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Article Published in the Express Magazine Dated
March 02, 2003
General Attorney : Rajiv K. Luthra
My Hindu friend is living with a divorcee Hindu
lady since two and a half years. No one including
his family has any idea about this arrangement, as
they do not stay together regularly. There was no
legal/social marriage, however, there are two
photographs of my friend applying sindoor and
garland on the lady but there is no witness of the
same. My friend does not wish to continue living
with her and wants to marry another girl. Is the
relationship between the two binding? If he
marries the other girl will there be any legal
problem? Will he be required to give a legal
divorce and pay alimony, as demanded by the lady?
Sana Sij
Whether or not the relationship can be said to be
a valid marriage is contingent on several factors.
According to the Hindu Marriage Act, 1955, a Hindu
marriage may be solemnized in accordance with the
customary rites and ceremonies of either party
thereto. When these include the saptapadi, the
marriage becomes complete when the seventh step is
taken. The customary rites and ceremonies referred
to here must be of the nature mentioned in section
3(a) of the said Act, that is, they must
constitute a rule of law that of having been
continuously and uniformly observed for a long
time, and have obtained the force of law in any
local tribe, community, group or family. The rule
must also be certain and not unreasonable or
opposed to public policy.
The limited proof of there being two photographs
of your friend applying sindoor and garlanding the
lady may not be sufficient evidence to make a case
of a valid marriage. Further, it is for the party
who claims to have been married to a person to
show that the customary rites and ceremonies were
performed. The observance of these ceremonies must
be specifically pleaded and established by
requisite evidence. Hence, your friend’s marriage
may be deemed valid only if the lady can establish
by positive evidence that the two ceremonies of
garlanding and applying sindoor actually took
place and also that the said ceremonies are
applicable to the community of either party and
are sufficient in that community for constituting
a marriage.
As regards the issue of your friend’s cohabitation
with the lady, the bare fact of a man and woman
living as husband and wife does not normally give
them the status of husband and wife though they
may hold themselves out before society as such and
the society treats them as husband and wife.
However, if there is consistent evidence that the
two people have been living together for long
years as husband and wife, a legal presumption of
marriage arises, though the presumption may be
rebutted. From your friend’s case it appears, the
parties have been living together for two years,
albeit irregularly and there is little scope for
presumption to arise.
However, if a valid marriage is proved as per the
custom of either party, and your friend were to
marry another person during the subsistence of
this marriage, he would be guilty of bigamy and be
liable for prosecution under section 494 of the
Indian Penal Code. In which case, he would
definitely have to obtain a legal divorce before
marrying another person and may then also be
required to pay the requisite alimony.
If a person writes a Will on a plain paper, is
it legally valid? Can the witnesses in the Will be
family members? After a person dies is his Will to
be informed to any person to be activated in any
form in order to make it valid?
Kuldip Singh
A will written on a piece of plain paper is
perfectly valid and need not be registered as
there is nothing in law, which requires its
compulsory registration, although it is
recommended. There is no bar to family members
being witnesses of a will and it is not an
uncommon practice, as every person wants to make
arrangement for the disposition of his property
with the knowledge of his relatives.
Nothing additional needs to be done in order to
validate the Will, after the testator’s death. A
testator normally appoints an Executor of his
Will, who after the testator’s death has to show
his intention to act as executor. Such executor or
administrator, as the case may be, of a deceased
person is his legal representative for all
purposes and it is his responsibility to execute
the wishes of the testator in accordance with the
terms of the Will. It may be noted that Wills made
by Hindu’s, Jain’s, Sikhs or Buddhists made in
certain states like Bengal, Chennai and Mumbai or
those made outside such areas, so far as they
relate to immovable property situated within these
areas require a Probate of such Will to be taken
after the testators death.
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