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Marriage under Hindu Law: valid void and voidable

Unlike the Islamic law which considers marriage as a contract or agreement between the two parties under Hindu law marriage is more of a form of a divine Union between a man and a woman. Hindu law is considered as an idealized institution which can never be broken and it is eternal.

Marriage as a sacrament and sacrosanct union

Marriage is:
A religious sacrament in which a man and a woman are bound in permanent relationship for the physical, social and spiritual purposes of dharma, procreation and sexual pleasure.

The Vedas hold marriage to be one of the important sacraments sanctifying the body. That is why marriage is given great importance by the Hindus. It is said:
That man who does not win a wife is really half, and he is not the full man as long as he does not beget an offspring.

Sacrament is a symbolic religious ceremony to which are often added confirmation, penance, ordination ad matrimony. Considering from this point of view, the Hindu concept of marriage as a sacramental union implies three propositions.

First, marriage among the Hindus is considered divine in nature. It is a religious bond and not a contractual union.

Secondly, a sacramental union implies that it is a permanent bond which does not end in this world or after the death of either partner but it continues even after death, in the next life.

Therefore marriage is considered to be an indissoluble union. Husband must be obeyed throughout the lifetime and the wife should remain faithful to his memory even after his death. It was only in some exceptional cases that the sages allowed the women to abandon her husband and take another. That is when the husband is missing ,when he is dead, when he has become an ascetic, he is impotent and when he is an outcast.

Under Hindu Beliefs a person has seven lives (janam). For marriage is not only for this life but for the whole seven lives. Give rise to the concept of once a wife always a wife. The Hindus sages hold it in clear terms that husband is the lord and master of his wife he must be adored and obey it even if he is devoid of all virtues. The wife is half of man (Ardhangini). So according to the Hindu law A man is incomplete until he marries.

In the Shastra the husband is known as Bharti because he is to support his wife is also known as pati because he is to protect her. Whereas the wife is Grihini the lady of the house in her husband's household , Sachiva wise counsellor., Sakhi confidante of her husband. According to Mahabharata women one but Virtually worships the Goddess of prosperity herself by afflicting her one but afflicts the Goddess of prosperity.

Marriage as an institution which is primarily meant for the performance of religious and spiritual duties therefore such a marriage cannot take place without the performance of Sacred rites and ceremonies. Performance of certain Shastric ceremony is still necessary for Hindu valid marriage. ceremonies have been laid down in minute details in the Grihya Sutra. On the afternoon of the day when marriage is scheduled to be performed the father of the bride or in his absence the next nearest male relative performs the Vridhi Sraha offerings are made to the potted and sisters with a view to obtain blessings for the marriage.

On the same forenoon the ceremony of giving bath to the bride takes place. In the evening the bride groom comes in a procession to the bride's place where he and his party are received with great hospitality. After the arrival of the bride groom the first ceremony performed is known as Sampradana consisting of water for washing the feet water is mixed with flowers, Dhruva grass, rice and sandal paste for washing the head a cushion for sitting and a mixture of honey, curd and ghee.

These are made in between the chanting of certain mantras. This is followed by one of the main ceremonies of marriage the Kanyadan. The father of the bride or in his absence the next Guardian for marriage pours out a Libation of water symbolising the gift of the bride. Sometimes the hands of the bride and bridegroom are tied together with the Khush grass. Right is formally given in gift to the bridegroom who decides the Kamasukta and accept the gift.

Certain presents are also made to the bridegroom which include this of gold as Dakshina. Then the bride's father invokes the bridegroom and tells him never to fail the bride in his pursuit of Dharma, Artha ,Kama ,Moksha to which the bridegroom replies tries that he shall never fail her.

Then the next important ceremony is the Vivah home that is lighting of holy fire symbolising it as divine witness and Shakti fire of the Vivah Sanskara. On the west of the fire is placed a millstone on the North East is placed the water pot. The bridegroom offers obligations to the holy fire in which a bride participates by grasping the hand of the bride groom.

This is followed by a third important ceremony the pani grahana the bridegroom takes the hand of the bride. According to the Grihya Sutra this is to be done by the bridegroom standing up and facing West while the bride sits in front of him facing East. Next in order is the ceremony of Agni parinayana popularly known as pheras, which according to sutras are 3 do in practice they are usually 5 or 7.

This is the ceremony of going around the holy fire where the bridegroom leads the bride three times round the nuptial fire and water pot the couple keeping to the right side of the nuptial fire and water pot. Then comes the fourth and the most important and indispensable ceremony the saptapadi.

Near the Vivaha mandap the bridegroom leads the bright for seven steps in North Eastern direction while reciting certain hymns. Water is then poured on the hands of the couple and certain prayers are recited. On the completion of the seventh step the marriage becomes final and irrevocable

Validity of marriage

Section 7 of Hindu Marriage Act 1955 Section 7(1)

5. Conditions for a Hindu Marriage:

A marriage may be solemnized between 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 as extent as to be unfit for marriage and the procreation of children.
    3. Has been subject to recurrent attacks of insanity or epilepsy;
  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 a marriage between them

Monogamy

The Hindu Marriage Act 1995 prohibits bigamy. Bigamy includes both polygamy and polyandry. Therefore under Section 5 of the Earth a person cannot have two spouses simultaneously. Section 11 makes bigamy an offence. Therefore a person marriage and neighbour person during the life time of his or her spouse in that marriage will be void.

However an offence of bigamy is committed only if the required ceremonies of marriage or performed according to the section 7 of the Act. An offence of bigamy will fail if what is established that some sort of ceremonies not the essential ceremonies as prescribed by the law custom performed with the word purpose that the parties r to be taken as Married is immaterial even if it is established that the parties intended seriously to marry and thought that the service performed by them would confer marital status on them.

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 fire), the marriage becomes complete and binding when the seventh step is taken.
In Cases of bigamous marriage , the second wife has no status as a marriage between them is Null and void. Therefore in case of a bigamous marriage second wife has no status of wife. But in case she files a petition for nullity she can claim both interim and permanent maintenance. First wife of a bigamous marriage has no right to file a petition for Nullity under Hindu Marriage Act Section 12 clearly lays down that a petition for nullity of marriage can only be filed by either party to the marriage.

But the first wife can file a suit in a civil court for a declaration under section 9 of CPC read with Section 34 of Specific Relief Act as a second marriage of her husband is Null and void. She can also file a petition for divorce under section 13 (1)(i) adultery.

Capacity to consent
Hindu Marriage Act still does not say that a valid consent is necessary for marriage. Unsound ness of mind incapacitates a person from giving a valid consent to marriage will render the marriage voidable but non consent will not render the marriage void or voidable. Therefore one can hold a position that in Hindu law consent to a marriage is not necessary.

Under clause a of Section 5 every kind of unsoundness of mind is not covered therefore the unsoundness of Mind should be such which incapacitates a person from giving a valid consent to marriage. The unsoundness or insanity of a person need not to be persistent or continuous.

Under clause (b) there are 3 Essentials to render a consent invalid. First mental disorder should be of such a kind as to render the person unfit for marriage, second unfit for procreation of children and thirdly mental disorder should be for some duration of time. No Hard and fast rule has been laid down regarding the duration of mental disorder which would render the consent invalid therefore it depends upon case to case basis.

Word insanity and epilepsy are not qualified with incurable therefore even a recurrent or continuous attacks of insanity can make a person unfit for giving a valid consent. In Balakrishna v. Lalitha Andhra Pradesh high court observed section 12 postulates the recurrence of epilepsy only and addition of curable is tantamount to curing the provision which is an extraneous component and visualized by the act the intention and purport of section 12 is that the recurrence of insanity for epilepsy is sufficient to dislodge the marital tie and the prefix of two curable is not warranted by the act. The burden of proving that the respondent is suffering from any of the mental condition specified in the three classes is on the petitioner.

Majority (age)
For the parties to marry under the Hindu Marriage Act there are certain age restrictions. To constitutes a valid marriage under Hindu law a male should be at least 21 years old and a female at least 18 years old. These restrictions have been placed in a view to curb and restrict the practice of child marriage. The prohibition of Child Marriage Act 2006 states that that if a child marriage takes place, the marriage where the either party or both are children as defined by the act it is voidable at the option of the other party who is the child.

Section 12 makes marriages null and void in the case the child was taken away from the custody of his or her lawful guardian or by force compelled by deceitful means induced to go from any place or sold for the purpose of marriage and made to through a form of marriage or if after the minor is married is sold or trafficked.

Section 9 and 10 prescribe punishment of the adult male marrying a minor girl it is it being rigorous imprisonment up to two years or fine upto 1 lakh rupees or both the latter being for punishment for any person who perform ,conducts, directs or abets such marriage. Bhagwati alias Reena v. Anil Choubey is an interesting case in the sense that husband filed for declaration of marriage as null and void as the wife was below the age of 18 at the time of marriage and secondly marriage was constructed under coercion and threat to life the court held that only a minor spouse has a right to seek annulment and husband who was major cannot seek annulment.

Degrees of prohibited relationship and Sapinda relationship

The prohibition of Sapinda marriage is based on the rule of Exogamy. It means that one cannot marry a person related to him but then three degrees on Mother's side and 5 degrees on the father's side. There are two theories regarding Sapinda relationship. Oblation theory The Hindu Belief in ancestor worship and offer Pind Daan to their Departed and sisters every year in the fortnight offerings are made to the departed ancestors these offerings are mainly in the form of Pinda it's literally means a ball which is usually made up of rice the rule is that one offers a full Pinda each to his two maternal ancestors and one full Pinda each to his 3 paternal ancestors.

Offer theory according to which Sapinda relationship arises between two persons on account of their being connected by particles of one body. This is something like saying that all those who have the same blood are related to each other and therefore are not allowed to marry each other. Definition is too wide as such relationship can exist in eternal circles of birth. It may exist up to 10, 20 or 100 or more generations for long as one can praise his Descent through a male or female to a common ancestor.

Sagotra and sa pravana marriage:

It is believed by the Hindus that each of them is a descendant from one sage or the other all those whose who trace the Descent from the sage have a common gotra. Thus the two persons are gotrajas or belong to the same gotra descendants in the main line from one of the Ancient sages after whose name the gotra is

Void and voidable marriages

Section 11,Void marriages:
Any marriage solemnized after the commencement of this Act, shall be null and void and may , on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clause (i), (iv) and (v) of section 5.

Grounds of void marriage

  1. Bigamous marriage if at the time of a marriage either party has a spouse living the marriage will be held to be void.
  2. The parties to the marriage are Sapinda to each other
  3. Parties to the marriage are within prohibited degrees
  4. When the proper ceremonies of marriage have not been performed
  5. If a person marries within in the time of appeal mentioned in Section 15

A void marriage is void ab initio that means it does not exist right from the beginning. In respect of a void marriage no Court decree is necessary even if the court passes a decree it mainly declares that the marriage is Null and void. Under section 11 can only be made by either party to the marriage.

Section 12.- Voidable marriages:

  1. Any marriage solemnized; whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:
    1.  that the marriage has not been consummated owing to the impotence of the respondent; or
    2. that the marriage is in contravention of the condition specified in clause (ii) of section 5
    3. that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (Act no.2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of ceremony or as to any material fact or circumstance concerning the respondent; or
    4. that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
       
  2. Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage:
    1. on the ground specified in clause (c) of sub-section (1) shall be entertained if:
      1. the petition presented more than one year after the force had ceased to operate, or, as the case may be, the fraud had been discovered; or
      2. the petitioner has, with his for her full consent, lived with the party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
         
    2. on the ground specified in clause (d) of sub-section (1) shall be entertained unless the Court is satisfied:
      1. that the petitioner was at the time of the marriage ignorant of the facts alleged;
      2. that the proceedings have been instituted in the case of marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriage solemnized after such commencement within one year from the date of marriage; and
      3. that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground
        Voidable marriage is a perfectly valid marriage so long as it is not avoided. voidable marriage can be avoided only on the petition of one of the parties to the marriage. If none of the parties do not file a petition for annulment of marriage will remain valid. If one of the parties dies before the marriage is annulled no one can challenge the marriage it will remain valid forever.

Impotency of the spouse

Original under the Hindu Marriage Act 1955 it was later found that if at the time of marriage one of the parties to the marriage was impotent and continued to be so then at the presentation of the petition the other party could sue for annulment of marriage. The marriage law amendment act 1976 has changed the clause thus the marriage has not been consummated on account of impotency of the respondent.

Impotency amounts to inability to perform the sexual intercourse and therefore to consummate the marriage. Impotency can be physical or mental. In this case the burden of proof is always on the petitioner to prove that the consummation of marriage has not taken place on the account of impotence of the respondent. It is not enough to show that the respondent has no interest in marriage or that she or he is inclined towards religious life. Potency in the cases of male means power of erection of male organ plus healthy discharge of semen containing living sperm and the case of females it is periods of menstruation.

In S v. S the wife never menstruate and had no uterus and could not conceive she had vaginal estresia that is an incipient vagina in the form of a cul e sac it being possible to extend the passage by plastic surgery so as to admit full penetration it was held that the wife was not impotent.

Sherwanti v. Bhaura on the medical evidence it was established by the wife for suffering from sterility that is non menstruation. It was also proved that even by surgery these effects could not be solved . on the other hand It was fully established as she was capable of having sexual intercourse though of not bearing children. The court held that but the use of word impotent the legislature did not intend to bring in the idea of sterility or incapacity of conception. Impotence here signifies in capacity to consummate the marriage incapacity to give birth is not impotency.
 
Ganeshji v. Hastuben where the wife on account of structural malformations of vagina was not capable to have sexual intercourse but she underwent surgical operation as a result of which she became capable of having sexual intercourse therefore it was held that she was not impotent. Rajendra v. Shanti where the size of vagina was after surgical operation the court said that the wife was not impotent.

Instance of mental or psychological impotency are emotional, psychological and morally repugnant to the sexual act. M v. S where on the first night of marriage husband tried to consume make the marriage of the wife did not allow him to do so by saying that she was forced to marry him against her wishes it was held that this does not amount to impotency.

Concealment of Pre marriage pregnancy

The requirements are that the respondent was pregnant at the time of marriage, secondly she was pregnant from a person other than the petitioner ,third the petitioner at the time of the marriage did not know of the respondent's pregnancy and fourth the petition was represented within one year of the commencement of the Act in respect of pre marriages and within one year of the marriage in respect of post act marriages and finally marital intercourse did not take place with the consent of the petitioner after the discovery of respondent's pregnancy by the petitioner.

The above conditions must be fulfilled in order to get relief from the court. The dharmshastra Lays down that if a man knowingly marries a pregnant woman and is his wife the son born to her from her marriage pregnancy is to be treated as a legitimate son. The burden of proof is always on the petitioner to prove a pre marriage pregnancy. Pawan Kumar v. Mahesh Kumar the wife was pregnant by some other person and the marriage has broken down immediately but petition was filed belatedly. The fact of Pre marriage pregnancy by other person itself is causing of mental cruelty and therefore the application was converted into decree of divorce.

Consent for marriage obtained by force or fraud

Consent for marriage obtained by force is vitiated under law and therefore stands invalid. Consent is not important under the Hindu law to constitute a valid marriage but a vitiated consent can make a marriage voidable.

The requirements are : first the consent of the petitioner was obtained by force or fraud, second petition must be presented within one year of the discovery of fraud of cessation of force. The petitioner was not have with his or her consent lived with the respondent as husband or wife as the case may be after the discovery of fraud or cessation of force.
Coercion and undue influence are included within the term of force. Force need not to be physical but it also includes threat of violence. Fraud under marital law has the same meaning as under section 17 of the Indian Contract Act.

Marriage laws Amendment Act 1976 laid down that fraud vitiated of the consent should relate to either nature of the ceremony or any material fact or circumstance concerning the respondent.

Ananth v. Lajjabati it was held that the concealment that bride was suffering from consumption was not a ground for avoiding a marriage. But concealment or misrepresentation of disease of serious nature can be enough for annulment of marriage.

Harbhajan v. Brij Bala assurance of respondents father at the time of solemnisation of marriage the girl was a virgin but subsequently it was found that she had given birth to a child before marriage was held not to amount to fraud.

Surjeet v. Harichand the judge observed that an Express misrepresentation by a woman as to her chastity does not by itself amount to fraud. But if the husband attaches so much importance to the past unchastity of his wife he should make specific enquiries from the girls relation at the time of the marriage it is only when he should be able to show that the relations of the girl was aware of the past and they misled him.

Som Dutt v. Raj Kumar the wife was senior to her husband by seven years but this fact was conceived at the time of marriage hence it was amount to fraud. Concealment of previous marriages will amount to fraud.

Anurag v. Sunita monthly income and property status of husband was held to be material facts and circumstances and in event of there been proven to be false it would amount to fraud.

Ancillary relief

Section 24. Maintenance pendent elite and expenses of proceedings.- Where in any proceedings under this Act, it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceedings, such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable. Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be

Section 25. Permanent alimony and maintenance:

  1. jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto , on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
  2. If the Court is satisfied that there is, a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem fit.
  3. If the Court is satisfied that the party in whose favour an order has been made under this section has remarried or, if such party is the wife, that she has not remained chaste, or if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order as the court may deem fit.
Section 24 the maintenance is of temporary kind also known as pendente de lite. This is a kind of interim maintenance which is made during the period of time for which the proceedings are pending. An application for interim maintenance can be made both at the trial court as well as the appellate court. The rule for interim maintenance is that there can be no ex parte decree and court has to decide it as expeditiously as possible.

As under marriage laws Amendment Act 2001 has added the provision to the section to expedite these proceedings -Application would have to be decided as far as possible with in 16 days of service of notice on wife or the husband. In Case of interim maintenance no appeal can be made though revision is maintainable.

No Court can deny maintenance to the wife ,under this section with the object of forcing her into reconciliation. Majority of Courts have taken the view that the maintenance would be applicable from the date of application made in front of the court not from the date of petition for matrimonial relief.

Devaki v. Purshotam High Court rightly observe that the liability to pay interim maintenance could not be avoided in respect the period during which the petition was pending and subsequent dismissal of the petition does not exonerate the non payment from the liability already in incurred. In application for maintenance the court must be satisfied that the respondent has no sufficient means for his or her maintenance and support.

Gita Chatterjee v. Prabhat Kumar
the court said that a word in section 24 would not include other property or assets thus fixing the amount of maintenance pendente Lite the court will have record only to the income of the applicant and not to her or his assets or property not yielding any income.

Permanent maintenance and alimony

An application made under section 25 of the act can only be made in the court with the original petition seeking matrimonial relief in any matrimonial cause has been filed it cannot be filed in any other Court even if it has jurisdiction under section 19. Under this section the court can also grant maintenance for children. Clause 2 also gives power to the court to vary, modify or dis charge any order of permanent alimony at the instance of either party if change in circumstances established.

The order can also be rescinded on 3 grounds mentioned in clause 3 if applicant has remarried or if female became unchaste and in case of male has sexual intercourse with any other woman. Third if there is resumption of cohabitation whatever duration it may be.

Inspecting the amount of maintenance courts takes into consideration the income of both the parties and also the property they have in determining the amount of maintenance on the application of the wife the status of her husband and not her father is material.

Surendra v. Phulwanti the wife became Brahmakumari and took The Vow of celibacy. After she file application for maintenance the husband pleaded that she was responsible for the breakdown of the marriage and therefore not entitled to maintenance. The high court held that wife was the victim of circumstances and therefore was entitled to maintenance.

Conclusion
In the ancient Hindu law the matrimonial that is the marriage was considered to be a sacred Union which was eternal. The modern Hindu law is based on the concept of both ancient text and the modern principles of law. Does it is a combination which takes care of the religious sentiments as well as the problems of the modern daily life.

Bibliography
Primary Sources
  1. Paras Diwan Modern Hindu Law (Allahabad Law Agency, Allahabad, 2019)
  2. Sneha R Iyer , Relations of Nature of Marriage : 1 International Journal of Law , Management and Humanities, 2018
Secondary Sources
  1. Dinshaw Mulla , Mulla's Hindu Law, (Lexis Nexis, Gurgaon,2018)

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