FORMS, VALIDITY AND VOIDABILITY OF MARRIAGE

Abstract

Marriage, is it just about having great and magnificent celebration along with the families and delicious food, or is something beyond that? The answer is yes. Marriage, as per Hindu tradition is one of the sixteen samskaras that are essential in an individual’s life. Hence, it is pertinent to say that marriage is a union, not only of the individuals involved in it, but also the families associate with them. Therefore, it is very crucial decision of any person’s life and whenever a marriage is solemnized, those individuals get a social recognition as well as legal acceptance to cohabit together.

In the process of solemnization of any marriage, the rituals and ceremonies play a very crucial role. If not performed properly, they may end up declaring the marriage void or voidable. Everything that is performed as rituals have a certain meaning behind it. However, in the present world, people are often ignoring those rituals and merely registering their marriages without any solemnization, which is not a valid marriage. This article primarily focuses at discussing about valid and voidable marriages. In addition to this, it will also talk about the various forms of marriage so far evolved and why some of these forms are considered as unapproved forms and, also criminal in nature.

Keywords

Hindu marriage, forms of Hindu marriage, validity of marriage, Voidable marriage.

Introduction

Marriage is seen as a one-time event in life of an individual, in a country like India, where it is typically sanctified, glorified, and met with a great deal of social approval. As we all know, marriage is viewed as a heavenly alliance between the two individuals; hence, through the marriage vows, two human beings enter the world of emotional, physical, mental, and spiritual union. Marriage is also viewed as a social necessity, with marrying children being the primary responsibility of parents in India. Marriage is not only a vital social institution, but also a foundational contract that each society has. But currently, marriage itself has become a more complicated and unique experience for all humankind due to factors like urbanization, new laws, and the influence of western societies. These factors are also changing Indians’ perceptions of love marriages, cohabitation, and breakups, which has widespread effects on society. Numerous studies have been conducted to examine the effects of contemporary trends, such as formal education, industrialization, and urbanization. Several patterns are changing, including the age at which people marry, marriages between different castes, arranged versus love matches, horoscope matching, and more.^[1] Since the topic of the article is very broad to be covered under the given word limit, I will be discussing about the Hindu marriages with respect to its forms, validity, and voidability.

In this article, we will be discussing about the forms of marriage, including approved and unapproved forms of marriage. Further, we will be conversing about the conditions in which a marriage is considered valid which basically talks about the conditions laid down in section 5 of Hindu Marriage Act, 1955^[2]. Additionally, this article also deals with the voidable marriages and the circumstances in which any marriage be termed as voidable.

Aim and Objective

This article primarily aims at discussing about the concept of marriage and the evolution of marriage, as a social institution, from the early times till now. Its objective includes:

discussing about the various approved and unapproved forms of marriage that exists in the Indian history with different instances;
understanding the essential conditions laid under section 5 of the Hindu Marriage Act, 1955 upon whose fulfillment the marriage is considered valid; and
conversing about the circumstances in which marriage is voidable on the discretion of any one of the parties to the marriage.

Forms of Marriage

Marriage, in its own is a sacred process which should be followed or performed in a specific manner which is acceptable to the society. However, there are different forms of marriages as per the Hindu tradition. Several forms of marriages are considered as approved forms because they are at par with the societal norms and stand on social standards. They include four broad categories namely Brahma form of marriage which is the purest form of marriage as it includes the consent of the parents and elders while solemnizing the marriage, in such marriages the father of the bride invites the bridegroom who is the most eligible bridegroom and learned in Vedas and perform the ceremony of ‘kanyaadan’; second is Prajapatya form of marriage in which the father of the bride has to search for a prospective bridegroom who might not be the most eligible person and learned in Vedas and such marriages also practices Gauna in which the bride stays at her natal place and starts her conjugal life only after the performance of this practices; third form of approved marriage is Daiva, in which the father of the bride gives his daughter to the priest to gain religious and materialistic benefits out of it; fourth form is Arsha where the father of the bride gives her to the priest and receives cattles in exchange.

Apart from approved forms of marriages, there are some unapproved forms of marriages as well. The first amongst those is Gandharva form of marriage which is basically a love marriage in which the bride and bridegroom marries out of love and affection and without the consent and approval of their parents and guardians. The prime example of such marriage is the marriage of Dushyant and Shakuntala where King Dushyant married Shakuntala without the consent of her guardian and out of love and affection towards her. The next form of unapproved marriage is Asura, in which the bride is purchased by giving a bride price and in such marriages the consent of the bride is immaterial. One example of such marriage is the marriage between King Dashrath and Kaikei. Another form of unapproved marriage is Rakshasa, where the bride is abducted and forcefully married and her parents and guardians are also extorted. Such marriages do not take into consideration the consent of the bride and her parents and therefore, they are considered as criminal offence under IPC, section 366^[3]. The last form of such marriage is Paishacha, in which the bride is, before marriage, sexually and mentally harasses, and assaulted in an intoxicated state. And owing to that reason, the parents of the bride convince, or rather forces her to get married to that person to avoid social shame and to provide protection and legitimacy to the child (if any) born out of such marriages.

These were the approved and unapproved forms of marriages in Hindu marriage according to the social standards. However, with the changing and evolving society, some of them have changed their position. Despite these forms of marriages, there are certain other forms also which are not yet discusses which are a combination of some of these forms of marriages. One such marriage is through Swayamvar, which is considered as a combination of Brahma, Prajapatya, and Gandharva form of marriage. This type of marriage gives high importance to the consent of the bride.

Valid Marriages

Under the Hindu Marriage Act, all the marriages will be considered as valid if they are solemnized after following the conditions and ceremonies laid down under section 5^[4] and section 7^[5] of the respective act. Section 5 of the Hindu Marriage Act^[6] lays down certain conditions which are necessary to be followed to consider the marriage valid in the eyes of the law. This section primarily lays five conditions which a Hindu couple must fulfill. Hindu, for this act are also defined under section 2^[7] which states that Hindus include those who are Hindu by religion in any of its forms including Virashaiva, Lingayat, and follower of Brahmo, Prarthana, or Arya samaj; it also includes people who follows Buddhist, Jain or Sikh religion; and all the other person who is not a Muslim, Christian, Parsi or Jew by religion.

The conditions for a marriage, whose unfulfillment will lead to the marriage being termed as void, are, first that neither of the parties to a marriage should have a spouse living at the time of the marriage. This section basically promotes monogamy and bigamy is also a punishable offence under section 494^[8] and section 495^[9] of IPC. And any individual who will marry during the existence of his/her former spouse, the latter marriage will be termed as void.^[10] The second condition under this section whose unfulfillment renders the marriage void is when the parties to a marriage are within the degrees of prohibited relationship which means that the parties to the marriage are lineal ascendant to each other. Degrees of prohibited relationship is further defined under section 3 (g)^[11] of this act. However, the parties can marry even if they are in prohibited degrees of relationship, if their custom permits them to do so. Customs or usage are an exception to the conditions for the Hindu marriage because they play a vital role in the Indian society. The last condition which renders a marriage void upon unfulfillment under this section is that the parties should not be sapinda to each other. Sapinda, i.e., upto five generations from the side of the father and three generations from the side of the mother. In essence, if the parties are within the degrees of prohibited relationship, they are sapinda to each other and hence cannot marry except when the custom and tradition allows them to do so. Sapinda relationship is further defined under section 3 (f)(i)^[12] of this act.

A marriage under Hindu law is only valid if it is solemnized according to section 7^[13] of this act. This section states that the marriage should be performed according to the customary rites and ceremonies of the parties involved in that marriage. Customary rites and ceremonies are given high priority because they form the base of the Hindu marriage. According to Hindu religion, marriage is not just a ceremony but a union of two individuals who are going to live together for the rest of their lives. This section also talks about the ceremony of saptapadi, i.e., taking of seven steps by the bride and the bridegroom before the sacred fire. This ceremony is mandatory to perform, if it forms a part of the ritual of the religion of one of the parties involved in the marriage.^[14] In this ceremony, the seven steps include making seven promises to each other and the significance of fire is to invite the ancestors to provide their blessings.

Therefore, a marriage is considered valid under Hindu law if the conditions and ceremonies provided under the respective sections are followed only with the exception of custom or usage. Unfulfillment of sub-section (i)^[15], (iv)^[16], and (v)^[17] of section 5 will render the marriage void under section 11^[18] of this act.

Voidable Marriages

Marriages solemnized under Hindu marriage act are valid, void or voidable depending on the fulfillment of the conditions for a Hindu marriage. In the previous section, I discussed about the void marriages, and in this section, I will delve into the concept of voidable marriage which are valid until any one of the parties to the marriage reaches the court to ask for the dissolution or annulment of that marriage.

Upon unfulfillment of sub-section (ii)^[19] of section 5 of Hindu Marriage Act leads to the marriage being voidable. Sub-section (ii)^[20] talks about the soundness of the party to the marriage who are of unsound mind at the time of the marriage or are not able to give valid consent or unfit for marriage and procreation of children and is subject to recurrent attacks of insanity. This condition, upon unfulfillment, does not make the marriage void but voidable. It is upon the discretion of the party to the marriage who is of sound mind on whether to continue with the marriage or not. Despite this, section 12^[21] of the act discusses about the other grounds on which a marriage can be held voidable. The first amongst those grounds is the impotency of the party to the marriage due to which the marriage cannot be consummated, in this the marriage is voidable at the option of the party who is not impotent.^[22] Marriage can also be voidable if the marriage is solemnized without the consent of any one of the parties where their consent is obtained by force or by fraud. And the last condition includes the pregnancy of the respondent with some person other than the petitioner.

In case of consent by force or fraud, the petition must be presented within one year after the fraud is discovered and the petitioner should not live with the respondent as husband or wife after the discovery of the fraud, otherwise the petition will not be entertained. And in the case of pregnancy out of the marriage, the petitioner shall be ignorant of this fact at the time of marriage, the petitioner must reach the court within one year after the discovery of the pregnancy, and there should be any intercourse between the spouses after the discovery of the pregnancy, then only the petition will be maintainable. These were the grounds on which a marriage can be held voidable and void on the discretion of the party who is not at fault.

Difference between Valid and Voidable Marriage

When a marriage satisfies every legal requirement, it is deemed valid. There are differences amongst religions regarding what constitutes a lawful marriage. Hindus view marriage as an unbreakable, eternal, and sacred bond between a man and a woman. Therefore, for a marriage between two Hindus to be deemed legitimate, a few requirements must be met. Section 5^[23] of the Hindu Marriage Act, 1955 lists the requirements for a lawful marriage. It covers things like monogamy, mental stability, marriage age (18 years for women and 21 years for men), going beyond the bounds of forbidden relationships, and going beyond sapinda relationships. When a Hindu marriage satisfies each of these requirements, it is a valid marriage.

Until it is canceled by one of the parties, a voidable marriage remains lawful. Put simply, if one or both parties do not file a petition with the court to avoid the marriage, it will have all the characteristics of a valid marriage. It denotes that the parties are legally married, have children, and are subject to all obligations and rights that come with that status. Under Indian personal laws, a marriage may be voidable for a number of reasons, including the respondent’s impotence, mental illness or insanity, the respondent’s pregnancy at the time of the marriage, coercion or fraud, the parties’ ages, or the concealment of their religion.

Conclusion

While concluding this article based on FORMS, VALIDITY AND VOIDABILITY OF MARRIAGE, the author discussed primarily about the Hindu marriage and laws related to the same. However, the laws different and varies from religion to religion. The Muslim marriage law, which is uncodified in nature is different and have different provisions for the solemnization of the marriage, they consider marriage as a relatively modern concept of contract between the parties who are getting married. Their grounds for rendering a marriage valid, void or voidable are different and even in contrast to the Hindu marriage. For instance, the Hindu Marriage act considers bigamy as a punishable offence, meanwhile under Muslim law, an individual is allowed to have four wives. This is because of the various customs and rituals that are being followed differently by the religion.

These provisions for valid, void, and voidability of marriage are highly influenced by the social standards and societal norms. Marriage is considered very authenticated relationship because it is a social institution which is highly acceptable in the society and, also legally enforceable. The live-in relationships are not considered a good practice in the Indian society even though they have legal acceptance because they are not socially recognized. Same-sex marriages are not even given the legal acceptance in the Indian society because of the prevailing social norms associated with it. This shows that the role of society and its perception towards a particular practice plays a major role in formulating the laws and policies for the same. Marriage has evolved so much as an institution because of the societal backing that it has. Hence, may it be any institutions, if it is socially recognized, it has high probabilities to come up with legal backing but this is not always true. There were various social practices which were acceptable in the eyes of the society but not law. these include the infamous Sati Pratha, Child marriage, Widow remarriage, these practices were abolished by the law because of the evil that they cause to the women and girls. Hence, the basic purpose behind enacting any law is to strike a balance between the social standards and the legal provisions. The legislatures cannot go too liberal while formulating the law, they have to look upon the social norms that are present and the impact of their policies on the society before enacting any law or policy.

References

A N Mukherjee v. State, AIR 1969 ALL 489.
Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564.
Indian Penal Code, 1860, § 366, Acts of Parliament, 1860 (India).
Keera Allendorf and Roshan K. Pandian, The Decline of Arranged Marriage? Marital Change and Continuity in India, Vol. 42 No. 3 Population and Development Review, 2016.
Lily Thomas v. Union of India, (2000) 6 SCC 224.
Sarla Mudgal v. Union of India, (1995) 3 SCC 635
The Hindu Marriage Act, 1955, § 11, Acts of Parliament, 1955 (India).
The Hindu Marriage Act, 1955, § 12, Acts of Parliament, 1955 (India).
The Hindu Marriage Act, 1955, § 3 (f)(i), Acts of Parliament, 1955 (India).
The Hindu Marriage Act, 1955, § 3 (g), Acts of Parliament, 1955 (India).
The Hindu Marriage Act, 1955, § 5 (i), Acts of Parliament, 1955 (India).
The Hindu Marriage Act, 1955, § 5 (ii), Acts of Parliament, 1955 (India).
The Hindu Marriage Act, 1955, § 5 (iv), Acts of Parliament, 1955 (India).
The Hindu Marriage Act, 1955, § 5 (v), Acts of Parliament, 1955 (India).
The Hindu Marriage Act, 1955, § 5, Acts of Parliament, 1955 (India).
The Hindu Marriage Act, 1955, § 7, Acts of Parliament, 1955 (India).
The Indian Penal Code, 1860, § 494, Acts of Parliament, 1860 (India).
The Indian Penal Code, 1860, § 495, Acts of Parliament, 1860 (India).
Yuvraj Digvijay Sinhji v. Yuvrani Pratap Kumari, (1969) 2 SCC 279.

[1] Keera Allendorf and Roshan K. Pandian, The Decline of Arranged Marriage? Marital Change and Continuity in India, Vol. 42 No. 3 Population and Development Review, 2016.

[2] The Hindu Marriage Act, 1955, § 5, Acts of Parliament, 1955 (India).

[3] Indian Penal Code, 1860, § 366, Acts of Parliament, 1860 (India).

[4] Supra note 2.

[5] The Hindu Marriage Act, 1955, § 7, Acts of Parliament, 1955 (India).

[6] Supra note 2.

[7] Supra note 2.

[8] The Indian Penal Code, 1860, § 494, Acts of Parliament, 1860 (India).

[9] Id at § 495.

[10] Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564; Sarla Mudgal v. Union of India, (1995) 3 SCC 635; Lily Thomas v. Union of India, (2000) 6 SCC 224.

[11] The Hindu Marriage Act, 1955, § 3 (g), Acts of Parliament, 1955 (India).

[12] Id at § 3 (f)(i).

[13] Supra note 5.

[14] A N Mukherjee v. State, AIR 1969 ALL 489.

[15] The Hindu Marriage Act, 1955, § 5 (i), Acts of Parliament, 1955 (India).

[16] Id at § 5 (iv).

[17] Supra note 15 at § 5 (v).

[18] Supra note 15 at § 11.

[19] Supra note 15 at § 5 (ii).

[20] Id.

[21] Supra note 15 at § 12.

[22] Yuvraj Digvijay Sinhji v. Yuvrani Pratap Kumari, (1969) 2 SCC 279.

[23] Supra note 15 at § 5.

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