What Are Void and Voidable Marriages?
Void marriages: Void marriages are the marriages that are in contravention of the Section 5 (i), (iv) & (v), Hindu Marriage Act and such marriages shall be null and void since the very beginning.
Voidable marriages: Voidable marriages are the marriages that are in contravention of the grounds enumerated in the relevant Section and such marriages may be annulled by the Court upon qualifying the requirements.
The explanation of void and voidable marriages
Section 11: The marriages in contravention of the Section 5 (i), (iv) & (v), Hindu Marriage Act shall be considered null and void since the very beginning on the request of parties.
Section 12: There are 2 parts of Section 12, HMA. These provisions are explained in a simple language.
Part 1 of Section 12 deals with any marriage performed before or after enactment of this Act is revocable and may be dissolved by a declaration of nullity on any of grounds listed below: or
(a) Non-consummation of the marriage due to the impotence of the respondent;
(b) The condition specified in clause (ii) of section 5 was contravened in the marriage; or
(c) Where the consent of the petitioner, or the guardian was obtained by force or fraud; or
(d) Where at the time of the marriage, the respondent was pregnant by person other than the petitioner.
Part 2 of Section 12: regardless of anything in Part 1, no petition for annulment of a marriage:
(a) On the ground specified in clause (c) of sub-section (1) shall be entertained:
(i) If the petition is presented more than one year after the force ceased to operate or, as the case may be, the fraud was 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 ceased to operate or, as the case.
(b) Must not be entertained unless the court is satisfied on the ground indicated in clause (d) of sub-section (1).
(i) The petitioner was unaware of the facts alleged at the time of the marriage;
(ii) In the event of a marriage solemnised before the beginning of this Act, proceedings were commenced within one year of the commencement, and in the case of marriages solemnised after the commencement of this Act, and the proceedings were instituted within one year of the date of the marriage; and
(iii) No marital intercourse has taken place with the petitioner’s consent since the petitioner discovered the existence of 15 years of age.
(i) The husband’s failure to disclose his age and the information that he has major children at the time of marriage constitutes fraud and concealment of material facts affecting the marriage.
(ii) The bridegroom’s age was misrepresented to the mother acting as an agent, and the daughter consented to the marriage believing the statement was true.
Who can seek the annulment of void and voidable marriages?
The only aggrieved parties can be husband or wife upon satisfying the requirements of the sections invoked.
Why is the annulment of void and voidable marriages granted?
The legislature in its wisdom identifies that if the parties to the marriage in contravention to the valid marriage have to unnecessarily contest a long litigation for the divorce when the marriage was void or voidable. The legislature has also given statutory remedy to either of the spouse so that, there is no violation of provisions of Section 5, HMA. Also, there are additional grounds enumerated under Section 12, HMA that are important for the institution of marriage.
When can the annulment of void and voidable marriages be sought?
Whenever there is a contravention to Section 11 & 12 in a marriage, the husband or the wife can seek annulment.
Where can the annulment of void and voidable marriages be sought?
The husband or the wife can seek annulment before the District Court. The jurisdiction of Principle Judge, Family Court can be invoked in terms of Section 19 of Hindu Marriage Act. Every petition under Section 19, HMA shall be filed under the Act before the Family Court of the original civil jurisdiction where:
- The marriage was performed;
- The place of residence of the respondent;
- The last place of residence of the parties;
- If the petitioner is the wife, the address where she is living at the time the petition filing.
Procedure and Steps for annulment of void and voidable marriages:
Step 1: Petition Filing by the Petitioner;
Step 2: Filing of Reply;
Step 3: Evidence of the Petitioner;
Step 4: Evidence of the Respondent;
Step 5: Arguments of the parties;
Step 6: Judgment & Decree of the Trial Court.
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