This article is written by Arijit Mishra, from KIIT School of Law, Odisha. This article talks about the Void and Voidable Marriage under Hindu Marriage Act, 1955.

Introduction

The concept of marriage is to form a relationship between husband and wife. Marriage is a religious tie which cannot be broken. According to Section 5 of Hindu Marriage Act, 1955 it was accepted that a Hindu Marriage was a religious ceremony and also a Sanskara (performed as a purification rite). It was also established that every and any Hindu could marry. The exceptions to this are the ones prohibition which is on the basis of caste, gotra, religion and blood relationship. Such prohibition is based on some rules which are endogamy (where a man cannot marry a woman, who is of his relation) and exogamy (a man cannot marry a woman who belongs to another tribe). Endogamy and Exogamy are illegal in the view of Hindu Marriage Act, 1955.

According to ancient writers, a man was incomplete without a wife. The concept of marriage was to enable a man and a woman to perform religious duties. 

Since the present Hindu Law is not applicable to the tribals of different parts of India, those tribals are governed under their traditional laws and usage.

Types of Marriage

There are three types of marriage-

• Valid Marriage
• Void Marriage
• Voidable Marriage

Valid Marriage

Section 5 of the Hindu Marriage Act,1955 states the conditions for a valid marriage. A marriage can be said valid, if it fulfils following conditions:

• None of these parties have spouses living at the time of the marriage.
• During the time of the marriage, neither party should be-

1. Incapable of giving valid consent due to the unsoundness of mind.
2. Suffering from mental disorder to an extent as to be unfit for marriage and procreation of children.
3. Subjected to repeated attacks of insanity.

• Age- The bridegroom must be 21 years or above and the bride must be 18 years or above.
• The parties are not in a degree of prohibited relationship.
• Parties are not sapindas (blood relation) to each other.

Nullity of Marriage

If there are any impediments (obstructions), then the parties cannot marry each other. If someone marries and there are any obstructions in the marriage process then it is not a valid marriage. Impediments are divided into two types which are: absolute impediments and relative impediments.

In absolute impediments, a fact that disqualifies a person from lawful marriage exists and the marriage is void i.e an invalid marriage from the beginning. 

In relative impediments, an impediment that forbids marriage with a certain person exists and the marriage is voidable i.e one party can avoid the marriage. These impediments gave rise to the classification of marriage which are:

• Void Marriages
• Voidable Marriages 

Provision of Void and Voidable Marriages under Hindu Marriage Act, 1955

Void Marriages (Section 11)

A marriage is considered void under the Hindu Marriage Act if it doesn’t fulfils the following conditions of Section 5 of the Hindu Marriage Act:

• Bigamy

If any of the parties have another spouse living at the time of marriage. It shall be considered as null and void.

Illustration: there are three parties ‘A’,’B’ and ‘C’ where ‘A’ has a living spouse ‘B’, but he again marries to ‘C’ then this will be called as bigamy and it will be void.

• Prohibited Degree

If the parties are within a prohibited relationship unless the customs allows it.

Illustration: there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his wife. They both went on a relationship which is prohibited by law. This marriage can also be called void marriage.

• Sapindas

A marriage between the parties who are sapindas or in other words a marriage between the parties who are of his or her relations or of the same family.

Illustration: there are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is the wife, who has blood relation or close relation to A which can also be termed as Sapinda. So, this process will be treated as void.

Consequences of a Void Marriage

The consequences of void marriage are:

• The parties don’t have the position of husband and wife in a void marriage.
• Childrens are called legitimate in a void marriage (Section 16 of Hindu Marriage Act, 1955).
• Mutual rights and obligations are not present in a void marriage.

Voidable Marriages (Section 12)

A marriage is voidable on either side of the party is known as voidable marriage. It will be valid unless the petition for invalidating the marriage is made. This marriage is to be declared void by a competent court under the Hindu Marriage Act, 1955. The parties of such marriage have to decide whether they want to go with such marriage or make it invalid.

The grounds where marriage can be termed as voidable:

• The party to the marriage is not capable of giving consent due to the unsoundness of mind. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. ‘B’ gave the consent of the marriage when she was suffering from an unsound mind. After some years, ‘B’ gets cured and raised that her consent was invalid and this marriage is voidable because during the time of the consent of ‘B’, she was in an unsound mind. So, this a ground of voidable marriage.

• The party is suffering from mental disorder which makes her unfit for reproduction of children. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is suffering from mental disorder due to which she is unfit for reproduction of children. Then this can be a ground for voidable marriage.

• If the party has been suffering from repeated attacks of insanity. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. Anyone from ‘A’ or ‘B’ is suffering from repeated attacks of insanity, then this can also be a ground for voidable marriage.

• The consent of marriage by either of the parties is done by force or by fraud. Illustration: There are two parties ‘A’ and ‘B’ where A is the husband and B is his wife. If either party gave consent to the marriage by force or fraud, then it will be a voidable marriage.

• If either of the parties are under-aged, bridegroom under 21 years of age and bride under 18 years of age. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. If ‘B’ is under the age of 18 years then this marriage will be considered as voidable or if A is under the age of 21 years then it can also be considered as voidable marriage.

• If the respondent is pregnant with a child of someone other than the bridegroom while marrying. Illustration: There are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is his wife. During the time of the marriage if ‘B’ is pregnant through another person. Then the marriage would be voidable.

• 

Necessary conditions to be fulfilled by a petition under Section 12 for nullity of a Voidable Marriage

1. On the plea of fraud or application of force on marriage, a petition can be filed before the court within one year of discovery of such fraud or application of force.
2. The allegation based upon which the petition is filed was beyond the knowledge of the petitioner at the time of solemnization of marriage.
3. The petition on such an allegation must be presented in the court within one year of knowledge of such facts.
4. No sexual relationship is established after knowing about alleged facts.

Difference between Void and Voidable Marriage

Legitimacy of Children under Void and Voidable Marriages

• Legitimacy of children under void and voidable marriages are specified under Section 16 of Hindu Marriage Act, 1955.
• In a void marriage, any children born out shall be treated as legitimate.
• In a voidable marriage, any child born of a marital relationship subsequently declared as nullity by court shall also be termed as legitimate.
• Even if the marriage under Section 11(void marriage) or Section 12 which is declared as null and void, notwithstanding such circumstances the child born out of such marriage is held to be legitimate. 
• If prior to the marriage, the bride was pregnant and gave birth to the child after the marriage, such a child cannot be treated as legitimate because that child was not born out of the marital relationship of the present marriage and therefore, the child born after the marriage having been conceived prior to the marriage is to be held illegitimate.  Illustration: If there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his wife. During the time of the marriage ‘B’ is pregnant through another. After the marriage of ‘A’ and ‘B’, the child born does not come from the marital relationship of ‘A’ and ‘B’. That child will be termed as illegitimate.

Conclusion

Prior to the Hindu Marriage Act, 1955 the parties to the marriage had no remedy to get out of the marriage. Section 11 and Section 12 of Hindu Marriage Act, 1955 is a remedy for the parties, who are in a void and voidable marriage. After the enactment of the Amendment Act, 1976 the child born out of void and voidable marriage shall be termed as legitimate. There are certain grounds for valid marriage under Section 5 of the Hindu Marriage Act,1955, if someone violates it then it amounts to void marriage or voidable marriage.

References 

• https://www.lawnn.com/void-and-voidable-marriages/
• https://www.shoneekapoor.com/void-marriage/
• https://www.slideshare.net/mdharoonrasheed/hindu-law-void-marriages-52220032
• https://www.legalbites.in/law-notes-hindu-law-distinction-between-void-and-voidable-marriage/
• https://lawnotesforstudents.blogspot.com/
  

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