Nullity of Marriage in
India
Marriage is an
agreement to be united to a person of the opposite sex as a wife or a husband
in a legal, consensual, and contractual relationship recognized and sanctioned,
and dissolvable only by law. Marriage is a state of being accepted and
acknowledged by society and religion, between a man and a woman, who are termed
husband and wife, respectively. Marriage is also referred as a contract between
man and woman to live life together as husband and wife, marriage is a religious
sacrament. In India, a marriage is a legal status under different personal
laws, followed in India, like Hindu Marriage Act, Muslim Personal Law (Shariat)
Application Act, 1937, 1955, Indian Christian Marriage Act, 1872, Parsi
Marriage and Divorce Act, 1936, and Special Marriage Act 1954.
Nullity of Marriage
Nullity, in general,
means an act that is legally void in nature. In case of a marriage, it means a
legal statement by the family court that there was the marriage didn’t exist
between two people, and marriage was not valid. The declaration makes it clear
that the marriage never took place.
Difference Between
Nullity of Marriage, Divorce and Judicial Separation
Though nullity,
divorce and judicial separation are ways to end a marriage, but they are not
similar. There are differences between these three.
Nullity of Marriage
As mentioned, the
nullity of marriage is a legal declaration that marriage was not in existence.
It points out the validity of marriage according to law it was performed. This
means that there was not a valid marriage has performed between the parties;
either the parties or the circumstance is not valid by the law.
Divorce
A divorce is a formal
ending of a marriage. It is a legal declaration on the petition by the parties
of the marriage, that led to an end of a valid marriage. Under a divorce, the
validity of the marriage is not questioned, but it questions the continuation
of marriage. If successful, it ends a valid marriage. A divorce is more
permanent than nullity and judicial separation.
Judicial Separation
A judicial separation
is declared legally on request of the parties that they must be allowed living
separately under the status of marriage. It is not an end of a marriage;
neither it questions the validity of the marriage. Under Judicial separation,
duties and liabilities remain the same for both the parties.
Nullity of Marriage
Under Different Personal Laws in India
Under Hindu law
Hindu laws are based
upon two sources ancient sources and modern sources. The ancient sources are
Shruti, Smriti, Digests and Commentaries, and Customs. The modern sources are
Justice, Equity, and Good Conscience, Precedent, and Legislation.
The marriage,
according to Smrities, is an essential sanskar. Smriti says it is a must duty
to everyone to perform. Earlier marriage was undissolvable, and it was
necessary to perform religious and spiritual responsibility. Before the
parliamentary enactment, there was no concept of the ending a marriage or
nullity of marriage under Hindu personal law, as it was treated as holy wedlock
for the whole life.
After application of
the Hindu Marriage Act, 1955, now there are certain grounds on which marriage
shall be declared null and void. These grounds are mentioned under Section 5,
clause (i), (iv) and (v), The Hindu Marriage Act, 1955. These grounds are as
follow:
- In case any of the party has a
living spouse at the time of marriage
- At the time of the marriage:
- None of the party should be
incapable of giving a valid consent to it in consequence of unsoundness
of mind;
- Though capable of giving valid
consent, neither party has been suffering from any kind of mental
disorder or to any extent be unfit for marriage and the procreation of
children.
- Neither of the party has been
subject to recurrent attacks of insanity
- The bridegroom has completed
the 21 years of age and the bride must have completed the age of 18 at the
time of the marriage.
- Both the parties should not
fall within the degrees of any prohibited relationship under the Hindu law
unless the custom or usage governing each of them allows marriage between
the parties.
- Both the parties should not
belong to same sapindas unless the custom or usage governing each of them
allows marriage between the parties.
- Sagotra marriage is valid under
the Hindu Marriage Act, 1955
Termed as voidable
marriages, few marriages are also valid till declared null and void. A voidable
marriage is annulled by the decree of nullity under section 12 of the Hindu
Marriage Act, 1955. Under voidable marriages, it is the complete discretion of the
parties to continue with marriage or to annul marriage by a decree of the
court.
The grounds for
voidable marriage are:
- In case the respondent is
impotent
- In case of incapacity to give
valid consent or forced consent of parties or mental illness or person
unfit for procreation of a child
- Underaged marriage
- If the respondent was pregnant
by some other person at the time of marriage.
Nullity of Marriage
Under Muslim Personal Law
Under Muslim Personal
Law (Shariat) Application Act, 1937, a marriage is a dissoluble contract
between two parties of the opposite sex. A contract, where valid consent of
both the parties is required, and ‘Mehar’ is also decided. Therefore
dissolution of marriage is also permitted in both the Shias and Sunnis. Without
a valid consent by the parties or their guardian, a marriage is void, according
to the Dissolution of Muslim Marriage Act, 1939. These are the following
grounds for dissolution of marriage under Muslim Personal Law:
- Interreligious marriage to a
woman who does not have religious status (a Muslim male also cannot marry
a female who does not follow Islam)
- Marriage between milk relation
or ‘Maharam’ close blood relatives
- Marriage with a person who
renounces Islam or not having faith in Islam
- In Sunnis conditional or interim
marriage is void
- Marriage to a woman in her
Iddat period
- In case the conditions of
marriage are against Islam
Nullity of Marriage
Under Christian Law in India
Christianity also does
not allow a separation. Hence, marriage is indissoluble and holy wedlock that
makes it a public religious ceremony. Therefore, it is difficult to grant a
nullity of marriage. However, for the sake of the development of society and to
save the Indian Christians from discrimination, there is separate marital law
Indian Christian Marriage Act, 1872. The act was enacted and for their divorce.
Indian Christians also follow the Indian Divorce Act, 1869, for nullity of
marriage.
In the year 2001, The
Indian Divorce Act 1869 was amended and the grounds for nullity of a marriage
under the act are:
- In case the respondent was
impotent at the time of marriage and also at the time of institution of
the suit.
- Bigamy: Either of the party has
living husband or wife at the time of marriage and that marriage is in
force
- Marriage between the persons
within the prohibited degree of consanguinity or affinity
- Either party was lunatic at the
time of marriage.
Nullity of Marriage
Under Parsi Marriage and Divorce Act, 1936
The Parsi community in
India follows there separate act for marital laws. According to Section 30 of
the act, in any case, in which consummation of the marriage by natural causes
is impossible, such marriage may, at the instance of either party thereto, be
declared to be null and void.
Nullity of Marriage
Under Special Marriage Act, 1954
According to Section
24 of the Special Marriage Act, 1954 on the petition of either of the party, a
marriage can be declared null and void by the decree of nullity. Following are
the grounds for it:
- Either party has a living
spouse
- Either party was incapable of
giving valid consent due to unsoundness of mind or mental illness or unfit
to the procreation of children
- Parties are under aged
- Parties are in a relation of a
prohibited degree
- Impotency of respondent
Other Grounds to
Declare Voidable Marriage Null and Void Under Special Marriage Act, 1954
- Due to willful refusal of the
respondent, marriage not been consummated
- Pregnancy of the respondent by
some other person at the time of marriage
- Consent of any of the party was
gained by fraud or coercion as defined in the Indian Contract Act, 1872
Procedure to Obtaining
Decree of Nullity of Marriage
The procedure of
obtaining a decree of the Nullity of Marriage under all personal laws in India
is almost similar.
- The petition should be
presented before the court (Concerned courts under different personal
laws: Under the Hindu Marriage Act, 1955 and Special Marriage Act, 1954
Family court or city civil court decides the matter. Under the Muslim law,
matter does not decide by the court but matter decided by the religious
practice (Under the Parsi law court means the court established under the
act).
- The jurisdiction of the
concerned court will decide where the defendant or respondent resides.
- The court issue notice to the
respondent or defendant to give a reply before the court.
- Court grants relief
accordingly, after hearing and evidence.
Maintenance Under of
Nullity of Marriage
Acting upon the
petition submitted, when the court declares nullity of a marriage, it also
decides the maintenance to be given to the opposite party, either in a lump sum
amount, or yearly or monthly.
Legitimacy of Children
Born Out of Null Marriage
According to Section
16 of the Hindu Marriage Act, 1955 grants legitimacy for the children born out
of a void marriage. This particular section protects the children born out of
void marriages and prevents them from being bastardised.
