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 fourth condition prescribed in the section i.e. No marriage within the degrees of prohibited relationship.

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 (iv) of the Hindu Marriage Act, 1955:

The parties to the marriage should not be within the degrees of prohibited relationship unless a custom or usage governing each of them permits such a marriage:

Under this clause, a marriage between persons who are within the degrees of prohibited relationship with each other is prohibited. Under the ancient Hindu Law also, such a marriage was not allowed. The Hindu texts went to the extent of prohibiting a man marrying a girl even of the same “gotra” or “pravara” on the theory that his father and the girl’s father were both descendants of a common ancestor in the male line and all such marriages were held invalid until the Hindu Marriage Disabilities Removal Act, 1946 was passed.  

This requirement of a valid Hindu marriage specified in Section 3(iv) is mandatory, and its contravention will render a marriage void unless such a marriage is sanctioned by custom or usage of both the parties.

Reason of Prohibition:

Marriage between parties related to each other within the degrees of prohibited relationship is forbidden to prevent:
a) physical degeneracy of the race which the marriage between near relations would lead to;
b) moral degeneracy and consequent evil results which are apt to affect a society built on the edifice of the joint family system

Understanding the Provisions:

For understanding this section we have to study Section 3(c), 3(d), 3(g) and 5 simultaneously.

Section 3 Subclauses (c) of the Act defines the terms Full blood” and “half-blood” relations as under.

Section 3 (c) Meaning of terms Full blood” and “half-blood” relationship:

two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives;

Section 3 Subclauses (d) of the Act defines the terms Full blood” and “half-blood” relations as under.

Section 3 (d) Meaning of the term “uterine blood” relationship:

two persons are said to be related to each other by uterine blood when they are descended from a common ancestor but by different husbands.

Explanation:

In Clauses (c) and (d) “ancestor” includes the father and “ancestress” the mother;

Section 3 Subclause (g) of the Act defines the term “”degrees of prohibited relationship” as under.

Section 3 (g) Meaning of “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

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or

(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 or 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.

Explanation:

for the purposes of clauses (f) and (g) relationship includes-

(i) relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.

But if the “custom” or “usage” governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship, then such marriage will be valid and binding.

Section 5 (iv) of the Hindu Marriage Act, 1955 deals prohibits marriage between persons who are within the prohibited degrees of relationship with each other. The list of degrees of prohibited relationship for a male is given below. A man cannot marry a woman having a relationship with him as under:

1. A female ascendant in the line.
2. Wife of a descendant in the line.
3. Wife of the brother.
4. Wife of the father’s brother.
5. Wife of the mother’s brother.
6. Wife of the grand father’s brother.
7. Wife of the grand mother’s brother
8. Sister.
9. Brother’s daughter.
10. Sister’s daughter.
11. Father’s sister.
12. Mother’s sister.
13. Father’s sister’s daughter.
14. Father’s brother’s daughter.
15. Mother’s sister’s daughter.
16. Mother’s brother’s daughter.

The list of degrees of prohibited relationship for a female is given below. A woman cannot marry a man having a relationship with him as under:

1. Her lineal ascendant likes Father, Father’s Father.
2. The husband of a lineal ascendant.
3. The husband of a lineal descendant.
4. Brother.
5. Father’s brother.
6. Mother’s brother.
7. Brother’s son.
8. Sister’s son.
9. Father’s brother’s son.
10. Father’s sister’s son.
11. Mother’s brother’s son.
12. Mother’s sister’s son.

Under this clause, a marriage between persons who are within the degrees of prohibited relationship with each other is prohibited. Under the ancient Hindu Law also, such a marriage was not allowed. This requirement of a valid Hindu marriage is mandatory, and its contravention will render a marriage void.

Section 5 (iv) allows such marriage if the “custom” or “usage” governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship. Section 5 (iv) makes such marriage valid and binding.

The custom must not be unreasonable or opposed to public policy. A custom would not be recognized, if it is abhorrent to decency or morality or if it is inconsistent with the practices of good men. A custom prevailing amongst the Jats of Punjab allows marriage with a brother’s widow. In some parts of South India, a marriage of a man with his sister’s daughter is also recognized by custom. In some part of Maharashtra, the girl’s marriage with the father’s sister’s son is valid. In Andhra Pradesh, custom permits marriage with sister’s daughter

A marriage which is performed in breach of this condition is void ab initio under Section 11 of the Hindu Marriage Act, 1955 and a competent Court can declare it to be void, on a petition presented by either party to such a marriage. Further, the persons contravening the provisions of this clause are also liable to be imprisoned or fined (or both) under Section 18(b) of the Act.

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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 third condition prescribed in the section. i.e. marriageable age.

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(iii) of the Hindu Marriage Act, 1955:

The bridegroom should have completed the age of 21 years and the bride the age of 18 years, at the time of marriage:

Under the ancient Hindu Law, no minimum age limits were prescribed for a Hindu marriage. There is an injunction for men that they should marry on the completion of the Brahmacharya Ashram i.e., Study of the Vedas. According to Griha Sutras, the minimum age for the marriage of a girl was 8 years.

Under Section 5(iii) of the Hindu Marriage Act, 1955, at the time of marriage, the age of bridegroom should be more than 21 years and that of the bride should be more than 18 years.

The violation of this clause does not make a marriage void or even voidable.

Child Marriage Restraint Act, 1929:

The Act of 1929 was passed by the efforts of Rai Saheb Harbilas Sarda for the object of checking the evil of the child marriage. Hence this Act is also known as ‘Sarda Act’. The aim of the Act was not to prohibit child marriage but to restrain from it. In this enactment, it was laid down that at the time of marriage, the bride must have completed 14 years and the bridegroom 18 years. Later on, by an amendment, the marriageable age of girls was raised to 15 years. A boy or a girl younger than this was declared a “child” and child marriage was made punishable. But according to this Act the child marriage performed was a valid marriage. The original Hindu Marriage Act 1955 did not differ from this state of law.

The Child Marriage Restraint (Amendment) Act, 1978 laid down that at the time of marriage, the bride must have completed 17 years and the bridegroom 21 years. Accordingly, the Hindu Marriage Act, 1955 and Child Marriage Restraint Act, 1929 was amended. This Amendment was not rendering child marriages void. But, it prescribed some penalties for those persons who are responsible for child marriages. The offences under the Act are not cognizable offences. This means that unless a complaint is filed, no proceedings can be launched in a court,

Prohibition of Child Marriage Act, 2006:

The Child Marriage Restraint Act, 929 Act was replaced by a new Act called the Prohibition of Child Marriage Act, 2006. According to that Act, the minimum age for the bride is 18 years at the time of marriage and for the bridegroom, it is 21 years.

Under Section 9 of the Prohibition of Child Marriage Act, 2006, whoever, being a male adult above 18 years of age, contracts a child marriage, shall be punishable with rigorous imprisonment which may extend to 2 years or with fine which may extend to one lakh rupees or with both.

Under Section 10 of the Prohibition of Child Marriage Act, 2006, whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he had reasons to believe that the marriage was not a child marriage.

Under Section 11(1) of the Prohibition of Child Marriage Act, 2006, here a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful including any member of an organization or association of persons who does any act to promote the marriage, or permits it to be solemnized or negligently fails to prevent it from being solemnized, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to 2 years or with fine which may extend to one lakh rupees. Provided that no woman shall be punishable with imprisonment.

Under Section 11(2) of the Prohibition of Child Marriage Act, 2006, for the purpose of this Section, it shall be presumed, unless and until the contrary is proved that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnized.

Under Section 12 of the Prohibition of Child Marriage Act, 2006, where a child, being a minor 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, such marriage shall be null be void.

Under Section 3(1) of the Prohibition of Child Marriage Act, 2006,  every child marriage whether solemnized 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.

Under Section 3(2) of the Prohibition of Child Marriage Act, 2006, if at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the child marriage prohibition officer.

Under the Hindu Marriage Act, 1955, a marriage solemnized in contravention of the conditions prescribed for a valid marriage was treated as valid. By invoking the doctrine of Factum Valet, validity was given to child marriages. Later, the Marriage Laws (Amendment) Act, 1976 through 13 (2) (iv), provided relief to a Hindu wife if her marriage was solemnized before attaining 15 years, can repudiate after attaining 15 years and before attaining 18 years. Now the Prohibition of Child Marriage Act, 2006 made a child marriage, voidable.

Under Section 3(3) of the Prohibition of Child Marriage Act, 2006, the petition under this Section may be filed at any time but before the child completes 2 years of attaining majority.

Under Section 14 of the Prohibition of Child Marriage Act, 2006,  any child marriage solemnized in contravention of an injunction order issued prohibiting such marriage, shall be ‘void ab initio’.

Under Section 15 of the Prohibition of Child Marriage Act, 2006, notwithstanding anything contained in the Code of Criminal Procedure 1973, offences punishable under this Act shall be cognizable and non-bailable.

Under Section 13(2) (iv) of The Hindu Marriage Act, 1955, according to the Marriage Laws (Amendment) Act,1976 where the marriage of a girl (whether consummated or not) solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years, the girl can obtain a decree for dissolution of marriage. This is an additional ground made available to a wife. This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.

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