Section 5: Conditions for a Hindu marriage

Hindu Marriage Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1955

Legal Commentary & Landmark Judgments: Section 5

Section 5 of the Hindu Marriage Act, 1955 establishes the essential statutory conditions for solemnizing a valid Hindu marriage, enacting mandatory requirements of monogamy, mental capacity, statutory age of marriage, and degrees of prohibited and sapinda relationships.

  • Rule of Absolute Monogamy: Mandates that neither party have a spouse living at the time of the marriage, rendering any bigamous marriage void ab initio under Section 11.
  • Mental Capacity and Free Consent: Requires that neither party is incapable of giving valid consent due to unsoundness of mind, mental disorder making them unfit for procreation, or recurrent insanity.
  • Statutory Age and Prohibited Degrees: Prescribes that the bridegroom must have completed twenty-one years and the bride eighteen years, and parties must not be within prohibited degrees or sapindas unless custom allows.
Key Landmark Precedents:
  • Bhaurao Shankar Lokhande v. State of Maharashtra AIR 1965 SC 1564: Constitution Bench held that solemnization of marriage according to essential customary ceremonies is an indispensable prerequisite for establishing bigamy under Section 5(i).
  • Lilly Kutty v. Lawrance (2003) 8 SCC 340: Supreme Court affirmed that a second marriage solemnized during the subsistence of an earlier valid marriage is null and void under Section 11 read with Section 5(i).
  • Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988) 1 SCC 530: Supreme Court held that a marriage in violation of Section 5(i) is a nullity and the second wife cannot claim maintenance as a legally wedded wife under Section 125 CrPC.
Courtroom Practice & Strategic Litigation Guidance:

In matrimonial proceedings, challenge the validity of a marriage violating Section 5(i) by filing a petition for nullity under Section 11; children of such marriages remain legitimate under Section 16 and retain inheritance rights.