Voidable marriages under Hindu law by Charu V at LEXCLIQ

Section 12 deals with voidable marriages. Under this section, if the conditions laid down in Sec. 12(I) and some specific conditions of a valid marriage as per Section 5 are not fulfilled, the marriage will be declared voidable by a decree of nullity. The contravention of the following conditions can render a marriage void:

Impotency of the respondent: One of the main objectives of marriage is the procreation of an offspring to take the generation forward. It is to be noted that though it is not the sole objective of marriage, such procreation is essential for the continuation of the family. If, owing to the impotency (inability to engage in any sexual activity) of either the husband or the wife, the couple is in no position to consummate their marriage, the marriage will be voidable and if the parties agree, it can be declared void. This condition has been laid down in Sec. 12(I)(a) of the HMA, 1955.

Mental incapacity: Under this condition, if either of the parties is either incapable of giving a valid consent due to unsoundness of mind, or though is mentally capable, suffers from such mental illness which makes the party unfit for marriage or procreation of children, or if the party is subjected to recurrent attacks of insanity, in such cases, the marriage is voidable. This condition arises out of the treatment of a Hindu marriage as a contract, wherein it is essential to have a valid consent of both parties to the contract. Moreover, a person of unsound mind is generally not in a position to give a valid and informed consent. This condition has been laid down in Sec. 12(I)(b) read with Sec. 5(ii) of the HMA, 1955.

Consent by force or fraud: As per Sec. 12(I)(c), if the consent of a party, or of their guardian as the case may be, which was mandatory for the purpose of the marriage, was obtained either by force, or any fraudulent means, the aggrieved party can render the marriage to be voidable. For eg. A, who wishes to marry B, tells her that he is the owner of two big factories, to make her believe that he’s rich and obtain her consent for marriage.

When B will find out that A has done a fraud with her, she can make the marriage voidable. However, Sec. 12(2)(a) places a bar on filing of petitions under this provision. The provision states that if no petition is presented within one year of the discovery of the fraud or the non-effectiveness of the force, or if the aggrieved party lives with their counterparts with their full consent after the discovery of the fraud or the non-effectiveness of the force, subsequently no petition can be presented before the court praying to make the marriage voidable.

Sexual relations and pregnancy thereof: Sec. 12(I)(d) lays down the condition wherein at the time of the marriage the wife was pregnant with a child, other than that of the lawful husband, he can make the marriage voidable. However, Sec. 12(2)(b) places a bar on filing of petitions under this provision. It says that no petition under the section shall be brought up unless the court is satisfied that the husband was not aware of the fact of the pregnancy of his wife at the time of his marriage, or that the proceedings have been initiated within a year of the commencement of the Act or within a year of the date of marriage as the case may be, or that after the discovery of the fact, the husband has not engaged in any voluntary sexual intercourse with his wife.

Non fulfilment of requirements regarding age: Though there is no mention of this in Sec. 12, if the bride is below 18 years of age at the time of the marriage, or where both the parties are under the age of majority at the time of the marriage, the marriage is voidable at the instance of the parties. If the girl and the boy decide to remain married after the attainment of majority, they can do so, but if either party, particularly the girl wishes to repudiate the marriage, she can do so.

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