|Citation||AIR 1977 AP 43|
|Date of judgment||9\07\1976|
|Court||Andhra Pradesh Court|
|Case type||Criminal Miscellaneous Petition|
|Respondent||State of Andhra Pradesh|
|Bench||Hon’ble Mr. Justice B Divan, Hon’ble A Kuppuswami and Hon’ble Muktad.|
|Referred||Section: 5, 11, 12, 17, 18 Hindu Marriage ACT, 1955Section 109,494 Indian Penal Code 1860.|
FACTS OF THE CASE
- The husband was 13-year-old at the time of marriage and the wife was 9-year-old.
- The petition No. 1 & No. 2 were convicted by a judicial first-class magister both were sentenced to rigorous imprisonment for one month. The sentences were later modified thereto of payment of Rs. 200/-.
- The previous Court held the marriage was legal. So, he was convicted for marrying again.
- Wife complaint against her husband and ten others alleging that the husband committed the offence under section 494 of Indian Penal Code and that the other ten were involved.
Whether the marriage was void ab into or not?
Whether the husband and other ten were liable under section 494 of Indian Penal Code?
Appellant: – the appellant humble submitted that at the time of marriage he was 13-year-old and his wife was nine-year-old according to eye of law our marriage void ab into so my marriage was not illegal according to the law am not there is no offence under section of 494 of Indian Penal Code.
Respondent: – The respondent humble submitted that his husband and ten others are liable under section 494 of Indian Penal Code previous Court also held that marriage is a legal marriage.
In this case Andhra Pradesh High Court while discussing the sacramental character if Hindu marriage lays down that “there can be no doubt that a Hindu marriage is a religious ceremony. According to all the texts it is a sanskaran or sacrament, the only one prescribed for purification of the soul. It is binding for life because the marriage rite completed by saptapadi or the walking of seven steps before the consecrated fire creates a religious tie when once created, a religious tie and a religious tie when once created, cannot be united. The persona marriage may be minor or, even of unsound mind and yet, if the marriage rite is duly solemnized, there is a valid marriage”
The present view of Andhra Pradesh High Court hardly stands justified in the context of Marriage Laws (Amendment) Act, 1976. As pointed out above the marriage is to be solemnised with certain ceremonies, but mere solemnization of ceremonies does not make it sacramental. The underlying force behind its sacramental character was the concept of indissolubility and it’s being regarded as a religious duty. The concept of marriage as now stands under the Act is shorn of all those ideals.
A Hindu marriage can now be dissolved not only on the ground of any fault in either party to marriage but also on the ground of break- down of marriage. Marriage Laws (Amendment) Act, 1976 has further relaxed the ground of the dissolution of marriage by adding section 13-B to the Act whereby a decree of divorce can be obtained by mutual consent. All these factors have led to a serious kind of encroachment upon the sacramental character of marriage. It is on account of the Amendment Act, 1976 that there is a criticism that the identity of Hindu marriage as existed before the Hindu Marriage Act,1955 has been completely lost.
The Hindu marriage contemplated by hardly remains sacramental. The Act has introduced some changes of fair-reaching consequences which have undermined the sacramental character of marriage and rendered it contractual in nature to a great extent. Marriage under the old law was primarily and essentially a sacrament. Mr. S.T. Desai, the editor of mulla’s “Principles of Hindu Law” concludes that ‘ a Hindu marriage under the Act, it is submitted, is not exclusion of all others satisfied by solemnization of the customary rites and ceremonies of either party essential for a marriage; and directly it exists, creates a relation and status not imposed or defined by contract but law.
This Article written by Aarti Goyal of Sardar Patel Subharti Institute of Law, intern at Legal Vidhiya.