Marriage

Sanjay Mukherjee,
Advocate

PART 1
[Class Notes for PGDCC – 2022 batch]

Marriage and all aspects relating to marriage are within the domain of
personal law.

Marriage is not defined in any statute. It is a union between a man and a

woman. Marriage is heterosexual (Homosexual union is not yet recognized
socially or in law as marriage).

The purpose of marriage:

As is stated in Christianity are as under:
a) For procreation of Children
b) For remedy against sin and avoiding fornication.
c) For development of society and ensure help and comfort that one gets
from the other.

According to Hindu Personal Law – marriage is a holy union for the

performance of religious duties. In Hindu custom – marriage is sacramental.
It is not a contract.

According to Mohameddan Law – marriage is a Civil Contract and the

purpose and object is procreation and legalizing the children born out of the
said union.

Three important elements of common law marriage:

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a) Agreement or willingness to be married and remain married.

b) Continuous living together as Husband and Wife
c) Holding out to the public that the couple is Husband and Wife.
Marriage therefore involves legal requirements of formality, publicity and
exclusivity and all legal consequences flow out of that relationship.

Types of Marriage:
It is possible to think of four different types of marriage:
a) Promiscuity – Unrestricted sexual relationship
b) Group Marriage – Several men married to several women.
c) Polygamy – i) Polyandry – One woman married to several men.
ii) Polygyny – One man married to several women.
d) Monogamy – One man married to one woman.
In modern times only Monogamy is recognized in almost all human
societies.
Gay union and Lesbian Union – even though the criminality in the act has
been done away with – however such union has not been recognized as
marriage.

India is a multi-racial and multi-religious nation. There are six marriage

laws in India now.
a) Hindu Marriage Act,
b) Special Marriage Act,
c) Christian Marriage and Indian Divorce Act,
d) Parsi Marriage and Divorce Act,
e) Foreign Marriage Act
f) Jammu & Kashmir Marriage Act and (
g) Muslim Marriage Law.
Of these, first six are statute-made laws, i.e. these are the Acts passed by
the Parliament.
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Muslim marriage is not governed by any Act, but is governed by dictates of

Holy Quran and ‘Shariats’.
The Hindu Marriage Act, Parsi Marriage Act and Christian Marriage Act are
personal marriage laws, but Special Marriage act is secular marriage law.
Any two persons can marry under Special Marriage Act, 1954 irrespective
of the religion to which the contracting parties belong. Moreover, marriage
solemnized in any other form, i.e. whether under Hindu Marriage Act,
Muslim Marriage Law, Parsi Marriage Act and Christian Marriage Act can
be registered under chapter III of the Special Marriage Act, 1954 and if the
marriage solemnized in any other form (i.e. Hindu, Muslim, Parsi and
Christian form), is registered under Special Marriage Act, such marriage
shall be deemed to have been solemnized under the Special Marriage Act,
1954 and any children born to the parties before such registration under
the Special Marriage Act, shall be deemed to be legitimate

HINDU MARRIAGE:
Hindu marriage is governed by Hindu Marriage Act, 1955 and it applies to
any person who is Hindu by religion in any of its forms of development.
Section 1 of the Hindu Marriage Act contemplates application of the Act
to Hindu by Religion in any of its forms or Hindu within the extended
meaning i.e – Buddhista, Jaina or Sikh and applies to all such persons
domiciled in India who are not Muslims, Christians, Parsi or Jew.

Forms of Hindu Marriage:

In Sanatan Hindu Law, which is not a statute law, eight forms of marriage
are mentioned. They are:
i) Brahmha Rite – In this form the daughter, after decking her with
costly garments and honouring her with presents of jewels is married
to a man learned in Veda and of good conduct.
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ii) Daiva Rite – In this form, marriage of a daughter is given to a priest

who officiates at a sacrifice during the course of its performance.
Costly ornaments and garments are given in this marriage by the
father of the bride.
iii) Arsha Rite – In this form, father gives away the daughter to the
bridegroom after receiving a cow and a bull or two pairs of cows and
bulls.
iv) Prajapatya Rite – In this form, father makes ‘sarnpradan’ (gift) of the
daughter to the bridegroom and addresses the couple “May both of
you perform together your duties.”
v) Asura Rite – In this form, the bridegroom gives as much wealth as he
can to the bride and to the kinsmen.
vi) Gandharva Rite - This is a voluntary union of the maiden and her
lover – popularly called ‘Love Marriage’.
vii) Rakhasa Rite - In this form, there occurs forcible abduction of the
maiden by the bridegroom.
viii) Paisacha Rite – In this form, a man seduces by stealth a girl who is
sleeping, intoxicated or unconscious. It is most base and sinful.
The above were the eight methods used for taking wives, but it does not
mean that these were eight kinds of marriage. In Smriti, however, only (i)
Brahma, (ii) Daiva, (III) Arsha and (iv) Prajapatya rites were approved.

Before the Hindu Marriage Act, 1955 was passed, Hindus could take any
number of wives at a time without any limit (Polygamy).

Essential conditions of Hindu Marriage (Section 5)

The marriage may be solemnized between any two Hindus if the following
conditions are satisfied:
1) Neither party has a spouse living at the time of marriage.
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2) Neither party is incapable of giving valid consent to it in consequence

of unsoundness of mind at the time of marriage.
3) Though capable of giving valid consent, has been suffering from
mental disorder which is of such kind and to such an extent as to be
unfit for marriage and procreation of children.
4) Neither party is subject to recurrent attack of insanity.
5) Bridegroom has completed the age of 21 years and the bride of 18
years at the time of marriage. This is directory and mandatory.

[Note: The violation of this condition does not render the marriage
invalid. Under Section 18 of The Hindu Marriage Act violation of
Section 5 (iii) is punishable with rigorous imprisonment of 02 years o
with fin of Rs 1,00,000/- or both. Supreme Court also held that
marriage between the minors under this Act does not render the
marriage Void – it is only Voidable. ]
6) The parties are not within the degrees of prohibited relationship,
unless custom governing each of them permits of a marriage between
the two.
7) The parties are not sapindas of each other, unless custom governing
each of them permits of a marriage between the two.

Degree of prohibited relationship [Section 3(g)]

Two persons are said to be within the degree of prohibited relationship if :
1) One is lineal ascendant of the other or if one is the wife or husband of
lineal ascendant or descendant of the other.
2) One is the wife of the brother or of father’s or mother’s brother or
grandfather’s or grandmother’s brother of the other.
3) Two are brother and sister, uncle and niece, aunt and nephew,
children of brother and sister or of two brothers or sisters, but this is
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subject to custom and usage. As for example: In Tamilnadu, marriage

between maternal uncle and niece is permitted.

Sapinda Relationship [Section 3(f)]

Sapinda relationship extends to any person upto the third generation in the
line of ascend through mother and fifth generation in the line of ascend
through father. But this is also subject to custom and usage.
In the Special Marriage Act, Parsi Marriage Act and Christian Marriage Act
conditions of marriage are similar to those of Hindu Marriage Act except the
condition of sapinda relationship.

Under Christian Marriage Act any person professing the Christian religion is
a Christian. So, the person, though not baptized, can be a Christian under
the Christian Marriage Act, and can marry under the said Act.

Marriage between close relations is also not recognized in Christian

marriage and Parsi marriage and also in Muslim laws. This is known as
rule of consanguinity. In Parsi Marriage Act, Parsi means Zoroastrian.

.
Essential Ceremonies of Marriage

Essential ceremonies under Hindu Marriage Act (Section 7 of the Hindu

Marriage Act) :
1. The Hindu marriage may be solemnized in accordance with the
customary rites and ceremonies by which the parties are governed.
2. Where such rites include ‘saptapadi’ marriage becomes complete when
7th step is taken. Saptapadi means taking of seven steps by the
bridegroom and the bride jointly before the sacred fire.
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3. Ordinarily, saptapadi is prevalent among the upper cast Hindus.

Section 7A provides an exception to the marriage among some
communities in Tamilnadu. Special provision has also been made
regarding solemnization of the marriage in Tamilnadu and
Pooduchery.

Customary marriage is recognized under Hindu Marriage Act.

Custom must be prevalent from time immemorial and recognized and
adopted by the community and is continuously followed and there is
certainty about it. Customs must be pleaded and proved. But customs
must not be against the public policy and unreasonable.
Examples of Customary Marriage reognised under Hindu Law:
Among the Rajputs who are high cast hindus, if all essential ceremonies are
duly performed upto ‘sindoor daan’ then marriage is complete. Among the
Rajput kshatriyas, there is a katar form of marriage. In this form the bride
is given to the bridegroom’s sword or dagger in place of the bridegroom.
Homa and saptapadi ceremony is not essential in Reddy community in
Telengana.
In Mithila school of Hindu law ‘gandharba’ form of marriage was considered
valid.
Among the Bairagis, marriage is performed by kanthi badal.

Registration:
It may be mentioned here that registration of marriage solemnized under
Hindu Marriage Act is not compulsory as yet. So certificate of registration
under Hindu Marriage Act may be challenged on the ground that no
marriage was solemnized under Hindu Marriage Act and no essential
ceremonies were performed as required under the said Act and hence,
certificate may be cancelled.
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Registration of Marriage (Section 8 of The Hindu Marriage Act 1955):

AIR 2006 (S. C) 1155 (Shuma Vs. Aswim Kumar)
Registration of Marriage of all persons, citizens of India belonging to various
religious, should be made compulsorily in their respective states, where
marriage is solemnized.
Benefits of Registration of Marriage:-
National Commission women says the following benefits of marriage
registration
1. Prevention of child marriage.
2. Check of bigamy/polygamy
3. Help women exercise their matrimonial rights.
4. Enable women to claim inheritance.
5. Deter men from deserting their wives.
6. Help vital statistics under LIST 111 Clause 30
However the non-registration of marriage does not render the marriage
invalid.

Essential ceremonies under Special Marriage Act, 1954 :

One month’s notice must be given by the parties intending to marry and
after expiry of 30 days from the date of publication of such notice, the
parties must go to the Marriage Officer appointed under Special Marriage
Act and fill up the prescribed form and make a declaration in presence of
three witnesses that –
“I (A) take thee (B) to be my lawful wife (or husband)”. The parties shall sign
the declaration and three witnesses shall also sign it and then the Marriage
Registrar will sign it. Issue of marriage registration certificate is the
conclusive proof of solemnization of marriage under the Special Marriage
Act, 1954. It can only be challenged on the ground of fraud,
misrepresentation etc.
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Essential ceremonies under Parsi Marriage Act :

Under Parsi Marriage Act, marriage is solemnized according to the Parsi
form of ceremony called ‘Ashirvad’ by a priest in presence of two Parsi
witnesses excluding the priest. Every marriage under Parsi Marriage Act,
immediately on solemnization of the marriage, be certified by the officiating
priest. This certificate shall be signed by the priest, contracting parties and
two witnesses present at the marriage and the priest shall send this
certificate to the registrar of the place where the marriage was solemnized
and such registrar is appointed by the Chief Justice of the High Court.

Essential ceremonies under Christian Marriage Act :

Under Christian Marriage Act, marriage may be solemnized in any church
by the minister according to the rules and rites of the church and the
minister is the person who has received episcopal ordination. Or by any
minister of religion licensed under the Christian Marriage Act, or by the
marriage registrar appointed under the Christian Marriage Act.

Essential ceremonies and Conditions under Foreign Marriage Act

A marriage between parties one of whom at least is a citizen of India may be
solemnized under the Foreign Marriage Act before a marriage office in a
foreign country and the following conditions are to be fulfilled –
a) Neither party has spouse living
b) Neither party is an idiot or lunatic.
c) The bridegroom has completed the age of twenty one years and bride
the age of eighteen years at the time of marriage.
d) The parties are not within the degrees of prohibited relationship.
Such marriage officer may be appointed by the Central government by
notification in the official gazette, such as diplomatic or consular
officers in the Indian missions abroad.
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When a marriage is intended to be solemnized under this Act, the parties to

the marriage shall give notice the of in writing in the prescribed form to the
marriage office of the district in which at least one of the parties to the
marriage has resided for a period of not less than 30 days immediately
preceding the date on which such notice is given and it shall be declared
that the party has so resided.

Such marriage however shall not be in contravention of local laws and

marriage shall be registered before the marriage officer upon fulfilling the
conditions set forth in Foreign Marriage act.

Hindu marriage, Christian marriage and Parsi marriage are sacramental,

but the marriage under the Special Marriage Act, 1954 is contractual, so is
also the Muslim marriage.

Temple marriage is not recognized.

PRESUMPTION OF MARRIAGE
If a man and woman live together as Husband and wife for pretty long time
and relations and society also recognize them as Husband and Wife, but
there is no definite proof of solemnization of marriage, it shall be presumed
that the marriage was duly solemnized. This presumption is under Section
50 and Section 114 of The Evidence Act.

MUSLIM MARRIAGE

The word “Nikkah” is Arabian word and means marriage. Marriage/'Nikah'

according to Muslim Law is a contract underlying a permanent relationship
based on mutual consent.
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Muslim is a person who belives in one God. In India mainly there are two
classes of Muslims – one is guided by Sunni law and another is Shia Law.
The concept of 'marriage' among Muslims from the very beginning itself is
regarded as a contract. Muslim marriage has been defined as a civil contract
for the purpose of legalizing sexual intercourse and procreation of children.
It is not a sacrament but a contract, though solemnized generally with the
recitation of certain verses from the Holy Quran. Muslim law does not
prescribe any religious service essential for solemnization. Justice Krishna
Iyer in 'Islamic Law in Modern India' considered the concept of Muslim
marriage and stated that "in its legal connotation, Muslim marriage is
essentially a contract, though marriage as a social institution is regarded
solemn all over the civilized world, including the Muslims.”
Hence in substance marriage under Muslim law is for recreation and
procreation. Under Sunni Law either two major male witnesses or One male
along with two female witnesses are necessary and all of them must be
major. There should be an offer and acceptance of marriage through Vakil
and everything must be at one sitting.
No prescribed form of Contract is there. No Religious Ceremonies are
required.
“Dower”(Mehr) means a sum which is payable by the Husband to the wife on
marriage – it may be prompt or deferred. This “Dower” system is for the
protection of women. In Shia Law, however no witnesses are necessary.
Essential Feature:
1. A Muslim marriage requires proposal (Ijab) from one party and
acceptance (Qubul) from the other as is required for a contract.
Moreover there can be no marriage without free consent and such
consent should not be obtained by means of coercion, fraud or undue
influence.
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2. Just as in case of contract, entered by a guardian, on attaining

majority, so can a marriage contract in Muslim Law, be set aside by a
minor on attaining the age of puberty.
3. The parties to a Muslim marriage may enter into any ante-nuptial or
postnuptial agreement which is enforceable by law provided it is
reasonable and not opposed to the policy of Islam. Same is the case
with a contract.
4. The terms of a marriage contract may also be altered within legal
limits to suit individual cases.
5. Although discouraged both by the holy Quran and Hadith, yet like any
other contract, there is also provision for the breach of marriage
contract.
Parties to marriage must have Capacity of entering into a contract. Muslim
who is of sound mind and who has attained the Puberty may enter into a
contract of marriage.
“Puberty” means the age at which a person becomes capable of performing
Sexual Intercourse and procreating children. “Puberty” and “majority” are in
the Muslim Law one and same. Privy Council has held that in “Shia Case”
majority in the case of girl is attained in the age of 09 years. Muslim law in
respect of marriage / dower and divorce has entirely been left untouched by
the Indian Majority Act.
In Muslim law marriage by a minor without consent by Guardian is invalid
unless it is ratified on the attainment of majority. A boy or girl who has
attained Puberty is at liberty to marry any one.
Who are the Guardians in Muslim Marriage?
1. Father
2. Paternal Grandfather – how high so ever
3. Brother
4. Other male relations of father’s side
5. Mother
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6. Maternal Uncle / aunt and other maternal relations without the

prohibited degrees.
If marriage of a minor is contracted by an unauthorized person – such
marriage is invalid. But if the parties to the marriage – upon attaining the
age of puberty then it is valid.
Prophet said that a Muslim can take more than one wife at a time provided
Husband can love and protect both – but not more than four at a time.
However Polyandry is not recognized in Muslim law.
Consummation of marriage is must in a Muslim Law for completion of the
marriage.

General Note:
Marriage is a very important institution because the basis of the family is
the marriage and several families constitute a society. The survival and
enrichment of communities and nations remains integrally connected with
the institution of marriage.