In all the cases of bigamy the strict proof of solemnization of marriage comprising essential customary rites and ceremonies is required. Santi Deb Berma v. Kanchan Prava Devi, AIR 1991 SC 816. The wife of the bigamous marriage has no legal status, but can file for a decree of nullity to facilitate her to have interim order of permanent maintenance.
However, children of void marriage are treated by fiction as legitimate for the limited purpose of inheriting the parents. The first wife is entitled to ask for divorce under s. 13 (1) (i) but is not entitled to file a petition for nullity of marriage between her husband and second wife.
She can file a suit for injunction if her husband is about to marry and can get a declaration under s. 9 Civil Procedure Code read with s. 34 of the Specific Relief Act that the second marriage of her husband was void. Surjeet Singh v. Mahinder Pal Singh, AIR 1988 P&H 156.
(ii) Mental Capacity:
The Hindu Marriage Act as it originally stood provided that neither party should have a spouse living at the time of marriage. After the Marriage Laws (Amendment) Act of 1976 it has been recasted in the present form which is on the lines of Matrimonial Causes Act of 1973.
Under s. 5 (ii) (a) persistent unsoundness of mind is not required. It is sufficient if the party is incapable of giving valid consent to the marriage because of his/her unsoundness of mind.
Under s. 5 (ii) (b) every mental disorder will not give rise to remedy under s. 12 but only that mental disorder which renders the party unfit for the marriage and for procreation of the children. In Alka Sarma v. Abhinesh Chandra Sarma, AIR 1991 MP 201, it has been held that the word “and” under s. 5 (ii) (b) has to be read as “and/or”.
Under sub-clause (c) recurrent attacks of insanity and epilepsy are covered, thus, equating epilepsy with insanity. It may be submitted that epilepsy if curable cannot be interpreted to vitiate the marriage. However, the courts are not inclined to qualify epilepsy with the word “incurable” Bala Krishna v. Lalitha, AIR 1984 AP 22.
It may be noted that the Act does not specifically mention about free consent of the parties to the marriage. However, s’. 5 read with s. 12 brings in the element of consent in the marriage.
The marriage solemnised in violation of s. 5 (ii) is voidable in accordance with s. 12.
(iii) Marriage between Minors and its Consequence:
Yajnavalkya Smriti requires a male to marry after finishing his education (Aavaplutabrahmacharya). This naturally meant that the bridegroom should be a major. Further he has to receive that Kanyadana (gift of the bride) and this also seems to suggest that he should be a major. However, there is no positive stipulation in the Smriti, that he should be a major.
The Act of 1955 however, lay down that the bridegroom should have attained 18 years of age which is normally the age when the majority is attained under the Indian Law. In 1978 this has been raised to 21 years by amendment. Failure to comply with this requirement does not invalidate the marriage.
So far as the bride is concerned she is the object of a gift and her age was not material for the validity of the marriage. The Marriage Mantras seem to suggest that under the Vedic marriage the bride must have attained puberty. But even child marriages have long been regarded as valid.
In Mulchand v. Bhudhia, 22 Bom. 812, the marriage of a girl aged 4 years was upheld. The Smritis have laid down who should be the guardian of the child bride for giving her in marriage. Under the Act of 1955, the bride must have attained at least 15 years of age. If she is under 18 years, i.e. if she is a minor, the consent of her guardian in marriage should be obtained.
As to who are such guardians was specified in s. 6. If the consent of the guardian is obtained by force or fraud the marriage became voidable and could be set aside by a decree for nullity under s. 12. The marriage should be avoided within not more than 1 year after the force has ceased to operate or the fraud has been discovered. Now the minimum age for the bride is 18 years. So there is no question of guardianship in marriage and s. 6 has been omitted.
Under s. 5 (cl) (iii) the minimum age for the bride is 18 years at the time of marriage. If this condition is contravened, under s. 18 punishments is provided. The marriage itself is unaffected and is valid.
The leading case on the subject is Venkataramana v. State, AIR 1978 AP 43 (FB), A and Â were married in 1959 when they were respectively 13 and 9 years of age. Treating this marriage as void A married again in 1975. Â as his first wife, filed a criminal complaint against A accusing him of bigamy.
The question in issue was whether the child marriage of 1959 was void. If it was not void, the offence of bigamy would be committed. In an earlier case, Saramma v. Ganapatulu, AIR 1975 AP 193, it was held that a child marriage is in contravention of cl. (iii) of s. 5 of Hindu Marriage Act and is void. The Full Bench overruled this case. Divan C.J., points out that the Hindu Marriage Act itself is silent on the question whether such a marriage is void or not. It, no doubt, prescribes a punishment under s. 18 cl. (a) for contravention of cl. (iii) from this no conclusion can be drawn as to the legal validity of the marriage itself.
A child marriage (i.e. in contravention of s. 5 (iii) is not void. Rabindra Prasad v. Sit a Devi, AIR 1986 Pat. 128.
It was observed in this case that “the marriage solemnized in violation of s. 5 (iii) remains unaffected. Neither the marriage is void nor voidable. The appellant, therefore, cannot obtain disengagement on this score”.
(iv) Doctrine of Factum Valet:
The Full Bench in Venkatramana v. State, AIR 1978 AP 43 (FB), applied to this situation the doctrine of Factum Valet. According to the Hindu Law: (A fact cannot be changed by a hundred texts). The marriage itself is valid though penal consequences are attracted.
This was the law prior to the Hindu Marriage Act, 1955 and s. 4 of the Act supersedes only a rule or interpretation of Hindu Law previously in force only when it is inconsistent with the provisions of the Act. Since there is no express provision conflicting with the aforesaid view, such view still continues.
The Full Bench fortified its conclusion by a reference to the Marriage laws (Amendment) Act, 1976 which has introduced clause (iv) In sub-section 2 of s. 13. This cl. (iv) confers upon a bride below the age of 15 years the right of repudiation after attaining age. This right is similar to the option of puberty under Mohammedan law.
The Amendment of 1976 thus proceeds on the basis that the child marriage is valid and has to be repudiated by the bride. This also strengthens the view taken by the FB on independent grounds that a child marriage is not void. So the earlier view in Panchireddi Appala Suramma v. Gadela Gampatlu, AIR 1975 AP 193 was overruled.
This brings the law into line with the views of other High Courts. Gindnn v. Barelal, AIR 1976 MP 83; Mst. Hari v. Director of Consolidation, 1969 All.LJ 623; Mst. Premi v. Daya Ram, AIR 1969 Him. Pra. 15 Contras. Kunta Devi v. Sri Ram, AIR 1963 Punj. 235.
The learned Chief Justice Divan has observed that it is no doubt anomaly that a marriage of a minor though made with guardian’s consent may be pronounced to be void under s. 12 cl. (c) if the consent is vitiated by force or fraud, but such a marriage without the guardian’s consent at all cannot be pronounced to be void. This was considered by him to be the inevitable consequence of the scheme of the Act.
It is respectfully submitted that the law is in need of amendment. A child marriage with guardian’s consent may be valid but without his consent at all should be treated as a nullity. Such an amendment would remove the anomaly noticed above by the learned Chief Justice.
The child marriages are neither void nor voidable. They continue to be valid even though punishable. See V. Mallikarjunaiah v. H.C. Gowramma AIR 1997 Kant. 77; Gajara Naran v. Kanbi Kunverbai, AIR 1997 Guj. 185; Harvinder Kaur v. Gursewak Singh, 1998 AIHC 1013 (P&H).
It may be noted that by virtue of s. 12 of the Child Marriage Restraint Act, the civil courts can issue injunction against the performance of the Child Marriage, after giving opportunity to the concerned party.
It is noticeable that conditions laid in the Hindu Marriage Act, 1955 for a valid Hindu marriage in Section 5 and Section 7 that both the parties to the marriage must be Hindu at the time of the marriage. The Bombay High Court in Madhavi Ramesh Dudani v. Ramesh K., Dudani, AIR 2006 Bom 93: 2006 (2) CCC 452 (Bom), held that where a non-Hindu girl entered into a marriage with a Hindu boy in accordance with customary ceremonies, the girl was accepted in the local Hindu community as belonging to the Hindu religion, and her husband also treated her as a Hindu, absence of specific expiatory or purification ceremonies will not be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed.