;
8. Either parents sister; 7. Brother;
9.Daughter of brother or sister; 8. Either parent's brother;
10.Daughter of either parent’s brother; 9.Son of a brother or sister;
11. Daughter of either parent’s sister. 10. Son of either parent’s brother;
11. Son of either parent's sister
 Contd.

• Marriage falling u/s 5(iv) is void under u/s 11 of

the act;
• Section 18(b) punishes erring party with the
simple imprisonment which may extend up to 1
month; or with fine which may extend to 1000/-
rupees, or with both;
• Where the custom allows marriage with in the
prohibited degree, that marriage will receive the
recognition of a valid marriage.
 Sapinda – 5(v)
• The word sapinda means ‘of the same pinda’; ‘
having common pinda’;
• ‘pinda’ is capable of two meanings:- ‘particles of body’ or ‘an oblation’;
• Dayabhaga - the well known meaning is ‘offerings pinda or rice ball to
common ancestor on their ceremony are sapinda’s to each other’;
‘community in the offering of funeral oblations’;
• Mitakshara school says – ‘ persons connected by the same ‘pinda’ i.e.,
particles of same body/blood relation’ ‘community of the particles of
the same body’;
• Mitakshara held that the right to inherit arose from propinquity while
Dayabhaga held that it arose from the capacity to bestow spiritual
benefit on the deceased owner;
• The difference is not only in succession to property, it is in the concept
of marriage also.
 Contd.
• According to sec 3(ii)(f) two persons are said to
be sapindas of each other if one is a lineal
ascendant of the other within the limits of sapinda
relationship or
• if they have a common lineal ascendant who is
within the limits of sapinda relationship with
reference to each of them.
• The expression ‘lineal ascendant’ and ‘line of
ascent’ include both male and female ascedants.
 Contd.
• Male sapindas would be father, father’s father,
father’s father’s father, father’s father’s father’s
father,
• Female sapindas would be mother, mother’s
mother, father’s mother, father’s father’s mother,
father’s father’s father’s mother, father’s mother’s
father’s mother, father’s mother’s mother,
daughter, daugher’s daughter, son’s daugher, son’s
son’s daugher, and son’s son’s son’s daugher.
 Contd.

• The sapinda relationship under the ancient Hindu

law was, the bride should not fall within 7 degrees
from father’s side and 5 degrees from the
mother’s side;
• By the Hindu Marriage Act, 1955 the sapinda is
confined to 3 generations upward from the
mother’s side and 5 generations upward from
father’s side.
 Section 6
• Sec 6 stands omitted by the provisions of the
Child Marriage Restraint (Amendment) Act,
1978, provided a different list of guardians;
• When the age of marriage of the bride and
bridegroom was raised to 18 years and 21
years respectively, the need of consent of the
guardian for marriage became nugatory, hence
sec 6 of the Act of 1955 stands abrogated.
Section 7 – Marriage Ceremonies
• The same ceremonies as – invocation before the sacred
fire, sapthapadi etc. were observed as essential for the
valid marriage by the Act also;
• Sec 7(1) provides that a Hindu marriage must be
solemnized in accordance with customary rites and
ceremonies of either party thereto and must fulfil the
conditions prescribed for the same by sec 5 of the act;
• This section does not prescribe any particular form of
ceremonies requisite for solemnization of the marriage
but leaves the parties to choose any form of marriage;
 Contd.
• In the case of Ashoka Kumar v. Usha Kumari
AIR 1984 Del 347 – the Delhi HC held that with
the passage of time it becomes difficult to prove
that at the time of marriage the religious
ceremonies has been properly performed; and
• where two persons are socially recognized as a
married couple, a strong presumption is raised in
favour of their lawful marriage duly solemnized
with the help of customary rites and religious
ceremonies and living together in itself is an
evidence of their marriage
 Section 8 – proof of Marriage
• The State Government is authorized to make
rules providing for registration of marriage;
• Such rules must provide - parties to enter the
particulars relating to their marriage, in the
marriage register in such manner and subject
to such conditions as may be prescribed.
• The State Government may, if it thinks fit,
make the registration of the particulars of all
marriages compulsory in the State.
 Contd.
• u/s 8(4) – the marriage register, at all reasonable times be
open for inspection; it is made admissible as evidence of the
statements contained therein.
• u/s 8(5) – marriage not in accordance with 8 shall not affect
the marriage in any ways and the validity of the marriage
would not be affected.
• In Vinaya Nair & ors v. Corporation of Kochi AIR 2006
Ker. 275 - husband is employed in Canada, married to a girl
residing in Kannur Dist. in Kerala,
- They submitted application form for registration as per the
provisions of ‘The Kerala Hindu Marriage Registration
Rules, 1957’ to the Corporation of Cochin.
- It was rejected as he is not domicile of Cochin…….