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 unionMarriage 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
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
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
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:
- Neither party has a spouse living at the time of the marriage;
- At the time of the marriage, neither party:
- Is incapable of giving a valid consent to it in consequence of unsoundness
of mind ; or
- 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.
- Has been subject to recurrent attacks of insanity or epilepsy;
- The bridegroom has completed the age of twenty one years and the bride
the age of eighteen years at the time of the marriage;
- 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
- The parties are not Sapindas of each other, unless the custom or usage
governing each of them permits a marriage between them
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
7. Ceremonies for a Hindu Marriage:
- A Hindu marriage may be solemnized in accordance with the customary
rites and ceremonies of either party thereto.
- 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
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.
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
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 marriagesSection 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
- Bigamous marriage if at the time of a marriage either party has a spouse
living the marriage will be held to be void.
- The parties to the marriage are Sapinda to each other
- Parties to the marriage are within prohibited degrees
- When the proper ceremonies of marriage have not been performed
- 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:
- 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:
- that the marriage has not been consummated owing to the impotence
- that the marriage is in contravention of the condition specified in
clause (ii) of section 5
- 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
- that the respondent was at the time of the marriage pregnant by some
person other than the petitioner.
- Notwithstanding anything contained in sub-section (1), no petition for
annulling a marriage:
- on the ground specified in clause (c) of sub-section (1) shall be
- 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
- 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;
- on the ground specified in clause (d) of sub-section (1) shall be
entertained unless the Court is satisfied:
- that the petitioner was at the time of the marriage ignorant of the
- 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
- that marital intercourse with the consent of the petitioner has not
taken place since the discovery by the petitioner of the existence of the
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
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
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
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
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
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.
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:
- jurisdiction under this Act may, at the time of passing any decree or at any
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
- 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.
- 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.
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.
- Paras Diwan Modern Hindu Law (Allahabad Law Agency, Allahabad, 2019)
- Sneha R Iyer , Relations of Nature of Marriage : 1 International Journal of
Law , Management and Humanities, 2018
- Dinshaw Mulla , Mulla's Hindu Law, (Lexis Nexis, Gurgaon,2018)