HINDU MARRIAGE ACTALL PROVISIONS PART III

COMMENTS

The customs/usage is to be tested on the touchstone of the definition of custom/usage. As per reading of the definition it is to be found that there are five ingredients of the aforesaid definition, namely (i) it has been continuously and uniformly observed for a long time; (ii) it has obtained the force of law among Hindus in any local area, tribe, community, group or family; (iii) it is certain; (iv) it is not unreasonable or opposed to public policy; and (v) in case of a rule applicable only to a family, it has not been discontinued by the family: Sharad Dutt v. Kiran (1997) 2 D.M.C. 643: (1997) 69 del.L.T. 510.

1. Overriding effect of Act:-  Save as otherwise expressly provided in this Act,-

(a)   any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provisions is made in this Act;

(b)   any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.

COMMENTS

In view of sub-S. (2) of S. 29, overriding effect of S.4(a) will not operate subject to, of course, the existence of custom. Thus, where customary divorce is proved to be in existence in any caste, the custom is saved. G.Thimma Reddy v. Special Tahsildar Land Reforms, Adoni II (1993) 1 An W.R.2: (1992) 3 An. L.T.733.

CHAPTER II

HINDU MARRIAGES

1. Conditions for a Hindu marriage:- 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 unit for marriage and the procreation of children; or

(c)                has been subject to recurrent attacks of insanity;

(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)             in 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 each of them permits of a marriage between the two;

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2. Substituted by Act 68 of 1976, S.2, for Cl. (ii) (w.e.f.25-5-1976).

3. The words “or epilepsy” omitted by Act 39 of 1999, S.2 (w.e.f. 29-12-1999)

4. Substituted by Act 2 of 1978, S.6 and /sch., for “eighteen years” and “fifteen years”, respectively (w.e.f.1-10-1978).

5. Cl. (vi) omitted by Act 2 of 1978, S.6 and Sch. (w.e.f.1-10-1978).

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Objects and Reasons:-  This section prescribed the essential requisites for a Hindu marriage, sub-clause (i) of which introduces monogamy. Sub-clauses (iv) and (v) require that the parties should not be within the degrees of prohibited relationship or be sapindas of each other unless in either case there is a custom or usage modifying that rule.

In sub-clause (vi), the amendment will ensure that until the bride attains majority, no marriage takes place without the consent of the guardian-in-marriage. Under the original Bill, consent of the guardian was required only if the girl was between the ages of 15 and 16, and once she attained her 16^th year she could dispense with the consent of her guardian although she was still a minor.

COMMENTS

The concept of Hindu marriage under the Act is still a sacrament as envisaged under the Hindu Law. It cannot, therefore, be contracted by mere consent of the parties to it. A marriage to be valid under the Act must satisfy the conditions laid down in S.5 and should be solemnized as specified in S.7: Ravinder Kumar v. Kamal Kanta I.L.R (1973) Bom. 1220; 1973 Mah.L.J.310.

Hindu marriage if is to be solemnized under S.5 then both the parties of such marriage must be Hindua. As seen from sub-S, (3) of S.2 a person though not a Hindu by religion has to be regarded as Hindu and the Hindu Marriage Act applies to him because of sub-Ss. (1) and (2) of S.2 thereof. However, Hindu marriage could be solemnized in accordance with the customary rights and ceremonies of either party thereto as is envisaged in S.7; Jacintha Kamath v. K.Padmanabha Kamath A.I.R. 1992 Karn. 372 (1992) 2 Hindu L.R.114(D.B.)

A wife whose marriage has been declared null and void ipso jure under s.11 as envisaged under S.5(i), (iv), held, ceases to be a wife within the meaning of S.18 of the Hindu Adoptions and Maintenance act, 1956; she is not entitled to claim maintenance under the latter provision: Basappa v. Siddagangamma (1992) 2 Karn. L.J.357:I.L.R. (1992) Karn.1798.

The expression “incurably of sound mind”, held, cannot be so widely interpreted as to cover the feeble minded or possessors of weak or dull intellects who are capable of understanding the nature and consequences of their acts or controlling themselves and their affairs and reactions in the normal way; S.5(ii) lay down that neither party to a marriage must be incapable of giving valid consent due to unsoundness of mind or should have been suffering from mental disorder; S.12(i)(b) enables the other party to avoid the marriage contravening such a condition; S.13(1)(iii) provides for divorce where the other party has, subsequent to the marriage, developed incurable unsoundness of mind: Parvati Mishra v. Jagadananda Mishra (1995) 1 D.M.C. 77 (Madh.Pra.).

The marriages solemnized in violation of S.5(iii) remains unaffected; neither the marriage is void nor voidable: Rabindra Prasad v. Sita Devi A.I.R. 1986 Pat.128.

1. Guardianship in marriage:- [Omitted by the child marriage Restraint (Amendment) Act, 1978 (2 of 1978), section 6 and Schedule (w.e.f.1-10-1978).]
2. Ceremonies for a Hindu Marriage:- (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the scared fire), the marriage becomes complete and binding when the seventh step is taken.