The traditional view of family law is that it is essentially about marriage and its consequences. If a couple is married they automatically have certain rights and duties.
The Hindu Marriage Act 1955 provides for essential conditions for:-
The validity of a Hindu Marriage,
Registration of Hindu Marriages,
Restitution of Conjugal rights,
Nullity of Marriage,
|Essentials of Valid Hindu Marriage:|
Under the Hindu Marriage Act ,1955 certain conditions are necessary for a valid Hindu Marriage. Those conditions have been laid own in Sec 5 and 7of the Act. Section reads as follows:-
By virtue of section 5 of the Hindu Marriage Act 1955, a marriage will be valid only if:-
both the parties to the marriage are Hindus. If one of the parties to the marriage is a Christian or Muslim, the marriage will not be a valid Hindu marriage. “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 marriage, neither party:-
a) is incapable of giving a valid consent to it in consequence 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
3. the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of 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 (one is a lineal ascendant of the other) of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Hindu Marriage Act section 5 lays down five conditions for a valid marriage. They are:
1. Monogamy (Sec 5 Clause (1))
This provision Prohibits bigamy .The marriage should be monogamous. Under the Hindu Law a person can validly marry if he or she is either unmarried or divorced or a widow or a widower. If at the time of the performance of the marriage rites and ceremonies either party has a spouse living and the earlier marriage had not already been set aside, the later marriage is void. A bigamous marriage is null and void andis made punishable.
2.Mental Capacity (Sec 5 Clause (2))
The parties to the marriage should not suffer from unsoundness of mind, mental disorder or insanity. In all the cases given in sec 5 clause (2) the party is regarded as not having the mental capacity to solemnize the marriage. So if a party who solemnize the marriage is suffer from unsoundness of mind, mental disorder or insanity, the marriage is voidable at the opinion of the other party.
It is to be noted that Sec 5(2) (c) of the Hindu Marriage Act 1955 has been amended by the Marriage Laws (Amendment) Act 1999 and the word ‘epilepsy’ is omitted. The result is that at present even if a party to the marriage is subject to recurrent attacks of epilepsy, the marriage is valid and the other party cannot seek for nullity of marriage.
3.Age to the parties (Sec 5 Clause (3))
At the time of marriage the bridegroom has completed the age of 21 years and the bride the age of 18 years .If a marriage is solemnized in contravention of this condition is neither void nor voidable.
Punishment :- By Section 18 of the Act ,anyone who procures a marriage in violation of the condition is liable to be punished with simple imprisonment which may extent up to 15 days or with fine which may extend upto Rs. 1000/- or with both.
4.Degrees of Prohibited relationship (Sec 5 Clause (4))
The parties to the marriage should not come within the degrees of prohibited relationship. Two persons are said to be within the degrees of prohibited relationship
i) if one is a lineal ascendant of the other; or
ii) if one was the wife or husband of lineal ascendant or descendant of the other; or
iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfathers or grandmothers brother of the other; or
iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.
A marriage between two persons who come within the degrees of prohibited relationship shall be void. However, if there is a valid custom or usage governing both the parties allows they can marry even though they come with in the degrees of prohibited relationship. All over India, there are such custom which validate marriage between persons who come within the degrees of prohibited relationship.
For instance, marriage between the children of brother and sister is common among the marumakathayam of kerala. In some parts of Tamil Nadu , Marriage between a person and his eldest sister’s daughter is common. Here the parties though come within the degrees of prohibited relationship, they can validly marry by virtue of custom or usage. It is essential that the custom or usage should be certain, reasonable and not opposed to public policy.
Punishment :-According to Sec.18(b) A marriage solemnized between the parties within the degrees of prohibited relationship is null and void and the parties of such marriage are liable to be punished with simple imprisonment for a period of one month of fine or Rs. 10000/- or with both.
5.Sapinda Relationship (Sec 5 Clause (5))
The parties to the marriage should not be related to each other as Sapindas. A marriage between sapindas is void.
Under Section 3(f) (i) “Sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.
(ii) Two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of "sapinda" relationship, or if they have a common lineal ascendant who is within the limits of "sapinda" relationship with reference to each of them.
No marriage is valid if it is made between parties who are related to each other as ‘sapindas’ unless such marriage is sanctioned by usage or custom governing both parties. The custom which permits of a marriage between person who are sapindas of each other must fulfil the requirements of a valid custom. The custom must be certain, reasonable and should not be opposed to public policy.
Punishment :-A marriage in contravention of this clause is void. Under Sec 18(b)A person contravening this provision are liable to be punished with simple imprisonment which may be extend to Rs. 1000/- or with both.