VOID AND VOIDABLE MARRIAGES

Void Marriage:

Meaning: A void marriage is no marriage at all. It does not exist from the very beginning.

Section: Section 11 of the Hindu marriage Act, 1955 deals with void marriage.

Marriage does not exist in the eye of law.

The court simply passes the decree of nullity since the marriage has no existence at all.

Parties can remarry without decree of nullity from the court.

Wife cannot claim maintenance under Section 125 of Cr.P.C

Void marriage is void ab initio

Parties to a void marriage are criminally liable.

In void marriages, not only first wife but a third party who is affected can bring a suit in Civil
Court for declaring such marriage void.

Example:
If a brother and sister perform all the ceremonies of marriage and start living
as husband and wife, they will not become husband and wife in the eyes of
the law even though they have performed the ceremonies and rituals of a
marriage.

Grounds of a Void Marriage

1. Bigamy (it means either party has a spouse living at the time of
marriage)
2. When the parties are sapinda to each other (refer Section 3(f) of
the Hindu Marriage Act, 1955).
3. When the parties are within the prohibited degree of
relationship (see Section 3(g) of Hindu Marriage Act, 1955.
In the case of Rampyari v. Dharamdas 1984, it was said by Allahabad High Court that an application
for declaring a marriage void is not required to be presented by the victim only.

In another case of Leela v. Lakshmi 1968, it was held that void marriage does not require even the
decree of a court.

In M.M. Malhotra v. UOI, the Apex Court observed that the marriages covered by Section 11 are
void ipso jure, that is, void from the very inception and have to be ignored as not existing in law at all
if and when such a question arises. Although the Section permits a formal declaration to be made on
the presentation of the petition, it is not essential to obtain in advance such a formal declaration
from a court in a proceeding commenced for the purpose. If one withdraws from the society of the
other, the other party has no right to the restitution of conjugal rights. If one of them marries again,
he or she is not guilty of bigamy and the validity of later marriage is not affected because of the first
so called marriage

Consequences of a void marriage:

• The parties have no status of wife and husband
• Children of a void marriage are illegitimate (this is subject to the provision of section 16 of Hindu
Marriage Act 1955).
• A void marriage doesn’t give rise to mutual rights and obligations.

Voidable marriage
Meaning: A voidable marriage is one which can be avoided at the option of one of the parties
to the marriage. It remains valid for all practical purposes until and unless its validity is
questioned.

Section: Section 12 of the Hindu marriage Act, 1955 deals with voidable marriage.
Marriage exists and continues to be valid unless it is challenged.

The court passes the decree after taking into account necessary conditions.

Parties cannot remarry without decree of nullity from the court.

Wife can claim maintenance.

A voidable marriage is regarded as valid until the competent court annuls it.

Parties to voidable marriage are not laid down with penalty.

In voidable marriages, only the parties have right to apply for annulment of marriage.

Example:
Suppose the husband is impotent and thus cannot consummate the
marriage. Now, if the wife wants, she can continue being his wife and keep
the marriage alive. It will just be like any other regular marriage. But if she
likes, she can avoid the marriage and file a petition in a competent court for
cancellation of marriage or to declare it as a void marriage.
Grounds of a Voidable Marriage

1. Marriage not consummated due to the impotency of the respondent.

2. Respondent is suffering from a mental disorder as to be unfit for
marriage and procreation of children.
3. The consent of the petitioner has been taken by fraud or force.
4. That the respondent was pregnant by some other person other than the
petitioner.

Note: The ground is the pre-marriage pregnancy of the wife and not her
unchastity. (relating to or engaging in sexual activity, especially of an illicit
or extramarital nature)

In Nijhawan Vs. Nijhawan, the court gave a liberal interpretation of the condition of

impotence. The bench observed that harmonious sexual life was paramount to a successful

marriage and absence of it could cause mental and physical cruelty to either of the partners

or both of them.

Mere incapacity to conceive a child or sterility is not related to amounts to impotency. In

Shewanti Vs. Bhaura, the wife’s incapacity to conceive but capacity to have sexual

intercourse was ruled in favour of her and held that it did not amount to impotency.

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