(2) The parties are not Sapindas. [s. 5 (ii)].
(3) The parties are not within degrees of prohibited relationship [s. 5 (iv)].
Conditions 2 and 3 are intended to avoid incestuous relationship and are essential. Contravention of any of these three conditions makes the marriage void ab initio. Anyone interested may at any time question this marriage. Suppose A, a son begotten of this marriage, claims 50 years after the marriage a right of inheritance to the property of a distant agnatic relation X, Y is a rival claimant. Y can challenge A’s claim and overthrow that claim by showing that the marriage between A’s father and A’s mother was void.
The parties to the marriage may obtain a decree of nullity in such a case both before the Act and after the Act. If such a decree is obtained under the Act the children begotten or conceived before the date of the decree would be treated as legitimate for if a decree for divorce is passed in such a case the issue prior to the decree would be legitimate. But this fictitious legitimacy is recognised only within certain limits. It can extend only to sustaining claims to the property of the parents but not to the property of other relations.
Where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible, it may furnish a good ground for nullifying the marriage, held in the case of Vinita Saxena v. Pankaj Pandit, AIR 2006 SC 1662 : 2006 (2) CCC 52 (SC).
A voidable marriage is valid until it is set aside by a decree of nullity. It is not void ab initio. It can be set aside only by the parties to the marriage. This too will have to be done within stringent limits as to time. This will be clear from the following:
Grounds for Setting Aside:
1. Consent of petitioner (or the guardian) was obtained by force or fraud.
2. Petitioner married to a woman made pregnant by another prior to marriage.
Time Limit for Seeking Relief:
1. One year from cessation of force or discovery of fraud. (N.B. Petitioner should not have voluntarily cohabited with the other party after discovery of fraud or cessation of force).
2. One year from the date of marriage. (N.B. Petitioner should be ignorant of the circumstances at the time of marriage and should not have cohabited after knowing the circumstance).
Idiocy lunacy or impotency of one party to the marriage renders the marriage voidable at the instance of the other party. There is no time-limit for obtaining a decree of nullity in such a case. The parties to a voidable marriage are not free to marry again until they have secured a divorce or a decree of nullity. This is because such a marriage is valid until it is set aside.
After the Amendment of 1976 also the children of a void marriage are treated by a fiction as legitimate for the limited purpose of inheriting to the parents. Before the Amendment a decree of nullity had to be obtained under the Act before this fiction could operate. By virtue of the Amendment this requirement is dispensed with. Even without a nullity decree this fiction now operates in the case of the offspring of a void marriage.
In the case of voidable marriage, where there is no decree of nullity, the marriage is valid and so the offspring are legitimate and there is no need for a fiction of legitimacy. In such a case they can inherit to other relations also. If there is a decree of nullity, the fiction can be invoked. The issues begotten or conceived before the decree can invoke it and inherit to their parents.
An important judgment has been delivered by the Supreme Court in Lily Thomas v. Union of India, AIR 2000 SC 1650 : (2000) 6 SCC 224, where the Supreme Court has put an end to the practices perpetuated by selfish persons who tried to exploit the religious based personal laws in order to undergo bigamous marriages.
The facts of the instant case were H married W1 in accordance with the Hindu rites. When this marriage was subsisting he and other women, W2 converted Muslim faith and underwent marriage in accordance with Muslim rites. Though at the time of conversion they gave Muslim names for themselves, they never used these names. A son was born out of this marriage.
It was on record to show that at least on three distinct occasions when situation warranted the declaration of religion they declared themselves as Hindus. They did not practice Muslim religion. As to the question whether H is guilty of bigamy within the scope of 494IPC, the court held that he is guilty of committing bigamy.
Referring to the defence that the Muslims are permitted to marry four wives and a person who is converted from Hinduism to Muslim religion cannot be made guilty of bigamy as the pre-existing Hindu marriage is non east, the court made a distinction between polygamous marriages contracted normally a born Muslim under Muslim Law and the polygamous marriages entered by converts to Muslim Law in the above circumstances.
The Supreme Court held, “if a person feigns to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not commodity to be exploited.”
Reaffirming the decision in Sarla Mudgal v. Union of India, AIR 1995 SC 1531, and the court held that the decision of the court does not violate any fundamental right under the constitution. The court further added that “the progressive outlook and the wider approach of Islamic law cannot be permitted to be squeezed and narrowed by unscrupulous litigants, apparently indulging sexual lust sought to be quenched by illegal means, who apparently are found to be guilty of commission of offence under the law to which they belonged before their alleged conversion”.
The court did not elaborate on the status of second marriage in this case.