What Do You Understand By Void And Voidable Marriage?

Void Marriages

Section 11 of the Hindu Marriage Act, 1955 lays down the condition for a marriage to be declared void. The Section only applies to the marriages solemnised after the commencement of the Act. A decree of nullity shall be passed if the following three conditions mentioned in Section 5 i.e. clauses (i), (iv) and (v) are not satisfied:

  1. Neither party has a spouse living at the time of marriage [clause (i)]
  2. The parties should not be within the degrees of prohibited relationship unless the custom or usage governing the parties allows the sam [clause (iv)]
  3. The parties are not sapindas of each other unless the custom or usage governing the parties permits such marriage [clause (v)]

It must be noted that the section is also applicable to the marriages solemnised after the commencement of the Act and will not have any effect on the marriages entered into before the commencement of the Act. Thus, if a person has entered into a second marriage without getting the divorce from his first wife, before the commencement of the Act then such marriage can not be declared void under the Act.

It is also necessary to note that the marriage is declared void from the inception and not from the date on which such degree is obtained.

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Is it necessary to obtain a decree from the court?

The parties don’t need to obtain a decree of nullity, however, such a decree can be obtained for precaution or record.[1] It is pertinent to note here that the decree of nullity can be obtained by either party and not only the aggrieved party.[2] Thus, if a person’s first marriage is void and then he enters into a marriage with another person then such a marriage will not be bigamous but a perfectly valid marriage.[3]

Where a woman sought the decree of nullity of the marriage was held not entitled to the maintenance as there was no marriage at all in the case.[4]

A marriage which is void ab initio does not alter or affect the status of the parties nor does it create between them any rights and obligations which must normally arise from a valid marriage, except such rights are expressly declared by the Act.[5]

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Voidable Marriages

Voidable marriages have been defined under Section 12 of the Hindu Marriage Act, 1955. The difference between the void and voidable marriage is that a voidable marriage remains valid for all purposes unless a decree of nullity has been obtained from the competent courts. The grounds mentioned under Section 12 for the voidable marriages are as follows:

Clause (a) Impotence

Impotence refers to the incapacity to consummate the marriage, i.e., incapacity to have sexual intercourse. The impotence is not just physical impotence but also mental impotence. Therefore, if the mental condition of a person makes the consummation of marriage impossible then it is impotence.[6] In Jaggannath Mudull v. Nirupama Behra[7] where the wife had no vaginal canal, the marriage was annulled on the ground of impotence.

It is to be noted that impotence must not be confused with infertility. A person can not claim under clause (a) if the wife is infertile. Also, the question of impotence can be raised only by the spouses and not the third party as it is a personal matter between the parties.

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It may be possible that a person may be in a condition to consummate with others but not with the particular individual then in such a case annulment of marriage can be obtained under this head. Similarly, if a spouse denies having physical intercourse after a reasonable time of the marriage has been passed then in such case, the court is at liberty to grant decree under Section 12(a) of the Act.

Clause (b): Marriage with a person of unsound mind

Consent is the prerequisite for the marriage. A person of unsound mind or the one suffering from a mental disorder is incapable of giving the consent. However, the marriage in such case is not void but voidable at the option of the parties.

Existence of epilepsy has now been deleted as a ground for seeking nullity.

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In Saraswati v.  Gopal[8]the proceedings were initiated by the husband on the grounds of desertion by the wife and the existence of epilepsy. It was held that since the divorce was decreed on the ground of desertion therefore, the deletion of epilepsy from the close is merely academic.

Read – Grounds For Nullity Of Marriage In India

In Rajeshwar Mishra v. Sidharta Pandit[9], a decree was sought on the ground that the wife was suffering from epilepsy. The epilepsy was removed from the clause when the case reached the court for the judgment. It was held by the court that since the proceedings were instituted before the deletion therefore, the husband is entitled to obtain the decree on the ground of existence of epilepsy.

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The burden of proof lies on the party who is seeking an annulment on the grounds of unsoundness of mind.

Clause (c): Consent obtained by force or fraud

The marriage is voidable if the consent of the party is obtained by force or fraud. However, it must be noted that the rule is not absolute and should, therefore, not operate if the following two conditions are present:[10]

  1. The petition is filed after 1 year when the fraud is discovered or the force ceases.
  2. The petitioner with his/her full consent and knowledge acquiesced in the marriage by living with the other party to the marriage as husband or wife.

In Shitij Khurana v. Shreha Khurana[11], the wife alleged that free consent was absent when the marriage was solemnised as she was under the influence of drugs. The Court held the marriage to be voidable.

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The section says that the fraud should be made as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.[12]

Clause (d): Respondent wife pregnant at the time of the marriage

If the respondent-wife was pregnant by some other person than the petitioner at the time of marriage then such marriage is voidable at the instance of petitioner.

In Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati[13], the child was born after the 171 days of the first coitus between the respondent-wife and the petitioner. The delivery was normal and the child thus born was also normal. It was held by the court that the petitioner was not the biological father of the child and thus, the decree of annulment was passed under clause (d) of Section 12.

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ReadDiscuss Various Grounds of Divorce Under The Hindu Marriage Act 1955

[1] Mohan Lal Sharma v. Parveen, 2009 (2) HLR 581.

[2] Mulla, Hindu Law, Nullity of Marriage and Divorce, 885.

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[3] M.M. Malhotra v. Union of India, AIR 2006 SC 80.

[4] Ranjana Kejrival v. Vinod Kejrival, AIR 2009 Bom 176.

[5]  Mulla, Hindu Law, Nullity of Marriage and Divorce, 886.

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[6] Digvijay Singh v. Pratap Kumar, AIR 1970 SC 137.

[7] AIR 1970 SC 137.

[8] AIR 2007 Raj 33.

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[9] AIR 2010 Ori 41.

[10] Mulla, 894-895.

[11] AIR 2014 Del 27.

[12]  Mulla, 894-895.

[13] AIR 1965 SC 364

Nidhi Chhillar

Vivekananda Institute of Professional Studies

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