Nullity of Marriage- Free Family Law Notes

Nullity of Marriage- Prolawctor

Introduction to Nullity of Marriage

The legal pronouncement by the court that there was no existence of marriage between the two individuals. The marriage is considered invalid, null and void in the eyes of law.

It is ought to believe that marriage never took place or came to existence.

Laws pertaining to void and voidable marriage look at the religion and dealt according to that only.

Following are the Acts by which the Nullity of Marriage is dealt-

  • The Hindu Marriage Act, 1955
  • The Special Marriage Act, 1954
  • The Indian Christian Marriage Act, 1872
  • Court Marriage Registration in India
  • Marriage Registration India
  • The Shariat Act, 1937

Void Marriage[1]

Marriage that is not valid and unlawful from the very beginning is considered to be void marriage.

The void marriage needs no formality to terminate.

Annulment of Marriage

Seeker- Any party to the marriage can file for the annulment of marriage to be declared null and void. The procedure is brought on record to ensure that in future, no question of nullity of marriage which is void can be called.

Provisions

The law states marriage as a legally binding contract.

According to Section 11 of Hindu Marriage Act, 1955,[2] if a marriage contravenes to any of the grounds mentioned in Section V clauses (i), (iv) and (v) of the Act, either of the spouse can file for annulment.

The void marriage needs no formality to terminate.

According to Section 26 of The Indian Contract Act, any agreement that restrains the marriage of an adult is a void agreement.

Restraint of the marriage of a minor is not a void agreement.

Example given: X agrees that if Z pays him 30,000/- he will not marry. Such agreement is considered a void agreement.

Grounds of void marriage-

  • Minor– if any of the spouse is below the legal age of marriage then the marriage is considered void. (The age of marriage to be considered legal and valid under the law established is 18 for girls and 21 for boys).
  • Bigamy– if any of the spouse is legally married to another person at the time of marriage then the marriage is considered void.
  • Unsound mind– if any of the spouse is under the influence of drugs or alcohol or unsound at the time of marriage is considered void.
  • Same-sex marriage– if any individual marries a person of same sex then the marriage is considered to be void.
  • Incestuous relation or sapindas– if any person marries in consanguinity then the marriage is considered to be void.

Effects and consequences of void marriage

  • Under section 488 of criminal procedure code, A wife have no right to claim maintenance if the marriage is contested void.
  • Under section 18 of Hindu adoptions and maintenance Act, A wife is entitled to maintenance.
  • Under section 24 of the Hindu Marriage Act, a wife is entitled for maintenance.
  • There is no matrimonial property system between the parties.
  • The children are not treated illegitimate in Void Marriage.

Voidable Marriage[3]

Valid and legitimate Marriage which is subject to the abolishment at the choice of either of the parties to the marriage through annulment is considered to be a Voidable Marriage.

A Voidable Marriage can be terminated only by the order of the court.

Annulment of Marriage

Seeker- Any party to the marriage can file for the annulment of marriage to be declared voidable under the law established.

Provisions

According to Section 12 of Hindu Marriage Act, 1955, any of the spouse can file for annulment if any of the clauses mentioned under the section is violated.

Section 2(i) of the Indian Contract Act, 1872 states that voidable agreements are those which are valid as long as one of the parties or both of the parties decide to void the agreement.

Grounds for Voidable Marriage-

  • Unsound Mind– if any of the spouse did not provide free consent for marriage, unsoundness or in the consequence of mistake etc. then the marriage is contested to be voidable.
  • Mental incapacity– if any of the spouse is mentally disordered and provides consent for marriage then the marriage is considered to be voidable.
  • STD– if any of the spouse is suffering from sexually transmitted disease then the marriage is contested to be voidable.
  • Minor– child marriage is to be considered voidable.
  • Fraud, force, coercion, misrepresentation and undue influence- A petition of nullity to be filled within a year of the discovery of such an act. Thus, section 12(1) (c) is considerably winded by the amendment of 1976.

If the consent is provided by the spouse through fraud or use of force, the identity of the party is wrongly presented, concealment of disease, concealment of previous marriage, concealment of unchastity, concealment of illegitimacy, concealment of age, concealment of religion or caste, concealment of age, concealment of nature of employment, and concealment of financial status etc., then the marriage is considered to be voidable.

  • Pre- marriage pregnancy

If the wife was pregnant with some other person than the husband at the time of marriage then the marriage is considered to be voidable under section 12 (1) (d) and is a reliable consideration for nullity of marriage.

Requirements to contest the nullity of marriage

  • The Husband was ignorant of the facts at the time of marriage
  • Proceedings to be started within one year of marriage
  • Absence of sexual intercourse between spouses since the discovery of such acts.

Effects and consequences of voidable marriage

  • A wife has a right to seek maintenance in the voidable marriage.
  • Order of the court if required for the nullity of voidable marriage.
  • Under voidable marriage the children were considered to be illegitimate but this distinction is struck down by the Supreme Court.

Legitimacy of children Under nullity of marriage[4]

  • A child whose parents are married and shares the same blood is considered as legitimate.
  • Child who takes birth outside the lawful wedlock is considered as an illegitimate child.
  • Under the Hindu law, if a marriage fulfils all the criteria and conditions under section 5 and section 7 of the Hindu Marriage Act, such a marriage is considered to be valid and child born of such valid marriage is considered to be a legitimate child.

Provisions

  • Section 16 of Hindu Marriage Act, 1955,[5] specifies the Legitimacy of children under void and voidable marriage.
  • The section was amended by marriage laws act of 1976 by 7th amendment.
  • Any child born in a void and voidable marriage shall be considered as legitimate.
  • If marriage is in contravention to the clauses (i), (iv) and (v) of section 5 such a marriage is considered null and void and children born out of such marriage is considered to be illegitimate.

Illegitimate child

  • Child who takes birth out of a void marriage
  • Child who takes birth out of an illicit relationship
  • Child who takes birth out of a violable or annulled marriage
  • Child who takes birth through concubinage
  • Child who takes birth out of a marriage which is invalid for want of proper rituals and ceremonies.

Rights and provisions of an illegitimate child under Nullity of marriage

  1. Maintenance
  • Prior to Hindu Adoptions and Maintenance Act, 1956, a Hindu illegitimate son was entitled to maintenance out of his father’s property and the self-acquired property.
  • An illegitimate son belonging to the lowest of the four Varna was entitled to maintenance if he could not inherit or get a share on partition.
  • A daughter who is illegitimate has no remedy under Hindu law but now are entitled to maintenance under criminal procedure code.
  • Minor illegitimate children are entitled to be maintained by their heirs till they attain the age of major.
  • According to criminal procedure code an illegitimate child halt to be a Hindu can appeal for maintenance from his or her father.

  1. Guardianship
  • According to the Hindu Minority and Guardianship Act, 1956, the mother of an illegitimate son and unmarried daughter is considered to be natural guardian and after her the father is considered to be the natural guardian.
  • The guardianship of a married daughter lies with the husband in case of nullity of marriage.
  • In case of custody, the father has no rights for an illegitimate child under the decree of nullity of marriage.

NOTE: The laws of marriage differs in India based on different religion.

Case laws

Parayankandiyal Eravathkanapravan Kalliani Amma & ORS. vs. K. Devi & ORS. 1996 AIR 1963

The court held that for the resolution of bringing social reform, the amendment act has apportioned to the legitimacy status of children who will be treated as scoundrels if not granted the title of legitimate in case of nullity of marriage.

The children would have no birth right in the Hindu Joint Family Property and cannot claim the coparcenary entities of the father but can inherit the property of the father according to Section 8, Hindu Succession Act, 1956.

Srikant Rangacharya Adya vs Anuradha AIR 1980 Kant 8

The Karnataka high court held that if a husband is incapable to lead sexual life and has any kind of sexual weakness, it will amount to mental cruelty and the wife has right to file petition for insignificance of marriage.

C.S Rangabhattar vs. C. Choodamani AIR 1992 AP 103

The Andhra Pradesh high court held that if a husband lives with the wife even after being acquainted with the information of the pregnancy of wife at the time of marriage then he cannot file the petition for decree of nullity of marriage.

Shanta Ram vs. Smt. Dargubai

The Bombay high court held that the children of void marriages would be considered legitimate, irrespective of the decree of nullity of marriage although they will not acquire the right to succession to the same extent as available to the children of valid marriage.


[1] https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf

[2] https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf

[3] https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf

[4] https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf

[5] https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf

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