HINDU MARRIAGE

Hindus have divided human life into four ashrams or stages first is
Bramhacharya (studentship), the second the Grihasta Ashrama (life of
householder), the third the Vanaprastha Ashrama (life of a recluse) and the last
is Sanyasa Ashrama (the life of renunciation)
Marriage between Hindus is governed by Hindu Marriage Act, 1955 (HMA).
For Hindus, marriage is a Sanskar or a Sacrament as opposed to contract. Every
Hindu is enjoined to marry, to enter the Grihastha-Ashrama (i.e. life of a
householder)
Essential conditions of a valid Hindu marriage
Caste System has been abolished in India. Inter sub-caste marriages were
validated under the Hindu Marriage (Removal of Disabilities) Act 1946. The
Hindu Marriage Act 1955 refers to any two Hindus, without requiring them to
be of the same caste or sub-caste. Thus, in order to get married to someone
under Hindu law today, both parties do not have to belong to the same caste but
have to necessarily profess to the Hindu Religion.
As per Section 5 of the Hindu Marriage Act, 1955
1. Section 5 (1) Must not have a spouse alive.
Essential ceremonies are a must for committing the offence of second
marriage. Mere admission by the parties is not enough. Proof of essential
ceremonies is required.
Monogamy means that one is permitted to have only one wife or one husband
at a time. Bigamy is the reverse of monogamy. Section 5(i) of the Hindu
Marriage Act prohibits bigamy. Section 11 makes a bigamous marriage void
and Section 17 makes it a penal offence for both 1-lindu males and females
under Sections 494 and 495, I.P.C. The offence of bigamy is committed by a
Hindu marrying again during the life time of his or her spouse (wife or husband,
as the case may be), provided that the first marriage is not null and void. If the
subsisting marriage is voidable, then also offence of bigamy is committed. The
offence of bigamy is committed only if the required ceremonies of marriage are
performed. The second marriage cannot be taken to be proved by the mere
admission of the parties; essential ceremonies and rites must be proved to have
taken place. But where a husband had married a woman whose marriage was in
subsistence, his subsequent marriage, in such circumstances, would not be
bigamous, his first marriage being void.
The solemnization of marriage is proved by showing that the marriage was
performed with the proper and essential rites and ceremonies of marriage
prescribed under the law or custom applicable to parties. A prosecution for
bigamy will fail if what is established is that some sort of ceremonies (not the
essential ceremonies as prescribed by law or custom) were performed with the
avowed purpose that the parties were to be taken as married, and it is immaterial
even if it is established that the parties intended seriously to marry and thought
that; the ceremonies performed by them would confer marital status on them. It
is now established that if the second marriage of the accused is declared
void before the prosecution is commenced, no prosecution for bigamy can be
made. The mere intention of parties, however serious, will not make them
husband and wife and the accused will escape prosecution even if he
deliberately performed defective ceremonies. So long as the solemnization of a
marriage depends upon the performance of a ceremony, the law cannot be
otherwise. Two persons cannot be husband and wife by seriously intending
to live and living as husband and wife, if they do not perform the necessary
ceremonies. Similarly, persons who perform bigamous marriage cannot be
guilty of bigamy if they omit, deliberately or inadvertently, to perform the
essential ceremonies of marriage. The solution lies in prescribing one ceremony
for all Hindu marriages, and by providing for registration of marriages. So long
as we recognize all sorts of ceremonies, such things are bound to happen; dupes
may take advantages and innocent persons may become their victims. 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 (or wife) is about to take a second wife (or husband),
the first wife (or husband) can ask for an injunction from the court.
2. Section 5 (2) neither party is
a. incapable of giving consent due to unsoundness of mind.
b. though capable of giving consent, is unfit for marriage and
procreation of children due to mental disorder.
Alka vs Abhinash - MP HC held that "and" must be read as "or".
c. Suffers from recurrent attacks of insanity. - "Incurable" is not a
requirement. Only recurrent attacks, irrespective of whether
curable or incurable, provided enough ground.
These three clauses of Section 5(ii) are independent of each other. If a case is
covered under any of these clauses, the marriage can be annulled. Under clause
(a) every kind of unsoundness of mind is not covered. The unsoundness of
mind should be such which incapacitates a person from giving a valid consent
to marriage. It need not be persistent or continuous unsoundness of mind. It
may exist just before the marriage. An objection to a marriage on the ground of
mental incapacity must depend on a question of degree of the defect in order to
rebut the validity of a 1arriage which has in fact taken place. The onus of
bringing a case under this clause lies heavily on the petitioner who seeks
annulment of the marriage on the ground of unsoundness of mind or mental
disorder.
At the time of marriage. The words at the time of marriage in the clause
are important. It follows from this that where a person subsequent to the date of
marriage becomes an idiot or lunatic, the provisions of this clause are
not attracted. Subsequent lunacy will not affect the marriage nor will the
subsequent recovery serve it.
The Hindu Marriage Act still does not say that a valid consent is necessary for
marriage. That seems to be the position even now. Thus, unsoundness of mind
which incapacitates a person from giving a valid consent to marriage will render
the marriage voidable, but non-consent will not render the marriage void or
voidable.
3. Boy is over 21 and girl is over 18. The bridegroom has completed the age
of twenty one years and the bride the age of eighteen years at the time of
the marriage;
Rabindra vs Sita - Marriage in contravention of this clause is,
nevertheless, valid.
But under present law, Section 3(a) of the Prohibition of Child
Marriage Act, 2006 makes this marriage voidable.
And In certain circumstances it may be declared as Void. (See Sections
12, 13 & 14 of the Prohibition of Child Marriage Act, 2006)
4. 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; (Section 3 (g) of HMA goes on to clarify the conditions
under which two persons are said to be within the "degrees of prohibited
relationship).
The following will be within the degrees of prohibited relationship of a male:
1) A female ascendant in the line,
2) Wife of an ascendant in the line,
3) Wife of a descendant in the line,
4) Wife of the brother,
5) Wife of the fathers brother,
6) Wife of the mothers brother,
7) Wife of the grandfathers brother,
8) Wife of the grandmothers brother,
9) Sister,
10) Brothers daughter,
11) Sisters daughter,
12) Fathers sister,
13) Mothers sister,
14) Fathers sisters daughter,
15) Fathers brothers daughter,
16) Mothers sisters daughter,
17) Mothers brothers daughter.
The following will be within the prohibited degrees of a female-
18) Her lineal ascendant like father, fathers father,
19) The husband of a lineal ascendant,
20) The husband of a lineal descendant,
21) Brother,
22) Fathers brother,
23) Mothers brother,
24) Brothers son,
25) Sisters son,
26) Fathers brothers son,
27) Fathers sisters son,
28) Mothers brothers son,
29) Mothers Sisters son
5. The parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two. (See
Section 3 (f) of HMA)
Theories of Sapinda Relationship:
a) Oblation theory (By Dayabhag School), and
b) Particles of the same body theory (By Mitakshara School).
Before Vijnaneshwara, the sapinda relationship was linked with the
oblations that one offered to his departed ancestors. The Hindus believe
in ancestor worship and offer pinda-dan to their departed ancestors. Every
year in the shradha fortnight, offerings are made to departed ancestors.
These offerings are mainly in the form of pinda. The pinda literally
means a ball, the pinda is usually made from rice. The rule is that
oneoffers one full pinda each to his three paternal ancestors and one
full pinda each to his two maternal ancestors. One also offers one
divided pinda (lep) each to his three next paternal ancestors and one
divided pinda each to his two next maternal ancestors. Thus, he is
connected by pinda dan to the six ancestors on the paternal side and
the four ancestors on the maternal sideand is sapinda to them. When
two persons offer pindas to the same ancestor, they are also sapindas to
each other.
The other theory, the particles-of-the-same-body theory, was propounded
by Vijnaneshwara. He changed the meaning of pinda from ball
to particles-of-the-same-body. According to him, the sapinda relationship
arises between two persons on account of their being connected by
particles of one body. The great jurist said, one ought to know that
whenever the word sapinda is used, there exist between the persons
to whom it is applied a connection with one body, either immediately or
by descent. This is something like saying that all those who have the
same blood are related to each other. But, obviously such a definition
of sapinda is too wide as such relationship can exist in eternal circles of
birth. It may exist upto 10, 20 or 100 or more generations, so long as one
can trace his descent through a male or female to a common ancestor
or ancestress. Realizing this, Vijnaneshwara proceeded to limit it
by saying that it existed upto seventh degree on the fathers side, and
upto fifth degree on the mothers side. He fixed this limit on the basis of
traditional meaning of sapinda relationship, otherwise itdid not fit
rationally into his definition. But one merit of Vijnaneshwaras change of
meaning of sapinda is that it explained many prohibited relationships in
marriage which could not be explained on the basis of the oblation
theory.
Consider Section 3(f) of the HM Act, which defines sapinda relationship
as extending as far as the third generation (inclusive) in the line of ascent
through the mother, and the fifth (inclusive) in the line of ascent through
the father, the line being traced upwards in each case from the person
concerned, who is to be counted as the first generation and holds that
two persons are said to 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.
Punishment
Section 17 says that section 494 (bigamy without concealment - 7yr + fine) and
495 (bigamy with concealment - 10 Yrs + fine) of IPC will apply for bigamy.
Section 18(a): Rigorous Imprisonment which may extend to 2 years or fine upto
one lakh as amended in the year 2007 (by Prohibition of Child Marriage Act,
2006) (under old law 15 days + 1000/-) for contravention of Section 5(iii)
Section 18(b): One month (30 days) or fine upto 1000/- or both for
contravention of Section 5(iv) and Section 5(v)

It is suggested to go through class notes also.