CONDITIONS FOR A VALID HINDU MARRIAGE UNDER THE ACT --
The Hindu Marriage Act, 1955 originally provided six conditions for a valid marriage but the Child Marriage Restraint Act which was passed in 1978 omitted the sixth condition relating to guardianship in marriage and now there are only five conditions as pre-requisites for a valid Hindu marriage.
These conditions are essential for the validity of marriage. In case of non-fulfilment of these conditions the marriage would not be deemed to be valid.
The conditions given in the section are binding and definite, in absence of which the validity of marriage becomes doubtful (Smt. Rajesh Bai v. Shanta Bui, A.I.R. 1982 Bom 231).
Section 5 of the Act, which deals with these conditions dispenses with the requirement of the identity of the caste.
SECTION 5
A marriage may be solemnised between any two Hindus if the following conditions are fulfilled, namely –
i. neither party has a living spouse at the time of marriage; (Monogamy)
ii. neither party at the time of marriage - (Soundness of mind)
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 or epilepsy.
iii. the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage. (Age of marriage-)
iv. the parties are not within the degree of prohibited relationship unless customs or usage governing each of them permits of a marriage between the two; (Beyond prohibited degrees-)
v. the parties are not Sapinda of each other, unless the custom or usage governing each of them permits of a marriage between the two. (Beyond Sapinda relationship)
(1) AS REGARDS THE FIRST CONDITION –
Section 5(1) provides the rule of monogamy and prohibits polygamy and polyandry. It now specifies unequivocally that "Hindu can have only one marriage subsisting at a time".
Prior to the Act of 1955 a Hindu male could marry more than one wife irrespective of the fact that his previous wife was alive at the time of his subsequent marriage.
The breach of the first condition of Section 5 results in two legal consequences, namely ----
1. Such a marriage would become null and void under Section 11; and
2. The erring party to such a marriage would be liable to be prosecuted under Section 17 of the Act and punishment under Section 494 and 495 of the lndian Penal Code.
SMT. YAMUNA BAI ANANT RAO ADHAV V. ANANT RAO SHIVA RAM ADHAVA, {AIR 1988 SC 644}
The Supreme Court laid down that in the event of breach of first condition specified in Section 5(1) the marriage is rendered null and void under Section 11(1) of the Act and since it is void ab initio, the wife cannot claim maintenance under Section 125 of the Code of Criminal Procedure.
BHOGADI KANMBABU AND OTHERS V. VAGGINA PYDAMRM AND OTHERS.
The Supreme Court observed that Clause (i) of Section 5 is one such condition which clearly provides that no marriage can be performed, if there is a living spouse. If, however, marriage has been so solemnized by the husband, such marriage is void ab initio and the second wife cannot inherit the property.
The offence of bigamy would be constituted only when at the time of the performance of subsequent marriage, the spouse of such party to marriage was alive and that marriage was not void or invalid.
PRIYALATA V. SURESH, AIR 1971 SC 1153
Even where the subsisting marriage was voidable, the offence of bigamy would be made out upon the performance of subsequent marriage. But in every case the offence would be punishable if the essential requirements of law and religion had been duly fulfilled and performed.
VARADRAJAN V. STATE, AIR 1965 SC 50
The courts have expressed the view that a party to the bigamous marriage could be punished only upon the proof of the prior marriage having been solemnised according to religious ceremonies and customs
The subsequent marriage would require proof of essential religious ceremonies or rites, mere admission would not render it a complete marriage.
SHANTI DEO VERMA V. KANCHAN PRASAD,{AIR 1991 SC 816}
The same view has been reaffirmed by the Supreme Court in above case. The court held that by the fact that parties were living like husband and wife and oral evidence to that effect, it cannot be proved that they were validly married and religious ceremonies were duly performed.
Without the performance of religious ceremonies and rites a Hindu marriage cannot get recognition in law.
But where these ceremonies or rites are not properly performed or they are not observed in accordance with customary rites of either party to marriage, the label of unlawfulness shall not be attached to such a marriage.
Dr. D.N. Mukerji v. State, (1969 All 489)
In the case of Dr. Mukerji was prosecuted for bigamy. Whilst his first wife was alive he developed courtship with another woman and performed a false marriage with her.
His second marriage was alleged to have accomplished with the help of three religious ceremonies performed at three different times in different ways.
The first one consisted of marriage in full moon night making the moon as witness to it called Chandra Anusthan, the second one being in the temple of goddess Kali, where garlands were exchanged in front of the diety and tilak was put on the forehead of the complainant, Smt. Harbans Kaur by the accused, Dr. D.N. MukeIji and both of them walked seven steps around the deity to satisfy the requirement of a valid marriage.
On the third occasion a similar performance was gone through again by them before Guru Granth Sahib in the order to give effect to the marriage.
None of the above three ceremonies or rites was recognised by the community of either party to marriage or given any religious sanction.
Consequently, it could not be said that they had performed their marriage in accordance with law and hence the alleged second marriage with Harbans Kaur did not constitute the offence of bigamy so as to make Dr. Mukerji liable for punishment under Section 495 of the Indian Penal Code.
In this way by non-performance of religious rites and ceremonies under the Act or performing them not in conformity therewith, a Hindu male could manage to keep a woman even during the lifetime of his first wife, for which no legal action can be taken against him under the Act.
KANWAL RAM V. STATE, AIR 1966 SC 641
PRIYA V. SURESH, AIR 1971 SC 1155
In order to prosecute a person for bigamy it is necessary to prove that
1. he or she has already a living spouse and
2. the prior marriage has been duly celebrated with the performance of ceremonies.
If the previous marriage was not solemnised properly,
1. the law would not recognise it as a marriage
2. and the parties would not be known as husband and wife of each other.
Under such conditions parties to such marriage could settle a fresh marriage without rendering themselves liable to any punishment
According to Section 5(1) subsequent marriage would be illegal and ineffective where, on the day of its performance, either party to it had his or her spouse living even if such a marriage had been performed outside India.
Mere intention or motive of the parties to such bigamous marriage, howsoever sincere it may be, would not create relationship of husband and wife between them {AIR 1967 Pat 20}.
SANTOSH KUMARI V. SURJEET SINGH, {AIR 1990 HP 77}
In the above case High Court has ruled that even in a case where in her own suit, the wife has given a declaration that her husband could remarry during her lifetime, the marriage of her husband with another woman would be illegal despite the consent of his first wife and giving such declaratory relief by the court concerned would be erroneous and illegal.
WHETHER ANY PARTY TO THE MARRIAGE CAN RESTRAIN THE OTHER PARTY FROM REMARRIAGE BY APPROPRIATE ORDER OF INJUNCTION?
UMA SHANKER V. RAJDEVI, {AIR 1967 Pat 20}
The Court in the case of laid down that despite want of appropriate provision to the effect in the Hindu Marriage Act, 1955, any party to the marriage could be restrained remarrying under the appropriate order of injunction.
SHANKERAPPA V. VASAPPA, {AIR 1964 MY 247}
The High Court of Mysore in has clearly laid down that a wife can be granted injunction to restrain her husband from remarrying.
RAM PRASAD V. STATE OF UP., AIR 1961 ALL 334
The parties to the marriage retain their right to seek preventive remedy in case there be apprehension about remarriage of his or her spouse.
The prohibition of bigamous marriages under Section 5(1) of the Act does not violate Article 25 of the Constitution of India.
In case of violation of the provisions of Section 5(1) even a third person in addition to the parties to such a marriage can challenge the validity thereof and can get a declaration of nullity in respect of such a marriage if he becomes aggrieved thereby in any way.
SURJEET SINGH V. MOHINDER PAL SINGH
The Punjab High Court recently has also ruled in above case to the same effect which was endorsed by Allahabad High Court in Ram Pyari v. Dharamdas.
SARLA MUDGAL V. UNION OF INDIA
In above case the husband converted himself into a Muslim by adopting Islam, then married another wife.
Here the question was whether by conversion the first marriage is annulled or it becomes void and whether the husband commits an offence of bigamy.
The court said that the first marriage subsists and the husband commits an offence of bigamy.
Against this an appeal was filed by the husband and this appeal was disposed of along with the case of Lily Thomas by the Supreme Court.
LILY THOMAS V. UNION OF INDIA
In above case, the same questions arose before the Court for consideration.
The Supreme Court observed that the institution of marriage under every personal law is a sacred institution. Under the Hindu Law, marriage is a sacrament. Both these have to be preserved; therefore religion is not a commodity to be exploited, it is a matter of faith.
When a non-Muslim married according to religious rites stipulating monogamy, renounces his religion, converts to Islam and solemnizes a second marriage, according to Islamic rites, without divorcing his first wife, the second marriage is void.
Here a person feigns to have adopted another religion, just for some worldly gain or benefit, and this is religious bigotry.
The conversion does not automatically dissolve the first marriage.
Since a bigamous marriage is an offence under section 17 of the Hindu Marriage Act, any marriage solemnized by the husband during' the subsistence of the first Hindu marriage is void under Section 11 and an offence under Section 17 read with Section 494 of the Indian Penal Code.
The Court affirmed the decision in Sarla Mudgal case and dismissed the husband's appeal.
