Nullity of Marriage under Hindu Law | Explained

By | August 14, 2020
Nullity of Marriage under Hindu Law

This article deals with the nullity of marriage under Hindu law, grounds of invalidity, and effect on marriage. The term nullity, lexically, means null and void, i.e. something that has no value in the eyes of the law. The nullity of marriage is a situation under which a marriage becomes void and has no standing in a court of law.

Introduction

Marriage in all religions is termed as the holiest union; therefore cessation of such a sacred relationship is a very delicate matter. Today’s society is evolving as the environment, and the interpretation of various subjects is changing over a while.

For instance, Marriage now no longer considered as an ever-lasting union. It made it convenient for the Husband and wife to discuss their internal issues more comfortably. This evolution from an everlasting bond to one the cessation of which is now not considered to be a sin results in the introduction of laws related to the annulment of marriage, Judicial separation, and divorce, etc. this article encapsulates a detailed discussion on the Nullity of marriage under Hindu law.

Nullity of Marriage

Nullity of marriage is also called as Annulment of Marriage in legal parlance. It refers to it declaring a marriage void/voidable. In other words In Hindu law, Annulment arises when marriage performed is not valid on different grounds mentioned in The Hindu Marriage Act, 1955 under section 5.

Section 5 of the Hindu Marriage Act, 1955 states essential conditions of the valid Hindu marriage and the question of void and voidable marriages arises from this section only:

Condition for a Hindu Marriage

  • There should be Monogamy.
  • Marriage should be beyond the Prohibited degree of relation.
  • Marriage should be beyond the Sapinda relationship.
  • Both spouses should be sane and should have the ability to understand the nature of Hindu marriage.
  • Consent of the party to Marriage should not be obtained by force or fraud.
  • Female under Hindu marriage should not be pregnant at the moment of marriage by another person.

The first three conditions talk about the grounds on which the Hindu marriage can be declared as void and the rest of the conditions if not fulfilled such Hindu marriage can be declared as Voidable at the option of the other party.

Various Grounds for Nullification of the Hindu Marriage

  • Bigamy or spouse either wife or husband is married hitherto at the moment of marriage.
  • The mental inability of the wife or Husband.
  • Consent obtained by Fraud
  • Consent obtained by force
  • Any of the partners incarcerated for lifetime
  • Impotent man or women
  • If married to a kinsman
  • Pregnancy of the wife at the moment of Marriage

I. VOID MARRIAGE

Section 11 of the Hindu Marriage Act,1955 states void marriage:

Nullity of marriage and divorce – Void marriages.

As per section 11 of this act Hindu marriage can be declared as void:

  • In the case of Bigamy i.e married so far at the time of marriage.
  • Prohibited degrees of Relationship
  • Sapindas of the couple

It must be noted that marriage is prohibited degrees of relationship and Sapindas of the spouse is Void until and unless it is permitted by the tradition of both wife and husband. Marriage in relation to the above-mentioned ground is void ab initio i.e from the vary beginning and there is no need for any court decree.

Bigamy as a ground of declaring Hindu marriage void- if either wife or the Husband is legitimately married to any other person at the moment of marriage then according to section 11 of the Hindu marriage act,1955 the marriage is to declare as void and formal decree by the court is not necessary in this case.

In M.M. Malhotra v. Union of India[1], the court held that if a married male performs another marriage then it is to be declared as void and it cannot be termed as ‘  Plural Marriage’.

In Surjeet Kaur v. Jhujhav Singh[2], the court held that if the couple was separated judicially and one of the spouses enter into another marriage then such marriage will be declared as void.

Prohibited Degree of relationship: it is defined under section 3(g) of the Hindu Marriage Act,1955. According to it, Hindus cannot perform marriage with:

  • lineal ascendants from fathers side up to fifth-degree and from mothers’ side up to 3 degrees.
  • Spouse of the lineal ascendants or descendants.
  • Bride of some kinsmen. For instance, brother, mother’s brother, etc.
  • Kins like a brother, sister, children of brother and sister, etc.

Lineal ascendant or descendant refers to any person who is in direct relation with father, mother, grandfather, and all.

In Shakuntala Devi v. Amar Nath[3], Punjab and Haryana High court held in this case that marriage under a prohibited degree of relationship can be valid if there is evidence of accepted tradition which should be old enough to be termed as custom.

In Balusami Reddiar v. Balakrishna Reddiar[4], the court held that the tradition or the ritual of marriage under prohibited degree should not be against the ethics and public policy.

As per section 17 of the act, any person who commits Bigamy should be punished as per section 494 and 495 of the Indian Penal Code.

Sapinda relationship as a ground of declaring Hindu marriage Void:

In accordance with Mitakakshara, the word PINDA refers to the body, and persons related by blood or being descended from the same ancestor are known to be Sapindas of each other.

According to section 3(f) of the Hindu Marriage Act, 1955

Sapinda relationship establishes when one is known to be a lineal ascendant of the other in Hindu marriage or both of the persons having mutual lineal ascendant and lineal ascendants from fathers’ side up to fifth-degree and from mothers side up to 3 degrees.

Such relations are termed as sapinda and marriage under such relations is void as per section 11 of the act.

In Sudarsan Narkar v. Amina Mandal[5], the court held that to determine which is sapinda relation Hindu marriage act,1955 should be referred to no other text is to be considered to be valid.

In Harihar Prasad v. Balmiki Prasad[6], the court held that the marriage of two sapindas can be valid if the same is proofed to a tradition of both the parties. Otherwise marriage of two sapinda is punishable as per section 18(b) of the act with incarceration up to 1 month or fine or both.

II. Voidable Marriage

Section 12 of the act deals with Voidable marriage,

According to this section Hindu marriage can be declared as voidable due to:

  • Impotency of the partner
  • Consent obtained by fraud
  • Mentally unstable
  • Husband or wife suffering from any sexually transmitted disease.
  • Pregnancy of the wife by any other person at the moment of marriage

The aggrieved party, in this case, may go to court and file a plaint to declare the marriage null and void.

Impotency- the inability of having sexual intercourse is one of the grounds for declaring the Hindu marriage void at the option of the aggrieved party. However incomplete physical relation only sometimes cannot be declared as Impotency[7]. If such inability can be cured through proper medical treatment than also it cannot be called impotency[8].

Mental instability- when a husband or wife is incapable of understanding the essence of marriage then such marriage is said to be voidable at the option of the other spouse. In Pronab v. Krishna[9], the Court held that Schizophrenia (a form of lunacy) can be a base for declaring a marriage null and void. Any person who can not recognize the responsibilities of marriage is also not allowed to marry[10].

III. Child Marriage: Void or voidable

In India legal age of marriage for Boy is 21 years and for Girls is 18 years. But according to the Hindu marriage act Child marriage is valid. In P.V Venkataramana v. State of AP[11], the court held that it can be termed as void or voidable, the above-mentioned act merely provides incarceration o 15 days and a fine of 1000 or both for Child marriage but does not declare it as void. Although Child marriage is void in the Special Marriage Act,1954.

Status of Child born under Annulment of Marriage:

Section 16 of the Hindu Marriage Act, 1955 stated the Legitimacy of Children born out of Void and Voidable Marriage.

According to this section,

  • If the marriage is void as per section 11 of this act, the children born from such marriage are considered legitimate children.
  • If the marriage is voidable under section 12 of this act, Children born from such marriage are legitimate Children
  • And, such Children have the rights on the property of parents only but are excluded from the property of other kins.

It must be noted that any child born in voidable marriage after the judgment of the court then such child will be regarded as Illicit. In Laxmibai v. Limbabai[12], the court held that as per section 16 of the Hindu Marriage Act, 1955 Child born in void marriage is licit therefore such a child is authorized to acquire the property of the father after his death.

It also to be noted that unless the order has been passed the child begotten under a void and voidable marriage is illicit.

Rights of  Legitimate Child:

  • Children born in a void or voidable marriage should be treated equally as the other legitimate children.
  • Such a child has the right to get an equal share in the estate of his/her parents only.

Exception

In Gowri Ammal v. Thulasi Ammal[13], it was held that if one of the partners died then the decree of annulment cannot be obtained therefore child born out of such marriage cannot claim any benefit under section 16.

There this section cannot be recognized as the full protection of illicit child born from the void and voidable marriage i.e this right is not absolute.

Conclusion

In old times, Marriage was considered to be as one of the most sacred and holy unions of two persons which will be continued even after death, but nowadays as society is changing the marriage is no longer considered as an everlasting union and therefore laws are made to terminate the marriage, termination of marriage under Hindus is governed by the Hindu Marriage Act, 1955 in which section 11 states the grounds for recognizing Hindu marriage as void like Bigamy, Sapindas, marriage under a prohibited degree of relationship.

Section 12 defines voidable marriage grounds like consent obtained by fraud, force, impotency of the partner, etc. Annulment of marriage completely erases the existence of the marriage from the point of time when the decree of nullity is passed.

In the above article Legitimacy of the Child born in such marriage is also discussed which is under section 16 of the Hindu Marriage Act, 1955 as per this act Child born under such marriage is licit and according to judicial precedents child should be equally treated as a child of a valid marriage, He/she is entitled to the estate of his/her parents. But it should be noted that section 16 is ambiguous in its meaning and government should protect children born out of such marriage not partially but fully and the law should be made more broad and liberal.


[1] 2005 INSC 0883

[2] AIR 1980 P&H 284

[3] AIR 1982 P H 221

[4] AIR 1957 Mad 97

[5] 1982 HLR 277

[6] AIR 1975 SC 733

[7] Shakuntala v. Om Prakash, AIR 1981 Del 53

[8] Rajendra v. Shanti, AIR 1978 P & H 181; M. v M. (1956)

[9] AIR 1975 Cal 109

[10] Bennett v. Bennett, (1969) AU ER 539

[11] AIR 1977 A.P 43

[12]  A.I.R. 1983 Bom. 222.

[13] AIR 1962 Ma 510


  1. Hindu Law; Notes, Case Laws And Study Material

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