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Before, Hindu Marriage Act 1955 was enacted, divorce & nullity of marriage both were not recognised in Hindu law. The term nullity of marriage was first introduced after the enactment of Hindu Marriage Act 1955, under section 11 which says as under:
Void marriages: Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 11 [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses, read with section 5 of Hindu marriage act.
Before, the enactment of this act the term nullity of marriage didn’t exist in Hindu law, although some relief in respect of marriage could be obtained under general law. Under Hindu marriage act 1955 matrimonial causes have been introduced for all Hindus. The act recognises the following four matrimonial causes:
- Nullity of Marriage
- Judicial Separation
- Dissolution of Marriage
- Restitution of Conjugal Rights
A marriage is voluntary union of one man with one woman to the exclusion of all others. In this regard section5 lays down certain conditions for a valid marriage.
Section 11 clearly lays down that any marriage solemnised after the commencement of this act shall be null and void and may be declared so by a court on presentation of petition of either parties against the other. If any of the three condition specified in the clauses 1, 4 & 5 of section 5 of Hindu Marriage Act 1955 is violated than the court and pass a decree of nullity declaring it to be void.
Meaning of void marriage: A void marriage is a marriage which doesn’t exist from its beginning it is called a marriage because two persons have undergone the ceremonies of marriage. Since they absolutely lack capacity to marry they cannot, by just undergoing ceremonies become husband and wife.
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).
A void marriage doesn’t give rise to mutual rights and obligations.
Declaration of Nullity
Void marriages are wholly non-extent marriages, without any effect. It is therefore, not obligatory for a spouse to obtain decree of nullity. However, such a decree in sort for the purpose of precaution or for record. If one of the spouse is dead the other can’t seek a decree of nullity; because death of one spouse doesn’t validate the marriage.
A bigamous marriage is null and void under this section. The second marriage must also be a valid one or else it is no marriage and in such a case it is not bigamy. In case of bigamy of husband the wife can’t seek a decree of nullity of the second marriage under this section but she can file a suite for the declaration that the second marriage of the husband is void.
GROUNDS FOR VOID MARRIAGE:
Under section 11 Hindu Marriage Act 1955, a marriage is void on any of the following three grounds (these grounds apply to marriage, solemnised after the commencement of the act, i.e after May 18, 1955)
- That at the time of marriage, either party has its spouse living. In other words bigamous marriage is void. Such a marriage will be void only if the first marriage is valid. If the first marriage is void then seconds marriage will be valid
- The parties are sapinda to each other, the term “sapinda” relationship means the persons relating to same blood. In other words one can’t marry to the same family. The traditional law for the sapinda relationship says as follows that one can’t marry to a person of:
- Seven generation from paternal side
- Five generation from maternal side
But after the enactment of this act the law says as follows that one can’t marry to a person of:
- Five generation from paternal side
- Three generations from maternal side
- The parties are within the prohibited degree of relationship. The section 3(g) of the Hindu Marriage Act 1955 talks about degree of prohibited relationship that is as follows:
On any of these grounds either party can file a petition for declaration that the marriage is null and void.
CONCEALMENT OF PRE-MARRIAGE PREGNANCY
Concealment of pre-marriage pregnancy by the respondent is a ground of voidable marriage. The requirements for this grounds are:
- The respondent was pregnant at the time of marriage.
- She was pregnant from a person other than petitioner.
- The petitioner at the time of marriage didn’t know of the respondent pregnancy.
- The petition must be presented within one year
- Marital Intercourse didn’t take place with the consent of the petitioner at the respondent pregnancy by the petitioner.
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. This section lays down four grounds on which a Hindu marriage becomes voidable. These are:
- Inability of the respondent to consummate the marriage on account of his or her impotency.
- Respondent’s incapacity to consent or suffering from a mental disorder.
- Consent of the petitioner being obtained by fraud or force.
- Concealment of Pre-marriage pregnancy by the respondent.
Impotency [Section 12(1)(a)]
Section 12(1) (a) can be dissected as under:
- That the marriage has not been consummated; and
- That the non-consummation is due to the impotence of the respondent.
Consummation of marriages means full and normal sexual intercourse between married people. A marriage is consummated by sexual intercourse. It consists in the penetration by the male genital organ into the female genital organ. Full and complete penetration is an essential ingredient of ordinary and complete intercourse. Partial, imperfect or transient intercourse of not Consummation. The degree of sexual satisfaction obtained by the parties is irrelevant. Consummation may be proved by medical evidence.
Impotency is the inability to have complete and normal sexual intercourse. It may arise from a physical defect in either partner or from a psychological barrier amounting to invisible repugnance on the part of one to sexual relations with that partner. Sterility is irrelevant and does not imply impotency. Absence of uterus in the body of the one’s female partner does not amount to impotency but the absence of a proper vagina would mean impotency. Similarly organic malformation making a woman sexless would means impotency. If a husband fails to satisfy his wife’s abnormal appetite for sex that cannot be regarded as impotency. Thus impotency means practical impossibility of consummation of marriage. Sexual intercourse which is incomplete occasionally does not amount to impotency. It includes discharge of healthy Semen containing living sperms in the case of men and discharge of menses in the case of women.
Regarding impotency, the various principles laid down by the courts could be summarised as follows:
- Full and complete penetration is an essential ingredient of ordinary and complete intercourse, though degree of sexual satisfaction obtained by the parties is irrelevant. If one spouse is oversexed and the other is not, it does not amount to impotency.
- Impotency is usually either (a) physical, or (b) mental. Physical impotency includes malformation of, or structural defects in the organs, such as unduly large male organ or abnormally small vagina.
- Mental or psychological impotency includes emotional, psychological or moral repugnance or aversion to the sexual act. In Shantabai v. Tara Chand, the wife was alleged to have an absolute repugnance towards sexual intercourse although she had normal sexual organs. Held that it amounts to impotency. Where immediately after marriage the husband lived for three nights and days in the same room with his wife and failed to consummate the marriage, it was a fair inference that non-consummation was due to husband’s knowing refusal arising out of incapacity, nervousness or hysteria. In Nijhawan v. Nijhawan, a liberal interpretation of the word ‘impotence’ was made by the court. In that case, the wife felt depressed and frustrated owing to the failure of husband to perform full and complete sexual intercourse. Held that vigorous and harmonious sexual activity is the foundation of marriage and a marriage without sex is anathema. The court considered the husband’s impotency to be a cause of mental and physical cruelty to the wife.
- If impotency can be cured by medical treatment or surgery, it would not amount to impotency, unless the respondent refuses to undergo treatment. In Rajendra v. Shanti, where the size of wife’s vagina was after surgical operation one and half inch, but was fit for intercourse, the court said that wife was not impotent.
- Mere barrenness or incapacity to conceive a child or sterility does not amount to impotency. In Shewanti v. Bhaura, the wife was sterile but was capable of having sexual intercourse held that she was not impotent.
Burden of Proof: The Burden of Proof lies on petitioner but when once the impotency is proved there is a rebuttable presumption in favour of its continuance.
Consent obtained by force or fraud [Section 12(1)(c)]
For marriage the consent of the parties concerned must be free. This is not because marriage is a contract but because the sweetness and success of a married life depends upon harmony between both the parties. If the consent to marriage is not free, this harmony is a remote possibility. That is why it is quite just and reasonable that a party whose consent is not free should be permitted to come out of the wedlock. Section 12(1) (c) allows this. It makes the marriage voidable where consent to it was obtained by force or fraud.
Section 12 (1) (c) provides that a marriage is voidable on the ground that the consent of the petitioner or of the guardian has been obtained by force or fraud. After the Child Marriage Restraint Act the consent of guardian has become irrelevant as the minimum marriageable age was set 21 years and 18 years for bridegrooms and bride.
Provided no petition for annulling a marriage:
(1) If the petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered [Section 12(2)(a)(i)]; or
(2) The petitioners has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or as the case may be the fraud had been discovered [Section 12(2)(a)(ii)].
Force: The word Force is not defined by the Act. But it may include all cases of compulsion, coercion or duress. Abduction, terror, coercion and threat to commit suicide will definitely be covered by the term force. Whenever owing to some natural weakness of mind or on account of some fear, whether entertained reasonably or unreasonably, but nonetheless really entertained or when a party is in such a mental state that he finds it almost impossible to resist the pressure, it will amount to force. However, mere pressure or strong advice, persuasion etc., will not amount to force.
Fraud: This section does not speak of fraud ‘in any general way or every misrepresentation or concealment which may be fraudulent’ but ‘fraud as to the nature of the ceremony’ or ‘as to any material fact or circumstance concerning the respondent’.
The clause prior to its amendment by the Amending Act of 1976, did not contain the words ‘or’ is to any material fact or circumstance concerning the respondent. The operation of the clause was considerably extended so as to include within its ambit any material fact or circumstance concerning the respondent. Whether a misrepresentation or false statement or concealment is as to any such material fact, must to a large extent depend on the facts and circumstance of the case.
However, it must be something vital, touching or affecting the respondent and such as had definitely induced or influenced consent. The petitioner must show that; but for such false representation or statement or concealment he or she would not have married the respondent.
Some important grounds of fraud:
- Nature of ceremony,
- Identity of the party,
- Concealment of disease,
- Concealment of religion or caste,
- Concealment of previous marriage,
- Concealment of unchastity,
- Concealment of illegitimacy,
- Concealment of age,
- Petitioner’s father’s fraud,
- Concealment of financial status and nature of employment.
A petition for nullity must be filed within one year of the discovery of fraud or cessation of force. This condition is mandatory. Thus the operation of Section 12(1)(c) has been considerably winded by the 1976 Amendment.
Pre-marriage Pregnancy [Section 12(1)(d)]
Section 12(1) (d) provides that a marriage is voidable on the ground that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
Section 12(1)(d) is to be read with Section 12(2)(b) which lays down three further conditions which are to be satisfied in order to avail of the remedy under Section 12(1)(d). These are:
- That at the time of the marriage the petitioner was ignorant of the facts alleged;
- That the petitioner has started proceedings under Section 12 within one year of the marriage; and
- That the petitioner did not have, with his consent, marital intercourse with his wife ever since he discovered that the wife was pregnant by some other person.
Thus the requirements of this ground are:
(1) The respondent was pregnant at the time of marriage.
(2) The respondent was pregnant from a person other than the petitioner.
(3) The petitioner was ignorant of this fact at the time of marriage.
(4) The proceeding is started within one year of the marriage.
(5) Absence of marital intercourse by the petitioner husband with his wife since such discovery.
If the girl becomes pregnant by some person before her marriage and subsequently the same fellow marries her the section has no application. If the bride becomes pregnant by some other person than her husband after marriage the section has no relevance.
In Nishit v. Anjali, where a bride gave birth to a mature child within 167 days from the date of marriage, it was held that it was for the wife to raise a reasonable doubt that she was pregnant by the person who became her husband.
A blood test for the ascertainment of the child’s paternity is also possible. If the wife volunteers for the same then it is well and good, but it cannot be forced upon her.
 Pg 285 Hindu Law B.M Gandhi 3rd edition eastern book company