FAMILY LAW-I (201)
Unit-I: Hindu Marriage and Dissolution
a. Institution of Marriage under Hindu Law
i. Evolution and Concept of the Institution of Marriage
Marriage, also called matrimony or wedlock, is a socially or ritually recognized union or legal
contract between spouses that establishes rights and obligations between them, between them
and their children, and between them and their in-laws, as well as society in general. The
definition of marriage varies according to different cultures, but it is principally an institution in
which interpersonal relationships, usually sexual, are acknowledged. In some cultures, marriage
is recommended or considered to be compulsory before pursuing any sexual activity. When
defined broadly, marriage is considered a cultural universal.
Individuals may marry for several reasons, including legal, social, libidinal, emotional,
financial, spiritual, and religious purposes. Whom they marry may be influenced by socially
determined rules of incest, prescriptive marriage rules, parental choice and individual desire. In
some areas of the world, arranged marriage, child marriage, polygamy, and sometimes forced
marriage, may be practiced as a cultural tradition. Conversely, such practices may be outlawed
and penalized in parts of the world out of concerns for women's rights and because of
international law. In developed parts of the world, there has been a general trend towards
ensuring equal rights within marriage for women and legally recognizing the marriages
of interfaith or interracial, and same-sex couples. These trends coincide with the broader human
rights movement.
Marriage can be recognized by a state, an organization, a religious authority, a tribal group, a
local community or peers. It is often viewed as a contract. Civil marriage, which does not exist in
some countries, is marriage without religious content carried out by a government institution in
accordance with the marriage laws of the jurisdiction, and recognised as creating the rights and
obligations intrinsic to matrimony. Marriages can be performed in a secular civil ceremony or in
a religious setting via a wedding ceremony. The act of marriage usually creates normative or
legal obligations between the individuals involved, and any offspring they may produce. In terms
of legal recognition, most sovereign states and other jurisdictions limit marriage to opposite-sex
couples and a diminishing number of these permit polygyny, child marriage, and forced
marriages. Over the twentieth century, a growing number of countries and other jurisdictions
have lifted bans on and have established legal recognition for interracial marriage, interfaith
marriage, and most recently, same-sex marriage. Some cultures allow the dissolution of marriage
through divorce or annulment. In some areas, child marriages and polygamy may occur in spite
of national laws against the practice.
Since the late twentieth century, major social changes in Western countries have led to changes
in the demographics of marriage, with the age of first marriage increasing, fewer people
marrying, and more couples choosing to cohabit rather than marry. For example, the number of
marriages in Europe decreased by 30% from 1975 to 2005.
Historically, in most cultures, married women had very few rights of their own, being
considered, along with the family's children, the property of the husband; as such, they could not
own or inherit property, or represent themselves legally (see for example covertures). In Europe,
the United States, and other places in the developed world, beginning in the late 19th century and
lasting through the 21st century, marriage has undergone gradual legal changes, aimed at
COPYRIGHT FIMT 2020 Page 3
,improving the rights of the wife. These changes included giving wives legal identities of their
own, abolishing the right of husbands to physically discipline their wives, giving wives property
rights, liberalizing divorce laws, providing wives with reproductive rights of their own, and
requiring a wife's consent when sexual relations occur. These changes have occurred primarily
in Western countries. In the 21st century, there continue to be controversies regarding the legal
status of married women, legal acceptance of or leniency towards violence within marriage
(especially sexual violence), traditional marriage customs such as dowry and bride price, forced
marriage, marriageable age, and criminalization of consensual behaviours such
as premarital and extramarital sex.
ii. Forms, Validity and Voidability of Marriage
Forms of marriage
The ancient Hindu law recognised three forms of Shastric marriages as regular and valid. These
were Brahma (bride given gift by father), Gandharva (mutual agreement of bride and
bridegroom) and Asura (bride virtually sold by the father). The first and the third are arranged
marriage whereas the second one is love marriage.
Forms of marriages in modern Hindu law: The Hindu marriage Act, 1955, does not specially
provide for any forms of marriage. The Act calls marriage solemnized under the Act as Hindu
marriage which may be performed in accordance with shastric rites and ceremonies or in
accordance with the customary ceremonies prevalent in the community to which bride or
bridegroom belongs. However, it does not mean that a marriage cannot take any of the aforesaid
forms now. Marriage can still be entered into in anyone of the three forms.
Looking at from another aspect in Hindu society there are mainly two forms of marriages:
arranged marriages and love marriages. Most Hindu marriages are still arranged marriages. An
arranged marriage may be either in the form of Brahma marriage or in the form of Asura
marriage. Among the Sudras, the Asura form of marriage is very common. Among the high-class
Hindus, the Brahma form of marriage is common. The Gandharva form of marriage is fast
becoming popular among the younger generation.
Ceremonies
Marriage among Hindus being a religious and sacred tie, performance of certain ceremonies is
still necessary for a valid marriage. There were three important stages wherein certain
ceremonies were to be performed. They were:
1. Betrothal or Sagai: it is a formal promise to give the girl in marriage.
2. Kanyadan: It is actual giving away of the girl in marriage by her father.
3. Saptapadi: it consisted in performing a ceremony of taking seven steps before the sacred fire
by the bride and the groom. The performance of Saptapadi marked the completion of a marriage.
It made the marriage irrevocable.
As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the
ceremonies of marriage, its non performance will invalidate the marriage. The performance of
vedic rights is not enough to solemnise the marriage.
COPYRIGHT FIMT 2020 Page 4
,Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi.
It may be totally non-religious ceremony or it may be very simple ceremony. For instance,
among santhals smearing of vermilion by bridegroom on the forehead of the bride is the only
essential ceremony.
Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the bride or
bridegroom, must be performed otherwise marriage will not be valid. No one can innovate new
ceremonies and a marriage performed with the innovated ceremonies and rites is invalid. Hindu
Marriage Act allows inter-caste marriages. But marriage between a Hindu and a non Hindu is not
permissible under Hindu Marriage Act and such a marriage if performed in India, will be invalid.
But foreign country such marriage is valid. Such marriage is also valid in India, if performed
under the Special Marriage Act, 1954.
Conditions for the validity of marriage (Section 3 and 5)
A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled,
namely :–
(i) Neither party has a spouse living at the time of the marriage;
(ii) At the time of the marriage, neither party.
(a) Is incapable of giving a valid consent to in consequences of unsoundness of mind; 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 the procreation of children; or
(c) Has been subject to recurrent attacks of insanity or epilepsy.
(iii) The bridegroom has completed the age of twenty one (21) years and the bride the age of
eighteen years at the time of marriage.
(iv) 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;
(v) The parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two.
Ingredients of Section 5
Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both
the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other
a non Hindu or both are non Hindus, the marriage will not be a subject matter of this Act but will
relate to some other law i.e. Special Marriage Act etc.
Clause (i) – Condition of monogamy
This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither
party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If the
spouse is alive at the time of marriage that could bar the remarriage of a person. However one
must note that the first marriage of a person should be a legally valid marriage. In spite of one’s
valid marriage if the person remarries in violation of Section 5(i), the second marriage will be
null and void and he will be subjected to penal consequences. The Scheduled Tribes are
COPYRIGHT FIMT 2020 Page 5
, exempted from the application of the Act. But there must be a proved custom to this effect.
Bigamy – Section 5(i)
Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and
Section 17 makes it a penal offence for both Hindu males and females under Section 494 and
495 of IPC. 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. In the case of a
bigamous marriage, the “second wife” has no status of wife.
Clause (ii) – Condition regarding mental health or capacity
Sub clause (a) requires that at the time of marriage neither party is incapable of giving a valid
consent to marriage due to unsoundness of mind.
Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither
party to marriage should be suffering from a mental disorder of such nature and to such a degree
as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan Singh v. Jit
Kaur, the court held the marriage void on the ground that wife was suffering from schizophrenia
within short period after marriage and the disease was not disclosed to the husband before
marriage.
Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of
insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even
during a lucid period.
Post marriage mental illness: If a party to a marriage is not suffering from any mental defect
described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this
condition.
Clause (iii) – Condition of marriageable age
According to this clause, at the time of marriage the bride must have completed the age of 18
years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage
Act. However, violation of this condition does not make the marriage void or voidable. It means
that it is valid though it may attract penalties. But it can become a valid ground for repudiation of
the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for
punishment for such marriage.
According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or
herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or
with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male
above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months
imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978
has also raised the age of marriage of girl to eighteen.
Clause (iv) – Avoidance of degrees of prohibited relationship
The parties to marriage must not fall within the degree of prohibited relationship. This
COPYRIGHT FIMT 2020 Page 6
Unit-I: Hindu Marriage and Dissolution
a. Institution of Marriage under Hindu Law
i. Evolution and Concept of the Institution of Marriage
Marriage, also called matrimony or wedlock, is a socially or ritually recognized union or legal
contract between spouses that establishes rights and obligations between them, between them
and their children, and between them and their in-laws, as well as society in general. The
definition of marriage varies according to different cultures, but it is principally an institution in
which interpersonal relationships, usually sexual, are acknowledged. In some cultures, marriage
is recommended or considered to be compulsory before pursuing any sexual activity. When
defined broadly, marriage is considered a cultural universal.
Individuals may marry for several reasons, including legal, social, libidinal, emotional,
financial, spiritual, and religious purposes. Whom they marry may be influenced by socially
determined rules of incest, prescriptive marriage rules, parental choice and individual desire. In
some areas of the world, arranged marriage, child marriage, polygamy, and sometimes forced
marriage, may be practiced as a cultural tradition. Conversely, such practices may be outlawed
and penalized in parts of the world out of concerns for women's rights and because of
international law. In developed parts of the world, there has been a general trend towards
ensuring equal rights within marriage for women and legally recognizing the marriages
of interfaith or interracial, and same-sex couples. These trends coincide with the broader human
rights movement.
Marriage can be recognized by a state, an organization, a religious authority, a tribal group, a
local community or peers. It is often viewed as a contract. Civil marriage, which does not exist in
some countries, is marriage without religious content carried out by a government institution in
accordance with the marriage laws of the jurisdiction, and recognised as creating the rights and
obligations intrinsic to matrimony. Marriages can be performed in a secular civil ceremony or in
a religious setting via a wedding ceremony. The act of marriage usually creates normative or
legal obligations between the individuals involved, and any offspring they may produce. In terms
of legal recognition, most sovereign states and other jurisdictions limit marriage to opposite-sex
couples and a diminishing number of these permit polygyny, child marriage, and forced
marriages. Over the twentieth century, a growing number of countries and other jurisdictions
have lifted bans on and have established legal recognition for interracial marriage, interfaith
marriage, and most recently, same-sex marriage. Some cultures allow the dissolution of marriage
through divorce or annulment. In some areas, child marriages and polygamy may occur in spite
of national laws against the practice.
Since the late twentieth century, major social changes in Western countries have led to changes
in the demographics of marriage, with the age of first marriage increasing, fewer people
marrying, and more couples choosing to cohabit rather than marry. For example, the number of
marriages in Europe decreased by 30% from 1975 to 2005.
Historically, in most cultures, married women had very few rights of their own, being
considered, along with the family's children, the property of the husband; as such, they could not
own or inherit property, or represent themselves legally (see for example covertures). In Europe,
the United States, and other places in the developed world, beginning in the late 19th century and
lasting through the 21st century, marriage has undergone gradual legal changes, aimed at
COPYRIGHT FIMT 2020 Page 3
,improving the rights of the wife. These changes included giving wives legal identities of their
own, abolishing the right of husbands to physically discipline their wives, giving wives property
rights, liberalizing divorce laws, providing wives with reproductive rights of their own, and
requiring a wife's consent when sexual relations occur. These changes have occurred primarily
in Western countries. In the 21st century, there continue to be controversies regarding the legal
status of married women, legal acceptance of or leniency towards violence within marriage
(especially sexual violence), traditional marriage customs such as dowry and bride price, forced
marriage, marriageable age, and criminalization of consensual behaviours such
as premarital and extramarital sex.
ii. Forms, Validity and Voidability of Marriage
Forms of marriage
The ancient Hindu law recognised three forms of Shastric marriages as regular and valid. These
were Brahma (bride given gift by father), Gandharva (mutual agreement of bride and
bridegroom) and Asura (bride virtually sold by the father). The first and the third are arranged
marriage whereas the second one is love marriage.
Forms of marriages in modern Hindu law: The Hindu marriage Act, 1955, does not specially
provide for any forms of marriage. The Act calls marriage solemnized under the Act as Hindu
marriage which may be performed in accordance with shastric rites and ceremonies or in
accordance with the customary ceremonies prevalent in the community to which bride or
bridegroom belongs. However, it does not mean that a marriage cannot take any of the aforesaid
forms now. Marriage can still be entered into in anyone of the three forms.
Looking at from another aspect in Hindu society there are mainly two forms of marriages:
arranged marriages and love marriages. Most Hindu marriages are still arranged marriages. An
arranged marriage may be either in the form of Brahma marriage or in the form of Asura
marriage. Among the Sudras, the Asura form of marriage is very common. Among the high-class
Hindus, the Brahma form of marriage is common. The Gandharva form of marriage is fast
becoming popular among the younger generation.
Ceremonies
Marriage among Hindus being a religious and sacred tie, performance of certain ceremonies is
still necessary for a valid marriage. There were three important stages wherein certain
ceremonies were to be performed. They were:
1. Betrothal or Sagai: it is a formal promise to give the girl in marriage.
2. Kanyadan: It is actual giving away of the girl in marriage by her father.
3. Saptapadi: it consisted in performing a ceremony of taking seven steps before the sacred fire
by the bride and the groom. The performance of Saptapadi marked the completion of a marriage.
It made the marriage irrevocable.
As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the
ceremonies of marriage, its non performance will invalidate the marriage. The performance of
vedic rights is not enough to solemnise the marriage.
COPYRIGHT FIMT 2020 Page 4
,Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi.
It may be totally non-religious ceremony or it may be very simple ceremony. For instance,
among santhals smearing of vermilion by bridegroom on the forehead of the bride is the only
essential ceremony.
Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the bride or
bridegroom, must be performed otherwise marriage will not be valid. No one can innovate new
ceremonies and a marriage performed with the innovated ceremonies and rites is invalid. Hindu
Marriage Act allows inter-caste marriages. But marriage between a Hindu and a non Hindu is not
permissible under Hindu Marriage Act and such a marriage if performed in India, will be invalid.
But foreign country such marriage is valid. Such marriage is also valid in India, if performed
under the Special Marriage Act, 1954.
Conditions for the validity of marriage (Section 3 and 5)
A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled,
namely :–
(i) Neither party has a spouse living at the time of the marriage;
(ii) At the time of the marriage, neither party.
(a) Is incapable of giving a valid consent to in consequences of unsoundness of mind; 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 the procreation of children; or
(c) Has been subject to recurrent attacks of insanity or epilepsy.
(iii) The bridegroom has completed the age of twenty one (21) years and the bride the age of
eighteen years at the time of marriage.
(iv) 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;
(v) The parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two.
Ingredients of Section 5
Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both
the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other
a non Hindu or both are non Hindus, the marriage will not be a subject matter of this Act but will
relate to some other law i.e. Special Marriage Act etc.
Clause (i) – Condition of monogamy
This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither
party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If the
spouse is alive at the time of marriage that could bar the remarriage of a person. However one
must note that the first marriage of a person should be a legally valid marriage. In spite of one’s
valid marriage if the person remarries in violation of Section 5(i), the second marriage will be
null and void and he will be subjected to penal consequences. The Scheduled Tribes are
COPYRIGHT FIMT 2020 Page 5
, exempted from the application of the Act. But there must be a proved custom to this effect.
Bigamy – Section 5(i)
Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and
Section 17 makes it a penal offence for both Hindu males and females under Section 494 and
495 of IPC. 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. In the case of a
bigamous marriage, the “second wife” has no status of wife.
Clause (ii) – Condition regarding mental health or capacity
Sub clause (a) requires that at the time of marriage neither party is incapable of giving a valid
consent to marriage due to unsoundness of mind.
Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither
party to marriage should be suffering from a mental disorder of such nature and to such a degree
as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan Singh v. Jit
Kaur, the court held the marriage void on the ground that wife was suffering from schizophrenia
within short period after marriage and the disease was not disclosed to the husband before
marriage.
Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of
insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even
during a lucid period.
Post marriage mental illness: If a party to a marriage is not suffering from any mental defect
described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this
condition.
Clause (iii) – Condition of marriageable age
According to this clause, at the time of marriage the bride must have completed the age of 18
years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage
Act. However, violation of this condition does not make the marriage void or voidable. It means
that it is valid though it may attract penalties. But it can become a valid ground for repudiation of
the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for
punishment for such marriage.
According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or
herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or
with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male
above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months
imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978
has also raised the age of marriage of girl to eighteen.
Clause (iv) – Avoidance of degrees of prohibited relationship
The parties to marriage must not fall within the degree of prohibited relationship. This
COPYRIGHT FIMT 2020 Page 6
