In this article, Digshikha Priyadarshani discusses the concept of nullity of marriage under the Indian Law.
Nullity of Marriage
Marriage is a holy arrangement adopted and recognized by society and religion, between man and woman who are called husband and wife respectively. It is a religious sacrament some time referred as contract between man and woman to live life together as husband and wife. The concept of holy wedlock has given it religious sacramental status in religion. In India marriage is also legal status under different personal laws such as Hindu Marriage Act, 1955, Parsi Marriage and Divorce Act, 1936, Indian Christian Marriage Act, 1872. There is also Special Marriage Act, 1954 for certain marriages. Under muslim law marriage is a contract. Though the marriage is a holy wedlock for life but due to some complexity and prospective development in modern society there are legal grounds for the end of marriage, or nullify the marriage. Nullity of marriage is a legal declaration by the court that there was no existence of marriage between two people and marriage was not valid. It is a declaration that supposed that marriage was never happened.
Difference between nullity of marriage, divorce and judicial separation
Some time people get confused with nullity of marriage, divorce and judicial separation. There is difference between these three.
Nullity of marriage
Nullity of marriage is a judicial declaration that marriage was not in existence. It refers to the validity of marriage according to law. It means that there was not a valid marriage has performed between the parties.
Divorce is judicial declaration on the petition of the parties of marriage which led to the end of valid marriage. In divorce validity of marriage is not questioned but continuation of marriage is affected and there is end of a valid marriage.
Judicial separation is judicial declaration on the petition of the parties of marriage to live separate under the status of marriage. It is not end of marriage. Duties and liabilities remain same towards each other.
Nullity of marriage under different laws in India
Nullity of marriage under Hindu law
For the hindus according to smrities marriage is an essential sanskar. It is a duty of one to perform this. Marriage was indissoluble and and essential to perform religious and spiritual responsibility. Before the parliamentary enactment there was no concept of end of marriage or nullity of marriage under hindu personal law and marriage it treated as holy and strong wedlock for whole life. But after enforcement of Hindu Marriage Act, 1955 there are certain grounds on which marriage shall be declared null and void. These grounds are given under Clause (i), (iv) and (v) of Section 5 of The Hindu Marriage Act, 1955. These grounds are as follow:
- If either party has living spouse at the time of marriage i.e. bigamy
- If marriage between prohibited degree relation unless customs and usage are allowed,
- If marriage between sapindas unless customs and usage are allowed such marriage
- Sagotra marriage is valid under Hindu Marriage Act, 1955
There are voidable marriages also which are valid until declared null and void. Voidable marriage shall be annulled by the decree of nullity under section 12 of Hindu Marriage Act, 1955. It is at the option of the parties to continue with marriage or to annul marriage by decree of court. Grounds are as follow
- Impotency of the respondent
- Incapacity to give valid consent or forced consent of parties or mental illness or person unfit for procreation of child
- Under aged marriage
- If respondent was pregnant by some other person at the time of marriage.
Nullity of marriage under Muslim Personal law
Under islam marriage is a dissoluble contact different from the Hinduism where marriage is indissoluble. Under Muslim personal law marriage is treated as contract where valid consent of both the parties is required and ‘mehar’ is also decided. Hence dissolution of marriage is also permitted in both the sect shia and sunni. Under Dissolution of Muslim Marriage Act, 1939 and personal law marriage without valid consent by the parties or there guardian is void. There are some other grounds also on which marriage can be declared null and void. These grounds are as follow:
- Interreligious marriage by woman does not have religious status. A muslim male also cannot marry a female who does not follow Isalm.
- Marriage between milk relation or ‘maharim’ close blood relatives.
- Marriage with person who renounce Islam or not having faith in principle of Islam.
- Temporary or conditional marriage is void in Sunni.
- Marriage to a woman during the period of iddat.
- Where conditions of marriage are against the principle of Islam.
Nullity of marriage under Christian law in India
By the evolution of Christianity status of marriage has also changed. In Christianity is also indissoluble and holy wedlock and made it a public religious ceremony. Hence nullity of marriage is difficult to grant. But by development of society and to remove the discrimination for the Indian Christian there is separate marital law Indian Christian Marriage Act, 1872 was enacted and for their divorce or nullity of marriage Indian Divorce Act , 1869 is also there. This Act was amended in the year of 2001. According to this Act on following ground marriage can be declared null and void:
- Respondent was impotent at the time of marriage and at the time of institution of suit,
- Either of the party has living husband or wife at the time of marriage and that marriage is in force i.e. bigamy
- Marriage between the persons within the prohibited degree of consanguinity or affinity
- Either party was lunatic or idiot at the time of marriage.
Under Indian Divorce Act, 1896 consent is not a ground for nullity of marriage.
Nullity of marriage under Parsi Marriage and Divorce Act, 1936
In India there is separate marital law for Parsi community. Under this Act under section 30 where consummation of marriage due to some natural causes is impossible, at the instance of the party marriage can be declared null and void.
Nullity of marriage under Special Marriage Act, 1954
Under section 24 of the Act on the petition of either of the party marriage can be declared null and void by the decree of nullity on following ground
- Neither party has living spouse
- Incapable to give valid consent due to unsoundness of mind or mental illness or unfit to procreation of children
- Parties are under aged
- Parties are in relation of prohibited degree
- Impotency of respondent
There are some other grounds on which voidable marriage can be declared null and void.
- Marriage has not been consummated due to willful refusal of respondent.
- If respondent was pregnant by some other person at the time of marriage.
- Consent of either party was obtained by fraud or coercion as defined in Indian Contract Act, 1872
Special marriage Act provides legal status and security to the interreligious marriage performed according to the provisions of this Act. Any person of any cast or religion may perform his or her marriage under this Act.
Procedure for obtaining decree of nullity marriage
Procedure is generally same in all personal law for obtaining decree of nullity of marriage. Petition for nullity of marriage shall be presented before court. The jurisdiction of court is decided where defendant or respondent has resides or marriage has solemnized or place where the party has last resized together. Then court issue notice to respondent or defendant to give reply before court. After hearing and evidence court grant relief accordingly. Under the parsi law court means court established under the Act. Under Hindu Marriage Act, 1955 and Special Marriage Act, 1954 court is Family court or city civil court. Under the muslim law matter does not decided by court but matter decided by the religious practice.
Consequences of nullity of marriage
When the declaration of nullity of marriage is made with it court also decides the maintenance which is to be given to the opposite party either monthly or yearly or lump sum amount. Children born out of this marriage are deemed to be legitimate. Nullity of marriage is a declaration that there was no marriage in existence and parties are not husband and wife. They are free to marry to other. Nullity of marriage declares that there was no status of marriage between two persons. Null and void marriages have no legal status. They are against the law and not enforceable by law.
Under the statutory provisions there is no need to appoint pleader in family court but for understanding legal provisions and procedure is helpful to take assistance from lawyer.
In India there are different religion and practices and each having its own personal law related to marriage. In India marriage is a holy religious sacrament which is essential for the systematic functioning of society. It should be done without force and for continuation of family in all religion. Therefore ground for nullity of marriage is also same in India. Nullity of marriage make a person free from the marriage which is like a Burden over them. The grounds of nullity of marriage are also legal as well as taking care of religious sentiments.