hindu marriage.pptx

HINDU MARRIAGE
CONCEPT AND NATURE

Marriage is an important social institution. It is a relationship, which is
socially approved. The relationship is defined and sanctioned by custom
and law. Children born of marriage are consider the legitimate offspring of
the married couple. This legitimacy is important in the matter of
inheritance and succession. Thus marriage is not only a means of sexual. It
is more or less a universal social institution in India. No society gives
absolute freedom to its members to select their life partners. Endogamy
and exogamy are the two main rules that marital choice. Both a man a
woman are regarded incomplete without marriage.

There is no definition which adequately covers all types of human marriage. It has given a
number of definitions and explanations among which the following may be noted.
Edward westmark in his ‘History of Marriage’ defines Marriage as “the more or less
durable connection between male and female lasting beyond the mere act of propagation
till after the birth of offspring”.
Malinowski says that marriage is a “contract for the production and maintenance of
children”.
According to Robert H. Lowie, “Marriage is a relatively permanent bond between
permissible mates”.
Alfred Mc Clung Lee writes “Marriage is the public joining together, under socially specified
regulations of a man and women as husband and wife”.

Marriage is one of the most important institutions of human society. “Marriage is a socially
sanctioned union of male and female for the purpose of establishing
(a) household
(b) entering into sex relations
(c) procreating and
(d) providing care for the offspring.
Marriage is an exclusive union between man and a woman and it implies that they will live
with each other in harmony and in mutual confidence. Thus, adultery, cruelty and desertion
are destructive of the very foundations of marriage necessitating social as well as legal
intervention.

MARRIAGE
Marriage is the ‘nucleus’ of the family. It is a process, by which the physical union of a man and woman is
legalised and thereby regulates the social life.
According to Tomlin’s Law Dictionary – “marriage is a civil and religious contract, whereby a man is joined and
united to a woman, for the purpose of civilized society.
Hindus consider marriage as a necessary sanskar and sacramental union – a sacrosanct, permanent, indissoluble
and eternal union. A man or woman without spouse (a lawfully wedded wife or husband) enjoys no social status
and is looked down in the society.
According to Earnest R. Groves, “marriage is public confession and legal registration of an adventure in
fellowship”.
In the words of Lundberg “marriage consists of the rules and regulations which defines the rights, duties and
privileges of husband and wife, with respect to each other”.

Malinowksi defines “marriage is a contract for the production and maintenance of children.”
According to Vedas, a marriage is “the union of flesh with flesh and bone with bone’’. It is the union which
Vedas regard indissoluble. So long as the husband is alive the wife is enjoined to regard him as her God,
similarly the wife is declared to be half the body of her husband (Ardhangini) who shares with him equally the
fruits of all his acts whether they be good or bad.
According Apasthamba “Marriage was meant for doing good deeds and for attainment of moksha.
One of the characteristic features of a Hindu Marriage it that it was more connected with the performance of
religious duties and betting of a son, who enables a man to get deliverance from the sufferings of Hell.
Hindu Marriage joins two individuals for life, so that they can pursue dharma (duty), artha (possessions), kama
(physical desires), and moksa (ultimate spiritual release) together.

OBJECT OF THE MARRIAGE :
According to Mitakshara Law, marriage has three objects namely
(i) Dharma Sampatti :
The main object of the marriage is ‘Dharma’. As per Vedas, the highest act
of dharma lies in the performance of Yagnas (i.e., Yagkya) and Sacrifices.
Shastras do not allow a wife-less man to perform Yagnas or Sacrifices or
anniversaries of the ancestors. Moreover, there must be a wife for
honouring the guests, which is an act of Dharma. In those days, honouring
the guest was regarded as Godliness. The sacrifice of the only son by
Bhakta Siriyala in honouring the Guest is the best example.

OBJECT OF THE MARRIAGE :
(ii) Praja Sampatti :
Marriage is one of the essential sanskaras to have a son. The son by performing
the religious ceremonies fulfils the object of Praja Sampatti. He can avoid the
torturing of the soul of the parted ancestors i.e., father/grandfather/great
grandfather, in the hell called ‘put’, by performing the obsiquies. (Obsiquies :
funeral rites and solemnities).Therefore, the son is called ‘Putra’, a means of
salvation.
(iii) Rati Sukham :
The third object is ‘Rati Sukham’ , the pleasure of sexual enjoyment. It is for the
fulfillment of biological needs.

NATURE OF HINDU MARRIAGE
“Hindu Marriage is both a sacrament”, due to the the following reasons :
(i) It is a permanent or indissoluble union no way to break it.
(ii) It is an eternal union even continued after death,
(iii) It is a holy union i.e sanskar
GOPAL KISHAN V. MITHILESH KUMARI [AIR 1979 ALL 316]
In this case the Allahabad High court observed ‘the institution of
matrimony under the hindu Law is a sacrament, and not a mere betrothal.
Its context is religious. It is regarded as part of life of the soul.

CASE LAW
SHIVANANDY V/S BHAGAWANTHYMMA [AIR 1962 MAD 20]
The court observed that marriage is the binding for life because the marriage rite
completed by saptapadi before the consecrated fire created a religious tie, and a
religious tie when once created cannot be un-tied. It is not a mere contract in which a
consenting mind is indispensable.

NATURE OF HINDU MARRIAGE
The question that Hindu Marriage is a sacrament and sacrosanct or contract can be answered in the
affirmative with reference to its position in
(A) Ancient Texts
(B) Modern Law
Ancient Texts :
A Hindu Marriage is a sacrament and hence, for a Hindu, it is a sankara (religious rites and sacrament).
Shabar Swamy defined the term ‘sanskara’ as an ‘act by which a thing becomes fit for a certain purpose
viz.,dharma sampatti, praja sampatti, performance of sacrifice, rathi sukham (sexual pleasure, which
without lawfully wedded wife is considered to be sin).
According to Shastras, marriage is a holy sacrament and the gift of a girl (Kanyadan) to suitable person is a
sacred duty on the father, who derives spiritual benefit after the performance of the Kanyadan.

According to Vedas, marriage is a sacred institution, which regulates social life. Hindus regard marriage as a
sacramental or sacrosanct union for the following reasons :
a) According to the Sathpatha Bhramana, wife is half of the Husband i.e., ardhangini. Man is only half prior
to marriage and becomes full-fledged person on marriage.
b) Manu said that once man and woman are united in marriage, there should be no differences between
them and must remain faithful to each other.
c) Wife being a man’s half, is the source of Dharma, Artha, Kama and Moksha.
d) Marriage confers social status on man. Shastras do not allow a man without wife to honour guests, which
is an act of Dharma. Similarly, there must be a son to protect father from hell and also to perform obsequies
of ancestors.

e) Wife plays a significant role in social, cultural and economics life of
a man. Hindu philosophy describes wife as :
1) Karyeshu Mantri,
2) Karaneshu Daasi,
3) Bhojyeshu Maatha, and
4) Sayaneshu Ramnha.
Further, it is said that woman (wife) is instrumental for the growth
and destruction of a man’s career.

Modern Law After commencement of HMA,
1955
According to the modern writers of Hindu Law, Hindu marriage is not only a sacrament but
also a contract.
Mayne says, “while marriage according to Hindu Law is a sacrament, it is also a civil
contract, which takes the form of gift.” There are certain legislation in modern law, which
render marriage a civil contract by making provision for dissolution of marriage as follows :
1. Permanent and indissoluble, union has been defeated since a provision is made under
Section 13 and 13-B of the Hindu Marriage Act for dissolution of the marriage by
divorce.
2. Eternal union, has been destroyed in 1856 by making provisions for widow marriages
by passing Hindu Widows Remarriage Act, 1856.
3. Holy Union is still retained since the competence of religious rites and ceremonies are
necessary for validity of the marriage(Sec. 7, Hindu Marriage Act).

Similarly, the provisions for maintenance of wife under Section 18 of the Hindu Adoption
and Maintenance Act, 1956, Section 24 & 25 of the Hindu Marriage Act and Section 125 of
the Code of Criminal Procedure accelerate the inclination of a married woman to break the
matrimonial tie.
Marriage of person of unsound mind or of a minor is not void though the agreement
entered into by these persons are void. Marriage of a person of unsound mind is voidable
and marriage of a minor is valid marriage, though punishable under the act and Child
marriage restraint Act 1929.

Case Laws
In Bhagwati Saran Singh v. Parmeshwari Manohar Singh [1942 ILR All 518] ,
the Court after quoting extensively from Macnaghton's Hindu Law,
Stranger’s Hindu Law and Vyavahara Chandrika, expressed the view that a
Hindu Marriage is not only a sacrament but also is a contract.
In Mathusami v. Masilamani,
The Court has observed, “A marriage whatever else it is i.e., a sacrament or
an institution, is undoubtedly a contract entered into for consideration
with correlative rights and duties.”
In above view, it may be concluded that the Hindu Marriage is both a
sacrament and civil contract

FORMS (KINDS) OF MARRIAGE
(OLD LAW ):
A) Regular/Approved Forms /
Civilised Form of Marriage:
i) Brahma
ii) Daiva
iii) Arsha
iv) prajapatya.
B) Irregular/Unapproved Forms /
Uncivilised Form of Marriage:
i) Asura
ii) Gandharva
iii) Rakshasa
iv) Paisachika.

A)REGULAR/APPROVEDFORMS/CIVILISEDFORMOFMARRIAGE:
i) Brahma :
In this form, bride’s father invites the bridegroom and make gift of his daughter. In this form of gift of
a daughter, clothed with a single robe, to man learned in the Vedas and of good conduct when her
father voluntarily invites, and respectfully receives, is the nuptial rite called Brahma. The chief
features of this form is that the parents do not receive any consideration for giving the girl in
marriage, their choice of the bridegroom not being determined by a desire to trade on their
daughter. This form was originally prevalent among the Brahmins. The Brahma form of marriage has
been considered to be the best form.
ii) Daiva:
In this form, bride decked with ornaments is given in gift to a priest, who duly officiates at a sacrifice
performed by the father in lieu of Dakshina or fee due to the priest.

REGULAR/APPROVEDFORMS/CIVILISEDFORMOFMARRIAGE
iii) Arsha:
In this form, bride’s father accepts one or two pairs of cows from bridegroom in
exchange of bride. In the Arsha Form, the nominal character of the sale was clear;
for the father’s taking from the bridegroom a cow and a bull or two pairs was only
in fulfillment of the sacred law, there being no intention to sell the child; and the
bull and the cow were received back with the bride by the bridegroom.
iv) Prajapatya:
In this form, the father addresses the bridal couple ‘May both of you perform your
duties together’ and gives in gift to the bridegroom not invitee, but a suitor.
Prajapatya is ancient form of Hindu Marriage and is similar to the Brahma Form of
Marriage.

B)IRREGULAR/UNAPPROVEDFORMS/UNCIVILISEDFORMOFMARRIAGE:
1.Asura : In this form, Bridegroom receives bride by paying money. According
to Manu, when the bridegroom receives a maiden, after having given as much
wealth as he can afford, to the Kinsmen and to the bridge herself, according
to his own will, that is called the Asura rite. According to Asvalayana, a
wedding is called Asura where a man marries her after gladdening her father
by money and by gifts. This form of marriage is almost a marriage by sale
because it amounts to a sale of daughter by the father.
In Venkata Krishnaya v/s. Lakshminarayana – It was held that the validity of a
marriage in Asura form in the present days has been upheld by judicial
decision and there can be no question of its being unrecognized today on the
score of public policy, but an arrangement to pay any consideration to the
father or brother of the bride in consideration of the marriage cannot be
specifically enforced nor can a suit for its refund after marriage be
entertained.

ii) Gandharva :
It is a love marriage i.e., voluntary union of maiden and her lover.
According to Asvalayan, where a man marries her after a mutual
agreement has been made between the lover and the damsel, it is
called the Gandharva. Baudhayana says that the Gandharava is
lawful for Vaisyas and Sudras.
In Brindavana v. Radhamani - The Madras High Court held that
Gandharva marriage are legal if celebrated with nuptial rites having
as their essential part in ceremony of homum

iii) Rakshasa :
It is a forcible marriage against the will. According to Manu, the forcible
abduction of a maiden from her home, while she cries out and weeps, after her kinsmen
have been slain or wounded and their houses broken open, is called the Rakshasa rite.
Rakshasa marriage was forcible capture and allowed only to Kshatriyas or military classes.
The Rakshasa form of marriage in which the maiden is seized from her house by force is still
practiced among certain classes of Gonds of Berar and Betual of Madhya Pradesh and
among the rude hill tribes.
iv) Paisachika :
In this form, a man seduces a girl in sleeping or unconscious state. According to
Baudhyana, ‘If one has intercourse with a maiden who is sleeping intoxicated or out of her
senses (with fear or passion) and weds her aterwards, that is the rite of Paishacha.

Conditions of Marriage:
The conditions of Hindu marriages may be explained as :
A) Conditions under Ancient Texts(Old Law)
B) Conditions under the Hindu Marriage Act (Codified
law)

CONDITIONSUNDERANCIENTTEXTS(OLDLAW)
According to the Ancient Texts, a marriage to be valid, the following conditions are to be
satisfied.
i) Identification of castes.
ii) Monogamy.
iii) Sapinda Relationship.
iv) Prohibited degrees of relationship.
v) Prohibition of Sagotra and Sapravara, and
vi) Marriage Ceremonies.

CONDITIONS UNDER ANCIENT TEXTS(OLD LAW)
I.Identification of Castes: The parties to the marriage should belong to the same caste. In those days, inter-
caste marriages were prohibited. If the male belongs to lower caste and the female belongs to higher caste, it
is called ‘Pratiloma’ marriage and is prohibited. If the male belongs to higher caste and the female belongs to
lower caste, it is called ‘Anuloma’ marriage and was permissible.
II.Monogamy : He/She should not have spouse living at the time of marriage. She should not have been
married to earlier.
III. Sapinda Relationship: The bride should not be a sapinda of the bridegroom
IV. Prohibited Degree of Relationship: The parties to the marriage should not be within the prohibited degree
of relationship. Prohibited relationship in the sense, marriage between certain relations is prohibited and such
marriage is void.
However, a marriage between certain relations is permissible if their custom permits such marriage and the
same is permitted by the Hindu Marriage Act, 1955. Eg.: Marriage between uncle and niece. Similarly, between
Brother’s daughter and sister’s son.

CONDITIONSUNDERANCIENTTEXTS(OLDLAW)
v) Prohibition of Sagotra and Sapravara: If the parties to the marriage belong to the
same gotra, they are called ‘Sagotras or Sapravaras’. The marriage between the
Sagotras is prohibited and void. This rule does not apply to Sudras. However, the
sagotra marriage were validated by the Hindu Marriage Disabilities Removal
Act,1946.This rule as been incorporated under Section 29(1) of the Hindu Marriage
Act, 1955.
vi) Marriage Ceremonies: A marriage to be valid, it is necessary to perform certain
ceremonies, shastraic or customary. They are :
a) The performance of Homa,
b) The Panigrahana
c) Saptapadi ( Marriage is said to be complete when the seven steps are taken by
the bride and the bridegroom together around the holy fire).
d) Kanyadan.

CONDITIONS FORMARRIAGEUNDERHINDUMARRIAGEACT,1955
Conditions For Marriage Under Hindu Marriage Act, 1955 are
5(i): Monogamy.
5(ii):- Soundness of Mind
5(iii):- Age of Marriage
5(iv):- Beyond prohibited degrees Section
5(v):- Beyond sapinda relationship

MONOGAMY:-
Before the commencement of this act, a Hindu could marry any number of wives, even if he
had a wife or wives living, although this practice was always looked with disfavour.
Section 17:- this provision further states that the offending party liable for prosecution under
section 494 and 495 of Indian penal code. The marriage between the two Hindus solemnized
after the commencement of the act is void if at the date of such marriage either party had a
husband or wife living .
Example :- Mr. ‘A’ got married to Mrs. “B’ in the year 2000. In the year 2010 ‘Mr. ‘A’, again get
marries to Mrs. ‘X’ when ‘Mrs. ‘B’ is alive and he has not even given her any divorce. Hence
the marriage between A and X is void and also punishable.

SMT.YAMUNABAIANANTRAOADHARV.ANANTRAOTHIRARAMADHARAIR1988SC644
In this Case Supreme Court held that the marriage becomes null and void where it is in violation of
the first condition of section 5 i.e. Monogamy, . It becomes void ab initio and ipso facto.
Sarla Mudgal & Others v/s. U.O.I (A.I.R 1995) and Lily Thomas v/s. U.O.I (A.I.R 2000)
The above two cases are landmark case laws in respect of commission of Bigamy after conversion into
another religion - The Court in both the cases have held that the 1st Marriage would have to be
dissolved under Hindu Marriage Act,1955 . The man’s first marriage would therefore still be valid
under Law his second marriage, solemnized after conversion to another religion, would be illegal
under Section 494 & 495 of Indian Penal Code and Section 17 of Hindu Marriage Act,1955.

SHANTA DEV BERMA V. SMT. KANCHAN PRAVA DEVI [AIR 1991 SC 816]
The supreme court held that the proof of the performance of ceremonies is essential for a valid
marriage.
JOGINDER SINGH V. SMT. JOGINDERO [AIR (1996) S.C 1654]
In this case the only proof of re-marriage of a wife was the name in the revenue record which was
made by the wife herself. There was no evidence to show that the wife had ever made any statement
of her remarriage and the real brother of second husband also denied the marriage of his brother with
wife. The supreme court held that on the basis of above facts, second marriage by the wife could not
be proved therefore, her re-marriage cannot be upheld.

Section 5(ii):- Soundness of Mind:-
The parties to the marriage are of sound mind and are not suffering from any mental
disability as to be unfit for giving a valid consent. It is laid down under the marriage
laws (amendment)Act 1976, at the time of the marriage, neither party,-
a.is incapable of giving a valid consent of it in consequence of unsoundness of mind;
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;
c.has been subject to recurrent attacks of insanity or epilepsy;

According to Sec.5(ii) of the Act, ‘free consent’ is necessary element of a Hindu Marriage.
Under Sec.5 (ii) (b) of the Act, every mental disorder will not give rise to remedy under
Section 12 of the Act but only that mental disorder which renders the party unfit for the
marriage and for procreation of the children.
The marriage in violation of the above condition/rule can be annulled on the ground of
mental incapacity under Section 12(i)(b).
AT THE TIME OF MARRIAGE:- The words “at the time of marriage” in the clause are
important. Because the person where subsequent to the date of marriage becomes an
idiot or lunatic, the provision of this clause are not attracted.

CASES
S.LAXMINARAYAN V. SHANTI [AIR 2001 SC 2116]
The supreme court observed that a brand the wife as unfit for marriage and procreation of children it needs
to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for
her to lead a married life. The marriage performed in contravention of section 5(2) is voidable and not void.
AJITRAI SHIVA PD V. BAI VASUMATI [AIR 1969 GUJ 48]
In this case it was laid down that if the condition in section 5(ii) is not fulfilled The marriage is not a void
marriage as provided in section 11 but a voidable marriage under section 12
Alka Sharma v/s. Avinash Sharma (A.I.R. 1991) –
In this case, wife was cold and of nervous temperament. She was unable to look after the family and kitchen
and all. She was even unable to understand the physical act (i.e., union of male and female). The Court held
that wife was of unsound mind.
Under the Hindu Law, a marriage on account of lack of mental capacity is voidable at the instance of the
party but under Special Marriage Act, 1954 it is void.
In Ram Narayan v/s. Rameshwari Gupta (1988) SC :-
It was held that the onus of proof of lunacy or idiocy lies on him who makes a petition to annul the marriage
on such grounds.

AGE OF PARTIES TO MARRIAGE
Yagnavalkya Smriti requires a male to marry after finishing his education (brahmacharya). This naturally meant
that the bridegroom should be major. So far as the bride is concerned she was considered as the object of gift
and her age was not material for the validity of the marriage. The Marriage seems to suggest that under the
Vedic marriage the bride must have attained puberty. But even the child marriages have long been regarded as
valid.
The minimum age of the parties to the marriage is fixed. Originally, according to Hindu marriage Act, 1955, the
age provided for the bridegroom was 18 years and for the bride was 15 yrs.
Though where the bride was below 18, the consent of her guardian was necessary.
The child marriage restraint (Amendment)Act 1978, has raised the minimum age fixed for marriage to 21 years
in case of bridegroom and 18 years in case of bride.
The Hindu marriage Laws (Amendment) Act 1976, amended the old section. The Bride must have completed
the age of 18 years and the bridegroom must have completed the age of 21 years to get married.
A marriage solemnized contrary to the above provision is neither void nor voidable. The bride can exercise the
option of puberty under Section 13(2) of the Act, for decree of divorce. The person concerned are liable for
simple imprisonment as per Section 18(a) of the Hindu Marriage Act, 1955.

The Supreme Court also observed in Lily Gupta v/s. Lakshmi Narayana (1978 SC) that a reference to
Child Marriage Restraint Act would show that it was enacted to carry forward the reform
movement of prohibiting child marriages and while it made a marriage in contravention of the
provisions of that Act punishable, it did not render the marriage void. The same reasoning would
apply to marriage contravening Section 5(iii).
After the decision of the Supreme Court, the Rajasthan and Punjab High Courts have held that a
wife is not entitled to any declaration that her marriage was void or voidable by reason of the
contravention of Section 5(iii) as the legislature exempted that provision from the purview of
Section 11 and Section 12 of the Act.
However, the bride or the bridegroom has an option to cancel the marriage after obtaining their
majority like in the Muslim Marriages where a bride or bridegroom can revoke their child marriage
after attaining Conditions Of Hindu Marriage: his/her puberty, if he/she doesn’t like it. If he/she
doesn’t revoke the marriage, the tie continues. Section 12 of the Child Marriage Restraint Act also
explains the same thing i.e., the Civil Court can issue injunction against the performance of the
child marriage, after giving due opportunity to the concerned parties.

SAPINDA RELATIONSHIP:
SAPINDA :- means one of the “same pinda”.
According to ancient texts , the word has been used in two senses,
1.it means a relation connected through the same body, (Vignaneshwara’s Theory Particles of
same body)
2.it means, relation connected through funeral oblation of food ( Jimutavahana’s Oblation
Theory)
Vignaneshwara’s Theory (Particles of same body) : It was propounded by Vignaneshwara.
According to him, pinda is a particle of the same body. According to this theory, father’s
particles of the body are present in son’s body and hence, the father and the son are the
sapindas. The degree of sapinda relationship is seven through father and five through mother.
Now, it is reduced to 5 and 3 respectively.

SAPINDA RELATIONSHIP:
b. Jimutavahana’s Theory (Oblation Theory) : Pinda offering (pindadan) to departed
ancestors is a customary practice of Hindu. Pindadan extends to seven generation i.e.,
self, three ascendants (Father, Grand Father and Great Grand Father) and three
descendants ( Son, Grandson and Great Grand Son). When two persons offer pindas to
the same ancestor, they are called ‘sapindas’.

Sapinda Relationship
Sec 5 (v) of the Hindu Marriage Act- The parties to the marriage should not be sapindas of each
other, unless the custom or usage permits. The rules relating to Sapinda relationship are enshrined in
Section 3(f) of the Act.
Section 3(f) - It lays down its own rules to determine whether a person is the sapinda of another or
not.
1. sapinda relationship with reference to any person extends as far as the third generation (inclusive)
in 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.
2. Two persons said to be ‘sapinda’ of each other if one is a lineal ascendant of the other within the
limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of
sapinda relationship with reference to each of them.
Any marriage solemnized in contravention to the above rule under Sec.5(v) of the Act is void
according to Section 11 of the Hindu Marriage Act, 1955. Any person, who procures such marriage
shall be punishable with simple imprisonment, which may extend to one month or with fine, which
may extend to one thousand rupees or with both.

Sapinda Relationship
Sapinda Relationship includes
1. relationship by half or uterine blood as well as by full blood.
2. illegitimate blood relationship as well as legitimate.
3. relationship by adoption as well as by blood.

PROHIBITED DEGREE OF RELATIONSHIP
Sec.5(iv) : The parties to the marriage should not be within the degrees of prohibited
relationship unless the custom permits. A marriage falling within the prohibited
degrees of relationship would be void under Section 11 of the Act.
Moreover Section 18(b) punishes the erring party with the simple imprisonment
which may extend upto one month or with fine with may extend to one thousand
rupees or with both.
Sec.5(iv) of the Act provides that if there is a custom or usage governing the
contracting parties which sanctions such a marriage it would validate the marriage
and the voidability of the same prescribed by Section 11 of the Act will not come into
play.

A lineal descendant is a descendant in the male line.
There is no limit of degrees, and all descendants in the male line are lineal
descendants counted downwards in unbroken line. • Here:- ‘P’is the lineal
descendant of his ancestor FFFFF, in unbroken line of descent.
Marriage is prohibited with all ancestors or their wives.
However, a marriage between certain relations stated above is valid, if the custom
permits the marriage between such relations. Eg.: In South India, marriages between
the children of Brother and Sister are common and are valid custom.

In Venkata v/s. Suibhadra [ILR Madras 548] – It was held that a custom permitting marriage
with the maternal uncle’s daughter is recognised.
In Balaswami Reddiar v/s. Balakrishna Reddiar [1957 Madras] – where a custom was pleaded
of marrying a daughter’s daughter, it was held illegal on the ground of immorality although
it was a custom in Reddiar community of Tirunalveli District to that effect.
In Smt. Shakuntala Devi v/s. Amar Nath [(A.I.R. 1982) P & H] – It was held that the conditions
of a valid marriage under Section 5(iv) of the Act stand qualified by custom meaning
thereby that in the event of the custom being established, the marriage despite prohibited
relationship between parties to it would constitute a legal and valid marriage but these
customs may be proved to be very old and beyond human memory.

Reasonforforbiddingmarriagewithinthedegreeof
prohibited
Reason for forbidding marriage within the degree of prohibited.
To prevent-
1. physical degeneracy (decline in good qualities) of the race which the marriage between
near relations would lead to;
2. moral degeneracy and consequent evil results which are apt to affect a society built on
the deifice of joint family-system.

The following will be within prohibited
degrees of a female-
A.her lineal ascendant like father, father’s father.
B.the husband of a lineal ascendant.
C.the husband of a lineal descendant.
D.brother.
E.father’s brother.
F.mother’s brother
G.brother’s son.
H. sister’s son
I.father’s brother’s son.
J.father’s sister’s son.
K. mother’s brother’s son
L.mother’s sister’s son

The following will be within the degrees
of prohibited relationship of a male.
I. A female ascendant (superior) in the line.
II. Wife of an ascendant in the line.
III. Wife of a descendant (a person or a descended) in the line.
IV. Wife of the brother.
V. Wife of the father’s brother.
VI. Wife of the mother’s brother.
VII. Wife of the grandfather’s brother.
VIII. Wife of the grandmother’s brother.
IX. Sister
X. brother’s daugther.
XI. Sister’s daughter.
XII. Father’s sister

CEREMONIES OF MARRIAGE
Section 7 of the Hindu Marriage Act, 1955, does not prescribe any particular form of
marriage.
(1) a 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, taking of seven steps by
the bridegroom and the bride jointly before the sacred fire), the marriage becomes binding
when the 7 th step is taken.

BHAUROA V/S STATE OF MAHARASHTRA (AIR 1965 SC 1564)
The Supreme court has held that unless a marriage is celebrated or, performed with proper
ceremonies and in due form, it cannot be said to have been ‘solemnized’. Further that merely
going through certain ceremonies with an intention that the parties be taken to be married,
would not mean performance of marriage with ceremonies prescribed by law or approved by
custom.
N.SOMANATH TARAPUR V/S DIVISIONAL K.S.R.T.C BIJAPUR [AIR 2002 KANT 347
The Karnataka High court held that it is not ta the requirement of law that the marriage
amongst hindus in which it is not proved that the couple had taken a vow and seven steps
together in front of the sacred fire, is no marriage at all,not it can it be said that no marriage is
valid in the absence of such proof notwithstanding there being sufficient evidence to prove
the marriage otherwise

REGISTRATION OF MARRIAGE:-
SECTION 8:- provides that “for the purpose of facilitating the proof of Hindu marriages, the
state government may make rules providing that the parties to any such marriage may
have the particulars relating to their marriage entered on such manner and subject to such
conditions, as may be prescribed in a Hindu Marriage Register kept for the purpose.”
SMT. SEEMA V. ASHWANI KUMAR [AIR 2006 SC 1158]
The supreme court on 14th February, 2006 ordered compulsory registration of marriages
irrespective of religion. It directed the Centre and union territories to amend the rules to
this effect within three weeks of the judgment. Marriage of all persons who are citizens of
India belonging to various religion should be made compulsorily registrable in their
respective states, where the marriage is solemnized. Compulsory registration of Marriage if
wisely provided for by means of carefully framed rules – can prevent many social evils e.g.,
child marriage and dowry. But no State Government can make a rule that failure to
marriage will render it invalid

THE DOCTRINE OF FACTUM VALET
The “DOCTRINE OF FACTUM VALET” is originated from the Roman Law maxim ‘Factum
Valet Quod Fieri Dabuit’ , which means that “what ought not to be done is valid when
done”.
The Hundred of Texts cannot deny the fact. This doctrine applies where there is normal
obligation and not the legal prohibition for a thing.
The Doctrine of Factum valet has been applied in favour of the validity of a marriage
which has been either irregularly performed or performed in disregard to the Hindu Law
texts where are merely directory.
In Venkataramana v/s. State - The A.P. Court has applied the doctrine of factum valet to
child marriage and held the marriage itself is valid though penal consequences are
attracted. The Child marriage are neither void nor voidable.

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