Conditions of Hindu Marriage

In one minute

Section 5 of the Hindu Marriage Act, 1955 lists five conditions for a valid marriage between two Hindus. They are: no living spouse, mental capacity, minimum age, no prohibited relationship, and no sapinda relationship.

The breaches have different results. Breach of the first, fourth or fifth makes the marriage void. Breach of the second makes it voidable. Breach of the age condition leaves the marriage valid but punishable. Exams test this table.

Exam focus

Frequency: Frequently asked
Usually asked as: Both (long answer and short answer)

Legal provision

Section 5: a marriage may be solemnized between any two Hindus if five conditions are met. Clause (vi) is no longer in the Act.
Section 3(f) and (g): they define "sapinda relationship" and "degrees of prohibited relationship".
Section 11: a marriage that breaks clause (i), (iv) or (v) of section 5 is void.
Section 12(1)(b): a marriage that breaks clause (ii) is voidable.
Section 17: a marriage where either party had a living spouse is void, and the bigamy provisions of the Indian Penal Code apply.
Section 18: punishment for breach of clauses (iii), (iv) and (v).

Meaning and definition

The conditions of a Hindu marriage are the legal requirements that the parties must meet at the time of marriage. A marriage that meets them, and is solemnized with the ceremonies of section 7, is valid. The conditions do not all carry the same penalty.

Is the marriage valid under section 5?How to read this: go down the boxes in order. A "Yes" or "No" answer in the box beside a question stops the test with that result.

1. Did either party have a living spouse? Section 5(i)
Yes: void, and bigamy is punishable (sections 11 and 17).
2. Did either party lack mental capacity or fitness? Section 5(ii)
Yes: voidable (section 12(1)(b)).
3. Are the parties in a prohibited relationship or sapindas, with no custom permitting it? Section 5(iv) and (v)
Yes: void (section 11) and punishable (section 18).
4. Is the bridegroom under 21 or the bride under 18? Section 5(iii)
Yes: still valid, but punishable (section 18).
If none applies, and the ceremonies of section 7 were performed, the marriage is valid.

Detailed explanation

Step 1: no living spouse (section 5(i))

Neither party may have a spouse living at the time of the marriage. This one rule ended polygamy for Hindus. A marriage in breach is void from the start under section 11, and section 17 makes the bigamy provisions apply. A void marriage gives the second spouse no status as wife. In Yamunabai the Supreme Court denied maintenance under section 125 of the Code of Criminal Procedure to a woman who went through rites with a man whose first wife was alive.

Example. Mahesh in Vijayawada has a living wife and marries Radha without divorcing the first wife. The second marriage is void. Mahesh is also liable for bigamy.

Step 2: mental capacity (section 5(ii))

At the time of marriage neither party may be incapable of valid consent because of unsoundness of mind. Neither may suffer a mental disorder so serious that he or she is unfit for marriage and the procreation of children. Neither may be subject to recurrent attacks of insanity. A breach makes the marriage voidable under section 12(1)(b). It stays valid until a court annuls it at the option of the affected party.

Step 3: age (section 5(iii))

The bridegroom must have completed 21 years and the bride 18 years. A marriage below these ages is neither void nor voidable. The Act only punishes the person who procures it. Under section 18(a) the punishment is rigorous imprisonment up to two years or a fine up to Rs 1 lakh, or both.

Example. A groom aged 20 marries a bride aged 18 with full rites in Nizamabad. The marriage is valid. The groom and those who procured it face punishment under section 18.

Step 4: prohibited relationship (section 5(iv))

The parties must not be within the degrees of prohibited relationship, unless the custom or usage governing each of them permits the marriage. Section 3(g) lists these degrees, for example lineal ascendants and descendants, brother and sister, uncle and niece, and aunt and nephew. The Explanation to section 3 includes that relationship covers half or uterine blood, illegitimate blood and relationship by adoption. A breach makes the marriage void. Section 18(b) also punishes the person who procures it with simple imprisonment up to one month or a fine up to Rs 1,000, or both.

Step 5: sapinda relationship (section 5(v))

The parties must not be sapindas of each other, unless the custom of both permits. Section 3(f) fixes the limit: up to the third generation through the mother and the fifth through the father, counting the person as the first generation. Two persons are sapindas if one is a lineal ascendant of the other within the limit, or if they share a common ancestor within it. A breach makes the marriage void.

Step 6: the effect of custom

Only clauses (iv) and (v) allow a custom to permit what would otherwise be barred. The custom must meet the test of section 3(a): continuous, uniform, certain, reasonable and not against public policy.

Example. In a community of Tamil Nadu, custom has long allowed a man to marry his elder sister's daughter. The relationship is a prohibited degree. A court accepts the marriage if the custom is proved as section 3(a) requires.

Exceptions and special rules

Guardian's consent: section 6, which required the guardian's consent to the marriage of a girl, has been repealed.
Custom: available only for prohibited and sapinda relationships.
Who may seek nullity: either party may seek a decree for a void marriage under section 11. For a voidable marriage only the aggrieved party may petition under section 12.
Special Marriage Act, 1954: a similar set of conditions applies for civil marriages.
Prohibition of Child Marriage Act, 2006: this separate Act makes a child marriage voidable at the option of the party who was a child (section 3).

Don't confuse: void, voidable and punishable marriages

Condition	What is required	If broken
Section 5(i)	No living spouse	Void (section 11); bigamy (section 17)
Section 5(ii)	Mental capacity and fitness	Voidable (section 12(1)(b))
Section 5(iii)	Groom 21, bride 18	Valid; punishable (section 18(a))
Section 5(iv)	No prohibited relationship	Void (section 11), unless custom permits
Section 5(v)	Not sapindas	Void (section 11), unless custom permits

Inside the concept. A marriage between two first cousins who are children of two brothers, with no custom, breaks clause (iv). It is void.

Just outside it. A marriage where the bride is 17 breaks clause (iii). It is not void. It is valid, and only the punishment follows.

Common mistakes

Saying that an under-age marriage is void or voidable under the Hindu Marriage Act. It is valid (the Prohibition of Child Marriage Act, 2006, section 3 is separate).
Saying that a breach of clause (ii) makes a marriage void. It is voidable.
Forgetting that custom saves only clauses (iv) and (v).
Listing the old clause (vi) or the guardian's consent as a present condition.
Mixing the ages: 21 for the groom, 18 for the bride.

Apply it

Problem

Kiran, aged 23, marries Sneha, aged 17, in Tirupati with all rites. Kiran's first wife Geeta is alive and undivorced. Examine the validity of the marriage with Sneha.

Issue

Which conditions of section 5 are broken, and with what result?

Rule

A marriage in breach of clause (i) is void under section 11. A breach of clause (iii) does not affect validity and is punishable under section 18.

Application

Kiran has a living spouse, so clause (i) is broken. Sneha is under 18, so clause (iii) is broken as well.

Conclusion

The marriage is void because of the living spouse. Kiran is liable for bigamy, and for the age breach under section 18.

Leading case laws

Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav
Facts. In June 1974 a man went through Hindu rites with a second woman while his first wife was alive. A week later she left and claimed maintenance as his wife under section 125 of the Code of Criminal Procedure.

Principle. The Supreme Court held that the marriage was void under sections 5(i) and 11. She could not claim the status of a wife for maintenance under section 125.

Why it matters. It is the leading case on the effect of a second marriage in breach of the monogamy rule.

How to write this answer in the exam

5-mark answer

Section 5: five conditions in a list.
Results of breach: void, voidable, punishable.
Custom for clauses (iv) and (v).
Yamunabai.

10-mark answer

Meaning and the five conditions, one by one.
Monogamy and section 17.
Mental capacity and section 12(1)(b).
Age and section 18.
Prohibited relationship and sapinda: sections 3(f) and 3(g), custom.
Comparison table; Yamunabai.

Key points to remember

Five conditions: no living spouse, mental capacity, age (21 and 18), no prohibited relationship, no sapinda relationship.
Breach of clauses (i), (iv), (v): void (section 11).
Breach of clause (ii): voidable (section 12(1)(b)).
Breach of clause (iii): valid but punishable (section 18(a)).
Custom can save only clauses (iv) and (v).

Quick self-test

1. What is the result of breaking section 5(i)?

The marriage is void.

2. Is a marriage below the minimum age void?

No. Under the Hindu Marriage Act it is valid, and punishable under section 18 (see the Prohibition of Child Marriage Act, 2006, section 3).

3. Which clauses can a custom save?

Clauses (iv) and (v).