Marriage – Sacramental or Contractual?
Topics Covered:
- Introduction
- Essential conditions of a valid Hindu marriage. Is there a provision for punishment for violating the conditions?
- What is the difference between Void and Voidable marriage? What are the consequences of a Void marriage?
- Explain Judicial separation. What is the difference between Judicial Separation and Divorce? On what grounds can a decree of Judicial Separation be passed?
Introductions
Historical Perspective – Manu, ardhangini, marriage is an essential sanskara, man is incomplete without wife. Once performed, it cannot be dissolved.
Modern Perspective – Civil contract. Can be dissolved. Cannot force to live together. Equality of sexes. Can’t be done without consent.
| Why is it Sacramental? | Why is it Contractual? |
| As per Contract Act 1872, contract with a minor is void ab initio. Even though section 5(2) says that valid consent is required and section 5(3) says that the boy should be above 21 yrs and the girl should be above 18 yrs, marriage done in contravention of these provisions is not void. Marriage with a minor is not even voidable only on that ground. In the case of Venkatacharyalu vs Rangacharyalu 1980, it was held that the person married may be a minor or even of unsound mind, yet if the marriage rite is duly solemnized, it is a valid marriage. | The fact that consent of the boy and the girl is required means that it is contractual. If the consent is obtained by force or fraud, the marriage is voidable. |
| Section 7 of HMA1955 requires that religious ceremonies are a must to complete a marriage. A marriage done without “saptapadi” is void. In the case of Dr. A N Mukherji vs State 1969, a person could not be convicted of bigamy because he performed 3 marriages without doing necessary ceremonies. | Marriage is no more permanent since divorce is available by mutual consent. |
| Even now bachelors are not eligible to perform several religious ceremonies. Only married couples are allowed. Thus, it still retains its sacramental property. | Marriage is no more eternal since widow remarriage is permissible. |
| No-fault divorce, as available in western countries, is not available in HMA 1955. Thus, breaking up a marriage is very difficult | Marriage is no more holy because a marriage can be done without all the ceremonies such as vivah homa. Only saptapadi is required. |
| . |
Conclusion: It has a unique blend of sacramental and contractual characteristics.
Essential conditions of a valid Hindu marriage. Is there a provision for punishment for violating the conditions?
Section 5
- Section 5 (1) Must not have a spouse alive.
Kanwal Ram vs H. P. – Essential ceremonies are a must for committing the offence of second marriage.
Priya vs Suresh – Mere admission by the parties is not enough. Proof of essential ceremonies is required. - Section 5 (2) neither party is
- incapable of giving consent due to unsoundness of mind.
- though capable of giving consent, is unfit for marriage and procreation of children due to mental disorder.
Alka vs Abhinash – MP HC held that “and” must be read as “or”. - suffers from recurrent attacks of insanity.
Balakrishna vs Lalitha – “Incurable” is not a requirement. Only recurrent attacks, irrespective of whether curable or incurable, provided enough ground.
- Boy is over 21 and girl is over 18.
Rabindra vs Sita – Marriage in contravention of this clause is, nevertheless, valid. - parties are not within degrees of prohibited relationship.
- parties are not sapindas
Punishment
Section 17 says that sections 494 (bigamy without concealment – 7yr + fine) and 495 (bigamy with concealment – 10 Yrs + fine) of IPC will apply for bigamy.
Section 18(a): 15 days + 1000/- for contravention of 5(3)
Section 18(b) : 30 days + 1000/- for contravention of 5(4) and 5(5)
What is the difference between Void and Voidable marriage? What are the consequences of a Void marriage?
| Void | Voidable |
| Defined by section 11 | Defined by section 12 |
| Grounds – Performed in contravention of 5(i), 5(iv), or 5(v)Ceremonies in section 7 not performed.In contravention of section 15 – Divorce not granted yet or time to appeal has not elapsed. | Grounds: Unable to consummate – Impotence (not same as incapacity to conceive or impregnate) Samar vs Snigdha – Full and complete penetration (vera copula) is an essential ingredient of ordinary intercourse though degree of satisfaction is immaterial. Kanthy vs Harry – Unduly large male organ amounts to physical abnormality and thus impotence. Laxmi vs Babulal – Absence of vagina, even though an artificial vagina was created, was held impotence. Jagdeesh vs Seela – Husband lived with wife for 3 days and nights immediately after marriage but could not consummate. Held that it was because of incapacity, nervousness, or hysteria. Thus, was impotent. Shewanti vs. Bharua 1971 – The wife was sterile and suffering from non-menses, though she was capable of normal sexual intercourse. Held is not impotent because the capacity to bear children is not impotence. Impotence only refers to sexual intercourse. In contravention of 5(ii) – Mentally unsound. Alka vs Abhilash, Balakrishna vs Lalitha (see above)Consent obtained by force or fraud. Force – Rice vs Rice – threatened with a pistol. Fraud – Rama vs Mohinder 1996 – Did not tell that she had a child with a cesarean. Fraud – Purbi vs Basudev 1969 – Husband’s pre-marriage boasting about high prospects in life is not fraud. Fraud – Som Dutt vs Raj Kumar 1986 – Wife concealed her age. She was 7 yrs elder. The girl was pregnant by some other person Mahendra vs Sushila 1965 -Girl’s admission to pre-marriage pregnancy when the husband had no access to her. |
| Marriage does not exist at all. | Marriage is fully valid until it is declared void by the court. |
| No consequences of marriage – right in property, conjugal rights, maintenance. | Full consequences while marriage lasts. |
| No decree of the court is necessary. A decree can be obtained by either person. | A court decree is necessary. Marriage can be avoided only on the petition of one spouse. If one person does not petition for annulment, marriage will remain valid. If one person dies, the marriage will remain valid forever. |
| If someone calls the wife a concubine, it will not amount to defamation. | The decree is given retroactively. |
Effects of a void marriage
Section 16 – Children of void (sec 11) or annulled voidable (sec 12) marriage, though termed legitimate under section 16, do not get any right in the joint family of parents. They have the right to the personal self-earned property of their parents.
Spouses cannot claim any matrimonial reliefs.
Illustration – A and B are brothers. W is B’s wife but marriage is void. A dies without any children. B can claim all of A’s property.
In the case of Sudarsan vs State 1988, it was held that this legitimacy is conferred only in cases when marriage is void on account of sec 11 and not if a marriage is void due to another reason such as lack of proper ceremonies.
Explain Judicial separation. What is the difference between Judicial Separation and Divorce? On what grounds can a decree of Judicial Separation be passed?
Judicial separation is a state of marriage authorized by the court where a husband and wife do not live like a married couple. In many situations, it becomes impossible for either spouse to live with the other person. At the same time, they either do not want a divorce or do not have enough ground for divorce. In such a situation, the court may grant a decree of judicial separation.
| Judicial Separation | Divorce |
| Section 10 – Marriage still exists therefore cannot do adultery etc. | Section 13 – Marriage ends. Can remarry subject to sec 15. |
| Not obligatory for the petitioner to cohabit with the partner. | Cannot be undone. |
| Can be rescinded by petition of either party if the court is satisfied. |
Grounds for Judicial separation are the same as given in section 13(1), which are applicable for divorce. A wife has the grounds given in section 13(2) as well. These are given below under Divorce.
Section 13 (1) At fault Grounds
(i) Adultery – Voluntary intercourse with a third person. Does not include rape.
Vira Reddy vs Kistamma 1969 – One single act of adultery is enough for divorce or judicial separation.
The burden of proof is on the petitioner. Earlier it had to be proved beyond doubt but now only high probability is required.
Sanjukta vs Laxmi 1981 – Circumstantial evidence is sufficient.
Cruelty
The legal concept of cruelty has varied from time to time, place to place, and situation to situation. In early law, the intention was considered an essential element of cruelty but in modern law, it is not so. The intention of the law is to protect the innocent party from any harm -physical or mental. Scolding or nagging has also been considered cruelty.
Definition
There is no precise definition of cruelty because the term is so wide. Several situations and cases over the past 100 years have shown that cruelty can be mental or physical. In the case of Dastane vs Dastane 1970 Bom, it was held that cruelty could be through words, gestures, or even by mere silence.
A general explanation of cruelty can be found in the case of Russel vs Russel 1897, in which it was held that any conduct that poses a danger to life, limb, or health – physical or mental, or causes reasonable apprehension of such danger, is cruelty.
Earlier, the petitioner had to show that the act of the respondent caused reasonable apprehension of danger. Thus, in the case of Sayal vs Sarla 1961 Punjab, when wife administered love-potion to the husband, causing his hospitalization, it was held to be cruelty even though she did not mean to hurt her husband because it caused reasonable apprehension of danger. However, now it is not required. The clause merely says, “if the respondent has treated the petitioner with cruelty”. In the case of GVN Kameshwara Rao vs G Jalili 2002, SC held that it is not necessary that the act has caused a reasonable apprehension in the mind of petitioner. The emphasis will be on the act or conduct constituting cruelty. It further held that social status of the parties, their education must be considered while determining whether the act constitutes cruelty or not. Thus, what amounts to cruelty in one case may not amount to cruelty in another.
The intention to be cruel is not material
Earlier intention was necessary but now it is not so. In the case of Jamieson vs Jamieson 1952, House of Lords observed that unintentional acts may also amount to cruelty. In Williams vs Williams 1963 Allahbad, the necessity of intention in cruelty was finally rejected in India. In this case husband was insane and constantly accused the wife of adultery. This was cruelty without intention.
Thus, in the case of Bhagwat vs Bhagwat 1976 Bom, when husband tried to strangulate wife’s brother and he younger son in a fit of insanity, he was held to be cruel. Temporary insanity or schizophrenia cannot be a defense against the plea of cruelty.
Cruelty need not only be against the petitioner
In Bhagwat vs Bhagwat, cruelty against his step daughter was held as cruelty against wife.
The act or omission need not only be of the respondent
Since most women have to live in husband’s joint family, they have to put up with their actions also. In the case of Shyam Sundar vs Santa Devi 1962, the wife was ill treated by the in-laws and husband stood their idly without caring for wife. This was held as cruelty.
However, in the case of Gopal vs Mithilesh 1979 Allahbad, husband’s stand of neutrality regarding wife and mother and his inaction about his mother’s nagging of his wife was not considered cruelty because it is normal wear and tear of a married life.
Cruelty of Child
Generally, cruelty by child towards one parent does not amount to cruelty. However, in the case of Savitri vs Mulchand 1987 Delhi, mother and son acted in concert and the son tortured the father by squeezing his testicles to force him to do what they wanted him to do, which was considered cruelty against the wife.
Types of cruelty – Physical and Mental
Physical Cruelty
Injury to body, limb, or health, or apprehension of the same. In the case of Kaushalya vs Wisakhiram 1961 Punj, husband beat his wife so much so that she had to lodge a police complaint even though injury was not serious. It was held that serious injury is not required.
Mental Cruelty
In Bhagat vs Bhagat 1994 SC held that a conduct that causes such a mental pain and suffering that makes it impossible to live with that person is mental cruelty. Mental cruelty must be such that it cannot reasonably be expected to live together. This has to be judged on the circumstances of the case.
In the case of N Sreepadchanda vs Vasantha 1970 Mysore, wife hurled abuses at the husband and quarreled over trivial matters so much so that he became a laughing stock in the locality. This was held to be mental cruelty against the wife.
In Saptami vs Jagdish 1970 Calcutta, false accusations of adultery were held to be mental cruelty.
Yashodabai vs Krishnamurthi 1992 – Mere domestic quarrels with mother in law is not cruelty.
Shobha vs Madhukar 1988 SC – Constant demand for dowry is cruelty.
In the case of Jyotishchandra vs Meera 1970, husband was not interested in wife, he was cold, indifferent, sexually abnormal and perverse. It was physical as well as mental cruelty.
Desertion
3 Types – Actual Desertion, Constructive Desertion, Willful neglect.
Actual Desertion – factum of desertion, animus deserdendi, Without reasonable cause, without consent, 2 yrs must have passed.
Lachman vs Meena – 1964 – Wife was from rich family. She was required to live in a joint family of husband. She went back to parents. Kept making fake promises of return but never did. Held desertion.
Jagannath vs Krishna – Wife became brahma kumari and refused to perform marital obligations. Held desertion.
Bipinchandra vs Prabhavati SC 1957 – Husband went to England. Husband’s friend came to house in India. Husband came back. Alleged affair, which was refuted by the wife. Wife went to her parents for attending marriage. Prevented her from coming back. Held no desertion by wife.
Sunil Kumar vs Usha 1994 – Wife left due to unpalatable atmosphere of torture in husband’s house. Held not desertion.
Constructive Desertion – If a spouse creates an environment that forces the other spouse to leave, the spouse who created such an environment is considered deserter.
Jyotishchandra vs Meera 1970 – Husband was not interested in wife, he was cold, indifferent, sexually abnormal and perverse. Went to England. Then came back and sent wife to England for PhD. When wife came back, did not treat her well. Abused her and his inlaws physically. Wife was forced to live separately. Held desertion by husband.
Willful Neglect – If a spouse intentionally neglects the other spouse without physically deserting, it is still desertion.
Balihar vs Dhir Das 1979 – Refusing to perform basic marital obligations such as denial of company or intercourse or denial to provide maintenance is willful neglect.
Reasonable Cause
1. If there is a ground for matrimonial relief. ( ground for the void, voidable marriage, or grounds for maintenance under sec 18 of HAMA).
2. If the spouse is guilty of matrimonial misconduct that is not enough for matrimonial relief but is still weighty and grave.
3. If a spouse is guilty of an act, omission, or conduct due to which it is not possible to live with that spouse.
Chandra vs Saroj 1975 – Forcing a brahmin wife to eat meat.
Without Consent
Bhagwati vs Sadhu Ram 1961 – Wife was living separately under a maintenance agreement. Held not desertion.
Other Grounds
Section 13 (ii): ceased to be a Hindu.
Section 13 (iii) unsound mind. – includes mental disorders such as incomplete development of the brain or psychopathic disorder or schizophrenia
Section 13 (iv) virulent and incurable Leprosy
Section 13 (v) communicable venereal disease
Section 13 (vi) renounced the world
Section 13 (vii) presumed dead – not heard of in 7 years.
Section 13 (1-A) Breakdown Theory
(i) no cohabitation for 1 yr after passing the decree of judicial separation.
(ii) no cohabitation for 1 yr after passing the decree of restitution of conjugal rights.
Effected by provisions in section 23.
Section 13(2) Additional grounds for the wife
(i) Another wife of the husband is alive.
(ii) Rape, Sodomy, Bestiality.
(iii) Wife was awarded maintenance under section 15 of HAMA 1956 or under section 125 of CrPC and no cohabitation has occurred for 1 yr after the award.
(iv) If the wife was under 15 at the time of marriage and if she repudiates the marriage before 18.
Section 13-A Alternate relief in divorce proceedings – If the judge feels that sufficient grounds do not exist for divorce, he can grant judicial separation.
Section 13-B Divorce by mutual consent
Keywords: Concept of Marriage, Concept of Marriage Under Hindu Marriage Act 1955, Concept of Marriage Definition, Concept of Marriage in India, Concept of Marriage Under HMA, 1955, Concept of Marriage: Sacramental or Contractual
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