Distinction between void and voidable marriage

By | June 11, 2017
Void and Voidable Marriage

Distinction between void and voidable marriage

Marriage is the voluntary union of one man with one woman to the exclusion of all others, satisfied by the solemnisation of the marriage. The Hindu Marriage Act, 1955 provides for three types of marriages:

  1. Valid
  2. Void and
  3. Voidable.

The difference between these three relates to the pre-marriage impediments to marriage which are clearly enunciated in Section 5 of the Act. If there exist, absolute disablements or impairments, a marriage is void ab initio. Section 11 deals with void marriages. If relative disablements or impairments exist, a marriage is voidable. Section 12 deals with voidable marriages. All other marriages which are not covered by these two Sections are valid.


Section 5 of the Hindu Marriage Act 1955 includes essential conditions of a valid marriage. It contains such conditions which if violated shall result in a void marriage. Section 11 of the Act had considered following marriage to be void:-

  1. Where at the time of marriage any party has a living husband or wife i.e., bigamous marriage is void
  2. Where parties to the marriage fall within sapinda relationship i.e., same blood. A person cannot marry in the same family i.e., to a person from A. Five generation from the paternal side, B. Three generations from the maternal side, C. The parties are within the prohibited degree of relationship. The section 3(g) of the Hindu Marriage Act 1955 talks about the degree of prohibited relationship that is as follows:
  3. Where parties to the marriage come with degrees of prohibited relationship.

In the case of Rampyari v. Dharamdas 1984, it was said by Allahabad High Court that an application for declaring a marriage void is not required to be presented by the victim only.

In another case of Leela v. Lakshmi 1968, it was held that void marriage does not require even the decree of a court.

In M.M. Malhotra v. UOI, the Apex Court observed that the marriages covered by Section 11 are void ipso jure, that is, void from the very inception and have to be ignored as not existing in law at all if and when such a question arises. Although the Section permits a formal declaration to be made on the presentation of the petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding commenced for the purpose. If one withdraws from the society of the other, the other party has no right to the restitution of conjugal rights. If one of them marries again, he or she is not guilty of bigamy and the validity of later marriage is not affected because of the first so called marriage.

“On a petition presented by either Party thereto“, It is only the parties to marriage who can move a petition for the declaration of nullity of marriage. The first wife, during the subsistence of whose marriage the husband takes the second wife, has no right to move for a declaration of nullity of the subsequent marriage under this Section. However, there is nothing in the Section or any other provision of any law to debar a person affected by an illegal marriage from filing a regular suit in a civil court for its declaration as void, if such party was affected by such marriage. There can be a civil suit by a person for a declaration that the marriage of A with B was a nullity and for consequential relief’s under the Specific Relief Act, 1963, if the Plaintiff has any cause of action for such relief.

In Uma Shanker v. Radha Devi, the Patna High Court ruled that the first wife could obtain a perpetual injunction to prevent the second marriage of her husband under Section 9 of the Civil Procedure Code and Section 54 of the Specific Relief Act.

Consequences of a void marriage
  • The parties have no status of wife and husband
  • Children of a void marriage are illegitimate (this is subject to the provision of section 16 of Hindu Marriage Act 1955).
  • Avoid marriage doesn’t give rise to mutual rights and obligations.


A marriage which can be annulled or avoided at the option of one or both the parties is known as a voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable Marriage. According to it, in the case of marriage being voidable, the court may declare it Null under following conditions:-

  1. Where marital cohabitation has not occurred due to the impotency of the respondent.
  2. Where at the time of marriage any party failed to give valid consent due to unsoundness or has been affected by mental retardedness to such extent that he is incapable to marriage and giving birth to a child, or suffers from frequent insanity or is insane.
  3. Where the consent of guardian is necessary for the marriage and such consent has been obtained by force or by fraud as to nature of rituals or any actual facts or circumstances as to the respondents.
  4. Where the respondent is pregnant at the time of marriage from a person other than the applicant.

A marriage is voidable on the ground of consent obtained by fraud as force, then such marriage shall be declared null only when:-

(a) The applicant is presented within one year from the date of knowledge of fraud as the force used.

(b) The parties have not lived as husband and wife after the knowledge of force used or fraud.

Similarly, if the marriage is voidable due to the pregnancy of wife then such marriage shall be declared null only when the court is satisfied that:-

(a) The applicant was unaware of the pregnancy of the wife at the time of marriage.

(b) If the marriage has been solemnized before this Act came into force, then the application shall be presented within one year from the date of enforcement of the Act or if the marriage has been solemnized after the act came into force then the application shall be presented within one year from such marriage.

(c) The applicant has not voluntarily cohabitated after the knowledge of pregnancy of wife.

(d) Wife had been pregnant from a person other than the applicant.

(e) She was pregnant before the marriage.

Author – Monica Sharma

Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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