Conditions For a Valid Hindu Marriage and Divorce under Hindu Marriage Act.



Hindu Marriage Act got commenced on 18th May 1955. It is applicable to all Hindus living in India and outside the territory of India. Hindu is not defined in the act but it states who is the person on whom the act applies. Central Bank of India v/s Ram Narain – In this case, the Supreme Court said that there must be factum and there must be animus. The residence need not be continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside forever in the country where the residence has been taken up. Section 2 of the Hindu marriage act talks about a person on whom Hindu Law applies. The act applies to:-

  1. All those who are Hindu by religion which includes Buddhist, Jain or Sikh(legitimate or illegitimate).
  • All those people whose one or both parents are Hindu or are born of Hindu parents (legitimate or illegitimate) and brought up as Hindu.
  • Persons converted or reconverted to Hindu, Buddhist, Jain or Sikh by religion.
  • All those Scheduled Tribes who are practising Hindu faith.

Hindu Marriage

Companionship is a basic need of humans as no male or female is complete without each other they have to be together to complete because of this concept of marriage came into existence. There is 16 Sacrament in Hindu religion and Hindu marriage is one of the most important sacrament. In Hindu religion its Pious duty of a father to raise a girl child and then find a suitable person to become her groom when she attains the age of marriage. Marriage is a religious institution intended to fulfil religious duties and to achieve the ends of life namely Dharma, Artha, Kama and Moksha.

Essentials of valid Hindu marriage

Section 5 of the Hindu Marriage Act, 1955 lay down certain conditions for a valid Hindu Marriage

  1. Monogamy
  2. Sanity
  3. Age
  4. Beyond Prohibited Degree

1 AIR 1955 SC 36

  • Beyond Sapinda Relationship
  1. Monogamy

It simply means one husband can have one wife at one time. Earlier kings used to have so many wives but after this act became operational Hindus were not allowed to keep more than one wife during her lifetime if he does that he will be charged for bigamy under IPC section 494 and second marriage will be considered null and void. He/She would not be held liable if he/she is a divorcee or spouse has already died.

Chamundamma v/s Lakshmi2 – In this case, the husband went for another marriage during the subsistence of the first marriage which was a valid one, and this second woman stayed with the husband throughout his life. It would not legalise the second marriage as it is void ab initio.

  • Sanity

The partner should not suffer any form of mental disorder at the time of marriage so that they are capable of giving their valid consent to the marriage. The main reason is that insane people would not be able to take the obligations arising out of marriage. The marriage becomes voidable, not void because of this reason, it simply means the marriage automatically will not be null and void.

Note- Epilepsy was also a ground but now it has been removed.

Amina Roy v/s Prabadh Mohan Roy3– The person was suffering from schizophrenia and the marriage has taken place just two months before. However, the doctors were unable to determine the onset of the disease. The petition for the nullity of the onset of the disease. The petition for the nullity of the marriage failed as it could not be proved that the disease existed at the time of marriage.

  • Age

For valid Hindu marriage, the age of bridegroom should be 21 years and above and the bride should be 18 and above at the time of marriage. This provision was done to eliminate child marriage from society. This act makes child marriage voidable at the choice of parties at the time of solemnization of marriage. Child marriage was completely banned by the” Prohibition of Child Marriage Act,2006.

  • Beyond Sapinda relationship

2 AIR 2015 Kar 21

3 AIR 1969 Cal 304

It’s a little difficult to explain in text, however, Two persons are said to be “Sapinda” of each other if one is a linear ascendant (i.e. is a blood relative in the direct line of descent – the children, grandchildren, great-grandchildren, etc. of a person) of the other within the limits. “Sapinda” of relationship, or if they have a common lineal ascendant who is within the limits of“Sapinda” relationship with reference to each of them.

For example, if the bride is the offspring of any person within five generations (inclusive) on the groom’s father’s side and three generations (inclusive) on the groom’s mother’s side, or vice versa, they will be referred to as “Sapinda” of each other.

4) Beyond Prohibited Degree

The marriage is void ab into if parties fall within the Prohibited degree of relationship until and unless their custom approves it.

The 4 categories of Prohibited Degree are-:

  1. When one is a lineal ascendant of each other
  • The person is not allowed to marry lineal ascendant or descendant of the person
  • The person is not allowed to marry wifes of
  1. Brother.
    1. Father’s brother.
    1. Mother’s brother.
    1. Grandfather brother(both sides.)
    1. Grandmother’s brother( both sides.)
  • Marriage is also prohibited if these people are related as:
  1. Brother and sister.
    1. Uncle and niece.
    1. Aunt and nephew.
    1. Offspring of brother and sister offspring of two brothers offspring of two sisters.

Note- If customs approves such kind of marriage then the marriage will be valid.

Smt Sakuntala Devi v/s Amar Nath4– It was held by the court that marriage within prohibited degree is void ab initio . However, if the custom permits of a marriage between the couple, such a marriage is a valid marriage but such custom must not be unreasonable or opposed to public policy.

4 AIR 1982 P&H 22


There was no concept divorce in hinduism. In ancient times, hindu used to consider marriage as in indissoluble. And it was a sacred bond between spouse, it was not only for sexual desire but for continuing family lineage. Still divorce is very rare thing in indian society. Hindu law permits divorce under some particular regions.

Divorce Under Hindu Marriage Act

The first law on divorce came into existence in 1866 by British government. After Independence, hindu marriage act came into existence and recognised all three theories of divorce. Section-13 of hindu marriage act deals with divorce which either husband or wife can claim.

The grounds of divorce under section-13 of hindu marriage act are:-

  1. Adultery
  2. Cruelty
  3. Desertion
  4. Conversion
  5. Insanity
  6. Leprosy
  7. Venereal Disease
  8. Renunciation
  9. Presumption of death
  1. Adultery:-

As you know Supreme court decriminalised adultery but it is still a ground for divorce. In Adultery, there must be a voluntary or concentuatial sexual intercourse between a married person and another. Since, adultery is an offence it is necessary that at the time of the act of adultery the marriage was subsisting.

Note- If wife proves the she was raped then divorce will not be granted to husband Swapna Ghose v/s Sadanand Ghose5– In this case the wife found her husband and the adulteress to be lying in the same bed at night and further evidence of the neighbors that the husband was living with the adulteress as husband and wife is sufficient evidence of adultery. This is the clear cut direct case of adultery.

  • Cruelty:-

5 AIR 1979 Cal 1

It is stimulated behaviour manifestation because of different factors during in the life of spouse. In modern changing times the definition of cruelty is also changing. Now it also include mental cruelty. While physical cruelty is easy to establish, it is difficult to establish mental cruelty. In the case of Praveen Mehta v/s Indrajeet Mehta6 court said that mental cruelty as “state of mind”.

  • Desertion:-

It means rejection of all the obligations by one party of marriage. It is abandonment of one spouse by the other without any reasonable cause or consent.

Conditions essential to constitute desertion

  • Factum of separation
  • Intention to desert
  • Desertion without any reasonable cause
  • Desertion without consent of other party
  • Should wait for Period of 2years before filing the petition
  • Conversion:-

When any spouse gets itself converted to any other religion other than hinduism. Ex:- Islam, Cristianity, Judism, Zoroastrianism, then divorce will be granted.

  • Insanity:-

When any spouse is of unsound mind which is incurable or suffering continuously from mental disorder.

  • Leprosy:-

It is a psychological conditions where man not only shuns the company of lepers but look at them scornfully. It is also a ground of divorce.

  • Venereal Disease:-

It is ground of divorce only when it is communicable in nature irrespective of the period for which respondent has suffered.

  • Renunciation:-

In this spouse can seek for divorce if the other party renounces the world and has entered holy space. It is only a ground of divorce in Hindu law.

  1. Presumption of Death

6 AIR 2002 SC 2528.

If a person is not heard for the period of 7 years or more , He will be assumed as Dead.

Note – The person must obtain divorce under this section before undergoing marriage.

Ramrati Kuer v/s Dwarika Prasad 7– The court laid down that if the whereabouts of the person are not known for a period of seven years or more, he should be presumed to be dead.

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