Void and Voidable Marriage under Hindu Marriage Act

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Nullity of marriage is a legal affirmation that marriage was not in presence. It alludes to the legitimacy of marriage as indicated by law. It implies that there was not a legitimate marriage performed between the parties.

Nullity of marriage is also known by the name of “Annulment of Marriage” [1]. As per Hindu Law nullity arises when marriage performed is not legally valid as per the grounds or conditions mentioned in Hindu Marriage Act, 1955.

Before dealing with Nullity of Marriage in detail, let us take a look at what the term marriage means.

Marriage is a blessed game plan embraced and perceived by society and religion, among man and lady who are called a couple individually. It is a strict ceremony some time alluded as agreement among man and lady to carry on with coexistence as a couple. The idea of blessed wedlock has given it strict consecrated status in religion.

In Hindus, as per the smrities, marriage is considered as an essential sanskar, that is, it is the duty or obligation of one to perform such act. Marriage was constant and fundamental spiritual and religious responsibility.

There was no concept of end of marriage or nullity of marriage under Hindu personal law, However, after passing of Hindu Marriage Act, 1955 there are sure grounds on which marriage will be pronounced null and void.

There are various conditions which are needed to be fulfilled or satisfied in order to consider the marriage as legal and valid. They are as follows:

  • As per Section – 2(3) of Hindu Marriage Act, both the parties performing marriage must be Hindus. If any of the party is a non-Hindu then this act of marriage will not prevail, instead other acts like Special Marriage Act will decide the validity of marriage.
  • Neither or none of the party should have a spouse living at the time of marriage, there ought to be monogamy. Spouse does not include divorced husband or wife.
  • [2]Section 5(i) prohibits polygamy or bigamy. [3]Section 11 of the act declares a bigamous marriage as void and Section 17 makes it a penal offence for both male and female Hindus under Indian Penal Code.
  • As per Section 5(ii), the parties to the marriage should be capable of giving valid consent at the time of marriage. In order to consider the consent as valid the parties to the marriage should be of sound mind. Neither party, though capable of giving a valid consent should be suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children.[4] Neither party should be suffering from recurrent attacks of insanity or epilepsy.
  •  As per Section 5(iii), the bridegroom should have attained the age of 21 and the bride should have attained the age of 18. Thus, child marriage is prohibited under this act. Though violation of this condition does not declares marriage as void or voidable. It implies that it is valid but it can attract penalties and can become a ground for repudiation or nullity of marriage.

Section 18 of the Hindu Marriage Act states that any person who procures marriage for himself or herself which is in contradiction of Section 5 (iii) shall be punished with imprisonment or fine or both. Under Child Marriage Restraint Act, 1929, a male who is above 25 years and marries a girl below 15 years of age is punishable with 3 months imprisonment and is also held liable to pay fine. The age of girl is also raised to 18 by the Child Marriage Restraint (amendment) Act, 1978.

  • Section 5(iv) states that the parties to marriage should not be within the prohibited degree of relationship, unless the customs or usages allows such marriage.

Section 3(g) of the Hindu Marriage Act explains the prohibited degree of relationship, if the persons are related to each other in any of the following manners it is considered under prohibited degree of relationship:

  1. If one is a lineal ascendant,
  2. If one was the wife or husband of a lineal ascendant or descendant of the other,
  3.  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,
  4. 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.

Section 11 of Hindu Marriage Act considers marriage performed in any of the above given conditions as void. It is also punishable under Section 18(b) of the Act.

  • The parties should not sapindas of each other as per Section 5(v) of Hindu Marriage Act.

Section 3(f) of the act explains sapinda relationship, [5]two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapindas relationship, or if they have a common lineal ascendant to each of them. “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. [6]

Now we have seen the conditions which makes clear or gives us an understanding about the conditions that are needed to be fulfilled in order to make the marriage legally valid.

Let us see the Void and voidable marriages under Hindu Law or Hindu Marriage Act.

Void Marriages under Hindu Marriage Act

Section 11 of the Hindu Marriage Act describes what void marriage is. It states that if the marriage contravenes any of the conditions given in clause (i), (iv) and (v) of Section 5, the marriage will be considered as null and void.  The conditions of the above mentioned three clauses are:

  • There should be no bigamy or polygamy.
  • The parties to the marriage should not be within prohibited degree of relationship unless the custom or usage governing each of them permits of a marriage between the two.
  • The parties are not sapindas to each other.

It must be observed that marriage in prohibited degree of relationship and sapindas to each other is void until it is allowed by the custom or usage or in simple words – tradition of both the parties to marriage, i.e., wife and husband. Marriage is void ab initio, i.e., from the very beginning if it falls in the above mentioned conditions.

There are various cases in which the marriage was considered as void on the ground of Bigamy which is mentioned under Section 5(i) of Hindu Marriage Act.

In M.M. Malhotra v. Union of India[7], the court held that if a man who is already married performs another marriage, it will be considered as void and it cannot be termed as plural marriage.

In Surjeet Kaur v. Jhujav Singh[8], the court held that if the couple got apart or separated judicially and if any of the spouse enters into or perfoms an act of marriage with another, then such marriage shall be considered as void.

Some cases which have declared marriages performed by the parties who are under prohibited degree of relationship are as follows:

Prohibited degree of relationship as explained above means any person who is in direct relation to mother, father, grandparents and etc. they are referred or called as Lineal ascendants or descendants.

In the case Shankutala Devi v. Amar Nath[9], that marriage performed under prohibited degree of relationship can be valid but for considering it to be valid marriage it has to be proved that or there should be evidence that is accepted in their tradition and it should old enough so that it can be termed or said as custom.

The court said that the tradition or the ritual marriage being performed under prohibited degree of relationship should not be against the ethics or any public policy in the case of Balaswami Reddiar v. Balakrishna Reddiar[10].

Hindu Marriage is void on the ground of Sapinda relationship as mentioned above in the article. Section 3(f) of Hindu Marriage Act says that Sapinda relationship establishes when one is known to be the lineal ascendant of the other party or both of the parties having mutual lineal ascendant and lineal descendant from the father’s side upto fifth degree or from the mother’s side upto three degrees.

In Sudarsan Nakar v. Amina Mandal[11], it was held by the court that to determine or to know the sapinda relation of the parties Hindu Marriage Act should be referred and no other text can be used for this purpose.

In the case of Harihar Prasad v. Balmiki Prasad[12], the court held that marriage performed by the parties who are sapindas to each other can be considered as valid if there is any evidence that it has been a tradition of both the parties. Else the marriage of two sapinda is punishable under Section 18 of the Hindu Marriage Act.

Voidable Marriages under Hindu Marriage Act

A marriage is voidable on either side of the parties to the marriage. It will be valid unless the petition is made for making the marriage invalidated. The marriage can be declared void by a competent court under Hindu Marriage Act, 1955. The husband and wife or parties to the marriage have to make decision whether they want to continue with the marriage or want to make it invalid.

Section 12 of the Hindu Marriage Act states the situations where marriage is considered as voidable on either side of the party.

  • Marriage is not consummated owing to the impotency of the partner.
  • If the party to the marriage is not capable of giving consent due to unsoundness of mind.
  • If the party is suffering from mental disorder and if the party has been suffering from repeated attacks of insanity.
  • If the female is pregnant at the time of marriage by some other person other than the person whom she is getting married to.
  • If the consent of either of the parties is obtained by fraud or by force.
  • If either of the parties is underage, i.e., bridegroom is under the age of 21 years and bride is under the age of 18 years.

Various conditions are needed to be satisfied by a petition under Section 12 in order to make the voidable marriage void.

  • On the plea of marriage by force or fraud, a petition can be filed before the court within the period of one year of discovery of such fraud or force.
  • The allegation on which the petition is filed is not known to the petitioner at the time of solemnization of marriage.
  • The petition should be presented within the period of one year after the knowledge of the facts on which allegation is made.
  • No sexual relationship is established after knowing about alleged facts.

In Pronab v. Krishna[13], the court held that a form of lunacy can be considered as the basis for declaring the marriage null and void. Any person who is not able to recognize the responsibilities of marriage is also not allowed to marry.

In the case of Dr. Shrikant Adya v. Smt Anuradha[14], the Karnataka high court said that if a husband is not able to give her spouse a sexual life because he has sexual weakness, it is said to be mental cruelty on woman and the wife can file the petition for nullity of marriage.

Legitimacy of Children of Void and Voidable Marriages

Section 16 of the Hindu Marriage Act, 1955 states the legitimacy of children born of void or voidable marriages.

Section 16 of the act states that:

  • If the marriage is considered as void as per Section 11 of the Act then the children born out of such marriage are considered as legitimate.
  • If the marriage is voidable as per Section 12 of the Act then also the children born out of this marriages are legitimate.
  • Children born out of void and voidable marriages have the right on the property of parents only and are not given the property rights of other kins are not provided or given.
  • Children born of voidable marriage after the judgment of the court, then such children is considered as illicit or illegitimate.

In the case of Laxmibai v. Limabai[15], the court held that children born out of void marriage are licit or legitimate and is authorized to acquire the property of the father after his death as per Section 16 of the Hindu Marriage Act, 1955.

If the woman is pregnant before the marriage and she gives birth to that child after marriage then such child would not be considered as legitimate as this child is not born out of marital relationship.

If any of the partners who are married which is void or voidable dies then the decree of nullity cannot be obtained and the child born cannot claim the benefits of Section 16 of the Act. This is said in the case of Gowri Ammal v. Thulasi Ammal[16].

Thus, it can be said that Section 16 of Hindu Marriage Act, 1955 does not give full protection to the child born out of void or voidable marriages.

Conclusion

In the article we got to know about that in ancient times marriage was considered as holy duty and people were needed to perform their duty of marriage and there was no enactment for Hindu marriages but as the society is developing day by day Hindu Marriage Act was passed in order to protect the rights of the parties to the marriage.

Not only the rights of the parties to the marriage are protected under this act but also the rights of the children born out of void and voidable marriages is protected. However, the rights of the children born out of such marriages is not fully protected and steps should be taken in order to protect the rights of such children not partially but completely.


[1] Aakriti Vikas, (2020), Nullity of Marriage under Hindu Law, Retrieved from, www.legalbites.com

[2] Hindu Marriage Act, 1955 – Section 5. Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage

[3] Hindu Marriage Act, 1955 – Section 11. Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 2 [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.

[4] Hindu Marriage Act, Conditions of Hindu Marriage, Retrieved from, www.advocatekhoj.com

[5] Mayank Shekhar, (2017), Essential conditions of marriage, Retrieved from, www.livelaw.com

[6] Ibid

[7] 2005 INSC 0883

[8] AIR 1980 P&H 284

[9] AIR 1982 P H 221

[10] AIR 1957 Mad 97

[11] 1982 HLR 277

[12] AIR 1975 SCC 733

[13] AIR 1975 Cal 109

[14] AIR 1980 Kant. 8

[15] AIR 1983 Bom. 222.

[16] AIR 1962 Ma 510


Author Details: Aanemesh Singh [Student; Dharmashastra National Law University, Jabalpur]


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