NEW LAW COLLEGE

Name: Karishma Nilesh Shah

Class: F.Y.LLB ‘D’

Roll No.: 349

Subject: Family Law

Void and Voidable Marriages Under Muslim, Parsi And Christian Laws
 2

Table of contents

Topics Page Number

What is marriage 3
Essentials of a valid marriage 3
Special Marriage Act, 1954 4
What are void and voidable marriages? 4
Registration of Marriage 8
 3

1. What is Marriage?
Marriage also is known as matrimony or wedlock is a legally recognized union of two people in a socially
and recognized process that establishes rights and obligations between those persons and also between
their (if any) biological or adopted children.

2. Essentials of a Valid Marriage

2.1 Muslim Law:

Muslim marriage is regulated by custom. Muslim marriage is a contract with the sole object of procreating
heirs. The following are the essentials of a valid Muslim marriage:

 Parties must be of sound mind– Lunatics can get married at lucid intervals when they can understand
what they are doing. Idiots cannot do that. Idiocy is a state of mind where a person cannot understand
the consequences of his action. An insane person can contract a marriage with the help of a guardian
but on recovering he can repudiate the marriage.

 Parties must have attained puberty– The age of majority under this law is the age at which parties
have attained puberty. A person who is 15 years old is said to have attained puberty unless the
otherwise proved.

 The religion of both parties– For a valid marriage, both parties must be Muslims irrespective of the
sect.

 Consent– Both parties can give consent to the marriage on their own. If one of the parties is of
unsound mind, consent can be given by his/her legal guardian. Consent must be given willingly
without fraud, coercion or mistake of fact.

2.2 Christian Law:

The Indian Christian Marriage Act, 1872 governs Christian marriages in India. The conditions for getting a
certificate of valid marriage are similar to Hindu Marriage Act, 1955.

 The groom must be at least 21 years of age and the bride at least 18 years.
 Neither party should have a spouse living at the time of marriage.
 The bride and groom need a licensed person (refer to Part I of Indian Christian Marriage Act, 1872)
and two witnesses.
 they need to speak certain words in front of these persons.

2.3 Parsi Law:

The Parsi Marriage and Divorce Act, 1936 governs Parsi marriages in India. Section 3 lays down the
following conditions for a valid marriage:

 A ceremony called “Ashirvad” must take place in the presence of a priest and two Parsi witnesses.
 Just like the HMA, no prohibited relationships as per Schedule I.
 The bride and the groom should be 21 years old and 18 years old respectively.
 4

3. Special Marriage Act, 1954

The Act covers all marriages which are not covered in the above categories and its main objective is to
legalise inter-religion marriages. Parties belonging to the same religion can also be married under this Act.
The conditions for a valid marriage are as follows:

 Neither party must have a living spouse at the time of marriage.

 The parties must be of sound mind, capable of giving free consent and not subject to recurrent attacks
of insanity or epilepsy.
 They should not come under prohibited degrees of relationship with each other.
 The bride and the groom should be 21 years old and 18 years old respectively.

4. What are Void and Voidable Marriage

4.1 Kinds of Marriage under Muslim Law:

 Valid Marriage or the Sahih Marriage

Under all schools of Muslim law, the basic requirements have to be fulfilled, i.e. the parties are competent,
the consent of the parties is free consent and the offer and acceptance has been duly made.

Legal Effect of a Valid Marriage

i) The co habitation of the parties becomes lawful and not immoral;

ii) The children born to a lawfully wedded couple are legitimate and can inherit accordingly;

iii) For the couple itself, mutual rights of inheritance arise;

iv) The wife can claim dower and has a right to maintenance and simultaneously the obligation to observe
Iddat is bestowed upon her;

v) Prohibited relations are created due to the marriage;

vi) The legal identity or status of a Muslim woman does not blend in with her husband’s identity after
marriage; and

vii) The parties have rights to regulate the movements of each other, but they cannot refrain each other from
maintaining a relationship with their respective families or visits to then.

 Void Marriage or the Batil Marriage

It is an illegal union that exists not in law. Thus, a marriage in violation of absolute prohibitions or
polyandry is a void marriage. Shia law provides a few additional grounds like marriage during a pilgrimage
or marriage with a non-Muslim or a woman observing Iddat.
 5

Legal Effects of a Void Marriage

No mutual rights or obligations are created for the parties in this union. The children born to such a couple
are deemed illegitimate and the wife has no rights to dower or maintenance. The parties can actually marry
any one they wish for this marriage does not exist in law or in fact.

 Irregular Marriage or Fasid Marriage

An incomplete marriage where the deviation from procedure or a flaw can be removed, it is called an
irregular marriage. For example, the marriage with the fifth wife or with a woman observing Iddat will be
treated as an irregular marriage.

Legal Effects of an irregular Marriage

The cohabitation is lawful, and the children are legitimate and can inherit the properties of their parents.
Mutual rights of inheritance do not arise. After consummation only, can the wife claim dower. The wife does
not have to observe Iddat if the marriage is not consummated.

 Temporary marriage or Muta Marriage

It is a unique form of marriage recognised only under the Ithna Asharia School. It is a union for a particular
time only with consideration as a pre-requisite. The roots can be traced back to the early Arabia, where men
had to travel long and far. To confer legitimacy on the offspring produced during the travels, the Prophet
allowed this Muta or enjoyment marriage for some time. Later, he prohibited it absolutely.

It is essential that the parties must be competent to contract marriage because the guardians cannot contract
for a Muta marriage. The Muslim male can contract Muta marriage with a Muslim,

Kitabia or Parsi woman but the Muslim woman can contract the same only with Muslim men. Any number
of Muta wives can be contracted with.

The formalities of free consent offer and acceptance as well as absence of prohibition have to be followed.
The dower must be specified at the time of marriage otherwise the marriage will be deemed void. The
duration of the Muta marriage must be specified or else it will be deemed as a permanent marriage.

Legal Effects of Temporary Marriage

The cohabitation between parties becomes lawful and consequently even the children are legitimate children.
There will be no mutual rights of inheritance between the husband and wife. The husband has to pay the
whole dower amount if he leaves without finishing the duration of the marriage. If the wife were to leave
before the expiry of the specified time, the husband can deduct a proportionate amount from her dower.

Maintenance is not available to the wife as a right. There is no divorce in Muta marriages. It ends on the
prescribed time or departure of one of the parties. Iddat has to be observed for two months if the marriage
has been consummated, else it is not needed. If the marriage dissolved due to death, 4 months and 10 days is
the iddat period.
 6

4.2 Marriages between Parsis

 Requisites to the validity of Parsi marriages

i) Marriage is not valid if both the contracting parties are related to each other in any of the degrees of
consanguinity i.e. people descended from the same ancestors.
ii) In Parsi Law, a marriage is not valid if it is not solemnized by the priest in presence of two Parsi
witnesses.
iii) A marriage will not be considered if the male is not 21 years old and the female has not completed 18
years of age.
iv) If the marriage is not valid as per the points are given above, any child of such marriage who would
have been legitimate had the marriage been valid, shall be legitimate.

 Punishment of bigamy

Every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a
marriage again without having been divorced lawfully from such wife or husband, or without having his or
her previous marriage been declared null and void or dissolved, shall be subject to the penalties provided by
the Indian Penal Code for the offence of marrying again during the lifetime of his/her husband or wife.

 Matrimonial Suits

In Parsi law divorce act any of the spouses can get the marriage dissolved by the following three modes:

i) Suits for nullity: A marriage can be declared null or void by either party if the consummation is
impossible because of natural causes.
ii) Grounds of divorce: Under the Parsi Law divorce act, any married person may sue for divorce on any
one or more of the following grounds, namely:
- The marriage has not been consummated within 1 year after its solemnization because of the wilful
refusal of the defendant to consummate it.
- The defendant at the time of the marriage was mentally ill or of unsound mind and has been
habitually so up to the date of the suit.
- That the defendant was at the time of marriage pregnant by some person other than the plaintiff:
Provided that divorce shall not be granted on this ground, unless
- the plaintiff was at the time of the marriage unaware of the fact alleged,
- the suit has been filed within 2 years of the date of marriage,
- and marital intercourse has not taken place after the plaintiff came to know of the fact.
iii) Suits for dissolution of marriage: If a husband or wife have been absent from each other for a space of
7 years.

4.3 Indian Christian Marriage Act, 1872

According to the act, a marriage is legitimate if at least one of the parties is Christian. An ordained minister
of any church in India, a clergyman of the Church of Scotland, a marriage registrar or a special licensee may
get an aspiring couple married under the act. The marriage performer issues a marriage certificate. This
certificate is recorded with the Registrar of Marriage (who is appointed by the government). As is common
in other Indian marriage acts, the minimum age is 21 for the groom and 18 for the bride.

The marriage ceremony must occur between 6 a.m. and 7 p.m., unless the marriage performer secures
special permission. The wedding may take place in a church; however, in cases where there is no church
within five miles, an appropriate alternative location may be chosen.
 7

Conditions and Requirements

The marriage is legitimate only under the following conditions:

 The groom must be at least 21 years old.

 The bride must be at least 18 years old.
 The agreement between the two parties must be free and voluntary and without compulsion, undue
influence, or threat of violence.
 The marriage must be witnessed by two reliable eyewitnesses and by a licensed marriage performer.

Marriage Dissolution

Christian marriage in India can be dissolved under the Indian Divorce Act of 1869 (under Section X) under
three conditions:

 By Section X A (as amended in 2001) both parties can file for a divorce by mutual consent.
 According to Section X (I), either party can file for divorce on the grounds that the other party is of
unsound mind. These grounds require two conditions:
- The party must be medically certified as 'incurable.'
- The relevant medical symptoms must have been noted at least two years prior to filing for divorce. If
the symptoms were treated at any point in time, but ultimately became incurable, the period of two
years will be counted from the date when the disease was certified as incurable.
 Women can request a divorce under Section X (II) on three exclusive grounds: rape, sodomy and
bestiality.

A woman married under The Indian Christian Marriage Act of 1872 can seek dissolution of her marriage
under the Indian Divorce Act of 1869.

Offence

Any individual who performs a marriage ceremony when not appropriately licensed by the authorities or
recognized by the church can be punished with a term of imprisonment of between seven and ten years.

Remarriage

Under the special marriage act, any woman of any religion can marry or remarry without satisfying any
religious ceremony.
 8

5. Registration of Marriage
In India, a marriage can be registered under either of the two marriages Act:

- The Hindu Marriage Act, 1955

- The Special Marriage Act, 1954

The Hindu Marriage Act is applicable only to the Hindus, The Hindu Marriage Act provides for registration
of an already solemnized marriage. It does not provide for solemnization of marriage by the Registrar. The
Hindu Marriage Act is applicable in cases where both husband and wife are Hindus, Buddhists, Jains or
Sikhs or where they have converted into any of these religions. The parties to the marriage have to apply to
the concerned authority in whose Jurisdiction the marriage is solemnized or either party to the marriage has
been residing.

The documents required for Registration of Marriage Under the Hindu Marriage Act, 19551 are:

 Application form duly signed by both husband and wife.

 Age and address proof of both parties
 Affidavit of Notary/Executive Magistrate to prove stating place and date of marriage, date of birth,
marital status at the time of marriage (the couple is married under Hindu Marriage Act 1955, fit mental
condition, non-relationship between the parties within the degree of prohibition.) and nationality.
 Two passport size photographs of both the parties and one photograph of the marriage ceremonies.
 Invitation card of marriage.
 If marriage was solemnized in a religious place, a certificate from the priest is required who solemnized
the marriage
 Attested copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of
widow/widower.
 In case one of the parties belong to other than Hindu, Buddhist, Jain and Sikh religions, a conversion
certificate from the priest who solemnized the marriage (in case of Hindu Marriage Act)

Both the parties have to appear before the Registrar along with their parents or guardians or other witnesses
within one month from the date of marriage. Marriage is registered before a marriage registrar/tahsildar of
the district, wherever the parties got married. The registration under the Hindu marriage Act does not require
any notice. It can be done on the same day of the filing of application or a few days of moving the
application for marriage. The parties will receive a marriage certificate within few days, which is a proof of
registration of marriage.

The Special Marriage Act is applicable to all citizens of India. Any person, irrespective of religion such as
Hindus, Buddhists, Jains, Sikhs, Muslim, Christian, Parsi, or Jewish can perform marriage under the Special
Marriage Act, 1954. Under the Special Marriage Act one months’ notice period is a statutory provision,
which cannot be avoided. A copy of notice is affixed on the notice board of the registration office and a copy
of the notice is sent to the marriage officer of the area where either of the parties having present/permanent
addresses for similar publication. After the expiration of one month from the date of publication of the
notice, if no objections are received the marriage may be solemnized.
 9

The documents required for Registration of Marriage Under the Special Marriage Act, 1954 are:

 Application form duly filled and signed by the bride and the groom.
 Age and address proof of both parties
 Separate affidavits from bride and groom giving: Age and Date of birth, Present marital status:
unmarried/widower/ divorcee.
 Affirmation that the parties are not related to each other within the degree of prohibited relationship, fit
mental condition defined in the Special Marriage Act.
 Passport size photographs of both parties (2 copies each) duly attested by a Gazetted Officer.
 Copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of
widow/widower.

Both parties are required to be present along with three witnesses on the date of registration. In the presence
of these three witnesses the marriage is solemnized by the Marriage officer. The Marriage officer registers
the marriage and a marriage certificate is issued within few days of marriage.

Registration of Christian Marriage

In India Christian marriages are solemnized according to the Indian Christian Marriage Act of 1872 by a
minister/priest in a church. After the marriage the priest registers the marriage and issues a marriage
certificate. Now Supreme Court of India has ordered the compulsory registration of all marriages in India,
irrespective of the religion. A marriage, which has already been solemnized by a priest in the church, can
also be registered by a registrar of marriages.

The documents required for Registration of Christian Marriage are:

 Application form duly signed by both husband and wife.

 Age and address proof of both parties,
 Affidavit of Notary/Executive Magistrate to prove stating place and date of marriage, date of birth,
marital status at the time of marriage and fit mental condition.
 Two passport size photographs of both the parties and one photograph of the marriage ceremonies.
 Invitation card of marriage.
 The marriage certificate issued by the priest.

All documents should be attested by a Gazetted Officer.