MARRIAGE(VOID&VOIDABLE),

DIVORCE
FAMILY LAW II

NAME – SHAJI AHZAM

YEAR – 3rd YEAR S/F
ROLL NO. – 50
Table of Contents
INTRODUCTION...........................................................................................................................................3
VALID MARRIAGE........................................................................................................................................4
Section 5 Conditions of valid marriage....................................................................................................4
Section 7..................................................................................................................................................5
Section 8..................................................................................................................................................6
VOID MARRIAGE..........................................................................................................................................7
Section 11................................................................................................................................................7
VOIDABLE MARRIAGE:.................................................................................................................................9
Section 12................................................................................................................................................9
GROUNDS OF DECLARING A MARRIAGE VOIDABLE...............................................................................11
Section 16. Legitimacy of children of void and voidable marriages...........................................................12
DIVORCE....................................................................................................................................................13
Grounds for Divorce under Hindu Marriage Act....................................................................................14
Grounds Available only for Wife to obtain divorce:...............................................................................19
CONCLUSION.............................................................................................................................................21
Bibliography...............................................................................................................................................22

1
 ACKNOWLEDGEMENT

Finally, I would like to thank my Parents and two of my friends, who always supported and
promoted my interest without whose constant support and blessings this assignment would not
have been completed.

Firstly, I would like to thank the most respected Dean, Ma’am Nuzhat Parveen Khan to provide
this opportunity to me. Further I would like to thank my subject teacher Kahkashan Y. Danyal
Ma’am for the subject Family Law II who gave me this golden opportunity to research on the
topic – “Marriage (Void &Voidable) and Divorce”. This assignment work assigned to me has
proved to be very fruitful in acquiring a deep understanding and knowledge regarding the topic. I
have come across many subtleties regarding the topic and got to learn many new things.

2
INTRODUCTION
The Hindu Marriage Act, 1955 was intended to secure the rights of marriage for the bride and
groom who are Hindu and are bound under the sacred bond of marriage under any ceremony.
The law does not define the kind of ceremony since there are several ways a man and a woman
may carry out this religious act. This act was floated after several cases were seen where both
man and woman were petrified or humiliated under a fraud case in the name of marriage. This
act is binding to any person who is Hindu, Jain, Sikh and Buddhists and is not a Muslim,
Christian, Parsi or Jew and is governed by some other law. This law is binding to any person
who is Hindu by Birth or Hindu by Religion. There is a complete definition of Hindu under
Section 2 of Hindu Marriage Act. This law was enacted to avoid the various consequences which
were prevalent due to immature Hindu law for marriage under British Rule. The main purpose of
the act was to amend and codify the law relating to marriage among Hindus and others. Besides
amending and codifying Sastrik Law, it introduced separation and divorce, which did not exist in
Sastrik Law. This enactment brought uniformity of law for all sections of Hindus. In India there
are religion-specific civil codes that separately govern adherents of certain other religions.
According to Hinduism, marriage is a sacred relationship. In some Hindu systems of marriage,
there is no role for the state as marriage remained a private affair within the social realm. 1 Within
this traditional framework reference, marriage is undoubtedly the most important transitional
point in a Hindu’s life and the most important of all the Hindu ‘’sanskaras’’ (life-cycle rituals)

1
Menski, Werner. 2003. Hindu Law: Beyond Tradition and Modernity. Delhi: Oxford UP

3
Marriage is the voluntary union of one man with one woman to the exclusion of all others,
satisfied by the solemnisation of the marriage.

The Hindu Marriage Act, 1955 provides for three types of marriages:

1. Valid,

2. Void and

3. Voidable.

The difference between these three relates to the pre-marriage impediments to marriage which
are clearly enunciated in Section 5 of the Act. If there exist, absolute disablements or
impairments, a marriage is void ab initio.

Section 11 deals with void marriages. If relative disablements or impairments exist, a marriage is
voidable.

Section 12 deals with voidable marriages.

All other marriages which are not covered by these two Sections are valid.

VALID MARRIAGE
Section 5 Conditions of valid marriage
Hindu Marriage Act 1955 includes essential conditions of a valid marriage. It contains such
conditions which if violated shall result in a void marriage.

Section 5 of Hindu Marriages Act says, A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party, -

(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or

(b) though capable of giving a 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

4
(c) has been subject to recurrent attacks of insanity or epilepsy;

(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen
years at the time of the marriage;

(iv) 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;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two;

Section 7. Ceremonies for a Hindu marriage. - (1) A Hindu marriage may be solemnized in
accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by
the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and
binding when the seventh step is taken.

5
Section 8. Registration of Hindu Marriages –

(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make
rules providing that the parties to any such marriage may have the particulars relating to their
marriage entered in such manner and subject to such condition as may be prescribed in a Hindu
Marriage Register kept for the purpose.

(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of
opinion that it is necessary or expedient so to do, provide that the entering of the particulars
referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in
all cases or in such cases as may be specified and where any such direction has been issued, and
person contravening any rule made in this behalf shall be punishable with fine which may extend
to twenty-five rupees.

(3) All rules made under this section shall be laid before the State Legislature, as soon as may be,
after they are made.

(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be
admissible as evidence of the statements therein contained and certified extracts therefrom shall,
on application, be given by the Registrar on payment to him of the prescribed fee.

(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall
in no way be affected by the omission to make the entry.

6
VOID MARRIAGE
Section 11 (Nullity of marriage and divorce- Void marriages) of the Act had considered
following marriage to be 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), Section 5. It means:

1. Where at the time of marriage any party has a living husband or wife i.e., bigamous
marriage is void

2. Where parties to the marriage fall within sapinda relationship i.e., same blood. A person
cannot marry in the same family i.e., to a person from

A. Five generation from the paternal side,

B. Three generations from the maternal side,

C. The parties are within the prohibited degree of relationship. The section 3(g) of the Hindu
Marriage Act 1955 talks about the degree of prohibited relationship that is as follows:

3. Where parties to the marriage come with degrees of prohibited relationship.

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;

According to section 3(f) (ii) two persons are said to be "sapinda" 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;

According to Sec 3(g) "degrees of prohibited relationship” - two persons are said to be within the
"degrees of prohibited relationship"-

(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

7
(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.

Explanation. - for the purposes of clauses (f) and (g) relationship includes-

(I) relationship by half or uterine blood as well as by full blood;

(ii) Illegitimate blood relationship as well as legitimate;

(iii) Relationship by adoption as well as by blood; and all terms of relationship in those clauses
shall be construed accordingly.

In the case of Rampyari v. Dharamdas2, it was said by Allahabad High Court that an application
for declaring a marriage void is not required to be presented by the victim only.

In another case of Leela v. Lakshmi3, it was held that void marriage does not require even the
decree of a court.

In M.M. Malhotra v. UOI4, the Apex Court observed that the marriages covered by Section 11
are void ipso jure, that is, void from the very inception and have to be ignored as not existing in
law at all if and when such a question arises. Although the Section permits a formal declaration
to be made on the presentation of the petition, it is not essential to obtain in advance such a
formal declaration from a court in a proceeding commenced for the purpose. If one withdraws
from the society of the other, the other party has no right to the restitution of conjugal rights. If
one of them marries again, he or she is not guilty of bigamy and the validity of later marriage is
not affected because of the first so called marriage.

“On a petition presented by either Party thereto “, It is only the parties to marriage who can move
a petition for the declaration of nullity of marriage. The first wife, during the subsistence of
whose marriage the husband takes the second wife, has no right to move for a declaration of
nullity of the subsequent marriage under this Section. However, there is nothing in the Section or
any other provision of any law to debar a person affected by an illegal marriage from filing a
2
AIR 1984 All 147
3
1978 AIR 1351, 1978 SCR (3) 922
4
Appeal (civil) 5185 of 2001

8
regular suit in a civil court for its declaration as void, if such party was affected by such
marriage. There can be a civil suit by a person for a declaration that the marriage of A with B
was a nullity and for consequential reliefs under the Specific Relief Act, 1963, if the Plaintiff has
any cause of action for such relief.

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.

VOIDABLE MARRIAGE:
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.

Section 12. Voidable Marriages, says,

(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be
voidable and may be annulled by a decree of nullity on any of the following grounds, namely: -

a) that the marriage has not been consummated owing to the impotency of the respondent; or

b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

c) that the consent of the petitioner, or where the consent of the guardian in marriage of the
petitioner was required under Section 5 as it stood immediately before the commencement of the
Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by
force or by fraud as to the nature of the ceremony or as to any material fact or circumstance
concerning the respondent; or

9
d) that the respondent was at the time of the marriage pregnant by some person other than the
petitioner.

2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-

(i) the petition is presented more than one year after the force had ceased to operate or, as the
case may be, the fraud had been discovered; or

(ii) the petitioner 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;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is
satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the
commencement of this Act within one year of such commencement and in the case of marriages
solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the
discovery by the petitioner of the existence of the said ground.

It means according to it, in the case of marriage being voidable, the court may declare it Null
under following conditions: -

1. Where marital cohabitation has not occurred due to the impotency of the respondent.

2. Where at the time of marriage any party failed to give valid consent due to unsoundness or
has been affected by mental retardedness to such extent that he is incapable to marriage and
giving birth to a child, or suffers from frequent insanity or is insane.

3. Where the consent of guardian is necessary for the marriage and such consent has been
obtained by force or by fraud as to nature of rituals or any actual facts or circumstances as to the
respondents.

10
4. Where the respondent is pregnant at the time of marriage from a person other than the
applicant.

GROUNDS OF DECLARING A MARRIAGE VOIDABLE

A marriage is voidable on the ground of consent obtained by fraud as force, then such marriage
shall be declared null only when: -

(a) The applicant is presented within one year from the date of knowledge of fraud as the force
used.

(b) The parties have not lived as husband and wife after the knowledge of force used or fraud.

Similarly, if the marriage is voidable due to the pregnancy of wife then such marriage shall be
declared null only when the court is satisfied that: -

(a) The applicant was unaware of the pregnancy of the wife at the time of marriage.

(b) If the marriage has been solemnized before this Act came into force, then the application
shall be presented within one year from the date of enforcement of the Act or if the marriage has
been solemnized after the act came into force then the application shall be presented within one
year from such marriage.

(c) The applicant has not voluntarily cohabitated after the knowledge of pregnancy of wife.

(d) Wife had been pregnant from a person other than the applicant.

(e) She was pregnant before the marriage

11
Section 16. Legitimacy of children of void and voidable
marriages. -

(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage
who would have been legitimate if the marriage had been valid, shall be legitimate, whether such
a child is born before or after the commencement of the Marriage Laws (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 otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any
child begotten or conceived before the decree is made, who would have been the legitimate child
of the parties to the marriage if at the date of the decree it had been dissolved instead of being
annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon
any child of a marriage which is null and void or which is annulled by a decree of nullity under
Section 12, any rights in or to the property of any person, other than the parents, in any case,
where, but for the passing of this Act, such child would have been incapable of possessing or
acquiring any such rights by reason of his not being the legitimate child of his parents.

12
DIVORCE
The term Divorce was unknown to the general Hindu law as marriage was regarded as
indissoluble union of husband and wife. Hindu Law describes Marriage as “ Hindu marriage is a
sacred and holy union of husband and wife by virtue of which the wife is completely
transplanted in the household of her husband and takes a new birth - It is a combination of bone
to bone and flesh to flesh – To a Hindu wife her husband is her God and her life becomes one of
the selfless service and profound dedication to her husband - She not only shares the life and
love, but the joys and sorrows, the troubles and tribulation of her husband and becomes an
integral part of her husband's life and activities.”

Manu declared that a wife cannot be released by her husband either by sale or by abandonment,
implying that the marital tie cannot be severed in anyway. Although Hindu law does not
contemplate divorce yet it has been held that where it is recognized as an established custom it
would have the force of law.

According to Kautilya’s Arthashatra, marriage might be dissolved by mutual consent in the case
of the unapproved form of marriage. But, Manu does not believe in discontinuance of marriage.
He declares” let mutual fidelity continue till death; this in brief may be understood to be the
highest dharma of the husband and wife”

However, this changed when divorce was introduced in the Hindu Marriage Act, 1955

13
Grounds for Divorce under Hindu Marriage Act
Section 13 of Hindu Marriage Act, 1955 describes in Sub section 1 & 2 about the grounds on
which divorce can be obtained. However, Sub section 2 purely deals with the grounds available
for the wife to obtain divorce.

Section 13(1) says that any marriage solemnized, whether before or after the commencement of
this Act, on a petition presented by either the husband or the wife, be dissolved by a decree of
divorce on the ground that the other party-

(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse or living in adultery; or

There is no clear definition of matrimonial offence of adultery. In adultery there must be

voluntary or consensual sexual intercourse between a married person and another, whether
married or unmarried, of the opposite sex, not being the other’s spouse, during the subsistence of
marriage.

In Swapna Ghose v. Sadanand Ghose5 the wife found her husband and the adulteress to be lying
in the same bed at night and further evidence of the neighbours that the husband was living with
the adulteress as husband and wife is sufficient evidence of adultery. The fact of the matter is
that direct proof of adultery is very rare

5
AIR 1979 Cal 1

14
 Therefore, for an act of adultery two essentials are:

 Sexual intercourse with person other than spouse and

 Subsistence of marriage during the act of adultery.

As per Marriage Laws Amendment Act, 1976 the present position under Hindu Marriage Act is
that it considers even the single act of adultery enough for the decree of divorce.

(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

In the year 1976, the Parliament by its Marriage Laws (Amendment) Act amended Section 13 of
the Hindu Marriage Act, to make cruelty also a ground for divorce.

Cruelty includes both mental and physical cruelty. While physical cruelty can be determined
easily, it is difficult to set the parameters of mental cruelty. Acts of cruelty are behavioral
manifestations stimulated by different factors in the life of spouses, and their surroundings and
therefore; each case has to be decided on the basis of its own set of facts.

In Pravin Mehta v. Inderjeet Mehta6 the court has defined mental cruelty as ‘the state of mind.’

Some Instances of Cruelty are as follows:

6
AIR 2002 SC 2528

15
  false accusations of adultery or unchastity
 demand of dowry
 refusal to have marital intercourse/children
 impotency
 birth of child
 drunkenness
 threat to commit suicide
 wife’s writing false complaints to employer of the husband
 incompatibility of temperament
 irretrievable breakdown of marriage

The following do not amount to cruelty-

 ordinary wear & tear of married life

 wife’s refusal to resign her job
 desertion per se
 outbursts of temper without rancor.

(ib) has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition; or

Desertion means the rejection by one party of all the obligations of marriage- the permanent
forsaking or abandonment of one spouse by the other without any reasonable cause and without
the consent of the other. It means a total repudiation of marital obligation.

16
The following 5 conditions must be present to constitute a desertion; they must co-exist to
present a ground for divorce:

 the factum of separation

 animus deserdendi (intention to desert)
 desertion without any reasonable cause
 desertion without consent of other party

Statutory period of two years must have run out before a petition is presented.

In Bipinchandra v. Prabhavati7 the Supreme Court held that where the respondent leaves the
matrimonial home with an intention to desert, he will not be guilty of desertion if subsequently
he shows an inclination to return & is prevented from doing so by the petitioner.

ii. Has ceased to be a Hindu by conversion to another religion; or

iii. Has been incurably of unsound mind or has been suffering continuously or intermittently
from mental disorder for a continuous period of not less than three years immediately preceding
the presentation of the petition; or

The expression “mental disorder” means mental illness, arrested or incomplete development of
mind, psychopathic disorder or any other disorder or disability of mind and includes
schizophrenia;

The expression “psychopathic disorder” means a persistent disorder or disability of mind

(whether or not including sub-normality of intelligence) which results in abnormally aggressive

7
1957 AIR 176, 1956 SCR 838

17
or seriously irresponsible conduct on the part of the other party, and whether or not it requires or
is susceptible to medical treatment;

iv. Has for a period of not less than three years immediately preceding the presentation of the
petition, been suffering from a virulent and incurable form of leprosy; or

v. Had, for a period of not less than three years immediately preceding the presentation of the
petition, been suffering from a venereal disease in a communicable form; or

vi. Has renounced the world by entering any religious order; or

vii. Has not been heard of as being alive for a period of seven years or more by those people
who would naturally have heard of it, had that party been alive; or

viii. Has not resumed cohabitation for a space of two years or upwards after the passing of a
decree for the judicial separation against that party; or

ix. Has failed to comply with a decree for restitution of conjugal rights for a period of two years
or upwards after the passing of the decree.

18
Grounds Available only for Wife to obtain divorce:
Section 13(2) lays down four grounds exclusively for the wife by which she can obtain the
divorce under Hindu Marriage Act, 1955.

 Pre-Act Polygamous Marriage

This clause states the ground for divorce as, “That the husband has another wife from before the
commencement of the Act, alive at the time of the solemnization of the marriage of the
petitioner.

For example, the case of Venkatame v. Patil8 where a man had two wives, one of whom sued for
divorce, and while the petition was pending, he divorced the second wife. He then averred that
since he was left only with one wife, and the petition should be dismissed. The Court rejected the
plea.

 Rape, Sodomy or Bestiality

A divorce petition can be presented if the husband has, since the solemnization of the marriage,
been guilty of rape, sodomy or bestiality.

 Non-Resumption of Cohabitation after a Decree/Order Of Maintenance

If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.PC., 1973
or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has not
been resumed between parties after one year or upwards, then this is a valid ground for suing for
divorce.

 Repudiation of Marriage

8
AIR 1963 Mys 118.

19
This provision provides a ground for divorce to the wife when the marriage was solemnized
before she attained the age of fifteen years, and she has repudiated the marriage, but before the
age of eighteen. Such repudiation may be express (written or spoken words) or may be implied
from the conduct of the wife (left husband & refused to come back). Moreover, this right (added
by the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of the
fact that the marriage was solemnized before or after such amendment.

Alternate relief in divorce proceedings

Section 13A of Hindu Marriage Act says that in any proceeding under this act, if a petition for
dissolution of marriage by a decree of divorce is filed except the petition pertaining to the
grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the Court may, if
it considers it just so to do having regard to the circumstances of the case, pass instead a decree
for judicial separation.

20
CONCLUSION
Hindu marriage joins two individuals for life, so that they can pursue dharma together. It is a
union of two individuals as husband and wife, and is recognized by law. In Hinduism, marriage
is followed by traditional rituals for consummation. In fact, marriage is not considered complete
or valid until consummation. The old Hindu law has been patriarchal in nature favoring men in
every aspect. Alongside this the concept of love marriage was also not recognized. But in recent
years, with the onset of dating culture in India, arranged marriages have seen a marginal
decrease, with prospective brides and grooms preferring to choose a spouse on their own and not
necessarily only the one whom their parents findPrior to the Hindu Marriage Act of 1955, there
was no provision for divorce. The concept of getting divorced was too radical for the Indian
society then. The wives were the silent victims of such a rigid system. However, time has
changed; situations have changed; social ladder has turned. Now the law provides for a way to
get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors of
such a provision are women who no longer have to silently endure the harassment or injustice
caused to them by their husbands. But the manner in which the judiciary is dealing with the
subject of irretrievable break down of marriage, it is feared that it will completely pause the
system of marriages. Every theory has its negative and positive traits. There applicability differs
from situation to situation. Therefore, it is very essential that the lawmakers of our country
should deal with the subject in a very cautious manner after considering in detail its future
implications

21
Bibliography
(n.d.). Retrieved from Hindu website: hinduwebsite.com
(n.d.). Retrieved from Legal Desire: www.legaldesire.com
(n.d.). Retrieved from Legal Service India: www.legalservicesindia.com
(n.d.). Retrieved from lawoctopus: www.lawoctopus.com
Agrawal, R. (2014). Hindu Law. Central Law Agency.
Diwan, P. (n.d.). Modern Hindu Law. Allahabad Law Agency.

22