Grounds of Void Marriage

Introduction

• The term void means null and that which has no legal effect.

• A void marriage is invalid from its very inception and is generally treated under the law as if it never existed.

• Under Section 5 of the Hindu Marriage Act, 1955 (HMA), certain conditions must be met for a marriage to be valid; if these conditions are not met, the marriage is considered either void or voidable.

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Void Marriage

• Section 11 of HMA deals with the provision of Void Marriages.

• Section 11 does not define void marriages but gives the grounds on which a marriage can be called void. 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 Section 5.

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Grounds

• Under HMA any marriage is void if it does not fulfill the conditions mentioned under section 5 clause (i), (iv) and (v).

  • Under Clause (i) of Section 5 neither party has a spouse living at the time of the marriage.

  • Under Clause (iv) of Section 5 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.

  • Under Clause (v) of Section 5 the parties are not sapindas of each other, unless the custom or usage governing each of them permits a marriage between the two.

Conditions that Make a Marriage Void

• Another Spouse living at the time of marriage

  • The term bigamy means the act of entering into a marriage with one person while still legally married to another.

    • Section 5(i) of Hindu Marriage Act, 1955 says that at the time of the marriage parties to the marriage should not have a spouse living

• In Lily Thomas v. Union of India (2000), Supreme Court held that when a Hindu spouse converts his religion to remarry with no intention to practice such religion, but to only achieve an ulterior motive, then the second marriage will be declared void. It is violative of Article 21 of the Indian constitution as well.

• In the case of Smt. Yamunabai v. Anant Rao (1988), SC held that wife of second marriage cannot be considered a wife because such marriage is void ab initio (void from the beginning), and she cannot claim maintenance under Section 125 of CrPC (Code of Criminal Procedure, 1973)

• Degree of Prohibited Relationship

  • According to Section 3(g) of the HMA, two persons are said to be within the degrees of prohibited relationship

    • If one is a lineal ascendant of the other; or

    • If one was the wife or husband of a lineal ascendant or descendant of the other; or

    • If one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or

    • If the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.

• By virtue, Section 5(iv) of HMA the marriage within the degree of prohibited relationship is void.

  • Section 5(iv) also mentions that if the custom or usage of each party to the marriage allows such marriage, then such marriage will be considered as valid marriage.

• Section 18(b) of the HMA punishes the parties to such marriage with simple imprisonment which may extend to one month or with fine which may extend to 1000 rupees or both.

• Sapinda

  • According to Hindu law, when two persons offer pinda to the same ancestor it is known as sapinda relation. Sapinda relations are that relation that is connected with the same blood.

  • In sapinda relation if any person marries their marriage is considered to be void.

  • According to Section 3(f) of HMA, sapinda means the following:

    • Sapinda relationship with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.

    • Two persons are said to be sapindas of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

• By virtue of Section 5(v) of the HMA, the marriage within the sapinda is void.

  • Section 5(v) also mentions that if the custom or usage of each party to the marriage allows such marriage, then such marriage will be considered as valid marriage.

• Section 18(b) of HMA punish the parties for such marriage with simple imprisonment which may extend to one month or with fine which may extend to 1000 rupees or both.

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Effect of void marriage

• The parties don’t have the position of husband and wife in a void marriage.

• Children born from the void marriage are legitimate according to Section16 HMA

  • The SC in the matter of Revanasiddappa v. Mallikarjun (2023) has affirmed that a child born out of a void or voidable marriage has the right to claim a share in their parents' share of Hindu Undivided Family (HUF) property under the Mitakshara law.

    • However, it was emphasized that such a child cannot automatically be considered a coparcener in the HUF by birth.

• There are no mutual rights and obligations present in a void marriage.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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