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Published : February 25, 2011 | Author : laksheyender@gmail.com
Category : family law | Total Views : 30199 | Rating :

  
laksheyender@gmail.com
Laksheyender Kumar. I am pursuing B.A.,LL.B.(H) 5th year from Jamia Millia Islamia. I want to share some my research work with intrested peoples.
 

Salient features of the Hindu Marriage Act, 1955

Hindu Marriage Act, 1955 has reformed Hindu law of Marriage. It is a landmark in the history of social legislation. It has not simply codified the Hindu law of marriage but has introduced certain important changes in many respects. The Hindu marriage contemplated by the Act hardly remains sacramental. The Act has brought in some changes of far reaching consequences which have undermined the sacramental nature of marriage and rendered it contractual in nature to a great extent.

The Hindu law of marriage, as the British rulers of India found, interpreted and applied, was, in a nutshell, as follows:
(1) Marriage was a holy sanskar, it could be solemnised in one of the eight forms recognised by law;

(2) The solemnisation would be according to the Shastric or customary rites;

(3) One could marry at any age, as there was no lowest age of marriage;

(4) Inter-religious and inter-caste marriages were prohibited, but the latter could be sanctioned by custom;

(5) Marrying within one’s gotra or pravara was not allowed, except among the Shudras;

(6) Husband and wife would live together, the latter would be submit to the wishes of the former, and the former would maintain the latter;

(7) Marriage was indissoluble; divorce was not permitted unless recognised by custom;

(8) Death did not dissolve a marriage and therefore a widow could not remarry unless permitted by custom so to do.

The courts in India recognised, interpreted and applied all these principles in their minute’s details.
Changes brought about by the Hindu Marriage Act, 1955
The new Act has made radical and substantial changes in the institution of marriage.

The following changes are important:
(1) A Hindu marriage is now not so much concerned with religion. It is more a result of mutual consent than sacramental [Sections 5(ii), (iii), 11 to 13 and 7].

(2) Marriages amongst Hindu, Jains, Sikhs and Buddhists are now valid Hindu marriages in the eyes of the law (Section 2).

(3) As per Section 3 the divergence between the Mitakshara and Dayabhaga schools in connection with 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 defined in the Smritis, have been considerably relaxed. Some new degrees of relationship have also been added. Thus one cannot now marry a person who was the wife of the brother of the other.

(4) Monogamy amongst the Hindus is introduced for the first time by the Act. Bigamy is now punished under the Indian Penal Code. The conditions and requirements of a valid marriage are now very much simplified as is evident from the provisions of Sections 5 and 17 of the Act.

(5) Caste considerations for inter-caste and inter-communal marriages have now been made irrelevant, eliminating all restrictions thereupon.

(6) There were different kinds of marriages in vogue before the Act. Now they are of no consequence and the only form of marriage will be that accepted by the parties as prevailing in his or her community (Section 7).

(7) The Act now makes no distinction between the marriage of a maiden and the marriage of a widow.

(8) 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 must have completed the age of 18 years (Section 5).

(9) The Act now lays down conditions of a valid marriage and does not recognise any particular form of a Hindu marriage (Section 5).

(10) For a valid Hindu marriage no particular ceremony is prescribed by the Act. Sections 5 and 7 lay down that such a marriage can be solemnised in accordance with the customary rights and ceremonies of any one of the parties to the marriage.

(11) Provision for registration of Hindu marriages has been provided for the first time (Section 8).

(12) Eliminating restrictions based on gotra, pravara and Sapinda relationship the Act makes provisions for judicial separation, for divorce and for annulment of marriages (Section 10 to 14).

(13) Provisions for restitution of conjugal rights of the parties (Section 9).

(14) After a valid divorce either party may remarry (Section 15).

(15) Provisions for legitimacy of children born out of alliances which may be subsequently declared annulled or void or voidable (Section 16).

(16) Provisions for maintenance pendente lite and for expenses of legal proceedings (Section 24).

(17) Permanent alimony and maintenance (Section 25).

The custody, maintenance and education of minor children during the pendency of legal proceedings as also after passing of decree (Section 26).

Applicability of legislation (Section 2)
The Act applies to three types of persons: (i) who are Hindus by religion in any of its forms or developments. (ii) who are Buddhists, Jainas or Sikhs by religion and (iii) who domiciled in the territory to which this Act extends and not a Muslim, Christian, Parsi or Jew by religion.

This Act, however, will not apply to those; (i) why have renounced the Hindu religion and have became converts to some other religion and (ii) persons, who descended from Hindu ancestors and on account of marriage or on account of some new occupation converted into new community having their own religion and usages (iii) children, whose either parents though a Hindu, are not brought up as Hindus.

Who are Hindus
Till this day there is no precise definition of the term ‘Hindu’ available either in any statute or in any judicial decision. However since Hindu law applies to all those persons who are Hindus. It is necessary to know who are Hindus. The answer lies in the question; to whom does Hindu law apply?

The persons to whom Hindu law applies may be put in the following three categories.
1. Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by religion.

2. Any person who is born of Hindu parents (when both the parents or one of the parents is a Hindu, Jain, Sikh or Buddhist by religion), i.e., Hindus by birth, and

3. Any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by any other law.

Explanation to Section 2(1) further categories Hindu into two:
(i) Hindu by Religion
(ii) Hindu by Birth

Hindus by Religion

This category includes two types of persons:

(a) Those who are originally Hindus, Jains, Sikhs or Buddhists by religion.

As rightly observed by the Supreme Court in Chandrasekhar v. Kulandaivelu, Any person who is a Hindu, Jain, Buddhist or Sikh by religion is a Hindu if: (i) he practises, professes or follows any of these religions, and (ii) he remains a Hindu even if he does not practice, profess or follow the tenets of any one of these religions. Thus, a person does not cease to be a Hindu if he becomes an atheist, or dissents or deviates from the central doctrines of Hinduism, or lapses from orthodox practices, or adopts western way of life, or eats beef.

(b) Those who are converts or reconverts to Hindu, Jain, Sikh or Buddhist religion.

A person who ceases to be a Hindu by converting to a non-Hindu religion; will again become Hindu if he reconverts to any of the four religions of Hindus.

A non-Hindu will become a Hindu by conversion:
(i) If he undergoes a formal ceremony of conversion or reconversion prescribed by the caste or community to which he converts or reconverts; or

(ii) If he expresses a bona fide intention to become Hindu accompanied by conduct unequivocally expressing that intention coupled with the acceptance of him as a member of the community into the fold of which he was ushered into.

Further, when a person declares that he is a follower of Hindu faith and if such a declaration is bona fide and not made with any ulterior motive or intention, it amounts to his having accepted the Hindu approach to God. He becomes a Hindu by conversion.

Hindu by Birth
Under Modern Hindu Law, a person will be a Hindu by birth if:

(i) Both his parents are Hindu; or
(ii) One of the parents is a Hindu and he is brought up as a Hindu.

Such child is Hindu irrespective of fact he/she is legitimate or illegitimate.

In case after the birth of the child both or one of the parents convert to another religion, the child will continue to be a Hindu unless, in the exercise of their parental right, they also convert the child into the religion in which either or both of the parents have converted.

A relevant judgement in this context is Maneka Gandhi v. Indira Gandhi, wherein the Court held that Sanjay Gandhi was a Hindu because: (1) one of the parents, namely his mother was a Hindu and (2) he was openly brought up as a Hindu.

Section 2(2) provides that nothing contained in this Act shall apply to the members of any Scheduled Tribes (even if they are Hindus) unless the Central Government by notification in the official gazette otherwise directs. Most of the scheduled tribes are still governed by customs.

Concept and forms of marriage
The concept of marriage is to constitute relationship of husband and wife. According to ancient Hindu law, marriage is the last of ten sacraments and is a sacred tie which can never be broken. It is a relation established by birth to birth. According to Smritikars even death cannot break this relation of husband and wife which is not only sacred and religious but is a holy union also.

The object of marriage was to enable a man and a woman perform religious duties and to beget progeny. According to ancient writers a man was incomplete without a woman and a woman is half of her husband (ardhangini) and completes him.

Every Hindu male or female had to marry. Where a person could not remain a perpetual student or where he did not desire to be an ascetic (sanyasi), he was enjoined by the shastra to marry. Marriage, therefore was as good as compulsory and more so in case of a female.

Marriage: Sacrament or Contract
Marriage being one of the essential Samskaras is sacramental in nature. The sacramental nature of marriage has three characteristics:

1. It is a permanent union i.e. once tied cannot be untied.
2. It is an eternal union i.e. valid not only in this life but in lives to come.
3. It is a holy union i.e. performance of religious ceremonies is essential.

Since Hindu marriage was considered to be sacrament, the consent of the parties did not occupy any important place. Thus the person married may be a minor or even of unsound mind, if the marriage is duly solemnised there is valid marriage. Under the Contract Act, the contract of a minor or of a person of unsound mind is void. Further, Section 12 of Hindu Marriage Act does lay down that a marriage is voidable if consent is obtained by fraud or force, but it is not laid down that if one’s consent was not obtained the marriage is voidable. This shows that despite the fact that a party is able to prove the absence of consenting mind, the marriage will continue to remain valid.

The modern concept of marriage is contractual in nature. It receives the ideals of liberty and equality (free volition of individuals). Today, it is an established notion of the west that marriage, to be effective, must be an agreement voluntarily entered into by both parties

In the light of modern concept of marriage could we say that Hindu marriage continues to be sacrament? By recognising the divorce and widow remarriage the first two characteristics of sacramental marriage have been waived. However, the third characteristic is still retained.

To sum up the Hindu marriage has not remained a sacrament and has also not become a contract, but it has a semblance of both.

Forms of marriage
The ancient Hindu law recognised three forms of Shastric marriages as regular and valid. These were Brahma (bride given gift by father), Gandharva (mutual agreement of bride and bridegroom) and Asura (bride virtually sold by the father). The first and the third are arranged marriage whereas the second one is love marriage.

Forms of marriages in modern Hindu law: The Hindu marriage Act, 1955, does not specially provide for any forms of marriage. The Act calls marriage solemnized under the Act as Hindu marriage which may be performed in accordance with shastric rites and ceremonies or in accordance with the customary ceremonies prevalent in the community to which bride or bridegroom belongs. However, it does not mean that a marriage cannot take any of the aforesaid forms now. Marriage can still be entered into in anyone of the three forms.

Looking at from another aspect in Hindu society there are mainly two forms of marriages: arranged marriages and love marriages. Most Hindu marriages are still arranged marriages. An arranged marriage may be either in the form of Brahma marriage or in the form of Asura marriage. Among the Sudras, the Asura form of marriage is very common. Among the high-class Hindus, the Brahma form of marriage is common. The Gandharva form of marriage is fast becoming popular among the younger generation.

Ceremonies
Marriage among Hindus being a religious and sacred tie, performance of certain ceremonies is still necessary for a valid marriage. There were three important stages wherein certain ceremonies were to be performed. They were:

1. Betrothal or Sagai: it is a formal promise to give the girl in marriage.

2. Kanyadan: It is actual giving away of the girl in marriage by her father.

3. Saptapadi: it consisted in performing a ceremony of taking seven steps before the sacred fire by the bride and the groom. The performance of Saptapadi marked the completion of a marriage. It made the marriage irrevocable.

As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the ceremonies of marriage, its non performance will invalidate the marriage. The performance of vedic rights is not enough to solemnise the marriage.

Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi. It may be totally non-religious ceremony or it may be very simple ceremony. For instance, among santhals smearing of vermilion by bridegroom on the forehead of the bride is the only essential ceremony.

Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the bride or bridegroom, must be performed otherwise marriage will not be valid. No one can innovate new ceremonies and a marriage performed with the innovated ceremonies and rites is invalid. Hindu Marriage Act allows inter-caste marriages. But marriage between a Hindu and a non Hindu is not permissible under Hindu Marriage Act and such a marriage if performed in India, will be invalid. But foreign country such marriage is valid. Such marriage is also valid in India, if performed under the Special Marriage Act, 1954.

Conditions for the validity of marriage (Section 3 and 5)
A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely :–
(i) Neither party has a spouse living at the time of the marriage;

(ii) At the time of the marriage, neither party:

(a) Is incapable of giving a valid consent to in consequences 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.

(iii) The bridegroom has completed the age of twenty one (21) years and the bride the age of eighteen years at the time of marriage.

(iv) 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;

(v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

Ingredients of Section 5
Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other a non Hindu or both are non Hindus, the marriage will not be a subject matter of this Act but will relate to some other law i.e. Special Marriage Act etc.

Clause (i) – Condition of monogamy
This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If the spouse is alive at the time of marriage that could bar the remarriage of a person. However one must note that the first marriage of a person should be a legally valid marriage. In spite of one’s valid marriage if the person remarries in violation of Section 5(i), the second marriage will be null and void and he will be subjected to penal consequences. The Scheduled Tribes are exempted from the application of the Act. But there must be a proved custom to this effect.

Bigamy – Section 5(i)
Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and Section 17 makes it a penal offence for both Hindu males and females under Section 494 and 495 of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are performed. The second marriage cannot be taken to be proved by the mere admission of the parties; essential ceremonies and rites must be proved to have taken place. In the case of a bigamous marriage, the “second wife” has no status of wife.

Clause (ii) – Condition regarding mental health or capacity
Sub clause (a) requires that at the time of marriage neither party is incapable of giving a valid consent to marriage due to unsoundness of mind.

Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither party to marriage should be suffering from a mental disorder of such nature and to such a degree as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan Singh v. Jit Kaur, the court held the marriage void on the ground that wife was suffering from schizophrenia within short period after marriage and the disease was not disclosed to the husband before marriage.

Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even during a lucid period.

Post marriage mental illness: If a party to a marriage is not suffering from any mental defect described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this condition.

Clause (iii) – Condition of marriageable age
According to this clause, at the time of marriage the bride must have completed the age of 18 years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage Act. However, violation of this condition does not make the marriage void or voidable. It means that it is valid though it may attract penalties. But it can become a valid ground for repudiation of the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for punishment for such marriage.

According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978 has also raised the age of marriage of girl to eighteen.

Clause (iv) – Avoidance of degrees of prohibited relationship
The parties to marriage must not fall within the degree of prohibited relationship. This relationship is defined under Section 3(g) of the Act.

According to Section 3(g) “degree of prohibited relationship” means when two persons are related to each other in any of the following manners:

(i) By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the Sapinda relationship which extends upto fifth degree in the line of father and third degree in the line of the mother. The distinction of this category is that it extends even beyond the Sapinda ascendants.

(ii) By affinity: If one is the husband or wife of the lineal ascendants or descendants of the other. For example, father-in-law and daughter-in-law, mother-in-law and son-in-law, step mother and step son or step father and step daughter are thus within the degrees of prohibited relationship.

(iii) Wives of certain brother relations if one was the wife of:

(1) The brother, or

(2) The father’s brother, or

(3) The mother’s brother, or

(4) The father’s father’s brother, or

(5) The mother’s father’s brother, or

(6) The father’s mother’s brother, or

(7) The mother’s mother’s brother.

(iv) Certain close relations if both are:

(1) Brother and sister, or

(2) Niece and uncle (paternal or maternal), or

(3) Nephew and aunt (paternal or maternal), or

(4) Children of a brother and a sister, or

(5) Children of two brothers, or

(6) Children of two sisters.

According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is void. It is also punishable under section 18(b) of the Act.

(i) ‘A’ marries his adopted sister. This is not a valid marriage, as it falls within the degrees of Prohibited relationship. (ii) ‘A’ marries with the wife of Pre-deceased brother. It is not a valid marriage as it falls within the degree of Prohibited relationship. (iii) ‘A’ marries his stepmother’s sister. It is not a valid marriage, ‘A’ is related to his step-mother by half blood relationship.

Clause (v) – Avoidance of sapinda relationship
According to the Dharmashastra the Sapinda relationship is very important in the matter of marriage. According to Mitakshara Law of Marriage ‘Pinda’ means body and therefore those who are related by body or blood or consanguinity are sapindas among themselves. The Hindu Marriage Act has adopted Mitakshara definition but has limited the extent of Sapinda relationship to 5 degrees in line of ascent through the father and 3 degrees in the line of ascent through the mother.


According to Section 3(f)(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapindas relationship, or if they have a common lineal ascendant to each of them.

Whereas Section 3(f)(i) states that “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.

Rules for determining sapinda relations:
1. The relationship extends as far as the third generation in the line of ascent through the mother in case of both the parties.

2. The relationship extends as far as the fifth generation in the line of ascent through the father in case of both the parties.

3. Sapinda relationship may submit in case of both the parties through the father or in case of both through the mother; or it may subsist in case of one of them through the father and on case of the other through the mother.

4. The line is traced upwards in case of both the parties counting each of them as the first generation; the generations in the line of ascent whether three or five are to be counted inclusive of the persons concerned and the common ancestor or ancestress.

Sapinda relationship includes relationship by half or uterine blood as well as by full blood and by adoption. It also includes both, legitimate and illegitimate blood relationship.

Solemnisation of marriage (Section 7)
In connection with marriage the word ‘Solemnise’ means to celebrate marriage with proper ceremonies and in due form. Unless the marriage is celebrated or performed with proper ceremonies and in the due form, it cannot be said to be solemnised.

Section 7 provides that (i) A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto. (ii) where such rites and ceremonies include the saptapadi, the marriage becomes complete and binding when the seventh step is taken.

Section 7 provides two kinds of ceremonies (i) Customary Ceremonies and (ii) Shastric Ceremonies.

As the rites and ceremonies to be observed are customary, they should possess all the qualities which are necessary for the validity of a custom defined under section 3(a) of the Act.

According to Section 3(a) the expression ‘custom’ and ‘usage’ signify any rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: provided that the rule is certain and not unreasonable or opposed to the public policy; and in the case of a rule applicable only to a family it has not been discontinued by the family.

It is not necessary that the customary rites or ceremonies must be very very old. What section 3(a) of Hindu Marriage Act requires is that for maturing into a custom a rule should have been observed for a long time, continuously and uniformly.

When essential ceremonies consulting a Hindu marriage are not proved, the mere issuance of certificate under Special Marriage Act cannot validate the marriage if the marriage has not been solemnised as per the requirements of this Act.

The Act does not, however prescribe the ceremonies requisite for solemnisation of the marriage but leaves it to the parties to choose a form of ceremonial marriage which is in accordance with any custom or usage applicable to either party; and where the form adopted includes the Saptapadi–that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire–marriage becomes complete when the seventh step is taken.

The essential rites which may, however, be said to be the requirement common in all ceremonial marriages are: (i) invocation before the sacred fire; and (ii) saptapadi.

Registration of Marriage (Section 8)
Section 8(1) of Hindu Marriage Act provides that for the purpose of facilitating the proof of Hindu marriages, the state government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered on such manner and subject to such conditions, as may be prescribed in a Hindi Marriage Register kept for the purpose.

Registration when necessary
Section 8(2) of the Act provides that the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to above, shall be compulsory in the state or in any part thereof, whether in all cases, or in such cases as may be specified.

There was no requirement for the registration of Hindu marriages before the Hindu marriage Act, 1955. Generally, Hindus do not get their marriages registered unlike Adoption, Will Transfer of Property and Partition. The Act does not contain the rules of registration and the State Government have been authorised to frame them.

The purpose of registration is only to furnish a convenient evidence of marriage Clause (4) provides that Hindu Marriage Registers will be admitted as evidence. The certificate is however not a conclusive proof of marriage.

Besides the evidentiary value, the national commission for women has pointed that registration of marriage has critical importance to various women related issues, such as :–

(a) Prevention of child marriage.
(b) Prevention of marriage without the consent of the parties.
(c) Prevention of illegal bigamy or polygamy.
(d) Enabling married women to claim their right to live in the matrimonial home, maintenance, etc.
(e) Enabling the widows to claim various rights after the death of their husbands.
(f) Deterring men from deserting their wives after marriage.
(g) Deterring the sale of girl under the garb of marriage.

It is explicitly laid down in this Act that non registration does not affect the validity of marriage. Thus marriage can be valid without registration.

In Seema v. Ashwini Kumar, the Supreme Court has dwelt at length on the topic of registration of marriages. It suggested for the compulsory registration of marriages in all the states.

Void and Voidable marriages (Sections 11 and 12)
There are three types of marriages under this Act: (i) valid, (ii) void, and (iii) voidable. Section 11 deals with void marriages and Section 12 deals with the voidable marriage. All other marriages which are not covered by these two sections are valid.

Void marriages
Section 11 states that any marriage solemnized at 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 of the conditions specified in clauses (i), (iv) and (v) of Section 5.

Thus a marriage will be void ab initio:

(1) If any party to marriage has a spouse living at the time of the marriage [Section 5(i)].

(2) If the parties are within the degree of prohibited relationship unless the custom or usage governing each of them permits such a marriage [Section 5(iv)].

(3) If the parties are sapindas of each other, unless the custom or usage governing each of them permits such a marriage [Section 5(v)].

Section 11 of this Act is prospective in nature. It is only applicable to marriages solemnised after the commencement of the Hindu Marriage Act, 1955.

Effect of Void marriages

A void marriage is no marriage. It is void since its inception. No legal rights and duties flow from it. Therefore, the relationship of husband and wife does not come into existence from a void marriage. No declaration of the court is necessary to this effect. The issues from a void marriage are illegitimate unless legitimatised by law in some way. If one withdraws from the society of the other, the other party has no right to the restitution of conjugal rights. If one of them marries again, he or she is not guilty of bigamy and the validity of later marriage is not affected because of the first so called marriage.

Voidable marriages
A marriage which can be annulled or avoided at the option of one or both the parties is known as a voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable Marriage.

This section lays down four grounds on which a Hindu marriage becomes voidable. These are:

(1) Inability of the respondent to consummate the marriage on account of his or her impotency.
(2) Respondents incapacity to consent or suffering from a mental disorder.
(3) Consent of the petitioner being obtained by fraud or force.
(4) Concealment of Pre-marriage pregnancy by the respondent.

Impotency [Section 12(1)(a)]
Section 12(1)(a) can be dissected as under:

(1) That the marriage has not been consummated; and

(2) That the non consummation is due to the impotence of the respondent.

Consummation of marriages means full and normal sexual intercourse between married person. A marriage is consummated by sexual intercourse. It consists in the penetration by the male genital organ into the female genital organ. Full and complete penetration is an essential ingredient of ordinary and complete intercourse. Partial, imperfect or transient intercourse of not Consummation. The degree of sexual satisfaction obtained by the parties is irrelevant. Consummation may be proved by medical evidence.

Impotency is the inability to have complete and normal sexual intercourse. It may arise from a physical defect in either partner or from a psychological barrier amounting to invisible repugnance on the part of one to sexual relations with that partner. Sterility is irrelevant and does not imply impotency. Absence of uterus in the body of the one’s female partner does not amount to impotency but the absence of a proper vagina would mean impotency. Similarly organic malformation making a woman sexless would means impotency. If a husband fails to satisfy his wife’s abnormal appetite for sex that cannot be regarded as impotency. Thus impotency means practical impossibility of consummation of marriage. Sexual intercourse which is incomplete occasionally does not amount to impotency. It includes discharge of healthy Semen containing living sperms in the case of men and discharge of menses in the case of women.

Regarding impotency, the various principles laid down by the courts could be summarised as follows:

(1) Full and complete penetration is an essential ingredient of ordinary and complete intercourse, though degree of sexual satisfaction obtained by the parties is irrelevant. If one spouse is oversexed and the other is not, it does not amount to impotency.

(2) Impotency is usually either (a) physical, or (b) mental. Physical impotency includes malformation of, or structural defects in the organs, such as unduly large male organ or abnormally small vagina.

(3) Mental or psychological impotency includes emotional, psychological or moral repugnance or aversion to the sexual act. In Shantabai v. Tara Chand, the wife was alleged to have an absolute repugnance towards sexual intercourse although she had normal sexual organs. Held that it amounts to impotency. Where immediately after marriage the husband lived for three nights and days in the same room with his wife and failed to consummate the marriage, it was a fair inference that non-consummation was due to husband’s knowing refusal arising out of incapacity, nervousness or hysteria. In Nijhawan v. Nijhawan, a liberal interpretation of the word ‘impotence’ was made by the court. In that case, the wife felt depressed and frustrated owing to the failure of husband to perform full and complete sexual intercourse. Held that vigorous and harmonious sexual activity is the foundation of marriage and a marriage without sex is anathema. The court considered the husband’s impotency to be a cause of mental and physical cruelty to the wife.

(4) If impotency can be cured by medical treatment or surgery, it would not amount to impotency, unless the respondent refuses to undergo treatment. In Rajendra v. Shanti, where the size of wife’s vagina was after surgical operation one and half inch, but was fit for intercourse, the court said that wife was not impotent.

(5) Mere barrenness or incapacity to conceive a child or sterility does not amount to impotency. In Shewanti v. Bhaura, the wife was sterile but was capable of having sexual intercourse held that she was not impotent.

Burden of Proof: The Burden of Proof lies on petitioner but when once the impotency is proved there is a rebuttable presumption in favour of its continuance.

Consent obtained by force or fraud [Section 12(1)(c)]
For marriage the consent of the parties concerned must be free. This is not because marriage is a contract but because the sweetness and success of a married life depends upon harmony between both the parties. If the consent to marriage is not free, this harmony is a remote possibility. That is why it is quite just and reasonable that a party whose consent is not free should be permitted to come out of the wedlock. Section 12(1)(c) allows this. It makes the marriage voidable where consent to it was obtained by force or fraud.

Section 12(1)(c) provides that a marriage is voidable on the ground that the consent of the petitioner or of the guardian has been obtained by force or fraud. After the Child Marriage Restraint Act the consent of guardian has became irrelevant as the minimum marriageable age was set 21 years and 18 years for bridegrooms and bride.

Provided no petition for annulling a marriage:

(1) If 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 [Section 12(2)(a)(i)]; or

(2) The petitioners has, with his or her full consent, lived with the other 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 [Section 12(2)(a)(ii)].

Force: The word Force is not defined by the Act. But it may include all cases of compulsion, coercion or duress. Abduction, terror, coercion and threat to commit suicide will definitely be covered by the term force. Whenever owing to some natural weakness of mind or on account of some fear, whether entertained reasonably or unreasonably, but nonetheless really entertained or when a party is in such a mental state that he finds it almost impossible to resist the pressure, it will amount to force.

However, mere pressure or strong advice, persuasion etc., will not amount to force.

Fraud: This section does not speak of fraud ‘in any general way or every misrepresentation or concealment which may be fraudulent’ but ‘fraud as to the nature of the ceremony’ or ‘as to any material fact or circumstance concerning the respondent’.

The clause prior to its amendment by the Amending Act of 1976, did not contain the words ‘or’ is to any material fact or circumstance concerning the respondent. The operation of the clause was considerably extended so as to include within its ambit any material fact or circumstance concerning the respondent. Whether a misrepresentation or false statement or concealment is as to any such material fact, must to a large extent depend on the facts and circumstance of the case.

However, it must be something vital, touching or affecting the respondent and such as had definitely induced or influenced consent. The petitioner must show that; but for such false representation or statement or concealment he or she would not have married the respondent.

Some important grounds of fraud: (1) Nature of ceremony, (2) Identity of the party, (3) Concealment of disease, (4) Concealment of religion or caste, (5) Concealment of previous marriage, (6) Concealment of unchastity, (7) Concealment of illegitimacy, (8) Concealment of age, (9) Petitioner’s father’s fraud, (10) Concealment of financial status and nature of employment.

A petition for nullity must be filed within one year of the discovery of fraud or cessation of force. This condition is mandatory.

Thus the operation of Section 12(1)(c) has been considerably winded by the 1976 Amendment.

Pre-marriage Pregnancy [Section 12(1)(d)]
Section 12(1)(d) provides that a marriage is voidable on the ground that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

Section 12(1)(d) is to be read with Section 12(2)(b) which lays down three further conditions which are to be satisfied in order to avail of the remedy under Section 12(1)(d). These are:

(1) That at the time of the marriage the petitioner was ignorant of the facts alleged;

(2) That the petitioner has started proceedings under Section 12 within one year of the marriage; and

(3) That the petitioner did not have, with his consent, marital intercourse with his wife ever since he discovered that the wife was pregnant by some other person.

Thus the requirements of this ground are:

(1) The respondent was pregnant at the time of marriage.

(2) The respondent was pregnant from a person other than the petitioner.

(3) The petitioner was ignorant of this fact at the time of marriage.

(4) The proceeding is started within one year of the marriage.

(5) Absence of marital intercourse by the petitioner husband with his wife since such discovery.

If the girl becomes pregnant by some person before her marriage and subsequently the same fellow marries her the section has no application. If the bride becomes pregnant by some other person than her husband after marriage the section has no relevance.

Onus of proof lies on the petitioner husband to prove this wife’s admission of pre-marriage pregnancy plus the fact that husband had no access to her before marriage is sufficient to establish her pre marriage pregnancy.

In Nishit v. Anjali, where a bride gave birth to a mature child within 167 days from the date of marriage, it was held that it was for the wife to raise a reasonable doubt that she was pregnant by the person who became her husband.

A blood test for the ascertainment of the child’s paternity is also possible. If the wife volunteers for the same then it is well and good, but it cannot be forced upon her.

Difference between void and voidable marriage

Void Marriage

Voidable Marriage

A marriage which is void ab initio is a total nullity. A marriage is non-existent in such a case and does not affect or alter the status of the parties. Moreover, it does not create any rights and obligations of the parties, which normally result from a valid marriage.

A voidable marriage remains valid and binding till avoided. It is and continues to be valid marriage for all the purposes till a decree annulling it is passed under Section 12.

Parties to a void marriage are criminally liable.

No penalty is laid down for a voidable marriage.

A void marriage is void ab initio and it can be held to be so without a formal declaration by a court under Section 11.

While for a voidable marriage, to put an end to it, annulment is necessary.

Section 11 applies to a void marriages only contracted after the commencement of the Act.

Section 12 applies to marriages contracted before or after the commencement of the Act.

In case of Section 11 the Act itself declares a marriage to be null and void without any action on the part of any spouse. Of course, nobody can stop a spouse from getting a declaration of nullity for the purpose of precaution and for the record. Children born out of void and voidable marriages are legitimate (Section 16).

The remedy available under Section 12 is an optional remedy, i.e., the party concerned has to take the aid of a court for an annulment decree.

It is not necessary that a decree declaring a void marriage as void is passed. The parties to a void marriage may perform another marriage without getting a decree declaring their marriage as void and neither will be guilty of bigamy.

But a voidable marriage will remain a valid marriage till a decree annulling it is passed.

Authors contact info - articles The  author can be reached at: laksheyender@legalserviceindia.com




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Cambridge University Faculty of Law:
Law has been studied and taught in Cambridge since the thirteenth century, when the core subjects of legal study in all European universities were Civil law (the law of ancient Rome) and the Canon law of the Church. Early graduates of the Cambridge Faculty of Canon Law held the highest judicial positions in Europe
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Article Comments

Posted by swapankumarmazumder on March 31, 2014
On behalf of one of my poor clients,I like to get important info. for the Marriage Certificate for wedlock in between a hindu and a muslim girl with their guardians' free consent.[31-03-2014,Mon.at 22.10 Hrs.PM]

Posted by karuna on August 02, 2013
I gaot married 6 months back and I wish to keep my maiden name as it is even after marriage. Do I need to publish the same in gazzette or no.


Posted by sujatha kesh on July 24, 2012
I am divorced and remarried. I have 2 daughters aged 19 and 15. I have the custody of my kids. My kids want my present husband to be their legal guardian as they do not want to carry their biological father's name anywhere. How to go for this as they do want his name even in their passport. They want only my present husband to be their legal guardian everywhere. How do we proceed? Please guide.

Posted by sabita pattnaik on July 06, 2012
is there any law regarding husband & wife working at distant have right to transfer to her husbands nearby location.

Posted by b.gupta on April 27, 2012
from the very ancient time one curse is coming on . even gods and devata's , souls were also affected by the curse of evil thoughts of KAAMA (sex) and KAAM(sex) . ( when any god or anyone would had created male and female ,some god would had invented the sex and thoughts of sex (kam) for the birth for childrens ). .but after words the evil thoughts of KAMA (sex) and KAM(sex) became curses . if there would had been no evil thoughts of sex(kaama ) which causes insult and hates . never would had been no one insulted and evil thoughts , the main cause of every quarrel, every insult and every destructions .

if at those ancients times some wise peoples would have taken wise decissions for the betterment for each others and others , no ramayana, no mahabhartha , no war ,no fight ,no quarrels , in puranic (ancients) times and now nothing would have not taken place .
--------------------------
.
A WISH
 
A PRAY to NATURE and EARTH
never anyone suffer from the evil thoughts of KAMA ( SEX ) and KAM ( SEX ) and evil wisdom , evil thoughts be change into good and noble of every soul ,every molecules of souls ,where ever it may be ,even in any atom under earth or any part of earth ,univers, any kind of hell. . each and every molecule which are taken from humans , souls and be the humans again on the earth as were naturally . every human , soul, molecule get the good wisedom ,good intelegence not to commeiting any sin , not doing wrong bad, not doing anything which cause insult to anyone which makes anyone angry , there be no bad words, no bad thoughts, no hates , no sins, no vengeances, no quarrels , no life lose. be respect for every one , in every soul, human, kundalini , every molecule .there be no any soul, molecule, creatuers, with any kind of suffering , pain , punishment , or any torturings in any kind of hell and under earth or any where in universe ..
 
REQUESTS you and REQUESTS to REQUEST and PRAY to EARTH --- there be no any hell under earth .no soul be suffering under earth ,hell ,or any kind of placses under earth for suffering , pain ,punishment or any kind of torturings .
due to bad wisdom and bad fate every one do mistakes , sins. every one was not born with the good grace nature and qualities not doing mistakes and sins .every soul, every molecule ,every human may be sinner or good get back each and every molecule which are taken from humans ,souls,and be the humans again .and every human ,soul,molecule get the good wisedom ,good intelegence not to commeiting any sin not doing wrong bad,not doing anything which cause insult to anyone which makes anyone angry ,there be no bad words,no bad thoughts,no hates ,no sins,no vengeances,no quarrels ,no life lose. be respect for every one ,in every soul,human, kundalini ,every molecule .there be no any soul,molecule, creatuers,with any kind of suffering,punishment,or any
torturings .there should not be any hell under earth .no soul be taken to under earth ,hell ,or any kind of placses under earth for suffering ,punishment or any kind of torturings
-----------------------------------------------------------------------------------------------------------------------------------------------
in india ,tamilnadu ,human souls are taken under earth ,under rocks ,even to several thousnds kilometers under rocks,taking old revenges ,vengenes ,conspirancies ,polatics and given different shapes .in sevrages and made like aliens .taking under earth and beating and burning .
even to center of the earth, where no body can be able to find out , under rocks .even converting souls (atamas) to pieces the size of molecules even to newtron, proton size so that no one can search .buring alive .beating , cutting parts of boby of (souls) atama , sending to hell the place like toilt severages where no body sees , making aliens and like aliens from human .joining different souls atamas giveing unnatural shapes .breaking soul cutting hands , legs .stomach ,toungs,seprating layers of body and souls . spoil of budies brains , spoiling souls , kundlanies shakties ,nurves systems ,spoiling humans ,beating souls ,human micro soul powers .
even taking souls from a very small hole .from the toilet room .and making souls into very very small sizes .
request ------souls ,grand souls, microsouls or any molecules of human or any creatures should not be taken under earth or any hell for any punishment ,any kind of torturings ,sufferings .and requests, what ever punishment is should be given on the earth only infront of all .
----------------------------------------------------------
every one was not born with the god'good grace and nature's good grace of good qualities and the good fate and luck to have good inteligence ,good wisdom ,good qualities ,and circuimstances not to commit ever any mistakes or sins .
request and pray ---every human every soul either good or bad ,angle or evil ,sinner,demon , god or devil every creature ,every one want to live as a good humanbeing --please save
request----instead of killing ,spoiling lives,destroying ,sending under earth ,hells ,if some place is given far away from india .and some thing are done for better to improve the qualities of humans and souls .so that every one can live .

------------------------------------------------------------------------------------------------------------------------------------------------------------
from the time of old vedic (india ancient scriptures time) .puranic stories (indian ancient) time and stories, curses of rishes (saints) devtas (angles) asurans (satans) ( devatas quarrels ) ramanya , mahabharata enemities, conspirancies cheatings ,dirty polatics , mistakes ( THAT TIME MAY BE MISTAKES OF ONE OR TWO PERSONS ) ,old revenges are taking place still going on. due to some bad budhies ( wisedom) ( बुदधि ) bad thoughts , bad understanding , egos , and adamant natures ( हठ ) ,blaming each others, those enemities and revenges has brought to this level . now it has taken very destruction .
2 ) if at those ancients times some wise peoples would have taken wise decissions for the betterment for each others and others , no ramayana, no mahabhartha , no war ,no fight ,no quarrels , in puranic (ancients) times and now nothing would have not taken place .

Posted by Ashish Mehta on December 13, 2011
if marrige was not in hindu marrige solemnisation and according to the Shastric or customary rites. but registration of marrige in regtrar of marrige office. then what remady of wictim party? party go with file pitision which under sec of hindu marrige act ?


Posted by ramakrishna on August 24, 2011
what does the law say about the sale of matrimonial home by husband with out the wife's consent in an event when the wife is contemplating a divorce & she doesn't have her name in the registeration document but the property was purchased after the marriage & the wife has some contribution through her salary in purchasing/maintaining the house. Can the husband sell it before wife obtaining the injunction? is the claim over such property legally valid after such sale?
Can you help me out with answers.
Thanks in advance
Ramakrishna

Posted by Rahul on May 19, 2011
is there any law regarding husband & wife working at distant have right to transfer to her husbands nearby location.

Posted by tarun on May 14, 2011
No it does not fall under the copyright act

Posted by bhaskar M on May 10, 2011
is marriage in a hotel organized by event Manager and music is a source of entertainment fall under the perview of the Copyright Act 1957?

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