According to Old Hindu Law-
1- Identity of Caste
If in a marriage bride and bridegroom did not belong to the same caste, the marriage was considered to be invalid unless sanctioned by custom.
Ancient Hindu scriptures prohibited “Pratiloma marriage i.e., a marriage between a girl of higher caste and the boy of lower caste. But “Anuloma marriage i.e., males of higher caste and females of lower caste was permitted and recognized by the text. As the caste system became more and more rigorous with time, the identity of caste between the parties to marriage became one of the essential conditions of marriage.
But during the British rule several legislative provisions were enacted which validated inter-caste marriages viz., Arya Samaj Validation Act, 1937, Special Marriage Act, 1872, Hindu Marriage Disabilities Removal Act, 1946, Hindu Marriages Validity Act, 1949.
Parties to be Beyond Prohibited Degrees:
A man can not marry a girl belonging to the same gotra or pravara. Hindu jurists prohibited marriage between persons related to each other within certain degrees probably for physiological and social reasons unless such marriage is sanctioned by customs.
The law of Sagotra and Sapravara prohibitions did not apply to the Sudras as they did not have any gotra of their own. Under the Act of 1955, marriage between Sagotra & Pravara is valid.
Parties to be Beyond Sapinda relationship:
The parties to the marriage should not be Sapinda to each other. Sapindus are the persons who have in them particles of the body of the same ancestor. A person who has descended from a common ancestor, and is traded on the father’s side are not beyond the seventh degree or on the mother’s side not beyond the fifth degree, both the ancestor and the person in question being counted as one degree.
4-Observations of Religious Ceremonies:
According to Dharmashastra, three religious ceremonies were necessary for the completion of Hindu marriages, namely, —
- (1) Betrothal (Sagai) or Tilak ceremony,
- (2) Formalities including the recitation of holy texts before the sacred fire.
- (3) Saptapadi, i.e., taking seven steps around the sacred fire.
According to Hindu Marriage Act,1955
According to Sec.5 of the Act, Between Two Hindus a marriage can be solemnized if the following conditions will be fulfilled-
Section 5(1) provides the rule of monogamy and prohibits polygamy and polyandry. It now specifies unequivocally that “Hindu can have only one marriage subsisting at a time”. Before the Act of 1955 a Hindu male could marry more than one wife irrespective of the fact that his previous wife was alive at the time of his subsequent marriage. Now the section requires that either party to the marriage must not have his spouse living at the time of marriage and in the event of a breach of this condition (1) the second marriage will be declared void under Sec.11 of the Act and (2) the erring party would be liable under Section 17 of the Act for the act of Bigamy and also be punished under Sections 494 and 495 of the Indian Penal Code,1860.
The Supreme Court in Smt. Yamuna Bai Anant Rao Adhav v. Anant Rao Sliiva Ram Adliava, 1988 SCR (2) 809 has laid down that in the event of a breach of a first condition specified in Section 5(1) the marriage is rendered null and void under Section 11(1) of the Act and since it is void ab initio, the wife cannot claim maintenance under Section 125 of the Code of Criminal Procedure.
In Bhogadi Kannababu and others v. Vaggitia Pydamma 2006 and others, the Supreme Court observed that Clause (i) of Section 5 is one such condition which provides that no marriage can be performed if there is a living spouse. If, however, marriage has been so solemnized by the husband, such marriage is void ab initio and she cannot inherit the property.
In Sarla Mudgal v. Union of India, the husband converted himself into a Muslim by adopting Islam and then married another wife. Here the question was whether by conversion the first marriage is annulled or it becomes void and whether the husband commits an offense of bigamy. The court said that the first marriage subsists and the husband commits an offense of bigamy. Against this, an appeal was filed by the husband and this appeal was disposed of along with the case of Lily Thomas by the Supreme Court. In Lily Thomas v. Union of India, the same questions arose before the Court for consideration.
Recently in Triveni Singh v. State of U.P. AIR 2008 All 81, the Allahabad High Court held that annulment of marriage cannot be sought on the ground that the wife had HIV infection or any other disease at the time of marriage. Marriage can be dissolved under this clause only on the ground of mental disease.
3.Age to the parties (Sec 5 Clause (3))
At the time of marriage, the bridegroom has to complete the age of 21 years and the bride the age of 18 years. If a marriage is solemnized in contravention of this condition remain Valid until under Sec.13(2(4) OF H.M.Act is repudiated. But under Sec.18 of the Act, the parties will be punished by imprisonment of 15 days or Rs 1000 fine or both. Under Child M.R. Act2006, it is a Voidable Marriage. And punishment up to 2yrs.imprisonment or Rs. 1 lac. Fine or both to parties, parents, and all related persons.
Punishment: – By Section 18 of the Act, anyone who procures a marriage in violation of the condition is liable to be punished with simple imprisonment which may extend up to 15 days, or with a fine which may extend up to Rs. 1000/- or with both. Under Child Marriage Restraint Act,1929, a Civil Court may issue Injunction but even in the case of not observance of the Injunction, the marriage will be Valid, and a proceeding for contempt of the Court may be initiated. Under the Special Marriage Act,1954, by violation of this condition the marriage will become Void.
In the case of Mohinder Kaur V. Major Singh AIR 1972 P&H 184, the Court held if the age of the Parties is less than the prescribed limit at the time of the marriage, the marriage will be valid.
4.Degrees of Prohibited relationship (Sec 5 Clause (4))
The parties to the marriage should not come within the degrees of prohibited relationship. Two persons are said to be within the degrees of prohibited relationship
- i) if one is a lineal ascendant of the other, viz. From Girl side- .F,FF, FFF, From Boy side,-M, MM, MMM
ii) if one was the wife or husband of lineal ascendant or descendant of the other viz.- FW, FFW, FFFW. And MH,MMH,MMMH like wise..or SW,SSW,SSW..OR DH,DDH,DDDH,…Or
iii) if one was the wife of the brother or the fathers or mothers brother or the grandfathers or grandmothers brother of the other; or
iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or two sisters.
(>) Children’s of Two Brothers, Two Sisters, Children of Brother sand Sisters.
Punishment- Under sec.18(b)-A marriage between two persons who come within the degrees of prohibited relationship shall be void., and Imprisonment, One month, fine Rs. 1000, Exceptions- Local Customs or Traditions viz. In Punjab, marriage to Brother’s wife.
5.Sapinda Relationship (Sec 5 Clause (5))
The parties to the marriage should not be related to each other as Sapindas. A marriage between sapindas is void.
Under Section 3(f) (i) Sapinda relationship concerning any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.
(ii) Two persons are said to be Sapinda of each other if one is a lineal ascendant of the other within the limits of “Sapinda” relationship, or if they have a common lineal ascendant who is within the limits of “Sapinda” relationship concerning each of them.
No marriage is valid if it is made between parties who are related to each other as sapindas unless such marriage is sanctioned by valid usage or custom governing both parties.
Punishment: -A marriage in contravention of this clause is void. Under Sec 18(b)A person contravening this provision is liable to be punished with simple imprisonment of one month and a fine which may be extended to Rs. 1000/- or with both.