Introduction:
Marriage is considered as a sacrament in Hindus. It is the last of 10 sacraments in the Hindu religion for regeneration of men and obligatory for every Hindu who does not desire to adopt the life of Sanyasi. The first and foremost conditions for a Hindu marriage are that both parties should be Hindu marriage ACT,1955 has laid down few necessary conditions for a valid Hindu marriage, this is given under section 5 of the act.
Monogamy [Section 5(i)]
Section 5(i) provides that neither party should have a spouse living at the time of Marriage. Section 17 would further render the offending person liable for prosecution under section 494 and 495 of Indian penal code.
Thus, a man or woman whose wife or husband is alive and his or her marriage is subsisting at the time, cannot marry another woman or man. Such second marriage will be invalid even if contracted outside India. If the previous marriage was not solemnized properly then parties to such marriage can enter into fresh institution of marriage without rendering them liable for any punishment. parties to void marriage within the purview of section 11 can contract a valid marriage. In Sarla Mudgal vs Union of India,AIR1995SC1531, The supreme court also held that if a Hindu male having a Hindu wife converts to Islam and marries again according to Muslim law, as the Hindu marriage subsisting ,the second marriage is invalid.
Neither party, at the time of marriage
Soundness of Mind [(section5(ii)]
- 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
The Marriage performed in contravention of section 5(ii) is voidable and not void. The provision regarding this is also marriage contained in section 12(b) of the ACT.
Age of marriage (section5 (iii)
The bridegroom must have completed the age of 21 years and the bride, the age of this clause are not attracted. The prohibition of child marriage provides for the prohibition of solemnization child Marriage. Child marriage is valid marriage. Section 18 (a) of Hindu Marriage Act also impose penalty for contravention of the section 5(iii) and every person procuring such marriage will be punished with rigorous imprisonment extending up to Rs 1 Lac or both.
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 up to 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. Such Marriage may declare void under section 11 of Hindu Marriage Act, 1955 on petition presented by either of the parties against other.
They are:
- 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 father�s or mother�s brother or of the grandfather�s or grandmother�s 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.
Beyond sapinda relationship
Section 5(v) provides that the parties should not be sapinda of each other unless the custom or usage governing any of them allows such marriage. A Hindu marriage in contravention of this rule is null and void under section 11 of the Act. Such marriage is punishable with simple imprisonment up to the period of one month or with fine up to Rs 1000 or with both.
About the Author
Adv. Mukesh Kumar sah (9643655911)
Advocate Mukesh Kumar Sah has been practicing and handling cases independently with a result-oriented approach, both professionally and ethically and has now acquired many years of professional experience in providing legal consultancy and advisory services.
