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Nullity Of Marriage

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.

Though the marriage is a holy wedlock for life but due to some complexity and prospective development in modern society there are legal grounds for the end of marriage, or nullify the marriage. Nullity of marriage is a legal declaration by the court that there was no existence of marriage between two people and marriage was not valid. It is a declaration that supposed that marriage was never happened.

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.

Matrimonial causes have been introduced for all Hindus.The Hindu Marriage Act 1955 recognise the following four matrimonial causes:

  1. Nullity Of Marriage
  2. Judicial Separation
  3. Dissolution of Marriage
  4. Restitution of conjugal rights

Nullity Of Marriage

Nullity of marriage is a judicial declaration that marriage was not in existence. It refers to the validity of marriage according to law. It means that there was not a valid marriage has performed between the parties.

The law of nullity relates to the pre marriage impediments to marriage. The subject matter of impediments to marriage is covered under capacity to marry .If there exit certain impediments parties cannot marry each other .If they marry despite impediments their marriage may not be valid.

These impediments are usually divided into two categories:

  1. Absolute Impediments
    Absolute implements exit, a marriage is void ab initio that is it is an invalid marriage from the very beginning.
  2. Relative Impediments
    If relative impediments exit a marriage is voidable I.e may be avoided by one of the parties to the marriage in case he or she desires.

Void Marriages (Section 11)

A void marriage is no marriage it is a marriage which does not exit from its beginning .A petition for nullity under section 11 of the Hindu Marriage Act 1955 can only be made by either party to the marriage that this is so has been clarified by the 1976 amendment.

Where a marriage is void because a person has taken a second wife he's first wife being alive the first wife cannot petition under section 11 under section 11 only second wife can petition can be filed only by either party of void marriage the first wife has no such rights .But the first wife may bring a declaratory suit under section 9 CPC read with section 34 specific relief act 1963

A relief of sorts has been given to second wife with whom marriage is contracted by not disclosing the fact that the husband has a wife leaving as she could be treated as aggrieved person and can file complaint under section 494 an 495 of Indian penal court.

Grounds of void marriage

  • If any of the parties have another spouse living at the time of marriage. It shall be considered as null and void.
  • The parties are Sapindas to each other
  • The parties are within the prohibited degrees of relationship
On anyone of these grounds either party can present a petition for a declaration that the marriage is null and void

Voidable marriage section 12

A voidable marriage is a perfectly valid marriage so long as it is not avoided A voidable marriage can be avoided only on the petition of one of the parties to the marriage If one of the parties does not petition for amusement of marriage ,the marriage will remain valid.

Grounds of voidable marriage:

  • In ability of the respondent to consummate the marriage on account of his or her impotency.
  • Respondent incapacity to consent or her / his suffering from a mental disorder
  • Concealment of pre-marriage pregnancy by the respondent
  • Consent of the petitioner being obtained by fraud or force.
  • Limitation of one year- a petition for nullity must be filed within one year of the discovery of fraud or cessation of force This condition is mandatory
  • Delay - the bar of delay does not apply to nullity of marriage

Procedure to Obtaining Decree of Nullity of Marriage

  • The petition should be presented before the court (Concerned courts under different personal laws: Under the Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Family court or city civil court decides the matter. Under the Muslim law, matter does not decide by the court but matter decided by the religious practice (Under the Parsi law court means the court established under the act
  • The jurisdiction of the concerned court will decide where the defendant or respondent resides.
  • The court issue notice to the respondent or defendant to give a reply before the court.
  • Court grants relief accordingly, after hearing and evidence.

Children of void & voidable 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.

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.

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