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Void and Voidable Marriages under Hindu Marriage Act, 1955

February 25, 2020
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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

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:

  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.

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:

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:

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.

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.

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:

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:

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

Void Marriage Voidable Marriage
A wife does not have the right to claim maintenance in the void marriage. A wife has the right to claim maintenance in the voidable marriage.
In a void marriage, the parties do not have the status of husband and wife. Husband and wife have the status in the voidable marriage.
In a void marriage, no decree of nullity is required. In a voidable marriage decree of nullity is required.
A void marriage is none in the eyes of law. A void marriage is to be declared void by a competent court.
The children in a void marriage are treated as legitimate. The children in a voidable marriage are treated as illegitimate but this distinction is deleted by the Supreme Court and said a child cannot be said termed as illegitimate.

Legitimacy of Children under Void and Voidable Marriages

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 

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