Marriage is considered as a sacrament in Hindus. It is the last of the 16 sanskars in the Hindu religion for regeneration of men and obligatory for every Hindu who does not desire to adopt the life of a sanyasi. The first and foremost condition for a Hindu Marriage is that the both parties should be Hindus. This was held in Gullipilli Sowria Raj vs Bandaru Pavani [AIR 2009 SC 1085]. Hindu Marriage Act, 1955 has laid down few necessary conditions for a valid Hindu Marriage. This is given under section 5 of the Act. In Lila Gupta vs Laxmi Narain & Ors [AIR 1978 SC 1351], the apex court held that all conditions under section 5 of the Act are not mandatory.
- Section 5(i) of the Act prohibits polygamy and polyandry. It says that neither party should have a living spouse at the time of the marriage. Failure of this condition would make the marriage null and void under section 11 of the Act. Apart from this, the party would be liable for bigamy under sections 494 and 495 of the Indian Penal Code, 1860 and section 17 of the Hindu Marriage Act, 1955. Schedule Tribes are exempted from this but they must have an early and lasting custom for this. the subsistence of first marriage, the second marriage would be null and void.
- Offence of Bigamy would be constituted only when the first marriage is solemnized according to proper ceremonies and rituals.
-The accused must have contracted the first marriage
-Whilst the first marriage was subsisting, the accused must have contacted a second marriage
-Both the marriages must be valid.
-The above-mentioned Section also provides that the Section does not apply where:
-Any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction
-Where the spouse has been continually absent for a period of 7 years and not heard to be alive within such period.
2.Mental Capacity to Give Consent
- This clause was inserted in the Act through The Marriage Laws (Amendment) Act, 1976. As per the clause, three conditions must be fulfilled as per section 5(ii) of the Act for a valid Hindu Marriage. The conditions are: neither party, at the time of marriage
(a) is incapable of giving a valid consent due to his/her unsound mind
(b) has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children
(c) has been subjected to recurrent attacks of insanity.
- If any of these conditions is not fulfilled then marriage is voidable under section 12(1)(b) of the Act. The clause of epilepsy was removed through The Marriage Laws (Amendment) Act, 2001.
3.Age to the parties:-
- At the time of enactment of the Act, the legal age for the marriage of boy and girl was 18 years and 15 years respectively. However, later on The Marriage Laws (Amendment) Act, 1976, changed the minimum age to 21 years and 18 years respectively.
4.Prohibited Degrees of Relationship: :-
- Section 5(iv) of the Act prohibits solemnization of marriage of persons falling within prohibited degree of relationship.
- If any marriage is solemnized under this then the marriage would be void under section 11 of the act.
- Apart from this, violation of this clause would amount to simple imprisonment upto 1 month or a fine of Rs. 1000/- or both under section 18(b) of the act.
- Section 3(g) defined persons falling within prohibited degree of relationship. They are:
(a) If one is a lineal ascendant of the other; or
(b) If one was the wife or the husband of a lineal ascendant or descendant of the other; or
(c) If one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other,
(d) If the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.
It also includes (i) Relationship by half or uterine blood as well as by full blood; (ii) Illegitimate blood relationship as well as legitimate; (iii) Relationship by adoption as well as by blood
5.Prohibition of Sapinda Relationship:
- Section 5(v) of the Act, marriage between the persons having sapinda relationship is prohibited unless there is a custom which allows them to do so.
- Any marriage solemnized under this would be void under section 11 of the Act and violation of this clause would amount to simple imprisonment upto 1 month or a fine of Rs. 1000/- or both under section 18(b) of the act.
Section 3(f)(ii) of the Act says that Two persons are said to be “sapindas” of each other if one is a linear ascendant (i.e. is a blood relative in the direct line of descent – the children, grandchildren, great-grandchildren, etc. of a person) 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 with reference to each of them. According to section 3(f)(i) sapinda relationship extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth generation (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. If there is any common ancestor of 2 persons then both are sapinda to common ancestor and they would be sapinda of each other