OVERVIEW OF A HINDU MARRIAGE

INTRODUCTION

Hindu Marriage Act 1955, s 5 lays down the conditions necessary to be satisfied for a valid
Hindu marriage.

THE CONDITIONS

The applicable conditions, laid down in the Hindu Marriage Act 1955, s 5, are:

1. At the time of marriage, neither party has a spouse living. 1

2. At the time of marriage:
a. Neither party is incapable of validly consenting to the marriage in question due
to unsoundness of mind. 2
b. Neither party, though capable of giving valid consent, is suffering from a
“mental disorder of such a kind, or to such an extent, as to be unfit for marriage
and the procreation of children.” 3
c. Neither party has been subject to recurrent acts of insanity. 4
3. The bridge is aged at least 18 years, and the bridegroom at least 21 years. 5
4. The parties are not within the degrees of prohibited relationships. An exception to this
clause may be claimed if an overriding custom or usage governing each of them can be
proved. 6
5. The parties are not sapindas of each other. An exception to this clause may be claimed
if an overriding custom or usage governing both of them can be proved. 7

Each of these grounds are explored in detail in following documents.

SOLEMNIZATION OF HINDU MARRIAGES

Hindu marriages are required to be solemnized in accordance with the customary rites and
ceremonies of either party. 8 In cases where such rites including the Saptapadi (i.e. the taking

1
Hindu Marriage Act 1955, s 5(i).
2
Hindu Marriage Act 1955, s 5(ii)(a).
3
Hindu Marriage Act 1955, s 5(ii)(b).
4
Hindu Marriage Act 1955, s 5(ii)(c).
5
Hindu Marriage Act 1955, s 5(iii).
6
Hindu Marriage Act 1955, s 5(iv).
7
Hindu Marriage Act 1955, s 5(v).
8
Hindu Marriage Act 1955, s 7(1).
of 7 steps together, by the bride and the bridegroom, before the sacrificial fire), the marriage
becomes complete and binding the moment the seventh step is taken. 9

VOID & VOIDABLE MARRIAGES

1. Void Marriages: Marriages in which, at the time of marriage, (a) either party has a
spouse living, (b) the parties are within the degrees of prohibited relationships, or (c)
the parties are sapindas of each other, are void (ab initio). 10

Such marriages may be declared void by the competent court through a decree of
nullity, only on a petition presented by either party to the marriage. 11 No other parties
have the right to move for such a decree.

2. Voidable Marriages: In general, marriages in which (a) the marriage has not been
12
consummated owing to the impotence of the respondent, (b) the marriage is in
13
contravention of the requirements of Hindu Marriage Act 1955, s 5(ii), (c) consent
14
was obtained by force, or fraud, or (d) at the time of marriage, the respondent was
pregnant by some person other than the petitioner, are voidable. 15

Such marriages may be declared void by the competent court through a decree of
nullity, at the option of the petitioner, and not the respondent. 16

Each of these grounds are explored in detail in the remainder of this course.

CHILD MARRIAGES – VOID OR VOIDABLE?

An essential condition for a Hindu marriage is the bride and bridegroom must be aged at least
18, and 21, years of age at the time of marriage. However, the HMA does not classify marriages
in contravention of this provision at either void or voidable. This suggests a succinct, quiet
approval of so-called “child” marriages.

Although child marriage itself is a punishable criminal offence, back in 1955, this provision
probably reflected a silent approval of the statute-makers of the fact that the parties to a child
marriage, despite being the victims of a crime, need to be protected within the confines of a

9
Hindu Marriage Act 1955, s 7(2).
10
Hindu Marriage Act 1955, s 11.
11
Hindu Marriage Act 1955, s 11.
12
Hindu Marriage Act 1955, s 12(1)(a).
13
Hindu Marriage Act 1955, s 12(1)(b).
14
Hindu Marriage Act 1955, s 12(1)(c).
15
Hindu Marriage Act 1955, s 12(1)(d).
16
Hindu Marriage Act 1955, s 12(1).
marriage. The present position of law is that child marriages are voidable at the option of the
party who was a minor at the time of marriage. 17

17
Prohibition of Child Marriage Act 1955, s 3(1).
HINDU MARRIAGE – A SACRAMENT, OR A CONTRACT?

In Hinduism, marriage is viewed as a sacrament – a divine union which joins two individuals
for life, so that they can pursue three of the four cardinal aims of a Hindu in life: (a) dharma
(one’s duty, frequently understood to be the duty to do what is right), (b) artha (possessions –
both material possessions, and wisdom), and (c) kama (sensual pleasures, including sexual
pleasures). Our traditional thinking, in India, of a Hindu marriage reflects this understanding
of it as a sacrament.

However, at the same time, since the enactment of statutes to codify Hindu personal law,
elements of contract have been introduced into Hindu marriage too. Elements such as capacity,
free consent, voidability, divorce, etc. are traditional elements associated with contracts that
are today an integral part of the Hindu marriage.

Hence, as Hindu personal law stands today – while a Hindu marriage retains its essentially
religious and sacramental nature, statutes have also introduced elements of contract into
it.