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.