Concept of Marriage

ANCIENT & MODERN PERSPECTIVE OF MARRIAGE :

 Present hindu law is ana malgamation of both ancient perspecives or shashtric law and
modern perspectives of legislations and judicial pronouncments (fr eg. Live in
relationships) Eg 2- While maintenance can only be given to valid marraiges under S.24
and 25 of HMA, in Ramaswamy case it was given even to void marraiges. Further. S.18
of HAMA allows provision of maintenance in the absence of a dispute whereas under
HMA maintenance was confined only to existence of disputes. Thus, changing nature of
modern law and traditional law.
 The basic question that arises while studying Hindu marriage is what is the true nature of
Hindu marriage?
 Before answering in-depth, this is the summary answer for the question above:
1. Ancient law- there was no codified law, thus it was less law and more a religious
sacrament.
2. Introduction of Hindu Marriage Act- this introduced slight resemblance of
contract while still retaining more sacramental values.
3. Current position- Hindu marriage is sacramental but more of a contract.
 The initial belief was that marriage continues for seven lives and hence there is no
concept of divorce or dissolution under this.
 The 1976 amendment to the HMA dealt with legitimacy of illegitimate child.
 In 2016, live-in-relations are also treated as marriage.
 Thus, the institution of marriage has thus changed from time to time. HMA recognized
Hindu marriage as sacramental but w/ terms of contract.
 In Islamic law, it is a purely contract based marriage with little religious basis.
BROAD STRUCTURE
1. Nature of Hindu Marriage
2. Ancient Perspective and Modern Perspective
3. Forms of Hindu marriage
4. Changes brought by the HMA-change from amendments
5. Amendments of 1976, Proposed amendment of 2013 (37)

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 ANCIENT PERSPECTIVE :
 Rigveda (supreme authoity) states that marriage is a Sanskaram (sacrament). An
individual’s life is incomplete w/o it and its and extremely essential part to various
religious activities.
 Manusmriti states that the wife is Ardhangini which means half of man. Thus a man’s
life shall always be half until he marries.
 Shatapatha Bhrahmana states that the wife is half of the husband and the husband is
not complete w/o her.
 Shastras says that the husband is known Bhartri & the wife is known as Jaya because he
needs to support his wife.
 Mahabharta says that a wife is path to achieve – Dharma, Artha, Karma, Moksha.
 Ramayana states that the wife is Grihini (house maker) and is the husbands counsellor
and friend.
 It is this considered an essential part of human life and a religious obligation on ones
part which shall lead up to ultimate salvation.

MODERN PERSPECTIVE ON NATURE OF HINDU MARRIAGE

 The question of nature is whether the marriage is a sacrament, a contract or
something else? As a whole it is considered sacrament, but as per codified law
has many contractual aspects. Till 1954 it was only sacrament, post HMA certain
contractual aspects exists.
 Two cases discuss the modern perspective of marriage –
Tikait Mummoninti v. Basant Kumar, 1901 ILR 28 Cal 251
Gopal Krishna v. Dr. Mithisesh Kumari, Air 1979 All 316.
Bhagwati Singh v. Parameshwari Mohan Singh
Mithuswami Madaria v. Masiamani
 It had been states in these cases that Indian society is a developing society and the
society should develop their thoughts, religious scriptures as per the recent
developments. The law should develop w/ society. Thus, here divorce was
allowed.
1. Litigation wrt marriage disputes is rising. There is a 300% increase in the
same. The HMA recognized divorce but there were debates because ancient
texts did not recognize the idea of divorce. The govt. added this after 1955.

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 Through this divorces became extremely easy. 1. Marriage was considered
indissoluble before 1995 but after the amendment divorce became extremely
easy.
2. Matrimonial dispute rose from 1955-1976. After this an amendment of
judicial separation was added so courts could be given a chance to settle the
dispute.
3. The reason for introduction of judicial separation was because there was a rise
in divorce. People were marrying w/o considering social obligations like that
of young age, not adhering to rights. Divorce thus became an ultimate option
for parties. Hence, various Family Courts were created. These courts
mandatorily sent parties for mediation and counselling.
4. Further there was a new clash b/w HMA which states the essentials of valid
marriage and the concept of live-in-relation. Question: Are the ceremonies
prescribed for Hindu marriage not important? In absence of following any
tradition should it be registered u/ Special Marriage Act? SC states that live-
in-relations where there is portrayal of husband and wife then it would
constitute of valid marriage. Thus, HMA slowly accounted for new
development in the society through changing times.

OTHER INFORMATION ON HINDU MARRIAGE :

 Manusmriti states that marriage is a gift of bride to bridegroom. The father makes
an offer to the bridegroom and he accepts it. The ceremonies which indicate the
existence of same are: Satpadi & Kanyadan. (elements of contract- offer and
acceptance)
 The contract of marriage can be terminated through mutual consent.
 In marriage the husband has certain obligations towards the wife even after
divorce where he must provide her with maintenance. (specific performance)
 Q: If marriage happened before HMA, then will it be valid. There were certain
forms of approved forms of marriage prescribed before 1955. It is essential to
check the validity of a marriage because it ensures three things:
1. Legitimacy of child
2. Maintenance to wife

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 3. Property right to wife.

APPROVED FORMS OF MARRIAGE :

1. BRAHMA - father gifts the daughter to a man who knows Vedas. This is is the most
approved form of marriage.
2. DAIVA - gift of daughter to priest. No major difference except that the person
should perform acitvities of a priest. Man learned in Vedas may not necessarily
be a priest.
3. ARSHA-father gives away daughter in lieu of one/two pair of cow/bull. It is
considered to be religious and pious. Some part of contract.
4. PRAJAPATYA - this is similar to the first type of marriage but instead the
bridegroom approaches the father with offer.

As per ancient texts it is considered as a dissoluble form of marriage.

UNAPPROVED FORMS OF MARRIAGE: (VOID AB INITIO )

1. ASURA - acceptance of consideration by father for marriage.

2. GANDHARVA -both parties enter into marriage w/ mutual consent. Unapproved
because no father consent.
3. RAKSHASA- forceful abduction of bride from her home.
4. PISACHA - marriage of a girl w/ a man who had committed the crime of ravishing
her either when asleep or when made to drink.

CONDITIONS FOR VALID HINDU MARRIAGE:

 Yajnavalkya & Manusmriti also dealt with essentials for a valid Hindu marriage.
 Section 5 & 7 of HMA give the essentials for a valid Hindu marriage.
1. Identity of caste b/w parties i.e. parties must belong to same caste unless
sanctioned otherwise by custom.
A) Anolom marriage- all rights available and recognized under this marriage
B) Pratilom marriage- rights not available and not recognized form of marriage

In HMA there is no such mechanism present.

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 2. Parties to be beyond the prohibited degree of relationship i.e. were not of the
same gotra or marry a close cognate or have sapinda relationship. Thus, it was
essential to see the relationship b/w parties.
3. Proper performance of ceremonies by parties.
4. Parties shouldn’t be married to another person earlier before entering into
marriage. Ancient law initially recognized bigamy but Smriti’s and Shruti’s they
discourage this practice. Manusmriti which has the highest authority in personal
law also did not permit bigamy.
 Manu disapproved for divorce and remarriage.
 Irrespective of bigamy not being allowed, it had widespread prevalence during
ancient time.
 Smriti’s allowed remarriage to men but did not allow women the same. However,
 Since ancient law did not recognize widow remarriage, the 1956 Hindu
Succession states that remarried women will not be entitled to share in property.
Thus, remarriage is a disqualifying ground. After 2005, this ground was removed .
As per HSA, once the husband is dead the property is open for division.
Irrespective if new members are born, the property shall be divided as per the
situation during the time of death and not in future period.
 Ancient law and modern law were amalgamated for divorce mechanism (from
Narada and Parashar)
1. Husband is lost
2. Death of husband
3. Husband has renounced the world
4. Husband is impotent
5. Husband ousted from his caste.

ANOLOMA & PRATILOMA MARRIAGE :

 Males: The husband is not allowed to marry a girl who is in higher caste. So,
same caste or lower caste is allowed.
 Females: When the father makes the offer then this concept may be
compromised. But, customs & traditions should recognize this thing.

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CHANGES BROUGHT BY MODERN PERSPECTIVE OF HMA, 1955:

 The following are the changes bought out by HMA:

1. Inter-caste marriage recognized, Section 29: Anulom-Partilom system
ablished. All caste system in case of marriage abolished and no recognition to
caste system. For all purposes custom could prevail but for marriage, law
would prevail over custom. 1948 and 49 report also dealt with abolition of
caste.
2. Bigamy prohibited, Section 5(i) and punishable u/Section 17

3. Conditions simplified, Section 5 & 7

 Further, although child marriage was prohibited, there was no provision

rendering it to be void. The marriage becomes voidable in the Prohibition of
Child Marriage Act. HMA provides age and punishment but voidability comes
from PCM.

 HMA gave liberty as far as ceremonies concerned to follow either husband or

wife’s tradition, whereas before only husband’s was taken into account.

4. Matrimonial reliefs provided

5. Specific provisions for maintenance, Section 25 : It was duty of husband in old
law to provide maintencnce but not after dissolution, whereasger agter HMA
provided post dissolution as well.
6. Divorce: New juducial separation, divorce, annulemnt provisions was
introduced.
7. Restitution of conjugal rights

 Sapinda prohibited degrees: PAGE 44.

CHANGES BROUGHT BY MARRIAGE LAWS AMENDMENT ACT, 197 6:

(READ ALONG WITH D’S NOTES ON PAGE 46)

1. Divorce by mutual consent, Section 13B. Although, claims for divorce brought
within one year of marriage cannot be brought under Section 13B except through

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 leave of HC. Even if there is mutual consent, time period of one year must be
followed. If difference b/w parties irreconcilable in nature and even when the
grounds are not mentioned, divorce within one year maybe allowed.
2. Divorce on ground of adultery made easy. But, it is difficult for a wife to prove
adultery as it is difficult to collect evidence and prove. Initially, “single act” of
adultery was not a ground for divorce but a “continuous” act of adultery was
necessary. Thus, the word “continuous” was removed and even a “single act” of
adultery could be a ground for divorce. Earlier, direct evidence was required to
prove adultery but after amendment, circumstantial evidence could be admitted.
3. Divorce on ground of unsoundness of mind, vulnerable disease, mental disorder
was made easy. As per the old provision, before marriage if the wife was mentally
affected then the husband can seek for annulment on grounds of invalid consent
(Section 12). If after entering into marriage the wife became mentally unstable
then before 1976, divorce could be given to that party but after amendment, it was
necessary to prove that the unsoundness is “incurable”. If it is curable
unsoundness then divorce may not be allowed. After 1976 amendment, the
concept of curable/incurable was removed and thus divorce became easy once
again but the obligation existed to ensure that the party was taken care of. If
husband knew his wife was mentally unstable before marriage then divorce shall
be u/Section 13 but if he did not know then it shall be invalid consent and he can
approach court u/Section 12.
 Section 13(1) (iii) – continuous unsoundness is not that necessary. In cases of
unsoundness, if any party to the marriage has apprehension that the occasional act
of unsoundness will endanger the health of the person, then divorce maybe given
Further, Section 21B ensures speedy trial in Family courts.

4. Speedy Trial (S.21B)

5. Property rights given to illegtimate sons and daughters udner S.16

CHANGES BROUGHT BY MARRIAGE LAWS (AMENDMENT) A CT 2010:

This was approved by Cabinet on 17.07.2013. Page 47.

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  HSA recognizes property rights of wife after death of husband only if the
condition precedent of husband-wife relationship exists. If they are divorced, no
such property rights are given to wife, only maintenance claims.
 Amendment suggested that even if marriage is dissolved, wife would be
entitled to the property. It thus sought to change the succession pattern but this
change has not yet occurred.

APPLICATION OF HMA:

Examples:

1. If the marriage is as per HM, registered u/HMA. The husband continued to follow his
belief. Wife goes for divorce. The validity of the divorce would come into question.
2. Husband is Christian. The marriage is as per Hindu traditions and registered u/HMA.
Husband professed Hinduism. Wife gives divorce. The validity of the divorce once
again comes into question.

In both the examples, they fulfilled all the essentials u/Section 5 & Section 7. So, are
there any other essentials then the one provided in these sections?

APPLICATION:

1. HMA applies to marriage of a person both of whom are Hindus.

2. To any person who is Sikh, Jain, Buddhists by religion.
3. Section 1(2) clarifies that HMA applies not only to Hindus within the territory of
India but also to Hindus domiciled in India & living abroad. You can take divorce
only under the law your marriage was solemnized under. If the parties are settled
abroad and have achieved the status of permanent citizenship then they they’ll
follow the law of that land
 But if parties go for temporary basis then it can only be given u/ HMA. If any
one party does not permanently settle abroad, then HMA. Sathya v. Teja. If
foreign cuorts grants divorce when one of the parties remains domiciled in India,
the decree may not be recognized by Indian courts.
 In case if a person gets divorce in any other country of which they are not a
citizen then a certain procedure has to be followed for giving validity to decree
given by the foreign courts. CPC determines recognition of foreign judgements.
Only valid with certification by the indian court by fulfullment of certain

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 conditions and Court can verify that party domiciled in India accepts foreign juris
judgement.
(CLARITY NEEDED HERE< PAGE 49)
 If both the parties are in different countries and wife comes to India and takes
divorce, then the divorce will be applicable wherever the H is.
If H is in other country & W is in India & H gets divorce there, then it’s not
applicable in India. Ratification of the same is required in Indian court.
4. Any child legitimate or illegitimate whose both parents are Hindus have right
u/HMA

Q: How to become a Hindu?

1. Conversion
2. Birth: Marriage with hindu girl, hindu rituals then Son considered to be Hindu.
This child is “born hindu”, despite whether the marriage is void or not.
3. Adoption

Examples:

1. Christian (H), Hindu (W)

Q1: Validity of the marriage?
This is answered in the case laws discussed afterwards.
Q2: Child legitimate or illegitimate?
Yes.
Q3: What is the child’s religion?
Either the fathers religion or the religion as per which the child has been brought
up. So, if the child follows Hindu tradition, the child is Hindu. “Bringing up” of
the child is important. Upto 18 the parents of the child can decide his religion.
But, after 18 the child is free to decide his own religion. Courts or the parents do
not have this power.

1. Parties being birthed are usually governed by the father’s religiion when there is
no dispute. In cases of H-christian, W-Hindu and am brought up in both ways
(both worships) then father’s will be soncisdeered.

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 2. However, if the child is brought up in a particular religiion or chooses a particular
religion, same will be considered.
3. If parents are diff religion, son doesn’t follow either then guardians can determine
religion.
4. But, after 18 the child is free to decide his own religion. Courts or the parents do
not have this power.

Thus, the four factors are: born, converted, reconverted and upbringing.

OPENING STATEMENT OF S.5 (BETWEEN TWO HINDUS):

-notes and Madhavi case

CONVERTS & RECONVERTS:

 Convert is someone who converts from one religion to another. Eg:

Hindu→Christian
 Reconvert is someone who changes from religion to another and once again goes
back to the original religion. Eg: Hindu→Muslim→Hindu. For reconverts the law
under which you have married shall be applicable for dissolution and not the
converted religion.
 HMA shall not apply to any ST’s unless Central govt. notifies it in official
gazettes, Article 366 deals w/ the same.

1. MADHEVI RAMESH DUDANI V. RAMESH K. DUDANI , AIR 2006 Bom 94.

FACTS:
 W converted to Hinduism and married. Section 7 was followed as well and all the
essentials of Section 5 were fulfilled. The marriage was registered u/HMA.
Dispute took place b/w the parties and W went to the court of law and asked for
judicial separatino on the grounds of cruelty and illtreameatmnet. (declaration of
marriage void-ab-initio.
 H said that W was Christian during the wedding.

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  W said that- 1) Marriage was solemnized as per Hindu tradition 2) Registered
u/HMA 3) She stopped going to Church and started going to temple (started
preaching Hinduism)
 H said that W’s conversion to Hinduism was not as per the process of
“Shudhikaran” which is the prescribed way for converting to a Hindu.
DECISION:
 Balgangadhar Tilak had also prescribed a ceremony called “Dartakhomam” for
adoption of child. Court had then said then such ceremonies are not required.
Mere, offer and acceptance is sufficient.
 They further stated that the ceremony of “Shudhikaran” is no material. When
parties follow the religion then it is considered as deemed conversion. ‘
 <page 55>
 Thus, the marriage was perfectly valid.
 If W had not followed Hinduism after marriage then it would not fall under
conversion.
2. GULLIPILLI SOWRIA RAI V. BHANDARU PAVANI
QUESTION BEFORE COURT: The question arose wrt Section 5 of HMA as to
whether both the parties have to be Hindus at time of marriage?
FACTS:
 H was Christian. He entered into a marriage. H told W that he is Hindu.
When he entered into marriage, proper ceremonies were not done. Only
“exchange of thali” w/ flowers took place in temple.
 W realized H is Christian and thus asked for annulment because
1. H was not Hindu during marriage
2. Consent not obtained before entering into marriage as she was not told
he is a Christian.
LOWER COURT: Marriage not valid.
HIGH COURT: Marriage not valid because both the parties are not Hindus.
After this judgement, W entered into second marriage w/ another person after 3-4
months. The Husband then appealed to SC and raised the contention that W’s
second marriage is not valid.
ISSUES BEFORE THE COURT :

1. Marriage b/w Hindus & Non-Hindu:

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 1.1. H did not tell W that he is Christian- this is a case of invalid consent
where W was unaware of material facts. Thus, the marriage is voidable
1.2. Ceremonies were not followed- if ceremonies not followed then the
requirements of Section 7 were not followed. So, marriage is not valid.
Traditions and customs were not followed like that of “Saptpadi”, only
“exchange of thali” i.e. one tradition was followed.
1.3. After marriage, H continued to follow Christianity.
2. Essentials as u/Section 5 of HMA:
H’s lawyer said that the 5 essentials laid down in Section 5 were fulfilled eg:
(i) bigamy (ii) sapandi relations or prohibited degrees. Since, its H’s first wife
and the marriage is not under prohibited degrees, it is a valid marriage.
He further contended that the opening paragraph of Section 5 reads “ marriage
b/w two Hindus maybe solemnized...” The usage of the word “may” implies
HMA does not give mandatory requirements with respect to the parties of the
marriage. It thus means that the marriage may or may not be solemnized.
-S.11 overrode S.5 and 7 because the word “may” applies to marriage and not
the parties. Conditionals are optional.
W contented that the word MAY is applicable to the marriage part and not the
conditions of the marriage. It is a mandatory requirement as there is no liberty
wrt conditions of marriage.

Court held that the bifurcation done by H is not acceptable and Section 5 had
to be read as a whole. MAY is with respect to marriage. But, the parties have
to be Hindu and the 5 conditions of marriage have to satisfied.

3. Section 11 of HMA-
Wife at best can ask for voidability of marriage as u/Section 12 but not
u/Section 11 as husband does not fall under it. It’s not a void-ab-initio
marriage. If there is an issue u/Section 12 then the marriage is voidable and
thus can continue

Courts held that even though H does not fall u/ the given criteria, the court has
discretion to decide. The connection b/w Section 7 and Section 11 is not
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 explicitly established as to the validity of marriage. Thus, Section 7 makes the
marriage invalid.
4. Registration and validity of Marriage:
Registrar issued certificate as u/Section 8 (Seema v. Ashwin, 2005).
Importance of registration was given and it was stated that registration of
marriage should be mandatory. Thus, H contended since the registrar itself
had certified their marriage, the marriage would be valid and thus the HC has
erred in declaring otherwise.

Court held that the certificate by the registrar maybe a conclusive proof of
marriage but it can be challenged before the court. It is a conclusive proof
only when taken w/ free consent and by revealing all facts to the registrar.
5. Preamble of HMA:
It clearly states that it is applicable to Hindus only; otherwise registration of
marriage certificate cannot be issued.

Court finally decided that the parties should be Hindus at time of marriage. But, in
order to be a Hindu no proper conversion procedure is required and the conduct of
the party is enough. Subsequent, conversion to Hinduism after marriage shall also
help constitute a valid marriage.

Random bit: In Islamic law, if a person married a Hindu, then the marriage is invalid
marriage. If Sunni Muslims marries Katabia woman then irregular marriage, which can
be treated with conversion

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DETERMINATION OF SAPINDA RELATIONSHIP AND PROHIBITED DEGREES OF

MARRIAGE :

In order to see whether a relationship qualifies as a Sapinda relationship or not it is

essential to look at the following things:

1. Full blood (preferred)

2. Half blood (preferred)
3. Uterine blood

1. FULL BLOOD:
Illustration 3.1:
F+W
˅
S1—S2
Here, the common point of origin for S1 & S2 is the same and they are related to
each other in full blood as they have common ancestor and ancestress.
2. HALF BLOOD:
Illustration 3.2:
FW1 FW2
˅ ˅
S1 S2
If for some reason, F and W1 separate and F married W2 then for S1 & S2, they
have the same father but they both have different mothers and thus their ancestor
is same but their ancestress is different.
3. UTERINE BLOOD

Illustration 3.3:
F1W WF2
˅ ˅
S1 S2
If for some reason, F1 and W separate and W married F2 then S1 & S2 have
different fathers. Thus, there is a Step-father and Step-son relation. Thus, S1 & S2
have uterine relation.

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