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Validity of Online Marriages, under Hindu and Muslim Personal Laws

Part 1: Online Marriage Between X&Y When They Are Physically Together And Priest Is Solemnizing Marriage Online.

Hindu Law:

in the current case, presuming all the conditions fulfilled prescribed by Section 5 of the Hindu Marriage i.e. neither party had a spouse living at time of the marriage, neither party is incapable of giving a valid consent, to it in consequence of unsoundness of mind or capable of giving a valid consent, has been suffering from mental disorder unfit for marriage or procreation of children, has been subject to recurrent attacks of Insanity, the bridegroom has completed age of 21 and bride completed age of 18 at time of marriage, parties are not within the degree of prohibited relationship, or Sapindas to each other unless the customs allows the same.

In the present case, focus should be put upon Section 7 which prescribes that any Hindu marriage may be solemnized, only when the customs and ceremonies are done according to the conditions prescribed in it, and these customs and ceremonies decide the validity of the marriage, in the current case, when a priest is solemnizing marriage online, and bride and groom are at a same place, it can be assumed that, all customs and ceremonies such as tying of tali, exchange of garlands and completion of saptapadi, which constitutes a valid Hindu Marriage, it has also been held in Re Ponuswami[1], by Justice Chandra Reddy, that tying of tali in the presence of an idol in the temple was a form of customary marriage, and that even without a priest officiating the same.

There was a complete marriage. In the present case, the priest was virtually present and it can be assumed that, the marriage was being solemnized according to all the customary practices, with bridegroom and bride completing the same, thus constituting a valid Hindu Marriage. Hence in the current case it can be stated that, even if a priest is not officiating a marriage or officiating a marriage virtually through online format, as long as the conditions under section 5 and section 7 are fulfilled, a Hindu marriage is valid.

Muslim Law:

For a valid marriage (Nikah) in Muslim law, the essentials are:
  1. firstly capacity to marry, i.e. parties should have attained puberty, the parties should be of sound mind, this is also essential as Muslim marriage is contractual in nature.
     
  2. Secondly Marriage should in a form of acceptance and proposal, i.e. there should be a proposal from one end and acceptance from another. In Shia community of Muslims, witnesses aren't necessary to constitute a valid marriage, but in Sunni community of Muslims, witnesses should be there at least two males or one and two females who should be sane and adult persons, however there absence would not make a marriage void but only render it as irregular.[2]
     
  3. Thirdly the parties to should not be in a degree of prohibited relationship, like mother and son, grandmother and grandson, brother and sister, uncle and niece, nephew and aunt. Also the presence of dower is an essential to nikah, a sum of money which the bride receives from the bridegroom or his relatives in consideration of the marriage. Even if the dower is not specified at time of marriage, it will not render the marriage void but an agreement to pay a proper dower would be implied.
Blending the above conditions with the present scenario given, it can be presumed that all the conditions are being fulfilled by the parties to the marriage who are at a same geographical location, and the nikah is being pronounced by the priest through video call, though the facts are unclear about the witnesses, still the marriage would not be void and would only be considered as irregular.

Hence it can be stated that, a Muslim marriage in which both bride and groom are at a same place and a priest is solemnizing the marriage through video call, is valid according to Muslim Law.

Part 2: Online Marriage Between X&Y When They Are Physically At Different Geographical Locations And Priest Is Solemnizing Marriage Online.

Hindu Law:

In the current case, presuming all the conditions fulfilled prescribed by Section 5 of the Hindu Marriage i.e. neither party had a spouse living at time of the marriage, neither party is incapable of giving a valid consent, to it in consequence of unsoundness of mind or capable of giving a valid consent, has been suffering from mental disorder unfit for marriage or procreation of children, has been subject to recurrent attacks of Insanity, the bridegroom has completed age of 21 and bride completed age of 18 at time of marriage, parties are not within the degree of prohibited relationship, or Sapindas to each other unless the customs allows the same.

In the present case, focus should be put upon Section 7 which prescribes that any Hindu marriage may be solemnized, only when the customs and ceremonies are done according to the conditions prescribed in it, and these customs and ceremonies decide the validity of the marriage, in the current case, when a priest is solemnizing marriage online, and bride and groom are at different geographical locations, it can be assumed that, all customs and ceremonies such as tying of tali, exchange of garlands and completion of saptapadi cannot be completed, which are essential to constitutes a valid Hindu Marriage, it has been held in case of S. Nagalingam vs Shivagami[3].

It was being held that a Hindu marriage may be solemnized in accordance with the customary rites of either party (bridegroom or bride). Even a simple ceremony of exchanging garlands, tying a thali (Mangal sutra) or putting a ring upon the finger is sufficient to constitute a valid Hindu marriage.

Thus we can understand that, even if all the ceremonies prescribed, are not performed, one of it should be performed, which is not possible in current case as both groom and bride are at geographically different places. Hence we can state that, a Hindu Marriage in which the bride and groom are at geographically different location, and the priest is solemnizing the marriage virtually through online mode, is not valid.

Muslim Law:

For a valid marriage (Nikah) in Muslim law, the essentials are:

  1. firstly capacity to marry, i.e. parties should have attained puberty, the parties should be of sound mind, this is also essential as Muslim marriage is contractual in nature.

  2. Secondly Marriage should in a form of acceptance and proposal, i.e. there should be a proposal from one end and acceptance from another. In Shia community of Muslims, witnesses aren't necessary to constitute a valid marriage, but in Sunni community of Muslims, witnesses should be there at least two males or one and two females who should be sane and adult persons, however there absence would not make a marriage void but only render it as irregular.[4]

  3. Thirdly the parties to should not be in a degree of prohibited relationship, like mother and son, grandmother and grandson, brother and sister, uncle and niece, nephew and aunt. Also the presence of dower is an essential to nikah, a sum of money which the bride receives from the bridegroom or his relatives in consideration of the marriage.

Even if the dower is not specified at time of marriage, it will not render the marriage void but an agreement to pay a proper dower would be implied. Blending the above conditions with the present scenario given, it can be presumed that all the conditions are being fulfilled by the parties to the marriage who are at different geographical location, and it is not essential for the groom and bride to be at a same location during the nikah ceremony, here the nikah is being pronounced by the priest through video call, though the facts are unclear about the witnesses, still the marriage would not be void and would only be considered as irregular.

Hence it can be stated that, a Muslim marriage in which both bride and groom are at different geographical locations and a priest is solemnizing the marriage through video call, is valid according to Muslim Law.

End-Notes:
  1. AIR 1950 Mad. 777
  2. Subba Rao Twarakavi Venkata et al., G.C.V. Subba Rao's family law in India: (Hindu, Muslim, Christians and Parsi) ; an exhaustive commentaries on: uncodified Hindu law, Hindu Marriage Act, 1955, (as amended by Act 49 of 2001), Hindu Adoptions and Maintenance Act, 1956, Hindu Minority and Guardianship Act, 1956, Hindu Succession Act, 1956, (as amended by Act 39 of 2005) (Gogia) (2006)
  3. 2001 7 SCC 487
  4. Subba Rao Twarakavi Venkata et al., G.C.V. Subba Rao's family law in India: (Hindu, Muslim, Christians and Parsi) ; an exhaustive commentaries on: uncodified Hindu law, Hindu Marriage Act, 1955, (as amended by Act 49 of 2001), Hindu Adoptions and Maintenance Act, 1956, Hindu Minority and Guardianship Act, 1956, Hindu Succession Act, 1956, (as amended by Act 39 of 2005) (Gogia) (2006)

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