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Updated: Feb 20, 2022



A socially and religiously acknowledged relationship between a man and a woman that imposes certain rights and obligations between them is known as marriage. The parties to the marriage i.e. the man and the woman are referred to as husband and wife respectively. A marriage is usually stated as a contract between the husband and wife to live together. In our country, marriage is a religious institution that is crucial for the development of our general public.

Marriage is a sacred institution that serves as a foundation for a stable family and civilized society. There are, however, certain necessities and conditions that form a legally binding marriage. The Hindu Marriage Act[1] is an Act of the Parliament of India passed in 1955. The principal objective of the act was to amend and codify the law relating to marriage among Hindus and others. Apart from amending and codifying Sastrik Law, it also provided separation and divorce, which were not previously permitted under Sastrik Law. This enactment ensured uniformity of law for all sections of Hindus.[2]

Section 2 of the Hindu Marriage Act[3], 1955 addresses the applicability of the act and states:

This Act applies:

(i) to any individual who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat, or a disciple of the Brahmo, Prarthana, or Arya Samaj;

(ii) to any individual who is a Buddhist, Jain, or Sikh by religion; and

(iii) to any other individual domiciled in the region covered by this Act who is not a Muslim, Christian, Parsi, or Jew by religion, unless it is proven that such person would not have been governed by the Hindu Law or by any custom or usage incorporated into that law in respect of any of the matters addressed herein if this Act had not been passed.

Section 5 of the Hindu Marriage Act[4], 1955 specifies that:-

A marriage may be solemnized between any two Hindus, if the conditions mentioned below are fulfilled, namely-

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

(ii) at the time of the marriage, none of the parties-

a) is lacking the ability to provide valid consent to it due to mental incapacity; or

b) despite being capable of providing valid consent, has been suffering from a mental disorder of such a kind or to such an extent that he is unfit for marriage and the procreation of children;

c) at the time of the marriage, the bridegroom has completed the age of twenty-one years and the bride below the age of eighteen years;

d) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them allows for a marriage between the two;

e) the parties are not sapindas of each other unless the custom or usage governing each of them permits for a marriage between the two.

There are two methods to legally dissolve a marriage – annulment and, divorce. An annulment is a legal process that terminates a marriage between a man and a woman. Annulling a marriage is the legal equivalent of erasing it; it says that the marriage never technically happened and was never valid. A divorce, also known as the legal dissolution of a marriage, is the ending of a valid marriage between a man and a woman which returns both parties to single status with the capacity to remarry. While each state has its laws governing the reasons for an annulment or a divorce, certain conditions apply nationwide.


A void marriage doesn’t exist from its beginning it is called marriage because two individuals have gone through marriage rites. Since they lack the capability of marrying, they cannot, by just undergoing ceremonies become husband and wife.

According to Section 11 of the Hindu Marriage Act, 1955[6] says, “any marriage solemnized at the commencement of this Act shall be null 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 condition specified in clauses (i), (iv) and (v) of section 5.”

Thus a marriage will be void ab initio if any of the following conditions are met–

1) At the time of the marriage, any party to the marriage has a spouse [Section 5(i)].

2) any parties are within the degree of prohibited relationship unless the custom or usage governing each of them allows such a marriage [Section 5(iv)]

3) the parties are ‘sapindas’ of each other unless the custom or usage governing each of them allows for such a marriage [Section 5(v)]. According to traditional sapinda law, one cannot marry a person:

(i) Seven generations from the paternal side

(ii) Five generations from the maternal side

However, following the enactment of this legislation, the law states that one cannot marry a person of:

1) Five generations from the paternal side

2) Three generations from the maternal side

3) The parties are within the prohibited degree of relationship. The section 3(g) of the Hindu Marriage Act 1955[7]discusses the degree of prohibited relationship.

For any of these reasons, either party may file a petition for the marriage to be declared null and void.


a) The parties don’t have the marital status of wife and husband

b) Children born from a void marriage are illegitimate (according to the provisions of section 16 of the Hindu Marriage Act 1955)[9].

c) A void marriage doesn’t provide mutual rights and duties.

CASE: M.M. Malhotra v. Union of India[10]

In this case, the Apex Court found that the marriages covered by Section 11 are void ipso jure, that is, void from the very beginning and have been discarded as not existing in law at all and when such a conflict occurs. In this scenario, a man who married an already married woman whose marriage was in subsistence could marry again and his later marriage would be lawful as his previous marriage had been declared null and void.


A voidable marriage can be terminated or prevented at the wish of one or both parties. Section 12 of the Hindu Marriage Act[12]states suitable provisions of Voidable Marriage. This section outlines four grounds for declaring a Hindu marriage null and void.

These are:

1. Lack of ability of the respondent to consummate the marriage due to impotency.

2. The respondent's inability to accept or the existence of a mental disorder.

3. The petitioner's consent is gained by deceit or force.

4. The respondent's concealment of a pre-marriage pregnancy.

Impotency [Section 12(1)(a)]

Impotency at the time of marriage, if it persisted, would provide the petitioner with grounds to annul the marriage. Impotency is defined as the inability to engage in complete and healthy sexual intercourse. It can be caused by a physical deficiency in either partner or by a psychological barrier that amounts to an unseen aversion to sexual interactions with that partner. Inability to conceive or infertility is insignificant and does not imply impotency.

CASE: Brij Vallabh v. Smt. Sumitra[13]

In this case, the husband filed a petition for nullity of marriage relying on his wife's impotency. According to the evidence, the husband tried to consummate the marriage only one night after the wedding, but the wife refused to agree as she had been compelled to marry him against her will. She also returned to her parents soon after the marriage, and the husband made no further attempts. The Court ruled that it could not be presumed that the wife was incapable of sexual intercourse. The case can be described as one of abandonment rather than impotency. As a result, the husband's petition was denied.

Respondent’s incapacity to consent or suffering from a mental disorder [Section 12(1)(b)]

The primary legal justification for prohibiting a mentally ill person from marrying is that the individual may be unable to provide consent to marriage and understand the responsibilities of a marital relationship. When one of the following requirements is met, it can be used to annul the marriage:

· Either of the parties is not capable of giving valid consent due to mental insanity

  • Yet, if capable of giving consent, must not suffer from mental disorders of such a nature or extent that they are unfit for marriage and the procreation of children

  • Must not suffer from regular attacks of insanity.

Consent obtained by force or fraud [Section 12(1)(c)]

Section 12 (1) (c) states that a marriage is voidable if the petitioner's or guardian's consent was gained forcefully or fraudulently. After the enactment of the Child Marriage Restraint Act, the consent of the guardian is no longer required as the minimum marriageable age was set at 21 years and 18 years for bridegrooms and bride. Some important grounds of fraud:

1) Nature of ceremony,

2) Identity of the party,

3) Concealment of disease,

4) Concealment of religion or caste,

5) Concealment of a previous marriage,

6) Concealment of unchastity,

7) Concealment of illegitimacy,

8) Concealment of age

9) Petitioner’s father’s fraud,

10) The concealment of one's economic status and the type of one's work. A nullity petition must be submitted within one year after the discovery of fraud. This condition is necessary.

Pre-marriage Pregnancy [Section 12(1)(d)]

A marriage is voidable when the respondent was pregnant by someone other than the petitioner at the time of the marriage. Section 12(1)(d) should be read with Section 12(2)(b) which specifies three additional requirements which are to be satisfied to use the remedy provided under Section 12(1)(d).

They are:

(i) That the petitioner was unaware of the facts alleged at the time of the marriage;

(ii) That the petitioner initiated proceedings under Section 12 within one year of the marriage; and;

(iii) That the petitioner has not had marital intercourse with his wife with his consent since having discovered that the wife was pregnant by someone else.


The Hindu Marriage Act of 1955 has dealt with the issue of void and a voidable marriage. Before the enactment of the Hindu Marriage Act in 1955, the parties to a marriage had no remedy or recourse to get out of a marriage that was burdensome to them. The Act was adopted for social reform and owing to the dynamic character of society, and the notion of Nullity of Marriage was entrenched while religious sensitivities were kept in mind. Sections 11 and 12 of the Act now provide a remedy for those who are involved in a void or voidable marriage. A void or voidable marriage is not legally binding. A void marriage has no legal validity. The court considers such marriages to have never occurred, and no rights or responsibilities follow. It is void ab initio, which means that it does not exist from the beginning. A voidable marriage, on the other hand, is binding and lawful and continues to exist for all purposes until the court issues an annulment declaration. As a result, as long as such a decree is not obtained, the partners have all of the rights that come with the marriage's status.

[1]Paras Diwan, “The Hindu Marriage Act, 1955”, 6The International and Comparative Law Quarterly63, (1957). [2] Mulla D. F., Desai,,Hindu law 144, (LexisNexis, 21st Edition 2010) [3]The Hindu Marriage Act, 1955, s. 2. [4]The Hindu Marriage Act, 1955, s. 3. [5] D. Tolstoy, “The Validation of Void Marriages” 31The Modern Law Review 56 (1968). [6]The Hindu Marriage Act, 1955, s. 11. [7]The Hindu Marriage Act, 1955, s. 3(g). [8]R.K. Agarwal, Hindu Law 256 (Central Law Agency, 26th Edition, 2009). [9]The Hindu Marriage Act, 1955, s. 16. [10] AIR 2005 SC 80 [11]G.W. Bartholomew, “Voidable Marriages and Nullity Jurisdiction” 3JSTOR 136 (1961). [12]The Hindu Marriage Act, 1955, s. 12. [13]AIR 1975 SC 125

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