Introduction

Hindu Marriage Act, 1955 has reformed Hindu law of Marriage. It is a landmark in the
history of social legislation. It has not simply codified the Hindu law of marriage but has
introduced certain important changes in many respects. The Hindu marriage
contemplated by the Act hardly remains sacramental. The Act has brought in some
changes of far reaching consequences which have undermined the sacramental nature of
marriage and rendered it contractual in nature to a great extent.

The Hindu Marriage Act is an Act of the Parliament of India in 1955 as part of the Hindu
Code Bills. Three other important acts were also enacted during this time: the Hindu
Succession Act (1956), the Hindu Minority and Guardianship Act (1956),the Hindu
Adoptions and Maintenance Act (1956).

Concept of Hindu and Hinduism

Hindu as is propounded is not a religion like Christianity and Islam. Anyone born in India
is automatically a Hindu (the ethnicity fallacy). Neither the Vedas nor the epics such as
Mahabharata and Ramayana mention any religion as Hinduism.
People who lived on the other side of Sindhu River were called as Hindus. The actual
term Hindu first occurs as a Persian geographical term for the people who lived beyond
the river Indus (Sanskrit:Sindhu).The term Hindu then was a geographical term and did
not refer to a religion. Unlike the Christians and Muslims, Hindus have numerous holy
books and number of Gods.
Some writers are of the view that a Hindu is a person if his parents are Hindus or if the
person believes in reincarnation or practices a religion which has originated in India or if
the person belongs to a caste then he is a Hindu. It is also true to say that a person is said
to be Hindu if he believes in Vedas and Dharma.
The concept still is not clear as it is not a religion but way of life.
It is not a mere laconism to observe that it is easier to say who are not Hindus or that the
practical separation of Hindus from non-Hindus is a not a matter of much difficulty.
Hence section 2 sub-clauses of Hindu Marriage Act, 1955 adopts the negative form and
in effect, lays down that it is to be presumed, until the contrary is proved, that any person
who is not a Muslim, Christian, Parsi or Jew by religion is governed by the Act.

Towards the end of the 18th century, the European merchants and colonists began to refer
to the followers of Indian religions collectively as Hindus. The term Hinduism was
introduced into the English language in the 19th century to denote the religious,
philosophical, and cultural traditions native to India.

Hindu Marriage

The Hindu marriage is based upon the extinction of the dominion of the father over his
daughter and the creation of the relationship of husband and wife by a religious function.
The religious ceremony is essential for all the forms of marriage. The mode of extinction
of the dominion of the father differs in the various forms of marriage.

Approved Forms:

i) Brahma form:

The gift of a daughter, after decking her with ornaments and honouring her with jewels to
a man learned in the Vedas, whom the father of the girl himself invites, is called the
Brahma marriage2. In this form, the father invites the bridegroom and makes a gift of
his daughter, thereby putting an end to his dominion over daughter. The important feature
of this form is that, the parents of the bride do not receive any consideration for giving
the girl in marriage.

ii) Daiva form:

In this form of marriage, the damsel is given to a person who operates as a priest in a
sacrifice performed by the father, in lieu of the fee due to the priest. It is inferior to the
Brahma because the father derives a benefit, which is not deemed reprehensible.

Iii) Arsha form:

In Arsha form of marriage, the bridegroom makes a present of a cow and a bull or two
cows and two bulls to the brides father which is accepted for religious purpose only4.

iv) Prajapatya form:

The last kind of approved marriage is called prajapatya which does not materially
differ from the Brahma, but in this the gift is made with condition that you two be
partners for performing secular and religious duties.
Unapproved forms:

i) Asura form:

In the Asura form of marriage, the dominion of the father over the daughter ceases by his
sale of the girl to the bridegroom. The acceptance of some consideration by the father for
giving his daughter in marriage is the factor that stamps this marriage as one in the
unapproved form.

ii) Gandharva form:

The gandharva marriage was the union of a man and a woman by mutual consent. In this
form, the bride with own consent, gives herself away to the bridegroom. She is old
enough to function without a guardian for the marriage.

iii) Rakshasa form:

The forcible abduction of the bride from her paternal home is the essence of the Rakshasa
form. This form of marriage is still practiced among certain classes of Gond tribals of
Berar and Betul. This kind of marriage was effected by forcible capture and was allowed
only to the kshatriyas or military classes.7.

iv) Paisacha form:

This form of marriage was the most reprehensible as being marriage of a girl by a man
who had committed the crime of ravishing her either when asleep or when made drink by
administering intoxicating drug or when in the state of mental disorder. In both Rakshasa
and Paisacha, there is a subsequent marriage with sacred texts and it is the original mode
of securing the maiden that stamps these marriages as unapproved.

The Hindu Marriage Act, 1955 has not prescribed any particular form of marriage. It
simply lays down the conditions for a valid marriage. The Act calls marriages solemnized
under the Act as Hindu marriages which may be performed in accordance with the
customary ceremonies prevalent in the community to which, the bride belongs.

DEFINITION OF MARRIAGE
A contract made in due form of law, by which a free man and a free woman
reciprocallyengage to live with each other during their joint lives, in the union which
ought to exist between husband and wife. By the terms freeman and freewoman in this
definition aremeant, not only that they are free and not slaves, but also that they are clear
of all bars toa lawful marriage. To make a valid marriage, the parties must be willing to
contract, ableto contract, and have actually contracted.Hindu marriage is valid legal
relationship between a man (at least 21 years) and a woman(at least 18 years) meeting
other conditions for valid marriage.Hindu marriage is performed under Shastric
Ceremonies and rites as laid down byShastric Hindu law or is performed under
customary ceremonies and rites. However,according to the legal procedure, certain
ceremonies are obligatory in the whole of themarriage function to have the marriage
considered valid and completely as per the law.All other customs and ceremonies do not
have any legal standing as far as the validity of the marriage is concerned.

According to Hindu religious texts there are four stages in life as follows-

1. Brahmacharya: Literally means going after Brahman. It refers to a stage of life

within the ashram.

2. Grihastha: It means being in & occupied with home, family. It is 2 nd in-line within
the vedic ashram system, and embodies a married life with the duties of maintaining a
home, raising a family educating ones children, leading a family centered and a dharmic
social life.

3. Vanaprastha: This stage implies to giving up worthily life. It starts when a person
hands over household responsibilities to the next generation, takes the advisory role and
gradually withdraws from the world.

4. Sanyasa: It is a form of asceticism, is marked by renunciation of material desires and

prejudices, represented by a state of disinterest and detachment from material life, and
has the purpose of spending ones life in peaceful, love-inspired simple spiritual life.

HISTORY OF MARRIAGE
According to the tenets of Hinduism, marriage is a sacred relationship, a sacrament, and
adivine covenant meant for procreation and the continuation of family lineage. In
thetraditional Hindu system of marriage, there is no role for the state as marriage
remained a private affair within the social real. Within this traditional framework
reference, marriageis undoubtedly the most important transitional point in a Hindus life
and the mostimportant of all the Hindu samskaras, or life-cycle rituals.

Ancient India

In the ancient India, especially in Hindu marriages, there are certain references
of polygamy and polyandry for political as well as social reasons, they are
consideredcriminal offenses today. However, falling in love before marriage was seen as
a sin, akind of insanity. Still we do find the references of amorous relationships between
princesand princesses. It is observed throughout history, a woman was considered a
possessionof first her father and then her husband. Her opinions and views were not
considered for any decision making and even about her own duties and allowances. Most
references tomarriage in the ancient texts suggest that the Aryans were monogamous.
However, somereferences to polygamy and polyandry have been found in the Hindu epic
of Mahabharata.

Medieval India

In the medieval age, there were Swayamwaras arranged by Kings for their
daughters,where women get to choose the groom of their choice and men would have to
coo themwith a presentation of their abilities. These means sound more modern rather
thanancient. There are also mentions of abductions of the women by men for
marriage purpose. In fact, that was one acceptable way of acquiring the bride of ones
choice. Itwas considered rather gallant of a man to display such act. In the later days,
rights of women or even men while selecting their life partners changed due to social
changes and wars, due to mixed inhabitant and cultures. It became a parents duty to
search for and invite the matching alliances for their children. It became necessary to
perform a diligence check on any alliance before getting into a deal. Yes, marriages sure
turned into deals with the dowry systems getting attached to it. Women lost all the dignity
in the market of marriage and became just a commodity to be exchanged in lieu of
removing the burden of social and moral responsibility from their family. As this became
favor from the grooms family over to the brides it was a right to have compensated for
that in terms of dowry, which took away most of the wealth and pride from the brides
family.
Modern India

However, the times sure have changed recently and marriages are performed keeping the
dignity (especially of the brides family) intact. Thanks to modernization and
globalization, and changing status of women in India, the custom of sati got diminished
for good. The people involved didn't and don't have much to say about the decision.
The people have a broad outlook towards their future especially when it comes to
deciding about their marriage, they dont want to get involved in any kind of obsolete or
orthodox customary rule and rather they want that every step should be more of a legal
nature. Thus they find shelter in Acts like Hindu Marriage Act and Special Marriages
Act.

Application of Act.-

(1) This Act applies-

(a) to any person who is a Hindu by religion in any of its forms or developments,
including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya
Samam,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a
Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person
would not have been governed by the Hindu law or by any custom or usage as part of that
law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation. - The following persons are Hindus, Buddhists, Jainas or Sikhs by religion,
as the case may be:-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists,
Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina
or Sikh by religion and who is brought up as a member of the tribe, community, group or
family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh
religion.

(2) Notwithstanding any thing contained in sub-section (1), nothing contained in this Act
shall apply to the members of any Scheduled tribe within the meaning of clause (25) of
article 366 of the Constitution unless the Central Government, by notification in the
Official Gazette, otherwise directs.

(3) The expression 'Hindu' in any portion of this Act shall be construed as if it included a
person who, though not a Hindu by religion is, nevertheless, a person to whom this Act
applies by virtue of the provisions contained in this section.

Applicability:

The Act applies to:

1. Any person who is Hindu, Buddhist, Jain or Sikh by religion.

2. Any person who is born to Hindu parents.

3. Any person who is not a Muslim Christian, Parsi or Jew, and who is not governed by
any other law.The Act does not apply

4. To persons who are Muslims, Christians, Parsis or Jews by religion.

This Act, however, will not apply to those;

1. why have renounced the Hindu religion and have became converts to some other
religion and
2. Persons, who descended from Hindu ancestors and on account of marriage or on
account of some new occupation converted into new community having their own
religion and usages.

3. Children, whose either parents though a Hindu, are not brought up as Hindus.

Who are Hindus

Till this day there is no precise definition of the term Hindu available either in any
statute or in any judicial decision. However since Hindu law applies to all those persons
who are Hindus. It is necessary to know who are Hindus. The answer lies in the question;
to whom does Hindu law apply?

The persons to whom Hindu law applies may be put in the following three categories.
1. Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by religion.

2. Any person who is born of Hindu parents (when both the parents or one of the parents
is a Hindu, Jain, Sikh or Buddhist by religion), i.e., Hindus by birth, and

3. Any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by
any other law.

Hindus by Religion
This category includes two types of persons:

(a) Those who are originally Hindus, Jains, Sikhs or Buddhists by religion.

As rightly observed by the Supreme Court in Chandrasekhar v. Kulandaivelu, Any person

who is a Hindu, Jain, Buddhist or Sikh by religion is a Hindu if:

(i) he practises, professes or follows any of these religions, and

(ii) he remains a Hindu even if he does not practice, profess or follow the tenets of any
one of these religions. Thus, a person does not cease to be a Hindu if he becomes an
atheist, or dissents or deviates from the central doctrines of Hinduism, or lapses from
orthodox practices, or adopts western way of life, or eats beef.

(b) Those who are converts or reconverts to Hindu, Jain, Sikh or Buddhist religion.
A person who ceases to be a Hindu by converting to a non-Hindu religion; will again
become Hindu if he reconverts to any of the four religions of Hindus.

A non-Hindu will become a Hindu by conversion:

(i) If he undergoes a formal ceremony of conversion or reconversion prescribed by the

caste or community to which he converts or reconverts; or

(ii) If he expresses a bona fide intention to become Hindu accompanied by conduct

unequivocally expressing that intention coupled with the acceptance of him as a member
of the community into the fold of which he was ushered into.

Further, when a person declares that he is a follower of Hindu faith and if such a
declaration is bona fide and not made with any ulterior motive or intention, it amounts to
his having accepted the Hindu approach to God. He becomes a Hindu by conversion.

Hindu by Birth
Under Modern Hindu Law, a person will be a Hindu by birth if:

i) Both his parents are Hindu; or

ii) One of the parents is a Hindu and he is brought up as a Hindu.

Such child is Hindu irrespective of fact he/she is legitimate or illegitimate.

In case after the birth of the child both or one of the parents convert to another religion,
the child will continue to be a Hindu unless, in the exercise of their parental right, they
also convert the child into the religion in which either or both of the parents have
converted.

A relevant judgement in this context is Maneka Gandhi v. Indira Gandhi, wherein the
Court held that Sanjay Gandhi was a Hindu because:

1. One of the parents, namely his mother was a Hindu and

2. He was openly brought up as a Hindu.

Section 2(2) provides that nothing contained in this Act shall apply to the members of
any Scheduled Tribes (even if they are Hindus) unless the Central Government by
notification in the official gazette otherwise directs. Most of the scheduled tribes are still
governed by customs.

Concept and forms of marriage

The concept of marriage is to constitute relationship of husband and wife. According to

ancient Hindu law, marriage is the last of ten sacraments and is a sacred tie which can
never be broken. It is a relation established by birth to birth. According to Smritikars
even death cannot break this relation of husband and wife which is not only sacred and
religious but is a holy union also.

The object of marriage was to enable a man and a woman perform religious duties and to
beget progeny. According to ancient writers a man was incomplete without a woman and
a woman is half of her husband (ardhangini) and completes him.

Every Hindu male or female had to marry. Where a person could not remain a perpetual
student or where he did not desire to be an ascetic (sanyasi), he was enjoined by the
shastra to marry. Marriage, therefore was as good as compulsory and more so in case of a
female.

Marriage: Sacrament or Contract

Marriage being one of the essential Samskaras is sacramental in nature. The sacramental
nature of marriage has three characteristics:

1. It is a permanent union i.e. once tied cannot be untied.

2. It is an eternal union i.e. valid not only in this life but in lives to come.

3. It is a holy union i.e. performance of religious ceremonies is essential.

Since Hindu marriage was considered to be sacrament, the consent of the parties did not
occupy any important place. Thus the person married may be a minor or even of unsound
mind, if the marriage is duly solemnised there is valid marriage. Under the Contract Act,
the contract of a minor or of a person of unsound mind is void. Further, Section 12 of
Hindu Marriage Act does lay down that a marriage is voidable if consent is obtained by
fraud or force, but it is not laid down that if ones consent was not obtained the marriage
is voidable. This shows that despite the fact that a party is able to prove the absence of
consenting mind, the marriage will continue to remain valid.

The modern concept of marriage is contractual in nature. It receives the ideals of liberty
and equality (free volition of individuals). Today, it is an established notion of the west
that marriage, to be effective, must be an agreement voluntarily entered into by both
parties

In the light of modern concept of marriage could we say that Hindu marriage continues to
be sacrament? By recognising the divorce and widow remarriage the first two
characteristics of sacramental marriage have been waived. However, the third
characteristic is still retained.

To sum up the Hindu marriage has not remained a sacrament and has also not become a
contract, but it has a semblance of both.
LEGISLATION OF LAWS RELATING TO HINDU MARRIAGE ACT

Legislation of Hindu Marriage Laws began in the year 1829 when Sati Pratha was
abolished by law at the instance of Raja Ram Mohan Roy. In 1856, Hindu Widows
Remarriage Act was passed.

In 1860, Indian Penal Code prohibited Polygamy in Hindus. In 1866, Native Converts
Marriage Dissolution Act was passed for conversion of Hindus into Christian Faith.

In 1872, Special Marriage Act was passed but it excluded Hindus.

In 1909, Anand Marriage Act legalized marriage ceremony common in the Sikh faith
called Anand Karaj.It has now been amended as Anand Marriage(Amendment)Act 2012,

In 1923, The Special Marriage Act was further amended to legalize inter-religious
marriage between Hindus, Budhists, Sikhs and Jains.

In 1929, Child Marriage Restraint Act or Sarda Act was passed.

In 1939, Arya Marriage Validation Act recognized inter-caste marriage and marriage
with reconverts to Hinduism.

In 1946, Hindu Marriage Disabilities Removal Act legalized inter-marriages between the
sub-divisions of same caste and those within same Gotra or Parivar.

In 1946, Hindu Married Womens Right to Separate Residence and Maintenance Act was
passed.

Hindus firmly believe in complete physical, mental and spiritual union of man and
woman as husband and wife yet with the devaluation in morals, the reverse picture has
emerged with social, economic and even psychobiological subjugation of women. The
position of woman and wife had degraded so much during the pre-independence centuries
that the wife was considered inferior to man. The woman became dependent upon the
father during maidenhood, upon the husband during married life and upon the sons
during widowhood. Even the inheritance laws were in favor of the husband or sons only.
The very being of the woman was suspended during the marriage and incorporated &
consolidated into that of the husband.

In 1947, The Hindu Code Bill was drafted by Rau Committee and was reviewed by the
select committee of the Constituent Assembly. It was, however, opposed in the
Provisional Parliament. Thus, it had to be split into different Bills to facilitate their
passage.

THE HINDU MARRIAGE ACT 1955

The Hindu Marriage Act was enacted by the Indian Parliament in the year 1955, with
the purpose of regulating the personal life among the Hindus, especially their institution
of marriage, its validity, conditions for invalidity and applicability etc. In 1955 the Hindu
Marriage Bill was introduced in the Parliament and was passed by both the Houses of
Parliament. There are many salient features in the provisions of the act that makes and
even prompt a person to consider it as rather conservative. The underlying note or we can
say that the lifeline that runs throughout the act is that it duly recognizes the religious
sentiments and values of the Hindus which they respectfully cherish and consider as
valuable. Accordingly the Hindu Marriage Act has considered and treated the institution
of marriage among the Hindus so sacrosanct as it evolved through ages among them, duly
recognizing their time immemorial customs, traditions, shastras that include their rituals
and other practices as practiced and evolved by them over a long period.

A stage had reached when codification of law of marriage had become necessary to solve
many controversial issues arising out of Hindu marriage and succession. There was a
necessity for codified law applicable to all Hindus. A uniform and comprehensive law
governing all Hindus and containing a series of coherent prepositions carefully
considered and stated by the authority of the supreme legislature was a long-felt
desidertum.

In 1954 the Special Marriage Act was enacted by the Parliament to provide a special
form of marriage in certain cases. This law was made applicable to all citizens of India
domiciled in the country.

The marriages done under that Act were to be governed by the Indian succession Act of
1925 and not by the Hindu Law of Succession with regard to the questions of inheritance
and succession.

But this Act could not be socially acceptable as it did not give proper attention to
traditional rites and ceremonies which were considered very vital for a Hindu Marriage.
To meet this requirement, the Hindu Marriage Act, 1955 was enacted which came into
force on 18th May 1955.

Conditions for the validity of marriage (Section 3 and 5)

A marriage may be solemnised 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 in consequences 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 unfit for marriage and the procreation of
children; or

(c) Has been subject to recurrent attacks of insanity or epilepsy.

(iii) The bridegroom has completed the age of twenty one (21) years and the bride the age
of eighteen years at the time of marriage.

(iv) 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.

Ingredients of Section 5
Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this
section both the parties to the marriage under the Act must be Hindus. If one of them is a
Hindu and the other a non Hindu or both are non Hindus, the marriage will not be a
subject matter of this Act but will relate to some other law i.e. Special Marriage Act etc.

Clause (i) Condition of monogamy

This condition implies monogamy and prohibits bigamy or polygamy. The expression
neither party has a spouse living depicts that the spouse must not be alive at the time of
marriage. If the spouse is alive at the time of marriage that could bar the remarriage of a
person. However one must note that the first marriage of a person should be a legally
valid marriage. In spite of ones valid marriage if the person remarries in violation of
Section 5(i), the second marriage will be null and void and he will be subjected to penal
consequences. The Scheduled Tribes are exempted from the application of the Act. But
there must be a proved custom to this effect.

Bigamy Section 5(i)

Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void
and Section 17 makes it a penal offence for both Hindu males and females under Section
494 and 495 of IPC. The offence of bigamy is committed only if the required ceremonies
of marriage are performed. The second marriage cannot be taken to be proved by the
mere admission of the parties; essential ceremonies and rites must be proved to have
taken place. In the case of a bigamous marriage, the second wife has no status of wife.
Clause (ii) Condition regarding mental health or capacity
Sub clause (a) requires that at the time of marriage neither party is incapable of giving a
valid consent to marriage due to unsoundness of mind.

Sub clause (b) Mental disorder: According to sub-clause (b) at the time of marriage
neither party to marriage should be suffering from a mental disorder of such nature and to
such a degree as to be unfit for two purposes (i) marriage and (ii) procreation of child. In
Tarlochan Singh v. Jit Kaur, the court held the marriage void on the ground that wife was
suffering from schizophrenia within short period after marriage and the disease was not
disclosed to the husband before marriage.

Sub clause (c) Recurrent attacks of insanity: If a person has been subject to recurrent
attacks of insanity he is also not qualified for marriage under Hindu Marriage Act. He
cannot marry even during a lucid period.

Post marriage mental illness: If a party to a marriage is not suffering from any mental
defect described under section 5(ii) but fails ill mentally after the marriage, there is no
violation of this condition.

Clause (iii) Condition of marriageable age

According to this clause, at the time of marriage the bride must have completed the age
of 18 years and the bridegroom of 21 years. Thus a child marriage is prohibited under
Hindu Marriage Act. However, violation of this condition does not make the marriage
void or voidable. It means that it is valid though it may attract penalties. But it can
become a valid ground for repudiation of the marriage. The Hindu Marriage Act and the
Child Marriage Restraint Act provide for punishment for such marriage.

According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for
himself or herself in contravention of Section 5(iii) may be punished with upto 15 days
imprisonment or with a fine upto Rs. 1000 or with both. Under the Child Marriage
Restraint Act, 1929, a male above the age of 25 years marrying a girl below 15 years is
punishable with upto 3 months imprisonment and is also liable to fine. The Child
Marriage Restraint (Amendment) Act 1978 has also raised the age of marriage of girl to
eighteen.
Clause (iv) Avoidance of degrees of prohibited relationship
The parties to marriage must not fall within the degree of prohibited relationship. This
relationship is defined under Section 3(g) of the Act.

According to Section 3(g) degree of prohibited relationship means when two persons
are related to each other in any of the following manners:

(i) By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the
Sapinda relationship which extends upto fifth degree in the line of father and third degree
in the line of the mother. The distinction of this category is that it extends even beyond
the Sapinda ascendants.

(ii) By affinity: If one is the husband or wife of the lineal ascendants or descendants of
the other. For example, father-in-law and daughter-in-law, mother-in-law and son-in-law,
step mother and step son or step father and step daughter are thus within the degrees of
prohibited relationship.

(iii) Wives of certain brother relations if one was the wife of:

(1) The brother, or

(2) The fathers brother, or

(3) The mothers brother, or

(4) The fathers fathers brother, or

(5) The mothers fathers brother, or

(6) The fathers mothers brother, or

(7) The mothers mothers brother.

(iv) Certain close relations if both are:

(1) Brother and sister, or

(2) Niece and uncle (paternal or maternal), or

(3) Nephew and aunt (paternal or maternal), or

(4) Children of a brother and a sister, or

(5) Children of two brothers, or

(6) Children of two sisters.

According to Section 11 of Hindu Marriage Act, a marriage in contravention of this

condition is void. It is also punishable under section 18(b) of the Act.

(i) A marries his adopted sister. This is not a valid marriage, as it falls within the
degrees of Prohibited relationship. (ii) A marries with the wife of Pre-deceased brother.
It is not a valid marriage as it falls within the degree of Prohibited relationship. (iii) A
marries his stepmothers sister. It is not a valid marriage, A is related to his step-mother
by half blood relationship.

Clause (v) Avoidance of sapinda relationship

According to the Dharmashastra the Sapinda relationship is very important in the matter
of marriage. According to Mitakshara Law of Marriage Pinda means body and therefore
those who are related by body or blood or consanguinity are sapindas among themselves.
The Hindu Marriage Act has adopted Mitakshara definition but has limited the extent of
Sapinda relationship to 5 degrees in line of ascent through the father and 3 degrees in the
line of ascent through the mother.

According to Section 3(f)(ii) two persons are said to be sapindas of each other if one is
a lineal ascendant of the other within the limits of sapindas relationship, or if they have a
common lineal ascendant to each of them.

Whereas Section 3(f)(i) states that sapinda relationship with reference to any person
extends as far as the third generation (inclusive) in the line of ascent through the mother,
and the fifth (inclusive) in the line of ascent through the father, the line being traced
upwards in each case from the person concerned, who is to be counted as the first
generation.
Rules for determining sapinda relations:

1. The relationship extends as far as the third generation in the line of ascent through the
mother in case of both the parties.

2. The relationship extends as far as the fifth generation in the line of ascent through the
father in case of both the parties.

3. Sapinda relationship may submit in case of both the parties through the father or in
case of both through the mother; or it may subsist in case of one of them through the
father and on case of the other through the mother.

4. The line is traced upwards in case of both the parties counting each of them as the first
generation; the generations in the line of ascent whether three or five are to be counted
inclusive of the persons concerned and the common ancestor or ancestress.

Sapinda relationship includes relationship by half or uterine blood as well as by full blood
and by adoption. It also includes both, legitimate and illegitimate blood relationship.

CEREMONIES FOR A HINDU MARRIAGE

It states that: - (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 sacred fire), the marriage
becomes complete and binding when the seventh step is taken.

Explanation: - A Hindu marriage can be termed as valid when the ceremonies and rites
are duly performed. Where such rites & ceremonies comprise of saptapadi the marriage is
complete and binding. Marriage among Hindus being a religious and sacred tie,
performance of certain ceremonies is still necessary for a valid marriage. There were
three important stages wherein certain ceremonies were to be performed. They were:

1. Betrothal or Sagai: it is a formal promise to give the girl in marriage.

2. Kanyadan: It is actual giving away of the girl in marriage by her father.

3. Saptapadi: It consisted in performing a ceremony of taking seven steps before the

sacred fire by the bride and the groom. The performance of Saptapadi marked the
completion of a marriage. It made the marriage irrevocable.

As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the

ceremonies of marriage; its non performance will invalidate the marriage. The
performance of vedic rights is not enough to solemnise the marriage.

Customary ceremonies may not include any one of the Shastric ceremonies including
Saptapadi. It may be totally non-religious ceremony or it may be very simple ceremony.
For instance, among santhals smearing of vermilion by bridegroom on the forehead of the
bride is the only essential ceremony.

Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the
bride or bridegroom, must be performed otherwise marriage will not be valid. No one can
innovate new ceremonies and a marriage performed with the innovated ceremonies and
rites is invalid. Hindu Marriage Act allows inter-caste marriages. But marriage between a
Hindu and a non Hindu is not permissible under Hindu Marriage Act and such a marriage
if performed in India, will be invalid. But foreign country such marriage is valid. Such
marriage is also valid in India, if performed under the Special Marriage Act, 1954.
Some Ceremonies commonly observed in most Hindu marriages:

1) Barat: The Bridegroom arrives for the wedding along with his family and friends in
a procession. They are received by the bride's family and friends.
2) Commencement of marriage: The priest commences the marriage under a canopy
that is specially decorated for the ceremony. The priest invokes blessings of God
for the couple to be married. The bride offers yogurt and honey to the groom as a
token of purity and sweetness. The bride greets the groom by placing a garland
around his neck and the groom reciprocates. Both are congratulated by guests. The
priest invokes the memory and blessings of forefathers of the bride and the groom
for this auspicious occasion.
3) Kanya Danam (giving away of the daughter): The bride accepts her change of
status from an unmarried woman to a wife by spreading turmeric powder on her
hands. Kana Danam is performed by the father (or uncle of guardian) of the bride
in presence of a large gathering that is invited to witness the wedding. The father
pours out a libation of sacred water symbolizing the giving away of the daughter to
the bride groom. The groom recites Vedic hymns to Kama, the God of love, for
pure love and blessings. As a condition for offering his daughter for marriage, the
father of the bride requests a promise from the groom for assisting the bride in
realizing the three ends: dharma, artha, and kama. The groom makes the promise
by repeating three times that he will not fail the bride in realizing dharma, artha
and kama.
4) Vivaah (Wedding): The bride and the bridegroom face each other, and the priest
ties their garments (the bride's saree to the groom's shirt) in a knot, symbolizing the
sacred union. The bride and the bridegroom garland each other and exchange the
rings. Next the nuptial fire, symbolizing the divine witness, and the sanctifier of
the sacrament, is installed and worshipped. Both the bride and the groom grasp
their hands together and pray to God for His blessings.
5) Paanigrahana or Hasta Milap (Hand Holding): The bridegroom stands facing west
and the bride sits in front of him facing east. He seizes her hand and recites Vedic
hymns for happiness, long life, and a lifelong relationship When the bridegroom
takes the bride's hand he says :

"O Sarasvati, gracious one,

rich in off spring,

you whom we hymm first of all the Gods,

 may you prosper this marriage.

"I seize your hand.

Samagree, consisting of crushed sandalwood, herbs, sugar, rice, ghee (clarified butter),
and twigs is offered into the sacred fire to seek God's blessings for the couple.
6) Laja Home (the oblation of parched Grain): Here the bride offers sacrifice of food
(poured into her hands by her brother or someone acting in her brother's behalf) to
the Gods for their blessings.

"This grain I spill. May it bring to me well-being and unite you to me. May Agni hear
us."

He then causes the bride to spill the grain into the fire, saying:
"This woman scattering grain into the fire, prays: Blessings on my husband. May my
relatives be prosperous.

7) Agni Parinaya (The circumambulation of the Fire): The bridegroom holds the bride
by the hand and both walk three times around the nuptial fire.
Both offer oblations and recite appropriate Vedic hymns to Gods for prosperity, good
fortune, and conjugal fidelity.

They touch each others heart and pray for union of their hearts and minds
While walking around the bridegroom repeats:

"First now they bring to you in bridal procession this Surya, guiding her steps in circular
motion. Return her now, O Agni, to her husband as rightful wife, with hope of children to
come."
Then the entire rite is repeated twice more, beginning with the rite of the fried grain.

At the fourth round she pours into the re all the fried grain from the mouth of the
winnowing basket saying: "To Bhaga svaha!"

8) Asmaarohana or shilarohana (Mounting the stones): At the end of each round of

nuptial fire, both the bride and the groom step on a stone and offer a prayer for
their mutual love to be firm and steadfast like the stone.

The bridegroom says the words while the bride stands up:

"Come, beautiful one."

And lets her put the tip of the right foot on the stone, saying:

"Come, step on the stone;

be strong like a stone.

Resist the enemies;

overcome those who attack you."

9) Saptapadi (Seven steps): This is the most important rite of the entire
ceremony. Here the bride and the bridegroom take seven steps together around teh
nuptial fire (Agni) and make the following seven promises to each other :

As per the Vedic rituals, the bridegroom sings the following :

With God as our guide, let us take :

the first step to nourish each other

the second step to grow together in strength

the third step to preserve our wealth

the fourth step to share our joys and sorrows

the fifth step to care for our children

the sixth step to be together forever

the seventh step to remain lifelong friends,

the perfect halves to make a perfect whole.

After the seventh step he makes her remain where she is and says:

"With seven steps we become friends. Let me reach your friendship. Let me not be
severed from your friendship. Let your friendship not be severed from me."

The Spatapadi ceremony ceremony concludes with a prayer that the union is
indissoluble. At the end of this ceremony, the bridegroom and bride become husband and
wife.
In some communities such as Gujarati, instead of seven, only four steps, signifying
Artha, Dharma, Kama and Moksha are taken.

10) Hradayasparsh: The bridegroom then comes over bride's right shoulder
touches her heart saying:

"I hold your heart in serving fellowship, your mind follows my mind. In my word you
rejoice with all your heart. You are joined to me by the Lord of all creatures."

11) Mangal Sutra Dharana: The Mangala suthra Dharana is the tying of the
thread containing the marks of the Vishnu or Shiva in the neck of the bride by the
groom.

12) Suhaag or Sindhoordana: The groom places sindhoor (red powder) on the
bride's hair symbolizing her as a married woman.
13) Aashirvad: The groom's parents bless the couple and offer cloth or flower to
the bride (now their daugher-in-law), symbolizing her joining of the groom's
family.

All those assembled shower flowers on the couple and bless them completing the
marriage.
 Baarat

Commencement of Marriage

Kanya Danam

Vivaaha (Wedding)

Paanigrahana

Laja Homa

Agni Parina

Asmarohan

Saptapadi

Hradayasparsha

Mangal Sutra Dharana

 Suhaag

Aashirvaad
Saptapadi is the most important rite (Sanskrit, Hindi: rt) of a Hindu marriage ceremony.
The word, Saptapadi means "Seven steps". After tying the Mangalsutra, the newly wed
couple take seven steps around the holy fire, that is called Saptapadi. After the seventh
step, the couple legally become husband and wife.

Image depicting saptpadi

o Step 1-May the first step lead to food that is both nourishing and pure.

o Step 2 -May the second step lead to strength (at the physical, emotional,
intellectual &spiritual levels).

o Step -3-May the third step lead to prosperity.

o Step-4-May the fourth step leads to all round happiness.

o Step-5-May the fifth step leads to progeny (noble & virtuous children).

o Step -6-May the sixth step lead to long life.

o Step-7-May the seventh step leads to bondage (through harmony).

Solemnisation of marriage (Section 7)

In connection with marriage the word Solemnise means to celebrate marriage with
proper ceremonies and in due form. Unless the marriage is celebrated or performed with
proper ceremonies and in the due form, it cannot be said to be solemnised.

Section 7 provides two kinds of ceremonies

(i) Customary Ceremonies and

(ii) Shastric Ceremonies.

As the rites and ceremonies to be observed are customary, they should possess all the
qualities which are necessary for the validity of a custom defined under section 3(a) of
the Act.

According to Section 3(a) the expression custom and usage signify any rule which
having been continuously and uniformly observed for a long time, has obtained the force
of law among Hindus in any local area, tribe, community, group or family: provided that
the rule is certain and not unreasonable or opposed to the public policy; and in the case of
a rule applicable only to a family it has not been discontinued by the family.

It is not necessary that the customary rites or ceremonies must be very very old. What
section 3(a) of Hindu Marriage Act requires is that for maturing into a custom a rule
should have been observed for a long time, continuously and uniformly.

When essential ceremonies consulting a Hindu marriage are not proved, the mere
issuance of certificate under Special Marriage Act cannot validate the marriage if the
marriage has not been solemnised as per the requirements of this Act.

The Act does not, however prescribe the ceremonies requisite for solemnisation of the
marriage but leaves it to the parties to choose a form of ceremonial marriage which is in
accordance with any custom or usage applicable to either party; and where the form
adopted includes the Saptapadithat is the taking of seven steps by the bridegroom and
the bride jointly before the sacred firemarriage becomes complete when the seventh step
is taken.

CASE STUDY

`Saptapadi' (taking seven steps around the sacred fire) was held to be an essential
ceremony for a valid marriage between two Hindus (governed by the Hindu Marriage
Act, 1955) only in cases where it was admitted by the parties that as per the form of
marriage applicable to them that was an essential ceremony,'' the Supreme Court has
ruled.

The bench held that the Madras High Court was right in holding that the appellant
committed the offence of ``bigamy'', and the matter was correctly remanded to the trial
court for awarding appropriate sentence.

Delivering the judgment, Mr. Justice K.G. Balakrishnan, held that the appellant-husband
had no such case that `saptapadi' was an essential ceremony for a valid marriage as per
the ``personal law'' applicable.

Therefore, there was a ``valid marriage'' (second marriage) on June 18, 1984 between the
appellant and second accused (a woman) in view of Section 7-A of the Hindu Marriage
Act - which was introduced by the Tamil Nadu Amendment Act, 1967 in the main 1955
Act (Central Act).

The bench found that it was proved that the appellant had committed the ``offence of
bigamy'' under Section 494 of the Indian Penal Code (IPC) as it (the second marriage)
was done during the subsistence of his earlier marriage (with the respondent-
complainant).

Dismissing an appeal from the appellant-husband against the High Court's verdict, the
bench, which included Mr. Justice D.P. Mohapatra, observed that ``Section 7-A of the
Act applies to any marriage between two Hindus solemnised in the presence of relatives,
friends and other persons'' and ``the main thrust of this provision is that the presence of a
priest is not necessary for the performance of a valid marriage'' and ``parties can enter
into a marriage in the presence of relatives or friends or other persons and each party to
the marriage should declare in the language understood by the parties that each takes
other to be his wife or, as the case may be, her husband, and the marriage would be
completed by a simple ceremony requiring the parties to the marriage to garland each
other or put a ring on any finger of the other or tie a thali.''

``Any of these ceremonies, namely garlanding each other or putting a ring on any finger
of the other or tying a thali would be sufficient to complete a valid marriage,'' the bench
added.
The appellant married the respondent (first wife) on September 6, 1970. Three children
were born from that wedlock.

The respondent alleged that the appellant started ill-treating her and on many occasions
she was physically tortured.

Therefore, she (respondent) left her marital home and started staying with her parents.
While so, the respondent came to know that the appellant had entered into a (second)
marriage with another woman on June 18, 1984 and that the marriage was performed in a
marriage hall in Tamil Nadu.

The respondent then filed a criminal complaint before the Metropolitan Magistrate (trial
court) against the appellant for offence of ``bigamy''. The trial court held that an
important ceremony, namely `saptapadi' had not been performed and therefore, the
``second marriage'' (of the appellant with the second accused) was not a valid marriage
and no offence of ``bigamy'' was committed by the appellant.

The High Court, on an appeal from the respondent-first wife, reversed the trial court's
decision and held that the parties were governed by Section 7-A of the Hindu Marriage
Act and that there was a ``valid marriage'' between the appellant and the second accused
and therefore, the appellant was guilty of the offence of ``bigamy''.

CONCLUSION

Hindu marriage as an institution of family and soci ety has undergone quite a
number of changes in recent times. The position of womenchanged and she is
not as dependent or subservient as her ancestors were. TheHindu law books
have now given way to the principles of democracy and belief in theequality
of genders. Compared to the marriages in the western world, Hindu
marriageshave a greater stability.

The essential rites which may, however, be said to be the requirement common in all
ceremonial marriages are: (i) invocation before the sacred fire; and (ii) saptapadi.

The ceremonies and rites for Hindu marriages are not laid down in the Dharmashastras.
These are laid down in the Grihya sutras. The Grihya-sutras prescribe very elaborate rites
and ceremonies for marriage. The ceremonial day of the solemnization of the marriage
begins with the vriddhi sraddha. The ceremony of panigrahana is followed by the
ceremony of agniparnayana. The saptpadi is the most material of all the nuptial rites, as
marriage becomes complete and irrevocable on the completion of the seventh step.
According to Manu : "The nuptial texts are a certain rule in regard to wed-lock ; and the
bridal contract is known by the learned to be complete and irrevocable on the seventh
step of the married pair, hand in hand, after those texts have been pronounced. Apart
from the mentioned ceremonies, judicial pronouncements have been towards one
important ceremony that is saptapadi, though in some community this has been
dispensed.

To conclude our final wording as we may take reference from the case S. Nagalingam vs
Sivagami in which the judgment was passed on 31 August, 2001 by The K.G.
BALAKRISHNAN on section 7 of the Hindu Marriage Act 1955.
R a i h a n :

Hindu Marriage

Vs.The State
[35 DLR 160 (1983)]
In that case, appellant brought a case on appeal against the decision of the
assistantsession judge, second court, Mymensingh under section 493 of the Penal Code,
1860sentenced to suffer rigorous imprisonment for five years and a thousand taka fine.
Prosecutioncase Kalpana Rani, age 17/18 years old, was induced into believing that she
was married tothe appellant on the ground that they secretly exchanged garlands and
thereby she consentedto cohabit with the appellant and became pregnant. The accused
appellant pleaded not guiltyto deceit by saying that various facts were false or fabricated.
The learned judges opined that Kalpana Rani was matured enough to understand that
various rites i.e. viva-homa and Saptapadi need to be performed which were not
performed. Also according to the judges it iscustomarily among Bangladesh Hindus of
all castes that some relations remain presence andthe bride is made to put on new clause
bangles and vermillian mark on forehead. KalpanaRani couldnt have believed according
to the judges that while by mere exchange of garlandsthe accused had become her
lawfully married husband. The Court acquitted the appellantfrom the charge of deceit.

Criticism:
The decision of the High Court, however, can be criticized from various point of view:
First
vide Abed Ali Vs. The State [34 DLR 366 (1982)];
Second,
no attempt to find out the customary practices;
Third
there could have been Gandharva marriage;
Fourth
, there could have been presumption of marriage

P r e s u m p t i o n o f M a r r i a g e
Where it is proved that a marriage was performed in fact, the Court will presume that 1.

it is valid in law;2.

the necessary ceremonies has been performed; and3.

it continued during the life time of either party.

The presumption of law is that a marriage has been according to the approved form.In
the case of

A b d u r R a h m a n V s . U p e n d r a
N a r a y a n M a j u m d a r it has held that thereis a presumption of marriage
rather than anything else.
When a man and woman are proved to live together as husband and wife the lawpresume
unless contrary is clearly proved that they are living together as a consequence of avalid
marriage.

in the case of U t p a l K a n t i D a s V s . M o n j u R a n i D a s
, it has held that once a celebration of a marriage in fact is established there shall be a
presumption of there being a marriage in lawand observance of essential ceremonies

P r o h i b i t e d D e g r e e s i n M a r r i a g e :
R a i h a n :

Hindu Marriage

No marriage is valid if it is made between persons related to each other within theprohibited degrees
unless such marriage is sanctioned by custom.
The following are the rules regarding prohibited degrees
1 Before the Hindu Marriage Disabilities RemovalAct, 1946 a marriagebetween parties belonging to
the same gotra or provara was invalid. After thisAct such marriage was validated.

2) A man cannot marry a girl of same gotra or pravara. This rule does not apply tosudra as the sudras
have got no gotra of their own.
3) A man cannot marry a girl who is his Sapinda According to the
Bengal School ,a man cannot marry a girl (i) if she is within 7th degree in descent from his father or
from one of his fathers six ancestors in the male line;
(ii)if she is within the 5 th degree in descent from his maternal grandfather orfrom one of his maternal
grandfathers four ancestors in the male line;
(iii) if she is within the 7th degree in descent from his fathers three technical bandhus or from one of
their six ancestors through whom the girl isrelated to him;
(iv) if she is within the 5 th degree in descent from his mothers three technical bandhus or from one of
their four ancestors through whom the girl isrelated to him.
Exception:
A girl, though related within the degrees mentioned above, may betaken in marriage if she is removed
by three gotras from him
4) Relationship by marriage is not by itself an impediment to marriage. Thus a manmay marry the
daughter of her wifes sister.

P r o s p e c t i v e C o d i f i c a t i o n o f
H i n d u L a w o f M a r r i a g e
Codification of marriage under Hindu law is urgently desirable in this Country withthe change of time
and socio-economic condition of this country. The time has come tocheaper the ascertainment of law
and to minimize the inconveniences and complications of personal law of Hindus in Bangladesh, by the
enactment of a Code of Hindu law, applicableto whole of Bangladesh which is now governed by two
schools, i.e. Mitakshara andDayabhaga.
It is now desirous that the condition which has arisen in matters of socio-economicneeds, made it
imperative that the polygamy should not be permitted. There is no justification
1. S a g o t r a :
Two persons are Sagotra i.e. of the same gotra or family, if both of them are descendantsin the male line
from the Rishi or Sage after whose name he is called, however distant either of themmay be from the
common ancestor.
2. S a m a n a P r a v a r a :
Two persons are Samana-Pravara i.e. of the same Pravara, if the yaredescendents in the male line of the
three paternal ancestors of the founder of a gotra.
3. S a p i n d a :
The literal meaning of a term Sapinda means from the same pindo. There is a fundamentaldifference
regarding the meaning of the term in two schools.
According to Mitakshara, pindo means body and therefore those who are related by body,blood,
consenquinity are Sapinda of each other.
According to the Bengal school, pindo means ball of rice which is offered to the deceasedperson by his
relatives at his Sraddha ceremonies; therefore Sapindas are persons who are competent tooffer pindo to
him and those to whom he is competent to offer pindo.