Practice Area

VOID AND VOIDABLE MARRIAGES

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Hindu Marriage Act introduced various concepts of void, voidable and dissoluble marriage

There are two types of impediments  or bars to a marriage: Absolute and Relative.

If absolute bar exists, a marriage is void, while if relative bar exists, a marriage is voidable.

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VOID MARRIAGES

Section 11 Hindu Marriage Act, 1955 deals with void marriages.

A void marriage is no marriage. It is void ab initio, i.e. does not exist from its very beginning. It is called a marriage because two persons have undergone the ceremonies of marriage, but as they absolutely lack the capacity to marry her they cannot become husband and wife. It can neither be approbated nor can it be  ratified.

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Section 11 in The Hindu Marriage Act, 1955

11 Void marriages. —Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 11 [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in

section 5 (i) that at the time of marriage, either party has a spouse living.

section 5 (iv) the parties are sapindas to each other

section 5 (v) the parties are within the prohibited degrees of relationship

section 11 essential ceremonies of marriage are not performed as mentioned in section 11.

 

It is noted that a wife of void marriage cannot claim maintenance under section 125 of Criminal Procedure Code.

M.M. MALHOTRA VS UNION OF INDIA

AIR 2006 SC 80

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It was held that marriage covered under section 11 are void ipso jure, i.e. void from the very inception and have to be ignored as not existing in law at all and when such a question arises. Although section 11 permits a formal declaration to be made on the presentation of the petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding commenced for the purpose.

 

VOIDABLE MARRIAGES

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A voidable marriage is a perfectly valid marriage so long as it is not avoided. It remains valid and binding, and continues to subsist for all purposes unless a decree annuls it. Thus, 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.

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The parties to a voidable marriage cannot perform another marriage without the first getting a decree declaring their first marriage as void, otherwise they will be guilt of bigamy.

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Once a voidable marriage is annulled the decree is given retrospective effect from the “date of marriage”. The marriage is deemed to have been void for all purposes from its inception and parties are deemed to have never been husband and wife but the children will deem to be legitimate subjection to Section 16 of Hindu Marriage Act

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It is noted that a wife of voidable marriage can claim maintenance under section 125 of Criminal Procedure Code.

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Section 12 in The Hindu Marriage Act, 1955

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12 Voidable marriages .—

(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:—

12 [(a) that the marriage has not been consummated owing to the impotence of the respondent; or]

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 13 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force 14 [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(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, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, 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 solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 15 [the said ground].

(i) Non-disclosure of age and factum of having major children by husband at the time of marriage amounts to fraud and suppression of material facts having bearing on marriage.

(ii) Misrepresentation as to the age of the bridegroom made to the mother who acted as an agent and the daughter consented for the marriage believing the statement to be true.

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Marriage founded on fraud from very inception is a nullity; Sunder Lal Soni v. Smt. Namita Jain, AIR 2006 MP 51.

 

It was held that the consent was vitiated by fraud; Babui Panmate v. Ram Agya Singh, AIR 1968 Pat 190.