Sunday, July 10, 2011

Understanding of Hindu Marriage under Hindu Marriage Act 1955

Evolution of the Institute of Marriage

Pearl S. Buck said
“A good marriage is one which allows for change and growth in the individuals and in the way they express their love.

For some reason, we have been thinking about that quote a lot during these past couple of days hearing arguments about domestic violence, and dissolution of institution of marriage. I personally believe that dissolution of marriage goes against the spirit of institution of marriage as it has been defined for several centuries as being between a man and a woman.

This got me thinking about history of the institution of marriage. Has the institution of marriage always been the same over the course of human history? Or has it been an institution that has evolved over time, as the understanding of human relations evolved?

concept of marriage

Hon'ble Judges:  Arijit Pasayat and Dalveer Bhandari, JJ  

In  Appellants: Smt. Mayadevi       vs.     Respondent: Jagdish Prasad

The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counterproductive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it.

Religious Validity

In Hindu’s religion system marriage treated as a holly bond or union between the two soul. It is not the union for the life but the coming life as well. Marriage treated as an essential Sanskaras and every Hindu must marry.

According to Satpatha Brahman- Wife is considered as Ardhangani. In addition, no religion duty can be fulfilled without wife or marriage. It has been treated that marriage is the tie, which cannot be untied.

Manu says- Husband and wife are united to each other not merely is this life but even after death
 Apasthamba says – marriage was meant for doing good deeds for attainment of Moksha.

Courts observations on Hindu Marriage

GOPAL KISHAN V/S MITHILESH KUMARI-

The institution of matrimony under the HINDU LAW is a sacrament and not a mere socio legal contract, it is not performed for mere emotional gratification in its context it is religious a husband and wife become one. The bride on the Seventh Step of the Saptapadi losses her original gothra and acquired the gotra of the bridegroom.

SHIVANANDY V/S BHAGAWANTHYAMMA
Marriage is binding for life because the marriage tie completed by Saptapadi and once it tie it cannot be untied. It is not a mere contract in which a consenting mind is indispensable.

Modernize view
Generally affirmed, though the Hindu Marriage Act has introduced fundamental changes in regard to divorce and judicial separation, it has maintained the basic feature of the marriage which is partly consistent with the provisions of ancient religious texts. Under the Act, Hindu Marriage is not a sacrament in the religious sense; but, nevertheless; it is founded on the basic moral postulates, as evidenced, for instance, by the continuance of the pre-existing requirement.

Muthusmi Vs. Mahalaxmi
 Marriage whatever else it is i.e. a sacrament or an institution, is undoubtedly a contract enters into for consideration with correlative rights.

HINDU MARRIAGE ACT 1955
We have already referred to the spirit underlying to Institution of Marriage is to give the social stability of humans needs.  While enacting this Hindu Marriage Act 1955, Parliament has taken care to preserve what it thought to be consistent with the spirit of modernism and social justice. It has also taken care to preserve what it thought to be the essential features of any fundamental proposition of Hindu law. In regard to marriage, for instance, it has preserved the requirement that the marriage should not take place between persons who are within the prohibited degree of Sapinda relationship, vide section 5 (iv) and (V). Similarly, it has preserved the requirement as to Saptapadi 
 
This Act has introduced some far reaching consequences which have undermined the sacramental character of marriage and rendered it contractual in nature to a great extant.

Section 5, 11 and 12 of this Act are pertaining provisions which deals whether marriage is a contract or sacrament.

Section 5 of HM Act 1955-  deals with the condition of Marriage.
Clause (ii) of Section 5 deals with the MENTAL CAPACITY.
Clause (iii) of Section 5 deals with the AGE OF THE PARTIES.

This means Age and Soundness of mind is the essential conditions of a valid marriage.
If we compare it with the SECTION 11 OF INDIAN CONTRACT ACT- it says-
The consent of minor or a person of unsound mind is void.

But the fact of the matter is that- Marriage of a person who is of unsound mind is a valid marriage under this act, not merely the violation of the requirements of clause (ii) & (iii) of Section 5 not render the marriage void.

THUS THE SECTION 11 OF IC Act IS NOT APPLICABLE TO MARRIAGE IF MARRIAGE REGARDED AS A CONTRACT.

U/S 12 OF HM Act 1955-  violation of Section 5 render the marriage merely voidable while U/ Law of Contract for want of capacity is totally vide. Thus HM Act does not consider the question of consent of much importance.

But the only concern is the consent is obtain by forced or fraud the marriage is voidable which follow the same line of IC Act 1872.

Section 9 Restitution of Conjugal Rights (Efforts to save the Institution of Marriage or Violation of Art. 21)

The leading idea of Section 9 of Hindu Marriage Act 1955 is a control mechanism to preserve the Institution of Marriage and maintain the social and economic stability, which is govern by the philosophy which deep routed in Hindu religious text. conjugal rights may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression "conjugal" as "of or pertaining to marriage or to husband and wife in their relations to each other"
In SARITA Vs. VENKAT SUBBAIAH it was decided that no spouse can be compelled to share a bed with other spouse. But in successive cases it was decided that a husband can have right to compel her of conjugal rights.

 Does it mean we are trying to establish the supremacy of Male over Female?
If the answer of above question is not in affirmative then Why the Legislature made a general provision in s. 9( 1) and then proceeded to control it rigorously by s. 9( 2)
Restitution of conjugal rights covers a very sensitive area in matrimonial relations and it seems to that it should be permissible for the party  resisting restitution of conjugal rights to satisfy the  court that restitution should not be granted on grounds, which may otherwise be reasonable, though they may  not satisfy the test prescribed by s. 9(2). lt is because courts felt that interpreting s. 9(2) as overriding s. 9(1) may lead to social injustice that they felt compelled in substance to ignore the provisions of , s. 9(2) and treat s. 9(I) as though it were independent of s. 9(2).

Thus Marriage not only under Hindu Marriage Act 1955, many High Courts and Supreme Court also observed that Marriage must be preserve. In any civilized and progressive society, marriage is an institution of great importance. It is the centre of a family which in turn, is a significant unit of the social structure. Children, who are born of marriage, also contribute to the stability of the institution of marriage. These factors are material and have to be taken into account; but in some cases, their validity cannot be over—estimated because, if the marriage which primarily concerns husband and wife is irretrievably broken, then collateral considerations about the significance of the marriage institution or about l the importance of children and their interest may have to play a subordinate role.

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