What are the consequences of solemnization of marriage between two Hindus in violation of Section 7?

The Meaning of "Solemnisation"

Section 7 of the Hindu Marriage Act, 1955 reads: a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party, and where such rites and ceremonies include the saptapadi — the taking of seven steps by the bride and bridegroom jointly before the sacred fire — the marriage becomes complete and binding only when the seventh step is taken.

The word solemnise is of critical importance. It means to celebrate a marriage with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken as married does not constitute solemnisation, if those ceremonies are not the ones prescribed by law or recognised by any established custom. The Supreme Court has put it unequivocally: if neither rites nor ceremonies like saptapadi are proved, such a marriage will not be construed as a valid Hindu marriage.

The Core Consequence — Not Even a Void Marriage

When the essential ceremonies required by section 7 are not performed, the consequence is uniquely severe — there is simply no marriage at all. A marriage not duly solemnised by the performance of essential ceremonies is, under the Act, no marriage at all. This is a different result from what section 11 produces. Section 11 declares certain marriages — those in violation of section 5(i), (iv) or (v) — as void. A void marriage, though without legal existence, is still an ostensible marriage which must be stripped of its colour of legality by a court declaration. But a marriage where no ceremonies were performed does not even rise to the level of a void marriage; it is simply a legal nullity from the very start, requiring no court decree to be treated as nothing at all.

No Rights or Obligations Arise

Since there is no marriage in law, no marital status is created. The parties do not acquire the rights and obligations that ordinarily flow from a valid marriage. Consider what this means concretely:

• Neither party acquires the status of husband or wife

• There can be no claim for maintenance under section 24 or section 25 of the Act on the basis of that union

• There is no basis for seeking restitution of conjugal rights under section 9, because there was no legal conjugal union to be restored

• A petition for judicial separation or divorce does not lie, since both presuppose a valid, subsisting marriage

The Supreme Court underscored this in Bhaurao v. State of Maharashtra (AIR 1965 SC 1564), where it was held that performance of some mock ceremonies is not enough; for a prosecution for bigamy to succeed, it is essential to prove that the requisite ceremonies were in fact undergone at the second marriage. If they were not, the second marriage is no marriage at all, and no offence of bigamy is committed.

Impact on Prosecution for Bigamy

This consequence has a fascinating practical dimension. If a Hindu man, already married, undergoes a second ceremony in which the essential rites are not performed, he cannot be prosecuted for bigamy under section 17 read with sections 494 and 495 of the Indian Penal Code. This is because the offence of bigamy requires proof that a marriage was actually solemnised. Absence of ceremony means absence of marriage, which means absence of the second marriage necessary to constitute bigamy. The law cannot punish a man for entering into a marriage that never legally came into existence.

The Doctrine of Factum Valet Does Not Apply

There is a well-known maxim in Hindu law — factum valet quod fieri non debuit — meaning that a thing done which should not have been done is still valid in law. This doctrine enables the cure of violations of directory provisions or mere matters of form. However, the doctrine has absolutely no application to the non-performance of essential ceremonies. If certain essential rites are necessary for a valid marriage, the non-observance of those ceremonies and religious rites cannot be overlooked by applying the doctrine of factum valet. The doctrine applies only where there is no positive interdiction; it cannot excuse the absence of the very thing that constitutes the marriage itself.

Registration Does Not Cure the Defect

A related and important question is whether registration under section 8 can save such a marriage. The answer is firmly no. A certificate of marriage is no proof of validity if the marriage is otherwise void. Where no marriage ceremonies were performed, no amount of registration or documentation can cure the fundamental defect. The Kerala High Court has specifically held that an intimate relationship entered into without the performance of any marriage ceremonies, even if reduced to a registered document, does not constitute a valid marriage.

The Presumption of Due Performance

There is, however, an important counter-principle that moderates the rigour of the above consequences. Where it is proved that a marriage was performed in fact, courts will presume that it is valid in law and that the necessary ceremonies have been duly performed. This presumption is particularly strong when the parties have been living together as husband and wife for a considerable period and have been recognised as such by their family and community. It is not a conclusive presumption — it can be rebutted by proof of facts showing that no marriage could have taken place, or that the ceremonies were wholly absent. But the burden of displacing it is a heavy one. In Ranjan Kumari v. Santosh Kumar Singh (AIR 2010 Ori 62), the court held that certain discrepancies in evidence regarding saptapadi or kanyadaan were not significant enough to displace the presumption of a valid marriage, where witnesses deposed in unison and the wife gave a vivid description of the ceremonies.

When New Ceremonies Are Invented

One further and significant consequence must be noted. No one can innovate new ceremonies; a marriage performed with entirely invented formalities, not recognised by the customary law of either party, is invalid. So, if a Jain married a Buddhist by performing the anand karaj — a Sikh ceremony — the marriage would be void, since it is a ceremony recognised neither on the side of the bride nor the bridegroom. The ceremony must be the customary ceremony of at least one of the parties; borrowing an alien ceremony satisfies section 7 only if that ceremony has been adopted and recognised by the community of the adopting party over time.

In sum, section 7 is not a procedural technicality — it is the very soul of a Hindu marriage. Without it, there is no marriage, no status, no rights, and no obligations. The law does not merely declare such a union void; it treats it as though it never happened.