Discuss the essentials of a valid Hindu Marriage under the Hindu Marriage Act, 1955.
Category : Family Law – I
Marriage in Hindu culture is considered to be a sacred ritual. The relation of husband & wife is considered to made far several life times. Once a person enters into marriage it cannot then be easily dissolved. Both have to spend their lives with each other. It is reason that wife is called the second half. There are several synonyms in Hindu Dharamshashtras far husband-wife, husband is also known as ‘Bhartar’, Swami because he maintains his wife and wife is his responsibility. He is also called the ’Parmeshwar’ because the greatest duty of wife is the service of her husband. Similarly wife is called ‘Jaya’ because child is born through her. Wife is also called ‘Lakshmi’ she is the best friend of husband. Every person is required to marry not only for child birth but also for the performance of religious and spiritual duties and to release the father from his dept.
ESSENTIAL CONDITIONS OF VALID HINDU MARRIAGE
Section 5 of Hindu marriage act 1955 mentions essential conditions of marriage, which are as under :-
i) Either of the parties at the time of marriage shall not have a living husband or wife. ii) Either of the parties at the time marriage shall not be unsound mind effected or retarded of mental development.
iii) Male shall be of 21 years and female of 18 years of age at the time of marriage.
iv) Unless both the parties are governed by their custom or usage the marriage shall not occur between parties under degrees of prohibited relationship.
v) Unless both the parties are governed by their custom or usage the marriage shall occur between parties related to each other by sapinda. Section 7 of the Act also mentions another condition for valid marriage. According to it, marriage shall be solemnised according to customary tradition and rituals. Where saptpadi is necessary it required to be performed compulsoryily. Case : Sujeet Kaur v/s Garja Singh 1994, it was proved. But in the case of Nilabba Somnath Tarapur v/s Divisional Controller KSRTC Bijapur -2002, it was held that where saptpadi is not necessary according to tradition and rituals there a marriage solemnised without Saptpadi shall also be valid. Section 8 of the act is provides for the registration of marriage but it is not necessary although Kangawai v/s Saroj -2002, It was recommended to make the registration of Marriage necessary. Now there are some slight changes have been made in the Hindu Marriage Act, 1955 and certain conditions has been imposed far a valid marriage which gives it a farm of agreement :
1. The parties of marriage shall be major i.e. male should be above 21 years of age and female should be above l8 years of age.
2. Both parties should be of sound mind.
3. Provision of dissolution of marriage.
4. Saptpadi not necessary.
However there are certain provision of Hindu Marriage Act, 1955 which makes it sacred in its nature :-
1. Marriage of minor shall not be considered to be void or voidable.
2. Unsoundness shall not be the ground of void marriage, rather shall be for voidable marriage.
3. The law & procedure of dissolution of marriage is not simple.
4. Where Saptpadi is necessary it has to be performed.
5. Caste based customs and usage in marriage are recognised.
6. Marriage not allowed among sapinda prohibited relations.
As to the question of marriage when there is already living husband or wife. It was held in the case of Rampyari v/s Dharamdas 1984: “that if any one performs second marriage when there is already living husband or wife, then such marriage shall be void.”
EFFECT OF VOILATION OF CONDITIONS If the conditions of valid marriage are violated then it shall have the following effects :- 1. i) When at the time of marriage there is living husband or wife of any party. ii. When parties of marriage fall within Sapinda reation. iii. When parties of marriage fall within degrees of prohibited relationship. 2. If at the time of marriage if any one is un-sound mind effected or retarded of mental growth then such marriage shall be voidable.
3. If essential condition of age as to marriage has been violated then it shall be punishable under section 18 of the Act, but such marriage shall neither be void nor voidable. ARYA SAMAJ MARRIGE Such marriages have been recognised under Arya Samaj Marriage Validification Act 1937. SECOND MARRIAGE IN CASE OF LOST PARTY Several times a question arrises that if any party to marriage has been lost then whether second party can enter into second marriage? Section 13(1)(vii) of Hindu Marriage Act 1955 has to be analyzed in this respect. It provides that it nothing has been heared about the living or non living of any party to the marriage during the period of seven years or more, then a decree of dissolution of marriage could be passed on this ground. Thus a second marriage could be performed after obtaining the decree of dissolution of marriage on above ground. In fact a person unknown far a period of seven years or more is considered to have civil death. Thus at present circumstances the nature of marriage is neither completely ‘sacred’ nor completely ‘agreement’. It is a mixture of both. It consist of both.