245251455 conditions essential for marraige under hindu law

7/21/2019 245251455 Conditions Essential for Marraige Under Hindu Law

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ACKNOWLEDGEMENT

We would like to express our special thanks of gratitude to my teacher Mrs.Ankita Kumarwho gave me the golden opportunity to do this wonderful project on the topic Conditions

Essential for Marriage under indu Marriage Act which also helped me in doing a lot of

!esearch and we came to know a"out so many new things # am really thankful to her.

$econdly we would also like to thank our parents and friends who helped us a lot in finali%ing

this project within the limited time frame.


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TABLE OF CONTENT:

$!.

&o.

'()#C )A*E

&o.

+. ("jectives ,

-. ypothesis

,. Conditions Essential for Marriage under MA /

. Explanation of $ection / 0

Condition + 0

Condition - 1

Condition , +2

Condition ++

/. 'esting of ypothesis +,

0. Conclusion +

3. 4i"iliography +/


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OBJECTIVE:

'o study and analy%e the various conditions essential for marriage5 under

$ection / of indu Marriage Act5 +1//.


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HYPOTHESIS:

+. A person already married under section / of the indu Marriage Act cannot remarry as per

the provisions of the same section.

-. 'he marriage can "e annulled if one of the spouses was suffering from a mental condition

at the time of marriage.

,. 'wo people can get married when they attain the age of majority i.e. +6 years.

. &o two people can get married if they come under their relationship5 comes under

prohi"ited relationships defined in $ec / Clause 78 of the act.

Section 5. Conition! "o# $ Hin%

&$##i$'e.(


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A marriage may "e solemni%ed "etween any two indus5 if the following conditions are

fulfilled5 namely9:

7i8 neither party has a spouse living at the time of the marriage;

+


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conditions5 contravention of which would make the marriage void under $ection ++ of the

act. $ection +3 would further render the offending party lia"le for prosecution under section

1 and section 1/ of the #ndian )enal Code. $ection +3 of the indu Marriage Act lays

down:Any marriage "etween two indus solemnised after the commencement of this Act

is void if at the date of such marriage either party had a hus"and or wife living; and the

provisions of the #ndian )enal Code shall apply accordingly.B 'he provisions which prohi"it

"igamy5 do not contravene Article -/ of the Constitution.,

'he $upreme Court in $mt. amun"hai Anant !ao Adhar vDs Anant !ao 'hiraram Adhar5

held that the marriage "ecome null and void where it is in violation of the first condition of

section /. #t "ecomes void a" initio and ipso facto. 'he Apex Court o"served further that the

wife in a void marriage cannot claim maintenance under section +-/of the Criminal

)rocedure Code.

'hus a man whose wife is alive and his marriage is valid su"sisting at the time5 he cannot

marry another wife. e will "e guilty of committing the offence of "igamy5 if he marries

another wife during the continuance of the former marriage. $o also a woman whose hus"and

is alive and her marriage is valid and su"sisting at the time5 cannot marry another hus"and

and she will "e committing the offence of "igamy5 if she marries another hus"and. 4ut the

parties to void marriage within the purview of $ection ++ can contract a valid marriage. $o

also if there has "een a dissolution of marriage either "y a decree of nullity under section +-

or "y a decree of divorce under $ection +,5 either party of such a marriage is at li"erty to

marry again and the prohi"ition of Clause 7i8 of $ection / will have no operation in such

cases. (n the =uestion whether the former hus"and or wife is alive or dead at the time of the

second marriage the fact that he or she has not "een heard of for a period of 3 years "y those

who are likely to have heard of him or her5 raises a presumption that he or she is dead at the

time5 and it is open to other spouse to contract a second marriage on the footing that the

former marriage has "een dissolved "y death5/and in such case the onus of proving that the

former spouse if alive is on the person applying for decree of nullity of the second marriage

on this ground.

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A second marriage in the lifetime of the pose if the first marriage5 in view of section / 7i8

of this Act will "e against law and void5 even if the second marriage was contracted outside

#ndia. 'he person commits the crime of "igamy and it does not matter in what part of the

world the second marriage has "een contracted.

#n order to prosecute a person for "igamy it is necessary to prove that he or she has already

a living spouse and the prior marriage had "een duly cele"rated with the performance of

ceremonies. #f the previous marriage was not solemnised properly5 the law would not

recognise it as a marriage and the parties would not "e known as hus"and and wife of each

other. nder such conditions such parties to marriage could settle a fresh marriage without

rendering themselves lia"le to any punishment. $imilarly where a person is prosecuted for

having contracted a second marriage and there is lack of proper and ade=uate religious or

customary ceremonies as evidence of such marriage5 he cannot "e punished for "igamy. #n

$hanta Fevi vs $mt. Kanchan )rava Fevi5 the $upreme Court held that the proof of the

performance of ceremonies is essential for a valid marriage. #n Goginder $ingh v $mt.

Gogindero5 the only proof of re>marriage was mutation of name in the revenue record alleged

to have "een made "y the plaintiff 7wife8 herself. 'here was no evidence to show that plaintiff

7wife8 had ever made any statement of her re>marriage and the real "rother of second hus"and

also denied the marriage of his "rother with the plaintiff. 'he $upreme Court held that on the"asis of a"ove facts5 second marriage "y the plaintiff could not "e proved therefore5 her re>

marriage cannot "e upheld.

Where a hus"and or wife is arranging another marriage5 either could move the court in

order to get a prohi"itionary injunction so as to restrain the other party from marrying afresh.

Where the trial court permitted the hus"and to marry another wife during the su"sistence of

first marriage5 on an application of the wife of the first marriage on the ground that her health

used to "e "ad and she was una"le to satisfy his sexual desires5 the imachal )radesh igh

Court held that the order of the court would "e illegal "eing contrary to section / of the indu

Marriage Act.0

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$econd Condition

$anity 7$ection /7ii88> As regards the second condition5 it is necessary that the parties to

marriage are of sound mind and are not suffering from any mental disa"ility so as to "e unfit

for giving a valid consent5 and therefore5 it is laid down under the Marriage Haws

7Amendment8 Act5 +1305 that neither party at the time of marriage is incapa"le of giving a

valid consent to it in conse=uence of unsoundness of mind5 or though capa"le of giving a

valid consent5 has "een suffering from mental disorder of such a kind or to such an extent as

to "e unfit for marriage and the procreation of children5 or has "een su"ject to recurrent

attacks of insanity.

An o"jection to a marriage on the ground of mental incapacity must depend on a =uestion

of degree of the defect in order to re"ut the validity of a marriage which has in fact taken

place. 'he onus of "ringing a case under this clause lies heavily on the petitioner who seeks

annulment of the marriage on the ground of unsoundness of mind or mental disorder.

#n $. Hxmainarayan vs $hanti5 the $upreme Court o"served that to "rand the wife as unfit

for marriage and procreation of children it needs to "e esta"lished that the ailment suffered "y

her is of such an extent that it is impossi"le for her to lead a married life.


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Where the fact of unsoundness of mind of one of the parties to marriage was concealed at

the time of marriage and it was not disclosed even after marriage for some time "y the

parents of a girl5 the court held it to "e sufficient ground for avoiding the marriage under

$ection +- 7i8 7c8 of the Act. #t cannot "e said in this respect that it was the duty of the other

party to find out the facts a"out her.

'hird Condition9

nder this condition the minimum age for marriage is fixed. (riginally5 according to indu

Marriage Act5 +1//5 the age provided for the "ridegroom was +6 years and for the "ride was

+/ years5 though where the "ride was "elow +65 the consent of her guardian was necessary

under clause 7I#8 of the section. &ow the Child Marriage !estraint Act 7Amendment85 +1365

has risen the minimum age fixed for marriage to -+ years in case of "ridegroom and +6 years

in case of "ride.

According to the Marriage laws 7Amendment8 Act +1305 where the Marriage of a girl

7whether consummated or not8 was solemni%ed "efore she attained the age of +/ years and

she has repudiated the marriage after attending the age "ut "efore attending the age of +65 the

girl can o"tain a decree of dissolution of marriage. 'his is an additional ground availa"le to a

wife under section +,7-87iv8 of the Act.

'he )rohi"ition of Child Marriage Act -2205 which received the assent of the

)resident on +2th Ganuary5 -223 provides for the prohi"ition of solemni%ation of child

marriage. According to section -7a8 of the act childB means a person who5 if a male has not

completed -+ years of age and if a female has not completed +6 years of age and according to

$ection -7485 child marriageB means a marriage to which either of the contracting parties is

a child. According to $ection , of the act5 every child marriage shall "e voida"le at the option

of the contracting party who was a child at the time of the marriage5 "ut petition this section

can "e filed "efore the child filing the petition completes - years of attaining majority. Child


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marriage is punisha"le under section 15 +2 and ++ of the act5 and a rigorous punishment of

maximum - years and a fine upto !s. + lakh may"e awarded to those who contravene the

provisions of the act. nder section +, of the act5 a judicial magistrate of the first class or a

metropolitan magistrate is authori%ed to issue injunction in order to prevent child marriage

for from "eing solemni%ed. According to section +5 any child marriage solemni%ed in

contravention of an injunction order issued under section +, would "e void a" intio. 4y

section -2 of the act in section +6 for clause 7a8 the following clause has "een su"stituted9

7a8 in the case of contravention of the condition specified in clause7iii8 of the $ection

/ with rigorous imprisonment with may extend to two years or with fine which may extend to

one lakh rupees or with "othB 4y $ection -+7+8 of this Act Child Marriage !estraint Act5

+1-1 has "een repealed.

'he @(!' J @#@' C(&F#'#(&

4eyond )rohi"ited Fegree>$ection /7iv8 J $apinda !elationship>$ection / 7v8>

'his clause prohi"its marriage "etween persons who are within the prohi"ited degrees

of relationship J $apinda relationship with each other.

According to $ection ,7g8 two persons are said to "e within the degrees of prohi"ited

relationship9

7i8 #f one is a lineal ascendant of the other

7ii8 #f one was the wife or hus"and of a lineal ascendant or descendant of the other; or

7iii8 #f one was the wife of the "rother or of the fathers or mothers "rother or of the

grandfathers or grandmothers "rother of other; or

7iv8 #f the two are "rother and sister5 uncle and niece5 aunt and nephew5 or children of

"rother and sister or of two "rothers or sisters.

#t should also "e noted that prohi"ited relationship includes>

7i8 !elationship "y half or uterine "lood as "y full "lood;

7ii8 #llegitimate "lood relationship as well as legitimate;

7iii8 !elationship "y adoption as well as "y "lood; and all terms of relationship in those

clauses shall "e constructed accordingly.


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4ut if the Lcustom or Lusage governing each of the parties to the marriage allows the

marriage allows the marriage within the degrees of prohi"ited relationship5 then such

marriage will "e valid and "iding.

#n Smt Shakuntala Devi v. Amar Nath75 the )unja" igh Court has held that the

validity of marriage under $ection /7iv8 is su"ject to customs and usage accepted in a

particular indu community. #t simply implies that if a marriage could take place "etween

two indus of prohi"ited degrees "y force of customs its validity cannot "e challenged.

Sapinda Relationship.

$ection /7v85 indu Marriage Act lays down that the parties to marriage should not "e

sapindasto each other., $ecti ,7f8 definessapindarelationship. 'he clause 7f8 of $., runs asunder 9

7i8 sapinda relationshipB with reference to any person extends as far as the third

generation 7inclusive8 in the line of ascent through. the mother5 and the fifth7inclusive8in the line of ascent through the father the line "eing traced upward in

each case from the person concerned who is to "e counted as the first generation;

(ii) two persons are said to "esapindas of each other if one is a lineal ascendant of theother within the limits ofsapinda relationship5 or if they have a common lineal

ascendant who is within the limits of sapinda relationship with reference to each

of them.

(ne person will "esapinda to the other

(i) if he is in direct degrees of ascent within five degrees to the other through thefather or three degrees of ascent to the other through the mother.

(ii) 7ii8 #f5 "oth aresapindas to the common ancestors. @or computationsapinda

relationship5 lines are traced upwards upto five degrees or three degrees5 as thecase may "e5 depending upon whether the line5 through which ascent is traced5 is

paternal or maternal.

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Te!tin' o" H*ot-e!i!

+. #f the person has not "een heard of for a period of 3 years "y those who are likely to

have heard of him or her5 raises a presumption that he or she is dead at the time5 and it

is open to other spouse to contract a second marriage on the footing that the former

marriage has "een dissolved "y death.

-. #f unsoundness of mind of one of the parties to marriage was concealed at the time of

marriage and it was not disclosed even after marriage for some time "y the parents of a

girl5 the court held it to "e sufficient ground for avoiding the marriage under $ection+- 7i8 7c8 of the Act.

,. 'wo people can get married when the male completes the age of -+ years and the

female completes the age of +6 years.

. A marriage "etween two persons who come within the degrees of prohi"ited

relationship shall "e void. owever5 if there is a valid custom or usage governing "oth

the parties allows they can marry even though they come within the degrees of

prohi"ited relationship. All over #ndia5 there are such custom which validate marriage

"etween persons who come within the degrees of prohi"ited relationship.

CONCL>SION:


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#ndia5 "eing a cosmopolitan country5 allows each citi%en to "e governed under personal laws

relevant to religious views. 'his extends to personal laws inter alia in the matter of marriage

and divorce. As part of the indu Code 4ill5 the indu Marriage Act was enacted "y

)arliament in +1// to amend and to codify marriage law "etween indus. As well as

regulating the institution of marriage 7including validity of marriage and conditions forinvalidity85 it also regulates other aspects of personal life among indus and the applica"ility

of such lives in wider #ndian society. 'he indu Marriage Act provides guidance for indus

to "e in a systematic marriage "ond. #t gives meaning to marriage5 coha"iting rights for "oth

the "ride and groom5 and a safety for their family and children so that they do not suffer from

their parental issues. $ection / of 'he indu Marriage Act specifies that conditions must "e

met for a marriage to "e a"le to take place. #f a ceremony takes place5 "ut the conditions are

not met5 the marriage is either void "y default5 or voida"le.

BIBILIOG=APHY


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We"sites9

www.vakilno+.com

www.manupatra.com

www.lawyersclu"india.com

4ooks9

indu Haw5 Fr. )aras Fiwan

indu Haw of Marriage and Fivorce5 -2+- Edn5 $ukhdev $ingh
http://www.vakilno1.com/http://www.manupatra.com/http://www.lawyersclubindia.com/http://www.manupatra.com/http://www.lawyersclubindia.com/http://www.vakilno1.com/

245251455 conditions essential for marraige under hindu law

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