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 It was only when a wife was barren, diseased, or vicious, that could be superseded and a second marriage was valid; as also when she consented.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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Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Conditions for Valid Hindu Marriage: Monogamy

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Though the sacramental aspects of Hindu marriage still tend to persist, the passing of the Hindu Marriage Act, in 1955, has substantially modified the institution of marriage as recognized by the ancient Hindu law. Transformations have been marked in respect of restrictions in marriage, selection of mates, marriage rites and rituals, age at marriage, the aim of marriage, parental control in marriage, settlement, the stability of marriage, the practice of dowry, etc. The Most Important Changes brought about by the Hindu Marriage Act are mentioned below:

• A Hindu marriage is now not so much concerned with religion. It is more a result of mutual consent than sacramental. It is a contract [Sections 5(ii), (iii), 11 to 13 and 7].
• Section 2 of the Act defined the term “Hindu” and as per this Section, the Act has declared that marriages amongst Hindus, Jains, Sikhs, and Buddhists, are valid Hindu marriages in the eyes of the law. (Section 2.)
• The Act has abolished the divergence between the Mitakshara and the Dayabhaga Schools in connection with the prohibited degrees of relationship for the purposes of a Hindu marriage. (Section 3.)
• The Act has declared polygamy to be illegal. The law provides that no one can marry a second time while the former spouse is alive. Any marriage during the lifetime of a living spouse, wife or husband, has been declared null and void. Thus the Act introduces monogamy for the first time amongst the Hindus and provides for punishment for bigamy under the Indian Penal Code. (Sections 5 and 17.)  This has brought to an end the age-old practice of marrying several women in order to get a son. Bigamy has been made punishable under Section 17 as an offence under the Indian Penal Code, 1860, Sections 494 and 495.
• The Act abolishes the distinction between the marriage of a maiden and that of a widow. Previously the Hindu widows were not allowed to contract a second marriage. Rather the practice of ‘Sati’ was followed. Now the practice of sati has been abolished with the enactment of the law. The Hindu Widow Remarriage Act, 1950 has made provision for remarriage of widows.
• The Act also prescribes the minimum age for marriage, being 21 in the case of a boy, and 18 in the case of a girl. (Section 5.) Ancient Hindu law did not prescribe any such age for marriage. Thus the Hindu Marriage Act, 1955, The Child Marriage Restraint (Amendment) Act, 1978 and Prohibition of Child Marriage Act, 2006, have helped in the reduction of child marriages.
• The Hindu Marriage Act, 1955 has not prescribed any particular form of the eight ancient forms of Hindu marriage. It simply lays down the conditions for a valid marriage. The Act calls marriages solemnized under the Act as Hindu marriages which may be performed in accordance with the customary ceremonies prevalent in the community to which, the bride belongs. (Section 5.)
• Conditions for a valid Hindu marriage have been codified under Section 5 and ceremonies for marriage have been rationalized to suit a diversity of customs, at the same time excluding any whimsical ceremonies not authorized either by a prolonged usage or custom of the marrying parties. These rites and rituals envisaged the Hindu marriage as a religious sacrament, which included Vivah Homa, saptapadi, panigrahana, kanyadana, pradakshina, etc. The Act does not prescribe any particular ceremony for a valid Hindu marriage. It simply lays down the conditions for a valid marriage. The Act calls marriages solemnized under the Act as Hindu marriages which may be performed in accordance with the customary ceremonies prevalent in the community to which, the bride belongs. (Sections 5 and 7.). The Civil Marriage Act of 1954 has made provision for marriages in civil courts. The Arya Samaj and other religious reform movements have made the marriage rituals simple and precise.
• The Act provides, for the first time, for the registration of Hindu marriages. (Section 8.)
• The Act also contains provisions for restitution of conjugal rights of the parties to a marriage. (Section 9.)
• Customarily the Hindu marriage was considered a religious sacrament and an indissoluble bond between the spouses for many births. But with the enactment of Act, the sacramental aspect of the Hindu marriage has been challenged. The Act also lays down grounds on which a judicial separation can be decreed by the Court. (Section 10.)
• The first sacramental characteristic of a Hindu marriage was that it is a permanent union and cannot be dissolved on any ground whatsoever. The Act lays down the grounds on which a divorce can be obtained by any of the parties to Hindu marriage. Further, the concept of divorce by mutual consent has also been introduced in the Act. (Sections 13, 13B and 14.).
• The Act also makes a provision for re-marriage, inasmuch as it provides that after a valid divorce, either party may marry again. (Section 15.)
• The Act also provides for maintenance pendente lite and for expenses of legal proceedings by either of the spouse having no source of income. (Section 24.)
• The Act also provides for permanent alimony and maintenance to by either of the spouse having no source of income. (Section 25.)
• The Act also makes provisions for the custody of children during the pendency of legal proceedings, as also after the passing of a decree. (Section 26.)
• The Act guarantees the security of any property presented at or about the time of marriage (Section 27).
• As a humanitarian gesture, legitimacy has been conferred on such children who are born of void or voidable marriage so as to enable them to inherit the property of their parents.
• The right for disposal of the property presented at or about the time of marriage, which may belong jointly to husband and wife, has also been conferred upon parties by this Act
• Section 18 (a) of the Hindu Marriage Act, 1955 has been modified to make the offence of child marriage a a cognizable and non-bailable offence punishable with rigorous imprisonment for 2 years and/or a fine of one lac rupees.

Social Changes:

Abolishment of Exogamic and Endogamy Principles:

The exogamic principle of Hindu marriage stipulated that one must select his life partner from outside his own groups such as the pinda or pravara or gotra, while the endogamy principle proclaimed that the Hindus are to select their mates inside their own caste group. Even recent time also we see that the violation of the principle of endogamy attracted punishment amounting to ostracizing, excommunication and even honour killing. The Hindu Marriage Act, 1955 has allowed sagotra and sapinda marriage. It has also allowed the cross-cousin marriage where it prevailed customarily. Inter-caste marriages are encouraged by social reformers and the legal system. Even inducements are given by the government for the practice of inter-caste marriage. 

Less Parental Control:

Previously the parents or other relatives were responsible for settling marriages. Their decision regarding the selection of mates was binding. But nowadays, in the wake of modernization, modern values and modern education boys and girls are inculcating individualism and liberalism. These factors helped them to take their own decisions. Hence in the present era, the parents and relatives seek their opinion in marriage.

Changing Social fabric:

The traditional criteria of caste, religion, family background and income are no more considered important in the selection of mates. The emphasis has shifted to the socio-economic status of the bridegroom’s family and his education and earning potential.

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