Provision of Void and Voidable Marriages under Hindu Marriage Act, 1955 by Aesha Sheth @LEXCLIQ

Void Marriages (section 11)

A marriage is considered void under the Hindu Marriage Act if it doesn’t fulfils the following conditions of Section 5 of the Hindu Marriage Act:

  • Bigamy

If any of the parties have another spouse living at the time of marriage. It shall be considered as null and void.

Illustration: there are three parties ‘A’,’B’ and ‘C’ where ‘A’ has a living spouse ‘B’, but he again marries to ‘C’ then this will be called as bigamy and it will be void.

Prohibited Degree

If the parties are within a prohibited relationship unless the customs allows it.

Illustration: there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his wife. They both went on a relationship which is prohibited by law. This marriage can also be called void marriage.

Sapindas

A marriage between the parties who are sapindas or in other words a marriage between the parties who are of his or her relations or of the same family.

Illustration: there are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is the wife, who has blood relation or close relation to A which can also be termed as Sapinda. So, this process will be treated as void.

Consequences of a Void Marriage

The consequences of void marriage are:

  • The parties don’t have the position of husband and wife in a void marriage.
  • Children’s are called legitimate in a void marriage (section 16 of Hindu Marriage Act, 1955).
  • Mutual rights and obligations are not present in a void marriage.

Voidable Marriages (Section 12)

A marriage is voidable on either side of the party is known as voidable marriage. It will be valid unless the petition for invalidating the marriage is made. This marriage is to be declared void by a competent court under the Hindu Marriage Act, 1955. The parties of such marriage have to decide whether they want to go with such marriage or make it invalid.

The grounds where marriage can be termed as voidable:

  • The party to the marriage is not capable of giving consent due to the unsoundness of mind.
  •  Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. ‘B’ gave the consent of the marriage when she was suffering from an unsound mind. After some years, ‘B’ gets cured and raised that her consent was invalid and this marriage is voidable because during the time of the consent of ‘B’, she was in an unsound mind. So, this a ground of voidable marriage.
  • The party is suffering from mental disorder which makes her unfit for reproduction of children.
  • Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is suffering from mental disorder due to which she is unfit for reproduction of children. Then this can be a ground for voidable marriage.
  • If the party has been suffering from repeated attacks of insanity.
  •  Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. Anyone from ‘A’ or ‘B’ is suffering from repeated attacks of insanity, then this can also be a ground for voidable marriage.
  • The consent of marriage by either of the parties is done by force or by fraud.
  • Illustration: There are two parties ‘A’ and ‘B’ where A is the husband and B is his wife. If either party gave consent to the marriage by force or fraud, then it will be a voidable marriage.
  • If either of the parties are under-aged, bridegroom under 21 years of age and bride under 18 years of age.
  • Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is under the age of 18 years then this marriage will be considered as voidable or if A is under the age of 21 years then it can also be considered as voidable marriage.
  • If the respondent is pregnant with a child of someone other than the bridegroom while marrying.
  • Illustration: There are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is his wife. During the time of the marriage if ‘B’ is pregnant through another person. Then the marriage would be voidable.

Necessary conditions to be fulfilled by a petition under Section 12 for nullity of a Voidable Marriage

  1. On the plea of fraud or application of force on marriage, a petition can be filed before the court within one year of discovery of such fraud or application of force.
  2. The allegation based upon which the petition is filed was beyond the knowledge of the petitioner at the time of solemnization of marriage.
  3. The petition on such an allegation must be presented in the court within one year of knowledge of such facts.
  4. No sexual relationship is established after knowing about alleged facts.

Difference between Void and Voidable Marriage

Void Marriage Voidable Marriage
A wife does not have the right to claim maintenance in the void marriage. A wife has the right to claim maintenance in the voidable marriage.
In a void marriage, the parties do not have the status of husband and wife. Husband and wife have the status in the voidable marriage.
In a void marriage, no decree of nullity is required. In a voidable marriage decree of nullity is required.
A void marriage is none in the eyes of law. A void marriage is to be declared void by a competent court.
The children in a void marriage are treated as legitimate. The children in a voidable marriage are treated as illegitimate but this distinction is deleted by the Supreme Court and said a child cannot be said termed as illegitimate.

 

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