Critical Analysis of the various grounds of Void Marriages under Hindu Law
Authored By- Anushka Mhatre
keywords: void marriage, void, bigamy, sapindas, prohibition, Hindu Marriage Act, spouse, null.
The Hindu Marriage Act, 1955 provides essential conditions for valid Hindu marriages. If the conditions are not satisfied, the parties are not considered as married. The Act provides for various grounds under which the marriages are declared void or voidable. This article critically analyses the various grounds of void marriages under the Hindu law and the consequences of such void marriages.
Marriage is the main basis of social organization and the foundation of important rights and obligations. It joins two individuals and their families for life. Under the Hindu Law, marriage is treated as a Samskara or a Sacrament. Section 5 of the Hindu Marriage Act (he, 1955 lays down the essential conditions for a valid marriage. If the conditions under this Section are not fulfilled, the marriage may be declared void or voidable as the case may be. The Court is empowered to declare the marriage as void or voidable under Section 11 and Section 12 of the Act, respectively. Void marriages have no existence in the eyes of law whereas voidable marriages can be declared invalid on a petition by either party to the marriage.
Grounds for void marriage under Hindu Marriage Act, 1955.
A marriage, when prohibited by law, is in itself void, and automatically annulled. A marriage is considered void if it doesn't fulfill the conditions laid down under Section 5 of the Hindu Marriage Act. Section 11 of the Hindu Marriage Act, 1955 deals with void marriages. It states that “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), Section 5.”
In M.M. Malhotra v. Union of India[i], the Supreme Court held that the marriages under Section 11 are void ipso jure, that is, void from the very inception and such marriages to be ignored as not existing in law at all if and when such a question arises. The conditions prescribed for void marriages under Section 5 are as follows:
I. At the time of marriage, neither party has a living spouse, i.e. bigamy is prohibited under law and thus, bigamous marriages are null and void.
II. When parties to the marriage come within degrees of prohibited relationship, then such a marriage is void.
III. The parties to the marriage should not be sapindas of each other unless the custom governing each of them allows the marriage between them.
Bigamy as a ground for void marriages
Bigamy is one of the grounds for void marriages. Section 5(1) provides that if at the time of marriage, either party to the marriage has a spouse living, then such a marriage is void. Such marriages are void ab initio and non-existent in nature. The party who alleges bigamy has to prove that there was an already subsisting marriage at the time of solemnization of the second marriage. Bigamy is an offence punishable under Section 494 and Section 495 of the Indian Penal Code, 1860. The expression “on a petition presented by either party thereto” means that only the parties to the marriage can move a petition for the declaration of nullity of marriage. In the case of bigamy, the first wife has no right to move for a declaration of nullity of the subsequent marriage under this Section. But a perpetual injunction can be obtained against the spouse from restraining from performing another marriage. The Patna High Court in Uma Shanker v. Radha Devi[ii] held that the first wife is empowered to obtain a perpetual injunction to prevent the second marriage of her husband under Section 9 of the Civil Procedure Code and Section 54 of the Specific Relief Act.
Parties to the marriage should not be sapindas of each other.
When the parties to the marriage are sapinda to each other, then such a marriage is a void marriage unless the custom governing each of them permits the marriage between them. ‘Sapinda’ means relating to blood. According to Section 3(f)(i),"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 "sapinda" of each other when one is a lineal ascendant of the other within the limits of sapinda relationship, or when they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them. Thus, a person cannot marry in the same family. It was held in the case of Arun Navalkar v. Meena Navalkar[iii] absence of custom permitting the marriage of parties who are sapindas to each other is void and null.
Marriages within the degree of prohibited relationships.
Marriages within the prohibited degrees of relationship are void unless the customs and usages allow it. Section 3(g) of the Act defines “degrees of prohibited relationship” as
(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
(iii) 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 or the other; or
(iv) 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.
Such marriages are void unless the custom or usage governing each of the parties to the marriage permits their marriage. But when a custom is relied upon, then such a custom must be valid and unbroken in the community. Both spouses should be governed by the same custom. If such customs are not followed for a longer period, then such customs are lost, and the marriage is thus null and void. It is rightly held in Shakuntala Devi v. Amar Nath[iv]Such marriages within the degree of prohibited relationships are void.
Consequences of Void marriage
The Supreme Court in. Yamunabai Adhav A v. Ranantrao Adhav & Ors[v].held that“the marriage of a woman according to Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the CrPC”. However, various High Courts have held that the wife is entitled to maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 and under Section 25 of the Hindu Marriage Act, 1955 even in cases of void marriages.
· Legitimacy of children
The Amendment Act of 1976 declared that any child born out of a void marriage is a legitimate child. Section 16(1) of the Act provides that any child born before or after the commencement of the Hindu Marriage(Amendment) Act, 1976 and whether or not a decree of nullity is granted in respect of the marriage under this Act and whether or not the marriage is held to be void, will be a legitimate child. The Amendment has conferred the title of a legitimate child to bring social reform, otherwise, such children would be treated illtreated by society.[vi]
A marriage in contravention to the grounds mentioned above is void ab initio. It is considered that such marriages never existed at all. Therefore, such marriages do not require a decree of nullity as the marriage does not exist in the eyes of law. The Allahabad High Court in Lila v. Laxmi[vii] held that a decree of nullity passed for a void marriage is a mere declaration of nullity of marriage to just make the fact clear that there was so marriage between the parties. The parties to the marriage have no status of a wife and husband. A void marriage does not give rise to any mutual rights and obligations between the parties to the marriage.
Marriage is a pious relationship between two individuals. But there are certain conditions when renders the marriage void. Before the enactment of the Hindu Marriage Act, 1955, parties to the marriage had no remedy to get out of the void and voidable marriage. After the Amendment Act of 1976, the child born out of the void and voidable marriage shall be treated as a legitimate child. Therefore, as marriage is a mutual relation between the parties there are certain obligations to be necessarily followed to prevent it from calling as void marriages.
[i]M.M. Malhotra v. Union of India, AIR 2006 SC 80. [ii]Uma Shanker v. Radha Devi, AIR 1967 Pat. 220. [iii]Arun Navalkar v. Meena Navalkar, AIR 2006 Bom 342. [iv]Shakuntala Devi v. Amar Nath, AIR 1982 P&H 221. [v]Yamunabai Adhav A v. Ranantrao Adhav & Ors, 1988 AIR 644, 1988 SCR (2) 809. [vi] Parayan K. Amma v. K. Devi, 1996 AIR 1963, 1996 SCC (4) 76. [vii]Lila v. Laxmi, AIR 1978 SC 1351.