Theoretical overview
Valid Marriage
Section 5 of the Hindu Marriage Act, of 1955 states the conditions for a valid marriage. A marriage can be said valid if it fulfils the following conditions:
- None of these parties have spouses living at the time of the marriage.
- During the time of the marriage, neither party should be.
- Incapable of giving valid consent due to the unsoundness of mind.
- Suffering from mental disorder to an extent as to be unfit for marriage and procreation of children.
- Subjected to repeated attacks of insanity.
- Age- The bridegroom must be 21 years or above and the bride must be 18 years or above.
- The parties are not in a degree of prohibited relationship.
- Parties are not sapindas (blood relation) to each other.
Nullity of Marriage
If there are any impediments (obstructions), then the parties cannot marry each other. If someone marries and there are any obstructions in the marriage process then it is not a valid marriage. Impediments are divided into two types which are: absolute impediments and relative impediments.
In absolute impediments, a fact that disqualifies a person from lawful marriage exists and the marriage is void i.e an invalid marriage from the beginning.
In relative impediments, an impediment that forbids marriage with a certain person exists and the marriage is voidable i.e one party can avoid the marriage. These impediments gave rise to the classification of marriage which are:
- Void Marriages
- Voidable Marriages
Provision of Void and Voidable Marriages under the Hindu Marriage Act, of 1955
Void Marriages (Section 11)
A marriage is considered void under the Hindu Marriage Act if it doesn’t fulfill the following conditions of Section 5 of the Hindu Marriage Act:
Bigamy
If any of the parties have another spouse living at the time of marriage. It shall be considered as null and void.
Prohibited Degree
If the parties are within a prohibited relationship unless the customs allows it.
Sapindas
A marriage between the parties who are sapindas or in other words a marriage between the parties who are of his or her relations or of the same family.
Voidable Marriages (Section 12)
A marriage that is voidable on either side of the party is known as voidable marriage. It will be valid unless the petition for invalidating the marriage is made. This marriage is to be declared void by a competent court under the Hindu Marriage Act, 1955. The parties of such a marriage have to decide whether they want to go with such a marriage or make it invalid.
Grounds of a Voidable Marriage
1. Marriage not consummated due to the impotency of the respondent.
2. Respondent is suffering from a mental disorder as to be unfit for marriage and procreation of children.
3. The consent of the petitioner has been taken by fraud or force.
4. That the respondent was pregnant by some other person other than the petitioner.
Important Differences
| Void Marriage | Voidable Marriage |
| This marriage is void-ab-initio, which means the marriage was void from the very starting. | The marriage is voidable at the open of the one-party of both the parties. |
| A wife does not have the right to claim maintenance in the void marriage. | A wife has the right to claim maintenance in the voidable marriage. |
| In a void marriage, the parties do not have the status of husband and wife. | Husband and wife have the status in the voidable marriage. |
| In a void marriage, no decree of nullity is required. | In a voidable marriage decree of nullity is required. |
| A void marriage is none in the eyes of law. | A void marriage is to be declared void by a competent court |
| The children in a void marriage are treated as legitimate. | The children in a voidable marriage are treated as illegitimate but this distinction is deleted by the Supreme Court and said a child cannot be said termed as illegitimate. |
Relevant sections
Section – 5 of The Hindu Marriage Act, 1955– defines the “Conditions for a Hindu marriage”. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely –
- None of these parties have spouses living at the time of the marriage.
- During the time of the marriage, neither party should be.
- Incapable of giving valid consent due to the unsoundness of mind.
- Suffering from mental disorder to an extent as to be unfit for marriage and procreation of children.
- Subjected to repeated attacks of insanity.
- Age- The bridegroom must be 21 years or above and the bride must be 18 years or above.
- The parties are not in a degree of prohibited relationship.
- Parties are not sapindas (blood relation) to each other.
Section – 11 of The Hindu Marriage Act, 1955– defines “Void Marriages” which states that any marriage solemnized shall be deemed null and void by a decree of nullity if it violates the provisions of Section 5 (i), (iv), and (v).
Section – 12 of The Hindu Marriage Act, 1955– defines “Voidable Marriages”
A marriage that is voidable on either side of the party is known as voidable marriage. It will be valid unless the petition for invalidating the marriage is made. This marriage is to be declared void by a competent court under the Hindu Marriage Act, 1955. The parties of such a marriage have to decide whether they want to go with such a marriage or make it invalid.
Grounds of a Voidable Marriage
1. Marriage not consummated due to the impotency of the respondent.
2. Respondent is suffering from a mental disorder as to be unfit for marriage and procreation of children.
3. The consent of the petitioner has been taken by fraud or force.
4. That the respondent was pregnant by some other person other than the petitioner
Case Laws
Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988), the court observed that any marriage that appears to be non-observance of Section 11 of the Hindu Marriage Act, 1955, is to be treated as null, and void from the very beginning of the act.
Tallam Suresh Babu v. T. Swetha Rani (2018), the court held that a person must prove under Section 12(1)(b) the unsoundness of mind-affecting consent, mental disorder, and severity that rendered the respondent unfit for procreation, or recurring attacks of insanity.
Anil Kumar v. State of Uttar Pradesh (2022), Allahabad High Court remarked that a child born out of a void or voidable marriage is legitimate.
Points To Be Remember
- Section 5 of the Hindu Marriage act talks about the validity of marriage.
- Section 11 and 12 of the Hindu Marriage act define void and voidable marriage.
- Section 16 of the Hindu Marriage act define legitimacy of Children.
- In Hindu Law Marriage consider as a religious duty not a contract.
