- Void Marriages
- Voidable Marriages
- Difference between Void and Voidable Marriages
- Legitimacy of Children
- Case Laws
A socially and religiously recognized union between a man and a woman that establishes certain rights and duties between them is called a marriage. The parties to the marriage i.e. the man and the woman are called husband and wife respectively. A marriage is often referred as a contract between the husband and wife to live together. In our nation, Marriage is a religious establishment which is essential for the development of our general public.
Marriage has been awarded a legal status under various personal laws i.e. Hindu Marriage Act, 1955, Parsi Marriage and Divorce Act, 1936, Indian Christian Marriage Act, 1872 and Special Marriage Act, 1954. Although, a marriage is considered as a sacred relationship but the complexities of the concept and development in the society gave birth to the concept of Nullity of Marriage.
When the court declares that a marriage between two people is not valid, the marriage is said to be nullified. The court has power to declare a marriage void or voidable under Section 11 and 12 respectively, of Hindu Marriage Act, 1955. A void marriage is the one which is considered as no marriage in the eyes of the court whereas voidable marriage is the one which can be declared invalid on petition by either party to such marriage.
Void Marriage (Section 11)
A marriage which has solemnized after the commencement of Hindu Marriage Act, 1955 is considered null and void if it fulfills the following conditions under Section 5 of the Act:
- a) Bigamy [Section 5(i)]: If any of the parties to a marriage has another spouse living at the time of marriage, it shall be considered null and void.
- b) Prohibited degree [Section 5(iv)]: A marriage between prohibited degree relations is void unless the customs and usages allow it.
- c) Sapindas [Section 5(v)]: A marriage between parties who are sapindas is void unless allowed by usages and customs.
*Sapinda relationship with reference to any person extends as far as the third generation in the line of ascent through the mother, and the fifth through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation. 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 with reference to each of them.
Voidable Marriage (Section 12)
A marriage that is voidable at the option of either party is known as voidable marriage i.e. it is a valid marriage until it is avoided on petition by either party to the marriage. A voidable marriage unless avoided has all legal consequences of a valid marriage and has same title under law as that of a valid marriage.
These marriages can be held voidable by the decree of nullity by the court under Section of Hindu Marriage Act, 1955. The parties to such marriage have to decide whether they want to continue with such marriage or want annulment of the same.
- The grounds on which a party can file a petition for nullity of marriage under this section are:
- a) The party to a marriage was incapable of giving consent due to unsoundness of mind.
- b) The party has been suffering from mental disorder which makes him/her unfit for procreation of children.
- c) The party has been having recurrent attacks of insanity.
- d) The consent of either of the party has been obtained by force or by fraud.
- e) The parties at the time of the marriage were under-aged i.e. bridegroom under 21 years of age and bride under 18 years of age.
- f) The respondent was pregnant with the child of a person other than the petitioner.
*The grounds are under Section 5 (ii) of Hindu Marriage Act, 1955.
- A petition under Section 12 for nullity of a voidable marriage shall not be maintained unless the following conditions are fulfilled:
1) The petition shall be filed within one year of practice of force and fraud and discovery of the same.
2) The petitioner, at the time of marriage, did not have knowledge of fact alleged in the petition.
3) The petition shall be filed within one year from the time when parties got the knowledge of fact alleged.
4) The parties had not been sexually involved with each other since the fact alleged has been discovered.
Difference between Void and Voidable Marriages
|Void Marriages||Voidable Marriages|
|1) It is void-ab-initio i.e. void from the very beginning.||1) It is voidable at the option of either party i.e. valid unless avoided by either party to the marriage.|
|2) A mere decree is passed as to nullity of marriage by the court.||2) The marriage is annulled by the decree of nullity by the court.|
|3) Parties are free to perform another marriage without getting a decree for nullity.||3) The parties cannot perform another marriage unless the marriage is annulled by decree of court.|
|4) A wife in a void marriage does not have a right to claim maintenance.||4) A wife in a voidable has a right to maintenance.|
|5) The parties do not have a status of husband and wife.||5) The parties have a status of husband and wife.|
Legitimacy of Children in Void and Voidable Marriages
Section 16 of the Hindu Marriage Act, 1955 has been amended by Marriage Laws (7Amendment) Act of 1976 which says that the children born, after or before the commencement of the Act, out of a void or voidable marriage is legitimate. In Parayan K. Amma v. K. Devi, the court held that for the purpose of bringing social reform, the amendment act has conferred the status of legitimacy on the children who, if not awarded the title of legitimate children, will be treated as bastards.
Though the children born out of a void or voidable marriage has been awarded the status of legitimacy but they have been given no birth right in the Hindu Joint Family Property and cannot claim any right in the coparcenary entities of the father. But they can inherit the property of their father under Section 8 of the Hindu Succession Act, 1956.
Yamunabai Anantrao Adhav v. Anantarao Shivram Adhav: In this case, it has been held that a marriage which is in contravention of section 11 of Hindu Marriage Act, 1955 shall be treated as null and void from the time of its inception.
Bassappa v. Sidhagangamma: It has been held by Karntaka High Court that a wife whose marriage has been declared null and void because it was in contravention to Section 5 (i), (iv) or (v) is not entitled to claim maintenance as she does not have a status of wife under Section 18 of Hindu Adoption and Maintenance Act, 1956.
Lila v. Laxman: It was held by Allahabad High court that a void marriage does not need a decree of nullity as it is no marriage in the eyes of law. A decree passed for void marriage is a mere declaration of nullity of marriage. The court only makes the fact clear that there was no marriage between the parties.
C.S. Rangabhattar v. C. Choodamani: The Andhra Pradesh High Court held that where a husband cohabits with the wife even when he is aware of the wife’s pregnancy at the time of marriage, he cannot file petition for decree of nullity of marriage.
Smt. Sariabai v. Komalsingh: It was held that petition after eight years of marriage is barred by statute of limitation and cannot be entertained.
Moina Khosla v. Amardeep Khosla: In this case, the husband was not capable of interacting much with females and failed to have sexual intercourse with wife. It was held that the wife was entitled to a decree of nullity of marriage.
Gayatri Bai v. Pradeep Kumar Chourasia: In this case, the High Court defined Impotency as practical impossibility to perform sexual intercourse completely and complete sexual penetration is an important ingredient for ordinary intercourse but the satisfaction obtained by the parties is irrelevant.
Dr. Shrikant Adya v. Smt. Anuradha: The Karnataka High Court held that if a husband is not able to lead a sexual life and has sexual weakness, it would amount to mental cruelty and the wife can file petition for nullity of marriage.
Prior to enactment of Hindu Marriage Act, 1955 the parties to a marriage had non remedy or recourse to get out of a marriage which is a burden of them. For the purposes of social reforms and due to the dynamic nature of society, the Act was enacted and the concept of Nullity of Marriage was engrossed while keeping in mind the religious sentiments. Now, Section 11 and 12 of the Act is a remedy for parties who are in a void or voidable marriage. Moreover, with the enactment of Amendment Act, 1976, the children born out of a voidable or void marriage are also awarded a title of legitimacy. Overall, the concepts discussed above leads to development of society.
 1996 SC
 Sarda Ram v. Durgabai, AIR 1987 Bom, 285
 AIR 1988 SC 644
 AIR 1991 M.P. 358
 AIR 1986 Del. 399
 1998 M.P.
 AIR 1980 Kant. 8