Nullity of Marriage(sec.11&12)(void and voidable marriage)

Void Marriage (Sec.11)Any marriage in violation of any one of three conditions under sec.5(i),(iv) and (v) of the Act is null and void. Sec.5(i): Monogamy, Sec.5(iv): not with in the prohibited relationship, Sec.5(v): not sapindas each other. - According to sec.11, either party may file a petition against other party for getting a decree of nullity.- Section 11 is not applicable to marriage

solemnized before the commencement of the Hindu Marriage Act 1955, i.e. before 18th May 1955

Legal consequences of void marriage:- The effect of marriage being null and void is

that is non est and law does not recognize it.- Law takes it that such a marriage has not

been taken place.- The parties have no status of wife and

husband- It does not give rise to mutual rights and

obligations between the parties.- The offence of Bigamy will not be applicable,

if one of them married again.

Voidable Marriage (Sec.12):- The marriage which can be avoided at

the option of one of the parties to the marriage.

- It remains valid, binding and continue to subsist unless it is challenged.

According to sec.12(1):Any marriage solemnised, 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 four grounds.a) Impotency- inability to have conjugal intercourse or incapacity to consummate the marriage.

Barrenness and sterility cannot be equated with impotency if there is consummation of the marriage: Shewanti v. Bhaura (AIR 1971MP 168)Facts: The appellant Smt. Shewanti and the respondent Bhaurao were married and lived together for four years. the husband made an application under Section 12(1)(a) of the Hindu Marriage Act that the wife was impotent at the time of the marriage and continued to be so until the institution of the proceeding. The wife denied the alleged impotency.  Evidence given by the lady doctor shows that Shewanti was sterile, but it could not be said that she was impotent. District court declared the marriage was void on the ground that the sterility can be considered as impotency.

She came to the High Court of M.PJudgment: The High court set aside the lower court

judgment and held that the word "impotent" the legislature did not intend to bring in the idea of sterility or incapability of conception;

Impotency here signifies incapacity to consummate the marriage in other words incapacity to have normal sexual intercourse.

It is possible that a person may be sterile, still he or she may be capable of conjugal intercourse. Sterility alone, however, is no ground for holding the marriage voidable or declaring it a nullity. Incapacity owing to congenital deformities to beget children would not amount to impotency where she can actively participate in sexual intercourse.

b) Marriage is in contravention of the condition specified in clause (ii) of section 5 (unsound mind and insanity or epilepsy) c) Consent of the petitioner 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.According to sec.8(2): 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;

Gullipilli Sowria Raj v. Bandaru Pavani (AIR2009SC1085)

Facts: The appellant, who is a Roman Catholic Christian allegedly married the respondent, who is a Hindu, on 24.10.1996, in a temple only by exchange of `Thali' and in the absence of any representative from either side. Subsequently, the marriage was registered under Section 8 of the Hindu Marriage Act, 1955.Soon thereafter, on 13.3.1997, the respondent- wife filed a petition before the Family Court at Visakhapatnam, under Section 12(1)(c) of H.M Act, for a decree of nullity of the marriage.The main ground for declaring the marriage to be a nullity was mainly misrepresentation by the appellant regarding his social status and that he was a Hindu by religion. The Family Court dismissed the said petition.

But the High Court allowed the appeal upon holding that the marriage between a Hindu and a Christian under the 1955 Act is void ab initio and that the marriage was, therefore, a nullity. Thereafter, the appellant filed a Special Leave Petition before Supreme Court.Issue: Whether a marriage entered into by a Hindu with a Christian is valid under the provisions of the Hindu Marriage Act, 1955.Judgment: The Preamble to the Hindu Marriage Act, 1955 , which reads as follows:An Act to amend and codify the law relating to marriage among Hindus. the Preamble itself indicates that the Act was enacted to codify the law relating to marriage amongst Hindus.

Section 5 of the Act also makes it clear that a marriage may be solemnized between any two Hindus if the conditions contained in the said Section were fulfilled. The usage of the expression `may' in the opening line of the Section, in our view, does not make the provision of Sec.5 optional. On the other hand, it in positive terms, indicates that a marriage can be solemnized between two Hindus if the conditions indicated were fulfilled. The expression `may' used in the opening words of Sec.5 is not directory, but mandatory and non fulfilment thereof would not permit a marriage under the Act between two Hindus.Finally, the court held that the respondent can avoid the marriage under sec.12(1)(c) and marriage purported to have been performed between the appellant and the respondent was a nullity.

Flg. Officer Rajiv Gakhar v. Bhavana @ Sahar Wasif (AIR 2011 SC 2053 )

Facts: The Appellant is a pilot with the Indian Air Force and once, when he was traveling by train from Delhi to Hyderabad wherein the Respondent also happened to be traveling and at which time she introduced herself as Bhavana. During the conversation, Respondent claimed to be a spinster, aged 27 years and disclosed that she was traveling to Hyderabad in connection with a book she was writing on Anglo Indians.Subsequently, both of them met at Delhi and ultimately the Respondent tricked the Appellant into marrying her at Arya Samaj Mandir, Bikaner, Rajasthan as per Hindu rites and ceremonies. The Respondent also gave a written affidavit to the Arya Samaj Mandir that she was a Hindu, a spinster and was never married before.

After two months, the appellant, through respondent’s father came to know that the Respondent was a Muslim and her actual name was Sahar Wasif and her previous marriage had taken place according to Muslim Law with a Muslim-Wasif Khalil after her conversion to Islam and had two children out of the said wedlock. The Appellant filed a suit under Sections 5 and 12 of the Hindu Marriage Act, 1955 seeking dissolution of marriage . The trial Court declared the marriage between the parties to the petition a nullity. Then the Respondent preferred an appeal before the High Court whereby the learned Single Judge allowed the appeal and set aside the judgment and decree passed by the Trial Court. Aggrieved by the said order, the Appellant has preferred this appeal by way of special leave before Supreme Court.

Judgment: The evidence of respondent clearly show that the Respondent-wife established that before the marriage with the Appellant she became a full-fledged Hindu by performing Shudhikaran ceremonies in the manner and being followed by Hindu custom and all these material facts were known to the Appellant at the time of the marriage.so the ratio in Gullipilli (AIR2009SC1085) is not applicable to the present case.And the Respondent-wife established her claim that on the date of marriage she was a Hindu and the same is permissible under Section 5 of the Act. Supreme Court upheld the decision of High court and dismissed the petition.

d) Pregnancy at the time of marriage by some other- the husband can file a petition for decree of nullity.Conditions- section 8(2):i. the petitioner was at the time of the

marriage ignorant of the factsii. Petition must be filed with in one yeariii. that marital intercourse with the consent of

the petitioner has not taken place Here the burden of proof is on the part of the Husband.

Legitimacy of children of void and voidable marriages