VOID AND VOIDABLE MARRIAGE

divorce, child custody, custody

INTRODUCTION

Marriage is a sacrament and the most preliminary thing for generating a family. But many a time it happens that the marriage turned out to be immoral. For instance, if the consent for the marriage is received by fraud or by misrepresentation then that marriage is an immoral marriage that can be more legally termed into the void and a voidable marriage.

WHAT IS A VOID MARRIAGE?

The word void in general meaning can be made synonyms with the word “illegal”. In a void marriage, the parties to the marriage have no legal right to be as husband and wife. Hence the right and obligation arising out of marriage will not be present in a marriage that is not valid and void.

Section 11 of the Hindu marriage act, 1955 contains certain condition where the marriage will be a void marriage and further it states that[i] if a marriage does not fulfill the condition set out in clause (i),(iv), and (v) of section 5 then it will be a void marriage.

Clause (i) of section 5-

Clause (i) of section 5 of the Hindu marriage act, 1955 talks about bigamy. In India, for Hindu bigamous marriage is not allowed. It means having two living spouses at a time. Section 494 of IPC also talks about bigamy and it even goes to an extent of even prescribing punishment for the same.

Clause (IV) of section 5-

Clause (IV) of section 5 of the Hindu marriage act, 1955 gives validity to a marriage if the marriage is not within the degree of prohibited relationship. in certain cases a marriage within a degree of prohibited relationship is a valid marriage if it is allowed by custom or usage.

Clause (v) of section 5-

Clause (v) of section 5 of the Hindu marriage acts 1955 talks about sapindas and restrain the marriage within sapindas. Here also if the marriage is within sapinda will be a valid marriage if it is allowed by custom unless it will be a void marriage.

WHAT IS A VOIDABLE MARRIAGE?

A voidable marriage is a marriage that is valid until a petition with regard to rescinding the marriage is made. The parties to such a marriage have the full authority to decide whether they want to rescind the marriage or not.

GROUNDS UNDER WHICH A MARRIAGE CAN BE DECLARED AS VOIDABLE MARRIAGE ARE:

  1. Non-consummation of marriage due to impotency.
  2. If the marriage is violative of clause (ii) of section 5.
  • If the consent of a party to marriage or guardian of the party to the marriage is obtained force or fraud.
  1. If the wife at the time of marriage is pregnant and carrying a child in her womb of some other person.

CLAUSE (II) OF SECTION 5-

Clause (ii) of section 5 makes a marriage voidable when read with section 12 which states about voidable marriage. According to clause (ii) of section 5, at the time of marriage, either of the party must not be:-

  1. Because of unsoundness of mind is incapable of giving valid consent.
  2. Even if capable of giving valid consent, but is suffering from such mental disorder as to unfit for marriage as well as procreation of children.
  • If the parties to the marriage are subjected to the recurrent attack of insanity.

If these conditions are not fulfilled the marriage will be voidable.

CONDITION FOR FILING OF PETITION, IN CASE THE MARRIAGE IS VOIDABLE:

Section 12 also talks about the certain conditions on which the petition can be filed. It states that-

  • A petition can be filed in the jurisdiction of the court only within one year of discovery of those force or fraud.
  • The petitioner must have stopped living with his/her spouse immediately after the discovery of force or fraud.
  • The petitioner must be ignorant about the fraud at the time of marriage.
  • Marital intercourse must not have taken place after the discovery of the force or fraud.

Only if this condition is fulfilled, the petitioner can file for rescinding the marriage under voidable marriage.

CONCLUSION:

Hence, a marriage which is not valid may be void or voidable marriage. ”. In a void marriage, the parties to the marriage have no legal right to be as husband and wife. Hence the right and obligation arising out of marriage will not be present in a marriage that is not valid and void. On the other hand, a voidable marriage is a marriage that is valid until a petition with regard to rescinding the marriage is made.

[i] prof. kusum ,family law I,16-17(5th edi)

 

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