Clarification of Sapinda relationship - FREE LEGAL ADVICE
Does our relationship accounts for Sapinda Relationship? Can we get married as per Hindu Marriage Acts? Kindly guide me Regards. Dear experts please explain to me if my relationship with my wife can be classified as Sapinda under Hindu Marriage Act Below is the family. under ancient Hindu law and its modifications by the Hindu Marriage Act, This chapter also . But according to Yajnavalkya, sapinda relationship extends.
A and B, both major, enter into a matrimonial relationship with each other and with their own consent but without the consent of their parents. Is this marriage illegal? No, this marriage is not illegal merely because the parents of A and B have refused their consent. But what would be the position if both A and B are already married to say C and D or either A or B is married to someone else? This effect provided for in section 11 and 12 of the Act.
Out of these two sections it is section 11 that deals with nullity of marriage. It provides as under: The effect of the above two sections, i. Under law, these marriages would have no recognition except as is provided under any law. It has been held by various High Courts that conditions mentioned is section 11 rendering a Hindu marriage null and void are exhaustive. It is only on these grounds that that a Court can grant a decree of nullity.
Following are the grounds which shall render a marriage void: The first condition for valid Hindu marriage is that none of the parties to the marriage shall have a spouse living it the time of their marriage. If either of them has a spouse alive from an earlier marriage, their subsequent marriage is no marriage in the eyes of law. It is void ab initio and non est, i. Persons falling within degrees of prohibited relationships: Those conditions have been laid own in Sec 5 and 7of the Act.
Section reads as follows. By virtue of section 5 of the Hindu Marriage Acta marriage will be valid only if both the parties to the marriage are Hindus.
Marriage legal or not between same paternal line
This section lays down five conditions for a valid marriage. Monogamy Sec 5 Clause 1 This provision Prohibits bigamy. The marriage should be monogamous. Under the Hindu Law a person can validly marry if he or she is either unmarried or divorced or a widow or a widower.
If at the time of the performance of the marriage rites and ceremonies either party has a spouse living and the earlier marriage had not already been set aside, the later marriage is void. A bigamous marriage is null and void and is made punishable. It is a permanent union i.
It is an eternal union i. It is a holy union i. Since Hindu marriage was considered to be sacrament, the consent of the parties did not occupy any important place.
- Sapinda Relationship
- Most Consulted Family Law Advocates
- Salient features of the Hindu Marriage Act, 1955
Thus the person married may be a minor or even of unsound mind, if the marriage is duly solemnised there is valid marriage. Under the Contract Act, the contract of a minor or of a person of unsound mind is void.
Void Marriage - Nullity Of Marriage
This shows that despite the fact that a party is able to prove the absence of consenting mind, the marriage will continue to remain valid. The modern concept of marriage is contractual in nature. It receives the ideals of liberty and equality free volition of individuals.
Today, it is an established notion of the west that marriage, to be effective, must be an agreement voluntarily entered into by both parties In the light of modern concept of marriage could we say that Hindu marriage continues to be sacrament? By recognising the divorce and widow remarriage the first two characteristics of sacramental marriage have been waived. However, the third characteristic is still retained.
Section 3 in The Hindu Marriage Act,
To sum up the Hindu marriage has not remained a sacrament and has also not become a contract, but it has a semblance of both. Forms of marriage The ancient Hindu law recognised three forms of Shastric marriages as regular and valid. These were Brahma bride given gift by fatherGandharva mutual agreement of bride and bridegroom and Asura bride virtually sold by the father.
The first and the third are arranged marriage whereas the second one is love marriage. Forms of marriages in modern Hindu law: The Hindu marriage Act,does not specially provide for any forms of marriage. The Act calls marriage solemnized under the Act as Hindu marriage which may be performed in accordance with shastric rites and ceremonies or in accordance with the customary ceremonies prevalent in the community to which bride or bridegroom belongs.
However, it does not mean that a marriage cannot take any of the aforesaid forms now. Marriage can still be entered into in anyone of the three forms. Looking at from another aspect in Hindu society there are mainly two forms of marriages: Most Hindu marriages are still arranged marriages. An arranged marriage may be either in the form of Brahma marriage or in the form of Asura marriage.
Among the Sudras, the Asura form of marriage is very common. Among the high-class Hindus, the Brahma form of marriage is common. The Gandharva form of marriage is fast becoming popular among the younger generation. Ceremonies Marriage among Hindus being a religious and sacred tie, performance of certain ceremonies is still necessary for a valid marriage.
There were three important stages wherein certain ceremonies were to be performed. It is actual giving away of the girl in marriage by her father. The performance of Saptapadi marked the completion of a marriage. It made the marriage irrevocable. As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the ceremonies of marriage, its non performance will invalidate the marriage.
The performance of vedic rights is not enough to solemnise the marriage. Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi. It may be totally non-religious ceremony or it may be very simple ceremony. For instance, among santhals smearing of vermilion by bridegroom on the forehead of the bride is the only essential ceremony. Necessary ceremonies, shastric or customary, whichever are prevalent on the side of the bride or bridegroom, must be performed otherwise marriage will not be valid.
No one can innovate new ceremonies and a marriage performed with the innovated ceremonies and rites is invalid. Hindu Marriage Act allows inter-caste marriages. But marriage between a Hindu and a non Hindu is not permissible under Hindu Marriage Act and such a marriage if performed in India, will be invalid. But foreign country such marriage is valid.
Such marriage is also valid in India, if performed under the Special Marriage Act, Conditions for the validity of marriage Section 3 and 5 A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely: According to this section both the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the other a non Hindu or both are non Hindus, the marriage will not be a subject matter of this Act but will relate to some other law i.
Special Marriage Act etc.
Clause i — Condition of monogamy This condition implies monogamy and prohibits bigamy or polygamy. If the spouse is alive at the time of marriage that could bar the remarriage of a person. However one must note that the first marriage of a person should be a legally valid marriage. The Scheduled Tribes are exempted from the application of the Act. But there must be a proved custom to this effect. Bigamy — Section 5 i Section 5 i prohibits bigamy or polygamy.
Section 11 makes a bigamous marriage void and Section 17 makes it a penal offence for both Hindu males and females under Section and of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are performed. 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.
Clause ii — Condition regarding mental health or capacity Sub clause a requires that at the time of marriage neither party is incapable of giving a valid consent to marriage due to unsoundness of mind. Sub clause b — Mental disorder: According to sub-clause b at the time of marriage neither party to marriage should be suffering from a mental disorder of such nature and to such a degree as to be unfit for two purposes i marriage and ii procreation of child.
In Tarlochan Singh v. Jit Kaur, the court held the marriage void on the ground that wife was suffering from schizophrenia within short period after marriage and the disease was not disclosed to the husband before marriage. Sub clause c — Recurrent attacks of insanity: If a person has been subject to recurrent attacks of insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even during a lucid period.
Post marriage mental illness: If a party to a marriage is not suffering from any mental defect described under section 5 ii but fails ill mentally after the marriage, there is no violation of this condition. Clause iii — Condition of marriageable age According to this clause, at the time of marriage the bride must have completed the age of 18 years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage Act. However, violation of this condition does not make the marriage void or voidable.
It means that it is valid though it may attract penalties. But it can become a valid ground for repudiation of the marriage. According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or herself in contravention of Section 5 iii may be punished with upto 15 days imprisonment or with a fine upto Rs.
Under the Child Marriage Restraint Act,a male above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months imprisonment and is also liable to fine. The Child Marriage Restraint Amendment Act has also raised the age of marriage of girl to eighteen.