This article is written by Durgesh Khoshya, an intern under Legal Vidhiya
ABSTRACT
Marriage is a sacred alliance of a man and a woman that forms a family. That family supports them in all ups and downs. It has its legal identity. As they are legally responsible towards each other, parents toward their children, and vice-versa, we have to make sure that the foundation, that is the marriage, must be valid and approved by the court. We have to check whether it follows all the rules and customs mentioned in the law or not. So, for this, some laws are required for a society that mentions all the necessary ceremonies and rituals that constitute a valid marriage.
In India, marriage is a personal matter and is regulated by personal laws based on religion. Because of the same, we have different laws that describe various forms of marriages, essentials of valid marriages, void marriages, voidable marriages, etc. according to the religion of that person. For Hindus, there is the Hindu Marriage Act, of 1955, for Muslims, there is the Muslim Personal Law (Shariat) Application Act of 1937, there is the Indian Christians Marriage Act of 1872 for Christians and for Parsis, there is Parsi Marriage And Divorce Act,1936 [1] Special Marriage Act of 1954 is also there to validate inter-religious marriages. According to the above-mentioned laws, we have to ensure the validity of a marriage.
KEYWORDS: Validity, Voidability, Hindu Marriage Act 1955, Muslim Personal Law (Shariat) Application Act 1937
OBJECTIVE
This work aims to explore the personal laws of Hindus and Muslims regarding marriage to gather information about the different forms of marriage in these religions. Also, get knowledge about the approved and valid forms of marriage as per their laws with the essentials of a valid marriage. Therefore, the main objective of this research paper is to analyze information about:
- Different forms of Marriage
- Valid marriage and its essential
- Void and Voidable Marriages
INTRODUCTION
Marriage is a civil form of contract that has some requirements that must be fulfilled by the parties to solemnize a marriage like some ceremonies, documents, rituals, etc. mentioned in different laws in India. Here, in this paper, we are going to discuss the same essentials. Firstly, we are discussing the forms of marriage present in the past as well as in the present society. Then, we will learn about valid, void, and voidable marriages as per different laws in India.
FORMS OF MARRIAGES
A marriage forms a relationship between a man and a woman. This relation is constituted in various forms in different religions. Some of them are accepted by society and others are rejected on the grounds of unreasonability.
In legal terms, there are 3 types of marriages:
- Valid Marriage
- Voidable Marriage
- Void Marriage
In India, different laws describe these forms of marriage. Let’s discuss them in detail as per Hindu’s and Muslim’s personal laws.
HINDU MARRIAGES
In Hinduism, marriage is considered as the holiest sacrament. It is a sacred union of two pure souls for 7 births. To solemnize this, there are various ceremonies and traditions followed by the society for hundreds of years. Some of them had uniformity and continuity; so they became a valid custom accepted by the courts. In the Hindu Marriage Act, of 1955, these essentials are mentioned that constitute a valid marriage.
But, before discussing those essentials of marriage, let’s start the discussion with the ancient forms of marriage.
The Hindu normative and dharma texts mentioned eight different forms of marriages in ancient Hindu tradition. Those were Brahma, Daiva, Arsha, Prajapatya, Asura, Gandharva, Rakshasa, and Paishacha. The existence of these 8 forms of marriage in Aryan Hindu history is also recognized by the Supreme Court in the case Koppisetti Subbharao v. State of Andhra Predesh.[2][3]
These 8 marriages are divided into 2 categories- Approved and Unapproved Marriages
Approved Marriages: There are 4 marriages which come under the category of approved marriages- Brahma, Daiva, Arsha and Prajapatya
- BRAHMA- It was the best and most practiced form of marriage. In this form of marriage, the daughter was gifted by her father to a man who knew Vedas. She was adorned with various jewels and ornaments.
- DAIVA- In this form of marriage, the father gave his daughter to the priest as a Dakshina for presiding over the sacrifice carried out by him.
- ARSHA- In this approved marriage, the father of the bridegroom gave cattle like a cow or bull to the father of the bride. This was considered a transaction in exchange for his daughter.
- PRAJAPATYA- There was no barter system in this marriage. In this form of marriage, the bride’s father addressed the condition to the couple of performances of their dharma together before handing away his daughter.
Unapproved Marriages: 4 marriages come under the category of unapproved marriages- Asura, Gandharva, Rakshasa, and Paishacha
- ASURA- In this marriage, the father offers her daughter to the bridegroom after receiving all his wealth.
- GANDHARVA- In this form of marriage, both partners decide to get married by mutual agreement without the consent of their parents. They were love marriages that arose out of lust.
- RAKSHASA- In these marriages, the bride was abducted by the bridegroom for forceful marriage.
- PAISHACHA- In this form of marriage, a man seduced a woman and indulged in sexual intercourse while she was sleeping, intoxicated or mentally disordered. Out of shame, she agreed to marry that person.
Beside these marriages, polygamy and polyandry forms of marriages were also popular in Hindus. In polygamy, a man was married to several women, whereas in polyandry, a woman was married to several men.
Now, let’s discuss the forms of marriage in the Hindu Marriage Act, 1955
HINDU MARRIAGE ACT, 1955
Hindu Marriage Act, 1955 provides the conditions of a valid marriage for the Hindus. There are the following:
ESSENTIALS OF A VALID HINDU MARRIAGE
- Both the parties should be Hindu– Section 5 of HMA clarifies that both parties must be Hindu. If one of the parties is non-Hindu, then it doesn’t constitute a valid marriage. The same is held by the court in the case of Yamunabai Anant Rao Adhav v. Anant Rao Shivaram Adhav (1988).[4]
- Parties to the marriage should of sound mind– Section 5(ii)(a) of HMA stated that for a valid Hindu marriage, a person must be competent or able to give a valid consent. The person should be of sound mind, and shouldn’t suffer from any mental disorder at the time of marriage. The same provision was held by the Supreme Court in the case of Sharda versus Dharmapaul [5]
- Marriage should be monogamous– Section 5(i) of HMA mentions that neither party has a spouse living at the time of marriage. If either of the parties has living spouse of past marriage, the marriage is void. In the case of Adhav v. Adhav[6], the court held that the second marriage was void on the basis of this section.
- The parties must attain the age of majority– Section 5 (iii) mentions that both the parties must attain the age of majority as per the law. Here, it is eighteen for bride and twenty-one for bridegroom. But breaching of this provision doesn’t constitute a void or voidable marriage. Although punishment is mentioned under Section 18 for the violators. In the case of Smt. Sushila Gothala vs State of Rajasthan And Ors[7]., the court held its judgment based on the same provision.
- Parties shouldn’t come under the degree of prohibited relationships– Section (iv) mentions the same provision. There are some relationships banned by the society like direct blood relations or one’s lineal ascendant etc. This form of marriage is void unless it is permitted by the customs of the society. In the case of Balusami Reddiar v. Balakrishna Reddiar (1956), [8]the court that a person could marry in prohibited relationship if allowed by the customs of his community. But the customs couldn’t be immoral.
- Parties should not be related as Sapindas- Section 5(v) talks about the same. It is stated that parties to the marriage should not be related as Sapindas unless protected by their customs. Sapindas relations are mentioned in Section 3(f) of HMA. So, a person can’t marry within the three generations of his mother’s lineage and five generations of his father’s lineage. The same provision was applied in the case, Arun Laxmanrao Navalkar vs Meena Arun Navalkar.[9]
- In accordance with the customary rites and ceremonies– Hindu marriage is not a contract. It is a sacrament; so, some ceremonies are mentioned for a valid marriage. Section 7 of HMA mentions the same. One of the important ceremonies in a Hindu marriage is Saptapadi (seven steps). Although all these ceremonies are based on the customs and traditions of that community (mentioned in various court judgments).
In the case of S. Nagalingam vs. Sivagami (2001), [10]the court held that saptapadi is an essential practice in a Hindu Marriage.
VOIDABLE MARRIAGE– If a marriage is subject to annulment at the discretion of one of the parties, then that marriage is voidable marriages. Until a petition to void the marriage is filed, then it will be a lawful marriage.
Grounds of voidable marriage:
- The party is incapable of giving valid consent due to an unsound mind or any mental disorder or insanity.
- Party is physically unfit for the procreation of children.
- Consent for the marriage is not valid. It is done by coercion or fraud or misrepresentation or undue influence.
- If either of the parties is underage as per the law.
- If, at the time of marriage, the bride is carrying a child of someone other than the bridegroom.
VOID MARRIAGE– Marriages those are unlawful or invalid in the eyes of the law. Section 11 states that, if a marriage doesn’t fulfill the conditions of Section 5, then it is a void marriage.
Ground of void marriage:
- If either of the parties have living spouse at the time of marriage. In the case of Bhogadi Kannababu and Others v. Vaggina Pydamma [11], Supreme Court held that 2nd marriage was void-ab-initio.
- If the parties are within a prohibited relationship and not allowed by the customs.
- If the parties have sapinda relation and not permit by the customs.
MUSLIM MARRIAGES
Like Hindus, Muslims also have their personal laws for matters like marriage, divorce, maintenance, etc. It applies to all the Muslims of India.
In Muslims, a marriage is considered as a contract. It is a civil contract between a man and a woman which legalizes sexual intercourse between them.
According to Muslim law, there are four types of marriages- Sahih, Batil, Fasid, and Muta. However, muta marriages are not practiced in India.
Let’s discuss them in detail.
SAHIH MARRIAGE – It is the most popular and valid form of marriage in the Muslim religion. It is also called Nikah. In this marriage, parties mutually agree to enter into a stable and long-lasting relationship for the rest of their life. It is conducted as per the norms of Islamic tradition.
ESSENTIALS:
- There must be a proposal made by a party and then it must be accepted by another party.
- Marriage must be conducted in the presence of witnesses.
- Parties must be competent to marry. They should be of sound mind and attain their puberty. The question on the age for marriage was answered in the case of
- Muhammad Ibrahim Rashid vs Atkia Begum And Anr.[12]
- The parties should be capable to give free consent. The same provision was stated in the case of Mohiuddin v. Khatijabibi (1939), [13] where the court held that the consent for marriage should be free.
- There shouldn’t have any legal disability.
BATIL NIKAH- It is void form of marriage as it failed to fulfill the conditions of a valid marriage. Types of void marriages are-
- Marriage to the close blood relative.
- Marriage to person that is forbidden due to affinities.
- Marriage involving foster parents and siblings
- Marriage to a woman who is undergoing iddat
- Marriage with 5th wife
- Marriage to a legal valid married woman
FASID NIKAH- It is also known as irregular form of marriage. It is voidable marriage.
It is invalid marriage because it doesn’t meet all of the requirements for a lawful Muslim marriage. However, by addressing the irregularities, this can be converted into valid marriage.
Types of irregular marriages:
- Marriage without witnesses. It can be validated by remarrying in the presence of witnesses.
- Marriage with 5th wife. It can be validated by divorcing one of his four wives and marrying the firth one.
- Marriage with a woman in her iddat period. It can be validated by contracting after iddat period.[14]
MUTA MARRIAGE- It is temporary marriage in Shia Muslims. As the meaning suggested, it is fixed for a specific time period ranging from hours to years. This marriage is automatically dissolved after that fixed period.
The Supreme Court stated, “Marriage is an institution to save us from the tyranny of sex and also for the progression of the human race”. [15]It is an important institution to establish law and order in the society. So, written norms are required to regulate this institution. Here in this paper, we have discussed the same. But these laws are not still. They keep changing with the conditions of the society. Let’s hope for the better laws in the future.
[1] Ashi, Matrimonial Laws In India: An Overview, Legal Service India (5 September 2023, 10:39 PM)
[2] Koppisetti Subbharao v. State of Andhra Predesh. AIR 2009 SC 2684
[3] Vishesh Gupta, Forms of Marriage in Hindu Religion, Ipleader (6 September 2023, 9:23 PM) https://blog.ipleaders.in/forms-marriage-hindu-religion/
[4] Yamunabai Anant Rao Adhav v. Anant Rao Shivaram Adhav (1988). AIR 1988 SC 644
[5] Sharda versus Dharmapaul (2003, 4 SCC 493)
[6] Adhav v. Adhav, AIR. 1988 SC 644
[7] Smt. Sushila Gothala vs State Of Rajasthan And Ors. AIR 1995 Raj 90
[8] Balusami Reddiar v. Balakrishna Reddiar (1956) (1956) 2 MLJ 357
[9] Arun Laxmanrao Navalkar vs Meena Arun Navalkar AIR 2006 Bom 342
[10] S. Nagalingam vs. Sivagami (2001) 7 SCC 487
[11] Bhogadi Kannababu and Others v. Vaggina Pydamma AIR 2006 SC 2403
[12] Muhammad Ibrahim Rashid vs Atkia Begum And Anr. 16 Ind Cas 597
[13] Mohiuddin v. Khatijabibi (1939) 41 BOMLR 1020
[14] Editor Team, Types of Muslim Marriage, Law Bhoomi (7 September 2023, 2:12 AM) https://lawbhoomi.com/types-of-muslim-marriage/#:~:text=Generally%2C%20there%20are%20four%20kinds,by%20the%20relevant%20Muslim%20sect.
[15] Publication Team, COMPILATION OF LANDMARK JUDGMENTS OF HIGH COURTS OF INDIA ON
FAMILY MATTERS, Jharkhand State Legal Services Authority, (7th September, 2023, 10:11 AM)
https://ijtr.nic.in/family%20matters/HC_Judgements_FamilyMatters%202nd%20regional%20conference.pdf
