Define marriage. Explain the essential conditions for a valid marriage? [ R.J.S. 1991]

Marriage:

Marriage under the Act is the voluntary union of one man with one woman to the exclusion of all others satisfied by the solemnisation of the marriage. A marriage may be solemnised in the sense that the parties to it have gone through the customary rites and ceremonies of either party thereto.

S. 5, HMA, 1955 must be r/w S. 7, HMA, 1955 and they both together constitute the essentials for a valid marriage under the Act. Section 5 deals with the conditions for a Hindu marriage and Section 7 of HMA, 1955 deals with Ceremonies for a Hindu marriage.

Conditions for a Hindu marriage (S. 5):

The essentials of a valid marriage between any two Hindus is:-

i) Neither party has a spouse living at the time of marriage

ii) Mental Capacity

iii) Age of parties (Age Limit)

iv) Degrees of prohibited relationship

v) Sapinda Relationship

i) Neither party has a spouse living at the time of marriage:

5(i) enacts that neither party has a spouse living at the time of marriage. Spouse means a lawfully wedded wife or husband. Before a valid marriage can be solemnised, both parties to such marriage must be either single or divorced or widow/widower and only then they are competent to enter into a valid marriage.

Any contravention of this clause makes the marriage void ab initio per S. 11 of the Act. Any contravention can be punished under S. 17 of the Act which deals with punishment of bigamy and provisions of Ss. 494 and 495 of IPC apply accordingly.

In Yamunabai vs. Anant Rao Thiraram Adhar, the Supreme Court has held that the marriage becomes null and void where it is in violation of S. 5(i) and further observed that the wife in a void marriage cannot claim maintenance under S. 125 of Cr.P.C.

ii) Mental Capacity:

S. 5(ii) lays down that at the time of marriage neither party must be suffering from unsoundness of mind, mental disorder or insanity and S. 12(1)(b) renders at the instance of a party such a marriage voidable.

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.

In S. Laxminarayan vs. Shanti, the Hon’ble SC observed that to brand the wife as unfit for marriage and procreation of children it needs to be established

that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a married life.

iii) Age of parties; consent:

The Act does not in terms state that consent of the parties is necessary for a valid marriage but lays down the condition that at the time of marriage the bridegroom must have completed the age of 21 and the bride the age of 18 years u/S. 5(iii). Prior to enhancement of age in 1978, it was 18 years for bridegroom and 15 yrs for bride.

A marriage solemnised in violation of the requirement as to age laid down in this clause is not void or even voidable, but the contravention of the condition is punishable as an offence u/S. 18 of the Act (Gindan & Ors vs. Barelal, DB of MP HC, 05.12.1975) which specifies that it is punishable with rigorous imprisonment which may extend to 2 years or with fine which may extend to 1 Lakh rupees or with both.

The Hon’ble SC has held that a minor spouse can seek relief of nullity of the marriage. (Bhagwati vs. Anil Chaubey, AIR 2017 SC 1957)

In Appala Suramma vs. Ganapatulu, AIR 1975 AP 193, a Division Bench of the Andhra Pradesh HC has observed that the marriage between the two minor children is in contravention of S. 5(iii) of the Act and is void ab initio.

(iv) Degrees of prohibited relationship:

S. 5(iv) enacts that no marriage is valid if it is made between persons related

to each other within the prohibited degrees unless such a marriage is sanctioned by the custom or usage governing both the parties [ u/S. 3(a).] The rules relating to degrees of prohibited relationship are prescribed in the definition clause, S. 3(g) and have been discussed under that clause. They are based on the principle of exogamy. (exogamy - marrying outside blood relationship).

Contravention of this clause is punishable as an offence u/S. 18 of the Act which specifies that it is punishable with simple imprisonment which may extend to 1 month or with fine which may extend to 1 Thousand rupees or with both.

(v) Sapinda relationship:

S. 5(v) enacts that no marriage is valid if it is made between parties who are related to each other as sapindas, unless such marriage is sanctioned by usage or custom governing both the parties [ u/S. 3(a).]. When sapindaship is a specific ground for voidability of marriage, the absence of a custom permitting such a marriage will make the marriage void. The rules relating to sapinda relationship are prescribed in the definition clause, S. 3(f) and have been discussed in some detail under that clause.

Sapindas - 2 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 linearl ascendant who is within the limits of sapinda relationship with reference to each of them.

Sapinda relationship with reference to any person extends as far as the 3^rd generation (inclusive) in the line of ascent through the mother and 5^th generation 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 1^st generation.

Ceremonies for a Hindu marriage (S. 7):

A Hindu marriage under the Act must be solemnised in accordance with the customary rites and ceremonies of atleast one of the two parties thereto and must fulfill the conditions prescribed for the same by S. 5 of the Act. The word solemnise means - to celebrate the marriage with proper ceremonies and in due form.

This rule relating to to the essential ceremonies of a Hindu marriage proceeds on the principle that marriage being one of the sanskaras for a Hindu male/female whether belonging to the twice-born castes or a shudra must be performed with the necessary religious rites and at the same time recognises the position that the customary rites and ceremonies vary in different parts of the country and also among different castes and communities.

The customary rites which may be said to be the requirement common in all ceremonial marriages are:

i) invocation before the sacred fire and

ii) Saptapadi (taking of 7 steps by the bridegroom and the bride jointly before the sacred fire (homam, the marriage becomes complete when the 7^th step is taken).

iii) Kanyadaan is another essential ceremony but its absence may not invalidate the marriage

It is just and reasonable that the question of the requisite ceremonies must be adjusted in accordance with the custom and usage followed by them or either of them.

In Deivain Achi vs. Chidambara Chettiar, (AIR 1954 Mad 657), the question of validity of a marriage performed without observing any ceremonies was considered at length. In this case, the marriage between a widow and a widower was solemnised under the auspicious of Anti-Purohit Association of Self Respectors by exchange of garlands and reading out a declaration and no customary rites and ceremonies were performed.

After sometime of marriage, the wife filed a petition against her husband for the offence of bigamy. The husband challenged the validity of marriage on the ground that no religious ceremonies had taken place.

The Madras HC observed that the customary ceremonies cannot be altered by a society or an association of recent date but has to be done by legislation such as the Special Marriage Act and held that the marriage solemnised without religious rites and ceremonies was void.