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.

Void Marriage (Section 11)

A marriage which has solemnized after the commencement of Hindu Marriage Act, 1955 is
considered null and void if it fulfills the following conditions under Section 5 of the Act:

1. a) Bigamy [Section 5(i)]: If any of the parties to a marriage has another spouse
living at the time of marriage, it shall be considered null and void.
2. b) Prohibited degree [Section 5(iv)]: A marriage between prohibited degree
relations is void unless the customs and usages allow it.
3. c) Sapindas [Section 5(v)]: A marriage between parties who are sapindas is
void unless allowed by usages and customs.

*Sapinda relationship with reference to any person extends as far as the third
generation in the line of ascent through the mother, and the fifth through the
father, the line being traced upwards in each case from the person concerned, who
is to be counted as the first generation. Two persons are said to be sapindas of each
other if one is a lineal ascendant of the other within the limits of sapinda
relationship with reference to each of them[1].

Voidable Marriage (Section 12)

A marriage that is voidable at the option of either party is known as voidable marriage i.e. it is a
valid marriage until it is avoided on petition by either party to the marriage. A voidable marriage
 unless avoided has all legal consequences of a valid marriage and has same title under law as that
of a valid marriage.

These marriages can be held voidable by the decree of nullity by the court under Section of
Hindu Marriage Act, 1955. The parties to such marriage have to decide whether they want to
continue with such marriage or want annulment of the same.

 The grounds on which a party can file a petition for nullity of marriage under
this section are:

1. a) The party to a marriage was incapable of giving consent due to

unsoundness of mind.
2. b) The party has been suffering from mental disorder which makes him/her
unfit for procreation of children.
3. c) The party has been having recurrent attacks of insanity.
4. d) The consent of either of the party has been obtained by force or by fraud.
5. e) The parties at the time of the marriage were under-aged i.e. bridegroom
under 21 years of age and bride under 18 years of age.
6. f) The respondent was pregnant with the child of a person other than the
petitioner.

*The grounds are under Section 5 (ii) of Hindu Marriage Act, 1955.

 A petition under Section 12 for nullity of a voidable marriage shall not be

maintained unless the following conditions are fulfilled:

1) The petition shall be filed within one year of practice of force and fraud and discovery of the
same.

2) The petitioner, at the time of marriage, did not have knowledge of fact alleged in the petition.

3) The petition shall be filed within one year from the time when parties got the knowledge of
fact alleged.

4) The parties had not been sexually involved with each other since the fact alleged has been
discovered.

Difference between Void and Voidable Marriages

Void Marriages Voidable Marriages

1) It is void-ab-initio i.e. void from the 1) It is voidable at the option of either
very beginning. party i.e. valid unless avoided by either

2) A mere decree is passed as to nullity
of marriage by the court.
3) Parties are free to perform another
marriage without getting a decree for
nullity.
4) A wife in a void marriage does not
have a right to claim maintenance.
5) The parties do not have a status of
husband and wife.
party to the marriage.
2) The marriage is annulled by the decree
of nullity by the court.
3) The parties cannot perform another
marriage unless the marriage is annulled
by decree of court.
4) A wife in a voidable has a right to
maintenance.
5) The parties have a status of husband
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[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[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. Laxman[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.
C.S. Rangabhattar v. C. Choodamani[7]: The Andhra Pradesh High Court held that where a
husband cohabits with the wife even when he is aware of the wife’s pregnancy at the time of
marriage, he cannot file petition for decree of nullity of marriage.

Smt. Sariabai v. Komalsingh[8]: It was held that petition after eight years of marriage is barred
by statute of limitation and cannot be entertained.

Moina Khosla v. Amardeep Khosla[9]:  In this case, the husband was not capable of interacting
much with females and failed to have sexual intercourse with wife. It was held that the wife was
entitled to a decree of nullity of marriage.

Gayatri Bai v. Pradeep Kumar Chourasia[10]: In this case, the High Court defined Impotency
as practical impossibility to perform sexual intercourse completely and complete sexual
penetration is an important ingredient for ordinary intercourse but the satisfaction obtained by
the parties is irrelevant.

Dr. Shrikant Adya v. Smt. Anuradha[11]: The Karnataka High Court held that if a husband is
not able to lead a sexual life and has sexual weakness, it would amount to mental cruelty and the
wife can file petition for nullity of marriage.

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.