Section 11 of the Hindu Marriage Act, 1955 provides Void marriages as – Any marriage solemnised 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) of section 5.
A marriage may be solemnised in the sense that the parties to it have gone through the customary rites and ceremonies of either party thereto as laid down in Section 7. However, such a marriage to be valid must in any event fulfill three of the conditions enacted in Section 5. The three conditions are:
- Neither party has a spouse living at the time of the marriage [clause (i)];
- The parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two [clause (iv)];
- The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two [clause (v)].
Section 11 is not applicable to marriage solemnised before the commencement of the Hindu Marriage Act, 1955 though such marriage may be void. The present section in terms lay down that non-fulfillment of any one of these conditions render a marriage solemnised after the commencement of the Act, null and void from its inception, and either party to such marriage can obtain a decree of nullity from the Court.
A decree of nullity may be passed by the court at the instance of either party to the marriage solemnised after the commencement of the Act on the ground that the marriage was in contravention of any of the three conditions mentioned in the section. Either party to the subsequent marriage can seek relief and not necessarily the aggrieved party i.e. first wife during the subsistence of whose marriage the husband takes second wife has no right to move for declaration of nullity of the subsequent marriage. However, under Specific Relief Act such a petition could be moved by the wife of first marriage for declaration that second marriage of her husband is illegal and void.
Section 12 of the Hindu Marriage Act, 1955 provides Voidable marriages as – (1) Any marriage solemnised, 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:
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(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;
(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and
(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.
A voidable marriage is a perfectly valid marriage so long it is not avoided. A voidable marriage can be avoided only on the petition of one of the parties to the marriage; if one of the parties dies before the marriage is annulled no one can challenge the marriage. The marriage will remain valid foe ever and children of such marriage are legitimate. But once voidable marriage is annulled the decree is given retrospective effect from the date of the marriage. The marriage is deemed to have been void for all purposes from its inception and parties are deemed have never been husband and wife and children are deemed to have been illegitimate, subject to Section 16 which lays down that the children of annulled voidable and void marriages are legitimate children. (Rameswari Devi v. State of Bihar, AIR 2000 SC).
A marriage may be annulled by a decree of nullity under Section 12 on any of the grounds namely:
- Unsoundness of mind
- Consent obtained by force or fraud
- Pregnancy of the wife by someone else at the time of marriage