Essential condition for a valid Marriage under Hindu Marriage Act, 1955

Questions: Explain the essential requisites of a Marriage? or

Explain the essential conditions for a valid Marriage?
To understand better, the conditions for a valid Hindu Marriage , under the Hindu
Marriages Act 1955, let us discuss on the conditions for a valid marriage under
the old Hindu law. Under old textual Hindu law , a marriage to be valid , it had to
fulfil three conditions they were;
Identity of caste between the parties; if the parties did not belong to the same
caste, the marriage was invalid, unless it was sanctioned by custom.
1. Parties to be beyond the prohibited degrees of relationship , that means were
not of the same gotra or pravara and were not the sapinda of each other; unless
such Marriage is sanctioned by custom. The rule did not apply to Sudras as
they have no gotra of their own.
2. Proper performance of ceremonies of marriage; there were three stages in the
ritual the of all forms of Hindu marriage. The rituals were (i) Betrothal, (ii)
the formalities including the recital of holy texts before the sacred fire, and
(iii) Saptapati Gamana.
 HINDU MARRIAGES ACT, 1955
This enactment is exhaustive and it has brought important and dynamic
changes in Hindu Matrimonial concept. It is the most important piece of
legislation. The Hindu marriage contemplated by the Act hardly remains
sacramental. It actually made it more contractual in nature.
Mr. S.T.Desai, the editor of Mulla’s “Principles of Hindu Law” concluded
that a Hindu marriage under the Act, is not entirely or necessarily a
sacrament, but a union of one man with one woman to the exclusion of all
others satisfied by solemnization of the customary rites and ceremonies of
either party essential for a marriage; and directly it exists, creates a relation
and status, not imposed or defined by contract but by law”.
Essential Conditions to be fulfilled for a valid Hindu Marriage under the
Hindu Marriages Act 1955,
Section 5 of the Hindu Marriage Act lays done the essential conditions
to be fulfilled for a Hindu Marriage to be valid they re;
1. Monogamy
2. Soundness of mind and valid consent
3. Age of Marriage
4. Beyond prohibited degrees
5. Beyond ‘Sapinda’ relationship.
i.MONOGAMY (Section 5(i)); The first condition provides that “
neither party has a spouse living at the time of the marriage. This Act
strictly advocates Monogamy and prohibits polygamy and polyandry.
Contravention of which would make the marriage void under section 11
of the Act . Section 17 would further render the offending party liable to
be prosecuted under sections 494 and 495 of the Indian Penal Code, for
any marriage solemnized after commencement of this Act.
Before this Act, Hindu Man could marry any number of wives , even if
he had a wife or wives living.
 In Yamunabai Anant Rao v. Anant Rao Thiraram Aadhar, AIR, 1988, it was
held that the marriage becomes null and void , where it is in violation of the first
condition of Section 5. It becomes void ab initio and ipso facto.
The Apex court observed further that the wife in a void marriage cannot claim
maintenance under Section 125 of the Criminal Procedure Code.
That means to say that any spouse whose husband or wife is alive his or her
marriage is valid and subsisting at the time, cannot marry another. if so , he will
be guilty of committing the offence of bigamy.
When a husband or wife is arranging another marriage, either could move the
court in order to get a prohibitory injunction so as to restrain other party from
marrying afresh.
In Smt. Santosh Kumari v. Surjit Singh , AIR 1990, the Trial Court permitted
the husband to marry another wife during the subsistence of first marriage, on the
ground that wife health used to be bad and she was unable to satisfy his sexual
desires , High court held that the order of the court would be illegal being
contrary to section 5 of the Hindu Marriage Act.
2. SOUNDNESS OF MIND AND VALID CONCENT;( Section 5(ii))
At the time of the marriage, neither party,_
(a) Is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from
mental disorder of such of kind or such an extent as to be unfit for
marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy.
(d) It is necessary that the parties to marriage are of sound mind and are not
suffering from any mental disability so as to be unfit for giving a valid
consent. Prior to passing of the Amendment Act 1976, the term ‘idiots’
and ‘lunatics’ were used in sub-section (ii) of Section five and these
two terms were interpreted liberally by the Courts. For example in the
 In the case , Amina Roy v. Prabodh Mohan Roy, AIR 1969, the
emphasis was upon the unsoundness of mind to a degree which renders
the marriage meaningless. Now under the Amendment Act , 1976, even
recurrent attacks of insanity have also been added to be grounds of
voidability of marriage. Thus mental incapacity of any nature affecting
the very purpose of marriage has been made ground of voidability of
marriage.
Thus onus of bringing a case under this clause lies heavily on the
petitioner who seeks annulment of the marriage on the ground of
unsoundness of mind or mental disorder.
Marriage performed in contravention of Section 5(2) is voidable under
Section 12 of the Act and not void. It should be remembered here that ,
he or she should be unsound mind ‘at the time of marriage’. If
subsequent of the date of marriage becomes an idiot of lunatic , the
provisions of this clause are not attracted.
The position under old Hindu Law was that the marriage with a
lunatic was valid . Their Lordships of the Privy Council held , “ the
objection to a marriage on the ground of mental incapacity must
depend on the degree of incapacity”.
And valid consent of both parties is required for a valid Hindu
Marriage.

3. AGE OF PARTIES TO THE MARRIAGE; (Section 5(iii)).

Initially under the Hindu Marriages Act, 1955, the age of marriage
for boy was 18 and for girl its 15 years, in such cases the consent of
Guardian was required under the Act.
According to the Hindu Marriage (Amendment )
Act 1976, where the marriage of a girl (whether consummated
or not) was solemnized before she attained the age of 15 years
and she has repudiated the marriage after attaining age the age of 15, but
before attaining the age of 18 years, the girl can obtain a decree for dissolution
of marriage. This is an additional ground made available to a wife under
Section 13(2)(iv) of the Act.
The child marriage Restraint (Amendment ) Act , 1978, has raised the minimum
age fixed for marriage to 21 years in case of bridegroom and 18 years in case of
bride.
The Prohibition of Child Marriage Act, 2006, provides for the prohibition of
solemnisation of child marriage. Anyone below than this prescribed age gets
married, then it will be called as child and the marriage so solemnized will be
called as child marriage. According section 3 of the Act , every child marriage
shall be voidable at the option of the contracting party who was a child at the
time of the marriage, petition under this section can be filed before two years
of attaining the majority.
 Child marriage is punishable under Sections 9, 10 and 11 of the Act, and
rigorous punishment of maximum two years and a fine up to 1 lakh may
be awarded to those who contravene the provisions of the Act.
According to Section 13 , an injunction for the court can brought to
prevent the solemnisation of child marriage. According to section 14 , any
child marriage solemnised in contravention of an injunction order issued
under Section 13 would be void ab initio .

IV. PARTIES TO BE BEYOND PROHIBITED DEGREE (Section 5(iv)).

According to Section 3(g) ‘ two persons are said to be within the degrees
of prohibited relationship ;
i. If one is a lineal ascendant of the other
ii. If one was the wife or husband of a lineal ascendant or descendant of
the other , or
iii. 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; 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 sisters .
It should also be noted that prohibited relationship includes
i. relationship by half or blood as well as by full blood:
ii. Illegitimate blood relatioship as we as legitimate;
iii. Relationship by adoption as well as by blood; and all terms of
relatioship in those clauses shall be construed accordingly. But if the
‘custom’ or ‘usage’ governing each of the parties to the marriage allows
the marriage within the degrees of prohited relationship, them such
mariage will be valid and binding.
In Smt. Shakuntala Devi v. Amar Nath, AIR 1982 , the Punjab High Court
has held that the validity of marriage under Section 5(iv) is subject to
customs and usage accepted in a particular Hindu Community. That
means to say that if a custom permits them a mariage between prohibited
degree of relationship, then its validity cannot be challenged.
V. BEYOND SAPINDA RELATIONSHIP : Section 5(v) Prohibits
marriage between persons who are Sapindas of each other.
A Hindu marriage in contravention of this rule is null and void , under
section 11 of the Act. Such a marriage is also punishable under Section
18(b) of the Act. Under which every person who procures marriage of
himself or herself in contravention of this condition is punishable with
simple imprisonment up to the period of one month or with fine up to
1000 or with both. However , where custom or usage governing each of
the parties to the marriage allows marriage between Sapinda Relations,
such a marriage is valid.
the word sapinda etymologically means one of the same pinda . In the
Hindu texts, the word has been used in two senses , firstly, it means a
relation connected through the same body, and secondly, it means,
relation connected through funeral oblation of food.
The Sapinda relationship according to this clause extends as far as;-
1. The third generation in the line of ascent through the mother.
2. The fifth generation in the line of the ascent through the father.
Marriage with persons falling within sapinda relationship is void under Section
11 of the Hindu Marriage Act and is punishable under Sect in 18 (b) of this Act.
ADDITIONAL CONDITIONS FOR VALID MARRIAGE:
There are other conditions of a valid marriage which are provided in other sections
of the Act, though not specified as important and significant they are:
i. Section 7 elaborates on the requirement of ceremonies for a Hindu Marriage or
role of religious rites
a. A marriage may be solemnized in accordance with the customary
rites and ceremonies of either party thereto.
b. where such rites and ceremonies include the saptapadi , the marriage
becomes binding when the seventh step is taken.
It is amply clear from the provisions of Section 7 that essential ceremonies and
rites , pertaining to a Hindu Marriage must be performed in order to make it
valid and binding. The section does not dispense with performance of essential
cermonies of marriage.
In Surjit Kaur v. Garja singh, AIR, 1994, the parties lived together as husband
and wife without performing the essential ceremonies or under any established
custom . The Supreme Court held that is such situations living together as
husband and wife by itself would not confer status of husband and wife.
There is an extremly strong presumption in favour of the validity of a marriage,
form and ceremny of the marriage and legitimacy of its offspring. After all ,
the rites and ceremonies only serve to provide proof of marriage as
registration does. It is otherwise very difficult after some lapse of time to call a
pandit to the witness-box to prove that then marriage has been solemnized . No
documentary evidence is even possible to find. Many of the witnesses
disappear in the meanwhile. No evidence except the hard fact of living
together survives , as held by the Delhi High Court in Ashok Kumarv. Smt.
Usha Kumari, AIR , 1984.
REGISTRATION OF MARRIAGES : Section 8 of the Act provides that , for
the purpose of facilitating the proof of Hindu marriages, the State
Government may make rules providing that the parties to any such
marriage may have the particulars relating to their marriage entered on
such manner and subject to such conditions, as may be prescribed in a
Hindu Marriage Register Kept for the purpose.
In Smt Seema v. Ashwani Kumar , AIR, 2006, the Supreme Court
ordered compulsory registration of marriages irrespective of religion in
2006.
The validity of any Hindu Marriage shall in no way be affected by
the omission to make the entry in the marriage Register.