Tuesday, 19 July 2022

Marriage under the Hindu Marriage Act, 1955

 Marriage under the Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955, has reformed Hindu law of marriage. But has the Hindu

marriage now become a contract or remained a sacrament? Sections 5, 11 and 12 of the Act

are the pertinent provisions. Section 5 deals with the conditions of marriage. Clause (ii) of the

section deals with mental capacity. Clause (iii) lays down that at the time of the marriage the

bridegroom has completed the age of twenty-one years and the bride the age of eighteen

years. The age of marriage. and soundness of mind relate to the consensual element of

marriage. If marriage. is looked upon as a contract, consent of both the parties is a condition

precedent to marriage. The contract of a minor or of a person of an unsound mind is void.

This is what Section 11, Contract Act, 1872, lays down. Should the same test be not

applicable to marriage, if marriage is regarded as a contract? But the fact of the matter is that

marriage of a person who is of unsound mind is a valid marriage under the Act. Not merely

this, the violation of the requirements of clauses (ii) and (iii) do not render the marriage void.

Under Section 12, the violation of the former requirement renders the marriage merely

voidable, while violation of the latter condition does not render the marriage void or

voidable; the marriage, if performed, is a perfectly valid marriage. It is a well-established rule

of law of contract that a contract for want of capacity is totally void, it is void ab initio. Thus,

it is amply clear that the Hindu Marriage Act does not consider the question of consent as of

much importance. It does visualize that person’s incapable of giving valid consent, or persons

suffering from mental disorder or recurrent attacks of insanity and epilepsy should not marry.

It does desire that person below certain ages should not marry. But it is not serious about

either. It does not attach the same consequences which are attached to the violation of such

conditions in an ordinary contract. In respect of non-age, the Act adopts a policy of

overlooking. It maintains a continuity with the old Hindu law under which such marriages

were valid. The only effort, as under the Sharda Act, is to try to restrain or prevent such

marriages. But if such marriages take place, they are considered to be valid marriages. Thus,

a marriage without consent is valid. A consenting mind is even now not a condition precedent

to a marriage. This is the inevitable result of the combined reading of Sections 5, 11 and 12 of

the Hindu Marriage Act, 1955. Apart from clauses (ii) and (iii), Section 5 does not speak of

consent. No: do Sections 11 and 12 speak consent, though Section 12(1)(c) does lay down

that in case consent of either party to the marriage or the consent of the guardian of marriage,

wherever necessary, is obtained by fraud or force, the marriage is voidable. The result is this:

if one shows that one's consent was not obtained, the marriage is nonetheless valid, if one

shows that consent was obtained by fraud or force, then marriage is voidable at the instance

of the party whose consent was so obtained.

It may be argued that when two persons undergo the ceremony of the marriage, consent may

be implied. It may be asserted that is it not evident from the fact of undergoing the

ceremonies and rites of marriage that consenting mind was there. The argument, put in this

manner, apparently appears to be plausible. But the question is: if, in a given case, a party is

able to prove that he or she did not consent, can a declaration of nullity of marriage be

obtained from a court of law? It is submitted that no such declaration can be obtained under

the Act. This means that despite the fact that a party is able to prove the absence of

consenting mind, the marriage will continue to remain valid.

Then, could we say that Hindu marriage continues to be a sacrament? It has been seen that

the sacramental marriage among Hindus has three characteristics: it is a permanent and

indissoluble union, it is an eternal union, and it is a holy union. It is evident that the first

element has been destroyed by the Act: divorce is recognized. The second element was

destroyed in 1856 when the widow remarriage was given statutory recognition. Probably, to

some extent. the third element is still retained. In most of the Hindu marriages, a sacred or

religious ceremony is still necessary. But the ceremonial aspect of the sacramental marriage

is of least importance.

Thus, Hindu marriage has not remained a sacramental marriage and has also not become a

contract, though it has semblance of both. It has a semblance of a contract as consent is of

some importance; it has a semblance of a sacrament as in most marriages a sacramental

ceremony is still necessary.

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