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Family Law HMA

Family law notes

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30 views3 pages

Family Law HMA

Family law notes

Uploaded by

hiranisharekhan
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Validity of a Marriage | 05 Oct 2023

Introduction

The law allows a person to file an action for the determination of the validity of his/ her
marriage.
The conditions for a valid marriage are provided under Section 5 of the Hindu
Marriage Act,1955 (HMA).
This section governs actions to nullify or affirm a marriage. These actions are brought
when one party is unsure whether a valid marriage exists or when one party denies the
existence of a valid marriage.
When it comes to the validity of a marriage, a marriage can either be valid, void, or
voidable.

Provisions of HMA

HMA aims to amend and codify the law relating to marriage among Hindus and has extra
territorial operation.
The act not only applies to Hindus residing withing India but also to those Hindus
residing outside India and are married according to the provisions contained by
HMA.
In Varindra Singh v. State of Rajasthan (2005), Rajasthan High Court held
that the registrar cannot refuse the registration under the Hindu Marriage Act
when the petitioners are Hindus residing in Canada, have entered into their
marriage in accordance with the Act's provisions.

Section 5 of HMA - Conditions for a Hindu marriage

A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled:
Neither party to the marriage
Should have a spouse living at the time of marriage.
Is incapable of consenting to the marriage due to unsoundness of mind.
Though capable of giving valid consent, has been suffering from a mental
disorder of such a kind or to such an extent as to be unfit for marriage and the
procreation of children.
Should be suffering from any mental disorders which make him/ her unfit for
marriage and the procreation of children.
Has been subject to recurrent attacks of insanity.
The bridegroom has completed the age of twenty-one years and the bride, the age
of eighteen years at the time of the marriage.
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.
The parties are not sapindas of each other, unless the custom or usage governing
each of them permits a marriage between the two.
Sapinda Relationship - Section 3 (f) (i) “sapinda relationship” with reference to any
person extends as far as the third generation (inclusive) in the line of ascent through the
mother, and the fifth (inclusive) in the line of ascent through the father, the line being
traced upwards in each case from the person concerned, who is to be counted as the first
generation;
(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of
the other within the limits of sapinda relationship, or if they have a common lineal
ascendant who is within the limits of sapinda relationship with reference to each of
them; A marriage is valid if it fulfills the conditions prescribed by Section 5, if any of
the above-mentioned conditions are not fulfilled then the marriage will either be
void, or voidable.
Prohibited Relationship – Section 3(g) degrees of prohibited relationship two persons
are said to be within the degrees of prohibited relationship —
(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other;
or
(iii) if one was the wife of the brother or of the father’s or mother’s brother or of the
grandfather’s or grandmother’s brother of the other; or
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children
of brother and sister or of two brothers or of two sisters.

Void Marriage

Section 11 of HMA enumerates the provision for Void Marriage as:


Any marriage solemnized after the commencement of this Act shall be null and
void and may, on a petition presented by either party thereto against the other party,
be so declared by a decree of nullity if it contravenes any one of the conditions
specified in clauses (i), (iv) and (v) of section 5.
Clause (i) neither party has a spouse living at the time of the marriage.
Clause (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.
Clause (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.

Case Law

Bhaurao v. State of Maharashtra (1965), the SC held that where the parties abandoned
certain essential practices to a marriage such a marriage cannot be considered a valid
marriage in the eyes of law. An offence of Bigamy cannot be made out in such case where
first marriage was valid.
A void marriage is considered as "no marriage". If a court declares that a marriage
between two parties is not valid, it is said to be nullified.
Since it is already a "no marriage", a decree of nullity is not necessary by the Court.
The children born out of such wedlock are considered legitimate by virtue of Section 16
of HMA.

Voidable Marriage

Section 12 of HMA envisages provision for voidable marriage as:


A voidable marriage is a valid marriage until it is avoided and it can only be done if
one of the parties to the marriage files a petition for the same.
However, in case, any of the parties do not file a petition for the annulment of the
marriage, it will remain valid.
The parties have the status of a husband and a wife and their children are
considered to be legitimate. All the other rights and obligations of the spouses
remain intact.
Clause (ii) of Section 5 of HMA if not complied with makes a marriage voidable.
Section 5 - (ii) at the time of the marriage, neither party —
(a) is incapable of giving a valid consent to it in consequence of unsoundness of
mind;
(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.
Section12 of the Hindu marriage Act further mentions following grounds on which
marriage can be declare as voidable:
If the marriage has not been consummated because of impotency of the respondent.
If either of the parties to the marriage is incapable of giving consent or has been
subject to recurrent attacks of insanity.
If the consent of the petitioner or the consent of the guardian of the petitioner has
been obtained by force or fraud.
If the respondent was pregnant before the marriage by some other person than the
petitioner.
The children born out of voidable wedlock are considered legitimate by virtue of Section
16 of HMA.

Case Law

In Som Dutt v. Raj Kumar (1986), in the present matter wife was senior to husband by 7 years,
the Punjab & Haryana High Court held that concealing such information amounted to fraud.

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