Hindu marriage and the conditions of a valid marriage - Family Law I - Hindu Law

← All Family Law I - Hindu Law topics Past papers

On this page

1. Evolution: marriage and family before 1955
2. Sacrament or contract?
3. Conditions of a valid marriage: section 5
4. Ceremonies and registration: sections 7 and 8
5. Void marriages: section 11
6. Voidable marriages: section 12
7. Legitimacy of children: section 16
8. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Three lists to master. The conditions in section 5, the void marriages in section 11 and the voidable marriages in section 12. Most marks in a “valid Hindu marriage” answer come from matching each condition with its consequence: some breaches make the marriage void, some voidable, and one (age) leaves it valid but punishable.

1. Evolution: marriage and family before 1955

The smritis treated marriage as one of the samskaras, the sacraments every Hindu was expected to undergo. The texts listed eight forms of marriage, four approved (Brahma, Daiva, Arsha, Prajapatya) and four disapproved (Asura, Gandharva, Rakshasa, Paisacha). By the twentieth century only the Brahma (gift of the bride) and Asura (bride price) forms were in use. The old law allowed a man to take more than one wife, did not allow divorce except by custom, prohibited marriage between castes in the approved forms, and treated the wife as subject to her husband. Pre-Code reforms include the Hindu Widows' Remarriage Act, 1856, the Child Marriage Restraint Act, 1929, the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, and State laws against bigamy such as the Bombay Prevention of Hindu Bigamous Marriages Act, 1946.

2. Sacrament or contract?

As a sacrament, a Hindu marriage was a permanent and indissoluble union, a religious tie that continued after death, and it did not depend on the consent of the bride (often a child). The Hindu Marriage Act, 1955 changed most of these features:

Divorce is allowed (section 13), including by mutual consent since 1976 (section 13B), so the union is no longer indissoluble.
Monogamy is compulsory (section 5(i)).
Consent matters: a marriage where consent was obtained by force or fraud is voidable (section 12(1)(c)), and a party incapable of valid consent cannot marry (section 5(ii)).
Widow remarriage and inter-caste marriage are valid.

But it did not make marriage a contract. It still requires customary religious ceremonies (section 7), the age of the parties does not affect validity, and no offer and acceptance in the contractual sense is needed. The usual answer is that Hindu marriage today is partly a sacrament and partly a contract: sacramental in form, contractual in some of its incidents.

3. Conditions of a valid marriage: section 5

A marriage may be solemnised between any two Hindus if:

(i) Monogamy. Neither party has a spouse living at the time of the marriage.
(ii) Mental capacity. At the time of the marriage, neither party (a) is incapable of giving valid consent in consequence of unsoundness of mind; or (b) though capable of 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. (The words “or epilepsy” were removed in 1999.)
(iii) Age. The bridegroom has completed 21 years and the bride 18 years.
(iv) Prohibited degrees. The parties are not within the degrees of prohibited relationship (section 3(g)), unless the custom or usage governing each of them permits it.
(v) Sapindas. The parties are not sapindas of each other (section 3(f): up to the third generation in the line of ascent through the mother and the fifth through the father), unless custom permits.

Clause (vi), on the consent of the guardian of a bride under 18, was omitted in 1978 when the ages were raised.

4. Ceremonies and registration: sections 7 and 8

Section 7 says a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party, and that where those include the saptapadi (the taking of seven steps by the bridegroom and bride jointly before the sacred fire) the marriage becomes complete and binding when the seventh step is taken. A marriage without the essential ceremonies is no marriage. In Bhaurao Shankar Lokhande v. State of Maharashtra, 1965 INSC 16, AIR 1965 SC 1564, a husband charged with bigamy was acquitted because the prosecution did not prove that the second marriage was performed with the essential ceremonies (invocation before the fire and saptapadi). The word “solemnised” means celebrated with proper ceremonies.

Section 8 allows State Governments to make rules for registration of Hindu marriages and may make registration compulsory. Section 8(5) says failure to register does not affect the validity of the marriage. In Seema v. Ashwani Kumar, 2006 INSC 83, (2006) 2 SCC 578, the Court directed all States to make registration of marriages of all citizens compulsory, as evidence against child marriage, bigamy and denial of marriage. Karnataka has the Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976.

5. Void marriages: section 11

A marriage solemnised after the Act is null and void, and may on a petition by either party be so declared by a decree of nullity, if it contravenes clause (i), (iv) or (v) of section 5: bigamy, prohibited degrees, or sapinda relationship. A void marriage is no marriage at all; no decree is needed to make it void, though one is usually sought for certainty. Bigamy is also an offence under section 17 of the Act read with section 82 of the Bharatiya Nyaya Sanhita, 2023 (old section 494 IPC). A Hindu husband cannot evade this by converting to Islam and marrying again: Sarla Mudgal v. Union of India (1995), affirmed in Lily Thomas v. Union of India, 2000 INSC 293, (2000) 6 SCC 224.

6. Voidable marriages: section 12

A voidable marriage is valid until annulled by a decree, on the petition of the aggrieved party, on any of these grounds:

(a) the marriage has not been consummated owing to the impotence of the respondent;
(b) it contravenes the condition in section 5(ii) (mental capacity);
(c) the consent of the petitioner, or of the guardian where it was required, was obtained by force or fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent;
(d) the respondent was at the time of marriage pregnant by some person other than the petitioner.

Section 12(2) limits grounds (c) and (d): for (c), the petition must be filed within one year of discovery of the fraud or cessation of the force, and the petitioner must not have lived with the respondent as husband or wife with full consent after that; for (d), the petitioner must have been ignorant of the facts at the time of marriage, must file within one year of the marriage, and must not have had marital intercourse with consent after discovering the fact.

Trap. Breach of the age condition in section 5(iii) is not a ground of nullity under the Hindu Marriage Act. The marriage is valid under the Act, though the parties and others are punishable under section 18, and the child may repudiate it under section 13(2)(iv). Separately, the Prohibition of Child Marriage Act, 2006 makes a child marriage voidable at the option of the party who was a child (section 3).

7. Legitimacy of children: section 16

Section 16(1), as substituted in 1976, declares that a child of a void marriage is legitimate, whether or not a decree of nullity is granted. Section 16(2) says a child of a voidable marriage annulled by decree is deemed legitimate as if the marriage had been dissolved instead of annulled. Section 16(3) limits the child's rights in property to the property of the parents.

The meaning of section 16(3) was settled by a three-judge Bench in Revanasiddappa v. Mallikarjun, 2023 INSC 783. The Court held that a child of a void or voidable marriage is entitled to the parent's property, whether self-acquired or ancestral, and in a Mitakshara coparcenary is entitled to the share that would have fallen to the parent on a notional partition immediately before the parent's death, under section 6(3) of the Hindu Succession Act. But such a child is not a coparcener by birth and cannot claim a share in the property of other relatives or demand partition during the parent's lifetime.

8. Problem

H, a Hindu, married W1 in 2010. In 2018, without divorcing her, he married W2 with full ceremonies. A son S was born to W2. Discuss the status of the second marriage and of S.

Issue. Validity of a bigamous marriage and the rights of a child born of it.

Law. Section 5(i) and section 11 HMA; section 17 HMA with section 82 BNS; section 16 HMA; Revanasiddappa.

Application. W1 was living at the date of the second marriage, so it contravenes section 5(i) and is void under section 11. Either party may seek a declaration. H is liable to prosecution for bigamy, as the second marriage was solemnised with the essential ceremonies (Bhaurao Lokhande). W2 has no rights as a wife. S is legitimate under section 16(1) and will inherit from H as a Class I heir; in any coparcenary property he takes H's share as computed on a notional partition immediately before H's death, but he is not himself a coparcener.

Conclusion. The marriage is void; S is legitimate and has rights in H's property only.

How this is examined

“What are the conditions of a valid Hindu marriage?” is set almost every year as a 10-mark essay. Write the evolution and the sacrament-contract question briefly, then section 5 clause by clause with the consequence of breach, then sections 7, 8, 11, 12 and 16. Short notes: “Void and voidable marriages”, “Saptapadi”, “Sapinda relationship”, “Legitimacy of children of void marriages”. The bigamy problem is a stock 6-mark question.