Hindu Marriage Act, 1955 | Section 5

Section 5 of the Hindu Marriage Act, 1955: Conditions for a Hindu Marriage

Section 5 sets out five statutory conditions for solemnising a Hindu marriage, covering an existing spouse, mental capacity, minimum age, prohibited relationships and sapinda relationships.

Scope: These conditions apply to marriages between persons to whom the Hindu Marriage Act applies. Section 2 determines the Act's application; Section 7 separately governs solemnisation through customary ceremonies.

Section 5 - Conditions for a Hindu marriage

The provision states that a marriage may be solemnised between any two Hindus if the following conditions are fulfilled:

Clause (i) - No living spouse

Neither party has a spouse living at the time of the marriage.

Clause (ii) - Mental capacity at the time of marriage

Neither party:

(a) is incapable of giving valid consent because of unsoundness of mind; or
(b) although capable of giving 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.

Clause (iii) - Minimum age

The bridegroom has completed 21 years and the bride has completed 18 years at the time of marriage.

Clause (iv) - Prohibited relationship

The parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits their marriage.

Clause (v) - Sapinda relationship

The parties are not sapindas of each other, unless the custom or usage governing each of them permits their marriage.

Meaning and practical application

Existing marriage and monogamy

Clause (i) requires that neither party have a living spouse from an existing, subsisting marriage. A marriage solemnised in breach of this condition is void under Section 11, subject to the statutory requirements. Section 17 addresses bigamous marriages and their penal consequences under applicable criminal law.

Mental capacity and consent

Clause (ii) contains three distinct statutory tests. A diagnosis or disability alone should not be treated as automatically invalidating a marriage: the facts must meet the wording of the applicable clause. Contravention of clause (ii) can provide a ground for voidability under Section 12(1)(b), rather than automatic nullity.

Marriageable age

The prescribed ages remain 21 for the bridegroom and 18 for the bride. The Prohibition of Child Marriage Act, 2006 also regulates child marriage and provides specific remedies and penalties. An underage marriage is not automatically void in every case merely because clause (iii) was breached; the legal effect depends on the applicable statutory provisions and facts.

Prohibited degrees and sapinda relationship

Section 3 defines prohibited degrees and sapinda relationships. The sapinda limits extend to the third generation through the mother and fifth through the father, counting the person concerned as the first generation. A qualifying custom or usage governing each party may permit a marriage otherwise barred by clauses (iv) or (v). The statutory meaning of custom and usage requires long, continuous and uniform observance, certainty, and consistency with public policy.

Consequences of non-compliance

Clauses (i), (iv) and (v): Section 11 provides for nullity of marriages solemnised in contravention of these conditions.
Clause (ii): Section 12(1)(b) provides a ground for a decree of nullity in respect of a voidable marriage.
Clause (iii): Section 18 provides penalties for contravention of the age condition, while the Prohibition of Child Marriage Act, 2006 may provide additional or overriding consequences depending on the circumstances.
Ceremonies: Compliance with Section 5 alone does not dispense with the solemnisation requirements of Section 7.

Important legislative amendments

The Marriage Laws (Amendment) Act, 1976 substituted clause (ii), effective 27 May 1976. The Marriage Laws (Amendment) Act, 1999 removed the reference to epilepsy, effective 29 December 1999. The Child Marriage Restraint (Amendment) Act, 1978 raised the minimum ages to 21 and 18 years and omitted the former clause (vi), effective 1 October 1978.

The former age and medical references in historical versions of the Act should not be mistaken for current statutory requirements.

Official legal sources

Hindu Marriage Act, 1955 - official India Code PDF | India Code - central legislation portal.

This article explains the statutory framework for general information. The outcome of an individual dispute depends on the law applicable to the facts and relevant judicial decisions.