marriage under hindu marriage act 1955

Concept of Marriage
Marriage – Sacramental or Contractual?
Historical Perspective – Manu, ardhangini, marriage is an essential sanskara, man is incomplete without wife.
Once performed, it cannot be dissolved. Modern Perspective – Civil contract. Can be dissolved. Cannot force to
live together. Equality of sexes. Can’t be done without consent.

Why is it Sacramental?

As per Contract Act 1872, a contract with a minor is void ab initio. Even though section 5(2) says that valid consent is required and section 5(3) says that the boy should be above 21 yrs and the girl should be above 18 yrs, marriage done in contravention of these provisions is not void. Marriage with a minor is not even voidable only on that ground. In the case of Venkatacharyalu vs Rangacharyalu 1980, it was held that the person married may be a minor or even of unsound mind, yet if the marriage rite is duly solemnized, it is a valid marriage.

Section 7 of HMA1955 requires that religious ceremonies are a must to complete a marriage. A marriage done without “saptapadi” is void. In the case of Dr. A N Mukherji vs State 1969, a person could not be convicted of bigamy because he performed 3 marriages without doing necessary ceremonies. Even now bachelors are not eligible to perform several religious ceremonies. Only married couples are
allowed. Thus, it still retains its sacramental property. No-fault divorce, as available in western countries, is not available in HMA 1955. Thus, breaking up of a marriage is very difficult.

Why is it Contractual?

The fact that consent of the boy and the girl is required means that it is contractual. If the consent is obtained by force or fraud, the marriage is voidable. Marriage is no more permanent since divorce is available by mutual consent Marriage is no more eternal since widow remarriage is permissible Marriage is no more holy because a marriage can be done without all the ceremonies such as vivah homam. Only saptapadi is required.

Conclusion: It is has a unique blend of sacramental and contractual characteristics.
Essential conditions of a valid Hindu marriage. Is there a provision for punishment for violating the conditions?
Section 5
1. Section 5 (1) Must not have a spouse alive. Kanwal Ram vs H. P. – Essential ceremonies are a must for
committing the offence of second marriage. Priya vs Suresh – Mere admission by the parties is not enough. Proof of essential ceremonies is required.
2. Section 5 (2) neither party is
1. Incapable of giving consent due to unsoundness of mind.
2. Though capable of giving consent, is unfit for marriage and procreation of children due to mental
disorder.
Alka vs Abhinash – MP HC held that “and” must be read as “or”.
3. Suffers from recurrent attacks of insanity. Balakrishna vs Lalitha – “Incurable” is not a requirement. Only recurrent attacks, irrespective of whether curable or incurable provided enough ground.
3. Boy is over 21 and girl is over 18. Rabindra vs Sita – Marriage in contravention of this clause is, nevertheless, valid.
4. Parties are not within degrees of prohibited relationship.
5. Parties are not sapindas

The Hindu Marriage Act, 1955 has made changes in the law of marriage. These changes are summarized as
under:
• the marriage amongst Hindus, Jains, Sikhs and Buddists are now valid.
• the divergence between the Mitakshara and Dayabhaga Schools in relation to the expression “Prohibited
degrees of relationship” for the purpose of marriage is now removed. The strict rule prohibiting
marriages within the limits of Sapinda relationship as laid in the ‘Smritis’ has been considerably relaxed.
Some new degrees of relationship have also been added.
• Monogamy amongst the Hindus is introduced for the first time. Bigamy is now punishable under the
Indian Penal Code 1860. The conditions and requirements of a valid marriage are now very much
simplified.
• Caste considerations for inter-caste and inter-communal marriages have now been made irrelevant,
eliminating all restrictions thereupon.
• it does not recognize any particular form of a Hindu marriage.
• the ancient Hindu law did not prescribe any age for marriage; but it is now a condition of marriage that
the bridegroom must have completed 21 years and the bride 18 years at the time of marriage.
• No particular ceremony is prescribed.
• Provision for registration of Hindu marriage has been provided.
Under old Hindu law, the conditions required for a valid marriage were strict and elaborate. With the passing of various legislative enactments, those conditions were modified, liberalized or removed; which is a welcome change.

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