Friday, 28 January 2022

Essentials of a Valid Hindu Marriage - Manav Puri@LexCliq

Essentials of a Valid Hindu Marriage – Manav Puri@LexCliq


Introduction;

Hindu marriage refers to Kanyadan which means that the father gives the boy, his daughter after performing all the traditions and rites or customs where these have changed over time. In ancient times, there was no need for girls. Approval. Parents must make decisions about the child without seeking their advice or consent. It is the sole responsibility of the father to find a suitable boy. 

In Ancient times, apart from the consent, the unsoundness of mind or person being a minor was also not a problem at the time of marriage, as it was still considered to be valid. In the present times, the marriage is considered to be more of a contract wherein, the consent of both parties is one of the most important elements, and without this the Hindu marriage is considered as void.


Characteristics of Sacramental Nature of Hindu Marriage;

Hindu marriage is “a religious sacrament in which a man and a woman are bound in an enduring relationship by physical, social, and spiritual need for dharma, procreation, and sexual pleasure.

  1. It is an enduring bond of the husband and wife which is permanent and is fixed even after their deaths they remain together.

  2. It is a religious and holy union of the bride and groom which is necessary to be performed by religious ceremonies, customs and rites.


Essential conditions of a valid marriage;

  1. Condition of monogamy – Hindu Marriage Act, 1955 provides the rule of monogamy & prohibits polygamy & polyandry. A Hindu before this law could marry any number of wives, even if he had a wife or wives living, although this practice was looked always with disfavor. A second marriage in the lifetime of a spouse of first marriage, will be against law and considered void even if second marriage were contracted outside India. In order to prosecute a person for bigamy it is necessary to prove that he/she already has a living spouse & prior marriage has been duly celebrated with the performance of ceremonies.


  1. Mental Health ad Capacity – Section 5(ii) provides about the mental capacity of the spouses at the time of marriage. It was provided, in the original act, that neither party to a marriage should be idiot or lunatic at the time of marriage. This clause provides: “at the time of marriage neither party;

  • Should be incapable of giving valid consent for the marriage due to unsoundness of mind,

  • Though capable of giving the valid consent, but has been suffering from a mental disorder of a kinds making him unfit for marriage & for procreation of children,

  • Has been subjected to recurrent attacks of insanity or epilepsy.


Thus, the mental incapacity of any form, affecting the very purpose of marriage has been ground of voidability of marriage. The mental disorder of insanity must be in existence at the time of marriage. Such marriages may be declared as voidable under section 12 of the act.


  1. Age of the Parties – Prior to Child Marriage (Amendment) Act 1978, the age for marriage was 18 for the boys and 15 for the girls, and if the age of the girl was below 15 then the consent of guardian was needed. The Section 5 (iii) of the Hindu Marriage Act 1955, now states that the boy has to attain the age of 21 and the girl should have been of 18 years, at the time of the marriage. If the person has not attained the given ages, then this will come under the purview of a child marriage and hence, will be declared as void, with given punishments of Imprisonment being extended up to 2 years and fine up to 1 lakh rupees. 

  2. Prohibited degrees of Relationship – Section 5(iv) prohibits marriage between the person who are within the “prohibited degree of relationship with each other”. Section 3(g) provides, two persons are said to be within the degree prohibited relationship when;

  • If one is lineal ascendant of the other,

  • If one was the wife or husband of lineal ascendant or descendant of the other,

  • If one was the wife of brother or of father’s or mother’s brother, wife of grandfather’s or grandmother’s brother,

  • If the two are brother-and-sister, uncle-and-niece, aunt-and-nephew, or children of brother and sister or of two brother and sister or of two brothers or sisters.

          It is important to note that he prohibited relations also includes;

  • Half, Uterine or Full blood relations.

  • Illegitimate or Illegitimate blood relationship.

  • Relationship by Adoption.


  1. Sapinda Relationship – All prohibited relationships are Sapindas but all Sapinda relationships are not prohibited relations. Sapinda relationship refers to the series of all relationships from the line of brother and sister in the family, they can’t marry each other due to prohibited relationship and also their generation till three generations from the mother’s side and five-generation from the father’s side, till that they all are in Sapinda relationship. Avoidance of Sapinda can be achieved as the girl reaches the fourth generation and boy reaches the sixth generation after that both families can have a marriage that will be neither prohibited relationship nor Sapinda relationship.


  1. Another essential condition to be fulfilled for a valid Hindu marriage is that both parties should be Hindus, as even one party will not be a Hindu then the marriage will not be considered as a valid one and apart from this, they should also be confirming to the essentials of a valid marriage as stated under Sections 5 to 7, of the Hindu Marriage Act.

Ceremonies for valid Hindu marriage;

  1. Sagai – Hindu engagement is an important pre-marriage ritual in Indian culture, it is a type of culture where the bride and groom meet face to face and form a religious bond through each other's families. The Hindu tradition of "Vagdanam" dates back to the Vedic period where the groom's father gives his words to the bride's father that they will accept his daughter and will also be responsible for her future welfare.


  1. Kanyadan – The word kanyadan is made up of two words, kanya meaning virgin or maiden and dan meaning donation. It's a girl's donation. It is an ancient tradition in which the father of the bride presents his daughter to the groom and entrusts him with her future welfare. It is a ritual infused in and emotional and sentimental relations that recognizes the sacrifice a father makes to ensure his daughter's happiness. It is followed from the Vedic times until now, and has been an integral part of traditional Hindu marriage.


  1. Saptpadi – Saptapadi is a very important and integral part of a typical Hindu marriage. It is an activity performed by the newlywed couples before the god of fire, in which couples walk around the sacred fire seven times while reciting certain vows. This movement is also known as Phera. Fire or Agni is considered most sacred in Hindu religion, vows made before Agni are permanent and unbreakable. The god of fire, Agni deva, is seen as a witness of solemnization of marriage and as a representative of the supreme providing blessings on the newlyweds. Section 7 of the Hindu Marriage Act 1955 provides for the celebration of Hindu marriage, a Hindu marriage may be performed through all ceremonies and rituals of either party or both, where it is concerned with Saptapadi, after completion of which, the marriage is consummated.





Other provisions of valid Hindu marriage;

  1. Solemnization of Marriage – Section 7 of the Hindu Marriage Act 1955 provides for the celebration of Hindu marriage, under which a Hindu marriage may be performed by all ceremonies and rituals of either party or either party. It refers to the Saptapadi, which means walking seven laps around the fire with your partner; after its consummation, the marriage becomes complete and binding. 


  • Any party to the marriage explained in any language must be understood by each party. 

  • Each spouse puts the ring on any finger of the other. 

  • Tying up the Thali.

 

Marriage becomes valid when contracted between Hindu couples in accordance with the customary ceremonies and rites of either or both parties. Any child born after marriage under this section is considered to be legitimate. The birth of a child before the marriage is dissolved is not a reason for the dissolution of the marriage.


  1. Registration of Hindu marriage – Both partners must complete the application form, sign and send it along with two photos of the wedding ceremony, invitation card to the wedding ceremony, proof of age and address of both parties, notary affidavit. / Executive Magistrate to prove that the couple is married in accordance with the Hindu Marriage Act 1955, adequate mental constitution and evidence that there is no relationship between the parties within the degree of prohibition. All documents must be notarized by an official of the Official Gazette and parties must deposit a fee at the Assistant Registrar's Office and attach the receipt to the application form. Once the application has been submitted and the documents verified, the officer in charge will assign a registration date for, when the marriage certificate document will be issued.



Conclusion;

Marriage is one of the most important duties of the father to bring up the girl child, and find a suitable boy for her and do Kanyadan for the girl. After which the girl leaves their gotra and enters into the gotra of the boy. It is considered to be an unbreakable bond that is tied for the generation to generation, and hence, is given a status of a sacrament, and not of a contract.


Author Name – Manav Puri@LexCliq



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