Last Updated on July 18, 2021 by Satish Mishra
The post covers critical analysis of nullity of marriage in Hindu Law viz sections Section 5, Section 11 & 12, Section 13. Through this post one can understand in the end, how would a marriage be declared null and void through courts in India.
- Introduction
Marriage is a ceremonial union of individuals along with their families through a feeling of mutual consent and trust in one other. It is venerated universally as one of the holiest unions and a consecration recognised both socially and culturally. The concept of marriage evolved with the evolution of society from a promiscuous state of existence to one with stabilized and definite kinship relations and rules. Marriage in the manusmriti was considered to be the very source of the “Purusharthas”, not only of dharma, artha and kama but even of moksa[1]. In Indian society, marriage is considered to be a public affair, as it is an arrangement that demands fulfilment of not only the social norms but also certain significant conditions as prescribed by law, after which only, marriage is solemnized between the two individuals. Though this holy wedlock is considered to be a lifetime consortium, however, due to emerging complexities and prospective development in modern society, there came certain legal grounds for the end of a marriage or to nullify the marriage.
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- Conceptual Understanding
- Nullity of marriage
Nullity or Annulment of marriage refers to a judicial declaration by which a marriage is declared to be either ‘Void’ or ‘Voidable ’ based on the conditions mentioned by law under section 5 of the Hindu Marriage Act, 1955.
- Section 5 of the Hindu Marriage Act, 1955[2] prescribes the following grounds upon which a marriage may be solemnized between the two individuals:
- There should be the practice of monogamy;
- A valid consent, without fraud or force, should exist between the individuals;
- The spouses should be capable of understanding the nature of marriage;
- The marriage should be beyond the prohibited degree of relation, it is subject to custom and traditions;
- The marriage should follow Sapinda rules;
- The bridegroom should have completed the age of twenty-one years and the bride the age of eighteen years at the time of marriage.
- People tend to get confused with the nullity of marriage and certain related terms such as Divorce or Judicial separation and tend to use them interchangeably, however, they are distant from each other.
- DIVORCE
It is a judicial declaration whereby the petition of the parties of the marriage, a valid marriage can be dissolved on various grounds as mentioned in section 13 of the Hindu Marriage Act, 1955 such as – extramarital sexual intercourse, conversion of religion, cruelty, desertion, incurable mental disorder etc[3]. Here, the validity of the marriage is not in question rather there is an end of a valid marriage.
- JUDICIAL SEPARATION
It is a judicial decree by which the parties of marriage may no longer cohabit with each other on the grounds mentioned in section 13 sub-section (1) and (2) of the Hindu Marriage Act, 1955 but shall remain under the status of marriage[4]. Here, the marriage continues to exist and the duties and other related liabilities remain the same towards each other.
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- Void Marriage
Void marriages as stated in section 11 of the Hindu Marriage Act, 1955 are such, which are nullified as they contravene essential conditions specified by certain clauses of section 5 of the Hindu Marriage Act, 1955[5]:
- The practice of monogamy shall be followed;
- The marriage should follow Sapinda rules;
- The marriage should be beyond the prohibited degree of relation, subject to custom and traditions.
Thus, such marriages which violate the lawful grounds are considered to be “void ab initio” i.e., void or unenforceable by law from the very beginning.
- Voidable Marriage
Marriages are considered to be voidable, when they contravene certain essential conditions as specified by section 12 of the Hindu Marriage Act, 1955, such as:
- Impotency of the spouse;
- Consent obtained by fraud or force;
- Mentally unstable;
- Spouse suffering from any sexually transmitted disease;
- Pregnancy of the wife by any other person at the time of marriage.
Thus, in such marriages, the aggrieved party can move to the court and claim to declare the marriage as null and void as per judicial discretion.
- Status of Children born under nullified marriages
The rights and legitimacy of the children born under nullified marriages are protected under section 16 of the Hindu Marriage Act, 1955[6]which states that the children born out of the void and voidable marriages are “legitimate children”.
According to the Act:
- The children born out of a marriage, which is declared null and “void” under section 11 of the Act, shall be legitimate irrespective of the nullity of marriage.
- The children born out of a marriage, which is declared “voidable” under section 12 of the Act, are legitimate children irrespective of the decree of nullity.
- The children born in a void or voidable marriage should be treated equally as other legitimate children. Additionally, they too have the right to get an equal share in the property of the parents only and not from the other related kins.
In Laxmibai vs. Limbabai[7], the High court of Bombay upheld the rights of the children born out of a void marriage as a legitimate child. The court recognized that the status of the child in such marriages was legitimate, mainly for the benefit of the children. It also confers the child with the rights on the property of the concerned parents and thus removes the disability of such children.
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- Child marriage – Void or Voidable under the Hindu Marriage Act,1955
The Prohibition of Child Marriage Act, 2006 defines a “child” to be a person, who if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age. Additionally, the act also defined “ child marriage” as a marriage to which either of the parties is a child[8].
Now, the question arises, –
“Whether child marriage is considered to be void or voidable under the Hindu Marriage Act, 1955”
It can be answered by referring to certain judgements like-
- Pinninti Venkataramanavs. State[9]
In this case, the High court of Andhra Pradesh faced an issue, “whether a Hindu marriage governed by the provisions of the Hindu Marriage Act, 1955 where the parties to the marriage are minor is void ab initio in the eyes of law.” The High court under this judgment held that any marriage solemnized in contravention of clause (iii) of section 5 of the Hindu Marriage Act, 1955, which states the age for entering into marriage, is “neither void nor voidable”. Additionally, the court said that the only consequence available to the concerned person is that they can be punished under S.18 of the act which provides for rigorous imprisonment extending up to two years or a fine extending up to one lakh rupees or both.
- Kalawati vs. Devi Ram[10]
In this case, it was held that the minority of wife in a marriage is not a ground of annulment or voidness per se. The marriage on such grounds is not considered to be void even by the legislature as they didn’t mention the same and such omission of laws on this ground of nullity was a deliberate act of the legislature.
Thus, it becomes clear that child marriages under the Hindu Marriage Act, 1955 is considered neither void nor voidable and there only exists an alternative for the aggrieved party, that is prescribing punishment for such marriages. However, child marriages are prohibited and considered to be void under the Special Marriage Act, 1954.
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- Nullity of marriage – a way to solemnize Bigamy?
Bigamy is a practice of marrying someone while already married to another person i.e., to have more than one spouse during the lifetime of the other. In India, this practise has been in existence since ancient times, since when women were considered to be chattel of men and the aristocrats and kings had multiple wives as a symbol of pride and strength. Manusmriti, one of the sources of Hindu jurisprudence encouraged multiple marriages as it stated that “men should abandon a barren wife in the tenth year; one who bears daughters in twelfth but she who is quarrelsome without delay”[11]. However, after independence, various personal laws were codified and a moratorium was imposed on the practice of bigamy regardless of religion, except for Muslims. Moreover, the practice of Bigamy is criminalised under section 494 of the Indian Penal Code, 1860.
In the recent past, there have been various cases, witnessing a general procedure adopted by the husband’s where they try to practice bigamy by solemnizing their second marriage. By conversion of religion, people adopt the practice of bigamy or polygamy and further, claims that once they convert their religion such as Islam, then they can have four wives despite having a first wife who continues to be a Hindu.
Now the question arises:
“Will Nullity or voidness of a marriage under Hindu law, justify bigamy by adopting a new personal law?”
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One can answer such a question by referring to a Supreme Court judgement i.e., Sarla Mudgal vs. Union of India[12], in which the Supreme Court of India settled the ambiguity, surrounding obligations of people who change religion to defeat the laws of the country. One of the major issues under this landmark case was that:
- “Whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnize a second marriage?”
- “Whether a second marriage, without having dissolved the first marriage under the law, be a valid marriage even when the first wife continues to be a Hindu?
The court held that a marriage solemnized under the Hindu Marriage Act, 1955 is accompanied by certain obligations against the parties to the marriage, which if one party tries to mitigate by enforcing a new personal law, destroys the legitimate rights of the other spouse who continues to be a Hindu. Additionally, the court held that the expression “void” used in the Hindu Marriage Act,1955 and section 494 of the Indian Penal Code, 1860 have different implications.
- The practice of conversion to Islam and then marrying again would not per se dissolve the first marriage under the Hindu Marriage Act,1955, rather it will become a ground on which divorce can be taken by the aggrieved party under section 13 of the Act to dissolve such marriage.
- Section 494 of the Indian Penal Code explicitly declares that by the practice of bigamy, the second marriage will be declared void in nature, as it took place during the lifetime of the spouse and not vice versa.
Therefore, it explains that one cannot nullify the first marriage by enforcing a new personal law. Also, practising bigamy by conversion of religion is not per se a valid ground for indulging in a second marriage rather it is a valid basis to dissolve the marriage by a divorce decree. On the other hand, section 494 of the Indian Penal Code, 1860 declares the second marriage during the lifetime of one’s spouse as void and punishes such person for a term which may extend to seven years along with a fine.
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- Procedure for obtaining a decree of Nullity marriage
- To obtain a decree of nullity of marriage, the aggrieved party shall file a petition under the District Court. The jurisdiction of the court is decided on the basis of the place, where marriage was solemnized, last place of residence of the parties or place of the party at the time of presentation of the petition.
- The statement and facts as specified in the petition shall be verified either by the petitioner or some other competent person as it will be referred to as a piece of evidence in the case.
- Every petition under the act shall be tried to conclude within six months from the date of service of notice of the petition to the respondent. Also, every appeal under the act shall be heard within three months from the date of service of notice of the petition to the respondent.
Thus, the trial shall continue consistently with the interest of justice until its conclusion or unless the court finds the adjournment of the matter to be a valid decision.
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- Consequences of Nullity of Marriage
When the marriage, by a judicial decree, is declared null and void, the aggrieved party can also claim further relief from the court.
- The court based on judicial discretion along with the application of the petitioner can order the respondent to pay maintenance to the petitioner either monthly or periodically for a term not exceeding the life of such person.
- In such circumstances the custody of the child is maintained as per the orders of the court, keeping in mind the betterment of such child.
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- Conclusion
Marriage is one of the most sacrosanct unions of individuals which is recognised universally both socially and culturally. This holy wedlock has evolved from a time when marriage was the prime responsibility of women life, multiple marriages were a matter of pride for kings and the concept of termination of marriage was inexistent, to a time when marriage is no longer considered to be an everlasting union and with the modernity and increasing realisation of one’s rights and freedoms various laws are made to terminate marriages, where Hindus are governed by the Hindu Marriage Act, 1955. The Act specifies conditions, rights, obligations and duties concerning matrimonial relationships along with the procedure for dissolving such relations on various aspects.
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The above discussion gives a clear view regarding the key concepts concerned with marriage such as nullity of marriage, divorce and judicial separation. The article deals with the concept of void and voidable marriages, explicitly states the conditions as per sections 11 and 12 of the Act by which the marriage becomes unenforceable by law. It also discusses the legitimacy of a child born out of such marriages and how it is upheld under the Act. Moreover, it answers the question of solemnizing second marriage as per the legal precedents and how such an act would be a tactic of a person to give up their duties under one marriage and claim to indulge in matrimonial relations by practising bigamy, in another which would be punishable.
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India is a diverse country having multiple religions and customs in practice. Each of these religions has its own personal laws related to marriage, which inevitably creates an impediment in the smooth adoption and application of laws in pragmatic situations. Therefore, a Uniform Civil Code should to introduced in the Indian legal system. The UCC would prevent people to take advantage of certain loopholes in the statutes, as in the present scenario people trespass from one personal law to another exploiting the rights of the legitimate people in the country.
This post is written by SHUBHANSHI PHOGAT
STUDENT ( FIRST YEAR,B.A LL.B)
VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES, NEW DELHI
For more info on topic, related to Matrimonial Dispute Matters, get in touch with expert top Family Law Advocate Lawyer in Chandigarh Panchkula Mohali Zirakpur Derabassi Kharar Baltana Mullanpur etc.
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[1] Part I, H.V. Sreenivasa Murthy, History of India, 121, (Eastern Book Company 2017)
[2] Hindu Marriage Act, 1955, S.5, No. 25, Acts of Parliament
[3] Hindu Marriage Act, 1955, S.13, No. 25, Acts of Parliament
[4] Ibid
[5] Hindu Marriage Act, 1955, S.11, No. 25, Acts of Parliament
[6] Hindu Marriage Act, 1955, S.16, No. 25, Acts of Parliament
[7] Laxmibai vs. Limbabai, AIR 1983 Bom. 222
[8] Prohibition of Child Marriage Act, 2006, S.2, No. 06, Acts of Parliament
[9]Pinninti Venkataramana vs. State, AIR 1977 AP 43
[10]Mt. Kalawati vs. Devi Ram, AIR 1961 HP 7
[11] Part I, H.V. Sreenivasa Murthy, History of India, 126, (Eastern Book Company 2017)
[12] Sarla Mudgal vs. Union of India, 1995 AIR 1531
