V. Sithannan, B.Sc., M.L., Dip in Cyber Crimes
Additional Superintendent of Police
Marriage is the legal union of the man and a woman in order to live together and often to have children by or through an act or ceremony establishing this union. According to legal dictionary, the marriage is the ceremony by which two persons are made husband and wife and it is a civil and religious contract, whereby a man is joined and united to a woman for the purposes of civilized society.
The ancient Hindu marriage is regarded as a sacramental marriage. In a sacramental marriage the relationship of husband and wife is established exclusively by the performance of some religious ceremonies and not by a contract between the parties. According to the Hindus, the status of wife is acquired only by the Panigrahanika mantras of which as the wise and learned have indicated, the limit is the ceremony of saptapadi. Thus marriage is the result of the utterance of the sacred mantras. That is why the Hindu marriage is regarded as a sacramental marriage. But after the enactment the Hindu Marriage Act 1955, the present position is that marriage has been assimilated to what is known legally as “Status” i.e., a condition in which rights and duties are created by the law irrespective of the agreement of the parties. On marriage these rights and duties attach to the parties not because they have voluntarily accepted them but because they are necessary legal incidents of the relationship created by the marriage. There can be no doubt that a Hindu marriage is a religious ceremony. According to all the texts it is a Samskara or Sacrament. The marriage rite creates a religious tie. It is not a mere contract in which a consenting mind is indispensable. The person married may be a minor or even of unsound mind and yet if the marriage rite is duly solemnized there is a valid marriage.
Hence, it cannot be said that marriages are made in heaven. Only when both the parties satisfy certain prerequisite conditions, the marriage will be valid; otherwise it will have no legal sanction.
Prerequisite conditions for valid Hindu marriages
Conditions for a Hindu Marriage – Section 5 of Hindu Marriage Act: A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
i. neither party has a spouse living at the time of the marriage;
ii. at the time of the marriage, neither party;
a. is incapable of giving a valid consent, to it in consequence of unsoundness of mind; or
b. though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
c. has been subject to recurrent attacks of insanity or epilepsy;
iii. The bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage.
iv. The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
v. The parties are not sapindas of each other, unless the custom or usage governing of each of them permits of a marriage between the two.
Effects of Violations of the requisite conditions for valid marriage
A. Violation of condition No.1
1. If the condition No.1 that neither party should have a spouse living at the time of marriage is violated, the marriage will be void. It is will not be a valid marriage. It will be invalid marriage from the date of the marriage even though it is challenged at a later time.
2. The wife is not at all considered as a wife. Since the wife is not conferred with any status as wife, she is not entitled to claim any share in any property of the husband. If she is not having any means of livelihood, then she can claim maintenance either under section 125 of the Criminal Procedure Code or under section 18 of the Hindu Adoption and Maintenance Act.
3. Any child begotten through this second marriage was treated as illegitimate up to 1986. As it is not the sin on the part of the child, the legitimacy was conferred upon this child as per section 16 of the Hindu Marriage Act. Though the child begotten through this second and void marriage is conferred with legitimacy, the child is entitled to claim share like any other legitimate child only in the separate or self earned property of the father. He is not having any right to claim any share in the ancestral or co-parcener’s property of the father. If the father is having no property, then this child begotten through this second and void marriage will have the right to claim maintenance from the father. But so far as is mother is concerned, this child will be having all rights with regard to the inheritance of property of all kind.
4. For bigamous marriage, the husband is liable under section 494 IPC and section 17 of Hindu Marriage Act 1955. If the woman knows that the male is already married when contracting a marriage with her, then she will also be liable under section 114 r/w 494 IPC for abetting the commission of bigamy. If the second marriage is contracted without the knowledge of the second women, then she is not liable for bigamy.
5. For punishing the husband for bigamous marriage, a complaint is to be preferred in the court only by the aggrieved first wife, but for initiating a departmental disciplinary proceedings, any third party can initiate by sending even an anonymous petition.
6. Since the offence under section 494 IPC is non cognizable, the police is not empowered to register a case under this section. Even when the offence under section 494 IPC is clubbed with some other cognizable section like 506 (ii) IPC or 498 A IPC, the police officer cannot file charge sheet under section 173 Cr.PC because of the prohibition with regard to Section 494 IPC in taking cognizance by court under section 198 Cr.PC.
7. If a second marriage is contracted with a woman by concealing the earlier marriage, the husband / accused is liable under section 494 and 495 IPC and further if he cohabited with the women with whom a second marriage is contracted, he is liable under section 494, 495 and 496 IPC.
8. A man and women can live together and lead a life without the status of husband and wife, because, as per Article 21 of Constitution of India, their life and personal liberty cannot be curtailed without any procedures established by law. But if this man and women living together as husband and wife without getting married, beget any child, then the child will be treated as illegitimate who will not be having any right to inherit any property of the father whether it happens to be a self earned property or ancestral property. If the father is not having any property, then the child will be having a right to claim maintenance from the father. Payal Sharma alias Kamla Sharma alias Payal Katara, Petitioner Vs. Superintendent, Nari Niketan Kalindri Vihar, Agra and others, Respondents AIR 2001 Allahabad 254.
9. A Hindu husband already having a spouse living, wants to marry again after embracing Islam which permits polygamy, whether he is permitted? No.
a) Conversion does not automatically dissolve first marriage – Since bigamous marriage is prohibited under Hindu Marriage Act, 1955 and an offence under section 17, any marriage solemnized by the husband during the subsistence of his earlier Hindu marriage would be void under section 11, and an offence triable under section 17 r/w section 494 IPC, regardless of such husband’s conversion to another religion permitting polygamy. Religion is not a commodity to be exploited – Under Hindu law, marriage is a sacrament and in every personal law is a sacred institution and must be preserved and respected. Lily Thomas V. Union of India (2000) 6 SCC 224; 2000 SCC (Cri) 1056; AIR 2000 SC 1650; 2000 Cri LG 2433.
b) Bigamy – Husband already married under Hindu Law, by embracing Islam, solemnizing a second marriage under Muslim Law – Held, that would not result in dissolution of the first marriage under Hindu Law – Unless and until, the first marriage is dissolved by a decree under Hindu Marriage Act, the second marriage during subsistence of the first one would be in violation of the Hindu Marriage Act which strictly professes monogamy. Such second marriage would therefore amount to bigamy punishable under section 494 IPC. Second marriage would also be in violation of principles of natural justice – Moreover, matrimonial dispute between the apostate and his first wife cannot be decided on the basis of Muslim Personal Law but on the basis of justice, equity and good conscience – On these bases also, the second marriage would be void. Sarla Mudgal V. Union of India, (1995) 3 SCC 635 1995 SCC (Cri) 569; AIR 1995 SC 1531; (1995) 2 KLT 45; (1995) 2 An LT (Cri) 50; 1995 Cri LJ 2926.
10. A Hindu man wants to marry a Christian or Muslim women – he can very well marry either or a Christian or Muslim women without converting themselves into Hinduism by marrying them under The Special Marriages Act 1954 or he can marry after converting them into Hinduism under the Hindu Marriage Act, 1955. SPS Balasubramanyam Vs. Suruttayan 1992 Supp (2) SCC 304 AIR 1992 SC 756. But mere living as husband and wife does not confer status of husband and wife. Surjit Kaur Vs. Garja Singh (1994) 1 SCC 407.
11. If Hindu husband and wife are not having any issues, whether one of them can marry again with the consent of the other spouse? Even if there is a reasonable ground like, not having any issue or impotency, a spouse cannot contract another marriage even though the other spouse is a consenting party, without dissolving the earlier marriage. But a Govt. servant, as per Conduct Rules, can contract a second marriage with the prior permission from the Govt., when there is a reasonable ground and the present law permits. So far as the Hindus and Christians are concerned, the personal law denies permission, whereas the Muslim Shriat Act permits polygamy. If any Govt. servant violates the conduct rules and contracts bigamy, he is liable under section 494 IPC, besides a major punishment of either compulsory retirement or removal from service or dismissal from service.
12. If a man and women live together as husband and wife for a reasonable longer period without actually getting married with each other, the court, with regard to all other circumstances, may presume that they are lawfully wedded husband and wife and if any person denies that they are husband and wife, then the burden of proof is upon that person who affirms that they are not husband and wife.
B. Violation of condition No.2 (neither party to the marriage should be of unsound mind at the time of marriage)
1. The marriage is a voidable marriage. If the wife who married an unsound mind person decides to live with him, it will be a valid marriage only. If the wife prefers to nullify the marriage at her option, then she can very well avoid the marriage. Till it is avoided, it is a valid marriage only.
C. Violation of condition No.3
1. The violation of this condition will not invalidate the marriage.
2. Even though the wife is below 18 years of age, the marriage will be a valid one. This condition that a man should have completed 21 years of age and the female should have completed 18 years of age is, only recommendatory in nature and not mandatory.
3. Even though this condition is violated this marriage will amount to a valid marriage and both the spouses will have right to claim all properties from each other.
4. Though the marriage is not void but valid only, the parties are liable to be punished under section 18 of Hindu Marriage Act and Child Marriage Restraint Act. Venkataramana Vs. State AIR 1978 AP 43 (FB). Rabindra Prasad Vs. Sita Devi AIR 1986 Pat 128.
D. Violation of condition No. 4 and 5
1. If a person either male or female contracts a marriage from within a prohibited degree of relationship or sapinda relationship, then the marriage shall be void and the wife shall not be considered as a wife at all. She will not be having any right to inherit any property from the husband.
2. But, if these couple beget any child though this void marriage, a legitimacy is conferred upon this child under section 16 of Hindu Marriage Act and this child will be having a right to inherit a share in the self earned property of the father.
1. The Hindu Marriage Act is not only applicable to Hindus but also applicable to Buddhist, Jain or Sikh by religion and also to any other person domiciled in the territories to which the Hindu Marriage Act extends who is not a Muslim, Christian, Parsi or Jew by religion.
2. The Hindu Marriage Act is not applicable to Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government by notification in the Official Gazette, otherwise directs.
3. The marriage is to be strictly solemnized as per Hindu rites. There must be Holy Fire and saptapadi (7 Steps).
4. Originally, the marriage need not be registered in a Sub-Register’s Office. Now, it is made compulsory that all Marriages shall be registered with a period of 3 months from the date of solemnization of Marriage. At the time of registration in the Sub-Registrar’s Office, besides the bride and bride groom, three respectable witnesses are necessary to sign before the Marriage Registrar.
5. There need not be any strict compliance of Hindu rites, if the marriage is solemnized in presence of 2 respectable witnesses under 7 A of Hindu Marriage Act. This marriage is called as Suyamariyathai or Seerthiruththa marriage and valid as per section 7A of Hindu Marriage Act. In this form of marriage, mere exchange of garlands, rings, etc., in presence of two respectable witnesses by mutually acknowledging that they are husband and wife, is enough to create a valid marriage. For registering this marriage, three witnesses are necessary.
6. Immediately after the marriage, if there is any break-down, then the aggrieved party can move the court for restitution of Conjugal right at any point of time when the other party has withdrawn from the society of the other without any reasonable cause and the court can issue an order compelling the wife or husband to have cohabitation with the other and it is not violative of Article 19 of the Constitution of India. Saroj Rani Vs. Sudharshan Kumar Chadha (1994) 4 SCC 90.
7. At any point of time after the marriage, upon certain grounds, the husband or wife can very well file a petition praying the court for Judicial separation. Though they are supposed to live separately, their marriage does not come to an end and they are deemed to be husband and wife only. But the husband shall not have sexual intercourse with his judicially separated wife without her consent and against her will. If the husband has intercourse with his judicially separated wife against her will and without her consent, it will not amount to an offence of rape but an offence under section 376 A IPC and it is a non cognizable offence and the punishment is only two years. Here, the aggrieved wife has to prefer a private complaint in the court within one year from the date of the offence for taking cognizance by the court.
8. After the completion of one year after the marriage only, any of the spouses can move for divorce under section 13 of The Hindu Marriage Act under the following grounds that the other party :
i. has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
ii. has, after the solemnization of the marriage, treated the petitioner with cruelty; or
iii. has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
iv. has ceased to be a Hindu by conversion to another religion; or
v. has been incurably of unsound mind, or has been suffering continuously of intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent;
vi. has been suffering from virulent and incurable form of leprosy; or
vii. has been suffering from venereal disease in a communicable form; or
viii. has renounced the world by entering any religious order; or
ix. has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
x. that there was no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties ; or
xi. that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
xii. A wife may also present a petition for a dissolution of her marriage by a decree of divorce on the ground –
a. that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner
b. that the husband has since the solemnization of the marriage been guilty of rape sodomy or bestiality; or
c. that maintenance decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that sine passing of such decree or order cohabitation between the parties has not been resumed for one year or upwards; or
d. that her marriage whether consummated or not was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
9. Under section 13 B, both the spouses can prefer divorce by presenting petitions mutually but this petitions will be disposed only after one year and within the completion of 18 months.
10. After getting divorce, the other party cannot marry again immediately, without the lapse of appeal time i.e. 3 months meant for High Court or Supreme Court. If not, the second marriage may be declared as void, if the other party succeeds. Tejinder Kaur Vs. Gurmit Singh (1998) 2 SCC 90.
11. The divorced wife can claim maintenance under section 18 of The Hindu Adoption and Maintenance Act, apart from claiming permanent alimony or she can claim maintenance under section 125 of Cr.PC. and it is a speedy remedy. Previously the amount to be awarded as maintenance under section 125 Cr.PC was restricted to the maximum of Rs.500/- per month per head. (Wife and children). Now section 125 Cr.PC was amended to the effect that the maximum amount to be awarded to the wife is not restricted to Rs.500/- and it may be depending upon the capacity of the husband to pay.
12. The divorced wife is also entitled to have the custody of the child up to 5 years of age under section 6 of the Hindu Minority and Guardianship Act. After 5 years, the custody of the child lies with the father as a natural guardian and after him the mother becomes the natural guardian. For wife, the husband is the natural guardian and the wife cannot be a guardian to the husband.
13. A Muslim can marry only a Muslim under Shriat Act. If he wants to marry a women belonging to another religion, then the marriage is to be solemnized under The Special Marriage Act 1954.
14. A Muslim is supposed to satisfy the following conditions for a valid marriage.
a) The male and female should have attained the age for the marriage. So far as a Muslim girl is concerned, she is deemed to have attained the age for the marriage when she attains puberty. But so far as a Muslim boy is concerned, he is deemed to have attained the age for marriage if he has completed the age of 14.
b) The male and female Muslim should have sound mind for giving valid consent for the marriage (They should not be of unsound mind).
c) They should not be within the prohibited degree of relationship.
d) The marriage will be a contract and it is to be signed by 2 male witnesses or 1 male witness and 2 female witnesses.
e) A Muslim male can contract polygamous marriages and he can have 4 wives at a time and all these wives shall be deemed to be legitimate wives. Beyond 4 marriages, all other marriages will be irregular and the irregularity can be cured by divorcing one of the earlier wives.
12. If a Muslim wife, when she is having her husband alive, contacts another marriage, it will be a void marriage and she is liable for bigamy under section 494 IPC.
13. To get instant remedy, a wife whether happens to be a Hindu, Christian or Muslim can claim maintenance by invoking their right under section 125 of Cr.PC in a Criminal Court. At a time an aggrieved wife will be granted a maximum amount of maintenance per month as per the amended Cr.PC.
14. Any marriage shall be voidable and be annulled by a decree of nullity on any of the following grounds namely
a. that the marriage has not been consummated owing to the impotence of the respondent; or
b. that the marriage is in contravention of the condition specified in clause (ii) of section 5; i.e., with unsound mind; or
c. the consent of such guardian was obtained by force or by fraud.
d. That the respondent was at the time of the marriage pregnant by some person other than the petitioner.
15. Whether male aged 20 and female aged 25 can marry? yes the condition that male should have completed 21 years and female should have completed 18 years of age at the time of marriage, is only recommendatory in nature. The validity of the marriage is unaffected. There is no requirement that the bride should be younger than the bridegroom.
16. Male aged 17 and female aged 14 – whether they can marry. Yes. Such a marriage is contrary to section 5 clause (iii) of HM Act. But the marriage remains valid. The only consequence is punishment under section 18 of HM Act.
17. Bride was a prostitute prior to the marriage – There is no requirement that a bride should be a virgin. However, if the bride had been made pregnant by another, the husband can have the marriage set aside by a decree of nullity, provided (a) He has ignorant of this fact at the time of the marriage, (b) he did not have marital intercourse after discovering the fact and (c) the petition is brought within one year from the date of the marriage. Promiscuous intercourse as a prostitute prior to the marriage by itself does not invalidate the marriage.
18. Bridegroom becomes impotent subsequent to the marriage – the marriage is voidable and the impotency subsequent to the marriage is a ground for annulling the marriage under section 12. The question is whether the marriage has not been consummated owing to the respondent’s impotence. If the answer is in the affirmative, the marriage is voidable under section 12.
19. Bride is bridegroom’s son’s widow (father-in-law marring widowed daughter-in-law) – The bride being the widow of a lineal descendant is in a prohibited relationship. Such a marriage is a nullity and the marriage is void under section 11. Jagannath Vs. Sadhu Ram AIR 1934 Lah 283.
20. Bride is pre-deceased brother’s widow – A brother’s widow is a prohibited relation for purposes of marriage section 3 Cl.(g) In the absence of a custom such a marriage is void.
21. A male had sexual affair with a female above 16 years of age with her consent but with a promise to marry and fail to honour his promise. Now she is pregnant. What is the offence committed by this male? Whether section 417, 420 and 376 IPC are applicable.
a. Section 417 and 420 IPC come under chapter XVII of IPC, which exclusively deals with property offences. So far as section 420 IPC is concerned, specifically there must be delivery of property as a result of deception played and hence section 420 is not applicable. It is not an offence under section 417 IPC 1991 LW Criminal 537, 1990 LW Criminal 493, 1989 Cr. LJ NOC 30 CAL, 1990 Cr.LJ 650 (Cal.). It is an offence under section 417 IPC AIR SC 2000 Page 2474 G.V. Rao Vs. Prasad, 2000 Cr. LJ 3487 SC, (2000) 3 SCC 693, False marriage ceremony MNA Achar Vs. Dr. D.L. Rajagopal.
b. Section 415 cheating second part deals with injury to body, reputation and mind as a result of deception and hence it is applicable. G.V. Rao Vs. L.H.V. Prasad (2000) 3 SCC 693.
c. The female is a major. Hence 376 is not applicable. She cannot claim that she gave her consent only by believing that he is lawfully wedded husband. She is matured enough and hence she cannot give consent for sexual act because of the deception or promise given by the male that he will marry her subsequently. The consent given by this girl for the sexual act will amount to active consent only and hence the offence under section 376 IPC is not attracted. Araj Sk. Appellant Vs. State of West Bengal, Respondent Cri. LJ.2001 January 461 (A). State of Maharashtra, Appellant Vs. Subhash Sitaram Sangare CRI LJ 2001 December 4468 (Bom.). It is not an offence under section 376 IPC 2002 (2) Crimes 63 Kumaresh Chikkappa Bagodi – appellant Vs. State of Karnataka Vs. Kolghatigi Police Respondent dated: 30-7-2001.
d. There are instances to show that he has put thilak or chindur (Kungumam) on the forehead of the girl or puts garland on her neck or ties an ordinary Mangal and promises to marry her latter and then had intercourse with her. Now she is pregnant and he refuses to marry her. In this situation, now she believes that he is the lawfully wedded husband (though not legally wedded) and gave her consent only on that belief. This consent is not consent and hence it amounts to rape punishable under section 376 IPC.
22. Wife becomes member of the caste of her husband. Recognition by the family or community is not a precondition. Valsamma Paul (Mrs.) Vs. Cochin University 1996 3 SCC 545.
23. Muslim women can also claim maintenance under section 125 Cr.PC provided there is consent by the husband and it is not limited to the Iddat period. It is to be decided within Iddat period and it extends for the entire life of the divorced wife until she remarries. Daniel Latifi Vs. Union of India (2001) 7 SCC 740.
24. State Wakf Board is liable to provide maintenance to a divorced Muslim woman who is unable to maintain herself and has not remarried. Secretary, Tamilnadu Wakf Board Vs. Syed Fatima Nachi (1996) 4 SCC 616.
25. Some humourous quotes:
i. Marriage has many pains but celibacy has no pleasures – Johnson.
ii. Marriage is popular because it combines the maximum of temptation with the minimum of opportunity – Bernard Shaw.
iii. Keep your eyes wide open before marriage, half shut afterwards – Benjamin Franklin.
iv. All tragedies are finished by a death, All commodies are ended by a marriage – Byron.
v. There are six requisites in every happy marriage. The first is faith and the remaining five are confidence – Elbert Hubbard.
vi. The dread of loneliness is greater than the fear of bondage, so we get married – Cyril Cannolly.
vii. Nowadays, all the married men live like bachelors, and all the bachelors like married men – Oscar Wilde.
viii. They (men) are always wooing goddesses, and marrying mere mortals – Washington Irving.
ix. A Code of Honour: Never approach a friend’s girlfriend or wife with mischief as your goal. There are just too many women in the world to justify that sort of dishonourable behaviour. Unless she’s really attractive. — Bruce Friedman
x. A coward is a hero with a wife, kids, and a mortgage. — Marvin Kitman
xi. A gentleman is one who never swears at his wife while ladies are present.
xii. A husband is living proof that a wife can take a joke.
xiii. A husband is what’s left of the lover after the nerve has been extracted. — Helen Rowland.
xiv. A man must marry only a very pretty woman in case he should ever want some other man to take her off his hands. – Guitry
xv. A White House well filled, a little peanut field well tilled, and a wife who will go to the Bronx are great riches. — Poor Jimmy’s Almanac
xvi. Ah Mozart! He was happily married – but his wife wasn’t. – Borge
xvii. Always talk to your wife while you’re making love… if there’s a phone handy.
xviii. An archaeologist is the best husband a woman can have; the older she gets, the more interested he is in her. — Agatha Christie