MODULE 3[B]: VOID & VOIDABLE

MARRIAGES UNDER HINDU LAW

1. INTRODUCTION
Marriages in the Indian society, especially under the Hindu religion are considered to be both, a
sacrament, as well as a contract, meaning that while marriages under Hindu law are considered
to be union of eternity, at the same time, they are considered to be a contract entered into by two
parties capable to enter into a contract, making the marriage a contractual obligation till the death
of the parties (limited to the present life and not any other life); while on one hand, the
obligations imposed upon the couple in the marriage have a spiritual meaning, the marital
obligations are nothing but a contractual liability imposed upon the parties, failing which, they
may be liable for a breach of the contractual terms, attracting some form of punishment. While as
a sacramental affair, a marriage under Hindu ritual is a permanent bond and cannot be dissolved
under any circumstances, as a contract, it is nothing but a union recognized by law that can be
dissolved on the occurrence of any unforeseen incident or any breach of stipulated terms. It
means that marriages under Hindu religion are both sacramental (traditional) as well as a
contractual (modern) affair, and the governing law, The Hindu Marriage Act (HMA), 1955
blends both the concepts while regulating the marriages under its ambit.

Various concepts like void and voidable marriages, divorce, judicial separation etc. are a result
of the modern trends of development and a direct outcome of the high levels of education,
modernization and the independence arising from the ability of an individual to fend for
themselves and no longer remain dependent on the male member of the family. These concepts
can also be seen as a direct implication of the Right to live with dignity as enshrined in the
Constitution of India, because in the traditional sense or in the uncodified Hindu law, there was
no concept of divorce and that even in the most deplorable conditions, a woman could not leave
her husband and had to stay with him in all conditions. So, in order to ensure a dignified life to a
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woman, and to prevent the pious institution of marriage from being subjected to the ill will and
malpractices of the ‘contractors and protectors of the institution’, the provisions relating to void
and voidable marriages were given place in the HMA, 1955. The main provisions relating to
void and voidable marriage are Sections 5, 11, 12, 16, 17 and 18 of the Hindu Marriage Act,
1955.

The difference between void and voidable marriages was explained in the case of Smt.
Lajya Devi vs Smt. Kamla Devi wherein the court made the distinction as follows: “A marriage
is void where there is bigamy, consanguinity or within the degrees of prohibited relationship. In
these cases the court will regard the marriage as never having taken place and no status of
matrimony as ever having been conferred. Consequently, the parties never having been husband
and wife, either is competent to be called against the other. Consent of the parties performing the
marriage in breach of Clause (i) of Section 5 cannot validate it. Such is not the position in case of
a voidable marriage. A voidable marriage is regarded as valid and subsisting unless a competent
court annuls it. Until the decree of nullity is obtained in accordance with Hindu Marriage Act,
the tie remains binding. So long as there is no decree they will live and die married persons with
all the incidents that attach to that state. The expression 'void' means null, ineffectual having no
force or binding effect. Since a marriage performed in contravention of Clauses (i), (iv) and (v)
of Section 5 is void, it is incapable of being cured or ratified.”

Section 5 lays down the essentials of a valid marriage, and the violation of the conditions may
render the marriage void/voidable as the case may be. It lays down conditions relating to
polygamy, age, mental incapacity, degrees of prohibited relationship and sapinda relationships.

Section 11 deals with void marriages. Under this section, if some specific conditions of a valid
marriage as per Section 5 are not fulfilled, the marriage will be declared null and void by a
decree of nullity passed by the court on a petition presented by the one party against the other.
The contravention of the following conditions can render a marriage void:

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 ·Polygamy: Polygamy refers to having a lawfully wedded spouse at the time of a
marriage, or marrying again without getting out of the previous marriage. It is
strictly prohibited under the HMA, 1955 in the sense that as per Sec. 5(i), for a
marriage to be valid, it is essential that both parties to the marriage should not have
a living spouse at the time of the marriage, meaning that neither the bride nor the
bridegroom should not be married to someone else at the time of their marriage with
each other.

·Sapinda Relationships: As per Sec. 3(f), sapinda relationships refer to the lineal
ascendency which extends upto the third generation in case of mothers and fifth
generation in case of fathers; the line traced upwards. Two persons are said to be in
a Sapinda relationship if one of them is the lineal descendant of the other, or if they
have a common lineal ascendant who is a Sapinda in relation to both of them. It also
includes relations of full blood, half blood, uterine blood, and adoption. Any
marriage within two sapindas can render it void. For eg.A wishes to marry B, who
happens to be the daughter of his mother’s sister. They fall within the category of
sapinda relationships and their marriage, if solemnized would be void.

·Prohibited Relationships: As per Sec. 3(g), two persons are in prohibited relationship
if they are lineal ascendants of each other; if one is the husband/wife of a lineal
ascendant; if one is the wife of the brother, father, mother’s brother, grandfather,
grandmother’s brother; if they are brother-sister, uncle-niece, aunt-nephew, or the
children of two or more siblings. It also includes relations of full blood, half blood,
uterine blood, and adoption. Any marriage of persons within the degrees of
prohibited relationship can render it void. For eg.A wishes to marry B, who happens
to be the wife of his brother. They fall within the category of degrees of prohibited
relationship and their marriage, if solemnized would be void.

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Any marriage, if it contravenes the above mentioned conditions will be void, and cannot be
continued in any way possible.

Section 12 deals with voidable marriages. Under this section, if the conditions laid down in
Sec. 12(I) and some specific conditions of a valid marriage as per Section 5 are not fulfilled, the
marriage will be declared voidable by a decree of nullity. The contravention of the following
conditions can render a marriage void:

·Impotency of the respondent: One of the main objectives of marriage is the procreation of
an offspring to take the generation forward. It is to be noted that though it is not the sole
objective of marriage, such procreation is essential for the continuation of the family. If,
owing to the impotency (inability to engage in any sexual activity) of either the husband or
the wife, the couple is in no position to consummate their marriage, the marriage will be
voidable and if the parties agree, it can be declared void. This condition has been laid down
in Sec. 12(I)(a) of the HMA, 1955.

·Mental incapacity: Under this condition, if either of the parties is either incapable of giving
a valid consent due to unsoundness of mind, or though is mentally capable, suffers from such
mental illness which makes the party unfit for marriage or procreation of children, or if the
party is subjected to recurrent attacks of insanity, in such cases, the marriage is voidable.
This condition arises out of the treatment of a Hindu marriage as a contract, wherein it is
essential to have a valid consent of both parties to the contract. Moreover, a person of
unsound mind is generally not in a position to give a valid and informed consent. This
condition has been laid down in Sec. 12(I)(b) read with Sec. 5(ii) of the HMA, 1955.

·Consent by force or fraud: As per Sec. 12(I)(c), if the consent of a party, or of their
guardian as the case may be, which was mandatory for the purpose of the marriage, was
obtained either by force, or any fraudulent means, the aggrieved party can render the
marriage to be voidable. For eg. A, who wishes to marry B, tells her that he is the owner of
two big factories, to make her believe that he’s rich and obtain her consent for marriage.
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 When B will find out that A has done a fraud with her, she can make the marriage voidable.
However, Sec. 12(2)(a) places a bar on filing of petitions under this provision. The
provision states that if no petition is presented within one year of the discovery of the fraud
or the non-effectiveness of the force, or if the aggrieved party lives with their counterparts
with their full consent after the discovery of the fraud or the non-effectiveness of the force,
subsequently no petition can be presented before the court praying to make the marriage
voidable.

·Sexual relations and pregnancy thereof: Sec. 12(I)(d) lays down the condition wherein at
the time of the marriage the wife was pregnant with a child, other than that of the lawful
husband, he can make the marriage voidable. However, Sec. 12(2)(b) places a bar on filing
of petitions under this provision. It says that no petition under the section shall be brought
up unless the court is satisfied that the husband was not aware of the fact of the pregnancy of
his wife at the time of his marriage, or that the proceedings have been initiated within a year
of the commencement of the Act or within a year of the date of marriage as the case may be,
or that after the discovery of the fact, the husband has not engaged in any voluntary sexual
intercourse with his wife.

·Non fulfillment of requirements regarding age: Though there is no mention of this in Sec.
12, if the bride is below 18 years of age at the time of the marriage, or where both the parties
are under the age of majority at the time of the marriage, the marriage is voidable at the
instance of the parties. If the girl and the boy decide to remain married after the attainment of
majority, they can do so, but if either party, particularly the girl wishes to repudiate the
marriage, she can do so.

It is to be noted that while Section 11 relating to void marriages has only prospective effect,
i,e, it has application over the marriages solemnized after the commencement of the Act, Section
12 relating to voidable marriages has both retrospective as well as prospective effect, i,e, it

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has application over the marriages solemnized both before or after the commencement of the
Act.

Section 17 and 18 lay down the punishments in relation to the non- fulfillment of the
conditions of Section 5. As per Section 17, if any of the party has a lawfully wedded spouse at
the time of the marriage, he/she shall be punished under the provisions of sections 494 and 495
of the Indian Penal Code which include an imprisonment for a maximum time period of 10
years, and a fine. Section 18(a) lays down punishment for underage marriage which shall be a
rigorous imprisonment for a maximum 2 years or a maximum fine of Rs. 1, 00,000 or both.
Section 18(b) lays down punishment for marriage within sapindas or within degrees of
prohibited relationship, which shall be a simple imprisonment for maximum one month or a
maximum fine of Rs. 1, 000 or both.

A very important issue while discussing void and voidable marriages is the legitimacy of the
children of void and voidable marriages. While adjudicating any petition on void/voidable
marriages, it is essential to decide upon the status of the children of such marriage as any
adjudication would surely hamper their well being or have a detrimental effect on their
psychological condition. This issue has been dealt under Section 16 of the HMA, 1955. Sec.
16(1) states that any child of a void marriage would be a legitimate child, if he/she would have
been a legitimate child had the marriage been valid. Sec. 16(2) states that a child of a voidable
marriage, if born before the passing of the decree of nullity and had been a legitimate child, if on
the date of the decree, the marriage was dissolved instead of being annulled, shall be the
legitimate child of the couple. Sec. 16(3), however, states that any child of a void/voidable
marriage shall have no stake in any property, except that of his parents.

In the case of Jinia Keotin &Ors.v. Kumar Sitaram Manjhi &Ors. [(2003) 1 SCC 730], it
was contended that by virtue of Section 16(3) of the Act, which entitled such children's rights to
the property of their parents, such property rights included right to both self-acquired as well as

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ancestral property of the parent. But this was repelled by the judgement in the case of Revana
siddappa &Anr v. Mallikarjun &Ors.

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