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Written By- Apeksha Kushwaha
INTRODUCTION
The Hindu marriage Act 1955 has provided five conditions as pre-requisites for valid Hindu marriage, under section 5 of Act.
Section 5[1] provides that a marriage can be solemnised between two Hindus, if the following conditions are fulfilled:
1. Spouse living at time of the marriage: neither of the parties to marriage should have any spouse living at the time of marriage.
2. At time of marriage, neither party to marriage should be incapable of giving a valid consent for the marriage.
3. At the time of marriage, though capable of giving a valid consent, is suffering from any mental disorder of any such type or to such extent, that is unfit for marriage or procreating children.
4. At the time of marriage, has been subject to recurring attacks of insanity.
5. Age of the bridegroom and bride must be 21 and 18 years of age, respectively.
6. The parties must not be within the degrees of the prohibited relationship. Exception to this is only provided if the custom or usage governing them, allows such a marriage.
7. The parties must not be sapindas of each other. Exception to this is provided by the permission of customs or usages governing the parties.
DESCRIPTION OF CONDITIONS
Following are the conditions required to be fulfilled for a valid Hindu marriage:
1. MONOGAMY: Hindu Marriage Act, 1955 provides the rule of monogamy & prohibits polygamy & polyandry. A Hindu before this law could marry any number of wives , even if he had a wife or wives living, although this practice was looked always with disfavour. When a wife has more than one husband at one time this is called polyandry. From the ancient times to 1955, polygamy was recognised in Hindu Law, but polyandry was never permitted . Section 17[2] would render the offending party liable for prosecution under section 494 and 495 of IPC ,1860. A second marriage in the lifetime of a spouse of first marriage, will be against law and considered void even if second marriage were contracted outside India. In order to prosecute a person for bigamy it is necessary to prove that he/she already has a living spouse & prior marriage has been duly celebrated with the performance of ceremonies.
2. SANITY OR MENTAL CAPACITY: Section 5(ii) provides about the mental capacity of the spouses at the time of marriage. It was provided, in the original act, that neither party to a marriage should be idiot or lunatic at the time of marriage. The marriage laws amendment Act 1976 framed the clause & explained insanity or mental disorder .
This clause provides : “at the time of marriage neither party
· should be incapable of giving valid consent to it in consequences of unsoundness of mind; or
· though capable of giving the valid consent , has been suffering from mental disorder of such kind or kind to such extent as to be unfit for marriage & procreation of children; or
· has been subject to recurrent attack of insanity or epilepsy.
Thus, the mental incapacity of any form, affecting the very purpose of marriage has been ground of voidability of marriage. The mental disorder of insanity must be in existence at the time of marriage. Such marriages may be declared as voidable under section 12 of the act[3] . But if a person subsequent to the date of marriage suffers from mental disorder or insanity ,the provision of this clause are not contravened, because it applies to such case where the parties are insane at the time of marriage.
3. AGE OF PARTIES TO MARRIAGE: The minimum age for marriage is fixed. According to the Hindu Marriage act 1955, the age provided for the groom was 18 years & for the bride 15 years. Though where the age of a bride was below 18, the consent of her guardian was necessary. Now, the child Marriage Restrain (Amendment)Act, 1978, has revised the minimum age fixed for marriage to 21 years in case of groom & 18yrs of age in case of bride. A contravention of this clause would neither render the marriage void under section 11 of this act nor voidable under section 12 of the act. The Hindu Marriage Act provides in section 18 punishment of child marriage i.e., imprisonment upto 15 days or a fine upto Rs 1000 or both).
4. BEYOND PROHIBITED DEGREE: Section 5(iv) prohibits marriage between the person who are within the “prohibited degree of relationship with each other”. Section 3(g) provides,“ two person are said to be within the degree prohibited relationship:
i. If one is lineal ascendant of the other; or
ii. If one was the wife or husband of 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 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 well as by full blood,
ii. Illegitimate blood relationship as well as legitimate,
iii. Relationship by adoption as well as by blood; and all of terms of relationship in those clauses shall be construed accordingly. But if the custom or usage governing each of parties to the marriage allows the marriage within the degree of prohibited relationship, then such marriage will be valid & binding.
5. BEYOND SAPINDA RELATIONSHIP: Section 5(v) prohibits marriage between persons who are sapindas of each other. A marriage in contravention of this clause, .i.e., it will be void & may be so declared under section 11 and the person contravening to the provision of this clause would be punishable under section 18. The word “sapinda” means relation connected through same body.
According to section 3(f) Sapinda relationship defined:
i. “sapinda relationship” with reference to any person extends as far as the 3rd generation (inclusive) in the line of ascent through the mother, and 5th generation (inclusive) in the line of ascent through father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.
ii. Two persons are said to be “sapindas” of each other if one is lineal ascendant of other within the limits of sapinda relationship within the limits of sapinda relationship with reference each of them.
CONCLUSION
A marriage under Hindu law is a sacrament that requires the above-mentioned conditions of marriage. Thus, in order to constitute a valid Hindu marriage under Hindu law, parties to marriage should be monogamous, should have sound mind, should be major by age and should be beyond prohibited degree. A marriage fulfilling these conditions is considered to be valid and have effect under the Hindu Marriage Act, 1955.
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