HINDU MARRIAGE

    CONDITIONS OF HINDU MARRIAGE ACT

    Hindu marriage act enacted on 18th may 1955. The word Hindu no where defined, as per the Hindu marriage act, 1955, under section 2 the community, religion and people as per the government of India governs under this act, must seek assistance under this act.

    The people who belong to this category of Virashaiva, Lingayat 0r Brahamo and Prathana and Aryasamaj are Hindu and follow the religion as governed under this act.

    The people who belong to the religion of Sikh, Buddhist and Jain governed Hindu and governed under this act. Any child born legitimate or illegitimate, parents both Hindu and child grown in environment of Hindu culture, governed under this act..

    Any person not a Hindu by religion but convert into Hindu by following any of the religion mentioned above or any person belongs to the Hindu community but later changed the religion but after sometime reconverted into Hindu governed under this act.

    However, schedule tribes not governed under this act, as per the constitution under article 366 clause 25, any person who belongs to the category of schedule tribe not governed by the provisions of Hindu marriage act, whereas before the enactment of this act if any schedule tribe community governed under this act continue to governed under this act.

    Whereas under section 3 it stated that if any person who not a Hindu by religion not governed by the provisions of this act.

    CONCEPT-HINDU MARRIAGE

    The concept of marriage is very sacrament process that is based on ancient philosophy if one man and women married according to the customs and rituals of Hindu sacrament, governed by the customs and rituals of the society.

    The women termed as the better half of man, man incomplete without a women until they both get married, marriage. The most auspicious day in one’s life, the spouses on that day onward, allowed to indulge in believes of society to procreate the offspring and to grow a family, enjoy the culture and social life of the society.

    According to Hindu law, marriage the permanent process between the spouses, the wife treated as the Ardhangini ‘half part of the body’ when marriage happen between the two, they two becomes the soul mates of each other, on person is allowed to do back out or renounce from the marital life, the couples engaged in marital life for this particular life and others life’s to, as eternal in nature. The main task of marital couple is to procreate the son and daughter.

    Whereas with the passage of time, due to transformation and revolution in society, the believe like marriage eternal in nature, if married cannot be apart through divorce such believes broken with change in time, under Hindu marriage act, the partners got married, divorce, separation and maintenance in marital life. If a partner after divorce such person

    allowed to re-married to some other person. If the spouse died the widow or widower can get married under this act.

    According to section 5 – condition of marriage

    During the time of marriage, the partners must not married to some other person before, or no living spouse alive during the time of marriage. According to the Hindu rituals and ceremony or other religion, no spouses must be present during the time of the marriage by either party.

    Either of the spouses must not be of unsoundness of mind or insane, that they are not able to give their consent for the marriage, both the parties must be of sound mind during the time of marriage, must not be suffering from permanent impotency, recurrent attacks of insanity or any mental disorder.

    Any Hindu who attains the age of 18 for girls and 21 for boys allowed to married according to the customs and rituals mentioned in Hindu law.

    The spouses must not related to each other on based on prohibited degree of relationship, till their customs and law not allowed them to get married to each other.

    The spouses must not belong to the same sapinda, the marriage between such person, held void, till their customs and laws allows them to validate such marriage.

    section 5(1) contains the no person shall marry to another person, if already married and have spouse living during the time of another marriage.

    If such person marries to another person without any divorce or without any prior information to the first spouse not dead then in such condition such person who offence of bigamy charged with under section495 and 494 of Indian penal code and section 17 of Hindu marriage act.

    However such person who committed bigamy, their first marriage always given the status of legal marriage and the other marriage always void marriage from beginning. Polygamy the term used by the male who married to more than one women and the other word denotes polyandry for the women who marries to more than one husband.

    Whereas if the first marriage of the person not performed according rituals and customs or through saptapadi rituals such marriage cannot termed as valid marriage under Hindu law.

    However in such case if a person proof that his first marriage is not accords with the rituals and regulations of Hindu marriages the rituals and sacraments, the first marriage is such case will be held void and the other marriage will automatically find the existence and status of legal marriage as mentioned in section 7 of the Hindu marriage act perpetual

    solemnization of the marriage. if person marries according to the provisions of special marriage act then in such case to the persons first marriage will get the legal status in society.

    there many cases in which the person converts into some other religion in order to validate the other marriage but in such cases the other marriage held void if without giving divorce to first wife, starting propagating other religion .

    In Sarla Mudgal v UOI [1] in this case husband remarried and started

    professing Islam, however without giving divorce to first wife. The husband charged for bigamy held that the second marriage is void, no status to second wife. Bigamy is a crime the second marriage will be void in the eyes of law, however a second wife can ask for interim or permanent maintenance by signing the petition for nullity of marriage.

    Whereas the first wife has the right to approach the court, perpetual injunction granted to the person at the end of the judgment such as the assistance of property, breach of contract under section 9, C.P.C and section 38 under specific relief act, 1963.however the First wife can file a civil suit to make their marriage null and void by filling a suit for divorce (13(1)(i) in the ground of adultery.

    MENTAL DISORDER

    Mental condition is that due to which person is unfit to procreate the child many sometimes it can be sexually and sometimes it’s mentally, the sexual disorder is something that the women have the very small vagina that cannot penetrate a men penis or sometimes women unable to procreate the offspring due to medical conditions.

    Man suffers from permanent or temporary impotency due to mental pressure and unhealthy life styles. Whereas man or women suffers from recurrent attacks of insanity, that can be mentally permanently or temporary in nature.

    These are the pre marriage condition not the condition of the post marriages. Whereas such marriages are voidable in nature, such can be a ground of divorce. The consent must need to in order to fulfill the marriage rights.

    CHILD MARRIAGE

    Child marriage is a punishable offence and any person who committed such crime either guardian, parents or husband convicted for imprisonment for 2 years or fine 1 lakh or both. However prohibition child marriage act 2006, made child marriage cognizable offence that allowed arrest without any jurisdiction of the court, as well as non bail able offence that comes under the category of serious offences.

    However in such marriages the court orders needed, the court have discretionary power to make such marriage void and null. Otherwise such marriages can be termed as perfectly valid marriages.

    The states like Rajasthan, Bihar and Haryana highest in percentages for child marriages, the orthodox thoughts and old customs that allows the child marriages valid in the eyes of law and not a crime before independence era, under child marriage restraint act, 1929. That does not contain any provision on child marriages crimes; only contains the provision of marriage according to rituals and ceremony.

    The new act of prohibition of child marriage act was enacted everywhere all over the India, but then to such states specially the rural areas still prefer the child marriage, if any child marriage happens without any court proceedings such marriage is valid. Whereas in section 13(2)(iv) the women who attains the age of 15 years and 18 years, forcibly married during the time of puberty allowed to reject the marriage anytime during this period.

    Whereas under section 3(3) – after majority if a married spouses attended the age of 20 years for girls and 23 years of boys within 2 years of attaining the age of majority allowed to repudiate the marriage as per under prohibition of child marriage act, 2006.

    Section 5(n) POCSO, prohibition of child from several offences, 2012 states that any sexual activities with the minor a crime under this act, the offender convicted for 10 years of imprisonment or life imprisonment. Whereas according to POCSO ACT, 2019 any sexual activity happens below the age of 16 years either boy or girl, the accused convicted for 10

    years or imprisonment or 20 years of life imprisonment according to the jurisdiction of the court.

    Whereas any child produced from such marriages where the women

    is minor(below age of 18) and husband is major(above 21 years of age) or husband and wife both are minor, the child born out from such marriage will be given the status of legitimate child.

    whereas in case of independent thought v UOI[2] in this marriage the husband is the charged for rape of minor wife, the wife is minor and do not give consent for sexual intercourse however the child born out from such marriage is legitimate, as per the decision of the court the husband

    Convicted for rape under section 375 of Indian penal code, 1860.

    PROHIBITED DEGREES OF RELATIONSHIP

    Prohibited degree of relationship refers to the blood relations that are very close to each other through family relations and belongs to the same ancestors or close family relatives that makes their marriage void in the eyes of law.

    Such as the linear ascendant and descendant from the side of wife and husband that includes the a girl cannot marry to his father and grandfather, similarly a mother cannot married to his son and son-in-law or grandson, whereas son not allowed to marry his mother-in-law, if spouses are closely related to blood relation such as brother and sister, uncle and niece, such marriages prohibited and cannot solemnized under this act.

    A person not allowed to married up to second cousin of mothers side and forth cousin from the father’s side. Such marriage between the spouses termed as void marriages.

    SAPINDA

    The person that closely related to father and mother and share the same blood of father and mother cannot married to each other. Such marriages restricted by the society, even if the child is adopted, illegitimate or the one of the parents are step mother or step father.

     TYPES OF CONDITION-HINDU MARRIAGE ACT.

    Full blood- when two persons are closely related to each other and shares mother and father both common for example brother and sister termed as full blood relationship.

    Uterine blood- when two person shares the common mother and they have two fathers, as their mother divorce first husband and married to other husband, any children born out from such relationship is known as uterine blood relationship.

    For e.g. Person will have one real father and one step father and step father children as cousins.

    Half blood- when two person shares the same father but they have two different mothers as the father have two wives in common is related to half blood.eg. The people have one real mother and  one step mother and step mother children as cousins.

    Any person adopted cannot marry to their real or step brother and sisters as he/she legally adopted as their own child, so cannot married in same family. The adopted person shares all rights and duties of sapinda same as biological child has. If any person marries to their cousins or real brother and sister, shall be imprisoned for 1 month or with 1000 rupees

    fine or both given under section 18 of the Hindu Marriage Act, 1955.

    REFERENCES

    https://blog.ipleaders.in/child-marriage-and-the-laws-pertaining-to-it/ – child marriage laws

    https://www.advocatekhoj.com/library/bareacts/hindumarriage/5. php- conditions of marriage

    [1] AIR 1995 sc(53)

    [2] 2017, 10 SCC 800

    case analysis-https://legalacharya.com/caseanalysis/child-labour-legal-acharya-01/

    case –https://legalacharya.com/caseanalysis/ganga-action-plan/

    blog-https://legalacharya.com/caseanalysis/live-in-relationship-case-summary/