Aveneu Park, Starling, Australia

I. that the person with whom she is

I. CONCEPT OF
MARRIAGE

 

            The words ‘
dowry death’ would suggest the death, which has some connection with dowry. The
question of dowry would arise, ordinarily, in respect of a married woman. If a
girl not yet married, commits suicide due to the breaking of the promise by the
boy, by no stretch of imagination we can call it as dowry death. For invoking
the rpesumption of law in respect of ‘dowry death’ the first and the foremost
requirement is that the woman should be a married woman, and the marriage should
be legal one in the eye of law. If a girl, knowing fully well, that the person
with whom she is solemnizing her marriage, is having already a living wife and
the marriage of the person is still subsisting, solemnizes the marriage, she
cannot be termed as his legally wedded wife if the personal law by which the
parties are governed, does not permit bigamy. The unnatural death of a beloved
, in the love affair and a fiancée after engagement, will not be covered by the
words dowry death as there is no marriage at all. There are other reasons for
the marriage being void. The provisions of Hindu Marriage Act in this respect
are as follows :

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                        For
Hindus, governed by Hindu Law, the relevant provisions are contained in Section
3 that includes definitions, Section and Section 11 of the Hindiu marriage Act,
1955. The application of the Hindu Marriage Act, according to Section 2 is as
follows :

 

 Application
of Act. —

(1) This Act applies—

(a) to any person who is a Hindu by
religion in any of its forms or developments, including a Virashaiva, a
Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina
or Sikh by religion, and

(c) to any other person domiciled in the
territories to which this Act extends who is not a Muslim, Christian, Parsi or
Jew by religion, unless it is proved that any such person would not have been
governed by the Hindu law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein if this Act had not been
passed.

Explanation. —The following persons are Hindus, Buddhists, Jainas or Sikhs by
religion, as the case may be:—

(a) any child, legitimate or illegitimate,
both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate,
one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is
brought up as a member of the tribe, community, group or family to which such
parent belongs or belonged; and

(c) any person who is a convert or
re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in
sub-section (1), nothing contained in this Act shall apply to the members of
any Scheduled Tribe within the meaning of clause (25) of Article 366 of the
Constitution unless the Central Government, by notification in the Official
Gazette, otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it
included a person who, though not a Hindu by religion, is, nevertheless, a
person to whom this Act applies by virtue of the provisions contained in this
section. State Amendment Pondicherry: In section 2, insert
the following sub-section:— “(2A) Notwithstanding
anything contained in sub-section (1), nothing contained in this Act shall
apply to the Renoncants of the Union territory
of Pondicherry .” Vide
Regn. 7 of 1963, sec. 2 and Sch. (w.e.f. 1-10-1963).

 

Conditions for a Hindu Marriage –

Section 5 –

 

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;

2 (ii) at
the time of the marriage, neither party—

(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 3 ***;

(iii) the bridegroom has completed the age
of 4 twenty-one years and the bride, the
age of 5 eighteen years at the time of the
marriage;

(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;

6 ***

(i) A marriage between a Hindu man who
converted as Christian and a Christian lady in a Hindu form is not a valid
marriage. According to section 5 of the Act marriage can be solemnised between
two Hindus; M. Vijayakumari v. K. Devabalan, AIR 2003 Ker 363.

(ii) To draw an inference merely from the
fact that the spouses had no co-habitation for a short period of about a month,
is neither reasonable nor permissible. To brand the wife as unfit for marriage
and procreation of children on account of the mental disorder, it needs to be
established that the ailment suffered by her is of such a kind or such an
extent that it is impossible for her to lead a normal married life; R. Lakshmi
Narayan v. Santhi, AIR 2001 SC 2110.

 

 

Sapinda Relationship

3(f) (i) ” sapinda relationship” with reference to any
person extends as far as the third generation (inclusive) in the line of ascent
through the mother, and the fifth (inclusive) in the line of ascent through the
father, the line being traced upwards in each case from the person
concerned, who is to be counted as the first generation;

(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other
within the limits of sapinda relationship, or if they have a common lineal ascendant who is
within the limits of sapinda relationship with reference to each of them;

 

Sapinda relationship” with
reference to any person extends as far as the third generation (inclusive) in
theline of ascent through the mother, and the fifth
(inclusive) in the line of ascent through the father, the line being traced
upwards in each case from the person concerned, who is to be counted as the
first generation.

Two persons are said to be “sapindas”
of each other if one is a lineal ascendant of the other within the limits of
“sapinda” relationship, or if they have a common lineal
ascendant who is within the limits of “sapinda” relationship
with reference to each of them.1

 

 

Chart is to be pasted here.

 

Degrees of Prohbited Relationship

 

(g) “degrees of
prohibited relationship”— two persons are said to be within the “degrees of prohibited
relationship”—

(i) if one is a lineal ascendant of the
other; or

(ii) if one was the wife or husband of a
lineal ascendant or descendant of the other; or

(iii) if one was the wife of the brother or
of the father’s or mother’s brother or of the grandfather’s or grandmother’s
brother of the other; or

(iv) if the two are brother and sister,
uncle and niece, aunt and nephew, or children of brother and sister or of two
brothers or of two sisters;

Explanation .—For
the purposes of clauses (f) and (g), relationship includes—

(i) relationship by half or uterine blood
as well as by full blood;

(ii) illegitimate blood relationship as
well as legitimate;

(iii) relationship by adoption as well as by
blood;

and all terms of relationship in those clauses
shall be construed accordingly.

 

 

For validity of a Hindu Marriage, we have to keep
in view the provisions of Section 11 of the Hindu Marriage Act, 1955. The void
marriages have been described in the following Section 11 as under :

 

Void marriages. —Any marriage solemnised after the commencement of this Act shall
be null and void and may, on a petition presented by either party thereto 11 against
the other party, be so declared by a decree of nullity if it contravenes any
one of the conditions specified in clauses

(i) , (iv) and (v) of section 5.

 

For attracting pernal provisions of IPC, such as 304-B,
498-A or even 306 IPC , the marriage should not only be complete but legal one.
The presumption under Section 113-A, 113-B of the Evidence Act and the
provisions of Section 304-B, and 498 A IPC , presuppose the existence of a
complete and legal marriage.

 

For a person governed by Hindu Law, monogamy is the rule
vides provisions of Section 5 of Hindu Marriage Act. Violation of provisions of
clause 5 9i) of the Act makes a Hindu Marriage void under Section 11 of the
Act. A void marriage does not come within the definition of marriage in Section
304-B IPC. Similarly, the word ‘husband’ or ‘relative of husband’ of the woman
refer to a legal and binding relationship between the woman and the man and not
any illegal relationship.

 

                        Marriage
may not be legal for many other reasons for violation of provisions of personal
law or custom governing the parties to the marriage. Void marriage is to be
distinguished from voidable marriage. Only void marriages between the parties
do not attract the penal provisions of Section304-B and 498-A IPC. Proof of
abetment of suicide must be proved for the punishment under Section 306 IPC,
where there was only a promise to marry and it was not kept by the boy.

 

Christian Marriage

 

            As regards
the marriage between Christians, Section 4 of the Christian Marriages Act, 1872
provides as under :

 

Every marriage between persons , one or both of whom is or
are Christian or Christians, shall be solemnized in accordance with the
provisions of the next following section ; and any such marriage solemnized
otherwise than in accordance with such provisions shall be voide.

 

Section 5 says Marriages may be solemnized in India-

 

(i)                 
by an person who has rec eived Episcopal ordination,
provided that the marriage be solemnized according to the rules, rites,
ceremonies and customs and the Church of which he is a Minister ;

(ii)               
by any clergyman of the Church
of Scotlan, provided that such
marriage be solemnized according to the rules, rites, ceremonies and custos of
the Church of Scotland;

(iii)              
by any Minister of Religion licensed under this Act to
solemnize marriages

(iv)             
by or in the presence of a Marriage Registrar appointed
under this act

(v)               
by any person licensed under this Act to grant
certificates of marriage between Indian Christians.

 

It therefore follows that in order
to attract the provisions of Section 304-B and 498-A IPC, the prosecution has
to prove that marriage of the parties governed by the provisions of Indian
Christian Marriage Act, 1872  was in fact
solemnized in accordance with the provisions of Section 5o fthat Act. Failure
to prove legality of Christian Marriage would debar the prosecution from taking
shelter and prosecuting the husband and his relatives under the provisions of
Section 304-B and 498-A IPC with the help of Section 113-B of the Evidence Act.

 

Muslim Marriage

 

            Essentials
for a valid Nikah (marriage) by Muslims are as under:-

(i)                 
There should be a proposal and acceptance thereof.

(ii)               
The two parties be present and meeting

(iii)              
The parties should be competent to marry ; and have
capacity to marry.

(iv)             
The witnesses should be present

(v)               
There should not be any legal disability, such as
prohibited degrees under Mohammedan Law.

 

Under Mohammedan law also there is
absolute prohiobition against marriage in the following manner :

 

On the basis of Consanguinity,
which refers to blood relationship and the man cannot marry

(i)                 
His mother or grand mother how high so ever ;

(ii)               
His daughter or grand daughter how low so ever ;

(iii)              
His sister whether full blood, half blood or uterine ;

(iv)             
His neice or great niece how low so ever; and

(v)               
His aunt or great aunt how high so ever, whether
paternal or maternal

 

 

On the basis of Affinity

 

                        It
means those relative who do not arise from blood relationship

 

(i)                 
A man cannot marry his wife’s mother or grandmother

(ii)               
His wife’s daughter or grand daughter how low so ever

(iii)              
Wife of one’s father or paternal grand father how high
so ever and wife of ones son or daughters son how low so ever.

 

 

A marriage by a Mohammedan either
with a woman prohibited by reason of consanguinity or by affinity is void.

 

Difference between Void and
Invalid Marriages –

 

Under Mohammadan Law, a void
marriage is no marriage in the eyes of law and even after consummation it has
no legal effect. A void marriage under Mohammedan law will not attract the
provisions of Section 304-B IPC.

 

An invalid marriage however, has
no legal

1 https://en.wikipedia.org/wiki/Sapinda

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