Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Conditions for Valid Hindu Marriage: Monogamy
Section 5 of the Act of 1955 prescribes conditions for a valid Hindu Marriage. A marriage may be solemnized between any two Hindus if the conditions given in section are fulfilled. In this article, we shall study the first condition prescribed in the section. i.e. Monogamy.
Section 5: the Hindu Marriage Act, 1955:
Condition for a Hindu Marriage:
A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) 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
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) 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;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
(vi) (Omitted)
Section 5(i) of the Hindu Marriage Act, 1955:
Neither party should have a spouse living at the time of the marriage:
From the Vedic period, though monogamy has been the rule, polygamy as an exception, existed side by side. The rules relating to ‘Anuloma’ marriages allowed a man more than one wife. But the wife who was first wedded was alone the wife in the fullest sense. Manu allowed a second marriage to a man only after the death of his wife. But under certain circumstances, he allowed a second wife. It was only when a wife was barren, diseased, or vicious, that could be superseded and a second marriage was valid; as also when she consented. On the supersession of a wife, the husband had to make provision for her. The first married wife had precedence over the others and her firstborn son over his half-brothers.
Section 5 clause (i) of the Act establishes the rule of monogamy and prohibits polygamy, which was permitted before the Act came into force. It also prohibits polyandry, which was prohibited by the ancient Hindu law also. Under Section 11 of the Act, bigamous marriages are void. A competent court may declare such a marriage to be a nullity on a petition presented by either party to such marriage. Further, Section 17 of the Act makes bigamy a penal offence for both Hindu males and females under Sections 494 and 495 of IPC.
Polyandry permits a female to have more than one husband simultaneously.
In Krishnan v. Ammalu, 1972 Ker 91 case, the Court observed that in Lahaul valley in Himachal Pradesh and among Thiyyas of South Malabar, polyandry was recognized.
In Palaniappa Chettiar v. Alagan Chetti, (1921)48 I.A 539, 543, case, the Court observed that in some cases, the custom prevents any second marriage without the consent of the first wife and without making provision for her.
In Adhav v. Adhav, AIR. 1988 SC 644 case, the Supreme Court has held that a marriage with a person who has a living spouse is totally null and void; it cannot be treated as voidable under S. 12 of the Act.
Who Can Complain of Bigamy?
Section 5(i) of the Hindu Marriage Act, 1955 provides for monogamy. Thus bigamy is an offence under the Section. Only the person aggrieved can complain in case of bigamy. If it is the wife who is aggrieved, then her father can complain as he is the lineal ascendant of the wife.
Remedies Available to the First Wife:
If a husband/wife is about to take a second wife/husband, the first wife/husband can ask for an injunction from the court. A suit for a perpetual injunction by one spouse against the other can be filed under Section 9, C.P.C read with Section 38, Specific Relief Act, 1963.
The first wife of a bigamous marriage has no right to file a petition for nullity under the Hindu Marriage Act, 1955 since Section 12 clearly lays down that a petition for a declaration that the marriage is null and void can be filed only by either party to the marriage. But the first wife can file a suit in a civil court for a declaration under Section 9, C.P.C. read with Section 34, Specific Relief Act, 1963 that the second marriage of her husband is null and void. She can also file a petition for divorce under Section13 (1) (i) of H.M.Act, 1955 on the ground of Adultery.
Remedy for the Second Wife:
In Jayalakshmi v. Gayatri, AIR 1998 Kant 169 and Savitri Devi v. Manorama Bai, AIR 1998 MP 114 cases the Court held that in a bigamous marriage, the “second wife” has no status of wife. But she is entitled to maintenance under Section 25 of the Hindu Marriage Act, 1955. The second wife can claim interim maintenance under Section 20 of the Hindu Adoption and Maintenance Act, 1956.
In Megh Prasad v. Bhagwanti Bai, AIR 2010 Chhattisgarh 25 (para 9) case, respondent married the appellant with the consent of his first wife. At the time of alleged marriage of respondent with the appellant, both parties i.e. appellant and respondent were having spouses and their marriages were not dissolved by a decree of divorce or by any recognized custom. The Court held that such marriage is in violation of Section 5 (i) of the Hindu Marriage Act, 1955. The words ‘Hindu wife’ used in Section 18 of the Hindu Adoptions and Maintenance Act, 1956 only include a lawful wife or legally wedded wife and does not include any wife of second marriage during the subsistence of her first marriage. Hence the respondent is not legally wedded wife or lawful wife of the appellant.
In Smt. Sushma Choure v. Hetendra Kumar Borkar, AIR 2010 Chhattisgarh 30 (DB) (paras 12 and 14) case, the court held that the second marriage during the subsistence of first marriage is void.
In Gurmit Kaur v. Buta Singh, AIR 2010 (NOC) 440 (P & H) it was held that when the marriage being void from its inception, no amount of delay can stand in the way of obtaining a declaration as to nullity of marriage.
In Ms. Bhavna Sahar Wasif v. Flying Officer Rajiv Gakhar, AIR 2010 (NOC) 444 (P & H) petition was presented by the husband under Section 11 of the Hindu Marriage Act, 1955 for declaring marriage as null and void on the ground that his wife was already married to person belonging to Muslim religion. It was held that wife being converted to Muslim and was no longer a Hindu, the Hindu Marriage Act, 1955 will have no application to entertain a petition.
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