13 July 2018 05:30PM
WHAT IS A VOID MARRIAGE AS PER HINDU MARRIAGE ACT?
The expression "void" can by and large speech be comprehended to be an equivalent word of "illegal". Henceforth anything which is void would have one outcome without a doubt – that it would be unlawful. A void marriage along these lines implies an illegal marriage. Presently the inquiry is when might a marriage be called illegal?
A and B, both major, enter into a wedding relationship with each other and with their own particular consent yet without the consent of their folks. Is this marriage illegal? No, this marriage isn't unlawful only on the grounds that the guardians of A and B have declined 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? In such a case, the marriage between A and B would be illegal as it would not be fulfilling the conditions for a valid Hindu marriage as prescribed under clause 1 of section 5 of the Hindu Marriage Act, 1955 [hereinafter alluded to as 'the Act']. Section 5 of the Act says:
It is to be noticed that section 5 just sets out the prerequisites of a substantial Hindu marriage yet it doesn't set out the impact if any of the conditions laid in that are not taken after. This impact accommodated in section 11 and 12 of the Act. Out of these two sections it is section 11 that deals with nullity of marriage. It gives as under:
The impact of the above two sections, i.e. section 5 and section 11 when perused together is that all marriages which fall inside either clause I, iv or v of section 5 are void. Under law, these marriages would have no acknowledgment with the exception of as is given under any law. It has been held by different High Courts that conditions said is section 11 rendering a Hindu marriage invalid and void are comprehensive. It is just on these grounds that that a Court can allow a declaration of nullity [1985 1 26 Guj Law Rep 47; AIR 1965 Him Pra 15; ILR 1970 Cut 1215]
The grounds which can consider a marriage void are as follows:
· The main condition for legitimate Hindu marriage is that none of the parties to the marriage will have a companion living it the time of their marriage.
· On the off chance that both of them has a mate alive from a prior marriage, their ensuing marriage is no marriage according to law.
· It is void ab initio and non est, i.e. non-existent.
2. Persons falling within degrees of restricted relationships:
Section 3(g) of the Hindu Marriage Act, 1955 characterizes 'degrees of precluded connections'. It gives as takes after:
· Lineal ascendants are to be seen from the two sides, i.e. from the father’s side as well as from the mother’s side. So both the father and mother are lineal ascendants.
· In any case, a paternal grandmother is certifiably not a lineal ascendant however the spouse of a lineal ascendant and subsequently would fall under clause ii. So also a maternal grandfather would fall under statement ii being the spouse of a lineal ascendant. Proviso ii would likewise cover daughter-in-law and father-in-law being the husband and wife individually of one's lineal relatives i.e. boy and girl individually.
2. Sapinda relations:
Section 3(f) defines ‘Sapinda relationship’ as under:
Sapinda relations can be illustrated as under:
· Suppose A will be a kid. Presently in the event that he is considered as one generation, relatives falling in four more ages upwards from him from the side of his father will be his Sapinda relations.
· Therefore, A's father, A's grandfather, A's great grandfather and the father of A's great grandfather will all be A's Sapinda relations. Yet, on the mother's side, this bind is to stretch out to just three ages which incorporate A.
· Therefore, A's mom and A's maternal grand-mother might be A's Sapinda relations from the mother' side, A himself being one generation.
How is Arya Samaj marriage solemnised
· The ceremony of Arya Samaj marriage is driven by the Vedic custom, and its authenticity is gotten from Arya Samaj Marriage Validation Act, 1937 with stipulations of Hindu Marriage Act, 1955. Hindu Marriage applies likewise to Arya Samajis.
· Since the general population having a place with Arya Samaj don't have confidence in Idol worship, accordingly, their marriages are performed by unexpected ceremonies in comparison to Hindus
Who are eligible for an Arya Samaj marriage?
1. Age of the groom must be 21 and the bride should be of the age 18.
2. Any man who is a Hindu, Buddhists, Jain, Sikh can perform Arya Samaj Marriage.
3. Any man who is certifiably not a Muslim, Christian, Parsi or Jew can likewise perform Arya Samaj Marriage.
4. If a non-Hindu couple might want to perform the marriage, the Samaj enables them to get changed over through a procedure called Shuddhi. Muslims, Christians, Parsis or Jews, if, out of their through and through freedom and consent are prepared to change over and embrace Hindu Religion, the Arya Samaj Mandir perform a custom called shuddhi meaning refinement for such transformation, and from there on, such a change over can perform Arya Samaj Marriage.
Marriage rituals in Arya Samaj
In light of Vedic standards, every one of the hymns spelled at the time of the marriages are disclosed to the bride and the groom. The marriage is much the same as Hindu marriage, marriage is revolved around flame and is seen as the progress of wedding couple from Brahmacharya to Grihastha Ashram.
Procedure in Arya Samaj marriages
The wedding rituals involved in marriage are:
1. Booking of Arya Samaj Mandir in advance and submission of required papers.
2. After a successful registration, Mandir will give you a date when you can perform the marriage.
3. Wedding ceremonies begin with, captivating of the blessed Vedic hymn and its explanation and clarification by Pandit Ji. At that point comes the garland exchange ritual, where, the bride wreaths the groom first. At that point washes his feet, hand, and face.
4. Yagna begins with groom wearing a sacred thread.
5. Kanya daan is observed followed by holy rounds around the fire.
6. Kanya daan is trailed by 'Pratigya Mantra', The groom holds bride's hand and together, they make their wedding promises.
7. Shilarohan, where the brother of the bride places her foot on a stone, while the groom recites mantras.
8. Bride and the groom do parikrama around the fire four times.
9. Kesh Mochan, custom includes the groom fixing his bride's hair tenderly and giving it a chance to course down unreservedly.
10. Just as Hindus, saptapadi or seven holy circle around the fire is observed.
11. Hridaya Sparsh, where, the couple touch each other’s hearts and promise to be tender-hearted and gentle with each other ending with the newly-weds viewing the Dhruv or the Pole Star.
Following documents are required for solemnization of Arya Samaj Marriage:
1. 4 copies of colored photograph of both the parties entering into marriage.
2. Date of birth and address proofs of both the parties.
3. Bride and groom should be of the age, legal to get married. 18 for bride and 21 for groom.
4. Two observers to witness the heavenly function.
5. In case where a marrying party is a widow, the death certificate of the dead spouse.
6. Where a wedding party is a remote subject or holding an outside international ID or is having foreign residential address-Certificate of present conjugal status of the party/No Impediment Certificate/NOC from concerned Embassy and Valid VISA.
Registration of Arya Samaj Marriage:-
Your marriage should be registered under section 8 of the Act by the Marriage Officer/Registrar of the locale/state if the marriage is taking place in the Arya Samaj Mandir:
· After 2006, requests of Supreme Court are strict on the issue of enrollment of marriages in personal laws.
· An Arya Samaj marriage can be enrolled either under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954.
· Where both of the mate or spouse or both are not Hindus, Buddhists, Jains or Sikhs, the marriage is enrolled under the Special Marriage Act, 1954.
· Hindu Marriage Act puts a commitment upon the states to make laws with respect to the enlistment of the marriage yet furthermore puts a highlight that where a marriage isn't enlisted, its non enlistment won't nullify the marriage. Usually encouraged to get the marriage enlisted according to the Supreme court requests and, it is the right method to evade debate in future in regards to breakdown of marriage.
Registration of Arya Samaj Marriage as per Hindu Marriage Act:
1. Registration is finished with any Sub-divisional Magistrate, offline. Another choice accessible at couple of purviews like Delhi is of online enlistment. An appointment comes following 15 days.
2. Fulfilling the customs of enrollment form.
3. Any document that provides the date of birth of the individuals.
4. Two passport size photographs of both the parties are required, also one marriage photograph and Marriage invitation card (optional).
5. Attestation of gazette officer is mandatory
6. After satisfying every one of the customs, it is the obligation of the session court to give the couple a marriage declaration.
7. A marriage enrollment cost around INR 100-200.
Anant Naithani vs. State of Uttarakhand (2013)
In the said case the High Court of Uttarakhand watched that the Arya Marriage Validation Act, 1937 provided for the grant of a marriage testament nor approved any individual to do as such. It was in this manner held that a marriage testament issued by any Arya Samaj Mandir had no lawful impact, with the exception of if an endorsement was given by the individual issuing the marriage certificate that he was a witness to the marriage.
Arya Samaj marriages can't get dropped or divorce can't occur in the Arya Samaj Mandir, it just needs to occur in the court, Mandir are not legitimate authority to record an application for separation. The separation decree issued by the court is substantial all around the world.
June 30, 2017 Union of India and another vs. Deoki Nandan Aggarwal, AIR 1992 SC and Balram Kumawat vs. Union of India, (2003), a solitary judge passed a certain lead and bearings/directions when couple pick to marriage through Arya Samaj. So it was tested by the Gwalior bench of Madhya Pradesh that as of now controls have been issued by the Arya Samaj authorities and it's their inside issue and in spite of the laws of the Arya Samaj Validation Act, 1937. Hence the choice of the single judge was not maintained and furthermore said that he isn't equipped to issue such bearings.
At the point when the marriage is unregistered and for the separation spouse wishes to apply husband isn't giving any react to the wife then wife without the consent of husband can file the case on the ground of cruelty or for the demand of dower.
Benefits of Marrying under Arya Samaj customs and rituals
1. Arya Samaj marriages are exceptionally savvy as Arya Samaj mandir charges extremely small sum for the marriage.
2. It takes place within few hours only.
3. Only two witnesses are required, who may be anybody including parents, siblings, friends or anyone.
In an Arya Samaj Marriage,The marriage is solemnized/performed as per Vedic customs. In Arya Samaj Marriage, pooja isn't performed to a particular divinity as Arya Samaj doesn't have faith in symbol revere; fire and alternate components are the main observers to the wedding function. After the execution of marriage, Arya Samaj Mandir gives Marriage Certificate to the wedded couple. According to the desires and alternative of the parties the Arya Samaj Marriage can be got registered before a Marriage Registrar, and thereafter, the Marriage Registrar provides Marriage Certificate to the Married Couple.
Marriage certificate is very useful in asserting the Bank deposits or Life Insurance benefits when the investor or the Insurer kicks the bucket without a nomination or something else. Declaration of marriage is a record, which gives profitable proof of marriage.
The marriage authentication given by Arya Samaj is totally substantial and getting which you end up legitimate a couple. In the wake of getting Marriage Certificate, neither one of the ones can make any mischief to you legitimately nor this declaration be tested in any court. Moreover, based on this endorsement you can enlist your marriage in Marriage Registrar Office.
Ceremonial Marriage is not recognized by foreign embassies in India and Foreign Countries outside India. For the verification of marriage in foreign embassies in India and Foreign Countries outside India, you need Marriage Registration Certificate. While applying for Spouse VISA, the international Embassies request Marriage Registration Certificate.
How to get a divorce in marriages solemnized under Arya Samaj Marriage customs
Divorce procedure to end the Arya Samaj marriages are as same as Hindu separation system according to Hindu Marriage Act. Couples in a marriage can either petition for a mutual divorce through consent or in situations where shared consent is absent battle the divorce through challenge.
Divorce in Arya Samaj through mutual consent
Section 13-B (divorce by mutual consent ) makes provision for separation by common consent on the ground that-
· Both the parties to the marriage have been living independently for a time of multi year or more,
· They have not possessed the capacity to live together, and
· They have now mutually concurred for the disintegration of the marriage.
Procedure of divorce through mutual consent in Arya Samaj
· Both the parties need to file together an appeal to looking for divorce under the District court.
· Before documenting of the appeal, wedded couple should ensure that they are living independently for a time of multi year or more. After the appeal is permitted, parties are required for filing of proclamation
· Couple looking for divorce by mutual consent should give their motivation behind why they are not ready to live together and specify in the request of that they have not possessed the capacity to live together and that they have commonly concurred that the marriage ought to be dissolved.
· Court following a time of a half year and not over year and a half (cooling-off period) will give a date for tuning in to the parties.
On the off chance that the case is pulled back or the parties don't move to court at the given date(s), the request stands cancelled. Subsequent to hearing to the parties and on being fulfilled, court may pass a declaration of separation proclaiming the marriage to be broken up.
Divorce in Arya Samaj without mutual consent
· If other party in a marriage has consumated with another person after solemnization of the marriage, it brings about a substantial ground for separation/divorce without mutual consent under the Hindu Marriage Act;
· After the solemnization of the marriage, treated the spouse with cruelty;
· The other party has left the separation seeker for a ceaseless time of at the very least two years, instantly going before the introduction of the petition;
· The other party has ceased to be a Hindu by conversion to another religion;
· The other party has been hopelessly of unsound personality, or has been experiencing ceaselessly or discontinuously mental disorder of such a kind and to such a degree, that the separation seeker can't sensibly be relied upon to live with the other party in a marriage.
· The other party has been experiencing a virulent and incurable form of leprosy;
· The other party has been experiencing venereal illness in a transmittable form;
· The other party has renounced the world by entering in any religious order;
· The other party has not been known about as being alive for a time of seven years or more by those people who might normally have known about it, if the party had been alive.
A wife in an Arya Samaj marriage can, under the Hindu Marriage Act, 1955, contest for divorce without mutual consent on the following grounds that the husband had married again or that any other wife of the husband married before the contented marriage was alive at the time of the solemnization of the marriage of the petitioner, provided that, in either case, the other wife is alive at the time divorce is contested.
Guidelines issued by Gwalior Bench HC on Arya Samaj marriage:
Certain guidelines had been issued by the gwalior bench on arya samaj mandir marriage rituals before getting marriage certificate:
1. When bride and bridegroom decides to tie a knot in front of the arya samaj mandir, it shall be the duty of the management to first issue notice to the guardians/families at the said addresses with the photos of lady and spouse
2. If any sort of complaints has been gotten that will be managed by the mandir administration by confirming every one of the actualities and if required, help of the nearby police can be taken.
3. Class tenth mark sheet of lady and spouse will be taken to check date of birth of each one of them.
4. If the bride and groom are not taught, at that point there date of birth will be confirmed from the assistance of the relatives or through the medicinal solidification at the government hospital facility or by the medical practitioner perceived by the legislature with legitimate seal.
5. The unique address of the bride and groom will likewise be confirmed by the archives like AADHAR card, PAN card or possibly by an enquiry , and if required by the neighborhood police.
6. After considering every one of the actualities as specified above by checking them and watching the real goal of wife and husband to solemnize the marriage, the administration of mandir will solemnize the marriage with due recognition of the saptapadi, all customs, custom and functions relying on the monetary status of the wife and the husband. The marriage will happen in presence of two witnesses of each agreeing with their character evidence and private verification with individual authenticated affirmation and non legal stamp paper which is estimation of rupees at least 100 which says that they know the bride/groom personally.
7. Every procedure of solemnization of marriage like saptapadi, any customs, functions will be recorded by the Arya Samaj Mandir through videography.
8. Thereafter, marriage certificate may be issued to the bride/bridegroom by the authorized signatory of the mandir management.
9. The Arya Samaj Mandir management will also keep a copy of documents and recording of the entire process of the marriage.
10. From the order of region head of police, the station house officers will lead enquiry and confirm from the Arya Samaj Mandir inside their ward, in any occasion complaints are made of missing young lady, extortion, control in the matter of solemnization of marriage, in the police headquarters.
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