2.1.

4 Grounds of Void & Voidable Marriage

Void and Voidable Marriages under Hindu Marriage Act, 1955

Table of Contents
 Introduction
 Types of Marriage
o Valid Marriage
o Nullity of Marriage
o Provision of Void and Voidable Marriages under Hindu Marriage Act, 1955
 Void Marriages (Section 11)
 Consequences of a Void Marriage
 Voidable Marriages (Section 12)
 Difference between Void and Voidable Marriage
 Legitimacy of Children under Void and Voidable Marriages
 Conclusion
 References

Introduction
The concept of marriage is to form a relationship between husband and wife.
Marriage is a religious tie which cannot be broken. According to Section 5 of
Hindu Marriage Act, 1955 it was accepted that a Hindu Marriage was a religious
ceremony and also a Sanskara (performed as a purification rite). It was also
established that every and any Hindu could marry. The exceptions to this are the
ones prohibition which is on the basis of caste, gotra, religion and blood
relationship. Such prohibition is based on some rules which are endogamy (where
a man cannot marry a woman, who is of his relation) and exogamy (a man cannot
marry a woman who belongs to another tribe). Endogamy and Exogamy are illegal
in the view of Hindu Marriage Act, 1955.

According to ancient writers, a man was incomplete without a wife. The concept of
marriage was to enable a man and a woman to perform religious duties.

Types of Marriage

1
There are three types of marriage-

 Valid Marriage
 Void Marriage
 Voidable Marriage

Valid Marriage

Section 5 of the Hindu Marriage Act,1955 states the conditions for a valid
marriage. A marriage can be said valid, if it fulfils following conditions:

 None of these parties have spouses living at the time of the marriage.
 During the time of the marriage, neither party should be-

1. Incapable of giving valid consent due to the unsoundness of mind.

2. Suffering from mental disorder to an extent as to be unfit for marriage
and procreation of children.
3. Subjected to repeated attacks of insanity.

 Age- The bridegroom must be 21 years or above and the bride must be 18
years or above.
 The parties are not in a degree of prohibited relationship.
 Parties are not sapindas (blood relation) to each other.

Nullity of Marriage

If there are any impediments (obstructions), then the parties cannot marry each
other. If someone marries and there are any obstructions in the marriage process
then it is not a valid marriage. Impediments are divided into two types which are:
absolute impediments and relative impediments.

In absolute impediments, a fact that disqualifies a person from lawful marriage

exists and the marriage is void i.e an invalid marriage from the beginning.

2
In relative impediments, an impediment that forbids marriage with a certain person
exists and the marriage is voidable i.e one party can avoid the marriage. These
impediments gave rise to the classification of marriage which are:

 Void Marriages
 Voidable Marriages

Provision of Void and Voidable Marriages under Hindu Marriage Act, 1955

Void Marriages (Section 11)

A marriage is considered void under the Hindu Marriage Act if it doesn’t fulfils the
following conditions of Section 5 of the Hindu Marriage Act:

 Bigamy
If any of the parties have another spouse living at the time of marriage. It shall be
considered as null and void.

Illustration: there are three parties ‘A’,’B’ and ‘C’ where ‘A’ has a living spouse
‘B’, but he again marries to ‘C’ then this will be called as bigamy and it will be
void.

 Prohibited Degree
If the parties are within a prohibited relationship unless the customs allows it.

Illustration: there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is
his wife. They both went on a relationship which is prohibited by law. This
marriage can also be called void marriage.

 Sapindas
A marriage between the parties who are sapindas or in other words a marriage
between the parties who are of his or her relations or of the same family.

Illustration: there are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is
the wife, who has blood relation or close relation to A which can also be termed as
Sapinda. So, this process will be treated as void.
3
Consequences of a Void Marriage

The consequences of void marriage are:

 The parties don’t have the position of husband and wife in a void
marriage.
 Childrens are called legitimate in a void marriage (Section 16 of Hindu
Marriage Act, 1955).
 Mutual rights and obligations are not present in a void marriage.

Voidable Marriages (Section 12)

A marriage is voidable on either side of the party is known as voidable marriage. It

will be valid unless the petition for invalidating the marriage is made. This
marriage is to be declared void by a competent court under the Hindu Marriage
Act, 1955. The parties of such marriage have to decide whether they want to go
with such marriage or make it invalid.

The grounds where marriage can be termed as voidable:

 The party to the marriage is not capable of giving consent due to the
unsoundness of mind. Illustration: There are two parties ‘A’ and ‘B’,
where ‘A’ is the husband and ‘B’ is his wife. ‘B’ gave the consent of the
marriage when she was suffering from an unsound mind. After some
years, ‘B’ gets cured and raised that her consent was invalid and this
marriage is voidable because during the time of the consent of ‘B’, she
was in an unsound mind. So, this a ground of voidable marriage.

 The party is suffering from mental disorder which makes her unfit for
reproduction of children. Illustration: There are two parties ‘A’ and ‘B’,
where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is suffering from
mental disorder due to which she is unfit for reproduction of children.
Then this can be a ground for voidable marriage.

 If the party has been suffering from repeated attacks of

insanity. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the
husband and ‘B’ is his wife. Anyone from ‘A’ or ‘B’ is suffering from

4
 repeated attacks of insanity, then this can also be a ground for voidable
marriage.

 The consent of marriage by either of the parties is done by force or by

fraud. Illustration: There are two parties ‘A’ and ‘B’ where A is the
husband and B is his wife. If either party gave consent to the marriage by
force or fraud, then it will be a voidable marriage.

 If either of the parties are under-aged, bridegroom under 21 years of age

and bride under 18 years of age. Illustration: There are two parties ‘A’
and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is under the
age of 18 years then this marriage will be considered as voidable or if A
is under the age of 21 years then it can also be considered as voidable
marriage.

 If the respondent is pregnant with a child of someone other than the

bridegroom while marrying. Illustration: There are two parties ‘A’ and
‘B’ where ‘A’ is the husband and ‘B’ is his wife. During the time of the
marriage if ‘B’ is pregnant through another person. Then the marriage
would be voidable.
Necessary conditions to be fulfilled by a petition under Section 12 for nullity
of a Voidable Marriage

1. On the plea of fraud or application of force on marriage, a petition can be

filed before the court within one year of discovery of such fraud or
application of force.
2. The allegation based upon which the petition is filed was beyond the
knowledge of the petitioner at the time of solemnization of marriage.
3. The petition on such an allegation must be presented in the court within
one year of knowledge of such facts.
4. No sexual relationship is established after knowing about alleged facts.

Difference between Void and Voidable Marriage

Void Marriage Voidable Marriage

A wife does not have the A wife has the right to claim maintenance in the

5
 right to claim maintenance
voidable marriage.
in the void marriage.

In a void marriage, the

Husband and wife have the status in the voidable
parties do not have the
marriage.
status of husband and wife.

In a void marriage, no
decree of nullity is In a voidable marriage decree of nullity is required.
required.

A void marriage is none in A void marriage is to be declared void by a competent

the eyes of law. court.

The children in a voidable marriage are treated as

The children in a void
illegitimate but this distinction is deleted by the Supreme
marriage are treated as
Court and said a child cannot be said termed as
legitimate.
illegitimate.

Legitimacy of Children under Void and Voidable Marriages

 Legitimacy of children under void and voidable marriages are specified

under Section 16 of Hindu Marriage Act, 1955.
 In a void marriage, any children born out shall be treated as legitimate.
 In a voidable marriage, any child born of a marital relationship
subsequently declared as nullity by court shall also be termed as
legitimate.
 Even if the marriage under Section 11(void marriage) or Section 12
which is declared as null and void, notwithstanding such circumstances
the child born out of such marriage is held to be legitimate.
 If prior to the marriage, the bride was pregnant and gave birth to the child
after the marriage, such a child cannot be treated as legitimate because
that child was not born out of the marital relationship of the present
marriage and therefore, the child born after the marriage having been
conceived prior to the marriage is to be held illegitimate. Illustration: If

6
 there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his
wife. During the time of the marriage ‘B’ is pregnant through another.
After the marriage of ‘A’ and ‘B’, the child born does not come from the
marital relationship of ‘A’ and ‘B’. That child will be termed as
illegitimate.

Conclusion
Prior to the Hindu Marriage Act, 1955 the parties to the marriage had no remedy to
get out of the marriage. Section 11 and Section 12 of Hindu Marriage Act, 1955 is
a remedy for the parties, who are in a void and voidable marriage. After the
enactment of the Amendment Act, 1976 the child born out of void and voidable
marriage shall be termed as legitimate. There are certain grounds for valid
marriage under Section 5 of the Hindu Marriage Act,1955, if someone violates it
then it amounts to void marriage or voidable marriage.