INCOME TAX NOTES

Chapter 3 Marriage : Essentials of a Valid Marriage, Void and Voidable Marriage

Hindu Marriage


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.

Since the family law is essentially about marriage, we shall start with this subject how a marriage is contracted and annulled, its legal effects and the consequences of its breakdown.

The Hindu Marriage Act 1955 provides for essential conditions for the validity of a Hindu Marriage, registration of Hindu Marriages, Restitution of Conjugal rights, Judicial separation, Nullity of Marriage, Divorce etc. (Given in Sections 5- 13 under the topic 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.

This section 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 and is 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 fathers or mothers 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 sisters 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.



Ceremonies of a Hindu Marriage

Section 7 of the Hindu Marriage Act 1955 recognizes the ceremonies and customs of marriage.
A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party to the marriage .The parties to the marriage fulfill the conditions prescribed as follows:

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

Ceremonies vary according to custom. The presentation of a pair of cloth by the bridegroom to the bride (pudava koda) is an important customary rite among the Nair caste in Kerala. Tying of a sacred thread around the neck of the bride (Mangalya Sutra or Tali ) is another rite. Exchange of rings or garlands also is common. A marriage will be valid only if the ceremony through which it is solemnized is sanctioned by the religion of either party as customary ceremony. 

Registration of Hindu marriage

The Supreme Court of India has ordered the compulsory registration of all marriages in India, irrespective of the religion. In India a marriage can be registered under either of the two marriages Act: 

The Hindu Marriage Act, 1955
The Special Marriage Act, 1954

The Hindu Marriage Act is applicable only to the Hindus, The Hindu Marriage Act provides for registration of an already solemnized marriage. It does not provide for solemnization of marriage by the Registrar. For facilitating the proof of Hindu marriages, the state government may make rules for the registration of marriages. Section 8 of the Hindu Marriage Act, 1955 provides for the registration of Marriage. All rules made in this section may be laid before the state legislature. 

A Hindu marriage, which has already been solemnized in accordance with the religious customs and rituals, can be registered under the Hindu Marriage Act, 1955. The Hindu Marriage Act is applicable in cases where both husband and wife are Hindus, Buddhists, Jains or Sikhs or where they have converted into any of these religions. The parties to the marriage have to apply to the concerned authority in whose Jurisdiction the marriage is solemnized or either party to the marriage has been residing. Along with the application form they have to attach two photographs of the marriage ceremonies, invitation card of marriage, age and address proof of both parties, affidavit of Notary/Executive Magistrate to prove that the couple is married under Hindu Marriage Act 1955, fit mental condition, non relationship between the parties within the degree of prohibition.

Both the parties have to appear before the Registrar along with their parents or guardians or other witnesses within one month from the date of marriage. Marriage is registered before a marriage registrar/tahsildar of the district, wherever the parties got married. The registration under the Hindu marriage Act does not require any notice. It can be done on the same day of the filing of application or a few days of moving the application for marriage. The parties will receive a marriage certificate within few days, which is a proof of registration of marriage.

The Special Marriage Act, 1954

The Special Marriage Act is applicable to all citizens of India. Any person, irrespective of religion such as Hindus, Buddhists, Jains, Sikhs, Muslim, Christian, Parsi, or Jewish can perform marriage under the Special Marriage Act, 1954. Special Marriage Act provides for solemnization of a marriage as well as registration by a Marriage Officer/Registrar. Under the Special Marriage Act one months notice period is a statutory provision, which cannot be avoided. 

The parties to the marriage have to given a Notice of Marriage in the specified form to the Marriage Registrar of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given. A copy of notice is affixed on the notice board of the registration office and a copy of the notice is sent to the marriage officer of the area where either of the parties having present/permanent addresses for similar publication. After the expiration of one month from the date of publication of the notice, if no objections are received the marriage may be solemnized. If any objections are received, the Marriage Officer has to enquire into them and take a decision either to solemnize the marriage or to refuse it.

Both parties to be present on the date of registration of marriage with the proof of age and address of both parties, affidavit with regard to these as well marital status, fit mental condition, non relationship between the parties within the degree of prohibition, passport size photographs and with three witnesses. In the presence of these three witnesses the marriage is solemnized by the Marriage officer .The Marriage officer registers the marriage and a marriage certificate is issued within few days of marriage.