Difference between Void and Voidable Marriages

(i) Neither party should have a spouse living at the time of marriage.

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(ii) The parties should not be within the degrees of prohibited relationship, unless the custom or usage governing each of them permits such a marriage.

(iii) The parties should not be sapindas of each other, unless the custom or usage governing each of them permits such a marriage.

The non-fulfillment of any of these three conditions renders a marriage void ab initio, i.e., null and void from its very inception, and either party to such marriage can obtain a decree of nullity from the Court. However, it is to be noted that neither party is under any obligation to obtain such a declaration, which is more for purposes of precaution and record. Even without such a declaration of the Court, a party to such a void marriage can marry another person, because such a marriage is a total nullity, i.e., it is no marriage at all in the eyes of law.

Under the general law, the children of a marriage which is void ab initio are illegitimate, and are not entitled to any of the rights conferred by the law on a legitimate child. However, S. 16 of the Act lays down that the children conceived of such a void marriage are to be deemed to be legitimate, even if a decree of nullity has been passed declaring the marriage to be null and void.

Voidable Marriages (Section 12):

The Act lays down four grounds on which a Hindu marriage become voidable, whether such marriage was solemnised before or after the commencement of the Act. Such a marriage may be annulled by a decree of nullity on application to the Court by the spouse entitled to avoid the marriage.

The four grounds mentioned in S. 12 are as follows:

(a) Impotency, namely, that the marriage has not been consummated owing to the impotence of the Respondent.

Impotency refers to incapacity to consummate the marriage i.e., incapacity to have marital intercourse which is one of the objects of every marriage. The Supreme Court has observed that a person is impotent if his (or her) physical or mental condition makes consummation of the marriage a practical impossibility. (Digvijay Singh v. Pratap Kaur, A.I.R. 1970 S.C. 137)

It is to be remembered that the Petitioner’s own infirmity is no ground for relief under S. 12. Under the English law, such relief can be granted if the Petitioner was not aware of his (or her) infirmity at the time of marriage. (Harthan v. Harthan, 1948 2 All E.R. 639)

Impotency referred to in S. 12 does not signify sterility or incapacity of conception; what is referred to is incapacity to have sexual intercourse.

Further, it is not absolutely necessary that the incapacity to perform the act of coitus must be general, because a person may be generally capable of that act, and yet he may be incapable of it with a particular individual (as for instance, his own wife). This is sometimes referred to as relative impotency.

In a case before the Andhra Pradesh High Court, a petition for divorce was filed by the wife on the ground of the husband’s impotency. It was shown that the spouses had slept together for four nights, and thereafter lived together for four months, but the husband could not have sexual intercourse with his wife. The Court held that such evidence would lead to the inference that he was impotent, i.e., incapable of having sexual intercourse and the burden would be on him to rebut such an inference. (Elizabeth v. Stanley, A.I.R. 1985 A.P. 238)

(b) Unsoundness of mind, mental disorder or insanity,

As seen earlier, the consent to the marriage of either party should not be affected by unsoundness of mind, mental disorder or insanity. (Refer to the second condition of a valid Hindu marriage, above.) If this condition is not satisfied, the marriage is voidable at the option of the other party.

(c) Consent obtained by force or fraud, namely, that the consent of the Petitioner was obtained by force or fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the Respondent.

Although a marriage under the Act creates a relation, and a status not imposed or defined by contract, it nevertheless does require the consent of the parties. Absence of such free consent makes the marriage voidable.

In a case before the High Court of Punjab and Haryana, a material physical deformity of the wife [viz., that her left hand was partially disabled because of polio in childhood) was not disclosed to the husband and his family before the marriage. The Court held that, in such a case, it can be said that the husband’s consent was taken by fraud. He was, therefore, entitled to a decree of nullity. (Balbir Kaur v. Maghar Singh, A.I.R. 1984 Pun. & Har. 417)

Two further conditions are laid down by S. 12, viz-

(1) That the petition should be presented within a year after the force has ceased to operate, or (as the case may be), the fraud has been discovered; and

(2) That the petitioner should not have (with his or her consent) lived with the other spouse as husband or wife, after the force had ceased to operate or (as the case may be), the fraud was discovered.

It is obvious that where consent of a party to a marriage is obtained by force or coercion or duress, there is absence of a consenting will to marry. Similarly, if the party is kept under the impression that what is being performed is only the betrothal, or if there is a deception as to the identity of the other party, there is a fraud, which forms a ground for annulment of the marriage under Section 12.

Pregnancy of the Respondent, namely, that the respondent was, at the time of marriage, pregnant, by some person other than the petitioner.
The basis of this rule is suppressio veri by the woman who was pregnant at the time of the marriage. Three further conditions have to be satisfied under S. 12 in such cases, viz-

(1) That at the time of the marriage, the petitioner was ignorant of such pregnancy;

(2) That the petitioner has commenced proceedings under S. 12 within one year of the marriage; and

(3) That the petitioner did not have (with his consent) marital intercourse with his wife ever since he discovered that the wife was pregnant by some other man.

In Mahendra Nanavati v. Sushila Nanavati (A.I.R. 1965 S.C. 364), the Supreme Court observed that, under this clause, the petitioner has to establish such facts and circumstances as would lead the Court either to believe that the Respondent was pregnant by someone else at the time of the marriage, or to hold that a prudent man, would, on these facts and circumstances, be completely satisfied that it was so.