CONDITIONS OF MARRIAGE

&
FAMILY LAW - I
THE DOCTRINE OF FACTUM VALET
 INTRODUCTION

The conditions of marriage may be explained with

reference to:
A. Conditions under Ancient text (Old Law)
B. Conditions under Hindu Marriage Act, 1955 (codified
law)
C. Additional Conditions: -
1. Requirement of marriage ceremonies,
2. Requirement for registration of marriage,
3. Free consent of both the parties to the marriage.
 A. CONDITIONS UNDER ANCIENT
TEXT (OLD LAW)

Under old Hindu law, three conditions were required

for a valid marriage. These were:

1. Identity of caste
2. Parties should be beyond the prohibited degrees of
Relationship
3. Proper performance of ceremonies of marriage
 B. CONDITIONS FOR A HINDU MARRIAGE

Section 5 of the Hindu Marriage Act specifically deals with

conditions for a hindu marriage. The following are the
necessary conditions for a valid Hindu Marriage:

1. Monogamy
2. Mental Capacity
3. Age of the parties
4. Prohibited Degrees of Relationship
5. Prohibition of Sapinda Relationship
1. Monogamy - Section 5(i) of the Act prohibits polygamy
and polyandry. It says that neither party should have a
living spouse at the time of the marriage. Failure of this
condition would make the marriage null and void under
section 11 of the Act. Apart from this, the party would be
liable for bigamy under sections 494 and 495 of the Indian
Penal Code, 1860 and section 17 of the Hindu Marriage
Act, 1955.

Offence of Bigamy would be constituted only when the

first marriage is solemnized according to proper ceremonies
and rituals. This was held by court in cases like Dr. A.N.
Mukerji vs State [AIR 1969 All 489] and Santi Deb
Berma vs Smt. Kanchan Prava Devi [AIR 1991 SC 816].
2. Mental Capacity: This clause was inserted in the Act through The
Marriage Laws (Amendment) Act, 1976. As per the clause, three
conditions must be fulfilled as per section 5(ii) of the Act for a
valid Hindu Marriage. The conditions are: neither party, at the time
of marriage (a) is incapable of giving a valid consent due to his/her
unsound mind (b) 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 (c) has been subjected to recurrent attacks
of insanity. If any of these conditions is not fulfilled then marriage
is voidable under section 12(1)(b) of the Act.

3. Age of the parties: At the time of enactment of the Act, the legal
age for the marriage of boy and girl was 18 years and 15 years
respectively. However, later on The Marriage Laws (Amendment)
Act, 1976, changed the minimum age to 21 years and 18 years
respectively.
4. Prohibited Degrees of Relationship: Section 5(iv) of the Act prohibits
solemnization of marriage of persons falling within prohibited degree of
relationship. If any marriage is solemnized under this then the marriage
would be void under section 11 of the act and violation of this clause
would be punishable under section 18(b) of the act. Section 3(g) defined
persons falling within prohibited degree of relationship.

In Shakuntala Devi vs Amar Nath [AIR 1982 P H 221], Punjab and

Haryana High Court held that two persons can marry within the prohibited
relationship but there should be a proof of established custom i.e. very old
and beyond human memory.

5. Prohibition of Sapinda Relationship: Section 5(v) of the Act, marriage

between the persons having sapinda relationship is prohibited unless there
is a custom which allows them to do so. Any marriage solemnized under
this would be void under section 11 of the Act and violation of this clause
would be punishable under section 18(b) of the act. Section 3(f) defined
persons falling under sapinda relationship.
 C. ADDITIONAL CONDITIONS

CEREMONIES FOR A HINDU MARRIAGE

Section 7 –

(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.

 Section 7 of the Hindu marriage act 1955 states the solemnization of the Hindu
marriage, a Hindu marriage may be performed by all the ceremonies and rituals
of both the party or either anyone. It is concerned with the Saptapadi which
means that taking seven rounds around the fire with their partner; after its
completion marriage becomes complete and binding.

 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.
 REGISTRATION OF HINDU MARRIAGES

Section 8 of HMA lays down that state government may make a

rule for the keeping of marriage register and for compulsory
entry of all or some special marriages therein. Section 8(5) of
HMA especially lays down that failure to register a Hindu
marriage shall in no way affect its validity.

Under the HMA marriage between two Hindus can only be

registered. When only one party to the marriage is Hindu then
such marriage shall be registered under the Special Marriage Act.

Marriage without the performance of valid ceremonies is invalid

therefore its registration is also null and void. Mere registration
does not validate an otherwise invalid marriage.
 In Smt. Seema v. Ashwani Kumar AIR 2006 SC 1158,
[2006] 2 SCC 578, The Hon’ble Supreme Court held the
mandatorily registration of marriages of all the religion in
their respective States, where the marriage was solemnized.
The Supreme Court made an observation that in large number
of matrimonial suits over the years, unscrupulous people
denied the existence of marriage by taking the advantage of
unavailability of any official record of solemnization of
marriage which leads to abeyance of proceedings.

A division bench consisting of Justices Arijit Pasayat and S

H Kapadia held the registration of marriages would be a step
in right direction and consequently issued a directive to the
state governments and union territories to take measures in
the direction of compulsory registration of marriages within a
span of three months.
 DOCTRINE OF FACTUM VALET

A fact cannot be altered by a hundred texts. The texts referred to are directory texts,
as opposed to mandatory texts.

 The maxim, therefore, means that if a fact is accomplished, i.e., if an act is done and
finally completed, although it may contravene a hundred directory texts, the fact will
nevertheless stand, and the act done will be deemed to be legal and binding.

 Thecorresponding maxim of the Roman Civil Law is factum valet quod fieri non
debuit, which literally means that what ought not to be done become valid when
done.

 However, the doctrine applies only to directory, and not mandatory, texts. Thus, the
principle of factum valet is ineffectual to cure an act done in contravention of a
mandatory text. Thus, before the passing of the Hindu Marriage Act, the law
regulating Hindu marriages was uncodified and governed mainly by the ancient texts.
In those circumstances, it was held that the texts which prescribe rules for the
guardian’s consent to the marriage are merely directory, and if a marriage was once
performed and solemnised, it would be valid, although it may have taken place
without the guardian’s consent.
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