conditions essential for marraige under hindu law

8/10/2019 Conditions Essential for Marraige under Hindu Law

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1 | A U R O U n i v e r s i t y

ACKNOWLEDGEMENT

We would like to express our special thanks of gratitude to my teacher Mrs.Ankita Kumarwho gave me the golden opportunity to do this wonderful project on the topic Conditions

Essential for Marriage under Hindu Marriage Act which also helped me in doing a lot of

Research and we came to know about so many new things I am really thankful to her.

Secondly we would also like to thank our parents and friends who helped us a lot in finalizing

this project within the limited time frame.


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TABLE OF CONTENT:

SR.

No.

TOPIC PAGE

No.

1. Objectives 3

2. Hypothesis 4

3. Conditions Essential for Marriage under HMA 5

4. Explanation of Section 5 6

Condition 1 6

Condition 2 9

Condition 3 10

Condition 4 11

5. Testing of Hypothesis 13

6. Conclusion 14

7. Bibiliography 15


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OBJECTIVE:

To study and analyze the various conditions essential for marriage under

Section 5 of Hindu Marriage Act.


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HYPOTHESIS:

1. A person already married under section 5 of the Hindu Marriage Act cannot remarry as per

the provisions of the same section.

2.

The marriage can be annulled if one of the spouses was suffering from a mental condition

at the time of marriage.

3. Two people can get married when they attain the age of majority i.e. 18 years.

4. No two people can get married if they come under their relationship comes under

prohibited relationships defined in Sec 5 Clause (4) of the act.


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Section 5. Conditions for a Hindu

marriage.-

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 the marriage;

1[(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 an extent as to be unfit for marriage and the procreation of children;

or

(c) has been subject to recurrent attacks of insanity

(iii) the bridegroom has completed the age of 3[twenty-one years] and the bride, the age of

4[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;


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(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;1

Explanation of Section 5:

First Condition

Monogamy (Section 5(i))- This clause provides the rule of monogamy and prohibits

polygamy and polyandry. Before the act of 1955, a Hindu could marry any number of wives,

even if he had a wife or wives or wives living,2although this practice was always looked with

disfavour. The condition laid down in this clause for a valid marriage is one of those

conditions, contravention of which would make the marriage void under Section 11 of the

act. Section 17 would further render the offending party liable for prosecution under section

494 and section 495 of the Indian Penal Code. Section 17 of the Hindu Marriage Act lays

downAny marriage between two Hindus solemnised 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 the Indian Penal Code shall apply accordingly. The provisions which prohibit

bigamy, do not contravene Article 25 of the Constitution.3

The Supreme Court in Smt. Yamunbhai Anant Rao Adhar v/s Anant Rao Thiraram Adhar,

held that the marriage become 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 125of the Criminal

Procedure Code.4

Thus a man whose wife is alive and his marriage is valid subsisting at the time, he cannot

marry another wife. He will be guilty of committing the offence of bigamy, if he marries

1

http://www.vakilno1.com/bareacts/hindumarriageact/hindumarriageact.html#5_Conditions_for_a_Hindu_ma

rriage2

Viraswami vs Appaswami, (1863) 1 Mad HC 3753Ram Prasad vs State of U.P., AIR 1961 AII. 334

4AIR 1988 SC 644


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another wife during the continuance of the former marriage. So also a woman whose husband

is alive and her marriage is valid and subsisting at the time, cannot marry another husband

and she will be committing the offence of bigamy, if she marries another husband. But the

parties to void marriage within the purview of Section 11 can contract a valid marriage. So

also if there has been a dissolution of marriage either by a decree of nullity under section 12

or by a decree of divorce under Section 13, either party of such a marriage is at liberty to

marry again and the prohibition of Clause (i) of Section 5 will have no operation in such

cases. On the question whether the former husband or wife is alive or dead at the time of the

second marriage the fact that he or she has not been heard of for a period of 7 years by those

who are likely to have heard of him or her, raises a presumption that he or she is dead at the

time, and it is open to other spouse to contract a second marriage on the footing that the

former marriage has been dissolved by death,5and in such case the onus of proving that the

former spouse if alive is on the person applying for decree of nullity of the second marriage

on this ground.

A second marriage in the lifetime of the pose if the first marriage, in view of section 5 (i)

of this Act will be against law and void, even if the second marriage was contracted outside

India. The person commits the crime of bigamy and it does not matter in what part of the

world the second marriage has been contracted.

In order to prosecute a person for bigamy it is necessary to prove that he or she has already

a living spouse and the prior marriage had been duly celebrated with the performance of

ceremonies. If the previous marriage was not solemnised properly, the law would not

recognise it as a marriage and the parties would not be known as husband and wife of each

other. Under such conditions such parties to marriage could settle a fresh marriage without

rendering themselves liable to any punishment. Similarly where a person is prosecuted for

having contracted a second marriage and there is lack of proper and adequate religious or

customary ceremonies as evidence of such marriage, he cannot be punished for bigamy. In

Shanta Devi vs Smt. Kanchan Prava Devi, the Supreme Court held that the proof of the

performance of ceremonies is essential for a valid marriage. In Joginder Singh v Smt.

Jogindero, the only proof of re-marriage was mutation of name in the revenue record alleged

to have been made by the plaintiff (wife) herself. There was no evidence to show that

plaintiff (wife) had ever made any statement of her re-marriage and the real brother of second

5Lalchand Marwari vs Ram Rup Gir, (1925) 42 TLR 159 (PC)


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husband also denied the marriage of his brother with the plaintiff. The Supreme Court held

that on the basis of above facts, second marriage by the plaintiff could not be proved

therefore, her re-marriage cannot be upheld.

Where a husband or wife is arranging another marriage, either could move the court in

order to get a prohibitionary injunction so as to restrain the other party from marrying afresh.

Where the trial court permitted the husband to marry another wife during the subsistence of

first marriage, on an application of the wife of the first marriage on the ground that her health

used to be bad and she was unable to satisfy his sexual desires, the Himachal Pradesh High

Court held that the order of the court would be illegal being contrary to section 5 of the Hindu

Marriage Act.6

6Smt. Santosh Kumari vs Surjit Singh, AIR 1990 HP 77


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Second Condition

Sanity (Section 5(ii))- As regards the second condition, 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, and therefore, it is laid down under the Marriage Laws

(Amendment) Act, 1976, that neither party at the time of marriage is incapable of giving a

valid consent to it in consequence of unsoundness of mind, or though capable of giving a

valid consent, 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, or has been subject to recurrent

attacks of insanity.

An objection to a marriage on the ground of mental incapacity must depend on a question

of degree of the defect in order to rebut the validity of a marriage which has in fact taken

place. The 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.

In S. Lxmainarayan vs Shanti, the Supreme Court observed that to brand the wife as unfit

for marriage and procreation of children it needs to be established that the ailment suffered by

her is of such an extent that it is impossible for her to lead a married life.

Where the fact of unsoundness of mind of one of the parties to marriage was concealed at

the time of marriage and it was not disclosed even after marriage for some time by the

parents of a girl, the court held it to be sufficient ground for avoiding the marriage under

Section 12 (i) (c) of the Act. It cannot be said in this respect that it was the duty of the other

party to find out the facts about her.


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Third Condition:

Under this condition the minimum age for marriage is fixed. Originally, according to

Hindu Marriage Act, 1955, the age provided for the bridegroom was 18 years and for the

bride was 15 years, though where the bride was below 18, the consent of her guardian was

necessary under clause (VI) of the section. Now the Child Marriage Restraint Act

(Amendment), 1978, has risen the minimum age fixed for marriage to 21 years in case of

bridegroom and 18 years in case of bride.

According to the Marriage laws (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 attending the age but before attending the age of 18, the

girl can obtain a decree of dissolution of marriage. This is an additional ground available to a

wife under section 13(2)(iv) of the Act.

The Prohibition of Child Marriage Act 2006, which received the assent of the

President on 10th January, 2007 provides for the prohibition of solemnization of child

marriage. According to section 2(a) of the act child means a person who, if a male has not

completed 21 years of age and if a female has not completed 18 years of age and according to

Section 2(B), child marriage means a marriage to which either of the contracting parties is

a child. According to 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, but petition this section

can be filed before the child filing the petition completes 2 years of attaining majority. Child

marriage is punishable under section 9, 10 and 11 of the act, and a rigorous punishment of

maximum 2 years and a fine upto Rs. 1 lakh maybe awarded to those who contravene the

provisions of the act. Under section 13 of the act, a judicial magistrate of the first class or a

metropolitan magistrate is authorized to issue injunction in order to prevent child marriagefor from being solemnized. According to section 14, any child marriage solemnized in

contravention of an injunction order issued under section 13 would be void ab intio. By

section 20 of the act in section 18 for clause (a) the following clause has been substituted:

(a) in the case of contravention of the condition specified in clause(iii) of the Section

5 with rigorous imprisonment with may extend to two years or with fine which may extend to

one lakh rupees or with both By Section 21(1) of this Act Child Marriage Restraint Act,

1929 has been repealed.


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The FOURTH CONDITION

Beyond Prohibited Degree-Section 5(iv)-

This clause prohibits marriage between persons who are within the prohibited degrees

of relationship with each other.

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 fathers or mothers brother or of the

grandfathers or grandmothers brother of 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 uterine blood as by full blood;

(ii) Illegitimate blood relationship as well as legitimate;

(iii) Relationship by adoption as well as by blood; and all terms of relationship in those

clauses shall be constructed accordingly.

But if the custom or usage governing each of the parties to the marriage allows the

marriage allows the marriage within the degrees of prohibited relationship, then such

marriage will be valid and biding.

In Smt Shakuntala Devi v. Amar Nath7, the Punjab High Court has held that the

validity of marriage under Section 5(iv) is subject to customs and usage accepted in a

7AIR 1982 P. & H. 22.


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particular Hindu community. It simply implies that if a marriage could take place between

two Hindus of prohibited degrees by force of customs its validity cannot be challenged.


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Testing of Hypothesis

1.

If the person has not been heard of for a period of 7 years by those who are likely to

have heard of him or her, raises a presumption that he or she is dead at the time, and it

is open to other spouse to contract a second marriage on the footing that the former

marriage has been dissolved by death.

2. If unsoundness of mind of one of the parties to marriage was concealed at the time of

marriage and it was not disclosed even after marriage for some time by the parents of a

girl, the court held it to be sufficient ground for avoiding the marriage under Section

12 (i) (c) of the Act.

3. Two people can get married when the male completes the age of 21 years and the

female completes the age of 18 years.

4.

A marriage between two persons who come within the degrees of prohibited

relationship shall be void. However, if there is a valid custom or usage governing both

the parties allows they can marry even though they come within the degrees of

prohibited relationship. All over India, there are such custom which validate marriage

between persons who come within the degrees of prohibited relationship.


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CONCLUSION:

India, being a cosmopolitan country, allows each citizen to be governed under personal laws

relevant to religious views. This extends to personal laws inter alia in the matter of marriage

and divorce. As part of the Hindu Code Bill, the Hindu Marriage Act was enacted by

Parliament in 1955 to amend and to codify marriage law between Hindus. As well as

regulating the institution of marriage (including validity of marriage and conditions for

invalidity), it also regulates other aspects of personal life among Hindus and the applicability

of such lives in wider Indian society. The Hindu Marriage Act provides guidance for Hindus

to be in a systematic marriage bond. It gives meaning to marriage, cohabiting rights for both

the bride and groom, and a safety for their family and children so that they do not suffer from

their parental issues. Section 5 of The Hindu Marriage Act specifies that conditions must bemet for a marriage to be able to take place. If a ceremony takes place, but the conditions are

not met, the marriage is either void by default, or voidable.


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BIBILIOGRAPHY

Websites:

www.vakilno1.com

www.manupatra.com

www.lawyersclubindia.com

Books:

Hindu Law, Dr. Paras Diwan

Hindu Law of Marriage and Divorce, 2012 Edn, Sukhdev Singh
http://www.vakilno1.com/http://www.vakilno1.com/http://www.manupatra.com/http://www.manupatra.com/http://www.lawyersclubindia.com/http://www.lawyersclubindia.com/http://www.lawyersclubindia.com/http://www.manupatra.com/http://www.vakilno1.com/

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