(..7 B..)

NULLITY OF MARRIAGE[1].

QUESTION BANK.

Q.1. Write an essay on ‘Nullity of Marriage’.

Q.2. What is the nullity of marriage? What are the grounds on which a court declares marriage null?

Q.3 What are the grounds for the nullity of marriage under different personal laws in India?

SHORT NOTES.

1. Void and Voidable Marriages. 2.       Nullity of marriage.

SYNOPSIS.

1. INTRODUCTION.
2. VOID AND VOIDABLE MARRIAGES.

(1). Void Marriages.

Grounds of void marriages.

1. Hindu Law-
2. Muslim Law.
3. Christian law-
4. Paris Law.

(2). Voidable Marriages.

Grounds of Voidable marriage.

1. Under Hindu Law.
2. Parsi and Christian law.
3. Under Muslim Law.
4. Under the Special Marriage Act-

Distinction between ‘void’ and ‘voidable’ marriage:-

1. As to marital status.
2. As to the status of children. 3. As to Mutual rights and duties.
3. As to judicial declaration. 5. As to ‘bigamy’. 6. Right of maintenance.

 I.         INTRODUCTION.

                    The concept of marriage under law first time came in English Law. The Ecclesiastic[2] Courts used to exercise jurisdiction in this matter. Nullity is an annulment of marriage. In the nullity of marriage, the marriage is regarded as void. This English concept of nullity of marriage was introduced in India in the Indian Divorce Act, Parsi Marriage and Divorce Act, Hindu Marriage Act, etc.

                    The difference between ‘divorce’ and ‘nullity of marriage’ is that-

1. a) In divorce, all the acts committed during the subsistence of marriage are treated as valid. Whereas in ‘nullity of marriage’, the marriage is treated as if it had not taken place, and therefore, it does not validate acts made during the subsistence of marriage.
2. b) Children begotten before the dissolution of marriage by divorce and out of that wedlock are legitimate[3]. Whereas children begotten out of null and void wedlock are treated as bastards[4] , and they do not get legitimate status (however, under Hindu Law and exceptional circumstances of S.21 of the Indian Divorce Act, children begotten out of null and void wedlock are also treated as legitimate for succession, etc.).

II. VOID AND VOIDABLE MARRIAGES.

                    Marriages are divided into two classes for the purpose of nullity of marriage. Nullity of marriage is declared in case of void or Voidable marriages.

(1). Void Marriages.

                    A void marriage is no marriage. It is because the two persons having no capacity to marry have undergone marriage. In other words, if the impediment[5] (bar) to the marriage is absolute,[6] the marriage is void. By void marriage, parties do not get the status of husband and wife. A decree of nullity is not necessary for void marriage. Any party to such marriage is free to perform another marriage. It is open to the parties to treat marriage as null and void without even asking for a declaration from the court. When a court passes a decree of nullity of marriage with respect to void marriage, it merely renders such a marriage null and void. In other words, the court merely makes a judicial declaration of the fact that no marriage existed between the spouses.

                    In India, under all matrimonial statutes, a petition for nullity can be filed only by either party to the marriage. If one of the parties dies, the other can not file such a petition.

In Dr Mangala Shlar V. Dr Laxman Jadhav

2008 (1) All MR R 769

Held:-          Decree of nullity of marriage is higher than the decree for declaration of marriage Voidable.

Grounds of void marriages.

                    A marriage performed in violation of absolute impediments is void. Generally, a marriage performed in prohibited degrees of relationship or a bigamous marriage is regarded void under all personal laws. Viz-

i. Hindu Law-

                    Under Hindu law (S. 11 of the Hindu Marriage Act, 1955), the following grounds of absolute impediments render the marriage void. Namely-

1. a) if, at the time of marriage, either party has a spouse living[7].
2. b) if the parties are sapindas (i.e. from the same ancestor) to each other unless the custom permits such a marriage.
3. c) if parties are within the prohibited degrees of relationship[8] unless the marriage is permitted under custom.
4. Perumal V. R. Nesammal.

[AIR 2004 Mad. 37.]

Facts- The Plaintiff’s husband had filed suit against his wife (the defendant in this case) for the declaration that the Plaintiff and defendant are not the husband and wife and for an injunction restraining the defendant from claiming any right against the Plaintiff as his wife. According to Plaintiff, the wife misrepresented to him that she was Hindu. Therefore, he married her. It was subsequently discovered that she was Christian. The marriage between them was solemnised according to Hindu rituals. According to Plaintiff, a marriage under Hindu law with Hindu rites and ceremonies is impossible between a Hindu and a Christian. Marriage between a Hindu and a Christian is only possible either under the Christian Marriage Act or under the Special Marriage Act, and therefore, no such marriage between them took place. Therefore, according to the husband, the marriage was null and void. In defence, the wife pleaded that she was born Hindu and lived according to Hindu principles due to the mistake of school authorities that her religion mistakenly entered as Christian.

Held– The Court rejected the husband’s petition.

ii. Muslim Law.

                    Under Muslim law, the following are the grounds of absolute impediments to render marriage void. Namely-

1. a) marriage performed in consanguinity, b) affinity, and c) fosterage.

iii. Christian law-

                    Following are the grounds that render Christian marriage void (provided under S. 19 of the Indian Divorce Act).

1. a) impotency of husband. b) marriage is performed within the prohibited degrees of consanguinity or affinity, c) either party was an idiot or lunatic at the time of marriage, d) the former husband or wife is living, and e) the consent of either party is obtained by force or fraud.

iv. Parsi Law.

                    Under Parsi law,[9]  a marriage is void-

1. a) if parties are within prohibited degrees of consanguinity or affinity, b) if necessary formalities of marriage have not been performed, c) if the husband has not completed at the time of marriage the age of 21 years, and the bride the age of 18 years, d) impotency of either party to the marriage.

(2). Voidable Marriage[10].

                    A voidable marriage is valid until it is avoided; it can be avoided only on the petition filed by either party to the marriage. However, after either party’s death, the marriage’s validity cannot be questioned in any court. So long as a Voidable marriage is not avoided, all legal consequences will follow, e.g., the parties get the status of husband and wife, and the children are ligitamate.

Grounds of Voidable marriage.

                    Generally, violation of relative impediments[11] renders marriage void.

i. Under Hindu Law.

                    Following are the grounds provided by the Hindu Marriage Act for rendering marriage Voidable. Namely- a) Impotency[12] of husband, b) incapacity of either party of marriage to give consent for the same[13] , and c) Premarital pregnancy of the wife[14].

ii. Parsi and Christian law.

          Under Parsi and Christian law, no concept of voidable marriage is recognised.

iii. Under Muslim Law.

                    The concept of voidable marriage is synonymous with ‘irregular marriage’ in Muslim Law. The main grounds for an irregular marriage under Muslim law are-

1. a) Marriage with the woman undergoing iddat b) marriage with a woman of another religion c) marriage performed without witness d) marriage with a fifth wife e) marriage performed against the rule of unlawful conjugation.

iv. Under the Special Marriage Act-

                    Special Marriage Act provides the following grounds of voidable marriage viz- a) Willful refusal to consummate marriage b) Premarital pregnancy c) consent of either spouse if it is obtained by fraud or force.

Distinction between ‘void’ and ‘voidable’ marriage:-

                    The distinction between ‘void’ and ‘voidable’ marriage is as follows-

i. As to marital status[15].

                    Void marriage being no marriage is void ab initio[16]. In contrast, a ‘voidable’ marriage is not void ab initio. It becomes void only after the court declares it void.

ii. As to the status of children[17].

                    ‘Void marriage’ gives no legal status to the children; instead, they are bastards (however, nowadays, under Hindu law, they are given the status of legitimate children). However, the children who have gotten out of voidable wedlock are legitimate.

iii. As to Mutual rights and duties[18].

                    A ‘Void marriage’ confers no mutual rights and duties on one another. Any spouse may perform another marriage. In contrast, a ‘voidable marriage’, unless avoided, is a valid marriage. Unless avoided, such marriage confers the status of husband and wife; therefore, they are entitled to mutual rights and duties.

iv. As to judicial declaration[19].

                    A ‘void marriage’ is no marriage; no judicial declaration of its invalidity is essential. When the court passes a decree annulling it, it merely declares an existing fact. In contrast, judicial decrees regarding the ‘nullity’ of marriage are essential in cases of voiding marriages.

v. As to ‘bigamy’[20].

                    In a void marriage, any party can perform a second marriage, but he/ she will not have the offence of ‘bigamy’. However, in the case of ‘voidable’ marriage, unless the marriage is avoided, one spouse cannot marry a second time. Otherwise, it will be an offence of ‘bigamy’.

vi. Right of maintenance[21].

                    A wife of a ‘void marriage’ cannot claim maintenance under S. 125 of Cr.P.C., but the wife of a voidable marriage can claim it.

*****

[1] रद्दबातल विवाह [शादी रद्द बातिल गिनना]

[2] धार्मिक

[3] औरस [वैध]

[4] अनौरस [अवैध संतान]

[5] अडथळेs [बाधा]

[6] पूर्ण [शुद्ध]

[7] जीवंत जोडीदार असेल  [जीवनसाथी रह रहा है]

[8] प्रतिबंधात्मक नातेसंबंध

[9] Parsi Marriage and Divorce Act

[10] बेकायदेषिर ठरवता येण्याजोगे विवाह [अमान्यकरणीय विवाह]

[11] दुय्यम दर्जेचे अडथळे [सापेक्ष बाधाएं]

[12] नपुंसकता

[13] विवाहास संमती देण्यास असमर्थता

[14] विवाहपूर्व गर्भधारणा [पत्नी का विवाह पूर्व गर्भधारण]

[15] विवाह दर्जा [वैवाहिक स्थिति]

[16] सुरुवातीपासून बेकायदेषिर [आरंभ से ही शून्य]

[17]  मुलांचे स्थान [बच्चों की स्थिति]

[18] परस्पर अधिकार-कर्तव्य

[19] न्यायालयाचा निर्णय [न्यायिक घोषणा]

[20] दुसरे लग्न केल्यास [द्विविवाह का प्रथा]

[21] पोटगीचा हक्क [भरण पोषण]