LAW OF MARRIAGE

INTRODUCTION TO MARRIAGE

• Marriage is a relationship between individuals which has formed the foundation of the family for most societies.
• Marriage can include legal, social, and religious elements.
• In Western societies, marriage has traditionally been understood as a social contract  between a man (husband) and a woman (wife), while in other parts of the world polygamy has been the most common form of marriage.
• Usually this has taken the form of polygamy (a man having several wives) but some societies have practised polyandry (a woman having several husbands).
• In some western societies today, same-sex marriages or civil partnerships are legally recognized, but remain a highly controversial issue in most.

Definition of marriage

• Marriage, also called matrimony  or wedlock, is a culturally recognised union between people, called spouses, that establishes rights and obligations between them, as well as between them and their children, and between them and their in-laws.
• Marriage, a legally and socially sanctioned union, usually between a man and a woman, that is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners and accords status to their offspring (if any).
• Hindu Marriage refers to kanyadan which means gifting a girl to the boy by the father with all the tradition and rites or custom.

• Hindu marriage harmonizes two individuals for ultimate eternity, so that they can pursue dharma (Truth), arth (meaning), and kama (physical desires).
• Marriage is a civil and religious contract whereby a man is joined and united to a woman for the purpose of civilized society.
• In law ‘marriage’ may mean either the acts, agreements, or ceremony by which two persons enter into wedlock, or their subsequent relation created thereby.
• Marriage is the civil status or personal relation of one man and one woman joined together in a matrimonial union which was lawfully entered into.

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Characteristics of Marriage

• Marriage is universal,
• It is for the formation of family,
• It forges a new social link,
• It fixes the responsibility of bringing up children on the parents,
• It is a result of civil or religious ceremony,
• Legitimization of children born out of such union which is a social need,
• In marriage, the male and female get the right of mutual relationship in
• economic, social and biological spheres

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Types of Marriage

• Brahma marriage - The Brahma marriage is the marriage of one's daughter, after decking her with costly garments and with presents of jewels, to a man of good conduct learned in the Vedas, and invited by oneself.
• A Brahma marriage is where a boy is able to get married once he has completed his student hood, or Brahmacharya. Brahma marriage has the most supreme position of the eight types of Hindu matrimony.
• When the parents of the boy seek for a female, they would consider her family background, but the girl’s father would make sure that the boy that wishes to wed his daughter had the knowledge of Vedas. It is these things that make the basis for Brahma marriage, not a system of dowry.

• Daiva marriage -
• The type of marriage that is considered inferior because it is degrading to womanhood.
• This is where the woman’s family will wait for a specific time to get her wed. If she doesn’t get a suitable groom, then she would be married off to places where family choose by matchmaking through priest who duly officiates at a religious ceremony, during the course of its performance. This used to be the practice followed by many Royals in ancient times to forge diplomatic ties with allies and enemies alike. For eg. The marriage of Dhṛtarāṣṭra & Gāndhārī.

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• Arsha marriage -
• An Arsha marriage is where the girl is given in marriage to a sage. The bride used to be given in exchange for some cows. Agasthya married Lopamudra accordingly.
• Kings often could not refuse the sages who had such power and standing in society and hence the numerous stories in Mahābhārata that portray this practice.
• Prajapatya marriage -
• Prajapatya is when a girl's father gives her in marriage to the bridegroom, treating him with respect, and addresses them: 'May both of you perform together your duties'.
• Unlike in Brahma marriage, Prajapatya matrimony is where the bride’s father goes in search of a groom, although this isn’t considered as good as the grooms parents searching for the perfect bride. Also, unlike Arsha marriage, monetary transactions are not a part of the Prajapatya marriage.

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• Gandharva marriage -
• The voluntary union of a maiden(an unmarried girl or young woman) and her lover on own is called Gandharva marriage.
• When it comes to ‘love’ marriage, it is Gandharva marriage that is the most similar. This is where a groom and his bride could wed without their parents knowledge or sanction. This is how Dushyanta married Shakuntala. category.
• Asura marriage -
• Asura marriage is when the bridegroom receives a maiden, after having given of his own free will as much wealth as he can afford, to the bride and her kinsmen.
• It is Asura marriage that sets itself apart from the other types of marriage. This is a matrimony where the groom may not often be compatible with the bride and may even possess some abnormality but either greed or compulsion on the part of the bride’s father coupled with the groom's desire and wealth may render it.
• At all times this type of marriage was considered lowly. In modern times this is unacceptable because it is much like buying a product off the shelf and against common Indian law.

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• Rakshasa marriage -
• Rakshasa marriage is the marriage of a maiden involving her forcible abduction from her home after her kinsmen have been slain or wounded much like its practice in khazakh and uzbek cultures where it is still practised as a ritual.
• The groom will forge battles with the bride’s family, overcome them and carry the bride away to convince her to marry him. Because of its use of force this marriage is essentially rape in modern parlance, and it was never considered right - hence the pejorative name rakshasa attached to it.
• Paishacha marriage -
• When a man by stealth seduces a girl who is sleeping, intoxicated, or mentally challenged, it is called Paishacha marriage. This is condemned in the Manusmṛti as a base and sinful act. In modern times this is called Date Rape and is a crime in most civilized lands.

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Nepalese Legal Provision relating to Marriage �Part 3 Family Law, Chapter 1

• Sec 67 to Sec 84
• Sec 67 Marriage deemed to be concluded: दफा ६७. विवाह भएको मानिने
• If a man and a woman accept each other as the husband and wife through any occasion, ceremony, formal or other act, a marriage shall be deemed to have been concluded.
• Sec 68. Marriage to be inviolable social bond: दफा ६८. विवाह अनतिक्रम्य सामाजिक बन्धन हुने
• (1) Marriage shall be a permanent, inviolable and holy social and legal bond, which is based on free consent and established to start conjugal and family life between a man and a woman.
• (2) The marital bond referred to in sub-section (1) shall subsist until extinguished pursuant to Section 82.

• Sec 69. Freedom of marriage: दफा ६९. विवाह गर्ने स्वतन्त्रता
• (1) Every person shall, subject to law, have the freedom to conclude a marriage, establish a family and spend a conjugal life.
• (2) A marriage must be made, or caused to be made, public irrespective of the manner used to conclude it.
• (3) Every person's family life shall be inviolable.
• Sec 70. Marriage may be concluded: दफा ७०. विवाह हुन सक्ने
• (1) Subject to this Chapter, a marriage may be concluded between a man and a woman on the following conditions:
• (a) If the man and the woman agree to accept each other as husband and wife,
• (b) If the man and the woman are not relatives, punishable by law on incest,
• (c) If matrimonial relationship of both the man and the woman does not exist,
• (d) If both have attained twenty years of age.

• (2) Notwithstanding anything contained in clause (b) of sub-section (1), nothing shall bar the conclusion, or causing the conclusion of, a marriage within the relationship that is allowed to marry in accordance with the practices prevailing in their ethnic community or clan.
• Sec 71. Marriage not to be concluded: दफा ७१. विवाह गर्न, गराउन नहुने
• (1) No one shall conclude, or cause to be concluded, marriage with a man or a woman, as the case may be, who is not in a condition where marriage can be concluded pursuant to Section 70.
• (2) No one shall conclude, or cause to be concluded, marriage with a man or a woman on any of the following conditions, by way of misrepresentation:
• (a) One who has contracted human immunodeficiency virus (HIV) or Hepatitis 'B' or similar other incurable severe disease, (b) One who has already been proved to have no sexual organ, to be impotent or to have no reproductive capability,

• (c) One who is dumb or has lost hearing capacity, being fully blind or is suffering from leprosy,
• (d) One who is of unsound mind,
• (e) One who is already a married,
• (f) One who is a pregnant,
• (g) One who has been convicted of a criminal offense involving moral turpitude by a court and sentenced for the same.
• (3) A person who is aggrieved from the conclusion of marriage by way of misrepresentation pursuant to sub-section (2) may get such a marriage voided and claim a reasonable compensation from the person who concludes, or causes to be concluded, marriage by misrepresentation.

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Void Marriage

• Sec 72. Marriage to be void: दफा ७२. विवाह बदर हुने
• (1) A marriage concluded on any of the following conditions shall, ipso facto, be void:
• (a) A marriage concluded without consent of the man or the woman, (b) A marriage concluded between the relatives, punishable by law on incest.
• (2) A marriage concluded pursuant to sub-section (1) shall be invalid ab initio.
• (3) Notwithstanding anything contained in clause (b) of sub-section (1), a marriage concluded pursuant to sub-section (2) of Section 70 shall not be void.

Voidable Marriage

• Sec 73. Voidable marriage: दफा ७३. विवाह बदर गराउन सक्ने
• (1) If a marriage is concluded in any of the following circumstances and any person who concludes such a marriage does not accept it, the person may get such a marriage voided:
• (a) If the marriageable age set forth in clause (d) of sub-section (1) of Section 70 has not been completed,
• (b) If the marriage has been concluded, or caused to be concluded, by way of misrepresentation pursuant to sub-section (2) of Section 71. (2) Notwithstanding anything contained in sub-section (1), a marriage shall be void only with the consent of the woman if she is pregnant or has delivered a baby as the consequence of the marriage.

• Sec 74. Marriage to be deemed concluded if child is born from physical intercourse: दफा ७४. शारीरीक सम्पर्कबाट शिशु जन्मेमा विवाह भएको मानिने
• (1) Notwithstanding anything contained in sub-section (2) of Section 69, if a woman is proved to have delivered a child by conceiving pregnancy from physical intercourse with a man, marriage between such a man and a woman shall, ipso facto, be deemed to have been concluded.
• (2) Notwithstanding anything contained in sub-section (1), no marriage shall be deemed to have been concluded between a man and a woman in any of the following circumstances even if a child is born from physical intercourse with the man:
• (a) If a woman gives birth to a child by conceiving pregnancy as the consequence of rape,

• (b) Except in case of the relationship of under subsection (2) of Section 70, if a woman delivers a child by conceiving pregnancy from a physical intercourse with a man within the relationship punishable by law on incest.
• Sec 75. No lawful rights of child already born to be prejudiced: दफा ७५. जन्मिसकेको शिशुको कानून बमोजिमको हकमा असर नपर्ने
• There shall be no prejudice in the lawful rights of a child already born from a marriage if the marriage becomes void pursuant to Section 72 or the marriage is got voided pursuant to Section 73 or of the child born in any of the circumstance referred to in sub-section (2) of Section 74.

• Sec 76. Marriage to be registered: दफा ७६. विवाह दर्ता गर्नुपर्ने
• (1) Both husband and wife shall get their marriage registered by filing an application in the authority specified by the Government of Nepal by a notification in the Nepal Gazette. Provided that in the circumstance referred to in sub-section (1) of Section 74, both or either of husband and wife may file an application for the registration of marriage.
• (2) A husband and wife residing outside Nepal may file an application for the registration of marriage in the Nepali embassy or consulate general located in the country in which they have been residing.
• (3) If an application is filed pursuant to sub-section (1) or (2) for the registration of a marriage, the concerned authority shall, after registering the marriage in the marriage book maintained in the office, issue the marriage registration certificate, in the form as specified by the Government of Nepal, to the applicant, within fifteen days of the filing of the application.

• Explanation: For the purposes of this Chapter, the term "concerned authority" means the marriage registering authority.
• (4) If the marriage cannot be registered according to the application filed pursuant to sub-section (1) or (2), the concerned authority shall give the applicant information, specifying the reasons therefor, within seven days of the filing of the application.
• (5) If any one party does not appear for the registration of a marriage according to the application filed pursuant to the proviso to sub-section (1), the concerned authority shall register the marriage after inquiring into such a party.
• (6) If, in making inquiry pursuant to sub-section (5), the other party expresses disagreement to the registration of marriage, the concerned authority shall not register the marriage and inform the applicant that the decision on that matter shall be made as decided by the court.

• (7) The concerned authority shall safely maintain the records of the details of the registration of marriage under this Section.
• (8) If a couple who have already concluded marriage prior to the commencement of this Act but have not registered the marriage may, if they so desire, get their marriage registered pursuant to this Section.
• Provided that the marriage of such a couple shall not be deemed to be legally invalid merely for the reason that such marriage is not registered.

• Sec 77. Marriage by registration: दफा ७७. दर्ताद्वारा विवाह गर्न सक्ने
• (1) Notwithstanding anything contained in sub-section (2) of Section 69 and Section 74, if a man and a woman desire to conclude marriage by registration, they shall file an application in the concerned District Court, if they are in Nepal, and in the Nepali embassy or consulate general, if they are outside Nepal, specifying therein their name, surname, age, address, profession, name of their father, mother, grand-father, grandmother, whether previously married or not, if married, the details of the dissolution of marriage and also the name of at least two witnesses.
• (2) In order to file an application pursuant to sub-section (1), either the man or the woman or both must have resided since at least fifteen days ago in the concerned district if the application has to be filed in the District Court, and, if the application is to be filed in the embassy or consulate general, in the country in which such an embassy or a consulate general is situated.

• Sec 78. Decision to be made as to whether marriage is capable of being concluded: दफा ७८. विवाह हुने वा नहुने निर्णय गनुपर्ने
• (1) If an application is filed pursuant to Section 77 for the conclusion of a marriage by registration, the concerned authority shall make, after making necessary inquiry, a decision within seven days of the filing of the application, as to whether or not the marriage is capable of being concluded.
• (2) Notwithstanding anything contained in sub-section (1), if the concerned authority based in a foreign country has suspicion about the proposed marriage, the authority shall submit the matter to the Government of Nepal and settle the matter according to the decision of the Government of Nepal.

• Sec 79. Deed of consent to be prepared: दफा ७९. सहमतिपत्र तयार गर्नु पर्ने
• If a decision is made pursuant to Section 78 to the effect that marriage is capable of being concluded between the applicants, the concerned authority shall prepare a deed of consent for marriage, also recording the matters specified in the application and a statement to the effect that the parties to the marriage have consented to accept each other as husband and wife, cause the contracting parties and witnesses present to affix their signature and thumb impression on the deed in his or her presence and also sign the deed.

• Sec 80. Provisions relating to registration of marriage: दफा ८०. विवाह दर्ता सम्बन्धी व्यवस्था
• (1) After the deed of consent has been signed pursuant to Section 79, the concerned authority shall register such a marriage in the registration book, which has to be signed by such an authority and also by the parties to the marriage and witnesses present.
• (2) Once the marriage is registered pursuant to sub-section (1), the concerned authority shall issue a marriage registration certificate, in the form specified by the Government of Nepal by a notification in the Nepal Gazette, to the parties to the marriage registration.
• (3) Marriage shall be deemed to have been concluded between the applicants from the date on which the marriage registration certificate is obtained pursuant to sub-section (2).

• Sec 81. Provision relating to use of surname by married woman: दफा ८१. विवाहित महिलाको थर प्रयोग सम्बन्धी व्यवस्था
• (1) A married woman may, after marriage, use the surname used by her father or mother or the surname of her husband or both the surnames.
• (2) If a question arises as to the surname of a married woman, except as otherwise proved, she shall be deemed to have used the surname of her husband.
• (3) If the marriage of a woman who has used the surname of her husband is dissolved, she may, if she so desires, use the surname used by her father or mother.

• Sec 82. Matrimonial relationship deemed to be terminated: दफा ८२. वैवाहिक सम्बन्ध अन्त्य भएको मानिने
• In any of the following circumstances, the matrimonial relationship between the husband and the wife shall be deemed to have been terminated:
• (a) If marriage is annulled pursuant to Section 72 or 73,
• (b) If marriage is dissolved according to law between husband and wife,
• (c) If the wife concludes another marriage before effecting divorce pursuant to law

• Sec 83. Re-marriage may be concluded: दफा ८३. पुनः विवाह गर्न सक्ने
• Notwithstanding anything contained elsewhere in this Chapter, a man or a woman may remarry in any of the following circumstances: (a) If the matrimonial relationship between husband and wife is terminated pursuant to Section 82,
• (b) If husband or wife dies,
• (c) If husband and wife are separated upon partition in accordance with law.
• Sec 84. Statute of limitation: दफा ८४. हदम्याद
• A person aggrieved from any act done or action taken under this Chapter may make a lawsuit within three months after the date on which such act was done or action taken.