FAMILY LAW -I

UNIT 1 LECTURE 2
GUNJAN AGRAHARI
Assistant Professor Law, DME, Noida

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 OBJECTIVES
Objective: The objective of the lecture is to apprise the students with the kinds
of marriage prevalent in ancient India and post independence.
Kids of marriages viz. valid, void, voidable as provided in Hindu Marriage
Act, 1955.

Outcome: Students will be acquainted with legal provisions related to

marriage, kinds of marriages.

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 TEXT BOOKS AND REFERENCES
• Text Books:
• 1. Paras Diwan, Modern Hindu Law, Allahabad Law
Agency, 1993
• 2. Mulla, Principles of Hindu Law, Lexis Nexis, 2007
• References:
• 1. Kusum, Marriage and Divorce Law Manual, Universal
Law Publishing Co. Pvt. Ltd.,2000
• 2. B.M. Gandhi, Family Law, Eastern Book Company, 2012
• 3. Paras Diwan – Family Law, Allahabad Law Agency, 2001

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 Unit-I: Hindu Marriage and Dissolution
(Lectures -10)

• a. Institution of Marriage under Hindu Law

• i. Evolution and Concept of the Institution of

Marriage

• ii. Forms, Validity and Voidability of Marriage

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• b. Matrimonial Remedies

• i. Restitution of Conjugal Rights S. 9, HMA, 1955

• ii. Judicial Separation S. 10, HMA, 1955

• iii. Dissolution of Marriage : Theories, Forms of

Divorce, Grounds S. 13, HMA, 1955

• v. Divorce by Mutual Consent S. 13-B, HMA, 1955

• v. Irretrievable Breakdown as a Ground for

Dissolution S. 13 (1-A) HMA, 1955 5 of 29
 INRTODUCTION
Forms of Marriage In Ancient India

Kinds of Marriage under Hindu Marriage Act, 1955

Valid

Void

Voidable

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 Forms of Hindu Marriage
• The Grihyasutras have mentioned eight forms of marriages
• Approved marriage forms
• Braham,
• Daiva,
• Arsha,
• Prajapatya,
• Unapproved marriage forms
• Asura,
• Gandharav,
• Rakshasha
• Pishaach marriages.

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• The gift of a daughter, after decking her (with
valuable garments) and honoring her (with jewels) to
a man learned in Vedas and of good conduct whom
the father himself invites is called Braham form of
marriage.
• When the father gives away his daughter after
decking her (with ornaments) to a priest who duly
officiates at a sacrifice during the course of its
performance, it is Daiva form of marriage.
• When there is a gift of one’s daughter after taking one
pair of cattle (a cow and a bull) or two pairs only as a
matter of fulfilling the law (and not as a sale of the
girl) that is known as Arsha marriage.
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• The gift of a daughter after the father has addressed
the couple with the words ‘may both of you perform
your religious duties together’ and after he has
honored the bridegroom (with madhuparka) is
declared to constitute the Prajapatya form of
marriage.

• When the girl is given away at the father’s will after

the bridegroom gives as much wealth as he can afford
to pay to the relatives of the girls and to the girl
herself, that is called the Asura form of marriage.

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• The union of a girl and the bridegroom by their
mutual consent is known as Gandharv marriage,
which springs from the passion of love and has
intercourse as its purpose.
• The forcible abduction of a maiden from her house
while she weeps and cries aloud after her kinsmen
have been slain, wounded and their homes are broken
open is called Rakshasha form of marriage.
• When a man has intercourse with a girl stealthily
while she is asleep or intoxicated or disordered in
mind (or unconscious) that is the Pishaach form,
which is the most sinful form of marriage.
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• The concept of Swayamvar (RIGHT TO CHOOSE)
was prevalent in some upper castes during ancient
times, where the girl was allowed to choose her own
groom as husband.

• In the selection of mates, therefore, a number of

prohibitions and restrictions are followed,

• Firstly the spouses must be of different Gotra and

• Secondly to avoid marrying a Sapinda (persons
having common ancestors are called Sapindas).

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• The institution of exogamy compels a man to seek his
mate from outside his own clan.
• Endogamy means marriage within the same tribe, caste
or Varna.
• The practice of endogamy was preferred over exogamy
in ancient India as it entailed a preference of getting
married within the same lineage and hence results in
mutual understanding in terms of social practices and
customs pervading in the society.
• In ancient India, a Brahmin could only marry a Brahmin
or a person belonging from a lower class could not
marry a person belonging from an upper caste etc.

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 KINDS OF MARRIAGE
• The Hindu Marriage Act, 1955 provides for three
types of marriages:

• 1.  Valid S.5,7 & 8

• 2.  Void S.11

• 3.  Voidable S.12

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• ESSENTIAL OF VALID MARRIAGE

• Section 5 in The Hindu Marriage Act, 1955

Conditions for a Hindu marriage. —A marriage may
be solemnized between any two Hindus, if the
following conditions are fulfilled, namely:

• —(i) neither party has a spouse living at the time of

the marriage;
• (ii) at the time of the marriage, neither party

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• —(a) is incapable of giving a valid consent to it in consequence
of unsoundness of mind; or

• (b) though capable of giving a valid consent, has been suffering

from mental disorder of such a kind or to such an extent as to
be unfit for marriage and the procreation of children; or

• (c) has been subject to recurrent attacks of insanity 

• (iii) the bridegroom has completed the age of 21 years and the

bride, the age of 18 years at the time of the marriage;

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• (iv) the parties are not within the degrees of
prohibited relationship unless the custom or usage
governing each of them permits of a marriage
between the two

• (v) the parties are not sapindas of each other, unless

the custom or usage governing each of them permits
of a marriage between the two;

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• Section 7. Ceremonies for a Hindu marriage.- 
• (1) A Hindu marriage may be solemnized in
accordance with the customary rites and
ceremonies of either party thereto.

• (2) 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.

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• Section 8. Registration of Hindu Marriages –
• (1) For the purpose of facilitating the proof of Hindu
marriages,

• the State Government may make rules providing that

the parties to any such marriage may have the
particulars relating to their marriage entered in such
manner and subject to such condition as may be
prescribed in a Hindu Marriage Register kept for the
purpose.

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• (2) Notwithstanding anything contained in sub-section (1),
the State Government may, if it is of opinion that it is
necessary or expedient so to do, provide that the entering of
the particulars referred to in sub-section (1) shall be
compulsory in the State or in any part thereof, whether in all
cases or in such cases as may be specified and where any
such direction has been issued, and person contravening any
rule made in this behalf shall be punishable with fine which
may extend to twenty-five rupees.

•  

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• (3) All rules made under this section shall be laid
before the State legislature, as soon as may be, after
they are made.
• (4) The Hindu Marriage Register shall at all
reasonable times be open for inspection, and shall be
admissible as evidence of the statements therein
contained and certified extracts there from shall, on
application, be given by the Registrar on payment to
him of the prescribed fee.
• (5) Notwithstanding anything contained in this
section, the validity of any Hindu marriage shall in no
way be affected by the omission to make the entry.
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• Void Marriages (Section 11)
• A marriage is considered void under the Hindu Marriage
Act if it doesn’t fulfils the following conditions i, iv & v
of Section 5 of the Hindu Marriage Act:
• Bigamy S. 5 (i)
• If any of the parties have another spouse living at the
time of marriage. It shall be considered as null and void.
• Illustration: there are three parties ‘A’,’B’ and ‘C’ where
‘A’ has a living spouse ‘B’, but he again marries to ‘C’
then this will be called as bigamy and it will be void.

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• Prohibited Degree
• If the parties are within a prohibited relationship unless
the customs allows it.
• Sapindas
• A marriage between the parties who are sapindas or in
other words a marriage between the parties who are of
his or her relations or of the same family.
• Consequences of a Void Marriage
• The parties don’t have the position of husband and wife
in a void marriage. But the Childrens born are
legitimate in a void marriage (Section 16 of Hindu
Marriage Act, 1955).
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• Voidable Marriages (Section 12)
• A marriage is voidable on either side of the party is
known as voidable marriage. It will be valid unless
the petition for invalidating the marriage is made.
This marriage is to be declared void by a competent
court under the Hindu Marriage Act, 1955.
• (1)Any marriage solemnised, whether before or after
the commencement of this Act, shall be voidable and
may be annulled by a decree of nullity on any of the
following grounds, namely:-
a. that the marriage has not been consummated
owing to the impotence of the respondent; or
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b. that the marriage is in contravention of the
condition specified in clause (ii) of section 5; or
c. that the consent of the petitioner, or where the
consent of the guardian in marriage of the
petitioner is was required under section 5 & the
consent of such guardian was obtained by force or
by fraud as to the nature of the ceremony or as to
any material fact or circumstance concerning the
respondent; or
d. that the respondent was at the time of the marriage
pregnant by some person other than the petitioner.

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2. Notwithstanding anything contained in sub-section
(1), no petition for annulling a marriage-
a. on the ground specified in clause ( c ) of sub-
section (1) shall be entertained if-
i. the petition is presented more than one year after
the force had ceased to operate or, as the case
may be, the fraud had been discovered; or
ii. the petitioner has, with his or her full consent,
lived with the other party to the marriage as
husband or wife after the force had ceased to
operate or, as the case may be, the fraud had been
discovered;
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 b. on the ground specified in clause (d) of sub-section (1)
shall be entertained unless the court is satisfied-
i. that the petitioner was at the time of the marriage
ignorant of the facts alleged;
ii. that proceedings have been instituted in the case of a
marriage solemnised before the commencement of this
Act within one year of such commencement and in the
case of marriages solemnised after such commencement
within one year from the date of the marriage; and
iii.that marital intercourse with the consent of the
petitioner has not taken place since the discovery by the
petitioner of the existence of the said ground.

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• Difference between Void and Voidable Marriage
• A wife does not have the right to claim maintenance
in the void marriage. A wife has the right to claim
maintenance in the voidable marriage.
• In a void marriage, the parties do not have the status
of husband and wife. Husband and wife have the
status in the voidable marriage.
• In a void marriage, no decree of nullity is required by
a competent court.. In a voidable marriage decree of
nullity is required.

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• If prior to the marriage, the bride was pregnant and
gave birth to the child after the marriage, such a child
cannot be treated as legitimate because that child was
not born out of the marital relationship of the present
marriage and therefore, the child born after the
marriage having been conceived prior to the marriage is
to be held illegitimate.  Illustration: If there are two
parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is
his wife. During the time of the marriage ‘B’ is
pregnant through another. After the marriage of ‘A’
and ‘B’, the child born does not come from the marital
relationship of ‘A’ and ‘B’. That child will be termed
as illegitimate. 
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 Conclusion

THANK YOU

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