Void and voidable marriage

Synopsis

 Introduction
 Meaning
 Void Marriages
 Voidable Marriages
 Difference between Void and Voidable Marriages
 Legitimacy of Children
 Case Laws
 Conclusion

Introduction

A socially and religiously recognized union between a man and a woman that
establishes certain rights and duties between them is called a marriage. The
parties to the marriage i.e. the man and the woman are called husband and
wife respectively. A marriage is often referred as a contract between the
husband and wife to live together. In our nation, Marriage is a religious
establishment which is essential for the development of our general public.

Marriage has been awarded a legal status under various personal laws
i.e. Hindu Marriage Act, 1955, Parsi Marriage and Divorce Act, 1936, Indian
Christian Marriage Act, 1872 and Special Marriage Act, 1954. Although, a
marriage is considered as a sacred relationship but the complexities of the
concept and development in the society gave birth to the concept of Nullity of
Marriage.

Meaning

When the court declares that a marriage between two people is not valid, the
marriage is said to be nullified. The court has power to declare a marriage void
or voidable under Section 11 and 12 respectively, of Hindu Marriage
Act, 1955. A void marriage is the one which is considered as no marriage in
the eyes of the court whereas voidable marriage is the one which can be
declared invalid on petition by either party to such marriage.

DistinctionDistinction between void and voidable marriage

Marriage is the voluntary union of one man with one woman to the exclusion of all others,
satisfied by the solemnisation of the marriage. The Hindu Marriage Act, 1955 provides for
three types of marriages:

1. Valid
2. Void and
3.Voidable.
The difference between these three relates to the pre-marriage impediments to marriage
which are clearly enunciated in Section 5 of the Act. If there exist, absolute disablements or
impairments, a marriage is void ab initio. Section 11 deals with void marriages. If relative
disablements or impairments exist, a marriage is voidable. Section 12 deals with voidable
marriages. All other marriages which are not covered by these two Sections are valid.

VOID MARRIAGE 
Section 5 of the Hindu Marriage Act 1955 includes essential conditions of a valid marriage.
It contains such conditions which if violated shall result in a void marriage. Section 11 of the
Act had considered following marriage to be void:-

1. Where at the time of marriage any party has a living husband or wife i.e., bigamous
marriage is void
2. Where parties to the marriage fall within sapinda relationship i.e., same blood. A person
cannot marry in the same family i.e., to a person from A. Five generation from the paternal
side, B. Three generations from the maternal side, C. The parties are within the prohibited
degree of relationship. The section 3(g) of the Hindu Marriage Act 1955 talks about the
degree of prohibited relationship that is as follows:
3. Where parties to the marriage come with degrees of prohibited relationship.
In the case of Rampyari v. Dharamdas 1984, it was said by Allahabad High Court that an
application for declaring a marriage void is not required to be presented by the victim only.
In another case of Leela v. Lakshmi 1968, it was held that void marriage does not require
even the decree of a court.
In Uma Shanker v. Radha Devi, the Patna High Court ruled that the first wife could obtain
a perpetual injunction to prevent the second marriage of her husband under Section 9 of the
Civil Procedure Code and Section 54 of the Specific Relief Act.
Consequences of a void marriage
 The parties have no status of wife and husband
 Children of a void marriage are illegitimate (this is subject to the provision of section 16 of Hindu
Marriage Act 1955).
 Avoid marriage doesn’t give rise to mutual rights and obligations.
VOIDABLE MARRIAGE  
A marriage which can be annulled or avoided at the option of one or both the parties is
known as a voidable marriage. Section 12 of Hindu Marriage Act contains relevant
provisions of Voidable Marriage. According to it, in the case of marriage being voidable, the
court may declare it Null under following conditions:-

1. Where marital cohabitation has not occurred due to the impotency of the respondent.
2. Where at the time of marriage any party failed to give valid consent due to unsoundness
or has been affected by mental retardedness to such extent that he is incapable to
marriage and giving birth to a child, or suffers from frequent insanity or is insane.
 3. Where the consent of guardian is necessary for the marriage and such consent has
been obtained by force or by fraud as to nature of rituals or any actual facts or
circumstances as to the respondents.
4. Where the respondent is pregnant at the time of marriage from a person other than the
applicant.
GROUNDS OF DECLARING A MARRIAGE VOIDABLE
A marriage is voidable on the ground of consent obtained by fraud as force, then such
marriage shall be declared null only when:-

(a) The applicant is presented within one year from the date of knowledge of fraud as the
force used.

(b) The parties have not lived as husband and wife after the knowledge of force used or
fraud.

Similarly, if the marriage is voidable due to the pregnancy of wife then such marriage shall
be declared null only when the court is satisfied that:-

(a) The applicant was unaware of the pregnancy of the wife at the time of marriage.

(b) If the marriage has been solemnized before this Act came into force, then the application
shall be presented within one year from the date of enforcement of the Act or if the marriage
has been solemnized after the act came into force then the application shall be presented
within one year from such marriage.

(c) The applicant has not voluntarily cohabitated after the knowledge of pregnancy of wife.

(d) Wife had been pregnant from a person other than the applicant.

(e) She was pregnant before the marriage.

Difference between Void and Voidable Marriages

Void Marriages Voidable Marriages

1) It is voidable at the option of either
1) It is void-ab-initio i.e. void from the
party i.e. valid unless avoided by either
very beginning.
party to the marriage.
2) A mere decree is passed as to 2) The marriage is annulled by the
nullity of marriage by the court. decree of nullity by the court.
3) Parties are free to perform another 3) The parties cannot perform another
marriage without getting a decree for marriage unless the marriage is
nullity. annulled by decree of court.
4) A wife in a void marriage does not 4) A wife in a voidable has a right to
have a right to claim maintenance. maintenance.
5) The parties do not have a status of 5) The parties have a status of husband
husband and wife. and wife.
 

Legitimacy of Children in Void and Voidable Marriages

Section 16 of the Hindu Marriage Act, 1955 has been amended

by Marriage Laws (7Amendment) Act of 1976 which says that the
children born, after or before the commencement of the Act, out of a void or
voidable marriage is legitimate. In Parayan K. Amma v. K. Devi[2], the
court held that for the purpose of bringing social reform, the amendment act
has conferred the status of legitimacy on the children who, if not awarded the
title of legitimate children, will be treated as bastards.

Though the children born out of a void or voidable marriage has been awarded
the status of legitimacy but they have been given no birth right in the Hindu
Joint Family Property and cannot claim any right in the coparcenary entities
of the father. But they can inherit the property of their father under Section 8
of the Hindu Succession Act, 1956[3].

Case Laws

Yamunabai Anantrao Adhav v. Anantarao Shivram Adhav , AIR

1958[4]: In this case, it has been held that a marriage which is in
contravention of section 11 of Hindu Marriage Act, 1955 shall be treated as
null and void from the time of its inception.

Bassappa v. Sidhagangamma 1952[5]: It has been held by Karntaka

High Court that a wife whose marriage has been declared null and void
because it was in contravention to Section 5 (i), (iv) or (v) is not entitled to
claim maintenance as she does not have a status of wife under Section 18 of
Hindu Adoption and Maintenance Act, 1956.

Lila v Laxaman, 1968[6]It was held by Allahabad High court that a void
marriage does not need a decree of nullity as it is no marriage in the eyes of
law. A decree passed for void marriage is a mere declaration of nullity of
marriage. The court only makes the fact clear that there was no marriage
between the parties.

Conclusion
Prior to enactment of Hindu Marriage Act, 1955 the parties to a marriage had
non remedy or recourse to get out of a marriage which is a burden of them.
For the purposes of social reforms and due to the dynamic nature of society,
the Act was enacted and the concept of Nullity of Marriage was engrossed
while keeping in mind the religious sentiments. Now, Section 11 and 12 of the
Act is a remedy for parties who are in a void or voidable marriage. Moreover,
with the enactment of Amendment Act, 1976, the children born out of a
voidable or void marriage are also awarded a title of legitimacy. Overall, the
concepts discussed above leads to development of society.

Question 1. Define void and voidable marriage under the Hindu marriage Act 1955 and make the
difference between void and voidable marriage.

Question 2. What do you mean by white marriage? Explain the consequences under void and voidable
marriage included legitimacy of the child.

Question 3. Explain the grounds of voidable marriage under Hindu marriage Act 1955 with the
reference of decided case laws.