Family Law II: The Doctrine of Factum Valet

Introduction

Family is an important sociological construct that often requires legal protection. Indian law does not have a specific policy that supervises all family formation behaviors, but the government has formulated several regulations that control various aspects of the institution of a family¹. For instance, family law in India encompasses statutes like the Family Courts Act of 1984 and others that oversee such matters as inheritance, child marriages, adoption, and domestic violence². However, family-related regulations have been impacted by the doctrine of factum valet, which proposes that an act prohibited by rule is valid when it is done³. Factum valet in Indian family law has been influential in terms of Hindu marriage, polygyny, and child matrimony.

Hindu Marriage

The principle of factum valet has been utilized to justify many Hindu unions that involve the issue of consent. In India, family law is synonymous with religious rules, and with the majority of the population being Hindu, faith has considerable effects on various aspects of life⁴. Accordingly, since colonial times, Hindu matrimonies suspected of one party not agreeing to the wedlock have relied on factum valet to make the conjugal relations unalterable⁵. Within the court system, counsels have argued that Hindu marriage is not a legal contract but rather an irrevocable religious rite that does not require consent⁶. Subsequently, some courts have held that factum valet can be used for betrothals solemnized without force or fraud⁷. Therefore, the principle of factum valet has been applied in Indian family law concerning Hindu unions.

Child Marriage

The doctrine of factum valet has been employed to excuse child matrimony. India’s Prohibition of Child Marriage Act (2006) invalidates forced conjugal relations and makes underage nuptials voidable⁸. Nonetheless, prior to the Act’s implementation, factum valet was frequently utilized to legitimize marrying minors. For instance, in Smt. Naumi v. Narotam And Anr. (1962), the court held that the marriage was not invalid despite the petitioner being underage⁹. Notably, child marriages have often been found legal if they involve religion, as discussed above. For example, in Madhusudhan Mukherjee v. Jadubchander Bannerjee, the court decided not to invalidate a girl’s marriage even though there was no consent from her father¹⁰. Accordingly, factum valet has been applied concerning family law to justify child matrimony.

Polygyny

The principle of factum valet has been used in cases of religious polygyny. The Hindu Marriage Act of 1955 prohibits polygynous marriage, where a Hindu man has conjugal relations with more than one woman, yet such unions continue to persist in various forms¹¹. Therefore, Indian courts may order the husband to financially support the presumed wife even if the wedlock is legally void¹². Consequently, factum valet can be considered practical in such situations to demonstrate matrimony and satisfy the wife’s socio-economic needs¹³. Accordingly, factum valet has been utilized to support Hindu women whose spouses practice polygyny.

Conclusion

To summarize, the doctrine of factum valet has impacted Indian family law through cases of Hindu marriage, polygyny, and child matrimony. The principle is closely related to the country’s primary religion and has both negative and positive outcomes. Prior to the enactment of many contemporary acts, factum valet was applied to justify nuptials under suspicion of a lack of consent or those involving minors. However, the doctrine has also been employed to protect the maintenance needs of women who are party to polygyny marriages. Overall, factum valet can be considered a way to bypass certain laws.

References

Aggarwal, R. (2021). Family court: Need of the hour. Jus Corpus Law Journal, 2(1), 365-375.

Bottoni, R., & Ferrari, S. (Eds.). (2019). Routledge handbook of religious laws. Routledge.

Chakravorty, S., Goli, S., & James, K. S. (2021). Family demography in India: Emerging patterns and its challenges. Sage Open, 11(2), 1-18. Web.

Jayant, C., & Ghatage, H. (2022). Religion and violence in India. National Journal on Social Issues and Problems, 11(1), 11-16.

Leung, C. (2022). Language proficiency: From description to prescription and back? Educational Linguistics, 1(1), 56-81. Web.

Parashar, A., & Dhanda, A. (2020). Redefining family law in India. Taylor & Francis.

Sharma, K. (2020). Withholding consent to conjugal relations within child marriages in Colonial India: Rukhmabai’s fight. Law and History Review, 38(1), 151-175. Web.

Sharma, K., Lammasniemi, L., & Sarkar, T. (2021). Dadaji Bhikaji v Rukhmabai (1886) ILR 10 Bom 301: Rewriting consent and conjugal relations in colonial India. Indian Law Review, 5(3), 265-287. Web.

Smt. Naumi v. Narotam And Anr. AIR 1963 HP 15. (1962). Himachal Pradesh High Court. Web.

Footnotes

1. Chakravorty et al., 2021
2. Aggarwal, 2021; Chakravorty et al., 2021
3. Leung, 2022
4. Parashar & Dhanda, 2020; Jayant & Ghatage, 2022
5. Sharma, 2020
6. Sharma et al., 2021
7. Sharma et al., 2021
8. Bottoni & Ferrari, 2019
9. Smt. Naumi v. Narotam And Anr. AIR 1963 HP 15. (1962).
10. Sharma et al., 2021
11. Bottoni & Ferrari, 2019
12. Bottoni & Ferrari, 2019
13. Bottoni & Ferrari, 2019