HINDU LAW ASSIGNMENT

NAME- GUNASHREE M
REG NO- 19419
CLASS- III BBA LLB

TOPIC: NULLITY OF MARRIAGE- VOID AND VOIDABLE MARRIAGE

INTRODUCTION
Nullity or annulment of a marriage is a legal process by the means of which a marriage is
further declared or perceived to be null and void. For a marriage to be a valid marriage there
are some legal requirements that has to be fulfilled at the time of marriage. If in case, under
circumstances these required needs in the eyes of law is not fulfilled then the marriage is said
to have not existed in the first place. Therefore, when any of the parties to the marriage wants
to declare a nullity of the marriage, they have to go through a process of annulment.
It must be kept in mind that divorce is different from annulment. The difference is a simple
one yet makes a huge difference, where, divorce is the legal procedure to dissolve or end an
existing marriage while annulment is the process used for non-existent marriage.
The process of annulment also differs based on what type of marriage is being dealt with,
whether it is a void marriage or a voidable marriage. In a void marriage, the marriage is
automatically null and void since it was non-existent from the very beginning and it is invalid
to take place from the very start. But in a voidable marriage, the marriage has to be
challenged in court through a petition by any of the parties to the marriage, in order to be
declared as an invalid marriage and to pronounce it null and void.
In India, according to the Hindu marriage Act of 1955, the court can declare a marriage as
void under section 11 of the Act and it can declare a marriage as a voidable one under section
12 of the Act.
To move on further for the understanding of the concept of annulment, we have to understand
the types of marriages.

TYPES OF MARRIAGES
Apart from a valid marriage, obviously, the types can be: void marriage and voidable
marriage.
VALID MARRIAGE
Section 5 of the Hindu marriage Act 1955:

None of these parties have spouses living at the time of the marriage.
During the time of the marriage, neither party should be-
 1. Incapable of giving valid consent due to the unsoundness of mind.
2. Suffering from mental disorder to an extent as to be unfit for marriage and
procreation of children.
3. Subjected to repeated attacks of insanity.

Age- The bridegroom must be 21 years or above and the bride must be 18 years or
above.
The parties are not in a degree of prohibited relationship.
Parties are not sapindas (blood relation) to each other.

VOID MARRIAGE
Section 11 of the Hindu marriage Act, 1955:
Any marriage solemnized after the commencement of this Act, shall be null and void, if a
petition is presented by either party to a marriage against the other party. It will be declared
so by a decree of nullity if the marriage fails to fulfil any one of the conditions specified in
clause i, iv, and v of section 5.

GROUNDS OF VOID MARRIAGE

1. Bigamous marriage, if at the time of marriage, either party to the marriage has a living
spouse.
In case of a bigamous marriage, the second wife has no status, because such a marriage is
null and void from the very beginning and does not exist. But when she files a petition for a
decree of nullity, she can claim both interim and permanent maintenance. But the first wife
has no right to file a petition for annulment as section 12 clearly says that the petition can be
filed only by either party to the marriage.
2. If the parties to the marriage are share a Sapinda relationship. One cannot marry
someone who is related by blood.
3. If the parties to the marriage are within prohibited degrees.

VOIDABLE MARRIAGE
A marriage will be valid unless petition for invalidating it is made by either party. A marriage
which can be made void is called voidable marriage.
A voidable marriage is a valid marriage until it is avoided by either party to the marriage, by
filing a petition to the court. Until a petition is filed it remains a valid marriage.
In case any one of the parties to the marriage dies before the annulment is declared, then the
said marriage will remain valid, nobody can challenge it in a court.
Section 12 of the Hindu Marriage Act,1955:
GROUNDS OF VOIDABLE MARRIAGE.
1. The party to the marriage is not capable of giving consent due to the unsoundness of
mind.

2. The party is suffering from mental disorder which makes her unfit for reproduction of
children.

3. If the party has been suffering from repeated attacks of insanity.

4. The consent of marriage by either of the parties is done by force or by fraud.

5. If either of the parties are under-aged, bridegroom under 21 years of age and bride
under 18 years of age.

6. If the respondent is pregnant with a child of someone other than the bridegroom while
marrying.

IMPOTENCY OF THE SPOUSE

Impotency means the inability to perform sexual intercourse and therefore to consummate the
marriage, it can be physical or mental. The burden of proof is on the petitioner.

CONCEALMENT OF PRE-MARRIAGE PREGNANCY

If the respondent was pregnant at the time of marriage through some other person and the
petitioner was unaware of it at the time of marriage. the burden of proof in on the petitioner
to prove a pre marriage pregnancy.

CONSENT FOR MARRIAGE OBTAINED BT FORCE OR FRAUD

Consent is not important under the Hindu law to constitute a valid marriage but a vitiated
consent can make a marriage voidable.

NECESSARY CONDITIONS FOR THE COURT TO DECLARE A VOIDABLE

MARRIAGE AS VOID.
1. The petition has to be presented within one year of discovery of such fraud or
application of force.
2. The petitioner was unaware of the facts alleged at the time of marriage.
 3. The petitioner should not have lived with the party as husband or wife after discovery
of the facts alleged.
4. No marital intercourse has taken place with the consent of the petitioner after the
petitioner discovered the fraud or the said grounds for annulment.

NULLITY OF MARRIAGE – PROCEDURE AND CONSEQUENCES

The procedure for annulment is generally the same for all personal law, the petition to obtain
a decree of nullity is to be filed in a court. The jurisdiction of the court is decided where the
respondent resides or where the marriage has been solemnized or a place where the party has
last resided. The respondent receives a notice from the court asking for reply to be given to
the court. The court grants a relief to the petitioner based on the evidence produced and
hearing in court.
The court decides what maintenance that has to be given to the party. Children born out of the
marriage is legitimate. The parties are free to marry. The court by declaring the marriage null
and void means there was no marriage existing between the parties.

DIFFERENCE BETWEEN VOID AND VOIDABLE MARRIAGE

In a void marriage, the parties to the marriage do not have the status of husband and wife
unlike in a voidable marriage, they have the status of husband and wife, and the wife can
claim maintenance.
In a voidable marriage, decree of nullity is required, but in a void marriage it’s not required
since it is void from the very beginning.

LEGITIMACY OF CHILDREN UNDER VOID AND VOIDABLE MARRIAGE

As specified in the section 16 of the Hindu marriage Act, 1955.

In a void marriage, a child born out of the marriage is legitimate.
In a voidable marriage, too it is the same case, any child born out the marital relationship is
legitimate.
Even if the marriages are declared null and void, the child born out of these marriages are still
treated as legitimate.
But if the wife is pregnant with a child through another man, during the time of the marriage,
and gave birth to the child after the marriage, such a child is illegitimate. Since the child is
not born out of the marriage, therefore, the child born after the marriage that was conceived
before the marriage is illegitimate.

CASE LAWS
C.S. RANGABHATTAR VS C. CHOODAMANI
ON 26 JULY, 1991

FACTS-
In this case, the petitioner had two sons and a daughter, that is three minor children, after the
death of the first wife he married the respondent for the main reason of looking after the
family. He had also undergone vasectomy operation before his second marriage. The
grievance of the petitioner is that the respondent was pregnant with through another man
before the marriage. And she was four or five months pregnant at the time of marriage. The
petitioner says that she hid the fact that she was pregnant and that he was lied to by saying
that the swelling of her abdomen is because she had undergone an operation for the removal
of abscess. After the respondent gave birth to a male child, the petitioner was shocked to
learn that she was pregnant at the time of marriage. The petitioner husband said that when
questioned the respondent confessed that she deceived him by hiding the truth that she was
pregnant through a letter.
But the respondent wife denied the facts alleged and according to her they got married only
after the fact that she was pregnant was made known to him. She also said that the letter was
sent by the petitioner to her parents stating that she had delivered a male child, there is no one
to look after her and requested her parents to take her away. The wife also said that the
petitioner paid the hospital bills. The respondent also says that the petitioner and his uncle,
who is a legal practitioner at the high court, arranged for the adoption of the child to a family
residing in America.

ISSUES-
Under the stated circumstances, the petitioner submits that his marriage with respondent is
null and void because she was pregnant through some other person at the time of marriage.
And pleads the court for a decree of nullity of marriage under the section 12(1)(d) of the Act.
But the wife further states that the petitioner was aware of the pregnancy before the marriage
and that the marriage was mainly to take care of the three minor children of the petitioner.
Therefore, the respondent pleads that there is no reason to grant a decree of nullity to declare
the marriage as null and void.
LAW-
In this case, the section 12(1) and section 12(1)(b) and 12(1)(d) of the Hindu marriage act,
1955 is being applied.

Section 12(1)(d) is in the following terms: --

(1) Any marriage solemnized, whether before or after the commencement of this Act,
shall be voidable and may be annulled by a decree of nullity on any of the following
grounds, namely: --

(d) That the respondent was at the time of the marriage pregnant by some person other
than the petitioner."

Section 12(2)(b) of the Act reads as follows: --

12(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a
marriage -

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the
court is satisfied: --

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(iii) that marital intercourse with the consent of the petitioner has not taken place since the
discovery by the petitioner of the existence of the said ground."

ANALYSIS-
The facts are clear enough to say that the husband was well aware of the pregnancy and yet
lived and cohabitated with the wife.
In case of the letters, it is supposed to be kept in mind that the letters do not necessarily lead
to the conclusion that the husband was unaware of the pregnancy until she gave birth.
It is hard to believe that the husband was innocent about the pregnancy of the wife, yet
having the marital intercourse with her almost until the month she delivered. As it is clear
from the fact that he was husband to a person with whom he had three minor children.
The main reason why the marriage was fixed between the two is because he wanted someone
to look after the minor children after the death of his first wife. So therefore, it might have not
mattered to him and there is every reason to believe that he was prepared to compromise with
the situation that she is pregnant with someone’s child.
And why is it that if he believed the abdominal swelling to be because of an operation, he did
not take her to the doctor about the ailment. A father of three children must be aware and
definitely has a fair knowledge of pregnancy.
It is also hard to believe that the husband’s father who was a doctor, did not notice different
stages of pregnancy of the daughter in law.
It should also be kept in mind that; she might not have made the decision and was forced to
give the child asway for adoption. She would not have wanted to part with her child unless
she had compelling reasons to do so. It was all done by ensuring that if she did not give the
consent for adoption of the child, she will not be accepted as a wife by the petitioner husband.

CONCLUSION-
The case falls within the section 12(2)(b) iii of the Act. There was presence of marital
intercourse between the parties even after the petitioner was fully aware of the fact that the
wife was pregnant. It cannot be believed that the petitioner was unaware of the pregnancy in
the eyes of law. Therefore, the lower court was right in in not granting an annulment.
Therefore, the court does not interfere with the decision passed earlier by the lower court and
dismisses the appeal before the court.

OTHER CASES-
BASAPPA VS SIDHAGANGAMMA
In this case the Karnataka high court said that the wife could claim any form of maintenance
of any form as she did not have the legal status of wife under the section 18 of Hindu
adoption and maintenance Act, 1956. The marriage was made null and void as it was in
conflict with the section 5 (i) (iv) or (v) of the Hindu marriage act, 1955.

SMT. SARIABHAI VS KOMALSINGH

In this case, the court held that a petition for annulment after eight years of marriage is barred
by the Act.

DR. SHRIKANT ADYA VS SMT ANURADHA

The Kerala high court held that if a husband is not able to lead a healthy sexual life, it
amounts to mental cruelty to the wife, and she can file a petition for annulment.

CONCLUSION-
The modern Hindu law is a combination of religious sentiments and problems of modern
daily life. It is based on ancient text and modern principles of law. The section 11 and 12 of
the Hindu marriage act, 1955 is a remedy for parties who are in void and voidable marriage.
after the act was amended in 1976, the child born out of such marriages is treated as a
legitimate.