Marriage

What is Marriage?

Marriage also is known as matrimony or wedlock is a legally recognized union of two people in a socially and recognized process that establishes rights and obligations between those persons and also between their (if any) biological or adopted children. 

Essentials of a Valid Marriage

Hindu Law

Section 5 of the Hindu Marriage Act, 1955 explains conditions for a valid marriage which are as follows:- (See Here)

 

Monogamy- Neither party at the time of marriage should have a spouse who is alive. The spouse being alive will bar the remarriage of either party and even if the remarriage happens it will be null and void and the party will be punished under Section 494 and Section 495 of Indian Penal Code, 1860. It must be taken into account that the first marriage of the party is legal. This condition prohibits the concept of bigamy or polygamy.

Mental health and capacity- The condition covers three important things:- 

Party should not be incapable of giving a valid consent due to unsound mind. 

Even if the party gives consent, he must not be suffering from any mental illness at such a rate to be unfit for marriage or procreation of children. The party should not be subjected to repeated attacks of insanity which would render him/her unfit for marriage. If a party suffers from a mental defect after marriage then the marriage does not violate this condition. 

Marriageable age- For party to be eligible for marriage, he/she must have completed 18 years of age in case of the bride and 21 years of age in case the bridegroom. However violation of this condition does not make the marriage void or voidable. It is valid though it will be penalised. It can be a valid ground for repudiating the marriage. The punishment for such a marriage prescribed under this Act is imprisonment for 15 days or a fine of Rs. 1,000 or both. 

Degree of prohibited relationship- This condition covers the following relationships between two parties:- 

  1. By lineal ascent
  2. By affinity

The parties should not come under the degree of prohibited relationship. 

Sapinda Relationship- Two persons are sapindas of each other if one is the lineal ascendant of the other within the limits of sapinda relationship or there is a common lineal ascendant between them. 

Marriage under Hindu law is sacrament and not a contract which can be entered into by executing a deed. (See Here)

 

 

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Muslim Law

Muslim marriage is regulated by custom. Muslim marriage is a contract with the sole object of procreating heirs. The following are the essentials of a valid Muslim marriage:- (See Here

Parties must be of sound mind– Lunatics can get married at lucid intervals when they can understand what they are doing. Idiots cannot do that. Idiocy is a state of mind where a person cannot understand the consequences of his action. An insane person can contract a marriage with the help of a guardian but on recovering he can repudiate the marriage. 

 

Parties must have attained puberty– The age of majority under this law is the age at which parties have attained puberty.  A person who is 15 years old is said to have attained puberty unless the otherwise proved. 

The religion of both parties– For a valid marriage, both parties must be Muslims irrespective of the sect. 

Consent– Both parties can give consent to the marriage on their own. If one of the parties is of unsound mind, consent can be given by his/her legal guardian. Consent must be given willingly without fraud, coercion or mistake of fact. 

Christian Law 

The Indian Christian Marriage Act, 1872 governs Christian marriages in India. The conditions for getting a certificate of valid marriage are similar to Hindu Marriage Act, 1955. 

  1. The groom must be at least 21 years of age and the bride at least 18 years.
  2. Neither party should have a spouse living at the time of marriage.
  3. The bride and groom need a licensed person (refer to Part I of  Indian Christian Marriage Act, 1872) and two witnesses.
  4. Finally, they need to speak certain words in front of these persons. 

Parsi Law

The Parsi Marriage and Divorce Act, 1936 governs Parsi marriages in India. Section 3 lays down the following conditions for a valid marriage:-

  1. A ceremony called “Ashirvad” must take place in the presence of a priest and two Parsi witnesses.
  2. Just like the HMA, no prohibited relationships as per Schedule I.
  3. The bride and the groom should be 21 years old and 18 years old respectively.

Special Marriage Act, 1954

The Act covers all marriages which are not covered in the above categories and its main objective is to legalise inter-religion marriages. Parties belonging to the same religion can also be married under this Act. The conditions for a valid marriage are as follows:-

  1. Neither party must have a living spouse at the time of marriage.
  2. The parties must be of sound mind, capable of giving free consent and not subject to recurrent attacks of insanity or epilepsy.
  3. They should not come under prohibited degrees of relationship with each other.
  4. The bride and the groom should be 21 years old and 18 years old respectively.

What are Void and Voidable Marriages?

Section 11 of Hindu Marriage Act, 1955 defined void marriages as those marriages which were solemnised after the commencement of this Act if a petition is presented by either party against another party and will be declared the same by a decree of nullity if it violates some conditions of a valid marriage. 

Section 12 of Hindu Marriage Act, 1955 defines a voidable marriage as a marriage which can be annulled or avoided at the discretion of the parties. 

The following are the differences between these two marriages:-(See Here)

  1. In a void marriage, it is the parties discretion even without recourse to the court to treat it as a nullity. Neither party is under any obligation to seek a declaration of nullity under this section. When a marriage is void, the court regards it as never having taken place and that there is no conferment of status of matrimony as a result thereof. A voidable marriage, on the other hand, is regarded by the court as a valid and subsisting marriage until a decree of nullity is obtained during the lifetime of the parties. In a void marriage, the decree declares the status and in a voidable marriage the decree changes the status.
  2. In a voidable marriage, till it is annulled by a decree, the parties are husband and wife and children out of such marriage are legitimate. A voidable marriage can be avoided only on presentation of a petition by either party thereto whereas a marriage which is null and void may be declared under ordinary law to be so even at the instance of a stranger whose interests are affected by such marriage. 
  3. In a void marriage, lapse of time is not a bar to the inquiry as to their validity or invalidity. Thus it can be questioned at any time because it is seeking a relief of declaration regarding status. Whereas a marriage which is voidable cannot be questioned after the death of either party.
  4. In a void marriage, no rights or obligations are created between the parties to marriage, which arise in lawful marriages in normal course as a void marriage stands nullified from the very beginning.

 

Kinds Of Marriage

Hindu Law

Muslim Law

Parsi Law

Christian Law

Special Marriage Act, 1954

Void Marriage

  1. Either party has a living spouse at the time of marriage. 
  2. Parties come under degree of prohibited relationship. 
  3. Parties are sapindas of each other.

Also called Batil Marriage. A marriage performed in violation of the rules of consanguinity, fosterage or affinity or with another man’s wife. (See Here)

Under The Parsi Marriage and Divorce Act, 1936, the following are the grounds of a void marriage:- (See Here)

  1. Parties come under the degree of prohibited relationship as given in Schedule I.
  2. Necessary formalities for marriage are not followed.
  3. Either party is below the age of eligibility for marriage.
  4. Either party is impotent.

According to Indian Christian Marriage Act, 1872, the following are the grounds of a void marriage:- (See Here)     

  1. Marriage not solemnized by any authority declared as competent to solemnize a marriage.      

  1. Out of proper time and in absence of two credible witnesses. 
  2. Marriage solemnized without the publication of the notice. 
  3. Parties are within the prohibited degrees of consanguinity and affinity. 
  4. Either party was of unsound mind at the time of the marriage.

Section 24 states about void marriages. The grounds for such marriage are as follows:-

  1. Essential conditions of a valid marriage are violated.
  2. Respondent was impotent at the time of marriage and institution of suit. 

Voidable Marriage

  1. Inability of the respondent to consummate the marriage on account of his or her impotency.
  2. Respondent’s incapacity to consent or suffering from a mental disorder. 
  3. Consent of the petitioner being obtained by fraud or force. 
  4. Concealment of Pre-marriage pregnancy by the respondent.

There is no concept of voidable marriage in Muslim law.

There is no concept of voidable marriage in Parsi law.

Impotency, insanity and forceful declaration to agree for marriage.

Section 25 states about voidable marriages. The grounds for such marriage are as follows:- 

  1. Non-consummation of marriage due to refusal of the respondent.
  2. Respondent was pregnant at the time of marriage by someone not being the  petitioner.
  3. Either party’s consent was obtained by coercion or fraud.

 

Registration of Marriage

All marriages in India are compulsorily registered under two Acts namely:- (See Here)

  1. Hindu Marriage Act, 1955
  2. Special Marriage Act, 1954

 

Registration 

Of Marriage

Hindu Law

Muslim Law (See Here)

Parsi Law

Christian Law

Special Marriage Act, 1954

Documents required for registration

  1. Application form duly signed by both husband and wife.
  2. Age and address proof of both parties. 
  3. Affidavit of Notary/Executive Magistrate to prove stating place and date of marriage, date of birth, marital status at the time of marriage and nationality. 
  4. Two passport size photographs of both the parties and one photograph of the marriage ceremonies. 
  5. Invitation card of marriage. 
  6. If marriage was solemnized in a religious place, a certificate from the priest is required who solemnized the marriage. 
  7. Attested copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower. 
  8. In case one of the parties belong to other than Hindu, Buddhist, Jain and Sikh religions, a conversion certificate from the priest who solemnized the marriage(in case of Hindu Marriage Act).
  1. Marriage registration application form duly signed by both husband and wife. 
  2. Documentary evidence of date of birth of parties (Matriculation Certificate / Passport/ Birth Certificate). 
  3. Address Proof of husband or wife ( Voter id/ Passport/ Aadhar). 
  4. Affidavit by both the parties stating place and date of marriage, date of birth, marital status at the time of marriage and nationality. 
  5. 3 passport size photographs of both the parties and two marriage photograph. 
  6. Marriage invitation card. 
  7. 3 witness having ID proof ( 2 passport size photograph each). 
  8. Nikahnama or the certificate from Religious place. 
  9. Marriage can also be registered under Special Marriage Act, 1954.

  1. Marriage can be registered under Special Marriage Act, 1954. 
  2. Certificate of marriage to be signed by parsi priest. 
  3. Parties to the marriage, two witnesses and the said priest shall send such certificate along with a fee of Rs. 2 to be paid by husband to Registrar of the place where marriage was solemnized.
  1. Application form duly signed by both husband and wife. 
  2. Age and address proof of both parties, 
  3. Affidavit of Notary/Executive Magistrate to prove stating place and date of marriage, date of birth, marital status at the time of marriage and fit mental condition.
  4. Two passport size photographs of both the parties and one photograph of the marriage ceremonies. 
  5. Invitation card of marriage.
  6. The marriage certificate issued by the priest.
  7. All documents should be attested by a Gazetted Officer.
  1. Application form duly filled and signed by the bride and the groom. 
  2. Age and address proof of both parties 
  3. Separate affidavits from bride and groom giving: Age and Date of birth, Present marital status: unmarried/widower/ divorcee. 
  4. Affirmation that the parties are not related to each other within the degree of prohibited relationship, fit mental condition defined in the Special Marriage Act. 
  5. Passport size photographs of both parties (2 copies each) duly attested by a Gazetted Officer. 
  6. Copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower.

 

Under Hindu Marriage Act, 1955 both parties have to be present along with their guardians or witnesses within 1 month from the date of marriage. Marriage is registered before a marriage registrar or tehsildar of the district where the parties got married. Notice is not required. It can be done on the same day of filing of application or few days of moving the application for marriage. Parties will receive a marriage certificate which will prove the registration of marriage.

Under Special Marriage Act, 1954, both parties must be present for registration along with 3 witnesses in whose presence the marriage is solemnized by the Marriage Officer. Marriage is registered and the parties receive marriage certificate after a few days.

Quiz on Marriage

1.) The Hindu Marriage Act, 1955 does not apply to which of the following? 

A.) Jain 

B.) Sikhs 

C.) Buddhist 

D.) Parsis 

2.) Under the Hindu Marriage Act, 1955, “sapinda relationships” extends through the mother till- 

A.) Third Generation 

B.) Fourth Generation 

C.) Fifth Generation 

D.) Seventh Generation 

3.) What is the legal age for marriage under the Hindu Marriage Act? 

A.) 21 for both Male and Female 

B.) 21 for Male and 18 for Female 

C.) 18 for both Male and Female 

D.) None of These 

4.) Which of the following is the correct forum to file a petition for restitution of conjugal rights? 

A.) Court of 1st class judicial magistrate 

B.) Munsif Magistrate 

C.) District Court 

D.) High Court 

5.) Marriages under Section 5(ii) of the Hindu Marriage Act, 1955 are 

A.) Null 

B.) Null and Void 

C.) Voidable 

D.) Void 

6.) Under the Hindu Marriage Act, 1955, what is the minimum time period of desertion by either of the spouse required before filing for a divorce? 

A.) 1 year 

B.) 2 years 

C.) 5 years 

D.) 7 years 

7.) What is the minimum period that should elapse before either of the spouse can file a divorce petition under Hindu Marriage Act, 1955? 

A.) 3 months of marriage 

B.) 6 months of marriage 

C.) 1 year of marriage 

D.) 2 years of marriage 

8.) What is the prescribed punishment for breaching the minimum age requirement under the Hindu Marriage Act, 1955? 

A.) 15 days imprisonment or Rs 1000 fine or both 

B.) 30 days imprisonment or Rs. 1000 fine or both 

C.) 15 days imprisonment or Rs 5000 fine or both 

D.) None of These 

9.) When were women given a right to inherit property under Hindu Succession Act, 1956? 

A.) 2005 

B.) 2006 

C.) 2007 

D.) 2008 

10.) Under the Hindu Adoption and Maintenance Act, 1956, what is the maximum age for a person to be taken for adoption? 

A.) 15 years 

B.) 16 Years 

C.) 17 Years 

D.) 18 Years 

11.) Can a child adopted under Hindu Adoption and Maintenance Act, 1956 renounce his adoption? 

A.) Yes 

B.) No 

C.) Yes, with consent of both the parents 

D.) Yes, after attaining the age of majority 

12.) What is the punishment prescribed for payment in exchange of adoption under the Hindu Adoption and Maintenance Act, 1956? 

A.) 3 months imprisonment 

B.) 6 months imprisonment 

C.) 1 year imprisonment 

D.) 2 years imprisonment 

13.) Under the Hindu Adoption and Maintenance Act, a widowed daughter-in-law is entitled to maintainace by her 

A.) Father-in-law 

B.) Father 

C.) Deceased husband’s brother 

D.) None of the above 

14.) The consideration for marriage under Muslim law is know as 

A.) Mahr 

B.) Khula 

C.) Mubarat 

D.) Zihar 

 

15.) Which of the following forms of Talaq is not recognised by Shias? 

A.) Talaq-i-sunnat 

B.) Ila 

C.) Talaq-i-Biddat 

D.) None of the above 

16.) Under the Hindu law, divorce by mutual consent was introduced after what year? 

A.) 1955 

B.) 1963 

C.) 1976 

D.) 2005 

17.) A marriage between a Hindu man and a Muslim woman can be validated under which legislation? 

A.) Special Marriage Act, 1954 

B.) Hindu Marriage Act, 1955 

C.) Cannot be validated 

D.) None of these 

18.) Can the adoptive father or mother under the Hindu Adoption and Maintenance Act, 1956 give the child for further adoption? 

A.) Yes 

B.) No 

C.) Yes, with the consent of child 

D.) None of these 

19.) A Hindu couple is permitted to adopt a Muslim child under which legislation? 

A.) Juvenile Justice Act, 2015 

B.) Hindu Adoption and Maintenance Act, 1956 

C.) Children Welfare Act, 1978 

D.) None of these 

20.) As per the Hindu Marriage Act, ‘degrees of prohibited relationships’ apply to persons if they are related by- 

A.) Full Blood 

B.) Half of Uterine Blood 

C.) Adoption 

D.) All of these 

Answers 

1.) D 2.) A 3.) B 4.) C 5.) C 6.) B 7.) C 8.) A 9.) B 10.) A 11.) B 12.) B 13.) A 14.) A 15.) C 16.) C 17.) A 18.) C 19.) A 20.) D 


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2 COMMENTS

  1. I want to know, if a couple both of whom are Parsis are married under the Parsi Marriage Act, is there any advantage in also being married under the Special Marriage Act?
    Can they be married under both marriage acts?
    If they are married under both, which takes precedence?

    • As far as special marriage act, it is totally concerned if a criterion is not fulfilled in the respective marriage acts. For instance, let’s say if a Hindu wants to marry then all the conditions under section 5 of HMA has to be fulfilled and most importantly both parties have to be Hindus. As per your question if both parties are Parsis then the Parsi marriage act shall prevail, else if any party fails to fulfil any criteria under Parsi Marriage Act, the doors for Special Marriage Act are always open.

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