The concept of nullity of marriage has its origin in the early English Law
when the ecclesiastical courts exercised their jurisdiction over
marriage-related disputes. Some impediments were laid down under English Laws,
the violation of which questioned the validity of the marriage. These
impediments have been classified into- absolute and relative impediments which
further give rise to void and voidable marriages respectively.
The Hindu Marriage Act, 1955 makes a distinction between void and a voidable
marriage. Section 16 of the Act lays down that children of all void and annulled
voidable marriages are deemed to be legitimate but are entitled to inherit the
property of their parents alone. In general, a legitimate child is one whose
parents are legally married at the time of his or her birth i.e. a child born
out of a valid marriage. However, the scope of legitimate children has been
widened by sec. 16 of the HMA, 1955.
Conditions For A Valid Marriage
According to Hindu Law, a valid marriage is the one which fulfils all the
conditions laid down under Sec. 5 and Sec. 7 of the Hindu Marriage Act, 1955.
However, if the conditions under Sec. 5 are not met, the marriage would become
either void under Sec. 11 or voidable under Sec. 12. According to Sec. 5 of the
Conditions for a Hindu marriage:
A marriage may be solemnized between any two Hindus, if the following
conditions are fulfilled, namely:
- Neither party has a spouse living at the time of marriage;
- At the time of marriage, neither party:
- Is incapable of giving a valid consent to it in consequence of unsoundness of
- Though capable of giving valid consent, has been suffering from mental disorder
of such a kind or to such an extent as to be unfit for marriage and the
procreation of children; or
- Has been subject to recurrent attacks of insanity;
- The bridegroom has completed the age of twenty-one years and the bride, the age
of eighteen years at the time of the marriage;
- The parties are not within the degrees of prohibited relationship unless the
custom or usage governing each of them permits of a marriage between the two;
- The parties are not sapindas of each other unless the custom or usage governing
each of them permits a marriage between the two.
According to Sec. 11,
- A void marriage is a marriage which is unlawful or invalid from its inception.
- In Lila v. Laxmi (1968), it was held that since a void marriage is no marriage,
a decree of nullity is not necessary.
- Only either party to the marriage can file a petition of nullity of marriage. A
third person has no locus standi to file a petition for void marriage under
Hindu Marriage Act, 1955.
"Void marriages� Any marriage solemnized after the commencement of this Act
shall be null and void and may, on a petition presented by either party thereto
[against the other party], be so declared by a decree of nullity if it
contravenes any one of the conditions specified in clauses (i), (iv) and (v) of
Hence, in accordance with this provision, the grounds for a void marriage are
- If either party has a spouse living at the time of marriage.
- If the parties are within the degrees of prohibited relationship, unless their
custom permits such a marriage.
- If the parties are sapindas to each other, unless their custom permits such a
A voidable marriage is a valid marriage till it is avoided by either party to
the marriage. Unlike void marriage, the judicial declaration for a voidable
marriage is imperative.
Grounds Of Voidable Marriages
Sec. 12 of The Hindu Marriage Act, 1955 lays down the grounds for a voidable
marriage as well as the pre-conditions for some of these grounds. The given
grounds apply to pre as well as post- Act marriages.
These grounds are as follows:
IMPOTENCY- Persistent and invincible repugnancy on the part of the respondent to
the act of consummation amounts to impotency.
Mental Capacity Of The Parties:
This implies respondent's incapacity to give a
valid consent due to his/her suffering from a mental disorder i.e. the marriage
is in contravention of Sec. 5 (ii) of the Hindu Marriage Act.
Consent Obtained By Fraud Or Force:
If the consent of the petitioner, or the
consent of the guardian whenever necessary is obtained by fraud or force, then
the marriage is voidable. The pre-conditions for this ground are:
- The petition must be presented within one year after the force has ceased to
operate or the fraud has been discovered; and
- After such discovery of fraud or cessation of force, the petitioner has not
lived with the other party as husband or wife with his or her full consent.
The basic requirement for this ground is that the respondent is pregnant at the
time of the marriage by some person other than the petitioner. Other
- The petitioner at the time of the marriage was ignorant of the respondent's
- This was held in C.S. Rangabhattar v. Choodamani (1992)
- The petition must be presented within one year (of the commencement of the Act
in case of pre-Act marriages and of the date of marriage in case of post- Act
- Marital intercourse did not take place with petitioner's consent after the
discovery of the respondent's pregnancy.
Children Of Void And Voidable Marriages
Background of Legitimacy of children at the time of passing of Hindu Marriage
At the time of the enactment of the Hindu Marriage Act, 1955, we adopted the
position of children of voidable marriages given under the Matrimonial Causes
Act, 1950 (English Law), according to which the status of legitimacy was
conferred on the children of annulled voidable marriage. In addition to this, we
conferred the status of legitimacy on children of void marriages also.
After the Amendment
The language used in the Act led to the interpretation that the children of only
declared void marriages were provided with the status of legitimacy. This was
amended by the Marriage Laws (Amendment) Act, 1976.
As a result of this amendment, Sec. 16 of the Hindu Marriage Act, 1955 lays down
that the children of annulled voidable marriages and children of void marriages
(whether declared void or not) are legitimate children. This decision was held
in Parayan Kandiyal v. K. Devi (1996) case.
So, Sec 16 of HMA, 1955 confers the status of legitimacy on the children of void
and annulled voidable marriages. Before the 1976 amendment, children of void
marriage were legitimate only if a decree of nullity was granted in respect of
such marriage under sec 11 of the act.
At present, the position of children of void and voidable marriages, as provided
under Sec. 16 of the Act, is as follows
Children of unanulled voidable marriages shall be legitimate in the same way as
children of valid marriage are.
Children of void marriage (whether declared or not) and annulled voidable
marriage shall be deemed to be legitimate, but such children will inherit the
property of their parents alone and of nobody else.
In Sujata v. Jagar
(1992) the apex court held that, if the marriage is
void or voidable under any other provision of law, other than Sections 11 and 12
of the Act, the children will be illegitimate.
, if a marriage is void for lack of performance of requisite
ceremonies, the provisions of Sec. 16 will not apply.
This was held in many landmark cases like:
- M. Mattaya v. Kamu, (1981)
- Sudarsan v. State (1988)
- Santavam v. Dagubai (1987)
Such children can inherit the separate property of their father under Section
8, Hindu Succession Act, 1956, but could not lay any claim on the coparcenary
interest of the father. Child of such marriage has no birth right in the Hindu
joint family property.
The position of children of void and voidable marriages has undergone a gradual
improvement. Earlier, under English laws, children of only voidable marriages
were considered to be legitimate. Further the status of legitimacy was also
conferred on the children of void marriages under Hindu Marriage Act, 1955.
After that the amendment made to Sec 16 through Marriage Laws Amendment Act,
1976 clarified that the declaration of a void marriage was not necessary to
provide the status of legitimacy to the children of such a marriage.