Study Notes: What is Void and Voidable Marriages under Hindu Law?

By Dhwani Shah 12 Minutes Read

Introduction

The term marriage has not been defined in any Before moving towards the definition of marriage, it is to be known that Maritagium (marriage) has not been defined in any of the parliamentary statutes. However, Personal laws are clear on this point. Personal laws are different Acts that are applicable to people of different religions. This article shall discuss the various grounds of a void and a voidable marriage in Hindu law with relevant case laws.

Hindu Marriage Act, 1955 defines who is a Hindu or more specifically to whom this Act applies. (Section 2), a Hindu is:

• Virashaiva,
• a Lingayat,
• Brahmo Samaj,
• Prarthana Samaj,
• Arya Samaj,
• Buddhist, Jaina, or Sikh
• any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
• any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and
• any person who is a convert or re-convert to the Hindu, Buddhist, Jaina, or Sikh religion.[1]

Hindu Marriage Act, 1955 provides the conditions for a valid marriage that are as mentioned: (Section 5)

• neither of the party should have a spouse living at the time of the marriage;
• at the time of the marriage, neither of the party-
• should’t be incapable of giving a valid or free consent (be of unsound mind),
• 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
• has been subject to recurrent attacks of insanity
• the bridegroom has completed the age of 21years and the bride, the age of 18 years at the time of the marriage;
• 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;
• the parties are not sapindas [2]of each other, unless the custom or usage governing each of them permits of a marriage between the two[3]

If these conditions are satisfied then marriage is said to be valid under Hindu Law.

Voidable Marriage

Voidable means something that isn’t absolutely void but can be avoided by the party whose consent has been attained by wrong means.

A voidable marriage under Hindu law is valid until or unless the petition for invalidating the marriage is made. In other terms, even if a marriage has been entered into illegally, they will be valid unless a suit is filed in the court and the court passes a decree it to be void. Under Section 12[4] of the Hindu Marriage Act, 1955 the grounds where marriage can be termed as voidable:

• At the time of the marriage, if the respondent is pregnant with another man’s child. In this case, the court should be convinced that –

1. The petitioner was ignorant of this fact at the time of the marriage.
2. The petitioner after knowing about the pregnancy hasn’t voluntarily lived with the respondent under the same roof.
3. The respondent should be pregnant before the marriage.
4. If the respondent is impotent during the marriage and continues to be so till the commencement of the proceedings.

Shantabai v. Tarachand[5]: in this case, the parties were married in Indore on November 1960. The husband had alleged that the wife refused to have any sexual contact despite both of them being healthy (examined by the doctors). The court held that this case belonged to the rare variety of frigidity[6] quoad hanc[7]. The wish to not perform sexual intercourse doesn’t mean a person is impotent.

The literal interpretation of ‘impotency’ was done in the case of Nijhawan v. Nijhawan[8]. The wife, in this case, felt frustrated due to the failure of the husband in performing sexual intercourse. Even after being married for years, the husband was not able to perform any sexual activities. He promised the wife to get treated and even bore her with a son, yet, the problem started again. The husband refused to get treated and started treating the wife with cruelty. The court gave the decision in favor of the wife. The court said that it was a possibility that fecundation may have taken place by semen encountering the vagina of the women and causing a possible pregnancy without penetration or ordinary intercourse. So, even if a child was born doesn’t mean the husband is not impotent.   

• If the marriage has been solemnized before this act came into force then the case shall be filed within a year from the commencement of the Act.
• The marriage is against the section conditions provided in clause (ii) of s.5 of HMA.
• The respondent should be incapable of giving consent for the marriage or should be of unsound mind.

In the case of Pronab Kumar Ghosh v. Krishna Ghosh[9], the husband alleged that the wife was a lunatic at the time of marriage and this fact was concealed from him. The husband and his family found some abnormalities in the behavior of the wife and were fully convinced that she was of unsound mind after marriage. They admitted her in the hospital and got her treated. They found out that she has Schizophrenia. When the husband enquired, it was discovered that the disease was hereditary and she was of unsound mind at the time of marriage. The court held the marriage to be null and void on the grounds of lunacy and unsound mind. They said that Schizophrenia was a type of lunacy.

• The consent of the petitioner should be obtained either by fraud or force.
• The petitioner should be underage at the time of the marriage (under the age of – male: 21 years and female: 18years)
• Either of the party should be suffering from repeated anxiety attacks.

Necessary requirements to be fulfilled by the petition under s.12:

• there shouldn’t be any kind of sexual relation after knowing the alleged facts.
• The accusation on which the lawsuit is based should be beyond the knowledge of the petitioner at the time of the formalization of the marriage.
• The petition should be filed within a year, once the application of fraud or force is discovered.

Void Marriage

Void in law means not legally binding or valid. Under Hindu law, any marriage that does not fulfill the conditions, specifically, clauses (i), (iv) and (v) provided under s.5 of HMA is a void marriage. It is defined and explained under s.11[10] of the HMA.

As per the s.11, any marriage that has been solemnized after the commencement of the said act will be null and void if it violates the clauses (i), (iv), and (v) of s.5 of HMA. It means that:

• If either of the party (husband or wife) are in marriage with another living person i.e. bigamy, then the marriage is said to be void.
• When the parties of the marriage are close relatives, brother, and sister (either by blood or by adoption), aunt and nephew, uncle and niece, then the marriage is said to be void.

Difference between void and voidable marriage

Conclusion

Void and voidable marriages give us the grounds and conditions on which marriages will be rendered as invalid. These conditions should be satisfied in order to make a marriage void or voidable. The nullification of a marriage is very essential in the matrimonial law system because there is no point in bearing the burden of divorce in cases where marriage has been annulled on the grounds of fraud or where marriage is annulled despite the fact that the respondent pair has already been married.

[1] The Hindu Marriage Act, 1955; S. 2
[2] Sapindas: blood relation
[3] The Hindu Marriage Act, 1955; S. 5
[4] The Hindu Marriage Act, 1955; S. 12
[5] AIR 1966 MP 8
[6] Frigidity: Failure of a female to respond to sexual stimulus
[7] Quoad hanc: where someone is not able to have sex with a particular individual
[8] AIR 1973 Delhi 200
[9] AIR 1975 Cal 109
[10] The Hindu Marriage Act, 1955; S. 11

Dhwani Shah