Section 5 of the Act lays down the requisites of a valid Hindu marriage. This section is to be read along with the other sections of the Act, and in particular, sections 11, 12, 17 and 18, which lay down the effect of the absence or non-fulfilment of the conditions prescribed by section 5.
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The five important conditions of a valid Hindu marriage laid down by S. 5, are as follows:
(1) Neither party should have a spouse living at the time of the marriage:
ADVERTISEMENTS:
This clause establishes the rule of monogamy and prohibits polygamy, which was permitted before the Act came into force. It also prohibits polyandry, which was prohibited by the ancient Hindu law also.
The contravention of the first condition will render the marriage void under Section 11, and a competent Court may declare such a marriage to be a nullity on a petition presented by either party to such marriage. Further, the parties to a bigamous marriage are also liable to be punished under Section 494 and 495 of the Indian Penal Code (which has been made applicable to such a Hindu marriage by Section 17 of the Act).
The Supreme Court has held that a marriage with a person who has living spouse a is totally null and void; it cannot be treated as voidable under S. 12 of the Act. (Adhav v. Adhav, A.I.R. 1988 S.C. 644)
(2) Neither party should be suffering from unsoundness of mind, mental disorder or insanity:
Under the pure Hindu Law, a Hindu marriage was a pure sacrament, and therefore, idiots and lunatics could be lawfully married, as a consenting mind was not necessary. There were conflicting decisions on the point as to whether a Hindu marriage was also a contract, and this conflict of decisions was set at rest by the Act, which originally laid down that lunatics and idiots could not marry at all, thus making free consent a necessary ingredient of a valid Hindu marriage.
ADVERTISEMENTS:
After the 1976 Amendment of the Act, the second requirement of a valid Hindu marriage is that at the time of 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.
ADVERTISEMENTS:
If this condition of a valid marriage is not fulfilled, the marriage becomes voidable at the option of the other party under S. 12 of the Act.
(3) The bridegroom should have completed the age of 21 years and the bride the age of 18, at the time of marriage:
Under the ancient Hindu Law, no minimum age limits were prescribed for a Hindu marriage. This clause prescribes the minimum ages, in keeping with the minimum age laid down by the Child Marriage Restraint Act.
The violation of this clause does not make a marriage void or even voidable. However, both the husband and wife are liable to be punished with imprisonment or fine or both, if either of them is below the prescribed age.
(4) The parties to the marriage should not be within the degrees of prohibited relationship, unless a custom or usage governing each of them permits such a marriage:
Under this clause, a marriage between persons who are within the degrees of prohibited relationship with each other is prohibited. (What is meant by the expression “degrees of prohibited relationship” has already been discussed above.) Under the ancient Hindu Law also, such a marriage was not allowed.
This requirement of a valid Hindu marriage is mandatory, and its contravention will render a marriage void, unless such a marriage is sanctioned by custom or usage of both the parties. To be a valid custom or usage, such a custom or usage must satisfy the definition of this term laid down in Section 3 of the Act. Thus, a custom must not be unreasonable or opposed to public policy. A custom would not be recognised’ if it is abhorrent to decency or morality or if it is inconsistent with the practices of good men.
Thus, a custom prevailing amongst the Jats of Punjab allows a marriage with a brother’s widow. Likewise, in some parts of South India, a marriage of a man with his sister’s daughter is also recognised by custom.
A marriage which is performed in breach of this condition is void ab initio, and a competent Court can declare it to be so, on a petition presented by either party to such a marriage. Further, the persons contravening the provisions of this clause are also liable to be imprisoned or fined (or both) under Section 18 of the Act
(5) The parties to the marriage should not be sapindas of each other, unless a custom or usage governing each of them permits such a marriage:
What is sapinda relationship has already been discussed above in detail. A marriage between sapindas would be valid only if the custom or usage governing both the parties permits such a marriage. Needless to say, such a custom must fulfil the requirements of a valid custom, laid down by Section 3 of the Act. Thus, a custom must not be unreasonable or opposed to public policy. No custom would be recognised if it is abhorrent to decency or morality or if it is inconsistent with the practices of good men.
A marriage between sapindas is void ab initio and the persons contravening the provisions of this clause are liable to imprisonment or fine or both under S. 18 of the Act.
Shortly stated, the effect of violating any of the above five conditions is an under:
Violation of Condition No.1: The marriage is void and the parties are liable to punishment.
Violation of Condition No.2: The marriage is voidable at the option of the other party.
Violation of Condition No.3: The marriage is valid, but the parties are liable to punishment.
Violation of Condition No.4: The marriage is void and the parties are liable to punishment.
Violation of Condition No.5: The marriage is void and the parties are liable to punishment.
