Conditions for the Validity of Marriage Under the Hindu Marriage Act, 1955

This article explains in detail the Conditions for the Validity of Marriage Under the Hindu Marriage Act, 1955.

Introduction

Hindu Marriage is a sacrament and one amongst the ten sanskaras provided in the Shastras and Smritis. Hindu marriage has also been practiced since ancient times some rules regulating marital union and degrees of prohibited relationships were prescribed. The modern Hindu Law may not be that rigid but very well retains the essence of it wherein exogamy was made to be the general rule. The provisions incorporated under the Hindu Marriage Act, 1955 determining the validity of marriage covered under Sections 3 and 5 of the Act have been lucidly dealt with. Marriage is one of the oldest institutions of Hindus. It occupies a very important place in their social life.

Section 5 of the Hindu Marriage Act, 1955 – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely

(i) neither party has a spouse living at the time of marriage;

(ii) at the time of marriage, neither party –

1. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
2. though capable of giving valid consent, has been suffering from mental disorder of such
3. kind or to such an extent as to be unfit for marriage and procreation of children; or
4. has been subject to recurrent attacks of insanity

(iii) the bridegroom has completed the age of (twenty-one years) and the bride, the age of (eighteen years) at the time of marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits marriage between the two;

(v) the parties are not sapindas of each other unless the custom or usage governing each of them permits marriage between the two

Bigamy

Section 5 (i) of The Hindu Marriage Act,1955 prohibits bigamy. Bigamy includes both polygamy and polyandry which have been abolished and monogamy has been made the rule for all Hindus. This section provides a condition precedent to every marriage that neither should have a spouse living at the time of marriage.

Section 11 of The Hindu Marriage Act, 1955 makes a bigamous marriage void and Section 17 of the Act makes it a penal offense for both males and females under Section 494, IPC.

The offense of bigamy is committed only if the required ceremonies of marriage are performed.[1] It was by The Supreme Court in M.M. Malhotra v. Union of India[2] that, where a husband had married a woman, whose marriage was in substance then his subsequent marriage would not be bigamous, his first marriage being void. In the case of a bigamous marriage, the ‘second wife’ has no status of wife, but in case she files a petition for nullity, she can claim both interim and permanent maintenance.[3]

If a husband (or wife) is about to take a second wife (or husband), the first wife (or husband) can ask for an injunction from the court.[4] It was held in the landmark judgment of the Supreme Court where it was held that, when one is already married under the Hindu Law, he by embracing Islam cannot solemnize a second marriage under Muslim Law, which permits polygamy.[5]

The Supreme Court in Smt. Yamuna Bai Anant Rao Yadav v. Anant Rao Shiva Ram Adhava AIR 1988 SC 644 has laid down that in the event of a breach of the 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.

Mental Capacity

Section 5 (ii) deals with the mental capacity to consent and some mental disorder. It lays down that neither party to the marriage should be an idiot or lunatic at the time of marriage.

The three clauses to Section 5(ii) lay down the rules as to unsoundness.

Clause (a) contemplates rules as to unsoundness which should be such which incapacitates a person from giving a valid consent to marriage. The unsoundness if not persistent will be a sufficient ground if exists just before marriage.

Clause (b) to Section 5 where the words ‘has been suffering’ is being used indicates that it postulates the existence of a mental disorder that has been there for some time.

Clause (c) of the same section includes recurrent episodes of insanity or epilepsy into its ambit making it wider. These conditions specified in the clause relate to pre-marriage conditions and not to post-marriage mental conditions.[6] A marriage that is in contravention of these conditions is voidable under Section 12(1)(b) of The Hindu Marriage Act, 1955.

In R. Lakshmi Narayan v. Santhi (AIR 2001 SC 2110), it was held that to brand the wife as unfit for marriage and procreation of children on account of a mental disorder, it needs to be established that the ailment suffered by her is of such a nature that, it is impossible to lead a normal married life with her, making the standard of proof quite strict.

Age of Marriage

Section 5 (iii) of the Hindu Marriage Act, 1955 prescribes the age of the bridegroom to be twenty-one years at the time of marriage and the bride should be of eighteen years at the time of marriage. Earlier child marriages were normal in India but, the first attempt to raise the age of marriage was made in 1929 with the Child Marriage Restraint Act, 1929 which prescribed 15 years as the minimum age for girls and 18 for boys. Later, with the Child Marriage Restraint (Amendment) Act, 1978 the minimum age of marriage was raised to what it is now.

However, the marriage performed in violation of this condition is valid.[7] The Child Marriage Restraint Act was later repealed in 2006 by the Child Marriage Prohibition Act, 2006 which made underage marriages voidable at the instance of a minor spouse and even void under certain circumstances.

The Prohibition of Child Marriage (Amendment) Bill, 2021, which seeks to raise the legal age of marriage for Indian women from 18 to 21 years, was sent to a parliamentary standing committee. The Bill aims to eradicate child marriage and bring about parity in the marriageable age for men and women. If the bill becomes law it would bring a positive change in the lives of women thus bringing equality and also women empowerment along with economic development.

Degrees of Prohibited Relationship

Section 3(g) defines ‘degrees of prohibited relationship’ wherein two persons are considered to be in the degree of prohibited relationship:

1. If one is a lineal ascendant of the other; or
2. If one was the wife or husband of a lineal ascendant or descendant of the other; or
3. If one was the wife of the brother or of the father’s or mother’s brother or of grandfather’s or grandmother’s brother of the other; o
4. 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;

As per the rule of exogamy, persons were not permitted to marry within one’s gotra as it meant family or class. The Smritis and Grihyasutras prohibit sagotra marriages. The three lineal male ancestors of the founder of the gotra are referred to as pravara denoting the ancestors.

During the British period, in many parts of India, marriages performed in violation of this norm were made valid.[8] The Hindu Marriage (Removal of Disabilities) Act, 1946 validated sagotra and sapravara marriages, and the Hindu Marriage Act, 1955 also validated such marriages providing the list of prohibited relationships in Section 3(g) of the act wherein –

• When one is a lineal ascendant (ancestor in an unbroken line of ascent) of the other, marriage is prohibited with all ancestors or ancestresses.
• One cannot marry the wife or husband of one’s lineal ascendant or descendant and there is no limit to the degree.
• One can’t marry the wives of – brother, father’s brother, mother’s brother, grandfather’s brother (paternal and maternal side), grandmother’s brother (paternal and maternal side).
• The following relationships also come under the degree of prohibited relationship as provided under the Section 3(g)(iv) – brother and sister, uncle and niece (both on the paternal and maternal side), aunt and nephew (both paternal and maternal sides), and children of two brothers or two sisters or a brother and sister.

Sapinda Relationship

The prohibitions of sapinda marriage are based on the rule of exogamy. The Dharmashastras consider any sexual relationship with one’s mother, one’s sister, or one’s daughter or with son’s wife as the highest sin.[9] The rule consequently established was that one cannot marry a person related to him within five degrees on the mother’s side and seven degrees on the father’s side.[10] The Hindus believe in pinda i.e offerings made to the departed soul and by the virtue of ‘pinda-daan‘, one is believed to be connected to one’s six ancestors on the paternal side and four on the mother’s side.[11]

Section 5(v) of the Hindu Marriage Act, 1955 lays down that, the parties to the marriage should not be sapindas to each other.

Section 3(f)(i) defines sapinda relationship wherein it states that one person will be sapinda to the other i.e if he is in direct degrees of ascent within five degrees to the other through the father or three degrees of ascent to the mother.

Therefore, reducing the earlier existing or believed norm of the sapinda relationship by two degrees on either side. Rules regarding sapinda relationship are as follows[12]

• The sapinda relationship is always traced upward i.e in the line of ascent and not downward i.e in the line of descent.
• The computation of degrees is inclusive of the person concerned and the common ancestor.
• If both the persons are sapindas to each other and, in case one of them is not sapinda to the common ancestor, they will not be sapindas to each other.
• In determining whether two persons are sapindas or not, the relationship of the two to each other or to the common ancestors may be by legitimate relationship, or illegitimate relationship may be by full blood or half-blood, or maybe by natural birth or adoption as provided under the Explanation to Section 3.

Conclusion

The Hindu Marriage Act, of 1955 has sustained the customs and practices of the ancient Hindu Laws and at the same time has modernized the act according to the needs and demands of the contemporary situation.

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[1] Kanwal Ram v. H.P., 1966 SC 614; S. Vardarajan v. State of Madras, 1965 SC 1964; Bhau Rao v. State of Maharashtra, 1965 SC 1964

[2] AIR 2006 SC 80.

[3] Dr. Paras Diwan, Modern Hindu Plaw, p.108

[4] Shankarappa v. Basamma, 1964 Mys 247

[5] Lily Thomas v. Union of India, AIR 2000 SC 1650

[6] Manishwar v. Indra, 1963 Raj 449

[7] Supra Note 3

[8] Ibid.

[9] Ibid.

[10] Yajnavalkya Smriti, 1, 52-53

[11] Supra Note 3

[12] Supra Note 3

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