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Status of Wife & Children in a Marriage not properly solemnized: Loopholes & Need for reform


Authored By- Ekta Choudhary

Keywords: Solemnization, Hindu & Social Marriage, Reforms, Loopholes, Consent, etc.

Abstract

The Solemnization means to the performance of a formal marriage ceremony before witnesses. In other words, it's the general public performance of a sacrament or solemn ceremony with all appropriate rituals.

The Hindu Marriage Act, 1955 has secularized the Hindu law of marriage in all respects except one and has abrogated custom except in a few matters. It is about ceremonial validity of a Hindu marriage that the religious, sacramental, or non-secular character of Hindu marriages is retained. One of the matters in respect of which custom is retained is also the ceremonial validity of Hindu marriages. This means that a Hindu marriage (and no marriage is valid unless it's solemnized with proper ceremonies and rites).

The Special Marriage Act (SMA) was enacted in 1954 as a part of a series of reforms to personal laws in India. The SMA was alleged to be how of circumventing cultural taboos against marrying outside one’s religion or caste.

What is the Solemnization of Marriage?

Solemnization means the performance of a formal marriage ceremony before witnesses. However, no particular sort of solemnization is required, but the parties must declare, within the presence of the person solemnizing the marriage, that they take one another as husband and wife. Who may perform such a ceremony varies depending on the actual laws of the state.

Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955, has reformed the Hindu law of Marriage. But has the Hindu marriage now become a contract or remained a sacrament? Section 5, 11 & 12 of the Act are the pertinent provisions.

Section 5 deals with the conditions of Marriage:

Section 5 of the Act lays down the subsequent conditions for a marriage between any two Hindus, at the time of marriage

● Neither of them has a spouse living

● Neither of them is of unsound mind and thus, incapable of giving valid consent.

● None of the two, though is capable of giving valid consent, is affected by a psychological disorder which makes them unfit for marriage and a. the procreation of children.

● the bride has completed 18 years of age and the bridegroom has completed 21 years of age.

● They are not within the degrees of prohibited relationship.

● They are not cousins because the Hindu law doesn't permit marriages among the cousins.

Section 11 of the Hindu Marriage Act

The Contract of a minor or of a person of an unsound mind is void.

Section 12 of the Hindu Marriage Act

The violation of the former requirement renders the marriage merely voidable, while violation of the latter condition doesn't render the marriage void or voidable; the marriage, if performed, is perfectly valid.

Case Law

A Hindu couple’s marriage perform without customary ceremonies and rituals be termed legal? The Nagpur bench of Bombay High Court said a clear ‘no’ while granting a divorce to city-based man.

While quashing a Nagpur Family Court’s verdict of April 1, 2015, that had asked the man to resume cohabitation with the woman, the court ruled that unless performed with proper customary ceremonies and rituals, a marriage could not be approved under the Hindu Marriage Act, 1955.[1]

Special Marriage Act, 1954

The Special Marriage Act (SMA) was enacted in 1954 as a part of a series of reforms to non-public laws in India that Jawaharlal Nehru had made a priority. The SMA was meant to be a legislation to govern marriages that would not be solemnized consistent with religious customs – which essentially meant inter-faith or inter-caste marriages. The SMA was alleged to be how of circumventing cultural taboos against marrying outside one’s religion or caste.

Therefore, the SMA came to include a number of provisions meant to serve as a compromise between Nehru and therefore the conservatives, two of which stand out:

The requirement of a notice period before marriage is often conducted – which makes the method more cumbersome;

If a Hindu, Buddhist, Sikh or Jain marries outside of those communities, they're not considered a part of the “undivided family” – which suggests they can't inherit ancestral property if they marry a Muslim, Christian, etc.

Section 4 of the Special Marriage Act deals with certain conditions

● Neither of them has a living spouse;

● Neither of them is incapable of giving consent to the marriage because of an unsound mind;

● Neither of them has been suffering from a mental disorder which makes them unfit for marriage or having children;

● Neither of them has been subject to recurrent attacks of insanity;

● The man is 21 years old or older, and the woman is 18 years or older;

● The Couple shouldn't within the “degrees of prohibited relationship”. This concept broadly prohibits incest, likewise as marriages between first cousins, and certain relations by marriage.

If a couple wants to register a marriage under the SMA, the conditions are essentially an equivalent (Section 15, SMA).

Loopholes & Need for Reforms

Supreme Court and High Court judgments had consistently echoed the demand for reforms in Marriage over the past three decades. The amendments to the Acts mentioned a change in the procedure of obtaining a divorce when the marriage has irretrievably broken down. They also try to ensure that, at the very least; maintenance arrangements are more than a mere token.

But, after some amendments, there are some required reforms needed.

1. It is amply clear that the Hindu Marriage Act doesn't consider the Question of Consent as of much importance. Thus, marriage without consent is Valid except for the person suffering from mental illness, psychological disorder can't able to marry and can't give consent for marriage.

This is the inevitable result of combined Section 5, 11 and 12. Neither Section 5 nor Section 11 and 12 speak for consent.

2. If any party is able to prove the absence of a consenting mind, the marriage will continuously remain valid.

Then How could Hindu marriage is Sacrament?

According to the Hindu Marriage Act, Sacrament marriage has three characteristics:

- It is permanent & indissoluble union.

- It is an eternal union.

- And it is a holy union

3. An approved marriage among Hindus has always been considered a kanyadan be it a marriage in any form. Apart from that presents given to the bride by way of ornaments, clothes & other articles as well as Cash from the side of her father and Husband constituted her Stridhan. Without Kanyadan the marriage is not completely approved.

In the course of time, Dowry becomes widespread evil, cases come out when the bride failed to bring the promised and expected dowry has been beaten up, tortured physically & mentally, kept without food & water for several days, etc.

4. Section 19 of SMA is punitive in character. The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion shall be deemed to affect his severance from such family.

The need for such a provision as mention in section 19 is inexplicable especially when such severance could lead to deprivation of inheritance and other rights of the couple intending to marry under this so-called secular Act.

Conclusion

A Marriage symbolizes a multi-level commitment, one that involves person-to-person, family-to-family, and couple-to-state commitments. Our society viewed marriage as a comparatively permanent bond, most in order that in some societies it's virtually irrevocable.

Contrary to personal laws, the Special Marriage Act’s applicability extends to all or any Indian citizens despite their religion.

The marriage laws allow only the registration of an already solemnized marriage under personal laws, the Special Marriage Act provides for both solemnizations and legal registration.

Hindu marriage is followed by traditional rituals for consummation. In fact, marriage isn't considered complete or valid until the consummation. Under every form of marriage, women have been given a lower status than man. There are many loopholes we see above likewise, Consent doesn't matter in so-called Sacrament marriage but it is valid if it did with according to Hindu rituals and Ceremonies.

[1] 1988 AIR 121, 1988 SCR(1) 1010.


References-

1. Paras Diwan, Modern Hindu Law

2. Sec.5 Hindu Marriage Act, 1955

3. Sec.11 Hindu Marriage Act, 1955

4. Sec.12 Hindu Marriage Act, 1955

5. Sec. 19 Special Marriage Act, 1954

6. http://www.legalservicesindia.com/article/1626/Inconsistencies-In-Special-Marriage-Act,-1954.html1954

7. https://www.google.com/amp/s/www.deccanherald.com/amp/content/258894/loopholes-marriage-law.html