ESSENTIAL CONDITIONS OF VALID MARRIAGE
According to section 2(3) of Hindu Marriage Act, parties must be Hindu. If one of them is a Hindu and the other a non Hindu or both are Non Hindus, the marriage will not be a subject matter of this Act but will relate to some other law i.e. Special Marriage Act etc. The essential conditions of valid Marriage are follow as:
Clause (i) – Condition of monogamy
Clause(i) condition implies monogamy and prohibits bigamy or polygamy. The expression “neither party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If the spouse is alive at the time of marriage that could bar the remarriage of a person. However one must note that the first marriage of a person should be a legally valid marriage. In spite of one’s valid marriage if the person remarries in violation of Section 5(i), the second marriage will be null and void and he will be subjected to penal consequences. The Scheduled Tribes are exempted from the application of the Act. But there must be a proved custom to this effect.
Bigamy – Section 5 (i)
According to Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and Section 17 makes it a penal offence for both Hindu males and females under Section 494 and 495 of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are performed. The second marriage cannot be taken to be proved by the mere admission of the parties; essential ceremonies and rites must be proved to have taken place. In the case of a bigamous marriage, the “second wife” has no status of legal wife in eyes of law.
Clause (ii) – Condition regarding mental health or capacity
Sub clause (a) requires that at the time of marriage neither party is incapable of giving a valid consent to marriage due to unsoundness of mind.
Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither party to marriage should be suffering from a mental disorder of such nature and to such a degree as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan Singh v. Jit Kaur, the court held the marriage void on the ground that wife was suffering from schizophrenia within short period after marriage and the disease was not disclosed to the husband before marriage.
Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even during a lucid period.
Post marriage mental illness: If a party to a marriage is not suffering from any mental defect described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this condition.
Clause (iii) – Condition of marriageable age
According to this clause, at the time of marriage the bride must have completed the age of 18 years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage Act. However, violation of this condition does not make the marriage void or voidable. It means that it is valid though it may attract penalties. But it can become a valid ground for repudiation of the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for punishment for such marriage.
According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978 has also raised the age of marriage of girl to eighteen.
Clause (iv) – Avoidance of degrees of prohibited relationship
The parties to marriage must not fall within the degree of prohibited relationship. This relationship is defined under Section 3(g) of the Act. According to Section 3(g) “degree of prohibited relationship” means when two persons are related to each other in any of the following manners:
- By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the Sapinda relationship which extends up to fifth degree in the line of father and third degree in the line of the mother. The distinction of this category is that it extends even beyond the Sapinda ascendants.
- By affinity: If one is the husband or wife of the lineal ascendants or descendants of the other. For example, father-in-law and daughter-in-law, mother-in-law and son-in-law, step mother and step son or step-father and step daughter are thus within the degrees of prohibited relationship.
According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is void. It is also punishable under section 18(b) of the Act.
- ‘A’ marries his adopted sister. This is not a valid marriage, as it falls within the degrees of Prohibited relationship.
- ‘A’ marries with the wife of Pre-deceased brother. It is not a valid marriage as it falls within the degree of Prohibited relationship.
- ‘A’ marries his stepmother’s sister. It is not a valid marriage, ‘A’ is related to his step-mother by half-blood relationship.
Clause (v) – Avoidance of sapinda relationship
According to the Dharmashastra the Sapinda relationship is very important in the matter of marriage. According to Mitakshara Law of Marriage ‘Pinda’ means body and therefore those who are related by body or blood or consanguinity are sapindas among themselves. The Hindu Marriage Act has adopted Mitakshara definition but has limited the extent of Sapinda relationship to 5 degrees in line of ascent through the father and 3 degrees in the line of ascent through the mother.
According to Section 3(f)(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapindas relationship, or if they have a common lineal ascendant to each of them.
Whereas Section 3(f)(i) states that “sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (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.
Rules for determining Sapinda relations:
- The relationship extends as far as the third generation in the line of ascent through the mother in case of both the parties.
- The relationship extends as far as the fifth generation in the line of ascent through the father in case of both the parties.
- Sapinda relationship may submit in case of both the parties through the father or in case of both through the mother; or it may subsist in case of one of them through the father and on case of the other through the mother.
- The line is traced upwards in case of both the parties counting each of them as the first generation; the generations in the line of ascent whether three or five are to be counted inclusive of the persons concerned and the common ancestor or ancestress.
- Sapinda relationship includes relationship by half or uterine blood as well as by full blood and by adoption. It also includes both, legitimate and illegitimate blood relationship.