Void and Voidable Marriage under the Hindu Marriage Act, 1955

TYPES OF MARRIAGE

According to the Hindu Marriage Act (hereinafter referred to as HMA), Marriage is of three types i.e. Valid, Void, and Voidable Marriage. If a marriage is performed according to the conditions stipulated in section 5 of HMA, then it is said to be a valid marriage in the eyes of Law. Here, in this article, we will discuss Void and Voidable Marriage under the Hindu Marriage Act, 1955.

In the marriage, if there is any kind of impediments, then the party can’t marry each other and if at the same time they marry to each other, then that marriage is not treated valid marriage in the eyes of law. Therefore, Impediments are divided into two types which are: absolute impediments and relative impediments.

Absolute impediment means a fact that disqualifies a person from a lawful marriage and therefore the marriage is void hence known as an invalid marriage from the very beginning. Whereas relative impediment means an impediment that forbids marriage with a certain person and can be avoided by one party and hence is known as voidable. Therefore, from this impediments stand-up the classification of void and voidable Marriage.

VOID MARRIAGE (section 11)

The marriage which does not fulfil the conditions of Section 5 of HMA, is considered as void marriage i.e. after the commencement of HMA, it is considered as null and void if it contains the following conditions-

  • Bigamy [ Section 5 (i) ] – At the time of marriage if any parties to a marriage have other living spouse, it shall be considered null and void.

Under section 494 & 495 Indian Penal Code, punishment for bigamy is provided i.e. If either party marrying again during the lifetime of husband/wife, imprisonment for either description for a term which may extend to seven years and also liable for fine too and at the also, if any party marrying by concealment of former marriage from other people, imprisonment for either description for a term which may extend to ten years and also liable for fine.

  • Prohibited Degree [section 5(iv)]-A marriage between prohibited Degree is consider void unless and until the customs and usages allow it.

Under section 18(b) of HMA, whoever violates the condition of sec 5(iv) will punished with the simple impressment which may be extend to one month and/or fine which may be extend to one thousand or with both.

  • Sapindas [section 5(v)]: A marriage between parties who comes under sapindas relation is void unless custom and usage allow it (Same punishment under Sec 18 of HMA, which is mentioned in prohibited degree).

 Sapindas relation should be calculated as far as the third generation in the line of ascent through the mother and same five line of ascent through the father.

CONSEQUENCES OF VOID MARRIGE

  • In void marriage parties are not considered as husband and wife
  • Children which are born from void marriage are considered as legitimate children (under Section 16 HMA)
  • In void marriage there is no mutual rights and obligations present. 

In the case of RameshchandraRampratapjiDaga vs. RamshwariRameshchandraDaga,[1] Hon’ble Supreme Court held that on the basis of facts and circumstances Court has the power to grant maintenance even in a decree of nullity of the marriage is passed by the court.

VOIDABLE MARRIGE (Section 12)

If the marriage becomes voidable at the option of either party then is known as voidable marriage but it will be valid unless and until the petition filed by petitioner proved that marriage is voidable. Therefore, unless either party prove it, it will be considered a valid marriage.

 These marriages can be held voidable by the decree of nullity by the court under HMA therefore; the parties have to decide whether they want to continue with such marriage or want to terminate the marriage.

The grounds on which either party may file petition for nullity of the said marriage:

  • That the marriage has not been consummated owing to the impotency of the respondent
  • That the party to the marriage was incapable to give free consent due to unsoundness of mind.
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  • That the party is suffering from a mental disorder that makes either party(him/her) unfit for procreation or reproduction of children.
  • If the party has been suffering from recurrent attacks of insanity or epilepsy.
  • That the consent has been obtained by either party by fraud or by force
  • That at the time of marriage either party was under-aged i.e. in case of the bride, age should be 18 or above and in the bridegroom, age should be 21 or more.
  • That the respondent was pregnant from the person other than the petitioner.

Moina Khosla vs. Amardeep Khosla[2], In this case the respondent was not capable of interacting much with females and also failed to perform cohabitation with his wife. Therefore, it was held that the wife is entitled to decree of nullity of marriage.

Conditions must be fulfilled under section 12 for nullity of voidable marriage, they are;

  • The petition shall be filed within one year in case of fraud or force and discovery of same.
  • At the time of said marriage, petitioner didn’t have any type of knowledge about the fact that is alleged in petition by the petitioner.
  • The party file petition within one year from the day when he/she got knowledge of a fact which is alleged.
  • The party didn’t involve in cohabitation after knowing about the fact that alleged.

Difference between Void and Voidable Marriage

Void MarriageVoidable Marriage
Section 11 of HMA,1995        Section 12 of HMA,1995
Void-ab-initio i.e. void from very beginning           Voidable by the option of either party
Decree of nullity of marriage by the court is not required.         Marriage is annulled by the decree of nullity by the court  
The parties are free to perform subsequent marriage without getting decree of nullity of marriage by the CourtThe party cannot perform any subsequent marriage without getting marriage annulled by the Court.
In this marriage wife don’t have right to claim maintenance since the beginningRight to claim maintenance till getting marriage annulled by the court
Parties do not have status of husband and wife since the beginning  The parties have status of husband and wife till getting marriage annulled by the court    
Wife cannot claim maintenance under section 125 of Cr.P.CWife can claim maintenance
Parties to a void marriage are criminally liableParties to voidable marriage are not laid down with penalty
In void marriage not only first party but a third party who is affected can bring a suit in civil court for declaring such marriage void.In voidable marriage only the parties have right to apply for annulment of marriage

Section 16 of HMA, has been amended vide Marriage Laws (Amendment) Act,1976 says that child born from a void or voidable marriages is legitimate, either the child born before or after the commencement of the Act.

Conclusion

Before the enactment of HMA, parties to the marriage were not able to get out from the said marriage and didn’t get any type of remedy in Void and Voidable marriage under the Hindu Marriage Act, but after the enactment of the Act, under section 11 & 12 there is a remedy for void and voidable marriage and if children are born from a void or voidable marriage, they shall be legitimate after the amendment of HMA, 1976. Therefore, the said marriage is a valid one if it fulfils all the conditions of sec 5 of HMA,1955, otherwise, it will be considered as void or voidable marriage as the court thinks fit.


[1]AIR 2005SC422,2004(10) SCALE391, (2005)2SCC33

[2]AIR 1986 Delhi 399, 1986 (10) DRJ 286

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