The difference between void and voidable marriages relates to the pre-marriage impediments to marriage which are clearly enunciated in Section 5 of the Hindu Marriage Act. In case of absolute disablement or impairments, a marriage is void ab initio. Section 11 deals with void marriages. If relatively less but considerably enough disablement or impairments exist, a marriage is voidable. Section 12 deals with voidable marriages. All other marriages which are not covered by these two Sections are valid.
VOID AND VOIDABLE MARRIAGES
A marriage which is no marriage from the very beginning is called a void marriage. It is unlawful or invalid as per the jurisdiction of where it is entered and can be nullified. The parties to the void marriage never married in the eyes of the law. It is to say that because it never existed, there is no formality involved to terminate it.
A voidable marriage is the one that exists and stands valid unless one of the partners challenge it and is subject to such a challenge.
The term nullity of marriage did not exist in Hindu law before the enactment of the Hindu Marriage Act 1955. It was generally the customary laws and norms of the society that decided whether a marriage was valid or not. Some amount of relaxation would be given in very few cases.
Applicable Laws and Structures
The concept of nullity of marriage was introduced for the first time in the Hindu Marriage Act 1955.
The act deals with the following four matrimonial issues:
- Nullity of Marriage
- Judicial Separation
- Dissolution of Marriage
- Restitution of Conjugal Rights
According to the Act, marriage happens when one man enters into a voluntary union with one woman to the exclusion of all others. Section 5 of the Act lays down certain conditions for a valid marriage.
What is a void marriage?
- is already married and his wife /husband living at the time of marriage. A person cannot commit polygamy. If a person marries in such circumstances, the marriage would be void.
- are in prohibited relationship to each other except when it is allowed by the custom or usage which they follow provided that they are able to prove the custom.
The persons are in prohibited relation to each other when:-
- One person is the ascendant of the other in a lineage like a daughter and father, son and mother etc.
- One had been the wife or the husband of the lineal ascendant like the widow of father and also the wife or husband of lineal descendant like the wife of a son.
- One is the wife of the brother, father’s brother’s wife, maternal uncle’s wife, grandfather’s or grandmother’s brother’s wife
- Other relations like that of uncle and niece, aunt and nephew, children of two brothers or two sisters or a brother or sister.
- When one is in Sapinda relation to each other except when the custom or usage permits so.
Section 3(f) says that for counting the sapinda relationship the relation is to be seen till the 3rd lineal ascendant in the line of the mother and 5th in the line of the father by counting the person to be seen is included as the first ascendant.
Two persons are called as sapindas of each other if they are the lineal ascendant of each other in the line of sapinda relationship or have a common lineal ascendant in such limit as prescribed.
Consequences of a Void Marriage
- The parties no longer enjoy the status of husband and wife
- Children born in a void marriage are illegitimate (this is subject to the provision of Section 16 of HMA)
- There are no mutual rights and obligations in a void marriage
What is a Voidable Marriage?
- Marriage is voidable when the person was impotent at the time of marriage to consume the marriage and is still not potent or has refused to consummate.
- The person had a mental disorder at the time of the marriage and was not in the capacity to consent.
- When the person was pregnant by some other person at the time of the marriage. And the person has to convince the court that
- He did not know of the pregnancy at the time of marriage
- Marriage has not been consummated after knowing such fact.
- The petition for declaring the marriage void has been presented within 1 year of marriage.
- when the consent of either party to the marriage has been obtained wrongfully either by way of force or fraud.
There are various principles laid down by the judiciary regarding impotency. In Nijhawan Vs. Nijhawan (link judgement), 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.
In Rajendra Vs. Shanti (link judgement here), the court said that if impotency is treatable by medical intervention or surgery, then it does not amount to impotency except for it the respondent refuses to forgo treatment.
Mere incapacity to conceive a child or sterility is not related to amounts to impotency. In Shewanti Vs. Bhaura (Link judgement), 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.
Exceptions to voidable marriage:
- The petition was made after a year passed when the force or fraud had ceased to exist.
- The person has consented to the marriage willingly and had lived with him or her after the force or fraud ceased to exist.
Summarizing some important grounds of fraud:
- Nature of ceremony
- Using a fake identity
- Concealment of disease
- Concealment of religion or caste
- Concealment of the previous marriage
- Concealment of illegitimacy
- Concealment of age
- Petitioner’s father’s fraud
- Concealment of financial status and nature of one’s employment.
A petition for nullity must be filed within one year of the discovery of fraud or cessation of force. This condition is mandatory. If you consider your marriage to be void or voidable, you may wish to seek help from a good lawyer to proceed with the requirements of annulment of marriage. The primary difference between annulment and divorce is that annulment is required in situations where marriage never really took place in the eyes of law.