VOID MARRIAGE

A marriage is automatically void and is automatically annulled when it is prohibited by law.

Section 11 of Hindu Marriage Act, 1955 deals with:

Nullity of marriage and divorce- Void marriages - Any marriage solemnized after the
commencement of this Act shall be null and void and may, on a petition presented by either party
thereto, against the other party be so declared by a decree of nullity if it contravenes any one of
the conditions specified in clauses (i), (iv) and (v), Section 5 mentioned above.

The conditions for annulment of marriage are:

Bigamy - If either spouse was still legally married to another person at the time of the marriage
then the marriage is void and no formal annulment is necessary.

Interfamily Marriage- A marriage between an ancestor and a descendant, or between a brother

and a sister, whether the relationship is by the half or the whole blood or by adoption is void.

Marriage between Close Relatives- A marriage between an uncle and a niece, between an aunt
and a nephew, or between first cousins, whether the relationship is by the half or the whole
blood, except as to marriages permitted by the established customs is 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.
Difference between Void and Voidable Marriage / Legal Consequences of a
Void Marriage & Voidable Marriage

Void Marriage Voidable Marriage

A wife does not have the right

to claim maintenance in the A wife has the right to claim maintenance in the voidable marriage.
void marriage.

In a void marriage, the parties

do not have the status of Husband and wife have the status in the voidable marriage.
husband and wife.

In a void marriage, no decree

In a voidable marriage decree of nullity is required.
of nullity is required.

A void marriage is none in the

A void marriage is to be declared void by a competent court.
eyes of law.

The children in a voidable marriage are treated as illegitimate but this

The children in a void marriage
distinction is deleted by the Supreme Court and it said that a child cannot
are treated as legitimate.
be said termed as illegitimate.
 VOIDABLE MARRIAGE

A voidable marriage is one where an annulment is not automatic and must be sought by one of
the parties. Generally, an annulment may be sought by one of the parties to a marriage if the
intent to enter into the civil contract of marriage was not present at the time of the marriage,
either due to mental illness, intoxication, duress or fraud.

Section 12 of Hindu Marriage Act, 1955 deals with Voidable Marriages.

Some important terms under section 12 are:

Impotency - If either spouse was physically incapable of entering the marriage at the time of the
marriage, usually because of a lack of ability to have sexual intercourse, and if this inability
appears incurable or if the spouse refuses to take any action to cure the inability, there are
grounds for an annulment. The inability must continue and must exist at the time of suit.

Lack of Mental Capacity - If the court finds that either spouse did not have ability to
understand the nature of the marriage contract or the duties and responsibilities of the marriage
contract, then there may be grounds for an annulment. However, if the spouse who did not have
the ability to understand the contract gains the capacity to understand it and freely lives with the
other spouse, then this ground does not apply.

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.

In Pronab v. Krishna, it was held that Schizophrenia which is a type of lunacy is a ground for
making the marriage as null and void.

A Party was Under the Age of Consent - Marriage under the legal age, may be annulled. The
legal age for boys is 21 years and for girls is 18 years. A marriage by an underage party may
become legally binding and incapable of annulment if the cohabitation of the parties as husband
and wife continues voluntarily after the person reached the age of consent.

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.

In Vinita Saxena v. Pankaj Pandit, it was held that where the parties are young and the mental
disorder is of such a type that sexual act and procreation of children is not possible, it may
furnish a good ground for nullifying the marriage.

Fraud or Force - If the consent to the marriage contract was obtained either by fraud or force,
then there are grounds for an annulment. The person who has been threatened or deceived about
the marriage contract continues to live with the spouse after the discovery of the fraud or the
deception or after being forced into the marriage, it is possible that this ground will not apply.

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.

In Anurag Anand v. Sunita Anand, the court held that false particulars in bio data based upon
which the marriage was solemnized amounts fraud and the aggrieved party may annul the
marriage.
Pregnancy at the time of 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:

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.

The allegation based upon which the petition is filed was beyond the knowledge of the petitioner
at the time of solemnization of marriage.

The petition on such an allegation must be presented in the court within one year of knowledge
of such facts.

No sexual relationship is established after knowing about alleged facts.

THESE NOTES ARE ONLY FOR REFERENCE. IT IS SUGGESTED TO GO

THROUGH THE CLASS NOTES AND BOOKS ALSO.