ANÁLISIS DE EMPRESA “X”

There was some divergence of opinion on the question whether under Hindu law, as applied by courts in India; marriage was a sacrament or both, a sacrament and a contract. That it was a sacrament was not questioned, but the demarcation between religious and legal precepts was rather thin. The Act overrode all rules of law of marriage, whether by virtue of any text or rule of Hindu law or any custom or usage having the force of law in respect of all matters dealt with in it. The Act does not use the expression `sacramental marriage' but speaks of a Hindu marriage solemnized in accordance with the customary rites and ceremonies of either party. A Hindu marriage does not refer to Hinduism as a religion but relates to all persons who are Hindus in the wide connotation of the expression.

Before modern Hindu laws were passed, child marriages were the norms, inter-caste marriages were banned, the girl became a part of the husband's family, and polygamy was common. In the 19th century, the British rulers passed several laws to

120 Hyde v. Hyde, (1866) 1 P&D 130; Baindali v. Baindail, (1946) P (CA) 122.

protect customs and traditions while abolishing detestable practices like Sati. Some such revolutionary laws were Hindu Widows Remarriage Act 1865 and the Brahmo Samaj Marriage Act 1872, the forerunner of the present Special Marriage Act. In the beginning, the Act sets four essential conditions for a valid Hindu marriage. Section 5 of the Hindu Marriage Act, 1955 lays down the conditions for a valid marriage.

These conditions are:

Monogamy: Clause (i) of the section introduces monogamy which is essentially the voluntary union for life of one man with one woman to the exclusion of all others. Monogamy means that one is permitted to have only one wife or husband at one time. Polygamy was permitted among Hindus before the Act was passed in 1955. However, after the act was passed, any man marrying again while his wife is living will be punished with fine and imprisonment up to seven years. Section 5(i) prohibits bigamy, Section 11 makes a bigamous marriage void and Section 17 makes it a penal offence under Sections 494 and 495, IPC. Section 5(i) of Hindu Marriage Act states:

―(i) neither party has a spouse living at the time of the marriage;‖

In Priya v. Suresh¹²¹, it was held by the Supreme Court that 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 Yamuna Bai v. Anantha Rao¹²², it was held by the Supreme Court that the fact that the husband has been treating a woman as his wife and did not inform her of his previous marriage is immaterial and the principle of estoppels cannot be invoked to defeat the provisions of law.

The expression ―spouse living‖ is to be understood as the existence of a legally-wedded spouse in the eyes of the law. In the case a spouse is unheard of for more than seven years, a presumption can be drawn under Section 108 of the Indian Evidence Act that such a spouse is dead and in such an event the surviving spouse can marry a second time on the ground that the former marriage is dissolved by the civil death of the other spouse.¹²³

121 (1971) 1 SCC 864.

122 (1988) 1 SCC 530.

123 Sodha v. Mansharan, 1971 HP 27.

Sound mind: This clause lays down as one of the conditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and Section 12(1)(b) renders, at the instance of a party, the marriage voidable, if the other party was suffering from any such infliction at the time of the marriage. This clause was substituted by the Marriage Laws Amendment Act, 1976 for the original clause which read ―neither party is an idiot or a lunatic at the time of the marriage‖. Under the old law, mental incapacity was considered a bar to a marriage to some extent depending upon the degree of unsoundness of mind. The words ‗Idiot‘ and ‗Lunatic‘ are not defined in the Act.

But the word ‗Lunatic‘ is defined in the Indian Lunacy Act, 1912²² as an idiot or a person of unsound mind. The word ‗unsound mind‘ is more comprehensive than lunacy and includes other species of mental aberration.

In Smt. Alka Sharma v. Avinash Chandra,¹²⁴ the Madhya Pradesh High Court held that the word ‗and‘ between expression unfit for marriage and procreation of children in Section 5(2)(b) should read as ‗and‘, ‗or‘. The court can nullify the marriage if either condition or both conditions contemplated exist due to mental disorder making living together of parties highly unhappy.

Similarly the provisions of section 5(2) (c) of the Act emit doubtful inferences. Would it be necessary that a person who had been a victim of lunacy or epilepsy for some time before his marriage or ever had been a victim of hysteric fits becomes unfit to have marital relations? It is very strange that clause (a) of sub-section 2 of Section 5 speaks of giving a valid consent to marriage whereas clause (c), thereof contains nothing of the sort. It leads to an inevitable inference that this sub-section did not require any amendment at all. On the contrary the amendment brought into it has given rise to certain degree of ambiguity and anomaly.

Marriageable age: Section 5(3) prescribed the age of the bridegroom as eighteen years and that of bride as fifteen years but by the Child Marriage Restraint (Amendment) Act, 1978 the words ‗the eighteen‘ and ‗fifteen‘ stand substituted by twenty one and eighteen respectively. Now for a valid marriage the bridegroom must have attained the age of 21 years and the bride of 18 years at the time of marriage. But the breach of this pre-requisite did not affect the validity

124 AIR 1991 M.P. 205.

of marriage, but on the other hand rendered it as an offence, inviting penal consequences to the erring parties. The guilty party to such marriage or the parent or guardian concerned who is responsible for getting the marriage solemnised, or negligently fails to prevent it from being solemnised shall be liable for simple imprisonment up to 15 days or a fine of Rs. 1000/- or both under Section 18 of the Act. Before the aforesaid amendment the consent of the guardian of the girl was necessary if she was below eighteen years of age. If the consent of the guardian was obtained by force or fraud the aggrieved party could under Section 12(1) (c) of the Act have the marriage declared void by making a petition to this effect.

A marriage solemnised in violation of Section 5(iii) would not be void although the person guilty of the stipulated condition as to the minimum age would be liable to be punished under Section 18(a) of the Act.¹²⁵

Formerly, child marriages were common. The Child Marriage Act of 1929 was not very effective as such marriages were continued to be performed. Now, however, the bridegroom must be 21 years old and the bride 18 years.Under the old Hindu law the marriageable age of the bride was between 8 and 12 years and that of the bridegroom within 25 years, but the Child Marriage Restraint Act, 1929, as amended by the Act of' 1949, re-determined the age of marriage and prohibited the same between a bride less than 15 years of age and a bridegroom below 18 years.

It was essential to have the consent of the bride's guardian if she was less than 18 years of age. But where the parties voluntarily chose to continue the marital relations as such after the marriage the necessity of the guardian's consent fell to the background.¹²⁶

In Pinniti Venkatarama v. State,¹²⁷ the Andhra Pradesh High Court laid down that any marriage solemnised in contravention of cl. (iii) of Section 5 is neither void nor voidable, the only consequences being that the persons concerned are liable for punishment under Section 18. Thus a marriage in contravention of Section 5(3) does not render the marriage null and void.'' But where a bride had been married before completion of her fifteenth year and on

125 Mohinder Kaur v. Major Singh, AIR 1972 P & H 184.

126 Kunthu Devi v. Sri ram, 1963 Punj. 235.

127 AIR 1977, A.P. 43.

attaining that age repudiates the marriage, she would be entitled to a decree of divorce under Section 18(2) (iv) of the Act which was inserted by the Marriage Laws (Amendment) Act, 1976. The option of getting a decree of divorce would be available till the completion of her eighteenth year. Barring these two consequences, one arising under Section 18 and the other arising under clause (iv) of the sub-section (2) of Section 13, there is no other consequence whatsoever, resulting from the contravention of the provisions of clause (iii) of Section 5.

The parties should not be too closely related: Section 5(iv) lays down the condition that the parties to a Hindu marriage should not be within the degrees of prohibited relationship while under clause (v) the parties should not be sapindas of each other unless the custom or usage governing each of them permits a marriage between the two. According to Section 5(iv) and 5(v):

―(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;‖

In Shakuntala Devi v. Amarnath¹²⁸, it was held that a marriage between persons within the prohibited degree of relationship or sapinda relationship was not permitted, unless custom or usage permits such a marriage. Explaining the sanction by custom the Court said in Balusami v. Balakrishna¹²⁹ that wherever a custom is relied upon it must be a valid custom as defined in Section 3(a) of this Act. A custom permitting marriage with a maternal uncle‘s daughter was recognized in Venkata v.

Subhadra.¹³⁰ But in Balusami Reddiar v. Balakrishna Reddiar¹³¹, where a custom was pleaded for marrying a daughter‘s daughter it was held illegal on the ground of immorality although there was a custom in the Reddiar Community of Tirunalveli District to that effect. Under these provisions when a custom is pleaded in relation to the rule of the prohibited degrees for the purpose of marriage or of sapinda relationship, each of the spouses should be governed by that custom. It follows that even if one of the spouses is not governed by such a custom the marriage cannot be held to be valid. A marriage in contravention of any of these two

128 AIR 1982 Punj. 221

129 AIR 1984 AP 225.

130 ILR (1884) 7 Mad 548.

131 AIR 1957 Mad. 97.

clauses is a void marriage under Section 11 and those indulging in it are liable for punishment under Section 18(b) of the Act. It was held in Kamakshi v. Mani¹³² that proving one instance where marriage took place in contravention of either of these clauses is not sufficient to prove a custom.

Section 9 of the Hindu Marriage Act, 1955 deals with restitution of conjugal rights. The foundation of the right to bring a suit for restitution of conjugal rights is a fundamental rule of matrimonial law that one spouse is entitled to the society and comfort-consortium-of the other spouse and where either spouse has abandoned or withdrawn from the society of the other, without reasonable excuse or just cause, the court should grant a decree for restitution.

The Act has been amended by the Marriage laws (Amendment) Act, 1976 which added an explanation providing that when a question arise4s whether there has been reasonable excuse for withdrawal, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society of the other.

Section 10 of the Hindu Marriage Act, 1955 declares the right of either spouse to a marriage to obtain judicial separation and provides for the same. Though such remedy for obtaining judicial separation was unknown under Hindu law, the courts of British India by their pronouncements established that a suit for judicial separation is maintainable on certain grounds. As a consequence, the Indian divorce Act, 1869 was passed and was made applicable to all communities in the country. This provision is a statutory recognition of the right to judicial separation among Hindus.¹³³

By the Marriage Laws (Amendment)) Act of 1976, Section 10 of the Act was radically changed and now the ground, for both the husband and the wife are the same as the grounds for divorce contained in Section 13(1) of the Act. They are adultery, cruelty, desertion, conversion, unsound mind, venereal disease, Incurable leprosy, renunciation of the world, presumption of death and failure to comply with a decree of restitution of conjugal rights, etc. All these grounds are available equally to the husband and the wife.

132 (1970) 2 MLJ 477

133 Mayne: Hindu Law and Usage.

Apart from the aforementioned ground, a Hindu wife may invoke any of the following grounds available exclusively to her, namely, remarriage by husband, husband being found guilty of rape, sodomy or bestiality, non-resumption of co-habitation in spite of a decree for maintenance of wife and option of pub erty i.e.

at the option of the wife if her marriage was performed before she reached the age of 15 years and she repudiates the marriage alter shaming the age of 15 yeas bill before she reaches 18 years of age.

These special grounds have been provided to a Hindu wife exclusively by the Marriage Laws (Amendment) Act of 1976 which amended Sections 10 and 13. The object of this provision is basically to give time to the spouses for approachment and reconciliation. Thus, a wife can proceed against the husband on more special grounds than those available to him. This provision places Hindu wife on a higher pedestal than a Muslim or a Christian wife.

Under the Textual Hindu law, divorce was not allowed since marriage was a Sanskar or sacrament and not a contract, and the marriage tie was unbreakable. But now divorce has been introduced, after much hue and cry, through the enactment of the Hindu Marriage Act, 1955 since this Act does not recognized marriage as a Sanskar.

The grounds for judicial separation for both the husband and wife are the same as the grounds contained in Section 13(1) of the Act. They are adultery, cruelty, desertion, conversion, unsoundness of mind, veneral disease, incurable leprosy, renunciation of the world, presumption of death and failure to comply with a decree of restitution of conjugal rights. Apart from the grounds mentioned, a Hindu wife may invoke any of the special grounds, namely, remarriage by husband, husband being guilty of rape, sodomy or bestiality, non resumption of cohabitation by the spouses in spite of a decree for maintenance of wife and option of puberty.

These special grounds have been incorporated by the marriage laws (Amendment) Act, 1976 which amended Section 10and 13 of the Hindu marriage Act. Thus a Hindu wife is granted certain special grounds against the husband which places her in a better position as compared to a Muslim or Christian wife.

Section 13-B providing for divorce by mutual consent was added by the Amendment Act of 1976. In order to take the benefit of this section the spouses

should have been living separately for a period of one year or more, must not have been able to live together and must have mutually agreed that the marriage should be dissolved. The underlying idea of divorce by mutual consent may be traced to the principle that if the marriage under most of the Matrimonial Acts is a civil con tract, and it is based on certain conditions with the mutual consent of the parties, then the parties must be given discretion to end that contract of marriage if the conditions for the contract is breached or broken by either of the party to the contract.

Section 24 of the Hindu Marriage Act makes a provision for grant of Maintenance pendent lite and expenses of proceedings to either spouse and Section 25 contains similar provisions regarding payment of permanent alimony and maintenance. The object of Section 24 is to ensure that a party to a proceeding does not suffer during the pendency of the proceeding by reason of his or her poverty.

The party standing in need of such relief may either be the petitioner or the respondent and prima facie there is no reason why Parliament should try to make no distinction in this context. The fact that under Section 24 relief can be granted to both the wife and the husband indicated that the legislature intended to make no such distinction. In Ishwar Singh v. Smt. Hukum Kaur,¹³⁴ the Allahabad Court held that it would not be reasonable to confine the relief under this section only to the party who had initiated the original proceeding before the Court. So long as the marriage is subsisting a spouse cannot get any maintenance under the Act.

By Section 25 of the Hindu Marriage Act, 1955 the courts are empowered to direct the opposite party at the time of decree or subsequently to pay the petitioner maintenance. The court shall take into account the status of the opposite party in awarding the amount of maintenance. Powers also have been given to the court to rescind or modify the order at any subsequent stage. The section was amended by Section 17 of the Marriage Laws Amendment Act, 1976, before which the liability to pay maintenance was restricted to the period during which the applicant remained unmarried.

Numerous marriages take place within India and in foreign countries which are outside the ambit of various personal laws as well as they cannot be governed by the general and common law of civil marriages for the reason of not having been

134 AIR 1965 All 464.

formally solemnized or registered under it. Though these enactments are meant equally for all communities of India, yet they contain few provisions which greatly inhibit people of certain communities to avail them. In 1954 the first Special Marriage Act of 1872 was repealed by and replaced with a new law bearing the same title. This is an optional law, an alternative to each of the various personal laws, available to all citizens in all those areas where it is in force. Religion of the parties to an intended marriage is immaterial under this Act; one can marry under its provisions both within and outside one‘s community. For the Hindus, Buddhists, Jainas and Sikhs marrying within these four communities the Special Marriage Act, 1954 is an alternative to the Hindu Marriage Act. The Muslims too have choice between their uncodified personal law and the Special Marriage Act, 1954. But the issue of availability of the Special Marriage Act, 1954 for a marriage, both parties to which are Christians, remains unresolved.

The Special Marriage Act does not by itself or automatically applies to any marriage; it can be voluntarily opted for by the parties to an intended marriage in preference to their personal laws. It contains its own elaborate provisions on divorce, nullity and other matrimonial causes and, unlike the first Special Marriage Act of 1872, does not make the Divorce Act 1869 applicable to marriages governed by its

The Special Marriage Act does not by itself or automatically applies to any marriage; it can be voluntarily opted for by the parties to an intended marriage in preference to their personal laws. It contains its own elaborate provisions on divorce, nullity and other matrimonial causes and, unlike the first Special Marriage Act of 1872, does not make the Divorce Act 1869 applicable to marriages governed by its