What is a void and voidable marriage & differentiate between them? [ 2015 K.J.C.H.C ]

Marriage:

Marriage under the Act is the voluntary union of one man with one woman to the exclusion of all others satisfied by the solemnisation of the marriage. A marriage may be solemnised in the sense that the parties to it have gone through the customary rites and ceremonies of either party thereto.

Void Marriage (S.11, HMA, 1955):

Marriage is void ipso jure i.e., by the operation of the law itself. The present section i.e., S. 11 in terms lays down that non-fulfillment of any one of the conditions specified in S. 5 r/w S. 7 of the Act renders a marriage solemnised after the commencement of the Act null and void from its inception and either party to such a marriage can obtain a decree of nullity from the court.

For instance, the Hon’ble SC has held that if a second marriage has been contracted before the commencement of the Act such a marriage though it may be void cannot be a void marriage under this Act.

However, if in a marriage solemnised after the commencement of the Act where a husband has not obtained a decree of divorce before entering into a second union such second marriage would be null and void.

In Subhash Babu vs. State of AP, the Hon’ble SC has held that non-filing of a complaint by the first wife does not wipe out the offence u/S. 494, IPC and unless a declaration of nullity is made by a competent court the second wife continues to be wife within the meaning of the above section.

A marriage which is void ab initio does not alter or affect the status of the parties nor does it create between them any rights and obligations which must normally arise from a valid marriage except such rights as are expressly recognised by the Act like for instance Ss. 24 & 25 relating to maintenance pendente lite and costs & permanent alimony and maintenance. If any children are begotten or conceived by the parties to such a void marriage they are deemed to be their legitimate children for purposes of heirship but not on properties of ancestral in nature.

Voidable Marriage (S.12, HMA, 1955):

The present section i.e., S. 12 deals with voidable marriage. A voidable marriage remains valid and binding and continues to subsist for all purposes unless a decree is passed by the court annulling the same on any of the grounds mentioned in this section. The grounds involve the elements of impotence, unsoundness of mind/mental disorder, consent obtained by force/fraud and pregnancy at the time of marriage.

a) Non-consummation of marriage due to impotence:

Impotence is dealt u/S. 12(1)(a) of the Act. Impotence in matrimonial cases mean incapacity to consummate the marriage i.e., incapacity to have conjugal intercourse which is one of the objects of marriage. It does not signify sterility or incapacity of conception.

The consummation has to be understood as in common parlance and means ordinary and complete intercourse.

In Digvijay Singh vs. Pratap Kumari, the Hon’ble SC has pointed out that a party is impotent if his/her mental/physical condition makes consummation of the marriage a practical impossibility.

Therefore, where the wife had no vaginal canal it was held that the husband was entitled to a decree of nullity.

b) Unsoundness of mind/mental disorder:

Unsoundness of mind/mental disorder is dealt u/S. 12(1)(b) of the Act. One of the conditions of a marriage under the Act u/S. 5(ii) is that both the bridegroom and bride must have the requisite mental capacity to enter into matrimony. If a marriage has taken place in contravention of S. 5(ii), it is not void per se but only voidable.

c) Consent obtained by force/fraud:

Consent obtained by force/fraud is dealt u/S. 12(1)(c) of the Act. This has to be r/w S. 12(2)(a). Absence of consent does not render the marriage void ipso jure but voidable at the instance of the party whose consent was obtained by force/fraud.

Force:

Where consent of a party to solemnisation of marriage is obtained by force or as it is sometimes said by coercion or duress it is obvious that there is absence of a consenting will to marry. Force when it is used excludes any real or intelligent consent altogether.

In Shitij Khurana vs. Shreha Khurana, the Hon’ble High Court of Delhi has held that when a marriage is solemnised without the free consent of the wife who is under the influence of drugs administered to her, such marriage is voidable.

Fraud:

In matrimonial cases, fraud means fraud as to the nature of ceremony or as to any material fact/circumstance concerning the respondent.

Fraud as to nature of ceremony is where a party is kept under the impression that what is being performed is only a betrothal or a conversion to Hindu religion.

Fraud as to any material fact/circumstance is, he/she would not have married the respondent if he/she had known the vital, touching or affecting material fact/circumstance of the respondent because it induced or influenced his/her consent.

It has been held that a solitary act of intercourse after knowledge of fraud may not amount to condonation of fraud.

d) Pregnancy at the time of marriage:

Pregnancy at the time of marriage is dealt u/S. 12(1)(d) of the Act. Any marriage is voidable at the instance of the husband on the ground that the respondent wife was at the time of the marriage pregnant by some person other than the petitioner provided the conditions laid down in S. 12(2)(b) are strictly fulfilled.

In Sushil Kumar vs. Minto Kumari, the Hon’ble High Court of Rajasthan has held that since the wife gave birth to a child within 5 months of marriage and the DNA test proved that the husband was not the biological father of the child the decree of nullity was rightly granted.

Distinction between void and voidable marriage:

A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is an issue as never having taken place and can be treated as void by both parties to it without the necessity of any decree annulling it. It is open to a party to a void marriage to have recourse to the court for a declaration that it is null and void but that would be for the purpose of precaution or record.

A voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction.

Void Marriage

1. Marriage does not exist in the eye of law u/S. 11, HMA, 1955 as it is void ab initio

2. The court passes a decree of nullity since marriage has no existence at all.

3. Parties can remarry w/o decree of nullity from Court

4. Wife cannot claim maintenance u/s. 125 of Cr.P.C.

5. Parties to a void marriage are criminally liable

Voidable Marriage

1. Marriage exists and continues to be valid unless it is challenged u/S. 12

2. The court passes decree after taking into account necessary conditions

3. Parties cannot remarry w/o decree of court

4. Wife can claim maintenance

5. Parties to voidable marriage are not laid down with penalty