Marriage, as an institution, is extremely important to our society. It legally binds the two parties and creates legal obligations and rights. Every marriage that has been solemnised and registered under the Special Marriage Act, 1954 is a valid marriage. However, certain situations may arise where a marriage, even if registered under the Special Marriage Act, 1954, is void from its very inception however, a decree of nullity has to be obtained by the competent court. Such marriages are called void marriages and are covered under Section 24 of the Special Marriage Act, 1954. In other cases, though the marriage is valid, a party may want to dissolve it. These marriages are covered within the ambit of Section 25 of the Special Marriage Act, 1954 and are known as voidable marriages.
There are some marriages that are void at the very outset of it. These marriages do not involve a question scrutinizing the evidence for validity of the marriages as these marriages have no foundation at all. If a party approaches the court and it is found that the marriage is a void one, it does not have to lead any further evidence to prove it as would not be a valid marriage. The court would merely be stating the factum of the situation and passing the decree of annulment. The grounds for a void marriage are laid down in Section 24(1) of Special Marriage Act, 1954.
Grounds For Void Marriages:
1. If either one or both the parties to the marriage contravene the conditions mentioned in Section 4(a) to Section 4(d) of the Special Marriage Act, 1954, then such marriage would be void. The conditions are stated as follows:
- Neither party should have a spouse living at the time of marriage.
- Neither party should be incapable of giving a valid consent at the time of marriage owing to unsoundness of mind; or should be suffering from a mental disorder of a nature that would render him incapacitated to continue in a marriage or for procreation; or should be suffering from recurrent attacks of insanity.
- The male should have attained the age of 21 years and the female should have attained the age of 18 years.
- Neither party should fall within the degrees of prohibited relationships
- 2. Impotency:
If, at the time of marriage or the institution of the suit, the respondent was impotent, then the marriage would be declared void. The burden of proof here lies on the party seeking relief. It is upon the aggrieved to prove that the marriage was not consummated on the account of his/her partner’s impotency.
Section 24(2) states that any marriage that has been solemnised within the meaning of Section 18, SMA 1954 that describes the effect of registration of marriage shall not be impacted by anything contained in Section 24 unless the registration was in contravention of the conditions mentioned in clause (a) to (e) of Section 15 of the SMA, 1954.
Section 15 of the Special Marriage Act, 1954 lays down the following conditions:
a) Performance of the ceremony
The parties to the marriage have performed a ceremony and are living together as husband and wife since the performance of the ceremony..
Neither party should have a spouse living at the time of registration of marriage.
Parties to the marriage should be sane at the time of registration. None of them should be an idiot or a lunatic.
The male should have attained the age of 21 years and the female should have attained the age of 18 years at the time of the registration of marriage.
e) Prohibited relationship
Parties to the marriage should not fall within the degrees of prohibited relationship mentioned in Schedule I of this Act.
Proviso – No party can make any declaration with regard to his/her void marriage if there is an appeal preferred under Section 17 of the SMA, 1954 and the decision of the district court has become final.
In Prafulla Bala Biswas v. Ila Das and Anr. I (1997) DMC 448, applicant was the mother who’s son was married to the respondent under Special Marriage Act, 1954. The applicant was challenging the validity of the marriage stating it to be void-ab initio on the ground that her son was impotent at the time of marriage and that the marriage was never consummated. N. Bhattacharjee, J. opined that a third party cannot challenge the validity of marriage on the ground of impotency under Section 24(1)(ii) , SMA, 1954. This ground is only available to the parties to the marriage. Therefore, the appeal was dismissed.
Voidable marriages are the ones that are valid marriages till one of the two parties wish to nullify a marriage that is in contravention of Section 25 of the SMA, 1954. Any one party can request to nullify the marriage in the court of law. However, if the plea of the party who wishes to nullify the marriage is rejected, then it will remain a valid marriage. If, during the pendency of the petition, a spouse dies, even then it will remain a valid marriage. The grounds for a voidable marriage are laid down in Section 25 of the Special Marriage Act, 1954 and are listed as follows:
1. Wilful refusal:
If the other party wilfully refuse to have sexual inter course with his/her spouse, it can be a valid ground to seek a decree of annulment from the competent court having jurisdiction.
If the petitioner finds the respondent to be already pregnant at the time of marriage by some other person, he can seek decree of annulment. However, this ground may fail if:
- The petitioner was aware of the alleged facts.
- The proceedings were initiated after a year from the date of the marriage.
- Since the discovery of the alleged facts, marital intercourse has not taken place between the petitioner and the respondent.
3. Consent obtained by coercion or fraud:
If the consent of the parties to the marriage is not free and has been obtained by the way of threating or by hiding substantial material facts to induce the other party to enter into the marriage, then a decree of annulment can be sought by either party on this ground. However, he/she may not succeed in getting the decree of annulment if:
Despite the discovery of fraud or termination of the coercion,
- the aggrieved party failed to institute the proceedings within a year from the date of such discovery or termination; or
- the aggrieved party continued to live with the other party out of his/her own free will.
In Jolly Das ( Smt ) Alias Moulick vs. Tapan Ranjan Das (1994) 4 SCC 36, the appellant alleged that the respondent obtained her signatures on empty forms on the pretext that she is applying for a music competition and fraudulently got the marriage registered under the Special Marriage Act, 1954. The appellant sought annulment under Section 25(iii) and the Learned Additional District judge declared this marriage to be void. However, the decision was overturned by the Calcutta High Court. Aggrieved appellant then sought relief from the Apex court where the decision of the District Court was upheld and the marriage was declared to be void under Section 25(iii) of the SMA, 1954.
In Payal Choudhury v. Pardip Das (F.A. 43 of 1998), the boy deposed himself as a big businessman and the girl fell in love with him and they got married under the Special Marriage Act, 1954. However, post marriage, when the boy did not take the girl to their matrimonial home, she found out that the boy lied about his financial situation and she was defrauded. The appellant sought annulment under Section 25(iii). The Hon’ble Guwahati High Court declared this marriage to be a sham and issued a decree in favour of the appellant.
Legitimacy of children of Void and Voidable marriages
Section 26 of the Special Marriage Act,1954 talks about the legitimacy of children born in a void or voidable marriage. Clause 1 of this section states that if a child is born in a void marriage, he/she would still be a legitimate child. The decree of annulment of a void marriage will not affect the legitimacy of the child. Similarly, clause 2 states that if a child is born in a voidable marriage before the marriage has been declared void by a decree of the competent court, then it won’t impact the legitimacy of the child. The child would be considered to be legitimate. Clause 3 of this section entitles the child born in a void or voidable marriage a right to his/her parent’s property. However, it does not give him a right in any other person’s property.
In the case of K. Santhosha v. Karnataka Power Transmission Corporation[WRIT APPEAL No.2495/2019 (S – RES)], the Hon’ble Karnataka High Court while adjudicating on the legitimacy of petitioner under Section 26 of the Special Marriage Act, 1954 opined that “no child is born in this world without a father and a mother. A child has no role to play in his/her birth.”
Section 24 and Section 25 of the Special Marriage Act, 1954 protect the spouses from being into a relationship whose foundation is based on some lie or fraud or any other reason covered within the ambit of Section 24 and Section 25 of the Special Marriage Act, 1954. It comes to the rescue of those aggrieved, liberates the couple and gives them the opportunity to get out of the marriages that either are void ab initio or can be declared void by the decree of the competent court. While Section 24 and Section 25 protect the spouses, Section 26 of SMA, 1954 safeguards the rights of the children born in void or voidable marriages.