Detail of MARRIAGE

MARRIAGE

MARRIAGE

                                                                                                         

Marriage is a matrimonial union and socially sanctioned union of a male and a female or as a secondary institution devised by society to sanction the union or mating of a male and a female for the purposes of

1.      entering into sex relations,

2.      procreating children,

3.      establishing household, and

4.      providing welfare and protection to children from the marriage.

The international Covenant of Civil and Political Rights which, under Article 23, recognises the right of men and women of marriageable age to marry and to have a family. It also states that no marriage shall be entered into without the free and full consent of the intending spouses.

   Lata Singh v. State of U.P. was a case of parental opposition to inter-caste marriage. In this case, the Supreme Court held that the right to marry is a fundamental right under Article 21 of the Constitution (right to life and personal liberty). Both the husband and wife in the case  were adults and were free to marry anyone of their own choice. There was no bar to an inter-caste marriage under the Hindu Marriage Act or under any other law. The State  was directed to protect such couples and assist in the realisation of their right.

   Marriage gives rise to legal rights and liabilities unlike live-in relationships where there are limited rights. Secondly, prenuptial contracts have no legal validity in India and the courts do not recognise them and finally, Indian law also does not recognise contract marriage or same sex marriage. The Five-judge Constitution Bench in Navtej Singh Johar v. Union of India, held Section 377 IPC unconstitutional insofar it criminalised gay sex between consenting adults. The Supreme Court has recognised the rights of the community without going into the question of civil rights such as same-sex marriage, inheritance of property, etc.

Valid, void and voidable marriage

According to Hindu Law, marriage is one of the 16 sacraments of every Hindu's life.

    Hindu marriage is no longer an entirely sacramental and an indissoluble union- as widow marriages are permitted and divorce is also allowed.

Conditions of marriage

Under the HMA the marriage must be between two Hindu as defined under Section 2(1) read with Section 2(3). That is, a marriage can take place under this Act between not only "Hindu", but also those who are considered Hindu for purposes of this Act; for example, Virashaiva-a Ligayat, etc., Buddhists, Jains or Sikhs, and all those who are not Muslim, Christian, Parsi or Jew by religion.

     A marriage of a Hindu to another, professing another faith, is void.

Monogamous marriage

The HMA, abolished polygamy. According to HMA neither party to marriage should have a spouse living at the time of marriage [S. 5(i), read with S. 11].

     In Sarla Madgal v. Union of India and Lily Thomas v. Union of India the court held that if a person married under the HMA adopts Islam, he is not freed from the rule of monogamy as laid down under the HMA.

Prohibited marriages

A Hindu cannot marry within degrees of prohibited relationships and sapindas. Prohibited relationships cover relationships that are usually considered as incestuous.

   Marriage to sapindas  is not valid. With reference to the provision in the HMA, sapindas extend 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 lines of ascent are traced upwards in each case from the person concerned who is to be counted as the first generation, they are said to be sapindas of each other who lie within the common line of ascent within the limits of sapinda.

    Marriage within degrees of prohibited relationships [S. 5(iv), read with S. 11] and to sapindas [S. 5(v), read with S. 11]  is void.

Consent

As a condition of marriage from Section 12(1)(c); where the consent of the respondent or respondent's guardian is obtained by force or fraud the marriage is voidable under Section 12(1)(c). As required by Section 5, where there is no consent because of unsoundness of mind, mental disorder or insanity the marriage is voidable under Section 12(1)(c). In Babui Panmto kuer v. Ram Agya Singh the court held that misrepresentation about the particulars of the bridegroom by the petitioner's father would amount to fraud so as to give the bride a ground for annulment of marriage.

 

Insanity or idiocy of a party

According to Section 5(ii), person getting married should 1) be sound enough to give consent to the marriage, 2) not be suffering from a mental disorder that makes him/her unfit for a) marriage and b) for having children, and 3) not be having recurrent attacks of insanity.

     If the respondent is incapable of giving consent at the time of marriage due to unsoundness of mind, mental disorder or insanity, the marriage is voidable.

 

Impotency

According to Section 12(1)(a) HMA if the marriage has not been consummated due to the impotency of the respondent, the marriage is voidable. When a ground of impotency is claimed, it is to be kept in mind that impotency should be permanent and of such nature that the marriage cannot be consummated. Impotency can be mental, caused by nervousness or hysteria.

 

 

Wife must not be pregnant at the time of marriage

If the wife is pregnant by some person other than the husband at the time of marriage, the marriage is voidable.

Majority

According to Section 5(iii) HMA, the bride should not be less than 18 years and bridegroom not less than 21 years at the time of marriage.

    The Prevention of Child Marriage Act, 2006 governs all marriages which are contracted between minors and mandates a minimum age for getting married under the Act. It states in the definition clauses that a "Child" is a person under 21 years of age, for a boy, and under 18 years of age, for a girl. Section 3 of the Act prohibits any marriages between two children, and the nature of such marriages are voidable, at the option of the party which is a child.

   A person who procures a marriage to be solemnised, in contravention of Section 5(iii) HMA, is also punishable under Section 18(a) HMA.

Marriage ceremonies and formalities

A Hindu marriage is a sacrament and its completion requires certain ceremonies to be performed by the parties to marriage. Section 7 of the Act lays down the required ceremonies:

         7. Ceremonies for a Hindu marriage.- (1) A Hindu marriage may be solemnized in     accordance with the customary rites and ceremonies of either party thereto.

       (2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the scared fire), the marriage becomes complete and binding when the seventh step is taken.

The Supreme Court held in Shankar Lokhande v. State of Maharashtra  that just any rites and ceremonies will not solemnise a Hindu marriage, it is the customary rites and ceremonies that are essential.

     Thus, without performing ceremonies no man and woman can become a husband and a wife. If the essential ceremonies of marriage are not performed, then the marriage is void ab initio and, therefore, if such a person marries another by performing the essential ceremonies, he/she will not be held guilty of bigamy. This is because the first marriage was no marriage in the eyes of law and that is why the question of bigamy does not arise.

 

Presumption of living together

Living together under one roof as husband and wife does not give the status of a husband and a wife. Where a man and a woman have been proved to have lived as husband and wife, the law will presume, until contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.

     S.P.S. Balasurbramanyam v. Suruttayan laid down the rule that if some male and female live together for a very long time and they live as husband and wife, there arises an inference of their marriage. But such a inference or presumption is rebuttable.

    In D. Veluswamy v. D. Patchaiammal, the court laid down the following parameters:

1.      The parties must have voluntarily co-habited and held themselves out to the world as akin to spouses for a significant amount of time.

2.      The parties should have a "shared household" as defined under Section 2(s), Domestic Violence Act. Merely spending weekends, vacations or one night does not constitute a domestic relationship under Section 2(f), Domestic Violence Act.

3.      Not all domestic relationships constitute a presumed marriage as several parameters have to be satisfied in order to constitute a relationship in the nature of marriage.

4.      Relationship with "keep" whom a man uses for sexual purposes and/or as a servant does not constitute a relationship in the nature of marriage.

 

Registration

Section 8 HMA provides for registration of Hindu marriages. The validity of any Hindu marriage shall in no way be affected by the omission to make the entry of marriage in the register. Rules for compulsory registration of marriages shall not be made in such a way that failure to register a marriage would affect its validity.

     The Supreme Court in Seema v. Ashwani Kumar made direction that the marriages of all persons who are citizen of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnised.

 

Unisex marriage

The Five-Judge Constitution Bench in Navtej Singh Johar v. Union of India,  has recognised the rights of the LGBTQ community without going into the question of civil rights such as same-sex marriage, inheritance of property, etc. Earlier, Naz Foundation v. Govt. (NCT of Delhi), concluded that Section 377 IPC denies a person's dignity and criminalises his or her code identify solely on account of his or her sexuality and thus violates Article 21 of the Constitution.

 

Dowry

Consideration in any form in relation to marriage amounts to dowry. Giving and taking of dowry for marriage are strictly prohibited as per the provisions of the Dowry Prohibition Act, 1961 (DPA).

     Sections 3 and 4 DPA prescribes penalty for both giving and taking dowry which extends to both imprisonment and/or fine and also for demanding dowry directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom.

    In Satvir Singh v. State of Punjab,  the court clarified that gifts given by the parents of a bride/bridegroom at the time of marriage do not amount to dowry. Other payments which are customary payments, for example given at the time of birth of a child or other ceremonies as are prevalent in different societies, are not covered by the expression "dowry".

 

Sati

Sati was formally abolished after the enactment of Commission of Sati (Prevention) Act, 1987.

      The Act under Section 4 also seeks to punish abettors of crime who include not only people who instigate such commission of offence but also bystanders who shout slogans promoting such culture. Further, under Section 5 glorification of the custom of sati is also considered an offence and is punishable under law.