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Annulment of Marriage:

Valid, Void and Voidable Marriage

under Hindu Marriage Act, 1955

SECTION 11- 12 READ WITH SECTION 5, 16,

17, 18, Hindu Marriage Act, 1955

Annulment of marriage  (^) What is Annulment of Marriage or Nullity of Marriage?  “The process of declaring a marriage - which suffers from a legal defect - as null and void.”

VALID MARRIAGE  (^) A marriage solemnized and complying with all the conditions of Section 5.  (^) 5 conditions  (^) Solemnization (Performance of Ceremonies)  (^) Effects of a valid marriage:  (^) Parties have Status of Husband and Wife and mutual rights and obligations including inheritance rights.  (^) Children are legitimate and inheritance rights over parental and grandparents property.  (^) Dissolution of marriage only by divorce or death.

VOID MARRIAGE  Provided in Section 11, HMA, 1955  (^) Any marriage solemnized after the commencement of this Act shall be null and void 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 conditions specified in clauses (i), (iv) and (v) of section 5.

Marriage void ab initio  (^) A void marriage is void an initio- null and void from the very beginning.  (^) No need to get declared null and void from court of law.  (^) But if parties so want may get a decree of nullity.  (^) Optional. May obtain decree for the sake of record-to avoid subsequent complications- a mere declaration by court as to nullity.  (^) Ancillary reliefs can be given in nullity proceedings- spousal maintenance/custody of children.  (^) Why called marriage?- because two Hindus solemnized marriage with proper ceremonies.  (^) If no proper ceremonies are performed? – NO MARRIAGE AT ALL. (Neither valid, nor void, nor voidable- as no solemnization).

Effects of Void Marriage  (^) No Legal Effects/Consequences.  (^) No status of husband and Wife-  (^) no mutual rights/liabilities between husband and wife.  (^) No inheritance rights.  (^) Parties free to marry elsewhere.  (^) But children are legitimate. (By virtue of S. 16, HMA, 1955-  (^) Statutory Legitimacy conferred.  (^) Children only entitled to inheritance over parental property (self-acquired or ancestral share) and not from the property of Grandparents or other relatives.

GROUNDS FOR VOID MARRIAGE  (^) Violation of Section 5 Clause (i), (iv) and (v)

 Bigamy

 Marriage between persons within degree of

prohibited relationships

 Marriage between persons related to each other

by sapinda relationships

VOIDABLE MARRIAGE

Section 12- Voidable Marriage

(1) Any marriage solemnized,

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 grounds, namely:-

(2) Notwithstanding anything contained in sub- section (1), no petition for annulling a marriage- (a) on the ground specified in clause ( c ) of sub- section (1) (ground-consent obtained by fraud or force) 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;

no petition for annulling a marriage- (b) on the ground specified in clause (d) of sub-section (1) (ground-pre-marriage pregnancy) shall be entertained unless the court is satisfied- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place ‘ since the discovery by the petitioner’ of the existence of the said ground.

Retrospective Effect of Section 12  Use of words “any marriage solemnized whether  (^) “before or after the commencement of this Act” shall be voidable…  (^) Applies to both Pre- Act and Post- Act Marriages- such marriages can be declared null and void under S. 12 on the grounds mentioned.  (^) Distinct from Void Marriage – S. 11 - prospective effect.

Legal Effects of Voidable Marriage  (^) Valid until declared formally as annulled by court on petition of party.  (^) Effects before declaration as nullity- All consequences of a valid marriage.  (^) Valid –parties have status of husband and wife - Cannot marry elsewhere unless the marriage is declared null and void- if marry- would attract bigamy.  (^) Before declaration- Children legitimate and inheritance rights from parents and other relatives (before declaration as nullity).  (^) Effects after Declaration as Nullity -  (^) After declaration as Nullity – Children legitimate (by virtue of S. 16, HMA- statutory legitimacy) but only inherit property from their parents and not other relatives.

 (^) Impotency may arise due -  (^) Physical defects (Physical Impotency) –  (^) Inability to perform sexual intercourse due to some physical defects  (^) like structural defects in sexual organs, lack of sexual organs,  (^) incapacity to have an intercourse in a normal way.  (^) Psychological barriers (Psychological impotency)  (^) Emotional, psychological or moral repugnance or aversion to sexual act amounts to psychological impotency.  (^) Shantabai v. Tarachand (AIR 1966 MP 9)- Wife had normal sexual organs but she had an absolute repugnance (intense disgust) towards sexual intercourse. Held that it amounted to impotency.

 Absence of uterus does not amount to impotency.

 Mere inability to beget children (Barrenness,) does

not amount to impotency or the incapacity of a

husband to father a child does not amount to

impotency.

 Shewanti v. Bhaura (AIR 1971 MP 168)-Wife was

sterile (incapable of begetting children) but she was

capable of having sexual intercourse. Held – she

was not impotent. Nullity of marriage denied.

 Absence of female organ or male organ amounts to

impotency as it makes consummation of marriage

an impossibility.

 Sexual dissatisfaction shall not amount to