This article has been written by Swagat kumar Tripathy, currently in fifth year pursuing BA LLB at SoA National Institute of Law, Bhubaneswar, Odisha
Introduction-
Marriage is considered to be the most important religious and social event in someone’s life among Hindus in India. Louis Malle, in his documentary relating to India, mentioned that from marriages everything starts and ends in India.[1] Hindu marriage is a tradition continues from time immemorial and considered as Sacrament resulting in a sacred tie which never be broken.
In the case of Tikat v. Basant,[2] It was held that marriage is the spiritual union of two soul’s where flesh merges with flesh, bone merges with bone and the afterlife also continues. Since the vedic era the institution of marriage is being performed as per the traditions but no such uniform way or ceremony is there to come to the conclusion that marriage has been performed. Whenever a case reaches before the court, the court looks into two basic questions: whether there is marital relationship between the parties and if subsist whether it is the result of the valid marriage or not for which the court relies upon the customs and codified laws. But due to developments in communication, busy schedules and technological innovations ceremonies were also molded as per conveniences and the sacramental value of the marriage is decreasing leading to the piling up of divorce cases before courts.
The importance of marriage in Hinduism as a sacrament-
In Hinduism, the basic social organization in society is the institution of marriage. According to them, marriage is not a relationship created on earth but the result of an arrangement made in heaven. Among the 16 sacraments of Hindu marriage, the most important is the one that is marriage which denotes two individuals joined together for life by which they can perform the purusharthas. The object of this institution is the procreation of children through whom they can attain salvation. The sacramental nature of the Hindu religion shows that it is a never-ending union of husband and wife that will remain afterlife, and such religious union is necessarily performed through religious rites, which include Baranugaman, Homa, Kanyadan, Panigrahan, Saptapadi, and Vidhai. All this long process is to be performed under a canopy, witnessed by the relatives. But there is no such thing as a thing as a hard-and-fast rule to perform all these steps for a valid marriage. All these functions are performed in the Vedic era, signifying the sacramental nature of marriage, which follows after death.
A Valid Hindu Marriage-
The institution of marriage among Hindus is governed under the Hindu marriage act, 1955 which is a landmark social legislation. S.2 of the act says that the said act applies to Hindus by religion including Lingayat, Aryasamjists, Bramhosamajists and also includes Buddist, Jains and Sikhs who have deviated from Hindu in the ceremonial aspects more or less. Any law relating to marriage which is applicable on Hindu in the matter dealt under the act of 1955 will have no application after the act came into act and also abolish any such central or state law inconsistent with provision of this act. [3]
The essential conditions[4] for Valid Hindu marriage under the act of 1955 are:-
- First condition talks about the rule of monogamous marriage and prohibits polyandry and polygamy in its strict sense, contravention of which results that marriage will be void ab initio. The person will be liable under S. 494 and 495 of the Indian Penal code if he/she marries another in subsistence of the valid marriage.
- As per the second condition that both the bride and groom must be in such a mental condition that they can give valid consent to the marriage. Such valid consent shall not be affected by any type of mental disability, insanity or unsoundness. So they must not be unfit for the marriage or procreation of children. Contravention of any of these conditions make the marriage voidable[5] but such mental incapacity must be at the time of marriage to make the marriage voidable at the option of the parties.
- Third condition says that the minimum age for the bride is 18 years and 21 years for the groom.
- The 4th and 5th condition under S.5 says that both the husband and wife should neither come under the prohibited degree of relationship nor under sapindas relationship unless otherwise permitted by the local customs and usages of the locality to which both the parties belong.
Ceremonies of marriage
Generally marriage consists of various unique and colorful ceremonies. As India is full of cultural diversities likewise in the institution of marriage there are no uniformities as to ceremonies, customs and rituals and no hard and fast rule to be followed. Also there is no consensus among the pundits who generally perform such ceremonies and it largely depends upon regional and caste differences.
S. 7 of the Hindu Marriage Act, 1955 says that some customary rites and ceremonies to be performed at the time of marriage. And if the 7 steps or saptapadi is taken the marriage becomes valid and the parties become husband and wife.
As per this section if husband and wife perform the ceremonies prescribed then the marriage becomes valid but the act is silent about what kind of ceremonies is to be performed because of the diversity and differences between the people in Indian society. The only specific procedure given by this section is the ceremony of “saptapadi’. It’s the specific ritual where the husband and wife take 7 steps together before the sacred fire in the Bibah Mandap and after completion of the complete 7 rounds the marriage is considered binding. Here the term Binding denotes that both the parties can’t divert from the lawful tie of marriage. On one hand S. 7 says that the Saptapadi is a necessary ceremony whereas on the other hand the same law is not clear what other ceremonies are necessary which makes Saptapadi an indispensable custom, and there is no diversion from it.
If the performance of certain ceremonies is essential non performance of them will not be ignored and even the doctrine of factum valet also not applicable that means substantial compliance is non compliance resulting in invalidity of marriage.[6] The rites and performance of ceremonies are same in the communities of both the parties to the marriage then marriage should be solemnized by such rites and ceremonies and if they are different then ceremonie performed by one party can be observed.
The apex court and state high courts held that if the marriage is not performed with the due performances of ceremonies required for then such marriage can’t be taken as “solemnized”.[7] So clear reading of the section says that essential ceremonies are necessary to be performed to make the marriage binding and valid and no such performance of ceremonies can be dispensed with. If there is no evidence of the performance of an essential condition of marriage in the prior marriage and the person marries another later on then he can’t be prosecuted for Bigamy.[8]
In the case of Dr. A.N. Mukerji v. State[9]Dr. Mukherji was prosecuted for bigamy. Court found that he performed the essential ceremonies of marriage three different times. Firstly they exchanged gearland, and after that they performed Moon Ceremony and later on thirdly they performed some other kind of ceremonies before Guru Granth Sahib. Any of these ceremonies in such form is neither accepted in the customs of the bride or groom so the marriage was held invalid so he was not liable for bigamy. Bombay High court in a recent judgment of 2017 held that putting Sindoor on the forehead and tying the Mangalsutra along with physician relationship will not constitute valid marriage if essential ceremonies are not performed.[10]
Recent judgment
Dolly Rani v. Manish kumar Chanchal[11]
Fact of the case- The wife and the husband i.e. the petitioner and the respondent in this case are professional pilots. Both parties were engaged and claimed to have solemnized their marriage. They obtained a marriage certificate from a NGO and obtained the certificate of registration under U.P. Marriage Registration Rule of 2017. Both the parties lived separately and later on differences arose between them even the wife alleged the demand of dowry by the respondent. Lateron, the petitioner filed FIR under S. 498A, 506, 509, and 34 of IPV and under Dowry Prohibition act against the respondent. Later on the respondent filed a petition under S. 13(1)(ia) of the Hindu Marriage Act,1955 before the Family Court of Muzaffarpur, Bihar. Petitioner as she resides in Ranchi, Jharkhand she was aggrieved by filing of the case in Muzaffarpur, filed the present petition for the transfer of the case to the Family Court Ranchi.[12]
Petitioner submitted that the petition seeking divorce filed by the Husband is invalid because there is no marriage between the parties in the eyes of law. Respondent’s counsel also submitted that although the marriage was not concluded with requisite ceremonies granted under S. 7 of the act but there is due registration of marriage. During the pendency of case both the parties discussed as to matter and filed a joint application under S. 142 of the Constitution to declare their marriage as invalid and the certificate issued by the NGO as null and void.
Judgment- The bench headed by J. B.V. Nagarathna and J. Augustine George Masih, held that requisite ceremonies are necessary to perform and there must be evidence to prove such ceremonies in order to validate the marriage under the Hindu Marriage Act of 1955. Mere issuance of certificate of registration by the NGO in absence of such ceremonies neither confers the marital status upon parties nor validates the marriage.
Certificate which was issued by Vadik Jankalyan Samiti in absence of any evidence of performance of ceremonies provided by custom and usages as to fulfillment of S. 7 loses its evidentiary value. But here on the basis of such a certificate the marriage was registered. Parties who are Hindus and married by fulfilling the conditions of the requisite ceremonies can register their marriage under Hindu Marriage act of 1955.[13]
In this instant case, although the conditions mentioned under S. 5 are fulfilled, the non-fulfillment of the requisite ceremony under S. 7 results in an invalid marriage. In the absence of a valid marriage registration, the registration officer can’t register the marriage under S. 8, so the certificate is of no value at all.
The court further observed that “Hindu marriage is not only an institution but a sacrament. As per the Rig Veda, the groom says to the bride that upon completion of the seventh step, they become sakha, from which both will not be separated. The wife becomes the Ardhangini with an identity of her own. No one is the better half of the marriage; rather, both of them are equal halves. This samskara of marriage is the foundation of a new family.”
“The effect of the marriage, which is concluded as per the said provisions of the act, confers upon both parties the status of husband and wife. But such status is of no value if the requisite ceremonies are not performed in the prescribed form.”
The Bench also stated that in the past years, the court has seen in various cases that both parties to the marriage with an intention to carry out marriage in the near future are seeking registration of marriage under S. 8, which is issued as proof of the valid solemnization of marriage, which will help them to apply for visas for emigrations as both parties are busy with their schedules and registration will consume less timing. But such practices should be discarded. The court also observed that the marriage ceremony is not a function for enjoyment or lavish dining, nor is it even an occasion for demanding gifts that result in commercial transactions. This is the foundation event to celebrate the relationship of husband and wife for the creation of a new family, which is the building block of a society.
On focusing on solemnity, the court said that Hindu marriage focuses both on the spiritual and social aspects of a husband and wife’s lives. It’s a process through which salvation can be attained. On one hand, the act focuses on registration and conferring legal rights and harmonizes the importance of adhering to rites and ceremonies in order to understand and internalize the sacred nature of marriage. So alongside fulfilling all the conditions to validate marriage, important and essential ceremonies are to be performed.
By looking into all these points, the court declared that the marriage between the parties is not a Hindu marriage on the basis of the non-fulfillment of conditions mentioned under S.7 of the Hindu Marriage Act and the certificate issued by the NGO is null and void and disposes of the transfer petition and pending application(s).
Conclusion-
All these sacred ceremonies rooted in the Hindu Marriage Act, 1955, show the significance of marriage as both legal and sacred bond. Performance of pujas and rituals together during and after marriage to seek blessings of the almighty for a happy and prosperous life of both and future family. Essential customs and ceremonies are deeply rooted in the Vedas and have been performed since time immemorial which is the essential requirement of Hindu marriage, which does not place the marriage within four walls of a contract but is way beyond that. It is a social and cultural obligation and plays a crucial role as the foundation stone of Hindu society. These rituals and ceremonies not only give spiritual significance to the marriage but also strengthen the bond of husband and wife and also of the family as a whole.
[1] Phantom India, directed and narrated by Louis Malle.
[2] ILR 28 Cal.758.
[3] S. 4 of the Hindu Marriage Act, 1955.
[4] S. 5 of the Hindu Marriage Act, 1955.
[5] S. 12 of the Hindu Marriage Act, 1955.
[6] Hindu Law by R.K. Agrawal.
[7] Bhau Rao v. State of Maharastra, AIR 1965 SC 1564.
[8] Hindu Law by R.K. Agrawal.
[9] AIR 1969 All,489.
[10] Shri. Nitin S/O. Omprakash Agrawal v. Smt. Rekha W/O. Nitin agrawal, 31st Jan 2017.
[11] 2024 (SC) 334.
[12] S.25 of the Code of Civil Procedure, 1908.
[13] S. 8 Hindu Marriage Act, 1955.
