Conditions, Ceremonies and Registration of a Hindu Marriage

The row that surprises everybody is (iii). A marriage in breach of the age condition is a perfectly valid Hindu marriage under this Act. Section 11 makes a marriage void only if it contravenes clauses (i), (iv) and (v) of section 5, and the age condition is not among them. The consequences of underage marriage come from section 18(a), and from a different statute altogether.

The punishments in section 18 are worth the exact figures, because they are asked as one-sentence questions. A person who procures his or her own marriage in breach of clause (iii), the age condition, is punishable with rigorous imprisonment up to two years, or fine up to one lakh rupees, or both. A breach of clause (iv) or (v), prohibited relationship or sapinda, is punishable with simple imprisonment up to one month, or fine up to one thousand rupees, or both. Notice the mismatch: the breach that does not affect validity carries by far the heavier sentence, because Parliament raised it while leaving the older penalty alone.

Section 6 is omitted

Section 6 was headed "Guardianship in marriage" and was omitted by the Child Marriage Restraint (Amendment) Act 1978, section 6 and the Schedule, with effect from 1 October 1978. The number is dead. It is mentioned here because a reader who counts from 5 to 7 should know why nothing is missing.

Section 7: ceremonies

Section 7(1) provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party to it.

Section 7(2) provides that where such rites and ceremonies include the saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken.

Two things follow, and they pull in opposite directions.

The Act prescribes no ceremony of its own. It sends you to the custom of either party, and different communities have different rites. So a marriage may be validly solemnized by rites that involve no fire and no seven steps at all, if that is what the custom of one of the parties provides.

But where saptapadi is part of the applicable rites, section 7(2) fixes the exact moment of completion, and until the seventh step there is no marriage. That is not a technicality. It decides cases.

Bhaurao Lokhande, and why bigamy prosecutions fail

Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564, decided on 1 February 1965.

Facts. The first appellant was convicted under section 494 of the Indian Penal Code for going through a marriage during the lifetime of his first wife, and the second appellant of abetting him. It was not disputed that at the second marriage the two ceremonies of invocation before the sacred fire and saptapadi had not been performed.

Held. The conviction could not stand. For section 17 of this Act, and for section 494 of the Penal Code, the second marriage must have been solemnized, and a marriage is not solemnized unless it is celebrated or performed with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married does not make those ceremonies ones prescribed by law or approved by an established custom. Invocation before the sacred fire and saptapadi are essential to the validity of a Hindu marriage, and are a requisite part of a gandharva marriage too, unless it is shown that custom in the particular community or caste has modified them.

Why it matters here. It is the working authority on section 7. It also decides how section 17 operates. The practical result is that a prosecution for bigamy must prove the ceremonies of the second marriage, and proof that the parties lived together as husband and wife, or even an admission that they married, will not do. That is the single largest reason section 17 prosecutions are so rarely successful, and it is a favourite examination point.

Section 8: registration

Section 8(1) provides that for the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties may have the particulars of their marriage entered in a Hindu Marriage Register.

Section 8(2) permits the State Government, where it thinks it necessary or expedient, to make that entry compulsory, in the whole State or a part of it, in all cases or in specified cases; and where such a direction has been issued, a person contravening a rule made in that behalf is punishable with fine which may extend to twenty-five rupees. The figure has never been revised and is worth quoting, because it shows how lightly the Act treated registration.

Section 8(3) requires rules made under the section to be laid before the State legislature. Section 8(4) provides that the Hindu Marriage Register is open for inspection at all reasonable times, is admissible as evidence of the statements in it, and that certified extracts are to be given by the Registrar on payment of the prescribed fee.

Then comes section 8(5), which answers the examination question: notwithstanding anything in the section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry. Registration is a matter of proof, not of validity. An unregistered Hindu marriage that satisfies sections 5 and 7 is a perfectly good marriage; a registered marriage that fails section 5 is still void.

Seema v. Ashwani Kumar

Seema v. Ashwani Kumar, (2006) 2 SCC 578, order of 14 February 2006, with a further order of 9 July 2008.

Facts. A transfer petition, in which the Supreme Court took up the wider question of the registration of marriages in India rather than confining itself to the dispute before it.

Held. The Court gave directions to the States and Union Territories about framing the necessary rules. The procedure for registration was to be notified by each State within three months, by amending existing rules or framing new ones, after inviting objections from members of the public and giving due publicity. The order of 9 July 2008 followed up on compliance.

Why it matters here. That is why every State now has a registration rule and why registration is in practice compulsory across India. It is also why students conclude, wrongly, that an unregistered marriage is invalid. The direction changed the administrative position. It did not and could not amend the closing words of section 8.

A worked example

Ravi married Sita in 2020. At the time Ravi had a wife living. Sita was seventeen. They married by saptapadi. Ravi's brother married a woman within the sapinda relationship, and a third brother married a woman who was of sound mind but subject to recurrent attacks of insanity. None of the marriages was registered.

Ravi's marriage. Section 5(i) requires that neither party has a spouse living. Breach makes the marriage void under section 11, and it attracts section 17.

Sita's age. Section 5(iii) requires the bridegroom to have completed twenty-one and the bride eighteen. Breach makes the marriage neither void nor voidable under this Act; it is punished under section 18(a), and the Prohibition of Child Marriage Act 2006 makes it voidable at Sita's option, taken in [Child Marriage, and the Prohibition of Child Marriage Act 2006].

The sapinda marriage. Section 5(v) forbids it unless the custom or usage governing each of them permits it. Breach makes the marriage void under section 11.

The third brother's marriage. Section 5(ii)(c), recurrent attacks of insanity, makes the marriage voidable under section 12(1)(b).

Was the saptapadi enough? Section 7(1) adopts the customary rites and ceremonies of either party; section 7(2) completes a saptapadi marriage at the seventh step. If the seventh step was not taken there is no marriage, which is the point in Bhaurao Lokhande.

Does non-registration invalidate anything? No. Section 8(5): the validity of a marriage is in no way affected by the omission to make an entry. But section 8(2) allows a State to make registration compulsory, and after Seema v. Ashwani Kumar registration of marriages of all citizens has become compulsory in practice.

And section 6? Omitted. It had required the consent of a guardian in marriage.

What it does NOT mean

The five conditions do not carry the same consequence. Monogamy, prohibited degrees and sapinda make a marriage void; the three mental-capacity limbs make it voidable; age makes it neither under this Act.

Section 5(ii) is not one condition. It is three: incapable of giving valid consent through unsoundness of mind; mental disorder of a kind or extent unfitting the person for marriage and the procreation of children; and recurrent attacks of insanity.

Section 7 does not prescribe a ceremony. It adopts the custom of either party.

Saptapadi is not always required. Only where the rite chosen includes it.

Registration does not make a marriage valid. Section 8(5) says the validity is in no way affected by an omission to register.

Registration is not therefore useless. The entry is evidence and, after Seema, is compulsory in practice.

Section 6 no longer exists. The guardianship in marriage it required has been omitted.

Quick revision

• s.5, five conditions: (i) neither party has a spouse living; (ii) neither is incapable of consent through unsoundness of mind, nor suffering from a mental disorder unfitting for marriage and procreation, nor subject to recurrent attacks of insanity; (iii) the bridegroom has completed twenty-one and the bride eighteen; (iv) the parties are not within the degrees of prohibited relationship unless custom permits; (v) they are not sapindas unless custom permits.
• Consequences: (i), (iv), (v) make the marriage void under s.11; (ii) makes it voidable under s.12; (iii) makes it neither, and is punished under s.18(a).
• s.6: omitted.
• s.7: solemnization in accordance with the customary rites and ceremonies of either party; where they include saptapadi, the marriage is complete at the seventh step.
• s.8: registration for facilitating proof; a State may make it compulsory; the register is open to inspection and is evidence; and by s.8(5) the validity of a marriage is in no way affected by an omission to register.

Test yourself

1. State the conditions of a valid Hindu marriage. Neither party has a spouse living at the time of the marriage; neither is incapable of giving a valid consent in consequence of unsoundness of mind, or though capable has been suffering from a mental disorder of such a kind or extent as to be unfit for marriage and the procreation of children, or has been subject to recurrent attacks of insanity; the bridegroom has completed twenty-one years and the bride eighteen; the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits a marriage between the two; and they are not sapindas of each other unless such a custom or usage permits it.

2. Which of those conditions makes a marriage void, and which voidable? Breach of conditions (i), (iv) and (v) makes the marriage void under section 11. Breach of condition (ii) makes it voidable under section 12(1)(b). Breach of the age condition (iii) makes it neither void nor voidable under this Act, though it is an offence under section 18(a).

3. What ceremonies does the Act require? None of its own. Section 7(1) provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party, and section 7(2) that where those rites include the saptapadi the marriage becomes complete and binding when the seventh step is taken.

4. Does failure to register affect the validity of a marriage? No. Section 8(5) provides that the validity of any Hindu marriage shall in no way be affected by the omission to make the entry, though the entry is admissible as evidence and a State Government may make registration compulsory.