Marriage among the Hindus was considered a sacramental union and it continued to be so throughout the entire Hindu period.
The manu smriti says I hold your hand for saubhagya (good luck) that you may grow old with your husband, you are given to me by the just, the creator, the wise and the learned people.
Hindus conceived of marriage as a union primarily meant for the performance of religious and spiritual duties. It could not take place without the performance of sacred rites and ceremonies and it was a permanent and eternal union.
However with changes in the society marriage among the Hindus which was essentially a sacrament partook the nature of a contract. The Hindu Marriage Act, 1955 covering entire India except the state of Jammu & Kashmir has reformed the Hindu law of marriage.
Only if both the parties are Hindus can the marriage take place under the Hindu marriage Act.
The Act applies to:
any person who is Hindu, Buddhist, Jaina or Sikh by religion.
any person who is born to Hindu parents
any person who is not a Muslim Christian, Parsi or Jew, and who is not governed by any other law.
The Act does not apply :
to persons who are Muslims, Christians, Parsis or Jews by religion.
to members of the scheduled tribes coming within the meaning of clause (25) of Article 366 of the Constitution of India unless the Central Government by notice otherwise directs.
CONDITIONS OF A HINDU MARRIAGE
A marriage to be valid has to fulfill the following conditions:
- Neither party should have a spouse living at the time of marriage. The spouse does not include a divorced husband/ wife.
- At the time of marriage, the parties should be capable of giving a valid consent to the marriage. A person who is of a sound mind shall be considered to be a person capable to give a valid consent. Neither party, though capable of giving a valid consent should be suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children. Neither party should be suffering from recurrent attacks of insanity or epilepsy.
- The bridegroom should have attained the age of 21 years and the bride should have attained the age of 18 years at the time of marriage.
- The parties should not be within the degrees of prohibited relationships, unless the customs or usage, permits such a marriage.
Two persons are said to be within the degrees of prohibited relationships:
If one is a lineal ascendant of the other. For example a Daughter can not marry her father and grandfather. Similarly, a mother can not marry her son or grandson.
If one was the wife or husband of a lineal ascendant or descendant of the other. For example, a son can not marry his stepmother. Similarly, a person can not marry his Daughter-in -Law or son -in-law.
If one was the wife of the brother or of the father's or mother's brother or the grandfather's or grandmother's brother of the other.
If the two are brother and sister; uncle and niece; Aunt and Nephew or children of brother and sister of two brothers or two sisters. It must have been noticed in some communities the marriage with the wife of the brother and mother's brother and the first cousins are solemnized, those marriages, in the absence of a custom in the community are not valid marriages.
- The parties are not apindas of each other, unless the customs or usage governing each of them permits of a marriage between the two. A apindas 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.
In plain words, a person can not marry upto his second cousin from the mother's side and upto his fourth cousin from the side of the father. It is also necessary the parties should not be apindas of each other from either side.
In case, either party has a spouse living at the time of marriage, within the degree of prohibited relationship and are apindas of each other, the marriage between the parties shall be null and void.
Voidable marriages are those which are void at the option of the aggrieved party. Such marriages can be annulled by a decree of nullity on any of the following grounds:-
That the marriage has not been consummated owing to the impotence of the Respondent.
That the marriage is been performed with a person of unsound mind or having a mental disorder or suffering from recurrent attacks of epilepsy.
That the consent of the Petitioner or its Guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the Respondent.
To succeed on this ground, it is necessary that the Petition must be presented in the Court within one year after the force has ceased to operate or the fraud has been discovered. It is also necessary that after the force has ceased or fraud discovered, the Petitioner has not, with consent, lived with the other side.
- That the Respondent was at the time of marriage pregnant by some person other than the Petitioner.
LEGITIMACY OF CHILDREN OF INVALID AND VOIDABLE MARRIAGES
The children born out of invalid and voidable marriages are legitimate children of the parties and are entitled to the share in the separate property of their parents.
A Hindu marriage can take place according to the customary rites and ceremonies.
The ceremony of saptapadi and kanyadana are important ceremonies prevalent among vast majority of Hindus and the ceremony of saptapadi before the sacred fire has been held essential for a valid Hindu Marriage.
The marriages solemnized, may be registered under the SPECIAL MARRIAGE ACT with office of the registrar, in the Hindu Marriage Register.
Registration is not compulsory and in no way effects the validity of the marriage. It is entirely upto the parties to have the marriage registered.
No marriage can be registered unless the following conditions are fulfilled
A ceremony of marriage has been performed between the parties and they have been living together as husband and wife
Neither party has at the time of registration more than one spouse living
Neither party is an idiot or lunatic at the time of registration
The parties have completed the age of twenty one years at the time of registration
The parties are not within the degrees of prohibited relationship
The parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration.
On receiving the application signed by both the parties the Marriage Officer shall give public notice and after allowing 30 days for objections and on being satisfied that all the conditions are fulfilled he shall enter a certificate in the marriage certificate book, which shall be signed by the parties and three witnesses.
Restitution of conjugal rights
If either the husband or the wife, without reasonable excuses, withdraws from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights.
The decree of restitution of conjugal rights cannot be executed by forcing the party who has withdrawn from the society from the other to stay with the person who institutes Petition for restitution. The decree can be executed only by attachment of the properties of the judgement debtor. The practice has shown that the decree of restitution is a paper decree.
However, if the decree of restitution of conjugal right is not honoured for a period of more than one year, subsequent to the date of the decree, it becomes a ground for divorce.
Either party to the marriage may present a petition on any of the grounds stated in the provisions for divorce, praying for a decree of judicial separation. A judicial separation is a legal way to stay separate from the spouse, without obtaining a decree of divorce. It also helps in cases to defend a petition for restitution of conjugal rights. A judicially separated spouse cannot be given a meaning to include a spouse merely living separately, and who has not obtained a decree for judicial separation.
In case, there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards, after the passing of the decree for judicial separation, it shall be a ground for a divorce.