VOID AND VOIDABLE MARRIAGES
Rohit Raj,3rd year
DY.PATIL LAW COLLEGE
ABSTRACT
This research is a descriptive analysis of the nullity of marriages (void & voidable) in the Indian context. It attempts to cover in detail the meaning of void and voidable marriages and the distinction that exists between them. Every religion in India is governed by its own personal laws in matters related to marriage, divorce, adoption,
etc. The researcher here specifically deals with the nullity of marriage and aims to provide all the impediments regarding void and voidable marriages among various personal laws. The researcher draws the procedure of obtaining a decree of nullity of marriage and also highlights the consequences of it from the legal point of view. Towards the end of the paper, the researcher shows a strong point towards problems that exist in today’s society due to contradiction of provision in several laws and tries to provide some recommendations which can be carved out for smooth and orderly administration of compilation regarding marriage among several personal laws.
INTRODUCTION:
Marriage, a legally and socially sanctioned union, usually between a man and a woman, that is regulated by-laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners and accords status to their offspring (if any). Marriage is considered as a social structure due to its universality within different societies and cultures. It is a social institution, which legitimizes the union of two.
Definition: A legal dictionary defines marriage as the state of being united to a person of the opposite sex as husband or wife in a legal, consensual and contractual relationship recognized and sanctioned and even dissolvable only by law. Legally, marriage is a binding contract between two parties that joined together their
passion, income, and lives. The people of India belong to different religions and faith. They are governed by different sets of personal laws in respect of matters relating to family affair laws, relating to marriages and divorce has been codified in
different enactments applicable to people of different religions. A few of them are:
1) Indian Divorce Act, 1869
2) The Hindu Marriage Act, 1955
3) The Dissolution of Muslim Marriage Act, 1939
4) The Special Marriage Act, 1954
5) The Parsi Marriage and Divorce Act, 1936
NULLITY OF MARRIAGES:
The law of nullity relates to the pre-marriage impediments to marriage. the subject matter of impediments to marriage is covered under the capacity to marry. If there are any impediments in the marriage, the marriage cannot be done between the parties. If there are impediments and marriage is still done, in such cases, their marriage will not be treated as valid. Thus, these impediments are of two types are given as follows:
Absolute impediments- If it exists, then the marriage is considered as void-ab-initio i.e., marriage is invalid from the beginning.
Relative impediments: If it exists, then the marriage is voidable i.e., it can be avoided at the wish of any one of the parties.
VOID AND VOIDABLE MARRIAGES
A void marriage is no marriage. When the court declares that a marriage between two people is not valid. The
marriage is said to be nullified. Since it is no marriage, a decree of nullity is not necessary. When a court passes
a decree of nullity in respect of void marriage, it merely declares a marriage as null and void. It is not the decree
of the court that renders such marriage void, the court merely makes a declaration of existing facts.
A Voidable marriage on the other hand, is a valid marriage, till it is avoided, and it can be done only on a
petition by either party marriage. If either party does not petition for the annulment of marriage, it will remain valid.
And if one of the parties to marriage dies, the validity of the marriage, cannot be called into question. So long as
a voidable marriage is not avoided all legal consequences of a valid marriage flows from it. Parties have the
status of husband and wife, the children have the status of legitimate children, and all mutual rights and duties of
the spouse remain intact.
DIFFERENCE BETWEEN VOID AND VOIDABLE MARRIAGES:
The difference between void and voidable marriage is very material. A void marriage is void ab initio. It does not alter the status of the parties as they do not become husband and wife. And also, it does not lead to rising to any of the mutual rights and obligations of the parties.
On the other hand, a voidable marriage remains valid and binding and continues to subsist for the purpose, unless a decree annuls it. A void marriage is no marriage, the court merely passes a decree declaring the marriage as void, while a voidable marriage is only annulled by the decree of the court.
THE HINDU MARRIAGE ACT, 1955:
The court has the power to declare a marriage as void or voidable, under Section 11 and 12 of Hindu Marriage Act, 1955 respectively.
Section 11: A marriage that has solemnized after the commencement of this act is considered null and void, if it fulfills the following conditions under section 5 of this act:.
i) Bigamy: If any of the parties to the marriage has another spouse living at the time of marriage. It shall
be considered null and void.
ii) Prohibited Decree: A marriage between prohibited decree relations is void, unless the customs,
and usage allows it.
iii) Sapindas: A marriage between the parties who are sapindas, unless allowed by usage and customs.
Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav
2: In this case, it has been held that a marriage is in
contravention of Section 11 of Hindu Marriage Act, 1955 shall be treated as null and void from the time of its inception.
Bassappa v. Sidhagangamma
3: It has been held by the Karnataka High Court that a wife whose marriage has
been declared, null and void because it was in contravention to section 5(i), (iv) or (v) is not entitled to claim maintenance as she does not have the status of wife, under section 18 of Hindu Adoption Maintenance Act, 1956.
Lila vs Laxman
4: It was held by the Allahabad High Court that a void marriage does not need a decree of
nullity as it is no marriage in the eyes of law. A decree passed for void marriage is merely a declaration of nullity of marriage. The court only makes the fact clear that there was no marriage between the parties.
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(2005) DMC 745
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ILR 1992 KAR 1798
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1988 AIR 644
Section 12: A marriage that is voidable at the option of either parties is known as voidable marriage. Such
marriages can be held voidable by the decree of nullity by the court, under Section 12 of this Act. The parties to
such marriage have to decide whether they want to annul the marriage or continuance of the same.
GROUNDS ON WHICH A PARTY CAN FILE A PETITION FOR NULLITY UNDER
SECTION 12:
1) Either party to the marriage was incapable of giving consent, due to unsoundness of mind, or
2) though capable of giving consent has been suffering from a mental disorder of such a kind, or to such an
extent as to be unfit for marriage and procreation of children.
3) The party was subject to recurrent attacks of insanity.
4) The respondent was pregnant at the time of marriage, of which petitioner was not the cause. And, of which he was ignorant at the time of marriage and such petition be brought within one year of solemnization of marriage. And further, the petitioner has had no material intercourse with the respondent after the knowledge of the respondent’s pregnancy.
5) The consent of either party has been obtained by force, or by fraud.
6) Failure of the respondent to consummate the marriage on the account of impotency.
7) The parties at the time of marriage were minor or under-aged i.e. below the age of 21 and 18 years respectively.
UNDER MUSLIM LAW:
Under Muslim law, from the point of view of validity, marriages are classified as Valid (Sahib), Void(Batil)
and irregular (Fasid).
Void or Batil Marriage is the one that is performed in violation of perpetual impediments under the Sunni Law, and of all impediments under Shia Law. A Batil marriage is void-ab-initio. No legal consequences flow from it.
GROUNDS OF VOID MARRIAGES:
Marriages performed in violation of rules of:
i) Consanguinity
ii) Fosterage
iii) Affinity, is a void marriage
Consanguinity means a blood relationship and bars a man from marrying:
i) His mother or grandmother, no matter how high in lineage.
ii) His daughter, or granddaughter, no matter how low in lineage.
iii) His sister whether full, consanguine or uterine,
iv) His niece or great-niece no matter how low in the lineage
v) His aunt (father’s sister, mother’s sister), or great aunt, no matter how high in the lineage (can be both paternal or maternal). A marriage with a woman which was prohibited by the reason of consanguinity is void. Children from such marriages are considered illegitimate.
MARRIAGE PROHIBITED ON THE GROUNDS OF AFFINITY:
Affinity lays down the prohibition. In the following cases:
i) His wife's mother or grandmother, no matter how high in lineage.
ii) Daughter, or granddaughter, no matter how low in lineage.
iii) Wife of his father, or paternal grandfather, no matter how high in lineage.
iv) Wife of his son or son’s son or daughter's son, no matter how low in lineage. A marriage with a woman prohibited by the reason of affinity is void.
MARRIAGE PROHIBITED ON THE GROUNDS OF FOSTERAGE:
Fosterage means when a woman other than her own mother has suckled a child under the age of two years, the
woman becomes the foster mother of the child. A man thus cannot marry his foster mother, or her daughter, or
for that matter of his foster sister.
IRREGULAR OR FASID MARRIAGE:
Muslim law does not recognize voidable marriages. Rather, they have fasid marriage. When a marriage is performed in violation of an impediment or prohibition, which is temporary, or remedial then the marriage is irregular or fasid.
It is neither void nor valid, not even a voidable marriage, either. It is a peculiar concept. Such marriage is not valid, but can be validated by removing the impediment or remedying the prohibition.
Grounds of irregular marriage :
1) Marriage with a woman undergoing idda
2) Marriage in violation of the prohibition on the grounds of different religions.
3) Marriage performed without witnesses
4) Marriage performed in violation of the rule against unlawful conjugation.
NULLITY OF MARRIAGES UNDER CHRISTIAN LAW IN INDIA
By the evolution of Christianity, the status of marriage has also changed. In Christianity also, marriage is considered to be indissoluble and holy wedlock and is made a public religious ceremony. Hence, nullity of marriage is difficult to grant, but by the development of society, and to remove the discrimination for the Indian Christian.
There is separate marital law, the Indian Christian Marriage Act, 1872, and for the divorce or nullity of marriage Indian Divorce Act 1869 is also there. This Act was amended in the year 2001. According to this act, on the following grounds marriage can be declared null and void:
i) Respondent was impotent at the time of marriage and at the time of the institution of suit.
ii) Parties are within the prohibited degree of consanguinity or affinity
iii) Either party was idiot, or lunatic at the time of marriage.
iv) The former spouse of either party was alive at the time of marriage
v) The consent of either party was obtained by force, or fraud.
Under Divorce Act, the notion of voidable marriage is not recognized, and therefore, there is nothing like voidable marriage. Saly Joseph v. Baby Thomas
5: This is a case in which a Divisional Bench of the court while considering the
scope of section 18, and 19 of the Divorce Act 1869 held that if there is deceit about an essential or significant quality and one party manipulates the will of the other, it amounts to fraud, and the court can declare the marriage null and void.
5(1999) DMC 309
PARSI LAW:
Under Parsi law marriage is void on the following grounds:
1) If the parties are within the prohibited relation of consanguinity or affinity.
2) If the necessary formalities of marriage have not been performed.
3) If the male has not completed 21 years of age, and the female has not completed the age of 18 years.
4) Either party to the marriage was impotent.
Parsi Marriage and Divorce Act does not recognize for voidable marriage.
SPECIAL MARRIAGE ACT, 1954:
Under this act, a marriage is considered to be void on the following grounds as mentioned, under Section 24 by
either party through a decree of nullity:
i) Either party has a spouse, living at a time of marriage
ii) Parties are within the decree or prohibited relationship
iii) The respondent was impotent at the time of the institution of the suit.
iv) Either party was incapable of giving valid consent in consequence of unsoundness of mind.
v) Has been suffering from mental disorder to such an extent as to be unfit for marriage, and procreation of children
vi) or has been subject to recurrent attacks of insanity.
vii) Bride and bridegroom were below valid age of marriage i.e. 18, and 21, years of age,
Followings are the grounds of voidable marriage under the Special Marriage Act:
1) Non consummation of marriage, on account of the wilful refusal of the respondent to do so.
2) Pre-marriage pregnancy of respondent, of which petitioner was not the cause. And, of which he was ignorant at the time of marriage.
3) Petitioners consent was obtained by force, or fraud provided the petitioner did not live with the respondent as husband or wife after the discovery of fraud or by force and provided further that the petition was presented within one year of discovery of the fact.
PROCEDURE OF OBTAINING NULLITY OF MARRIAGE:
Procedure is generally the same in all personal law for obtaining a decree of nullity of marriage. Petition for nullity of marriage shall be presented before the court. The jurisdiction of the court is decided where the defendant or
respondent has resided or the marriage has solemnized or the place where the party has last resized together. Then court issues, notice to the respondent or defendant to give the reply before the court. After hearing and evidence or grant
relief accordingly. Under Parsi law, court means a court, established under the act. Under Hindu Marriage Act,
1955, and Special Marriage Act 1954 is Family court or city Civil court. Under the Muslim law matter is not decided by a court, but the matter is decided by the religious practice.
CONSEQUENCES OF NULLITY OF MARRIAGE:
When the declaration of nullity of marriage is made, the court also decides the maintenance, which is to be given to the opposite party, either monthly or yearly or lump sum money. Children born out of this marriage are deemed to be legitimate. Nullity of marriage is a declaration that there was no marriage in existence and parties are not husband and wife. They are free to marry others. Nullity of Marriage declares that there was no status of marriage between two persons. Null and void marriages have no legal status. They are against the law and not enforceable by law.
RECOMMENDATIONS:
Matters related to marriage, divorce, adoption, inheritance, etc. in India are dealt by different personal laws for people believing in different faiths. Although certain provisions are moreover similar in all personal laws various differ in regard to their transmission through various customs and traditions. Also, it is well-established fact that central laws are at the backfoot in these concerns and personal laws have an upper hand. This creates
contradictions and conflicts between the two and the aggrieved suffers for a long and is often denied justice. There are certain provisions in some personal laws which are so orthodox and conservative in their idea that
they act as bondage than remedy. It is high time that an up-gradation is much needed in such provisions. A classic example is the practice of sati which was an inhuman practice and was abolished with time, similarly, a recent example is a triple talaq which was although inserted for benefit of Muslim women and their rights but
was totally misused by men to harass them. Similarly, there are many provisions that are discriminatory in nature due to ignorance that are still in existence. Also as shown in this paper the concept of voidable marriage is not recognized by Parsi and Muslim law which is discriminatory towards people of respective faiths.
Hence, it would be much easier and convenient to handle such matters if there exists a single code for their smooth governance and orderly administration.
REFERENCES:
BOOKS REFERRED:
1) Family Law by Dr. Paras Diwan
2) Mulla Hindu Law by Sir Dinshaw Fardunji Mulla
WEBSITES REFERRERD:
1) blog.ipleaders.in
2) indiankanoon.com
3) lawn.com
4) latestlaws.com
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