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  • Writer's picturebrillopedia


Updated: May 8, 2021

Author: K. Geethika, II Year of B.A.,LL.B(Hons) from Presidency University, Bangalore.


Marriage is an authorized union in terms of both legal and social aspects between a man and woman for the satisfaction of personal needs of affection, status, and companionship. Marriages in India are held either by following the personal law of the respective religion of the party or by following the provisions of the Special Marriage Act. Marriage, as per the Common Law, constitutes a contract between a man and a woman in which the parties undertake to live together and support the well-being of each other. Marriage is a concept which is nationally and internationally recognized.


In paragraph No.30 of the judgement of Dawood v. Minister of Home Affairs, Justice O’Regan J. recognized the importance of marriage and the state obligation to protect the family. He noted as follows: “Marriage and family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance at least in part because human beings are social beings whose humanity is expressed through their relationships with others. "Entering into marriage, therefore, is to enter a relationship that has public significance as well”.


Marriage is often described as one of the basic rights of a man or woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife. Three elements of common-law marriage are:

Agreement to be married;

Living together as a husband and wife; and Holding out to the public that they are married.

Sharing a common household and duty to live together form part of the ‘Consortium Omnis Vitae’, which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly or severally.

Marriage as an institution has great legal significance and various obligations and duties flow out of the marital relationship, as per law, in the matter of inheritance of property, succession, etc. Marriage involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of that relationship.

The concept of marriage under HMA, 1955 is still a sacrament as envisaged under Hindu Law. It cannot be contracted by mere consent of parties to it. A marriage to be valid under the Act must satisfy essential conditions prescribed in the Section 5 of the Act.


Section 5 of the Hindu Marriage Act talks about the “Conditions for a valid marriage”. A marriage may be solemnised between any two Hindus if the following conditions are fulfilled, namely:

Neither party has a spouse living at the time of marriage [Sec.5(i)]:

Hindu marriage rendered monogamous and bigamous marriage is void under Hindu law as per Section 11 of the Act. It means that for a lawful marriage, the necessary condition is that neither party should have a spouse living at the time of the marriage. Therefore, a marriage in contravention of this condition is null and void.

In the case of Yamunabai Anantrao Adhav v. Anantrao Shivaram Adhav, it was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recognized in law and customs. A reference was made to Sec.12 of the Hindu Marriage Act, 1955, and it was said that in any event the marriage would be voidable. There is no merit in this contention.

Neither party should be of unsound mind so as to give valid consent or be unfit for marriage and procreation of children or be insane [Sec.5(ii)]:

A reasonable degree of sound mind state can be said to be a precondition of marriage for both parties, that is, a man and woman. Expression ‘incurably of unsound mind’, however, cannot be so widely interpreted as to cover feeble minded or possessors of weak or dull intellects who are capable of understanding nature and consequences of their acts or controlling themselves and their affairs and reactions in normal ways.

An objection to a marriage on the ground of mental incapacity must depend on a question of the degree of the defect in order to rebut the validity of a marriage which has in fact taken place. The onus of proving degree of mental incapacity lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or menta disorder. The court will examine the matter with all possible care and anxiety.

Also, it should be noted that merely giving a finding that the respondent was suffering from some mental disorder and she didn’t have cohabitation with her husband during the period they stayed together is not sufficient to comply with the condition prescribed under Sec.5(ii)(b) of the Act.

The prescribed age for marriage for the bridegroom and bride must be observed [Sec.5(iii)]:

Section.5(iii) prescribes the minimum age limit for a man and woman to get married. For a bridegroom to get married, he should be 21 years old, and for a bride she should attain 18 years of her age to get married. Breach of this clause cannot render marriage a nullity, but under-age parties can be prosecuted. Under Sec.11 of the Act, any marriage solemnized after the commencement of the Act shall be null and void and could be declared to be null and void if it contravenes clauses (i), (iv) and (v) of Sec.5 of the Act. Section 11 doesn’t refer to clause (iii) which describes the age limit for marriage. Under Sec. 12 of the Act, certain marriages are voidable, but the clause pertaining to the minimum age of the bridegroom and the bride is not attracted. Hence, marriage solemnized between parties who were under age is not nullity. They could be prosecuted.

Marriage not to be within prohibited degrees of relationship or between sapindas [Sec.5(iv)(v)]:

Sub-clauses (iv) and (v) require that parties should not be within degrees of prohibited relationship such as lineal ascendants/descendants of the other or be sapindas of each other unless in either case there is a custom or usage modifying that rule. Violation of these clauses is one of the grounds under sec.11 which makes a marriage void-ab-initio. A void marriage is “No marriage”. Such a marriage is considered to be non-existent from its beginning, and no legal consequences flow from such marriages. It confers no status of husband and wife at parties and does not give rise to any rights/obligations against each other as well as against third person. Also, a wife from such a void marriage is not entitled to any claims of maintenance under the act.


Marriage if to be solemnized under Section 5, both parties to such a marriage must be Hindus. Marriage between a Hindu female and a Christian male solemnized in accordance with Hindu customs under the act is void ab initio and nullity. Section 5 of the Hindu Marriage Act, 1955 makes it clear that a marriage may be solemnized between any two Hindus if the conditions contained in the said section were fulfilled.

The usage of the expression ‘may’ in the opening line of the section doesn’t make the provision of section 5 optional. On the other hand, it in positive terms indicates that a marriage can be solemnized between two Hindus if the conditions indicated were fulfilled. The expression ‘may’ is not a directory but mandatory and non-fulfilment thereof wouldn’t permit a marriage under the Act between two Hindus.


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