Void and Voidable Marriage under Hindu Marriage Act, 1955

Void and Voidable Marriage under Hindu Marriage Act, 1955 section 11 and 12

Void and Voidable Marriage under Hindu Marriage Act, 1955

INTRODUCTION

Under Hindu Law it is believed that man and woman are incomplete without each other. So, marriage is considered as an unbreakable tie. Thus, the concept of marriage is considered to a never-ending bond between husband and wife. It was stated that every Hindu could marry, for which the essential ceremonies must be performed. Earlier, divorce and nullity of marriage were not considered. These came into existence after the emergence of Hindu Marriage Act, 1955. One can find few exceptions for the prohibition of marriage based on caste, blood relation, gotra and religion. Therefore, if the parties fail to fulfill the obligations then it leads to- void or voidable marriage.

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VOID MARRIAGE

A void marriage is one that isn’t considered valid since the very beginning. In such marriages, neither the parties nor their living can change the status of their marriage. Section 11 of the Hindu Marriage Act, 1955 clearly states that if any of the three conditions (living spouse, prohibited decree, Sapinda) then the marriage is considered void. It is only these grounds that declare the marriage to be void.[1] Mere completion of ceremonies does not prevent the marriage from being void.[2]

No declaration is necessary though same can be asked for the purpose of precaution or record.[3] Marriage which is void ab initio does not affect the status of party. Neither party is under any obligation to seek declaration of nullity.[4]

  • Living Spouse

This means that, bigamous marriage is void. If the first marriage is still valid then second marriage is considered void. However, to validate the existence of second marriage it is necessary that first marriage is dissolved. It means that it must be declared void. It is necessary for the witness to declare about the bigamy. The action of husband living with another woman for requirement is necessary.[5]

  • Prohibited decree

If the parties are within the degrees of prohibited relationship, then the marriage is considered void. Though this condition has an exception- where the custom allows. Section 3(g) of the Hindu Marriage Act 1955 talks about degree of prohibited relationship that is as follows:

On any of these grounds either party can file a petition for declaration that the marriage is null and void.

  • Sapinda

If the parties are sapinda to each other declares marriage void.  The term “sapinda” means the persons relating to same blood. In other words, one can’t marry to the same family. The traditional law for the sapinda relationship says that one can’t marry to a person of:

  1. Seven generation from paternal side.
  2. Five generation from maternal side.

But after the enactment of this act the law one can’t marry to a person of:

  1. Five generation from paternal side.
  2. Three generations from maternal side.

Consequence of Void Marriage

  1. The parties fail to enjoy the status of husband and wife.
  2. Children born out of such marriage are considered legitimate. (Section 16 of Hindu Marriage Act, 1955)
  3. It doesn’t give right to mutual rights and obligations.

Can wife claim maintenance if marriage is void?

The Supreme Court has held that wife cannot claim maintenance in void marriage under Section 488 CrPC[6]. However, the wife is entitled to maintenance under Section 18 of the Hindu Adoptions and Maintenance Act[7]. This right can even be claimed under Section 24 of the Hindu Marriage Act 1955.[8]

VOIDABLE MARRIAGE

A marriage which can be avoided at the option of either parties is known as a voidable marriage. Until and unless the court so decrees, these marriages are legal and binding. Section 12 of Hindu Marriage Act deals with Voidable Marriage. It lays down four grounds for voidable marriage-

  1. Inability of respondent to consummate the marriage due to impotency.
  2. Respondent’s incapacity to consent or suffering from mental disorder.
  3. Consent of the petitioner being obtained by fraud/force.
  4. Concealment of Pre-marriage pregnancy by the respondent.
  • Impotency

Impotency at the time of marriage and continued, would give the petitioner a ground for annulling the marriage. According to old Hindu law, a marriage was not liable to be invalidated on the ground of impotency. This position was not accepted in few cases.[9] However, it is stated that the ancient rule permitted Niyoga. Though it became obsolete in modern times.[10]

Moreover, Section 12(1)(a) of the Hindu Marriage Act has now clarified the position of law.

Section 12(1)(a) can be summarized into two parts:

  1. That the marriage has not been consummated; and
  2. That the non-consummation is due to the impotence of the respondent.

Impotency is the inability to have complete and normal sexual intercourse. A marriage is consummated by sexual intercourse between married parties. Consummation may be proved by medical evidence. Thus, impotency means practical impossibility of consummation of marriage. The degree of sexual satisfaction obtained by the parties is irrelevant.

Absolute repugnance towards sexual intercourse although the party had normal sexual organs amounts to impotency.[11] However, in Nijhawan v. Nijhawan, a liberal interpretation of the word ‘impotence’ was made by the court.

If impotency can be cured by medical treatment or surgery, it would not amount to impotency.[12] Provided, unless the respondent refuses to undergo treatment. Incapacity to conceive a child or sterility doesn’t amount to impotency.[13]

Most importantly, the Burden of Proof lies on petitioner to prove about his impotency.

  • Fraud, coercion, undue influence or misrepresentation

 The consent of the parties concerned must be free for marriage. Section 12 (1)(c) makes the marriage voidable where consent was obtained by force/fraud. The word Force is not defined by the Act.

But it may include all cases of compulsion, coercion or duress. Abduction, terror, coercion and threat to commit suicide will be covered by the term force. Whenever owing to some natural weakness of mind or on account of some fear it will amount to force.[14] Actual fraud carries with it grave moral blame and not what has sometimes been called legal fraud.[15]

Some important grounds of fraud:

  1. Nature of ceremony,
  2. Identity of the party,
  3. Concealment of disease,
  4. Concealment of religion or caste,
  5. Concealment of previous marriage,
  6. Concealment of unchastity,
  7. Concealment of illegitimacy,
  8. Concealment of age,
  9. Petitioner’s father’s fraud,
  10. Concealment of financial status and nature of employment.

A petition for nullity must be filed within one year of the discovery of fraud. This condition is mandatory. Thus, the operation of Section 12(1)(c) has been considerably winded by the 1976 Amendment.

  • Pre-marriage Pregnancy 

Section 12(1) (d) states that a marriage is voidable on ground that the respondent at the time of the marriage was pregnant by some person other than the petitioner. Section 12(1)(d) is to be read with Section 12(2)(b) which lays down three further conditions-

  1. At the time of marriage the petitioner was ignorant of the facts alleged;
  2. The petitioner has started proceedings under Section 12 within one year of the marriage; and
  3. The petitioner did not have, with his consent, marital intercourse with his wife ever since he discovered that the wife was pregnant by some other person.

Requirements

  • Respondent was pregnant at time of marriage.
  • Respondent was pregnant from a person other than the petitioner.
  • Petitioner was ignorant of this fact at the time of marriage.
  • Proceeding is started within one year of the marriage.
  • Absence of marital intercourse by the husband with his wife since such discovery.

Most importantly, if a bride gave birth to a mature child within 167 days from the date of marriage, it was held that it was for the wife to raise a reasonable doubt that she was pregnant by the person who became her husband. A blood test for the ascertainment of the child’s paternity is also possible. However, this cannot be forced upon wife.[16]

CONCLUSION

It is thus seen that inspite of the fact that marriage is considered as pious relation between husband and wife but there are still implications where nullity of marriage is still possible. On the grounds of above mentioned grounds and cases, marriages can be held void. Where the status of marriage is voidable, a suit can be also filed in the court and either party gets right to declare the marriage as void. Therefore, as marriage is mutual relation between the parties there are also some obligations that need to be necessarily completed to prevent it to be called as void. For the further preventions, the law under Hindu Marriage Act, 1955 provides grounds to declare the nullity of marriage under Section 11 and Section 12 of Act.

REFERENCES

  • [1] 1985 1 26 Guj Law Rep 47; AIR 1965 Him Pra 15; ILR 1970 Cut 1215
  • [2] Andrews v. Rose (1888) 14 PD 15
  • [3] AIR 1967 Pat 277; 1967 Cri LJ 1176
  • [4] (1991) 72 Cut LT 619; (1991) 2 DMC 424 Orissa
  • [5] Laxhami Sahuaniv Maheswar Sahu, AIR 1985 Ori 11
  • [6] AIR 1988 Supreme Court 644
  • [7] (1985) 2 Hindu LR 425: (1985) 2 DMC 251 (MP)
  • [8] (1990) 2 Div Mat Cas 594: (1991) 1 Hindu LR 56 (MP)
  • [9] Ratan Mani Devi v Nagendra Narain Sinha AIR 1948 Cal 404
  • [10] Rakaya Bibi v Anil Kumar 52 CWN 142: ILR (1948) Cal 119
  • [11] Shantabai v. Tara Chand
  • [12] Rajendra v. Shanti
  • [13] Shewanti v. Bhaura
  • [14] S.R Chengala Varaya Naidu v Jagannath AIR 1994 SC 853:(1994)1 SCC1
  • [15] Battison v Hobson (1896)2 Ch 403
  • [16] Nishit v. Anjali
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