In the context of Non Resident Indians (NRI), it is pertinent to note that Section 5 of the Hindu Marriage Act, 1955 lays down a fundamental requirement for solemnization of marriage between two Hindus. This provision stipulates that neither party should have a spouse living at the time of marriage.
It is important to highlight that this provision applies not only to NRIs who are Hindus and wish to get married in India but also extends its ambit to those who seek solemnization through Indian courts abroad.
This statutory requirement assumes significance as it aims to ensure that marriages are entered into with due regard for legality and propriety. The prohibition against contracting multiple marriages simultaneously serves a vital societal interest by safeguarding the rights of spouses and promoting monogamy in matrimonial relationships.
In light of these legal considerations, it becomes imperative for NRIs seeking matrimony under Hindu law to comply with Section 5 of the Hindu Marriage Act, failing which their marriages may be rendered null and void on scrutiny by competent authorities.
Several judicial pronouncements have reinforced this position. In Smt Kusum Sharma v Mahinder Kumar Sharma (2010)1 SCC 276, the Supreme Court held that failure to disclose previous marital status renders a subsequent marriage invalid. Similarly, in Ravi Kumar vs Juluri Gowri Naga Venkata Satya Lakshmi & Ors (2019) SCC OnLine Hyd 2688, it was observed that any misrepresentation or concealment regarding concurrent subsistence of prior marriage would amount to fraud upon parties entering into subsequent nuptials.
Further, the applicability of this provision has been upheld across jurisdictions including foreign countries where Indian citizens avail services from local administrative bodies under §10 Civil Marriages Ordinance 1962(Bangladesh), s11(14)(b) Special Marriage Act(Canada), etc. in view of public policy considerations underlying such requirements.
In conclusion, it can be inferred that Section 5 of the Hindu Marriage Act, 1955 is an essential prerequisite to solemnization of marriage between Hindus. NRIs who wish to enter into matrimonial alliances must ensure compliance with this statutory provision and disclose any previous marriages in keeping with the principles of transparency and good faith enshrined therein.”