Condition iii of Section 5 of the Hindu Marriage Act makes a clause that the bridegroom should have completed 21 years at the time of marriage and a bride, 18 years. ``However, the marriage cannot be declared or cannot be considered to be a void marriage under section 11 of the Hindu Marriage Act for non-fulfilment of these conditions,'' Justice D G Deshpande held in a verdict delivered on June 10. Condition iii of section 5, is ``not a cause giving reason for marriage being null and void'', he added.

While holding this, the court set aside two orders passed by the lower courts refusing maintenance to a woman from Sholapur who had been married for around 20 to 25 years and who had asked for a maintenance of Rs 400 from her husband. Then, Justice Deshpande had directed that the woman wouldhave to be paid maintenance by her husband.

Sakhubai Narayan Khatkale had filed a petition challenging the lower courts orders - one by the magistrate and the other by the sessions court, Pandharpur where her husband, Narayan Khatkale had declared that since they were minors at the time of marriage - he was 10, she 5 - their marriage was illegal. This, he claimed, breached condition iii of section 5 and hence, he was not liable to pay maintenance. The magistrate had then rejected her application and held that their marriage was null and void. The sessions judge, Pandharpur had also rejected the petition on similar grounds.

Justice Deshpande outrightly rejected the magistrate's finding, and held that the magistrate's ruling was without any support from law and had to be set aside. He added that section 11, wherein you can apply for a declaration of your marriage being null and void, was specific that conditions i, iv and v (condition i says that neither party should have a living spouse, sections iv and vdeal with marriages between the prohibited degrees of relationships) of section 5 need to be breached and not condition iii as cited in this case.

In this case, the trial court had also ruled that the marriage was within ``degrees of prohibited relationships'' as contemplated under section 5 of the Hindu Marriage Act. Justice Deshpande however held that these conclusions were made by the magistrate even though there were no pleadings made in this regard. It was made apparently on some admission by the petitioner that the trial court had held that she was the daughter of a paternal aunt of the respondent and came to the conclusion that their marriage breached the conditions iv and v of section 5. The high court held that the trial courts had made an error in delivering their judgement.

The high court also held that the two parties had lived together for 20 to 25 years and even had an issue. In such a case, if the husband wanted to deny the marriage, it was ``necessary to approach the civil court to declarethe marriage null and void through a separate petition under section 11''.

Interpreting clause iv of section 5, the high court also held that the clause does not totally bar such marriages between degrees of ``prohibited relationships'' and such a marriage is permitted if the custom or usage governing each of the parties permits them such marriages.