Marriage is considered as a sacrament in Hindus. It is the last of the 10
sacraments in the Hindu religion for regeneration of men and obligatory for
every Hindu who does not desire to adopt the life of a sanyasi. The first and
foremost condition for a Hindu Marriage is that the both parties should be
Hindus. This was held in Gullipilli Sowria Raj vs Bandaru Pavani
2009 SC 1085]. Hindu Marriage Act, 1955 has laid down few necessary conditions
for a valid Hindu Marriage. This is given under section 5 of the Act.
In Lila Gupta vs Laxmi Narain & Ors
[AIR 1978 SC 1351], the apex court
held that all conditions under section 5 of the Act are not mandatory.
The following are the necessary conditions for a valid Hindu Marriage:
Section 5(i) of the Act prohibits polygamy and polyandry. It says that
neither party should have a living spouse at the time of the marriage.
Failure of this condition would make the marriage null and void under
section 11 of the Act. Apart from this, the party would be liable for bigamy
under sections 494 and 495 of the Indian Penal Code, 1860 and section 17 of
the Hindu Marriage Act, 1955. Schedule Tribes are exempted from this but
they must have an early and lasting custom for this.
In cases like Bhogadi Kannababu & Ors vs Vuggina Pydamma & Ors [AIR
2006 SC149] and Yamunabai Anantrao Adhav A vs Ranantrao Shivram Adhav &
Anr [AIR 1988 SC 644], the apex court held that during the subsistence
of first marriage, the second marriage would be null and void.
Offence of Bigamy would be constituted only when the first marriage is
solemnized according to proper ceremonies and rituals. This was held by
court in cases like Dr. A.N. Mukerji vs State [AIR 1969 All 489] and Santi
Deb Berma vs Smt. Kanchan Prava Devi [AIR 1991 SC 816]. 2. Mental
Capacity: This clause was inserted in the Act through The Marriage Laws
(Amendment) Act, 1976. As per the clause, three conditions must be fulfilled
as per section 5(ii) of the Act for a valid Hindu Marriage.
- The conditions are:
neither party, at the time of marriage:
- is incapable of giving a valid consent due to his/her unsound mind
- 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
- has been subjected to recurrent attacks of insanity.
If any of these conditions are
not fulfilled then marriage is voidable under section 12(1)(b) of the Act.
The clause of epilepsy was removed through The Marriage Laws (Amendment)
Act, 2001. In a case in this regard, Allahabad High Court held that the
validity of marriage will be nullified only when it is impossible for one
party to remain in the marriage due to the unsoundness of the other party.
Before the enactment of the Amendment, in the case of Anima Roy vs Probodh
Mohan Roy [AIR 1969 Cal 304], the Calcutta High Court held that since the
expression ďinsaneĒ has not been defined under the Act, its meaning and
purport would be the same as under Section 3(5) of the Insanity Act which
provides that any person suffering from mental derangement of any kind may
be regarded as idiot or insane.
In Smt.Alka Sharma vs Abhinesh Chandra
Sharma [AIR 1991 MP 205], the High Court of Madhya Pradesh held that the
court can nullify the marriage if either condition or both conditions are
fulfilled due to mental disorder of the party.
- Age to the parties:
At the time of enactment of the Act, the legal age for
the marriage of boy and girl was 18 years and 15 years respectively. However,
later on, The Marriage Laws (Amendment) Act, 1976, changed the minimum age to 21
years and 18 years respectively. According to the ruling in Pinninti
Venkataramana and Anr vs State [AIR 1977 AP 43], breaching of the condition
didnít amount to nullity of the marriage but it is an offence under section
18(a) of the Act i.e. simple imprisonment up to 15 days or a fine of Rs. 1000/-
or both. According to section 10 of The Prohibition of Child Marriage Act, 2006,
any person performing, conducting, directing or abetting a child marriage shall
be punished with rigorous imprisonment up to two years and fine of one lakh
- Prohibited Degrees of Relationship:
Section 5(iv) of the Act prohibits
solemnization of marriage of persons falling within prohibited degree of
relationship. If any marriage is solemnized under this then the marriage would
be void under section 11 of the act. Apart from this, violation of this clause
would amount to simple imprisonment upto 1 month or a fine of Rs. 1000/- or both
under section 18(b) of the act. Section 3(g) defined persons falling within
prohibited degree of relationship.
- If one is a lineal ascendant of the other; or
- If one was the wife or the husband of a lineal ascendant or descendant
of the other; or
- If one was the wife of the brother or of the fatherís or motherís
brother or of the grandfatherís or grandmotherís brother of the other,
- 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.
It also includes:
- Relationship by half or uterine blood as well as by full blood;
- Illegitimate blood relationship as well as legitimate;
- Relationship by adoption as well as by blood.
In simple words we can say that a man cannot marry either of the following
- His lineal ascendant
- Wife of his lineal ascendant
- Wife of his lineal descendant
- Brotherís wife
- Wife of his fatherís brother
- Wife of his motherís brother
- Wife of his grandfatherís brother
- Wife of his grandmotherís brother
- Sisterís daughter
- Fatherís sister
- Motherís sister
- Fatherís sisterís daughter
- Fatherís brotherís daughter and
- Motherís brotherís daughter.
Similarly, a woman cannot marry either of the following persons:
In Shakuntala Devi vs Amar Nath [AIR 1982 P H 221], Punjab and Haryana High
Court held that two persons can marry within the prohibited relationship but
there should be a proof of established custom i.e. very old and beyond human
- Her lineal ascendant
- Husband of her lineal ascendant
- Husband of her lineal descendant
- Fatherís brother
- Motherís brother
- Sisterís son
- Uncleís son
- Fatherís sisterís son
- Motherís sisterís son and
- Motherís brotherís son.
- Prohibition of Sapinda Relationship:
Section 5(v) of the Act, marriage between the persons having sapinda
relationship is prohibited unless there is a custom which allows them to do
so. Any marriage solemnized under this would be void under section 11 of the
Act and violation of this clause would amount to simple imprisonment up to 1
month or a fine of Rs. 1000/- or both under section 18(b) of the act.
Section 3(f)(ii) of the Act says that Two persons are said to be
ďsapindasĒ of each other if one is a linear ascendant (i.e. is a blood
relative in the direct line of descent Ė the children, grandchildren,
great-grandchildren, etc. of a person) of the other within the limits of
ďsapindaĒ relationship, or if they have a common lineal ascendant who is
within the limits of ďsapindaĒ relationship with reference to each of them.
According to section 3(f)(i) sapinda relationship extends as far as the
third generation (inclusive) in the line of ascent through the mother, and
the fifth generation (inclusive) in the line of ascent through the father,
the line being traced upwards in each case from the person concerned, who is
to be counted as the first generation. If there is any common ancestor of 2
persons then both are sapinda to common ancestor and they would be sapinda of each other.