Void Marriage / Nullity Of Marriage

The term void can in general parlance be understood to be a synonym of the

word illegal. Hence anything which is void would have one consequence for
sure that it would be illegal. A void marriage therefore means an illegal
marriage. Now the question is when would a marriage be called illegal?

A and B, both major, enter into a matrimonial relationship with each other and
with their own consent but without the consent of their parents. Is this marriage
illegal? No, this marriage is not illegal merely because the parents of A and B
have refused their consent. But what would be the position if both A and B are
already married to say C and D or either A or B is married to someone else? In
such a case, the marriage between A and B would be illegal as it would not be
fulfilling the conditions for a valid Hindu marriage as prescribed under clause 1 of
section 5 of the Hindu Marriage Act, 1955 [hereinafter referred to as the Act].
Section 5 of the Act says:

It is to be noted that section 5 just lays down the requirements of a valid Hindu
marriage but it does not lay down the effect if any of the conditions laid therein
are not followed. This effect provided for in section 11 and 12 of the Act. Out of
these two sections it is section 11 that deals with nullity of marriage. It provides
as under:

The effect of the above two sections, i.e. section 5 and section 11 when read
together is that all marriages which fall within either clauses i, iv or v of section 5
are void. Under law, these marriages would have no recognition except as is
provided under any law. It has been held by various High Courts that conditions
mentioned is section 11 rendering a Hindu marriage null and void are
exhaustive. It is only on these grounds that that a Court can grant a decree of
nullity.[1985 1 26 Guj Law Rep 47; AIR 1965 Him Pra 15; ILR 1970 Cut 1215]

GROUNDS:

Following are the grounds which shall render a marriage void:

1. Bigamy:

The first condition for valid Hindu marriage is that none of the parties to the
marriage shall have a spouse living it the time of their marriage. If either of them
has a spouse alive from an earlier marriage, their subsequent marriage is no
marriage in the eyes of law. It is void ab initio and non est, i.e. non existent.

2. Persons falling within degrees of prohibited relationships:

Section 3(g) of the Hindu Marriage Act, 1955 defines degrees of prohibited
relationships. It provides as follows:

Lineal ascendants are to be seen from both sides, i.e. from the fathers side as
well as from the mothers side. So both the father and mother are lineal
ascendants. Similarly fathers father is a lineal ascendant whereas mothers
mother is also a lineal ascendant. But a paternal grandmother is not a lineal
ascendant but the wife of a lineal ascendant and hence would fall under clause ii.
Similarly a maternal grand-father would fall under clause ii being the husband of
a lineal ascendant. Clause ii would also cover daughter-in-law and son-in-law
being the wife and husband respectively of ones lineal descendants i.e. son and
daughter respectively. A paternal Aunt (Chachi) and a maternal Aunt (Maami)
would fall under clause iii and two siblings along with other relations described in
clause iv also fall in degrees of prohibited relationships.

3. Sapinda relations:

Section 3(f) defines Sapinda relationship as under:

Sapinda relations can be illustrated as under:

Suppose A is a boy. Now if he is considered as one generation, relatives falling in

four more generations upwards from him from the side of his father shall be his
Sapinda relations. Therefore, As father, As grand-father, As great grand-father
and the father of As great grand-father shall all be As Sapinda relations. But on
the mothers side, this chain is to extend to only three generations which include
A. Therefore, As mother and As maternal grand-mother only shall be As
Sapinda relations from the mother side, A himself being one generation.

By virtue of clause ii of sec 3(f), not only those who fall within the limits of
sapinda relationship shall be sapinda to a person but also where two persons
have a common lineal ascendant who is within the limits of sapinda relationship
with reference to each of them, both of them shall also be sapinda to each other.
For instance A and B are brothers born out of C who is their father. D is As son
and E is Bs son. Here Ds sapinda relations by degrees are A and C. Similarly E is
Sapinda to B and C by degrees of relationship. Here D is not Sapinda to B by
degrees because B does not fall in any of the four generations upward to D. But
despite this, B shall still be Sapinda to D because both of them have a common
lineal ascendant in C who is within the limits of Sapinda relationship to both B
and D. Similarly A and E shall be sapinda to each other as they also have in C a
common lineal ascendant who is within the limits of Sapinda relationship to both
A and E.

Formal annulment of marriage whether necessary:

Another question that arises in marriages falling under any of the above
conditions is whether it is essential to get such a marriage annulled through a
decree from a competent Court of law or is there no requirement for such a
decree as the marriage is illegal and will not become legal if no Court pronounces
upon its illegality? Different Courts seem to have answered this question
differently. Reference in this regard may be made to the following judgements:

Void marriage - No declaration under sec 11 is necessary though same can be

asked for, for the purpose of precaution or record.

AIR 1967 Pat 277; 1967 Cri LJ 1176

(1991) 72 Cut LT 619; (1991) 2 DMC 424 Orissa

Marriage which is void ab initio does not effect or alter the status of party and
neither party is under any obligation to seek declaration of nullity.

1981 Rev Dec 324 (All)

Where a woman was married to a person having his spouse living, marriage is
void under section 5 of the Act, 1955. Woman cannot be treated as spouse and
included in family unit. The mere fact that parties have not approached the Court
for declaration as contemplated under S. 11 does not alter the position.

(1978) 1 APLJ (HC) 360

Going by the above judgements, it is not necessary for a party whose marriage
is void under sec. 5 of the Act to apply formally to a Court of law for decree of
nullity of marriage. Here however the following judgement need also be studied:

A marriage though null and void for contravening any of conditions prescribed by
sec. 5 has yet to be regarded as a subsisting fact and that in that sense it could
not be said to be non est in law or a nullity as long as it is not declared to be null
and void by a decree of nullity on a petition presented by either party against the
other party to marriage.

1981 All Cri R 294 : 1981 Cri LJ (NOC) 191

The ratio set in this judgement seems to be in conflict with the earlier
judgements. The Court in this judgement has very expressly recognized the need
for a formal declaration by a competent Court pronouncing a marriage in
contravention of relevant provisions of sec 5 to be null and void.

With all due respect to Courts which have delivered the above judgements, it is
submitted that it is always better to get a marriage formally declared null and
void by a Court of competent jurisdiction so that the fact of solemnisation of
marriage (though void ab initio) is countermanded by the subsequent act of
getting that marriage annulled.

MAINTENANCE:

Another significant question that now arises is whether the wife whose marriage
is void under section 11 of the Act can claim maintenance from her husband of
that void marriage. The Supreme Court has held that where a marriage is void,
wife cannot claim maintenance under sec. 488 CrPC [sec 125 under the Act of

1973] (AIR 1988 Supreme Court 644). However it is a generally accepted rule
that even in such cases, the wife is entitled to maintenance under sec. 18 of the
Hindu Adoptions and Maintenance Act [(1985) 2 Hindu LR 425 : (1985) 2 DMC
251 (MP)] and also under section 24 of the Hindu Marriage Act 1955 [(1990) 2
Div Mat Cas 594 : (1991) 1 Hindu LR 56 (MP)].

LEGITIMACY OF CHILDREN:

Section 16 of the Hindu Marriage Act 1955 confers legitimacy upon the children
born out of void marriages. It provides as under:

Hence the clear effect of section 16 is that if a child is born out of a wedlock
which is subsequently declared to be null and void, that child will not be
considered illegitimate but he shall be considered legitimate despite the
marriage being illegal from its inception. The section provides a cushion to the
children of void marriages and prevents them from being bastardised.
Difference between Void and Voidable marriage
The principal difference between void and voidable marriages lies in the fact that
in void marriages the marriage is without any legal effect and void since its
inception and it could not receive the recognition of marriage at all. On the other
hand in voidable marriages marriage remains valid for all purposes till the
petition for its nullity is granted by the courts.

In a void marriage, it is open to the parties even without recourse to the court to
treat it as a nullity. Neither party is under any obligation to seek a declaration of
nullity under this section. When a marriage is void, the court regards it as never
having taken place and that there is no conferment of status of matrimony as a
result thereof.

A voidable marriage, on the other hand, is regarded by the court as a valid and
subsisting marriage until a decree of nullity is obtained during the life time of the
parties. In the case of a void marriage, the decree declares the status and in the
case of a voidable marriage the decree changes the status.

In case of a voidable marriage, till it is annulled by a decree, the parties are

husband and wife and children begotten of such marriage are legitimate. A
voidable marriage can be avoided only on presentation of a petition by either
party thereto whereas a marriage which is null and void may be declared under
ordinary law to be so even at the instance of a stranger whose interests are
affected by such marriage.

In case of marriages which are void ab initio, no lapse of time is by itself a bar to
the inquiry as to their validity or invalidity. Thus it can be questioned at any time
because it is seeking a relief of declaration regarding status. Whereas a marriage
which is voidable cannot be questioned after the death of either party.

In a void marriage, no rights or obligations are created between the parties to

marriage, which arise in lawful marriages in normal course as a void marriage
stands nullified from the very beginning. In Sheelwati v. Ram Nandini, pointing
out the distinction between void and voidable marriage, Deokinandan Agrawal,
J., observed that under Section 11 either party can move a petition to have it
declared void but in a voidable marriages under Section 12 only the aggrieved
party can file a petition for nullity of marriage. In both the cases the decree
which follows would be a decree of nullity although under Section 16 the
consequences of both void and voidable marriages declared as such are
identical.

In the aforesaid judgment the Honble judge has opined that in void marriages
until the court for the contravention of the provisions of Section 5 clauses (i), (iv)
and (v) declares the marriage null and void, the marriage subsists and it could
not be termed as a nullity. This view is sharply in contrast to the prevailing view,
as expressed in Bajirao v. Tolan Bais, case. In Tolan Bais case the court
observed that a marriage in contravention of the provisions of Section 5(1) does
not create and confer any legal status upon the parties thereto and to bring such
a marriage to an end it is not necessary to move any petition and obtain a
decree of nullity. In such marriages performance of religious rituals does not
attach any meaning to it.

In the judgment delivered by Mr. Deokinandan, the difference between void and
voidable marriage has been rendered nugatory. In fact void marriage is itself void
since its inception, for which a decree of nullity is not necessary. But as per
judgment of Allahabad High Court such a declaration would still be required. If
this view is accepted then the principal difference between void and voidable
marriage would vanish. Hence this view does not seem to be correct.