VOID AND VOIDABLE MARRIAGES UNDER HINDU MARRIAGE ACT
Marriage is both sacramental and contractual in nature. Marriage is sacramental because it is ritually blessed by the priest and has various other customs and rituals involved in it. A marriage is said to be a contract because it is a legal and consensual relationship between two parties. In simple words marriage is the legally and socially recognized union of two people as partners in a personal relationship. For solemnizing a marriage there are certain rituals, terms and conditions. According to the Hindu Marriage Act, there are three kinds of marriages:
The following article is a detailed study of void and voidable marriages under Hindu Marriage Act.
Void Marriages (Section 11)
Marriages are considered void under HMA if it doesn’t fulfill the conditions of Section 5. The conditions are as follows:
If either party has another spouse living at the time of marriage then it is considered null and void.
Happening of any kind of marriage that is prohibited by law can also be called a void marriage.
Marriage between two persons of the same sapinda or in other words marriage between relatives is void.
Capable of giving consent
Neither party should be incapable of giving consent due to unsoundness of mind. The parties should be mentally fit for giving consent and procreation of children. There should not be any recurrent attacks of insanity irrespective curable or not.
The girls should be above 18 and the boys should be above 21.
Effects of a void marriage
- Children of void marriage do not get right in the joint family of parents. They have the right in self- earned property of the parents.
- Spouses cannot claim any matrimonial relief.
- The parties do not have the status of husband and wife in a void marriage.
A marriage that was solemnized, whether before or after the commencement of this act, shall be voidable if:
- The marriage has not been consummated due to the impotency of the respondent
- The marriage is in contravention of the conditions specified in section 5
- The consent of the petitioner of their guardian was obtained by force or by fraud.
- The respondent at the time of marriage is pregnant by some other person.
No petition for annulling a marriage shall be entertained if the petition is presented one year after the force had ceased to operate or one year after the fraud was discovered and the petitioner with his/her full consent, lived all this while with the other party to the marriage.
|VOID MARRIAGE||VOIDABLE MARRIAGE|
|1. Defined by Section 11
2. Grounds: a) Performed in contravention of 5(i), 5(iv), 5(v).
b) Ceremonies in section 7 not performed.
c) In contravention of section 15- divorce not granted yet or time to appeal has not elapsed.
3. Marriage does not exist at all
4. No consequences of marriage- right in property, conjugal rights, maintenance.
5. No decree of court is necessary. Decree can be obtained by either person.
6. If someone calls the wife a concubine, it will not amount to defamation.
|1. Defined by Section 12
2. Grounds: a) unable to consummate due to impotence (not same as incapability to conceive)
b) Mental unsoundness of either parties
c) consent obtained by fraud or force
d) Girl was pregnant by some other person.
3. Marriage is fully valid unless declared invalid by the court.
4. Full consequences while marriage lasts.
5. Court decree is necessary. If one person does not petition for the annulment the marriage will remain valid.
6. Decree is given retroactively.
Author: Khushi Maheshwari Maheshwari,
Fairfield Institute of Management and Technology (BBA LLB (H), 3rd Sem)