Concept of Hindu Marriage

Evolution of the Institution of

Marriage

 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
casualsexualrelations frequently with
different partners; indiscriminate in the
choice ofsexualpartners).

 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.

 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 mans quest to know the paternity of
children lie the seeds of the institution of marriage.
By mans 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
husbands 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

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

 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.

 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 brides
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

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 brides fathers family on the basis of their
proximity;
- Mother.
In Dayabhaga, the brides 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 ones 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;

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)

13. Custody, maintenance and education of minor

children during the pendency of legal proceedings
and also after passing of the decree (u/s 26);
14. legitimacy to children born of void and
voidable marriage, so as to enable them to inherit
the property of their parents;
15. The right for disposal of property presented at
or about the time of marriage;
16. Provisions for registration of Hindu Marriage
has been provided for the first time. (u/s 8)

Changes brought about by the

Marriage Laws (amendment) 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

 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;

 The law commission in its 71 st 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 6 th
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:

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)

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
offenceunderSection494of the
IndianPenalCode?
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.

 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 ofSection 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;

 A Hindu marriage solemnized under the Act can only

be dissolved on any of the grounds specified under the
Act.
Till the time a Hindu marriage is dissolved under the
Act none of the spouses can contract second marriage.
Conversion to Islam and marrying again would not, by
itself, dissolve the Hindu marriage under the Act.
The second marriage by a convert would therefore be
in violation of the Act and as such void in terms of
Section 494 IPC;
Accordingly the accused was convicted for adultery
underSection497 of theIPC.

 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 of the girl was
subsisting;
The court held the marriage to be null and void.

 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

 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

 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 fathers or
mothers brother or of the grand fathers or grand
mothers 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

 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
1. Mother;
2. Grandmother how so ever high;
3.Former wife of father or grand-father
how so ever high;
4.Former wife of brother;
5.Former wife of either parent's
brother;
6.Former wife of grand-parents
brother;
7. Sister;
8. Either parents sister;
9.Daughter of brother or sister;
10.Daughter of either parents brother;
11. Daughter of either parents sister.

For women
1. Father;
2.Grandfather how so ever high;
3.Former husband of mother or
grand mother how so high ever;
4.Brother of former husband;
5Nephew of former husband;
6.Grand nephew of former
husband;
7. Brother;
8. Either parent's brother;
9.Son of a brother or sister;
10. Son of either parents brother;
11. Son of either parent's sister

 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 sapindas 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.

 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.

 Male sapindas would be father, fathers

father, fathers fathers father, fathers
fathers fathers father,
Female sapindas would be mother, mothers
mother, fathers mother, fathers fathers
mother, fathers fathers fathers mother,
fathers mothers fathers mother, fathers
mothers mother, daughter, daughers
daughter, sons daugher, sons sons
daugher, and sons sons sons daugher.

 The sapinda relationship under the

ancient Hindu law was, the bride
should not fall within 7 degrees from
fathers side and 5 degrees from the
mothers side;
By the Hindu Marriage Act, 1955 the
sapinda is confined to 3 generations
upward from the mothers side and 5
generations upward from fathers
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;

 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.

 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.