VOID AND VOIDABLE MARRIAGES

Nullity of marriage - (void)

• relates to the pre-marriage impediments to marriage.

• If impediments exist, parties cannot marry each other.
• If they still marry, their marriage may not be valid.
• Depending upon the impediments, certain party to the marriage will have the option to
nullify the marriage or continue with it. In case they opt the former, then the status of
the parties would be deemed as if they were never married.

Two types of impediments/bar on marriage - 1. Absolute bar 2. Relative bar

Void marriage –
Section 11 of The Hindu Marriage Act 1955.

- Any marriage solemnized after the commencement of this Act shall be null and void and, on
a petition presented by either party, be so declared by a decree of nullity if it contravenes any
one of the conditions specified in clauses (i), (iv) and (v), Section 5.

Section 5

Condition for a Hindu Marriage.- A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely:

(i) no spouse living at the time of the marriage with either party.
Here, the expression ‘spouse’ is used meaning a lawfully married husband or wife. –
Parkash Chander v Parmeshwari AIR 1987

(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;
Shakuntala Devi v Amar Nath AIR 1982

(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;
It is observed in the case of Arun Navalkar v Meena Navalkar AIR 2006 that, ‘when
sapindaship is a specific ground for violability of marriage, the absence of a custom
permitting such a marriage will make the marriage void.’

Void marriages in other Acts –

• Special Marriage Act- Section 4 read with S. 24
• Christian Law: Section 18 & 19 of Indian Divorce Act
• Muslim Law: Sahih, Batil, Fasid

Voidable marriage –
• If one of the parties does not petition for annulment of marriage, the marriage will
remain valid.
• If one of the parties dies before the marriage is annulled, no one can challenge the
marriage. The marriage will remain valid for ever.
 • Once a voidable marriage is annulled the decree is given retrospective effect, from
the date of the marriage. The marriage is deemed to have been void and parties are
deemed to have never been husband and wife.

Extra questions -
Q. What will be the status of the children born out of such marriages? Will they be deemed
as illegitimate after annulment of the marriage?
Q. What is the doctrine of Chruch? Has the Indian laws adopted this doctrine?

Section 12 of HMA, 1955

12. Voidable Marriages.-(1) may be annulled by a decree of nullity on any of the
following grounds, namely:-

(a impotency of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of
Section 5.

(c) that the consent of the petitioner, was required under Section 5, the consent of such
guardian was obtained by force or by fraud or as to any material fact or circumstance
concerning the respondent.

(d) respondent was at the time of the marriage pregnant by some person.

2) Notwithstanding anything contained in sub-section (1), no petition for annulling a

marriage-

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-

(i) the petition is presented more than one year after the force had ceased to operate or,
the fraud had been discovered.

(ii) the petitioner has, with his or her full consent, lived with the other party to the
marriage as husband or wife after the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless
the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged.

(ii) that proceedings have been instituted in the case of a marriage solemnized before
the commencement of this Act within one year of such commencement and in the case
of marriages solemnized after such commencement within one year from the date of the
marriage.

(iii) that marital intercourse with the consent of the petitioner has not taken place since
the discovery by the petitioner of the existence of the said ground.

Summary of grounds:
• Impotency
• Insanity
• Force & Fraud
• Pregnancy at the time of marriage
Impotency –
• At the time of consummation of marriage.
• Should not be occasional impotency
• If curable then it does not amount to impotency unless husband says no for getting it
cured
• Mere bareness or sterility will not amount to impotency-if wife is capable of having
intercourse
• Bop (burden of proof) solely lies on petitioner
• Evidence of doctor assumes great significance
• Provision for maintenance of wife in such cases is available under crpc.
• Where the fact of impotency was suppressed- other can also claim damage for
mental agony and cheating.

Who can file a petition?

• Only parties to the marriage
• In case one party dies before passing of decree of nullity in case of voidable
marriages-then that marriage remains valid in the eyes of law and case will be
dismissed
• Can anyone else file or follow up the case on behalf of deceased spouse- No
• If one of the spouse marries another person during pendency of a suit of voidable
marriage-He/she is liable for bigamy.

Mental Capacity As a Ground for Voidable Marriage -

• In Shastric Hindu law the insanity was not treated as the ground of invalidity of the
marriage.
• Modem Hindu law section-5 of the Hindu marriage Act 1955, prescribes various
conditions of a valid marriage, including the soundness of the mind.
• The section states that Lunacy or idiocy to be a ground for decree of nullity must
exist at the time of the solemnization of marriage.
• Subsequent lunacy or idiocy will not be effective for getting nullity.
What is the difference between idiocy, lunacy, and unsoundness of mind?
• Bhagwati Saran v. Parameshwari
• Mauji Lai v. Chandrabati:
A.S. Mehta v. Vasumati:

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(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.

Pregnancy of the Respondent –

(a) respondent was pregnant at the time of the marriage.
(b) she was pregnant from a person other than the petitioner
(c) petitioner at the time of the marriage did not know that the respondent was pregnant.
(d) The petition must be presented in respect of pre-Act marriages, within one year of the
commencement of the Act, and in respect of the post-Act marriages within one year of the
solemnization of marriage.
(e) The petitioner did not have marital intercourse with his pregnant wife after the discovery
of her pregnancy. A decree can be passed only when all these conditions are fulfilled.

Legitimacy of children of void and voidable marriage –

• Section 16 of the Hindu Marriage Act lays down of the legitimacy of children of void
and voidable marriage.
• 1) not seeing whether marriage is null and void under section 11, any child should be
legitimate, whether the marriage is held to be void.
• (2) any child begotten or conceived before decree for annulment will also be treated
as legitimate.
• (3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as
conferring upon any child of a marriage which is null and void or which is annulled by
a decree of nullity under section 12, any rights in or to the property of any person,
other than the parents, in any case where, but for the passing of this Act, such child
would have been incapable of possessing or acquiring any such rights by reason of
his not being the legitimate child of his parents

Voidable Marriage Under SMA –

• The marriage has not been consummated owing to the wilful refusal of the
respondent to consummate the marriage; or
• The respondent was at the time of the marriage pregnant by some person other
than the petitioner; or
• the consent of either party to the marriage was obtained by coercion or fraud, as
defined, in the Indian contract Act 1872 provided that, in the case specified in clause
(ii) the court shall not grant a decree unless it is satisfied-
(a) that the petitioner was at the time of the marriage ignorant of the facts alleged.
(b) that proceeding were instituted within a year from the date of the marriage.
(c) that marital intercourse with the consent of the petitioner has not taken place since the
discovery by the petitioner of the existence of the grounds for a decree.
• Provided further that in the case specified in clause (iii), the court shall not grant a
decree if-
(a) proceedings have not been instituted within one year after the coercion had ceased or,
the fraud had been discovered.
(b) the petitioner has with his or her free consent lived with the other party to the marriage
as husband and wife after the coercion had ceased or the fraud had been discovered.

Indian Divorce Act, 1869 –

• Section 19 Grounds of decree: - Such decree may be made on any of the following
grounds.
(i) respondent was impotent
(ii) parties are within the prohibited degree of consanguinity (whether natural or
legal) or affinity.
(iii) either party was a lunatic or idiot at the time of the marriage.
 (iv) that the former husband or wife of either party was living at the time of the
marriage.

DIFFERENCE BETWEEN VOID AND VOIDABLE MARRIAGES –