Home General Section 11 and 12 of the Hindu Marriage Act, 1955

General

Section 11 and 12 of the Hindu Marriage Act, 1955

January 27, 2023

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This article is written by Tarini Kalra, a student of B.B.A. LL.B. from Fairfield Institute of Management and Technology, GGSIPU. The present article provides exhaustive details about the void and voidable marriages under the Hindu Marriage Act of 1955.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

The institution of marriage is considered as a sacred tie and a holy union. The Hindu marriage is governed under the Hindu Marriage Act, 1955 (hereinafter referred to as “HMA, 1955″), whose primary aim is to modify and regulate the rules governing marriage among Hindus and others. It is a personal law for Hindus and others that governs Hindu marriage, restitution of conjugal rights, judicial separation, divorce, annulment of marriage, maintenance, and guardianship. The enactment of the HMA, 1955 resulted in consistency and uniformity of legislation for all Hindus. Section 2 states that the Act is applicable to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj, or any person who is a Buddhist, Jaina or Sikh, or any other person residing in the territories to which the act extends who is not a Muslim, Christian, Parsi or Jew unless it can be established that such person would not have been governed by Hindu law, any custom or usage incorporated into the code in relation to any of the matters addressed in the HMA, 1955, had not been passed. Section 4 discusses the overriding effect of the act. Any Hindu law rule, interpretation, custom, or usage that existed before the enactment of this act would no longer be applicable to any matter covered by this act. Any previous statute that was in effect immediately before the enactment of HMA, 1955 came into effect, must be repealed if it conflicts with any of its provisions.

“Marriage” under Hindu Marriage Act, 1955

Marriage has been one of the most significant social institutions since ancient times. A Hindu marriage is considered a holy sacrament. It is a sacrament of a spiritual religious ceremony. It is classified as a religious sacrament when recognised rituals and ceremonies are performed.

The Madras High Court ruled in the case of Manorama Akkineni v. Janakiraman Govindarajan (2011) that the Hindu marriage has not lost its purity and holiness and it is regarded as a sacrament and not a contract.

Section 5 outlines the necessary conditions for marriage fulfillment. The conditions are as follows:

Neither party to the marriage has a living spouse at the time of the marriage.;
At the time of the marriage, neither party is

Incapable of giving valid consent due to unsoundness of mind; or
Competent of providing valid consent but has been suffering from a mental disorder that renders them unfit for procreation; or
Suffering from recurring attacks of insanity.

At the time of the marriage, the age of the groom is 21 years and the age of the bride is 18 years;
The parties to the marriage are not in a prohibited relationship unless the custom or usage permits the marriage;
The parties to the marriage are not sapindas of each other unless the custom or usage permits the marriage.

In the case of Rency Mathew v. Bharath Kumar (2020), the Karnataka High Court ruled that even if a marriage is solemnised according to Hindu customary rites and ceremonies if one of the parties is not a Hindu and the other conditions under Section 5 are fulfilled, it is not a “Hindu Marriage” within the ambit of Section 5 of the HMA Act, 1955.

Section 7 provides for the solemnisation of a Hindu marriage. It states that a Hindu marriage may be solemnized according to the customary rites and ceremonies of either party. Such rites and ceremonies include the Saptapadi. Saptapdi is a ritual where the groom and the bride jointly before the sacred fire circumambulate seven times so the marriage becomes complete and binding.

State amendments under Section 7

Pondicherry State Amendment Act, 1971 and Tamil Nadu State Amendment Act, 1967

The HMA Act, 1955, introduced Section 7A, which states that this section applies to any marriage between any two Hindus solemnised in the presence of relatives, friends, or other persons,

The parties to the marriage proclaim in whatever language they understand that each accepts the other to be his or her wife or husband; or
The parties to the marriage garland each other or place rings on each other’s fingers;
By the tying of the thali.

All marriages which apply to solemnisation after the beginning of the Hindu Marriage Tamil Nadu Amendment Act, 1967, shall be lawful and legal in law, notwithstanding anything stated in section 7 and subject to the other provisions of this Act.

Nothing under Section 7A shall be construed as:

Recognise any marriage mentioned in Section 7(2)(b) that occurred before the enactment of the Hindu Marriage Tamil Nadu Amendment Act, 1967 if the following conditions are fulfiled:

Such marriage has been dissolved by any custom or law;
The woman who was a party to the marriage has lawfully married another, whether while the other party was alive or after; or

Declare invalid any marriage between any two Hindus solemnised at any time before to such beginning, if such marriage was legitimate at that time; or
If a marriage between two Hindus was previously declared invalid for any reason other than the fact that neither party has performed the traditional rituals and ceremonies, then such marriage will be considered valid. No one shall be punished for anything done or failed to be done by him before the commencement of the amendment.
Any child born out of a marriage referred to in Section 7A (2)(b) will be assumed to be the parties, legitimate child.

In the case of A. Asuvathaman v. Union of India (2015), the Madras High Court upheld the validity of Section 7A. The court noted that there is a presumption in favour of an enactment’s constitutionality and that Section 7A of the HMA Act, 1955, allows for a specific kind of marriage, the Suyamariyathai marriages. The court concluded that the provision cannot be invalidated on the basis of discrimination because it is the parties’ right to get married as per the requisites of Section 7A.

Void Marriage under Hindu Marriage Act, 1955

A void marriage is a marriage that is invalid or illegitimate. A void marriage is void from the beginning, void ab initio. A decree for void marriage is a judicial declaration of pre-existing fact. Section 11 states that any marriage solemnised shall be deemed null and void by a decree of nullity if it violates the provisions of Section 5 (i), (iv), and (v).

Grounds for void marriage

The grounds of void marriage are as follows:

Bigamy

Bigamy is the act of marrying someone else while remaining legally married to someone. HMA, 1955, prohibits bigamy under Section 5(i). Section 17 deals with the punishment of bigamy. Any marriage solemnised between two Hindus, including Buddhist, Jaina, or Sikh is void if either party had a husband or wife living at the time of the marriage and is subject to the provisions of Sections 494 and 495 of the Indian Penal Code, 1860.

In the case of Shiromani Jain v. Dr Ashok Kumar Jain (2017), the Hon’ble Supreme Court held that Section 17 of the Hindu Marriage Act mandates that the marriage be appropriately solemnised with the essential rites needed by law or by custom. The voidness of the marriage under Section 17 is a necessary component of Section 494 since the second marriage will become null and void only when the provisions of Section 17 are satisfied.

Parties are within the degrees of prohibited relationship

The parties to the marriage are not in a prohibited relationship unless the custom or usage permits the marriage. Section 3(g) of the HMA, 1955, defines prohibited relationships.

The following situations fall under the definition of a prohibited relationship:

When one is a lineal ascendant of the other. Lineal ascendant includes father, grandfather and great grandfather; or
When one was the wife or husband of a lineal ascendant or descendant of the other; or
When one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or
If the two are siblings, uncle and niece, aunt and nephew, or children of brother and sister or cousins;

Relationship includes the following:

Relationship by half or uterine blood and by full blood;
Illegitimate and legitimate blood relationship;
Relationship by adoption and blood.

The Punjab-Haryana Court clarified in the case of Kiran Kaur v. Jagir Singh Bamrah (2014) that the provisions of Section 23(1)(a) of the Act do not preclude any party to the marriage from filing a petition under Section 11 of the HMA, 1955, seeking a declaration that the second marriage is null and void.

Parties are Sapinda to each other

Section 3(f) defines the Sapinda relationship. A person is considered to be in a Sapinda relationship if they can be traced upward from the individual in question, who is to be counted as the first generation, to the third generation in the line of ascent via the mother, and the fifth in the line of ascent through the father. If two persons share a lineal ascendant that falls within the boundaries of a Sapinda connection with regard to each of them, or if they are one another’s lineal ascendants within those parameters, they are said to be “sapindas” of one another.

Legitimacy of children of void marriages

Section 16(1) deals with the legitimacy of children of void marriages. Whether the child was born before or after the Marriage Laws (Amendment) Act, 1976, whether a decree of nullity was granted in respect of that marriage, or whether the marriage was held to be void other than on a petition under this act, it is stated that any child of a void marriage will be legitimate in the same way as the children of a valid marriage.

According to Section 16(3), even if the child of a void marriage is declared genuine, such a child can acquire the property of their parents and acquire or possess the right to ancestral property.

In the case of Balkrishna Pandurang Halde v. Yeshodabai Balkrishna Halde (2018), the Bombay High Court remarked that a child’s ability to claim a share from a void marriage is restricted to the amount of their father’s separate property and that they cannot make any claim during their father’s lifetime. Their entitlement to their father’s separate property will become available upon his death, through succession.

Voidable Marriage under Hindu Marriage Act, 1955

The term ‘voidable’ means the ability to be invalidated or nullified. Section 12 of the HMA, 1955, deals with voidable marriages. A voidable marriage is a legally binding and lawful marriage. It can continue to exist until the competent court issues a decree annulling the marriage. It can be regarded as a legitimate marriage until one of the partners violates the prerequisites for marriage legality. The parties of a voidable marriage have all the rights and duties of marriage until the court dissolves the union by a decree.

Grounds of voidable marriage

The grounds of a voidable marriage are as follows:

Impotency

Impotency is the inability to perform an act of sexual intercourse. It can be a physical, psychological, or emotional aversion. Under HMA 1955, impotency would render marriage voidable under Section 12(1)(a). The ground of impotency can be claimed if either of the parties was impotent at the time of the marriage. In order to seek relief on the grounds of the impotency of the respondent, relevant facts and proofs must be established. A mere accusation cannot be made to claim the ground of impotency.

In the case of Devki Nandan Das v. Smt. Manorama Das (2022), the Chattisgarh High Court held that a false allegation of torture and impotency amounts to mental cruelty.

The Hon’ble Supreme Court ruled in Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari (1969) that a party is impotent if their mental or physical state makes marital consummation a realistic impossibility.

Contravention of Section 5(ii)

A marriage shall be deemed voidable if it violates the provisions of Section 5(ii) if either the husband or the wife suffers any of the following at the time of the marriage:

Incapable of giving valid consent to it due to unsoundness of mind; or
Competent in providing valid consent but has been suffering from a mental disorder that renders them unfit for procreation; or
Suffering from recurring attacks of insanity.

The Andhra Pradesh High Court remarked in the case of Tallam Suresh Babu v. T. Swetha Rani (2018) that a person must prove under Section 12(1)(b) the unsoundness of mind-affecting consent, mental disorder, and severity that rendered the respondent unfit for procreation, or recurring attacks of insanity.

Consent obtained by coercion or deception

A marriage will be deemed voidable if consent is obtained by force or fraud. Force can be physical force or threat. Fraud can be committed by the nature of the ceremony, misrepresentation of age, concealment of facts, or any other circumstance of the respondent which may have affected the consent.

The consent of the guardian in the marriage of the petitioner obtained by force or by fraud will also be a ground for a voidable marriage within the ambit of Section 12(1)(c). The Child Marriage Restraint Act, 1929, has been enacted to forbid child marriages in India. It also protects and assists victims of child marriage.

The Delhi High Court remarked in Mamta Rani v. Sudhir Sharma (2014) that the concealment of the appellant’s mental condition is a ground for annulment of marriage under Section 12(1)(c) of the Hindu Marriage Act, 1955.

Concealment of pre-marriage pregnancy

Concealment of pre-marriage pregnancy by the respondent is a ground of voidable marriage. The suit must be instituted within a year of the commencement of the HMA, 1955, and within a year of solemnization of the marriage after the commencement of the act. The requirements for these grounds are

The respondent was pregnant at the time of marriage;
Respondent was pregnant by someone else other than the petitioner;
The petitioner was unaware that the respondent was pregnant at the time of their marriage.

In the case of Neelawwa v. Maruti (2013), the Karnataka High Court held that the petitioner who is seeking the relief of decree of nullity is not liable to prove the ground under Section 12(1)(d), but needs proof to declare a marriage as a nullity. In other words, the proof necessary to establish in a civil suit that the respondent at the time of marriage was pregnant by someone other than the petitioner is more than the case of likelihood but less than proof beyond a reasonable doubt. The petitioner must establish without a shadow of a doubt that the respondent was carrying another person’s child at the time of the marriage.

Grounds on which petition for voidable marriages cannot be admitted

The grounds on which a petition for voidable marriages cannot be admitted are as follows:

The petition is presented more than one year after the force had ceased to operate or, the fraud had been discovered; or
If the force had ceased to exist or the fraud had been revealed, the petitioner agreed to cohabitate with the respondent to the marriage as husband or wife.

The legitimacy of children of voidable marriages

Section 16(2) deals with the legitimacy of a child of voidable marriages. It states that if a decree of nullity is granted in a voidable marriage under Section 12, any child born or conceived before the decree is passed will be the legitimate child of the parties to the marriage if the marriage had been dissolved rather than annulled on the date of the decree, notwithstanding the decree of nullity. Any child of a voidable marriage has rights on the property of the parents.

In the case of Anil Kumar v. State of Uttar Pradesh (2022), Allahabad High Court remarked that a child born out of a void or voidable marriage is legitimate and is entitled to be included in the concept of ‘family’ and is therefore eligible to be nominated under the Dying in Harness Rules, 1974.

The Hon’ble Supreme Court defined the scope of Section 16(3) in the matter of Revanasiddappa & Anr v. Mallikarjun & Ors (2011). It was pointed out that Section 16(3) imposes no restrictions on such children’s property rights other than confining them to their parents’ property. As a result, such children will have a right to their parents’ property, whether self-acquired or inherited.

An exception to void and voidable marriage

Section 5(iii) of the HMA, 1955, states that at the time of the marriage, the age of the groom should be 21 years and the age of the bride should be 18 years. This provision is neither void nor voidable. Section 18 deals with the punishment in the case of contravention of Section 5(iii) with imprisonment of up to two years or with a fine which may extend to one lakh rupees, or both.

In the case of Sh. Jitender Kumar Sharma v. State & Another (2010), the Delhi High Court held that marriages performed in violation of the age prescribed in Section 5(iii) of the HMA are not void or voidable but are punishable under Section 18 of the HMA along with the provisions of the Child Marriage Restraint Act, 1929.

In the case of Yogesh Kumar v. Priya (2021), the Punjab-Haryana High Court held that a child marriage becomes a valid marriage if no petition is filed for an annulment and the child doesn’t declare it void before attaining the age of 18.

Difference between void and voidable marriages

S.No.	Grounds	Void marriage	Voidable marriage
	Section	A void marriage is dealt with under Section 11 of the HMA, 1955.	A voidable marriage is dealt with under Section 12 of the HMA, 1955.
	Meaning	A void marriage is a marriage that is invalid or illegitimate. A void marriage, is void from the beginning, void ab initio.	A voidable marriage is legally binding and can be invalidated. or nullified at the option of one of the parties.
	Parties to the suit	The parties do not share the marital status of husband and wife.	The parties share the marital status of husband and wife.
	Maintenance	Maintenance cannot be claimed in a void marriage.	Maintenance can be claimed in a voidable marriage.
	Decree of nullity	A decree of nullity for void marriage is a judicial declaration of a pre-existing fact.	A court order can declare the marriage null and invalid.

Conclusion

Although marriage is a holy relationship between a husband and a wife, there are still ramifications that could lead to a marriage becoming void or voidable. Sections 11 and 12 of the Hindu Marriage Act of 1955 provide a remedy for parties who are in a void or voidable marriage. When a party to a marriage violates the provisions of Section 5 of the HMA, 1955, the marriage is void or voidable. The situation of children from void or voidable marriages has improved significantly. The Marriage Laws Amendment Act, 1976, has clarified that the declaration of a void marriage is not required to provide the status of legitimacy to the children of such a marriage.

Frequently asked questions (FAQs)

Can a void marriage be considered a marriage?

No, the parties to a void marriage do not share the marital status of husband and wife.

What are the grounds for a void marriage?

A marriage can be declared void if the provisions of Section 5 (i), (iv), and (v) are fulfilled.

What is the difference between voidable marriage and divorce?

A voidable marriage is legally binding and can be invalidated whereas a dissolution of the marriage is divorce.

Is a voidable marriage legal?

Yes, a voidable marriage is a legally binding marriage that can be revoked at the choice of either of the parties.

References

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