All About Void and Voidable Marriages By: Gautam Kawatra

September 9,2018:

The Author, Gautam Kawatra is a 3rd Year student of Vivekananda Institute of Professional Studies, New Delhi.

Finding a universal applicable, true meaning of marriage may be quite a challenge as there are so many different views and understandings of what exactly constitutes a marriage. These differences occur from culture to culture and even within a culture from person to person. Views and definitions of marriage have also changed significantly over the centuries and decades.But generally, everyone understands that the meaning of marriage is when two people make a public pledge or commitment to live together and share their lives in a way that is recognized legally, socially and sometimes religiously. This sharing of two lives entails myriads of facets involving a bonding of their bodies, souls and spirits in a physical, emotional, mental and spiritual union.

EVOLUTION OF THE INSTITUTION OF THE MARRIAGE

It is a well established fact that the institution of marriage did not existed among the primitive men. At that time man lived more or less like any animal. He was so engaged in the satisfaction of his primary needs, shelter and hunger, that’s why he didn’t have much time to think about the refinement. Sex life was absolutely free. Sex promiscuity was the rule. As th  sex relationship remained unregulated, it was mainly the maternity which could be known. Paternity could not be determined. It seem to be plausible that at some stage of human development with the emergence of the notions of the ownership and possession, the human male was seized with the idea of the knowing his children. This was not possible if sex promiscuity continued to be the rule in the society. If sex relationship could be made exclusive union of man and woman, then only was it possible to determine the paternity of the children otherwise it was not possible. Thus, this process was naturally slow and prolonged

NULLITY OF MARRIAGES

The law of nulity relates to the pre-marriage impediments to marriage. The subject matter of impediments to marriage is covered under capacity to marry. If there is any impediments in the marriage, the marriage cannot be done between the parties. If there are such impediments and marriage is still done in such a case there marriage will not bw treated as valid. Thus, these impediments are of two types which are given as follow :-

• ABSOLUTE IMPEDIMENTS – If it exists then the marriage is considered as Void-ab-intio i.e. marriage is invalid from the beginning
• RELATIVE IMPDEIMENTS – If it exists then he marriage is voidable i.e. it can be avoided at the wish of any one of the parties.

Thus, these two impediments have given a rise to the classification of marriage into :-

• VOID MARRIAGES
• VOIDABLE MARRIAGES

According to Section 11 of the Hindu marriage Act, a void marriage means which is void since its beginning or inception. In other words, it does not exist. It is called as a marriage because two persons have undergone the ceremonies required to perform a marriage, and thus become husband and wife.

Eg. If a Brother and Sister perform all the requisite ceremonies required to constitute a marriage, then they will be Husband and Wife. But such amrriage is not allowed as a brother and a sister cannot marry each other. So this marriage would be considered as VOID-Ab-Intio.

When a Void marriage is done, no decree of court is necessary to declare it as void. In some cases if one of the party files a suit for such declaration, the court merely declares the fact that marriage is null and void. It is an existing fact that the marriage is void and the court by passing a decree make a judicial declaration of such fact.

GROUNDS OF VOID MARRIAGE

• If at the time of the marriage, either of the party has a spouse living, then that would become a bigamous marriage and such a marriage is void.For eg if a Husband marries to a girl without having a decreee of divorce from the first wife, thus the subsequent marriage shall be considered as void since beginning.
• If the parties are sapindas to each other then acccording to the law such marriage are unlawful and thus void since beginning.
• If the parties are within the prohibited degree of relationship, it is considered as void.
• If the ceremonies of the marriage are not performed properly, then also it can become as a ground of a void marriage as strict observation is made regarding to the ceremonies.
• If the marriage is in violation of Section 15 of the Hindu Marriage Act, then also it would become as void.

Thus, if any one of the above ground is available, the marriage would be considered as void

• VOIDABLE MARRIAGE

According to Section 12 of the Hindu Marriage Act, there are four grounds of voidable marriage which are available in respect to both the pre act and post act marriage. Such grounds are as follows:-

• Inability of the respondent to consumate the marriage on the account of his or her impotency
• If the respondent is not in his mental capacity and is of unsound mind then he can,t guve a consent to the marrriage as he is not in his senses whle giving consemnt to such a marriage
• Concealement of the pre- marriage pregnancy by the respondent is the ground for the voidable marriage. The ground is pre marrriage pregnancy of the bride and not her unchasity. The requirements of this ground are as follows :-
• Respondent was pregnant at the time of the marriage
• She was pregnant from the person other than the petitioner
• The petitioner at the time if the marriage didn’t know about such pregnancy
• The petiton must be represented within one year of the commencement of the act in respect of the pre act marriage and within one year of marriage in respect of the post marriage
• Marital intercourse did not take place with the consent of the petitoner after the discovery of the respondent’s pregnancy by the petitioner.
• Consent of the petitioner being obtained by the fraud and force, then it would amount to a voidable marriage. If the consent of the person is not given to a particular marriage according to his/her consent or against the will of th person or by fraud or forcefully then it can be taken up as a ground for the divorce.

DIFFERENCE BETWEEN VOID AND VOIDABLE MARRIAGES

Difference  between void and voidable marriage is very material. A void marriage is void-ab-initio. It does not alter the status of the parties as they do not become husband and wife and also it does not lead to rise to any of the  mutual rights and obligations of the parties.

On the other hand, a voidable marriage remains valid and binding and continues to subsist for all purposes unless a decree annuls it. A void marriage being no marriage, the court merely passes a decree declaring the marriage as void, while a voidable marriage is only annulled by the decree of the court.

It is not necessary that the decree declaring a void marriage as void is passed. But a voidable marriage remains a valid marriage untill a decree annulling it is passed. The parties to the void marriage may perform another marriage without a decree declaring their marriage as a void and neither will be guilty of bigamy.