According to Section 11 of the Hindu Marriage Act, marriage can be void by a decree of nullity granted by the Court if it contravenes any of the conditions specified in Clauses (i), (iv) and (v) of Section 5.
A marriage shall be void ab initio –
- If any party to the marriage has a spouse living at the time of marriage i.e, polygamy (or) polyandry will void the marriage
- If the parties are within the degrees of prohibited relationship unless the customs or usage governing each of them permits such marriage
- If the parties are sapindas of each other, unless the customs or usage governing each of them permits such marriage.
Void marriage is null and void from its inception and either party to such marriage can obtain a decree of nullity from the Court. However, neither party is under any obligation to obtain such declaration, which is more for the purposes of precaution and record. Even without a declaration of nullity from the Court, a party to a void marriage can marry another person.
According to Section 12 of the Hindu Marriage Act, marriage is voidable and can be annulled by a decree of nullity on the following grounds –
- Marriage has not been consummated due to impotence of the respondent
- Insanity, i.e., [Section 5(ii)]
- Incapable of giving a valid consent due to unsoundness of mind
- Suffering from mental disorder of such a kind and to such an extent as to be unfit for marriage or unfit for procreation
- Has been subject to recurrent attacks of insanity
- The consent of the petitioner has been obtained through –
- Fraud –
- As to the nature of ceremony or as to any material fact or circumstance concerning the respondent (spouse)
- The petition is presented more than 1 year after the force had ceased to operate or the fraud had been discovered
- The petitioner had lived with the other party with his or her full consent as husband or wife after the force had ceased to operate or the fraud had been discovered
- The respondent was pregnant by some other person at the time of marriage. However, the petitioner should satisfy the Court –
- that he was ignorant of the fact at the time of the marriage
- the proceedings have been instituted within 1 year from the date of marriage
- that marital intercourse has not taken place since the petitioner discovered the fact.
Asked in 2015 JCJ Mains in A.P. 6 Marks Question
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