According to section 5 of Hindu marriage act, 1955, a marriage solemnized between to Hindus is valid if the following conditions are fulfilled, namely-
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;
(ii) at the time of the marriage, neither party,
a. is incapable of giving a valid consent of it in consequence of unsoundness of mind;
b. 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
c. has been subject to recurrent attacks of insanity or epilepsy;
(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
Section 5(1), Hindu marriage act introduced monogamy which means a husband can have one wife or wife can have one husband at a time. From ancient times to 1955, polygamy was recognized in Hindu law which means a husband can have more than one wife simultaneously. Now bigamy is prohibited and monogamy is made rule for all Hindus. Under section 11 bigamous marriage is void. And under section 17 it is penal offence. In the case of Kanwal Ram vs. Himachal Pardesh, court has held that performing of essential ceremonies for marriage are required for bigamy.
According to section 5(ii) another condition for valid marriage is mental capacity. Neither parties to marriage must be an idiot nor lunatic at the time of marriage all the given three clause are independent of each other.
First clause, unsoundness of mind can be temporary or permanent in nature.
Second clause lays down mental disorder of such kind which renders to be (i) unfit for marriage and (ii) procreation of children. In the case of Alka vs. Abhinash, M.P. High Court held that ‘and’ must be read as ‘or’ unfit for marriage or/and procreation of children.
Third clause deals with recurrent attack of insanity or epilepsy is enough. It does not matter whether it is incurable or curable.
Marriages in violation of above three clauses are voidable.
Age of parties
In ancient India child marriage was very common. The Hindu sages were in favor of early marriage of girls. During the British rule 1929, the child marriage restraint act was introduced and the minimum age of girl was 15 years and minimum age of boy was 18 years for marriage. In 1978 the child marriage restraint (amendment) act raise the minimum age of girls to 18 years and 21 years for boys. However marriage performed in violation of this rule is valid. But it is punishable as an offence.
Degrees of prohibited relationship
Both the parties must not be in the degrees of prohibited relationship for valid marriage. Section 11 says that marriage performed within degrees of prohibited relationship is void. But if custom and usage permits then the marriage is valid. Two persons are said to be within the degree of prohibited relationship-
- When one is a lineal ascendant of other. There is no limit of degrees.
- One cannot marry with the wife or husband of one’s lineal ascendant or descendant. There is no limit for degrees.
- One cannot marry with the wife of
- Father’s brother
- Mother’s brother
- Grandfather’s brother (both parental and maternal side)
- Grandfather’s mother (both parental and maternal side)
Two people cannot marry each other with the following relationship-
- Brother and sister
- Uncle and niece (both parental and maternal side)
- Aunt and nephew (both parental and maternal side)
- Children of brother and sister, children of two brothers and two sisters.