Hindu marriage act, 1955 introduced the various concepts of marriages such as void, voidable & dissoluble marriages. Marriage performed in contravention of certain legal provision is void ab initio and have no legal effect. Voidable marriage is those which are legal so long as they are not challenged in the court. This category of marriage is perfectly legal or valid, but due to the existence of certain condition the petitioner is entitled to seek divorce.

There are two types of impediment or bars to a marriage; absolute and relative. If absolute bar exist marriage is void while if relative bar exists a marriage is voidable.

VOID MARRIAGES

The decree of nullity is not necessary in case of void marriage. Even when the court passes the decree it merely declares an existing fact i.e., the marriage is null and void .It is not the courts decree which renders such a marriage void. However, a decree is sought when the parties want to be certain of their legal position to avoid subsequent complications and the court may grant ancillary relief such as spousal maintenance, custody of children, etc. it may be noted that only either party to marriage can file a petition for nullity and if one of the parties dies, any other person on their behalf cannot file such petition.

Section 11 of the Hindu marriage act,1955 states the grounds for void marriages. They are:

  • Bigamy as provided under section 5 (1).
  • Parties are sapinda to each other.
  • Parties are within the prohibited relationship.

Not mentioned under section 11 but a additional ground given under section 7 which states that if essential ceremonies of the marriage not performed such marriage would be void.

VOIDABLE MARRIAGE

It is perfectly valid marriage so long as either party to the marriage doesn’t avoid it on a petition and a decree of the court annuls it. Thus if one of the party doesn’t file petition for annulment of marriage the marriage will remain valid.

If one of the parties dies before the marriage is annulled, no one can challenge the marriage. The parties to voidable marriage cannot perform another marriage without first getting a decree declaring their first marriage as void; otherwise they will be guilty of bigamy.

Once the voidable marriage is annulled the decree is given retrospective effect from the date of marriage. The marriage is deemed to have been void for all purposes from its inception and the parties are deemed to have never been husband & wife. The rule has its origin in the doctrine of ecclesiastical of indissolubility of marriage either marriage exists forever or never. It may be noted that the effect of a decree of nullity of marriage has been almost equated with the effect of divorce decree.

A wife of void marriage cannot claim maintenance under section 125 of CRPC though in voidable marriage wife can.

The grounds of voidable marriage given under section 12 (1) are as follow:

  • Impotency of respondent
  • Respondent’s incapacity to consent and mental disorder.
  • Consent of petitioner obtained by force or fraud.
  • Concealment of pre marriage pregnancy.

These are available to both pre act and post act

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