Section 5 of the Act provides
that Hindu marriages shall be solemnised according to the customary rules and
ceremonies of the party and that Section thereby imports Hindu Customary Law
into the celebration of Hindu Marriages. There are two forms of marriages
under Hindu Customary Law
1.
Brahma Marriage: No marriage consideration is paid by the bride’s
father.
2.
Asura Marriage consideration is paid by the bride’s father
In both marriages dowry is paid
by the bride’s family.
CONDITIONS WHEN CONTRACTING A
HINDU MARRIAGE UNDER KENYA LAWS
Insofar as capacity is concerned,
it is provided for under Section 3 and 4 of the Hindu Marriage and Divorce Act
which provides that
1.
firstly neither party should be married to another person so both
parties must be single and
2.
secondly the parties should be of sound mind at the time of contracting
the marriage and
3.
thirdly the man must have attained the age of 18 years and the woman should
be at least 16 years of age. Where the woman is aged between 16 and 18,
consent of her legal guardian is required.
4.
Fourthly the parties should not be within the forbidden degrees of
consanguinity and affinity. Section 3(2) of the Hindu Marriage and
Divorce Act lists the persons who are within prohibited degrees of
consanguinity.
5.
Fifthly consent where required must be given and again Section 4 of the
Act subsection lists down the guardians who may give consent in order of
priority where it is required.
FORMALITIES UNDER KENYA LAW
The Act provides for two
ceremonies which may be performed when a Hindu marriage is being
celebrated. Section 5(2), (3)
1.
The Saptapadi ceremony: Under this ceremony the bride and the
bridegroom go round a sacred fire seven times and on the seventh round the
marriage is deemed to have been celebrated.
2.
The Anand Karaj ceremony: Here parties go round their holy book known as
the Granth Sahib four times and on the fourth round the marriage is deemed to
be complete and binding.
The Act also provides for
registration of Hindu Marriages and the issuance of a marriage
certificate. However it is also provided that non-registration will not
invalidate a marriage neither will registration validate an invalid
marriage. This is provided for under Section 6 of the Act.
MATRIMONIAL RIGHTS AND DUTIES OF
HINDU MARRIAGES UNDER KENYA LAW
They are generally that the
parties have a right to consortium and the right to consortium is similar to
that that arises under statutory law. The wife under Kenya law has a right to maintenance
in Section 7(2) of Hindu Marriage and Divorce Act applies the Matrimonial
Causes Act to marriages that are contracted under the Hindu Act. So by
applying the Matrimonial Causes Act means that the maintenance conditions under
this Act will also apply to Hindu Marriages.
Under Hindu Customary Law the
wife has a duty to cohabit with her husband and to submit herself to his
authority. So in many respect Hindu Marriages are similar to marriages
under statutory law.