Hindu Law : Hindu Marriage Act, 1955
Valid, Void & Voidable Marriages under Hindu Law
By: Vijay Sardana
Marriage is the voluntary union of one man with one woman to the exclusion
of all others, satisfied by the solemnisation of the marriage.
The Hindu Marriage Act, 1955 provides for
three types of marriages:
1.
Valid,
2.
Void and
3.
Voidable.
The difference between these three relates to
the pre-marriage impediments to marriage which are clearly enunciated in Section 5 of the Act. If there exist,
absolute disablements or impairments, a marriage is void ab initio.
Section
11 deals with void marriages. If relative
disablements 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.
VALID
MARRIAGE
Section
5 of the Hindu Marriage Act 1955 includes essential
conditions of a valid marriage. It contains such conditions which if violated
shall result in a void marriage.
Section 5 of Hindu Marriages Act says, A marriage may be
solemnized between any two Hindus, if the following conditions are fulfilled,
namely:
(i) neither party has a spouse living at the
time of the marriage;
(ii) at the time of the marriage, neither
party,-
(a) is incapable of giving a valid consent of
it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent
has been suffering from mental disorder of such a kind or to such an extent as
to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of
insanity or epilepsy;
(iii) the bridegroom has completed the age of
twenty one years and the bride the age of eighteen years at the time of the
marriage;
(iv) 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;
(v) the parties are not sapindas of each
other, unless the custom or usage governing each of them permits of a
marriage between the two;
Section 7. Ceremonies for a Hindu marriage.- (1) A Hindu marriage may be solemnized in
accordance with the customary rites and ceremonies of either party
thereto.
(2) Where such rites and ceremonies include
the saptapadi (that is, the taking
of seven steps by the bridegroom and the bride jointly before the sacred fire),
the marriage becomes complete and binding when the seventh step is taken.
Section 8. Registration of Hindu Marriages –
(1) For the purpose of facilitating the proof of
Hindu marriages, the State Government may make rules providing that the parties
to any such marriage may have the particulars relating to their marriage entered
in such manner and subject to such condition as may be prescribed in a Hindu
Marriage Register kept for the purpose.
(2)
Notwithstanding anything contained in sub-section (1), the State Government may,
if it is of opinion that it is necessary or expedient so to do, provide that
the entering of the particulars referred to in sub-section (1) shall be
compulsory in the State or in any part thereof, whether in all cases or in such
cases as may be specified and where any such direction has been issued, and
person contravening any rule made in this behalf shall be punishable with fine
which may extend to twenty-five rupees.
(3)
All rules made under this section shall be laid before the State Legislature,
as soon as may be, after they are made.
(4)
The Hindu Marriage Register shall at all reasonable times be open for inspection,
and shall be admissible as evidence of the statements therein contained and
certified extracts therefrom shall, on application, be given by the Registrar
on payment to him of the prescribed fee.
(5)
Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way
be affected by the omission to make the entry.
VOID MARRIAGE
Section 11 (Nullity of marriage and divorce- Void
marriages) of the Act had considered following marriage to
be void:- Any marriage solemnized 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), Section 5. It means..
1.
Where at the time of marriage any party has a
living husband or wife i.e., bigamous marriage is void
2.
Where parties to the marriage fall within sapinda
relationship i.e., same blood. A person cannot marry in the same family i.e.,
to a person from
A. Five generation from the paternal side,
B. Three generations from the maternal side,
C. The parties are within the prohibited
degree of relationship. The section 3(g) of the Hindu Marriage Act 1955 talks
about the degree of prohibited relationship that is as follows:
3.
Where parties to the marriage come with degrees of
prohibited relationship.
According to section 3(f)(i) "Sapinda relationship" with reference to any person
extends as far as the third generation(inclusive) in the line of ascent through
the mother, and the fifth (inclusive) in the line of ascent through the father,
the line being traced upwards in each case from the person concerned, who is to
be counted as the first generation;
According to section 3(f) (ii) two persons
are said to be "sapinda" of each other if one is a lineal ascendant of
the other within the limits of sapinda relationship, or if they have a common lineal
ascendant who is within the limits of sapinda relationship with reference to each
of them;
According to Sec 3(g) "degrees of prohibited relationship”
- two persons are said to be within the "degrees of prohibited
relationship"-
(I) if
one is a lineal ascendant of the other; or
(ii)
if one was the wife or husband of a lineal ascendant or descendant of the
other; or
(iii) if
one was the wife of the brother or of the father's or mother's brother or of
the grandfather's or grandmother's brother or the other; or
(iv) if
the two are brother and sister, uncle and niece, aunt and nephew, or children of
brother and sister or of two brothers or of two sisters.
Explanation.- for the purposes of clauses (f)
and (g) relationship includes-
(I) relationship by half or uterine blood as
well as by full blood;
(ii) Illegitimate blood relationship as well
as legitimate;
(iii) Relationship by adoption as well as by
blood; and all terms of relationship in those clauses shall be construed
accordingly.
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.
“On a petition presented
by either Party thereto“, It is only the parties to marriage who
can move a petition for the declaration of nullity of marriage. The first
wife, during the subsistence of whose marriage the husband takes the second
wife, has no right to move for a declaration of nullity of the subsequent
marriage under this Section. However, there is nothing in the Section or any
other provision of any law to debar a person affected by an illegal marriage
from filing a regular suit in a civil court for its declaration as void, if
such party was affected by such marriage. There can be a civil suit by a person
for a declaration that the marriage of A with B was a nullity and for
consequential relief’s under the Specific Relief Act, 1963, if the Plaintiff
has any cause of action for such relief.
In Uma Shanker v. Radha Devi, the
Patna High Court ruled that the first wife could obtain a perpetual injunction
to prevent the second marriage of her husband under Section 9 of the Civil Procedure Code and Section 54 of the Specific Relief Act.
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.
According to Section 16. Legitimacy of children of void and voidable
marriages.-
(1) Notwithstanding that a marriage is null
and void under Section 11, any child of such marriage who would have been
legitimate if the marriage had been valid, shall be legitimate, whether such a
child is born before or after the commencement of the Marriage Laws (Amendment)
Act, 1976, and whether or not a decree of nullity is granted in respect of the
marriage under this Act and whether or not the marriage is held to be void
otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect
of a voidable marriage under Section 12, any child begotten or conceived before
the decree is made, who would have been the legitimate child of the parties to
the marriage if at the date of the decree it had been dissolved instead of
being annulled, shall be deemed to be their legitimate child notwithstanding
the decree of nullity.
(3) Nothing contained in sub-section (1) or
sub-section (2) shall be construed as conferring upon any child of a marriage
which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the
property of any person, other than the parents, in any case, where, but for the
passing of this Act, such child would have been incapable of possessing or
acquiring any such rights by reason of his not being the legitimate child of
his parents.
VOIDABLE
MARRIAGE:
A marriage which can be annulled or avoided
at the option of one or both the parties is known as a voidable marriage.
Section 12 of Hindu Marriage Act contains relevant provisions of Voidable
Marriage.
Section
12. Voidable Marriages, says,
(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:-
a)
that the marriage has not been consummated owing to
the impotency 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, 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 circumstance 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 solemnized before the commencement of this Act within
one year of such commencement and in the case of marriages solemnized 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.
It means according to it, in the case of
marriage being voidable, the court may declare it Null under following
conditions:-
1.
Where marital cohabitation has not occurred due to
the impotency of the respondent.
2.
Where at the time of marriage any party failed to
give valid consent due to unsoundness or has been affected by mental
retardedness to such extent that he is incapable to marriage and giving birth
to a child, or suffers from frequent insanity or is insane.
3.
Where the consent of guardian is necessary for the
marriage and such consent has been obtained by force or by fraud as to nature
of rituals or any actual facts or circumstances as to the respondents.
4.
Where the respondent is pregnant at the time of
marriage from a person other than the applicant.
GROUNDS OF DECLARING A
MARRIAGE VOIDABLE
A marriage is voidable on the ground of
consent obtained by fraud as force, then such marriage shall be declared null
only when:-
(a) The applicant is presented within one year
from the date of knowledge of fraud as the force used.
(b) The parties have not lived as husband and
wife after the knowledge of force used or fraud.
Similarly,
if the marriage is voidable due to the pregnancy of wife then such marriage
shall be declared null only when the court is satisfied that:-
(a) The applicant was unaware of the pregnancy
of the wife at the time of marriage.
(b) If the marriage has been solemnized before
this Act came into force, then the application shall be presented within one
year from the date of enforcement of the Act or if the marriage has been
solemnized after the act came into force then the application shall be
presented within one year from such marriage.
(c) The applicant has not voluntarily
co-habitated after the knowledge of pregnancy of wife.
(d) Wife had been pregnant from a person other
than the applicant.
(e) She was pregnant before the marriage
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