Marriage under the Hindu Marriage Act,

1955 and Prohibition of Child Marriage Act,

2006
Hindu Marriage Act, 1955
Section 1- extent of the Act
• As per Section 1, the Act extends to the whole of India and applies also to
Hindus domiciled in the territories to which this Act extends who are
outside the said territories.
Sondur Gopal v. Sondur Rajini,
(2013) 7 SCC 426
• Marriage between the appellant husband and the respondent wife took place on 25-6-1989
according to the Hindu rites at Bangalore. It was also registered under the provision of the Hindu
Marriage Act. Parties have two children. After marriage, the couple shifted to Sweden and they
applied for Swedish citizenship which was granted to them.
• The couple moved to Mumbai as, according to the wife, the employer of the husband was setting up
his business in India. The couple along with child Natasha lived in India between June 1997 and mid-
1999. In mid-1999, the husband's employer offered him a job in Sydney, Australia which he
accepted and accordingly moved to Sydney, Australia. The couple and the child Natasha went to
Sydney on sponsorship visa which allowed them to stay in Australia for a period of 4 years. While
they were in Australia, in the year 2000, the husband disposed of the house which they purchased
in Stockholm, Sweden.
• They shifted between Australia and Sweden for brief time when the husband lost his job but later,
went to Australia. In 2003, the wife and children came back to India on a tourist visa and the wife
told the husband that she she did not want to return to Sydney. Ultimately the wife filed a petition
before the Family Court, Bandra inter alia praying for a decree of judicial separation under Section
10 of the Hindu Marriage Act and for custody of the minor children.
Sondur Gopal v. Sondur Rajini,
(2013) 7 SCC 426
• The husband has also averred that the domicile of the wife shall be that of the husband
and since they have abandoned their domicile of origin and acquired a domicile of choice
outside the territories of India, the provisions of the Hindu Marriage Act shall not apply to
them. Consequently, the petition by the wife for judicial separation under Section 10 of the
Hindu Marriage Act and custody of the children is not maintainable.
• The case set up by the wife is that their domicile of origin is India and that was never given
up or abandoned though they acquired the citizenship of Sweden and then moved to
Australia. According to the wife, even if it is assumed that the husband had acquired
domicile in Sweden, she never changed her domicile and continued to be domiciled in
India. The wife has set up another alternative plea. According to her, even if it is assumed
that she also had acquired the domicile of Sweden, that was abandoned by both of them
when they shifted to Australia and, therefore, their domicile of origin, that is, India got
revived. In short, the case of the wife is that both she and her husband are domiciled in
India and, therefore, the Family Court in Mumbai has jurisdiction to entertain the petition
filed by her seeking a decree for judicial separation and custody of the children.
Sondur Gopal v. Sondur Rajini,
(2013) 7 SCC 426
• Supreme Court:
• From a plain reading of Section 1(2) of the Act, it is evident that it has extra-territorial
operation.
• As per Article 245 of the Constitution, no law made by Parliament shall be deemed to be invalid
on the ground that it would have extra-territorial operation. But this does not mean that law
having extra-territorial operation can be enacted which has no nexus at all with India.
• Bearing in mind the principle aforesaid, when we consider Section 1(2) of the Act, it is evident
that the Act extends to the Hindus of whole of India except the State of Jammu and Kashmir
and also applies to Hindus domiciled in India who are outside the said territory. In short, the
Act, in our opinion, will apply to Hindus domiciled in India even if they reside outside India.
• If the requirement of domicile in India is omitted altogether, the Act shall have no nexus with
India which shall render the Act vulnerable on the ground that extra-territorial operation has no
nexus with India. In our opinion, this extra-territorial operation of law is saved not because of
nexus with Hindus but Hindus domiciled in India.
Sondur Gopal v. Sondur Rajini,
(2013) 7 SCC 426
• Supreme Court:
• It is the specific case of the appellant that he is a Swedish citizen domiciled in Australia and it is
the Australian courts which shall have jurisdiction in the matter. In order to succeed, the
appellant has to establish that he is a domicile of Australia and, in our opinion, he cannot be
allowed to make out a third case that in case it is not proved that he is a domicile of Australia,
his earlier domicile of choice, that is, Sweden is revived. It is evident that the appellant does not
claim to be the domicile of Sweden but claims to be the domicile of Australia and, therefore, the
only question which requires our consideration is as to whether Australia is the husband's
domicile of choice.
• In the present case, we are concerned with the domicile of origin and domicile of choice.
Domicile of origin is not necessarily the place of birth. The birth of a child at a place during
temporary absence of the parents from their domicile will not make the place of birth as the
domicile of the child. In domicile of choice one is abandoned and another domicile is acquired
but for that, the acquisition of another domicile is not sufficient. Domicile of origin prevails until
not only another domicile is acquired but it must manifest intention of abandoning the domicile
of origin.
Sondur Gopal v. Sondur Rajini,
(2013) 7 SCC 426
• Supreme Court:
• Domicile of choice is acquired by residing in the country of choice with intention of continuing to
reside there indefinitely. Unless proved, there is presumption against the change of domicile.
Therefore, the person who alleges it has to prove that. Intention is always lodged in the mind, which
can be inferred from any act, event or circumstance in the life of such person.
• In the aforesaid background, when we consider the husband's claim of being a domicile of Australia,
we find no material to endorse this plea. The residential tenancy agreement is only for 18 months
which cannot be termed for a long period. Admittedly, the husband or for that matter, the wife and
the children have not acquired the Australian citizenship. In the absence thereof, it is difficult to
accept that they intended to reside permanently in Australia. The claim that the husband desired to
permanently reside in Australia, in the face of the material available, can only be termed as a dream.
It does not establish his intention to reside there permanently. The husband has admitted that his
visa was nothing but a “long-term permit” and “not a domicile document”. Not only this, there is no
whisper at all as to how and in what manner the husband had abandoned the domicile of origin. In
the face of it, we find it difficult to accept the case of the husband that he is domiciled in Australia
and he shall continue to be the domicile of origin i.e. India
• For all these reasons, we are of the opinion that both the husband and the wife are domiciles of India
and, hence, shall be covered by the provisions of the Hindu Marriage Act, 1955. As on fact, we have
found that both the husband and the wife are domicile of India, and the Act will apply to them.
Section 2- Applicability of the Act
• Act applies to:
• Hindus (including different forms and developments of Hinduism)
• Any person who is a Buddhist, Jain or Sikh by religion
• Converts or reconverts to Hinduism.
• Children, legitimate or illegitimate, of Hindus, Buddhists, Sikhs and Jains
• Any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh
by religion and who is brought up as a Hindu.
• A person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any
such person would not have been governed by the Hindu law or by any custom or usage
• See exemption for members of Schedule Tribe as per Art 366(25) of Constitution of India.
Section 5
• “A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely
• neither party has a spouse living at the time of the marriage
• at the time of the marriage, neither party—
• is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
• 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
• has been subject to recurrent attacks of insanity
• the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at
the time of the marriage;
• the parties are not within the degrees of prohibited relationship unless the custom or usage governing
each of them permits of a marriage between the two;
• the parties are not sapindas of each other, unless the custom or usage governing each of them permits
of a marriage between the two;”
Section 5- neither party has spouse living at
the time of marriage
(i) Neither party has a spouse living at the time of the marriage
• The provision is espousing monogamy which is the union of one man with one woman to exclusion of all
others.
• Before a valid marriage can be solemnised, both parties must be either single, or divorced or a widow/widower
and only then can they enter into a valid marriage.
• Till the time a valid marriage is subsisting and spouse is living, a second marriage cannot be solemnised.
• If marriage is contravention of this condition then marriage is void. Even with the consent of the first wife, a
second marriage is void.
• Section 17, Hindu Marriage Act contains punishment for bigamy in accordance with the Indian Penal Code.
• Section 494, Indian Penal Code- Marrying again during lifetime of husband or wife.—Whoever, having a
husband or wife living, marries in any case in which such marriage is void by reason of its taking place during
the life of such husband or wife, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.
• Barriers faced by women in accessing the legal machinery are seen as a major factor for inhibiting enforcement
of anti-polygamy laws. Quite often an economically dependent woman who may also be uneducated has
neither the knowledge nor the means to go to the court. A critical question has been whether a social purpose
is being served by putting men behind bars if their wives and children end up suffering.
Ram Prasad Seth v. State of Uttar
Pradesh and others AIR 1961 All 334
• Man and woman married. Woman was not able to conceive a male child. Man believed that to
attain salvation, he needed a son and in absence of male child, religious obligations could not be
fulfilled.
• Man decided to marry a second wife in the hope that he will be able to get a son by her. The first
wife initially consented to the proposal but then changed her mind.
• Man was a government servant. Relying on R. 27 of the Government Servants' Conduct Rules
the State Government directed the appellant not to marry a second wife without obtaining its
permission. Both the appellant and his father then submitted applications to
the State Government requesting it to permit the appellant to marry a second wife. By that time
the Hindu Marriage Act had come into force which prohibited a second marriage during the life
time of the first wife. The permission sought for by the appellant was, therefore, refused.
Appellant challenged the validity of R. 27 of the Government Servants' Conduct Rules as well as
the provisions of the Hindu Marriage Act which prohibited bigamy on the ground that they
infringed the freedom of religion guaranteed by Art. 25 of the Constitution.
Ram Prasad Seth v. State of Uttar
Pradesh and others AIR 1961 All 334
•Art. 25 of the Constitution reads as follows;
“25.(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to profess, practise and propogate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
• (a) Regulating or restricting any economic, financial, political or other secular activity which may be associated
with religious practice;
• (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus.
• Explanation I.— The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh
religion.
• Explanation II.— In sub-cl. (b) of cl. (2), the reference to Hindus shall be construed as including a reference to persons
professing the Sikh, Jain or Budhist religion, and the reference to Hindu religious institutions shall be construed
accordingly.”
Ram Prasad Seth v. State of Uttar
Pradesh and others AIR 1961 All 334
• It was argued by the husband that the impugned provisions had put an unjustified restriction on
the right guaranteed by the clause and could not by any stretch of language be brought under
any of the four grounds to which the right had been made subject. As per the husband, second
clause was not intended to permit the State to make laws affecting the religious beliefs and
practices of individual Hindus under the pretext of social welfare and reform.
• Allahabad High Court:
• The Constitution does not give any absolute or unrestricted guarantee in
respect of freedom of religion.
• The entire Article has to be construed as a whole and as far as possible effect is to be given to
every part of it. The extent to which freedom of religion is guaranteed is to be found in the
whole of the Article and not in any particular part of it. It has also to be noted that cl.
(1) of Art. 25 has been made expressly subject to the other provisions of Part 3 of the
Constitution. Cl. (2) of the Article is as much a provision of that Part as any other. It cannot,
therefore, be said that cl. (1) of the Article is entirely independent of cl. (2) and is not to be
read subject to that clause.
Ram Prasad Seth v. State of Uttar
Pradesh and others AIR 1961 All 334
• Allahabad HC continued:
• The opening words of cl. (2) viz. “nothing in this Article shall affect” make it quite clear that if a certain
piece of legislation falls within the four-corners of cl. (2) and is covered by it, it will not be affected at
all by the first clause. In this sense cl. (2) enacts an exception to cl. (1). But for this exception the
matters covered by cl. (2) would have been governed by cl. (1). Because of the exception expressly
provided for in the second clause those matters will remain unaffected by the first clause. In effect,
therefore, the second clause really provides an additional restriction on the right guaranteed by the
first clause. It follows that if some of the sections of the Hindu Marriage Act have been enacted as a
measure of social welfare and reform nothing in the first clause of Art. 25 can be allowed to affect that
enactment. The legislature of the country is the best judge of what is necessary for the welfare or
reform of a particular community at any particular stage. Nothing has been urged on be half of the
appellant to show that this piece of legislation is not a measure of social welfare and reform.
• Cl.2(b) contemplates 3 classes of legislation- Laws relating to social welfare, laws relating to social
reform and laws relating to throwing open Hindu religious institutions to all classes of Hindus.
• Provisions of the Hindu Marriage Act which are being challenged in this case do not infringe Art.
25 of the Constitution and are clearly protected by cl. (2)(b) of it.
Sarla Mudgal v. Union of India,
(1995) 3 SCC 635
• Supreme Court:
• Whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise a second marriage? Whether such
a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continues
to be a Hindu? Whether the apostate husband would be guilty of the offence under Section 494 of the Penal Code, 1860
(IPC)?
• Where a marriage takes place under Hindu law the parties acquire a status and certain rights by the marriage itself under
the law governing the Hindu marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing
a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be a Hindu.
Such marriage can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act.
• A Hindu marriage can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act.
One of the grounds under Section 13 is that "the other party has ceased to be a Hindu by conversion to another religion".
• It is obvious from the various provisions of the Act that the modern Hindu law strictly enforces monogamy. A marriage
performed under the Act cannot be dissolved except on the grounds available under Section 13 of the Act. In that situation
parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit
of another wife. The second marriage is in violation of the provisions of the Act and as such would be non est.
• The expression ‘void’ for the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning
within the scope of the definition under the section. On the other hand the same expression has a different purpose under
Section 494 IPC and has to be given meaningful interpretation. The expression ‘void’ under Section 494 IPC has been used in
the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expression used
under Section 494 IPC.
Sarla Mudgal v. Union of India,
(1995) 3 SCC 635
• Supreme Court:
• A Hindu marriage solemnised under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu
marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would
not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act
and as such void in terms of Section 494 IPC. Any act which is in violation of mandatory provisions of law is per se void.
• The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the
conversion of the husband. It would be giving a go-by to the substance of the matter and acting against the spirit of the statute if the
second marriage of the convert is held to be legal.
• Looked from another angle, the second marriage of an apostate-husband would be in violation of the rules of natural justice.
Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without
getting his earlier marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the
rules of natural justice and as such would be void.
• The result of the interpretation, we have given to Section 494 IPC, would be that the Hindu law on the one hand and the Muslim law
on the other hand would operate within their respective ambits without trespassing on the personal laws of each other. Since it is not
the object of Islam nor is the intention of the enlightened Muslim community that Hindu husbands should be encouraged to become
Muslims merely for the purpose of evading their own personal laws by marrying again, the courts can be persuaded to adopt a
construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing
marriage dissolved in accordance with law.
• All the four ingredients of Section 494 IPC are satisfied in the case of a Hindu husband who marries for the second time after
conversion to Islam. He has a wife living, he marries again. The said marriage is void by reason of its taking place during the life of the
first wife.
Sarla Mudgal v. Union of India,
(1995) 3 SCC 635
• Supreme Court on UCC in this case:
• Till the time we achieve the goal — uniform civil code for all the citizens of India — there is an open
inducement to a Hindu husband, who wants to enter into a second marriage while the first marriage is
subsisting, to become a Muslim. Since monogamy is the law for Hindus and the Muslim law permits as many
as four wives in India, errant Hindu husband embraces Islam to circumvent the provisions of the Hindu law
and to escape from penal consequences.
• One wonders how long will it take for the Government of the day to implement the mandate of the Framers of
the Constitution under Article 44 of the Constitution of India. The traditional Hindu law — personal law of the
Hindus — governing inheritance, succession and marriage was given a go-by as back as 1955-56 by codifying
the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal
law in the country.
• Article 44 is based on the concept that there is no necessary connection between religion and personal law in
a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from
social relations and personal law…The personal law of the Hindus, such as relating to marriage, succession and
the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The
Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity
and integration, some other communities would not, though the Constitution enjoins the establishment of a
“common civil code” for the whole of India.
Sarla Mudgal v. Union of India,
(1995) 3 SCC 635
• Supreme Court on the UCC in this case:
• We, therefore, request the Government of India through the Prime Minister
of the country to have a fresh look at Article 44 of the Constitution of India
and “endeavour to secure for the citizens a uniform civil code throughout the
territory of India”.
• Answering the questions posed by us in the beginning of the judgment, we
hold that the second marriage of a Hindu husband after conversion to Islam,
without having his first marriage dissolved under law, would be invalid. The
second marriage would be void in terms of the provisions of Section 494 IPC
and the apostate-husband would be guilty of the offence under Section 494
IPC.
Sarla Mudgal v. Union of India,
(1995) 3 SCC 635
• Concurrent opinion on UCC:
• The desirability of uniform Code can hardly be doubted. But it can concretize only when social climate is
properly built up by elite of the society, statesmen amongst leaders who instead of gaining personal
mileage rise above and awaken the masses to accept the change.
• No religion permits deliberate distortions. Much misapprehension prevails about bigamy in Islam.
• A unified code is imperative both for protection of the oppressed and promotion of national unity and
solidarity. But the first step should be to rationalise the personal law of the minorities to develop
religious and cultural amity. The Government would be well advised to entrust the responsibility to the
Law Commission which may in consultation with Minorities Commission examine the matter and bring
about the comprehensive legislation in keeping with modern day concept of human rights for women.
• The Government may also consider feasibility of appointing a Committee to enact Conversion of
Religion Act, immediately, to check the abuse of religion by any person. The law may provide that every
citizen who changes his religion cannot marry another wife unless he divorces his first wife. The
provision should be made applicable to every person whether he is a Hindu or a Muslim or a Christian
or a Sikh or a Jain or a Budh.
Lily Thomas v. Union of India,
(2000) 6 SCC 224
• Supreme Court:
• Conversion does not automatically dissolve a marriage already solemnised
under the Hindu Marriage Act. It only provides a ground for divorce under
Section 13. One of the grounds for divorce under Section 13 is that the other
party has ceased to be a Hindu by conversion to another religion
• Change of religion does not dissolve the marriage performed under the Hindu
Marriage Act between two Hindus. Apostasy does not bring to an end the civil
obligations or the matrimonial bond, but apostasy is a ground for divorce under
Section 13 as also a ground for judicial separation under Section 10 of the
Hindu Marriage Act. Hindu law does not recognise bigamy. As we have seen
above, the Hindu Marriage Act, 1955 provides for “monogamy”. A second
marriage, during the lifetime of the spouse, would be void under Sections 11
and 17, besides being an offence.
Lily Thomas v. Union of India,
(2000) 6 SCC 224
• Supreme Court:
• Mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the
court. Till a decree is passed, the marriage subsists. Any other marriage, during the subsistence of the first marriage would
constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, in spite of his
conversion to some other religion, would be liable to be prosecuted for the offence of bigamy. It also follows that if the first
marriage was solemnised under the Hindu Marriage Act, the “husband” or the “wife”, by mere conversion to another religion,
cannot bring to an end the marital ties already established on account of a valid marriage having been performed between
them. So long as that marriage subsists, another marriage cannot be performed, not even under any other personal law, and
on such marriage being performed, the person would be liable to be prosecuted for the offence under Section 494 IPC.
• Section 494 in respect of a second marriage under Mahommedan Law can be avoided only if the first marriage was also under
the Mahommedan Law and not if the first marriage was under any other personal law where there was a prohibition on
contracting a second marriage in the life-time of the spouse.
• The judgment in Sarla Mudgal was sought to be reviewed, set aside, modified and quashed by way of the present review and
writ petitions filed by various persons and Jamat-e-Ulema Hind and another. It is contended that the aforesaid judgment is
contrary to the fundamental rights. The power of review can be exercised for correction of a mistake but not to substitute a
view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be
treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.. We have also not
found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be
such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error
of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the
judgment.
Lily Thomas v. Union of India,
(2000) 6 SCC 224
• Supreme Court:
• No person, by the judgment impugned, has been denied the freedom of conscience and propagation
of religion. The rule of monogamous marriage amongst Hindus was introduced with the
proclamation of the Hindu Marriage Act. Section 17 of the said Act provided that any marriage
between two Hindus solemnised after the commencement of the Act shall be void if at the date of
such marriage either party had a husband or wife living and the provisions of Sections 494 and 495 of
the Penal Code, 1860 shall apply accordingly. The second marriage solemnised by a Hindu during the
subsistence of a first marriage is an offence punishable under the penal law. Freedom guaranteed
under Article 25 of the Constitution is such freedom which does not encroach upon a similar freedom
of other persons. Under the constitutional scheme every person has a fundamental right not merely
to entertain the religious belief of his choice but also to exhibit this belief and ideas in a manner
which does not infringe the religious right and personal freedom of others. It is nobody's case that
any such converted has been deprived of practising any other religious right for the attainment of
spiritual goals. The Islam which is pious, progressive and respected religion with rational outlook
cannot be given a narrow concept as has been tried to be done by the alleged violators of law.
Lily Thomas v. Union of India,
(2000) 6 SCC 224
• Supreme Court:
• Kuldip Singh, J. in his judgment in Sarla Mudgal only requested the
Government to have a fresh look at Article 44 of the Constitution in the light
of the words used in that article. In that context direction was issued to the
Government for filing an affidavit to indicate the steps taken and efforts made
in that behalf. Sahai, J. in his concurrent but separate judgment only
suggested the ways and means, if deemed proper, for implementation of the
aforesaid directives. The Judges comprising the Bench were not the only
Judges to express their anguish.
• This Court had not issued any directions for the codification of a common civil
code and the Judges constituting the different Benches had only expressed
their views in the facts and circumstances of those cases.
Bhaurao Shankar Lokhande v. State
of Maharashtra, (1965) 2 SCR 837
• Bhaurao Shankar Lokhande, Appellant 1, was married to the complainant Indubai in about 1956. He married
Kamlabai in February 1962, during the lifetime of Indubai. Case under Section 494, IPC.
• The only contention raised for the appellants is that in law it was necessary for the prosecution to establish
that the alleged second marriage of the Appellant 1 with Kamlabai in 1962 had been duly performed in
accordance with the religious rites applicable to the form of marriage gone through. It is urged for the
appellants that the essential ceremonies for a valid marriage were not performed during the proceedings
which took place when Appellant 1 and Kamlabai married each other.
• Section 494 IPC reads:
• “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking
place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.”
• Prima facie, the expression “whoever … marries” must mean “whoever … marries validly” or “whoever …
marries and whose marriage is a valid one”. If the marriage is not a valid one, according to the law applicable to
the parties, no question of its being void by reason of its taking place during the life of the husband or wife of
the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare
fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of
husband and wife even though they may hold themselves out before society as husband and wife and the
society treats them as husband and wife.
Bhaurao Shankar Lokhande v. State
of Maharashtra, (1965) 2 SCR 837
• The marriage between two Hindus is void in view of Section 17 if two
conditions are satisfied : (i) the marriage is solemnized after the
commencement of the Act; (ii) at the date of such marriage, either party had
a spouse living. If the marriage which took place between the appellant and
Kamlabai in February 1962 cannot be said to be “solemnized”, that marriage
will not be void by virtue of Section 17 of the Act and Section 494 IPC will
not apply to such parties to the marriage as had a spouse living.
• The word “solemnize” means, in connection with a marriage, “to celebrate
the marriage with proper ceremonies and in due form”, according to
the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage
is “celebrated or performed with proper ceremonies and due form” it cannot
be said to be “solemnized”.
Bhaurao Shankar Lokhande v. State
of Maharashtra, (1965) 2 SCR 837
• We are of opinion that unless the marriage which took place between Appellant 1 and Kamlabai in
February 1962 was performed in accordance with the requirements of the law applicable to a
marriage between the parties, the marriage cannot be said to have been “solemnized” and therefore
Appellant 1 cannot be held to have committed the offence under Section 494 IPC.
• It is alleged for the respondent that the marriage between Appellant 1 and Kamlabai was in
“gandharva” form, as modified by the custom prevailing among the Maharashtrians.
• In this case, there was no invocation before the sacred fire and saptpadi. It is not disputed that these
two essential ceremonies were not performed when Appellant 1 married Kamlabai in February 1962.
There is no evidence on record to establish that the performance of these two essential ceremonies
has been abrogated by the custom prevalent in their community. In fact, the prosecution led no
evidence as to what the custom was.
• In the absence of a statement by the witness that according to custom ceremonies performed in this
case were the only necessary ceremonies for a valid marriage, we cannot construe the statement
that the touching of the foreheads completed the gandharva form of marriage and that the
ceremonies gone through were all the ceremonies required for the validity of the marriage.
Bhaurao Shankar Lokhande v. State
of Maharashtra, (1965) 2 SCR 837
• Clause (a) of Section 3 of the Act provides that the expressions “custom” and
“usage” signify any rule which, having been continuously and uniformly
observed for a long time, has obtained the force of law among Hindus in any
local area, tribe, community, group or family.
• We are therefore of opinion that the prosecution has failed to establish that the
marriage between Appellant 1 and Kamlabai in February 1962 was performed in
accordance with the customary rites as required by Section 7 of the Act. It was
certainly not performed in accordance with the essential requirements for a
valid marriage under Hindu law.
• It follows therefore that the marriage between Appellant 1 and Kamlabai does
not come within the expression “solemnized marriage” occurring in Section 17 of
the Act and consequently does not come within the mischief of Section 494 IPC.
Critique of the Bhaurao decision
• Werner Menski:
• The inadequate decision in Bhaurao Shankar represents an obvious example of judicial
conservatism and blindness to social realities, ignoring not only the law and its social
purpose, but also disregarding the legitimate expectations of women caught up in
polygamous marriages. Decided wrongly in the first place, however, this case has been
misused ever since. It became a much-used precedent, which has evidently helped many
Hindu polygamists to escape conviction
• Hindu husbands faced with a prosecution for bigamy would now simply try to argue that the
marriage rituals they had performed did not result in a legally valid Hindu marriage. In fact,
some ritual element might purposely be left out to avoid a prosecution for polygamy.
S. Nagalingam v. Sivagami,
(2001) 7 SCC 487
• The appellant S. Nagalingam married respondent complainant Sivagami on 6-9-1970. Three
children were born from that wedlock. The respondent alleged that the appellant started ill-
treating her and on many occasions she was physically tortured. As a result of ill-treatment
and severe torture inflicted by the appellant as well as his mother, she left her marital home
and started staying with her parents. While so, the respondent came to know that the
appellant had entered into a marriage with another woman on 18-6-1984, by the name of
Kasturi, and that the marriage was performed in a marriage hall at Thiruthani.
• The short question that arises for our consideration is whether the second marriage entered
into by the appellant with Kasturi, on 18-6-1984 was a valid marriage under Hindu law so as
to constitute an offence under Section 494 IPC.
• The essential ingredients of the offence under Section 494 IPC are: (i) the accused must
have contracted the first marriage; (ii) whilst the first marriage was subsisting, the accused
must have contracted a second marriage; and (iii) both the marriages must be valid in the
sense that necessary ceremonies governing the parties must have been performed.
S. Nagalingam v. Sivagami,
(2001) 7 SCC 487
• Admittedly, the marriage of the appellant with the respondent, entered into by them on 6-9-1970, was subsisting
at the time of the alleged second marriage. The Metropolitan Magistrate held that an important ceremony,
namely, “saptapadi” had not been performed and therefore, the second marriage was not a valid marriage and no
offence was committed by the appellant.
• It is undoubtedly true that the second marriage should be proved to be a valid marriage according to the personal
law of the parties, though such second marriage is void under Section 17 of the Hindu Marriage Act having been
performed when the earlier marriage is subsisting. The validity of the second marriage is to be proved by the
prosecution by satisfactory evidence.
• Section 7-A (State amendment by Tamil Nadu) applies to any marriage between two Hindus solemnised in the
presence of relatives, friends or other persons. The main thrust of this provision is that the presence of a priest is
not necessary for the performance of a valid marriage. Parties can enter into a marriage in the presence of
relatives or friends or other persons and each party to the marriage should declare in the language understood by
the parties that each takes the other to be his wife or, as the case may be, her husband, and the marriage would
be completed by a simple ceremony requiring the parties to the marriage to garland each other or put a ring upon
any finger of the other or tie a thali. Any of these ceremonies, namely, garlanding each other or putting a ring upon
any finger of the other or tying a thali would be sufficient to complete a valid marriage.
• The evidence clearly shows that there was a valid marriage in accordance with the provisions of Section 7-A of the
Hindu Marriage Act.
S. Nagalingam v. Sivagami,
(2001) 7 SCC 487
• “Saptapadi” was held to be an essential ceremony for a valid marriage
only in cases where it was admitted by the parties that as per the
form of marriage applicable to them that was an essential ceremony.
The appellant in the instant case, however, had no such case that
“saptapadi” was an essential ceremony for a valid marriage as per the
personal law applicable whereas the provisions contained in Section
7-A are applicable to the parties. In any view of the matter, there was
a valid marriage on 18-6-1984 between the appellant and the second
accused Kasturi. Therefore, it was proved that the appellant had
committed the offence of bigamy as it was done during the
subsistence of his earlier marriage held on 6-9-1970.
Flavia Agnes, “Hindu Men, Monogamy and Uniform Civil Code,”
Economic and Political Weekly 30, no.50 (1995): pp. 3238-3244.

• The piece begins with reference to the Sarla Mudgal decision and states that it has strengthened the arms of the
Hindutva forces, whose main political plank in the forthcoming elections will be the uniform civil code. The media
publicity following the judgment seems to have side-tracked the basic issue, i e, bigamy by Hindu men
• The piece refers to the Bhaurao decision. Subsequently, relying upon Bhaurao, the Supreme Court has held that to prove
a second marriage, essential ceremonies constituting it must be proved. The Court has relied on Bhaurao to say that
proof of solemnisation of second marriage in accordance with religious ceremonies if a must for conviction u/s 494.
• The Apex Court has rescued errant husbands by prescribing rigid standards for proving bigamy. Often the SC has had an
absurd idea of uniformity wherein it has sought to enforce rituals in a diverse and pluralistic society.
• The High Courts have followed the trail of the Supreme Court. The complainant wife could even be at the risk of having
her own marriage invalidated.
• The Article provides examples of different cases where the solemnisation of marriage has not been proved due to the
high standards set by the courts for proving a marriage.
• These cases show that the validity of a Hindu marriage is constantly suspect.
• Marriages discussed in the case law have been performed in full public view with the participation of the community
and yet they have not been proved in court. Consequently, a Hindu husband can live in a polygamous marriage as long
as he does not perform essential ceremonies.
Analysis of polygamy in India
• Post-colonial Hindu law abolished polygamy by statute in 1955 and appears to follow modern principles and legal models. However, triumphant
modernist declarations of legal and moral victory in this field cannot ignore the fact that in social reality polygamous arrangements of various
kinds remain operative among Hindus and are legally condoned in a variety of ways.
• The Hindu cultural ideal was and clearly still is monogamous marriage in the sacramental form of the samskara. Polygamous arrangements
were apparently seen as a deviation from this ideal, exceptional measures to support and uphold the rita/dharma complex, especially when the
first wife turned out to be infertile, had only stillborn offspring, gave birth to daughters only, or was otherwise seriously deficient. It was an
option that a man could exercise, and not some sort of divine right, rather in the nature of a pious obligation if it was for the explicit purpose of
procuring offspring. It has been impossible to ascertain how widespread polygamy actually was in various Hindu societies in the past, but there
is much evidence to indicate that it was always practised by a minority and treated as an exception from the general rule of monogamy.
• While the modern Indian reformers formally achieved their aim of abolishing Hindu polygamy, there remains much dissatisfaction in India today
over the fact that Muslim men continue to be allowed to have up to four wives. The debates about polygamy in modern India therefore focus
on this assumed Muslim privilege and have mainly turned into a debate on equality before the law and the perceived need for the uniform civil
code.’
• The Hindu law on polygamy has thus moved beyond condoning ‘tradition’ as well as blind adherence to modernist axioms of formal abolition. It
now lies in a condition of postmodernity, drawing from, and yet ultimately discarding, both positions to maintain justice in a heavily contested
field. many bigamy prosecutions fail because there is no proof of proper solemnization of the second marriage. Even in the rare cases resulting
in convictions for polygamy, the punishments given appear to remain rather lenient. Bhaurao Shankar appeared to be a clear-cut case of Hindu
polygamy; nevertheless the man escaped conviction. By assuming that a fully valid Hindu marriage must include ritual elements involving the
holy fire as a witness and a rite of saptapadi, the SC virtually held that these two rituals are essential to all legally valid Hindu marriages.
• The above case analysis therefore confirms that despite the legislative prohibition of Hindu polygamy, the courts have continued to take a
rather lenient approach towards polygamous Hindu men when it comes to protecting them against criminal convictions.
Section 5-consent
(ii) Consent- neither party is :
• is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
• 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
• has been subject to recurrent attacks of insanity
• The primary emphasis over here is on the mental capacity of parties to a marriage. If a person
comes under any of these clauses then he/she is not competent to get married.
• Marriage becomes voidable if these conditions not fulfilled.
Section 5, Conditions for valid Hindu
marriage between two Hindus
iii- Bridegroom should be 21 years and bride 18 years
• Supreme Court in Independent Thought v. UOI- Strangely, while prohibiting a child marriage and
criminalizing it, a child marriage has not been declared void.
• Scholars have also pointed out that the HMA is otherwise silent about the question of legal validity,
while it is evident from a perusal of Section11 HMA concerning void marriages that a child marriage is not
listed, and thus is not explicitly declared void. It is believed that an attempt to prohibit such marriages would
have failed and we could have been faced with 80 to 90% void marriages in the countryside.
The Prohibition of Child Marriage Act, 2006

• As per Section 2(a), “child” means a person who, if a male, has not completed twenty-one years of
age, and if a female, has not completed eighteen years of age.
• As per Section 3, every child marriage, whether solemnised before or after the commencement of
this Act, shall be voidable at the option of the contracting party who was a child at the time of the
marriage:
Provided that a petition for annulling a child marriage by a decree of nullity may be filed
in the district court only by a contracting party to the marriage who was a child at the time of the
marriage.
The petition under this section may be filed at any time but before the child filing the petition
completes two years of attaining majority.
• Also see Section 12 of this Act which specifies when marriage of minor is void. They are: (a) is taken
or enticed out of the keeping of the lawful guardian; or (b) by force compelled, or by any deceitful
means induced to go from any place; or (c) is sold for the purpose of marriage; and made to go
through a form of marriage or if the minor is married after which the minor is sold or trafficked or
used for immoral purposes.
Meaning of term bride
• Arunkumar and Sreeja v. Inspector General of Registration and Others, WP(MD)No.4125 of 2019:
• The first petitioner Shri Arunkumar got married to the second petitioner Ms Srija on 31.10.2018 at
Arulmighu Sankara Rameswara Temple, Tuticorin as per Hindu rites and customs.
• When the parties submitted a memorandum for registration of marriage under Rule 5 (1) (a) of the
Tamil Nadu Registration of Marriages Rules in Form I before the third respondent, the third respondent
refused to register the same.
• It was contended that as per Section 5 of the Hindu Marriage Act, the bridegroom must have completed
the age of 21 years while the bride must have completed the age of 18 years at the time of marriage. To
understand the meaning of expression “bride', in the order impugned in this writ petition, Oxford
Advance Learner's Dictionary of Current English was referred to. The term “Bride” can only refer to a
“Woman on her wedding day”. In the case on hand, the second petitioner Srija is a transgender and not
a woman.
Meaning of term bride contd…
• Arunkumar case contd…
• Madras HC:
• The expression “bride” occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning. In the
decision reported in (2014) 5 SCC 438 (National Legal Services Authority vs. Union of India), the Hon'ble Supreme Court upheld
the transgender persons' right to decide their self identified gender. The central and State governments were directed to grant
legal recognition of their gender identity such as male, female or third gender.
• The Madras HC extensively referred to the interpretation of Articles 14, 19 and 21 in the NALSA decision.
• In the NALSA case also, the right of the transgender person to marry was recognised.
• For too long, the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an
enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit
of the social institutions already in place in the mainstream.
• Both the petitioners herein profess Hindu Religion. Their right to practice Hindu Religion is recognised under Article 25 of the
Constitution of India. The Hindu Marriage Act is a personal law of the Hindus. When the right of the transgender persons to marry
has been upheld by the Hon'ble Supreme Court, in the very nature of things, they cannot be kept out of the purview of the Hindu
Marriage Act. Therefore, their fundamental right under Article 25 has also been infringed in this case.
• Seen in the light of the march of law, the expression “bride' occurring in Section 5 of the Hindu Marriage Act, 1955 will have to
include within its meaning not only a woman but also a transwoman. It would also include an intersex person/transgender person
who identifies herself as a woman. The only consideration is how the person perceives herself.
• The third respondent is directed to register the marriage solemnized between the petitioners
Section 5, Conditions for valid Hindu marriage
between two Hindus-Prohibited degrees
(iv) Parties are not in degree of prohibited relationship unless it is sanctioned by custom or
usage
• Degree of prohibited relationship is defined in Section 3(g).
• A marriage in contravention of this condition is void.
Section 5, Conditions for valid Hindu
marriage between two Hindus-Prohibited
degrees
• Section 3(g)- “degrees of prohibited relationship”-two persons are said to be within the “degrees of
prohibited relationship”—
• (i) if one is a lineal ascendant of the other; or
• Eg- parents, grandparents. So a Hindu male cannot marry his mother, grandmother, great
grandmother. Similarly a Hindu female cannot marry her father, grandfather, great grandfather.
• (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
• Eg-A hindu man is prohibited from marrying the former spouse of his parent or grandparent. So a son
cannot marry his step mother upon death of his father or if she divorces his father. A man cannot
marry his daughter-in-law.
• (iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or
grandmother’s brother of the other; or
• (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister
or of two brothers or of two sisters;
• Eg Brothers and sisters cannot marry each other where they share both parents, or share a father or
share a mother or through adoption. Uncle and niece and aunt and nephew also cannot marry.
Hypotheticals on prohibited relationship
• A Hindu man ‘H’ wants to marry his father’s brother’s daughter. Can he
do so?
• No, as per Section 3(g)(iv)
• A Hindu woman ‘W’ wants to marry the son of her sister. Can she do so?
• No, as per Section 3(g)(iv)
• A Hindu man ‘H’ wants to marry the wife of his mother’s brother. Can he
do so?
• No, as per Section 3(g)(iii)
• A Hindu woman wants to marry her brother’s son. Can she do so?
• No as per Section 3(g)(iv)
Section 5, Conditions for valid Hindu
marriage between two Hindus- sapinda
relationship
(v)No marriage is valid if it is between parties who are related to each other as sapindas unless the
custom or usage governing each of them permits of a marriage between the two.
• Section 3(f) defines sapinda
(f) (i) “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;
(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other
within the limits of sapinda relationship, or if they have a common lineal ascendant who is
within the limits of sapinda relationship with reference to each of them;
• A marriage in contravention of this condition is void
Arun Laxmanrao Navalkar v. Meena Arun
Navalkar, 2006 SCC OnLine Bom 423
Bombay HC:
• Husband alleged nullity of marriage under section 11 of the Hindu Marriage Act on the ground of
their relationship being sapinda relationship.
• The relationship of the parties is admitted. They come from a common ancestor one Moroba who
had one son Laxman and one daughter Champubai. The husband is the son of Laxman. The wife is
the daughter of Champubai's son. Upon this admitted relationship the husband claims that they are
sapindas of one another. The wife claims that they are not.
• In section 3(f) of the Hindu Marriage Act read with prohibited relationship under section 3(a) of the
Hindu Marriage Act show that the parties must be within 5 generations of lineage from common
ancestor through the male ascent. The ascent for both the parties are their respective fathers.
Hence, their lineage is therefore male ascent. The wife however, claims that the sapinda relationship
is not established as their lineage is intervened by her grand mother who is the husband's parental
aunt. However, in the definition of sapinda relationship any breakage of the relationship by such
intervening is not contemplated. The parties have a common lineal ascendant (ancestor) Moroba
within 5 generations of each of them. The parties are therefore in sapinda relationship.
Arun Laxmanrao Navalkar v. Meena Arun
Navalkar, 2006 SCC OnLine Bom 423
• It will have to be seen whether there is any custom in the community to which the parties belong
allowing or enjoining marriage between parties without sapinda relationship and whether there
have been (several) such marriages over a period of time which have been performed and are
accepted by the community.
• It is elementary that the onus of proving such a custom would necessarily lie on the party
propounding it. It is for the wife to prove that there is a custom allowing marriages amongst
sapindas in their community. It is for the party, who claims such a custom to be existing, to show
it by specific illustrations.
• In fact the wife has actually attempted to showed instances of couples in their community which
are stated to be in sapinda relationship during the trial to discharge such onus. It will have to be
seen whether upon such illustrations the marriage of those parties are actually shown to be
within sapinda relationship and if shown whether those instances would suffice to prove such a
custom.
Arun Laxmanrao Navalkar v. Meena Arun
Navalkar, 2006 SCC OnLine Bom 423
• It is settled law that any custom, which one of the sources of the whole Hindu law, is characterized by its
continuity, longevity and uninterruptedness. The instances of such custom must therefore, be over a long
period of time, occurring at regular intervals without leaving the span of time without such illustrations. Such
custom must be shown to exist and continue to exist before and after the parties' marriage. It must further
be shown to be accepted by the community.
• Court relied on precedents to state that a custom should be established to be so by clear and unambiguous
evidence.
• The wife can be taken to have shown at best the marriage of 2 couples in their community within sapinda
relationship. The years of their marriage are not shown hence, the span of time to show the existence of the
custom is not known. The custom propounded by her therefore, cannot be taken to have the attribute of
either continuity or longevity, since the lapse of time of years between the marriages of these parties is not
shown. The factum of uninterruptedness of the custom is also not made out. Aside from showing the factum
of the marriages between 2 parties in sapinda relationship, the fact that it was accepted by the community
as a whole is also not made out by a positive assertion.
• The marriage between the parties is declared null and void.
Valid, void and voidable marriage
• Valid marriage gives rise to all marital obligations.
• A void marriage is no marriage in the eyes of law.
• Voidable marriage stands midway between these two. It can be
avoided under the grounds mentioned under Section 12.
Section 11, void marriage
• Void marriages.—Any marriage solemnised after the commencement of this Act shall be null and
void and may, on a petition presented by either party thereto, be so declared by a decree of
nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.
• A void marriage, in the eyes of law, is one which was deemed to have never taken place. Its very
existence is negated.
Section 12, voidable marriage
12. Voidable marriages.—(1) Any marriage solemnised, whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any
of the following grounds, namely:—

a. that the marriage has not been consummated owing to the impotence of the respondent;
or
b. that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
c. that the consent of the petitioner, or where the consent of the guardian in marriage of the
petitioner, the consent was obtained by force or fraud as to nature of ceremony or as to any
material fact or circumstance concerning the respondent.
d. that the respondent was at the time of the marriage pregnant by some person other than
the petitioner. [the petitioner should have been ignorant of the fact at the time of the
marriage]
Gullipilli Sowria Raj v. Bandaru
Pavani, (2009) 1 SCC 714
• The only question which falls for determination in this civil appeal by way of special leave is whether a
marriage entered into by a Hindu with a Christian is valid under the provisions of the Hindu Marriage
Act, 1955.
• The appellant, who is a Roman Catholic Christian allegedly married the respondent, who is a Hindu, on
24-10-1996. Subsequently, the marriage was registered on 2-11-1996 under Section 8 of the Hindu
Marriage Act, 1955
• Soon thereafter, on 13-3-1997, the respondent wife filed a petition before the Family Court at
Visakhapatnam, being OP No. 84 of 1997, under Section 12(1)(c) of the 1955 Act, for a decree of nullity
of the marriage entered into between the parties on 24-10-1996 on the grounds mentioned in the said
petition. The main ground for declaring the marriage to be a nullity was mainly misrepresentation by
the appellant regarding his social status and that he was a Hindu by religion, although it transpired
after the marriage that the appellant and his family members all professed the Christian faith.
• The HC held that the marriage between a Hindu and a Christian under the 1955 Act is void ab initio
and that the marriage was, therefore, a nullity.
Gullipilli Sowria Raj v. Bandaru
Pavani, (2009) 1 SCC 714
• Supreme Court:
• There is no dispute that at the time of the purported marriage between the
appellant and the respondent the appellant was a Christian and continues to be so
whereas the respondent was a Hindu and continues to be so. As against the above,
a novel argument has been advanced on behalf of the appellant, the substance
whereof is that the Hindu Marriage Act, 1955 does not preclude a Hindu from
marrying a person of some other faith.
• Although, an attempt has been made to establish that the Hindu Marriage Act,
1955 did not prohibit a valid Hindu marriage of a Hindu and another professing a
different faith, we are unable to agree with such submission in view of the definite
scheme of the 1955 Act. In order to appreciate the same, we may first refer to the
Preamble to the Hindu Marriage Act, 1955, which reads as follows:“An Act to
amend and codify the law relating to marriage among Hindus.”
Gullipilli Sowria Raj v. Bandaru
Pavani, (2009) 1 SCC 714
• Section 2 of the Act which deals with application of the Act, and has been reproduced
hereinabove, reinforces the said proposition. Section 5 of the Act thereafter also makes it clear that
a marriage may be solemnised 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, in our
view, does not make the provision of Section 5 optional. On the other hand, it in positive terms,
indicates that a marriage can be solemnised between two Hindus if the conditions indicated were
fulfilled. In other words, in the event the conditions remain unfulfilled, a marriage between two
Hindus could not be solemnised. The expression “may” used in the opening words of Section 5 is
not directory, as has been sought to be argued, but mandatory and non-fulfilment thereof would
not permit a marriage under the Act between two Hindus. Section 7 of the 1955 Act is to be read
along with Section 5 in that a Hindu marriage, as understood under Section 5, could be solemnised
according to the ceremonies indicated therein.
• In these facts, the marriage solemnised in accordance with Hindu customs was a nullity.
• In our view, the High Court rightly allowed the appeal preferred by the respondent herein and the
judgment and order of the High Court does not warrant any interference.
Pinninti Venkataramana v.
State, 1976 SCC OnLine AP 98
• Andhra Pradesh HC:
• Q:“Whether a Hindu marriage governed by the provisions of the Hindu Marriage Act, 1955, where the parties to the
marriage or either of them are below their respective ages as set out in Clause (iii) of Section 5 of the Hindu Marriage
Act, is void ab initio and is no marriage in the eye of law.”
• It is clear that, by virtue of Section 11, any marriage which is solemnized in contravention of any of the conditions
specified in clauses (i), (iv) and (v) of Section 5 is null and void and if a Court of competent jurisdiction is called upon
to make a pronouncement, the Court may, on an application presented by either party to the marriage, declare such
a marriage to be null and void. Thus, out of the six clauses of Section 5, it is only in connection with clauses (i)(iv) and
(v) of Section 5 that the legislature has declared that the contravention of any one of the conditions mentioned in
those three clauses will render the marriage null and void. These, three situations are: (1) that neither party to the
marriage has a spouse living at the time of the marriage: (2) that the parties are not within the degrees of prohibited
relationship, unless the custom or usage governing each of them permits of a marriage between the two; and (3)
that the parties are not sapindas of each other.
• Section 12 of the Hindu Marriage Act deals with voidable marriages. Sub-section (1) provides that any marriage
whether solemnized before or after the commencement of the Act, shall be voidable and may be annulled by a
decree of nullity on any one of the grounds specified in clauses (a) to (d).
Pinninti Venkataramana v.
State, 1976 SCC OnLine AP 98
• Neither in Section 11 nor in Section 11 nor in Section 12 is there any provision for what is to happen if a marriage is solemnized in
violation of the provisions of clause (iii) of Section 5.
• It is true that the opening of Section 5 would indicate that each one of the six clauses can be construed as laying down a condition
precedent for solemnization of marriage. However, the legislature has given an indication in Section 11 that it is only contravention
of clauses (i) (iv) and (v) of S. 5 that renders the marriage void ab initio i.e. null and void and the Court may subsequently declare the
marriage null and void by a decree of nullity if either party chooses to present a petition in that behalf. The Legislature has also
indicated that a marriage solemnized in contravention of clause (ii) of Section 5 does not render the marriage null and void, but
renders it voidable and liable to be annulled by a decree of nullity
• Any marriage solemnized in contravention of clause (iii) of Section 5 is neither void nor voidable, the only consequence being that
the persons concerned are liable for punishment under Section 18 and further, if the requirements of clause (iv) of sub-section (2) of
Section 13, as inserted by the Marriage Laws (Amendment: Act, 1976, are satisfied, at the instance of the bride, a decree for divorce
can be granted.
• This analysis of the different provisions of the Hindu Marriage Act clearly brings out the fact that the Legislature itself has made a
distinction between contravention of one or the other clause of section 5 and such contravention is to be visited with different
consequences. In case of contravention of some clauses, the marriage is null and void and in case of contravention of some other
clauses, it becomes voidable and in case of contravention of another clause, it is voidable if the consent of the guardian is vitiated by
force or fraud but the Legislature, in terms, has not provided except by way of punishment in section 18 for violation of clause (iii) of
section 5. Therefore, it is not possible to read the different clauses of section 5 as laying down conditions precedent.
• The factum of marriage, which as solemnized could not be undone by reason of a large number of legal prohibitions to the contrary.
• It must be held that any marriage solemnized in contravention of clause (iii) of S. 5 is neither void nor voidable.
Key Takeaways
• Territorial application of HMA
• Who is a Hindu
• Conditions for valid Hindu marriage-monogamy, age, mental capacity prohibited degrees of
relationship, Sapinda relations and the requirement of a valid ceremony
• Position of custom
• Void and voidable marriage
• Impact of conversion