Forms of marriage and

validity
Sec 5, 12, 17
• Concept of Marriage
• Evolution
• Significance
• Place it occupies among Hindus.
• Sacrament or contract ?
Types of Marriage
• Valid Marriage
• Voidable Marriage
• Void Marriage
• According to Manu
• Approved unapproved
• Brahma Asura
• Daiva Gandharva
• Arshar Arsha
• Prajapatyama Paishacha
• Nature of Hindu Marriage is it a contract or Sacrament ?
Essentials of a valid marriage Sec 5
• 5. Conditions for a Hindu Marriage: - A marriage may be solemnized
• between two Hindus,
• if the following conditions are fulfilled, namely:-
• (i) neither party has a spouse living at the time of the marriage;
• (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 a kind or to such as
extent as to be unfit for marriage and the procreation of children; or
• (c) has been subject to recurrent attacks of insanity or
• (iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of
the marriage;
• (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of
them permits of a marriage between the two;
• (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a
marriage between the two;
Bigamy
5. Conditions for a Hindu Marriage: - A marriage may be solemnized
between two Hindus, if the following conditions are fulfilled, namely:- (i)
neither party has a spouse living at the time of the marriage;

Sec 11 Makes it void marriage

Sec 17 provides punishment for same
17. Punishment of Bigamy: - Any marriage between two Hindus solemnized
after the commencement of this Act is void if at the date of such marriage
either party had a husband or wife living; and the provisions of sections
494 and 495 of the Indian Penal Code (XLV of 1860) shall apply accordingly.
IPC provisions 494
• Section 494 in The Indian Penal Code
• 494. Marrying again during lifetime of husband or wife.—
• Whoever, having a husband or wife living,
• marries in any case in which such marriage is void by reason of its taking place during the life of such
husband or wife,
• shall be punished with imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine.
• (Exception) —This section does not extend to any person whose marriage with such husband or wife has
been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage
during the life of a former husband or wife, if such husband or wife, at the time of the subsequent
marriage, shall have been continually absent from such person for the space of seven years, and shall not
have been heard of by such person as being alive within that time provided the person contracting such
subsequent marriage shall, before such marriage takes place, inform the person with whom such
marriage is contracted of the real state of facts so far as the same are within his or her knowledge.
Cases:
• S. Nagalingam v. Sivagami
• Bhaurao Shankar Lokhande v. State Of Maharashtra.
• Sarla Mudgal v. UOI
• Lily Thomas V. UOI.
• Que involved
• where a non-Muslim gets converted to the ‘Muslim’ faith without any
real change or belief and merely with a view to avoid an earlier
marriage or to enter into a second marriage, whether the marriage
entered into by him after conversion would be void?
IPC sec 495
• Section 495 in The Indian Penal Code
• 495. Same offence with concealment of former marriage from person
with whom subsequent marriage is contracted.—Whoever commits
the offence defined in the last preceding section having concealed
from the person with whom the subsequent marriage is contracted,
the fact of the former marriage, shall be punished with imprison­ment
of either description for a term which may extend to ten years, and
shall also be liable to fine.
• If the marriage takes place in spite of the fact that a party to that marriage
had a spouse living, such marriage would be void under S. 11 of the Hindu
Marriage Act. Such a marriage is also described as void under S. 17 of the
Hindu Marriage Act under which an offence of bigamy has been created
• MARRIAGE IN ANY CASE IN WHICH SUCH MARRIAGE IS VOID BY REASON OF
ITS TAKING PLACE DURING THE LIFE-TIME OF SUCH HUSBAND OR WIFE.”
• The words “Husband or Wife” are also important in the sense that they
indicate the personal law applicable to them which would continue to be
applicable to them so long as the marriage subsists and they remain
“Husband and Wife.”
• Sec 194 CRPC specified persons only can file case
• If a Hindu wife files a complaint for the offence under S. 494 on the ground
that during the subsistence of the marriage, her husband had married a
second wife under some other religion after converting to that religion,
the offence of bigamy pleaded by her would have to be investigated and
tried in accordance with the provisions of the Hindu Marriage Act. It is
under this Act that it has to be seen whether the husband, who has
married a second wife, has committed the offence of bigamy or not.
• Now, conversion or apostasy does not automatically dissolve a marriage
already solemnized under the Hindu Marriage Act. It only provides a
ground for divorce S. 13
Retrospective effect
• We are not impressed by the arguments to accept the contention that
the law declared in Sarla Mudgal’s case cannot be applied to persons
who have solemnised marriages in violation of the mandate of law
prior to the date of judgment. This Court had not laid down any new
law but the Court has only interpreted the existing law which was in
force. It is settled principle that the interpretation of a provision of law
relates back to the date of the law itself and cannot be prospective
from the date of the judgment because concedely, the Court does not
legislate but only give an interpretation to an existing law.
• Not violative of Art 25.
• The first marriage, therefore, is not affected and it continues to
subsist. If the ‘marital’ status is not affected on account of the
marriage still subsisting, his second marriage qua the existing
marriage would be void and in spite of conversion he would be liable
to be prosecuted for the offence of bigamy under S. 494.
• Prosecution under S. 494 in respect of a second marriage under
Mohammedan Law can be avoided only if the first marriage was also
under the Mohammedan Law and not if the first marriage was under
any other personal law where there was a prohibition on contracting
a second marriage in the life-time of the spouse.
Void marriage
• Section 11.- Void marriages.- Any marriage solemnized after the commencement of
this Act, shall be null and void and may , on a petition presented by either party
thereto against the other party, be so declared by a decree of nullity if it
contravenes any one of the conditions specified in
• clause (i),of sec5 i.e (i) neither party has a spouse living at the time of the marriage;

• clause(iv)of sec 5 i.e the parties are not within the degrees of prohibited
relationship unless the custom or usage governing each of them permits of a
marriage between the two;
• clause(v) of section 5. (v) the parties are not sapindas of each other, unless the
custom or usage governing each of them permits of a marriage between the two;
Voidable marriage sec 12
• Section 12.- Voidable marriages.-(1) Any marriage solemnized; whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any
of the following grounds, namely;-
• (a) that the marriage has not been consummated owing to the impotence of the respondent; or
• (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
• (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the
petitioner was required under section 5 as it stood immediately before the commencement of
the Child Marriage Restraint (Amendment) Act, 1978 (Act no.2 of 1978) the consent of such
guardian was obtained by force or by fraud as to the nature of ceremony or as to any material
fact or circumstance concerning the respondent; or
• (d) that the respondent was at the time of the marriage pregnant by some person other than
the petitioner.
•
• (2) Notwithstanding anything contained in sub-section (1), no petition for annulling a
marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if- (i)
the petition presented more than one year after the force had ceased to operate, or, as the
case may be, the fraud had been discovered; or
• (ii) the petitioner has, with his for her full consent, lived with the party to the marriage as
husband or wife after the force had ceased to operate or, as the case may be, the fraud had
been discovered;
• (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the
Court is satisfied – (i) that the petitioner was at the time of the marriage ignorant of the facts
alleged; (ii) that the proceedings have been instituted in the case of marriage solemnized
before the commencement of this Act within one year of such commencement and in the
case of marriage solemnized after such commencement within one year from the date of
marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken
place since the discovery by the petitioner of the existence of the said ground