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The Status Of Wife And Children In A Marriage Not Properly Solemnized

The term "solemnization" of a marriage refers to completing all formalities and legal procedures so that the union can be recognized as valid. Only when all conditions are met is a marriage able to be solemnized legally. The status of women and children in weddings which are not solemnized in light of The Hindu Marriage Act, 1955, is the issue that needs to be addressed right now.

At the outset of this investigation, the reason for solemnizing a marriage was investigated. It has been discussed about what The Hindu Marriage Act of 1955 requires for a marriage to be valid as well as the role rituals play in solemnizing marriage. After that, the situation of women in improperly solemnized marriages. Following an examination of the position of children in void and voidable marriage, the loopholes in this kind of marriage, and a thorough case law analysis was conducted.

Marriage is viewed as an essential aspect of humanity and a global social institution. It has been noted that since the dawn of civilization, the state has governed every element of human life, and marriage is not an exception. To respect the principles of religious freedom and the core practices of the many faiths and beliefs that make up India, India does not have only one legal structure governing the institution of marriage but various laws.

There are five marriage acts in India, four of which are for people of different religions and one of which is for people who want to marry out of their religion. These laws include the Hindu Marriage Act of 1955, the Muslim Personal Law (Shariat) Application Act of 1937, the Parsi Marriage and Divorce Act of 1936, the Indian Christian Marriage Act of 1872, and the Special Marriage Act of 1954. These acts cover the various parts of marriage as well as the procedure for solemnizing marriages. Any marriage that has not been solemnized is null and void; only a valid marriage will be accepted by the government. This study is in accordance with Hindu marriage act 1955.

Marriage, in accordance with the Graha Sutra, is regarded as the most significant of 16 samskaras (socio- religious rites within the Hindu belief system). By exercising self-control, cooperation, and self-sacrifice, it is regarded as a sacred relationship between two personalities for the preservation and upkeep of society.

The Vedas claim that Hindus have a religious obligation to be married. The term "solemnization" of a marriage denotes fulfilling all rituals and legal requirements so that the marriage can be recognized as valid. Only when all conditions are met then only the marriage is considered as solemnized legally. Different marriage regulations offer various means to solemnize a marriage depending on the couples respective religions.

Conditions For A Valid Marriage Under Hindu Law

According to Hindu marriage act 1955 Section 5 and 7 deals with the conditions.

Section 5:

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
  1. Neither party has a spouse living at the time of the marriage;
  2. At the time of the marriage, neither party:
    1. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
    2. 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
    3. has been subject to recurrent attacks of Insanity
  3. The bridegroom has completed the age of [twenty-one years] and the bride, the age of eighteen years] at the time of the marriage;
  4. 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;
  5. The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; dealt in section 3(g)

Section 7: Ceremonies for a Hindu marriage.

  1. 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 sacred fire), the marriage becomes complete and binding when the seventh step is taken.

Status of woman under not properly solemnized marriage are:
If the crucial requirements stated in the act are not met, then the marriage is said to have been improperly solemnized.

  • Bigamy:

    Bigamy and polygamy were strictly prohibited for women in the past but not for men. Even though it is forbidden by law, Indian males frequently engage in it. One of the requirements for a valid marriage is that the partners be monogamous. If a spouse gets remarried without first getting divorced from the first partner, the second marriage is regarded as null and void.

    If the husband marries a different woman while his first wife is still alive, the marriage is void and unenforceable, and the second wife will not be eligible for marital rights. Under the Hindu Marriage Act of 1955, the first wife has a special ground for divorce if a husband is a bigamist. And also, A woman who is a man's second wife is not entitled to support under the Hindu Adoption and maintenance Act of 1956 because a second marriage is prohibited.

Narayanaswami v. Padmanabhan

Madras High court ruled that an individual whose marriage breaches Section 5(i) of the Act is not entitled to maintenance under Section 25 of the act.

According to the Hindu Law of Succession, only the first wife has the right to inherit the husband's ancestral property in a bigamous marriage. It wouldn't be applied in any way to the second wife.

Less Than 15 Years Of Age:

If the woman married when she was under the age of 15, the law has granted her a special reason for divorce. If she chooses against being married after turning 15 but before turning 18 years old, she may file for divorce.

Status of children under not properly solemnized marriage are:

One of the expressions of legitimacy, which is a status, is the ability to inherit. Any child born in England is recognized as legitimate, regardless of whether the parents were married or not at the time of the birth. Similar to this, a child born to a couple before their wedding would be accepted as genuine. In simple terms, legitimacy refers to the legal standing of a child born to a legally married couple.

Thirumathi Ramayammal v. Thirumathi Muthammal

It was decided prior to the act's modification in 1976. The illegitimate offspring of a union that was found to be illegal could only legally claim an inheritance right under Section 16 if a nullity decree had been issued; if not, they were unable to do so. This point of view has been viewed as peculiar and incongruous.

S. 16 of the Act's requirement that a nullity order be acquired before a child can establish their legitimacy is obviously inconsistent and could result in serious issues in some circumstances. Polygamous unions, unions that are within banned degrees, and sapinda unions are all regarded as null and invalid marriages under Section 5 of the Act.

The validity of children born to voidable and invalid marriages is covered under Section 16 of the Hindu Marriage Act. It states that regardless of whether a marriage has been deemed null and void, children born into invalid or voidable unions are lawful and are only entitled to their parents' property.

Section 16: Legitimacy of Children of void and voidable marriages

  1. Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such a child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
  2. Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
  3. Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been in capable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

Under the general law a valid marriage alone can confer legitimacy on the children. But Sec. 11 of the Hindu Marriage Act. 1955 contains a beneficent provision conferring legitimacy in certain circumstances on the children of void and voidable marriages for the limited purposes specified in that section. The scope of this section gave rise to some doubts and difficulties which have been removed by the 1976 Amendment.

When there is no solemnization of marriage, of course, the issues are illegitimate. This admits of no doubt. Suppose, a marriage is solemnized but it is void for some reason such as subsistence of previous valid marriage or existence of forbidden degree of relationship between the parties. In such a case where the marriage is set aside by decree of nullity under Sec. 11 the issue of the marriage is regarded as legitimate for the limited purpose of claiming inheritance from the parents whose marriage is declared void. The issue cannot claim inheritance from other relations. That can be done only by issue legitimate in the strict sense as having been the offspring of a valid marriage. About this there is no doubt since Sec. 11 itself is crystal clear on this point.

The further question is as to the status of the children of a void marriage which has not been set aside by a decree of nullity.

In Thulasi Ammal v Gouri Ammal, the propositus (deceased owner) was A. He married B and during the subsistence of this marriage he contracted a bigamous marriage with C. D was A's daughter by C. On A's death D brought the suit claiming inheritance to her deceased father A. This suit was held to be not maintainable on the ground that D was only an illegitimate child. Since there was no decree of nullity it was held that she could not invoke Sec. 11 of the Act. It is respectfully submitted that this conclusion is not supportable.

Section 11 should be understood as meaning that in spite of the decree of nullity; the children should be treated as legitimate for the limited purpose specified in the section. It is not out of the decree of nullity that the rights of these children are stemming. So, the Madras decision is attaching undue importance to the decree of nullity.

The decree of Court after all declares that the marriage is void for violation of the provision specified in the Hindu Marriage Act. That is all that it does. The legitimacy inheres in the children by virtue of the statutory provision and is unaffected by the decree of nullity. No doubt children born as a result of cohabitation subsequent to the decree would be illegitimate.

That is because there can in those circumstances be no subsisting marriage, void or otherwise. But once a marriage is solemnized the children are legitimate even in void (or voidable) marriages for the limited purpose of claiming to the parents. They cannot claim through the parents to other relations. That can be done only by legitimate

Children Of A Valid Marriage.

Last but not least, if a marriage is dissolved for bigamy but it later turns out that the deceased husband of the prior union died and she remarried as a result, the children of this second marriage will be recognized as legitimate before the annulment judgement is made. The Marriage Laws Amendment Act of 1976 (MLAA), which amended Sections 16 of the Hindu Marriage Act (HMA) and Section 26 of the Special Marriage Act (SMA) of 1954, now considers the children of void and voidable marriages to be legitimate, regardless of whether the union was deemed void or not.

The institution of marriage has always been important to Hindus. In the Rig Vedic era and among the majority of Hindus today, it was viewed as a sacred union. Since the 1955 introduction of the Hindu Marriage Act, the perspective on the laws governing Hindu marriages has changed. This act gives the solemnization of marriage a great deal of importance. For a marriage to be regarded as legal, all the rites and essential requirements stipulated in the law must be followed.

There is a discrepancy between marriages that are solemnized and those that are not. The earlier marriages comply with the numerous personal laws of India and are lawful, whereas the latter is not. The spouses and kids of society are impacted by poorly solemnized marriages. In a bigamous marriage, the second wife is not given the same rights as the first wife and is not eligible for the marital status.

The Hindu Marriage Act of 1955 has problems that need to be fixed right away. It features loopholes that permit child marriages, marriages that are recognized without consent from one side, unregistered marriages, and vague language regarding the status of a woman who has been the victim of bigamy.


  1. Hindu marriage act,1955
  2. Special marriage act 1954
  3. Family law in India by Prof.G.C.V. Subba Rao

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