VOIDABLE MARRIAGE: -(SECTION 12)
A voidable marriage is a perfectly valid marriage so long as it is not avoided.
A voidable marriage can be avoided only on the petition of one of the parties to the marriage. The marriage will remain valid for ever. So long as it is not avoided
If one of the parties does not petition for annulment of marriage, the marriage will remain valid. If one of the parties dies before the marriage is annulled, no one can challenge the marriage.
All the legal consequences of a valid marriage flow from it. It confers a status of husband and wife on the parties, the children are legitimate, and all mutual rights and obligations of the marriage arise from it.
Once a voidable marriage is annulled, the decree is given with retrospective effect, from the date of the marriage. The marriage is deemed to have been void for all purposes from its inception and parties are deemed to have never been husband and wife and children are deemed to have been illegitimate.
GROUNDS OF VOIDABLE MARRIAGES
Section 12, Hindu Marriage Act, lays down four grounds of voidable marriages which are available in respect to both the pre-Act and the post-Act marriages.
These grounds are:
1. Inability of the respondent to consummate the marriage on account of his or her impotency.
2. Respondent's incapacity to consent or her/his suffering from a mental disorder.
3. Concealment of pre-marriage pregnancy by the respondent.
4. Consent of the petitioner being obtained by fraud or force.
IMPOTENCY TO CONSUMMATE
Impotency refers to incapacity to consummate the marriage i.e., incapacity to have marital intercourse which is one of the objects of every marriage. Impotency referred to in S. 12 does not signify sterility or incapacity of conception; what is referred to is incapacity to have sexual intercourse.
DIGVIJAY SINGH V. PRATAP KAUR, A.I.R. 1970 S.C. 137
The Supreme Court has observed that a person is impotent if his (or her) physical or mental condition makes, consummation of the marriage a practical impossibility
ELIZABETH V. STANLEY, A.I.R. 1985 A.P. 238
In a case before the Andhra Pradesh High Court, a petition for divorce was filed by the wife on the ground of the husband's impotency. It was shown that the spouses had slept together for four nights, and thereafter lived together for four months, but the husband could not have sexual intercourse with his wife.
The Court held that such evidence would lead to the inference that he was impotent, i.e., incapable of having sexual intercourse, and the burden would be on him to rebut such an inference
UNSOUNDNESS OF MIND, MENTAL DISORDER OR INSANITY
This ground has already been discussed at length under Sec.5 of the Act.
CONCEALMENT OF PRE-MARRIAGE PREGNANCY
Concealment of pre-marriage pregnancy by the respondent is a ground of voidable marriage. The ground is pre-marriage pregnancy of the bride and not her unchastity.
The requirements of this ground are:
a. the respondent was pregnant at the time of the marriage,
b. she was pregnant from a person other than the petitioner,
c. the petitioner, at the time of the marriage, did not know of the respondent’s pregnancy,
d. the petition must be presented within one year of the commencement of the Act in respect of the pre-Act marriages, and within one year of the marriage in respect of post-Act marriages, and
e. marital intercourse did not take place with the consent of the petitioner after the discovery of respondent’s pregnancy by the petitioner.
A decree can be passed only when all these conditions are fulfilled.
PAWAN KUMAR V. MUKESH KUMAR, 2001 RAJ
The wife was pregnant by some other person and the marriage had broken immediately, though petition was filed belatedly. The fact of pre-marriage pregnancy by other person itself was held in the causing of cruelty and mental agony, therefore the application was converted into decree of divorce
CONSENT BEING OBTAINED BY FRAUD OR FORCE:
The original clause (c) of Section 12(1) laid down that if the consent of the petitioner, or the consent of the guardian whenever necessary was obtained by fraud or force, then the marriage was voidable.
The requirements of this ground are:
a. consent of the petitioner was obtained by fraud or force,
b. the petition must be presented within one year of the discovery of fraud or cessation of force, and
c. the petitioner must not have with his or her consent lived with the respondent as husband or wife, as the case may be, after the discovery of fraud or cessation of force. A single act of sexual intercourse after the discovery of the fraud will be fatal to the petition
BALBIR KAUR V. MAGHAR SINGH, A.I.R. 1984 PUN. & HAR. 417
In this case before the High Court of Punjab and Haryana, a material physical deformity of the wife {viz., that her left hand was partially disabled because of polio in childhood) was not disclosed to the husband and his family before the marriage. The Court held that, in such a case, it can be said that the husband’s consent was taken by fraud. He was, therefore, entitled to a decree of nullity
The following things may be deemed to be fraud under this head, namely; -
1. Concealment of disease or deformity,
2. Mistake as to ceremony of marriage or identity of party to the marriage,
3. Concealment of religion or caste.
4. Concealment of unchastity, illegitimacy, pre-marriage or age of the party to the marriage
BIMLA V. SHANKER LAL
A misrepresentation as to caste was held sufficient to entitle the petitioner to get the marriage annulled. It is submitted that when we are promoting inter-caste marriages, i.e„ marriages between any two Hindus are allowed, concealment of one’s caste should not be considered as material fact or circumstance about the respondent.
DISTINCTION BETWEEN VOID AND VOIDABLE MARRIAGES
A void marriage is void ab initio. It does not alter the status of the parties; they do not become husband and wife; and it does not give rise to mutual rights and obligations of the parties. On the other hand, a voidable marriage remains valid and binding, and continues to subsist for all purposes unless a decree annuls it.
A void marriage being no-marriage, the court merely passes a decree declaring the marriage as void, while a voidable marriage is annulled by the decree of the court.
It is not necessary that a decree declaring a void marriage as void is passed. But a voidable marriage will remain a valid marriage till a decree annulling it is passed.
The parties to a void marriage may perform another marriage without getting a decree declaring their marriage as void and neither will be guilty of bigamy.
RIGHT TO INTERIM MAINTENANCE AND PERMANENT ALIMONY UNDER SEC.24 & 25 OF THE ACT
A marriage which is valid at one time but annulled later being solemnized in violation of certain conditions of sec.5 or on other grounds under sec.11 or 12 of the Act, has effects of a valid marriage for some purposes.
First is, the children born out of such marriage recognized as legitimate and they are entitled to claim share in their parent’s property as legal heir.
Second effect is that the wife is entitled to claim for interim maintenance under Sec.24 and for permanent maintenance under sec.25 of the Act.
It is clear from the terms “any proceedings under this Act” under sec.24 and the term “the court exercising jurisdiction under this Act, and the term “at the time of passing any decree” under Sec.25 of the Act that if a marriage is declared void or voidable under section 11 or 12 of the act, the wife or husband as the case may be, can claim for relief under Sec.24 & 25 of the Act.
This rule is confirmed by various High Courts and the Supreme Court in many cases.
YOGESHWAR V. JYOTI. 1981 DEL 99;
SARABJIT SINGH V. CHARANJIT SINGH, 1997 P&H 66.
An order for interim maintenance of the applicant and children and for the expenses of the proceedings can be made in any proceedings in any matrimonial cause, viz., nullity of marriage, judicial separation, divorce or restitution of conjugal rights, and even in proceedings for permanent alimony and maintenance under Section 25.
SUSHILA CHHADUA V. VIRESH, (1996) 1 MAH. L. J. 288)
The Bombay High Court has observed that the fact that there is a strong possibility of the marriage being declared a nullity is no ground for denying interim maintenance and expenses of the litigation to the spouse claiming the same.
RAMESHCHANDRA RAMPRATAPJI DAGA VS RAMESHWARI RAMESHCHANDRA DAGA, AIR 2005
The Apex Court held that the expression used in the opening part of sec.25 enabling the 'Court exercising jurisdiction under the Act' 'at the time of passing any decree or at any time subsequent thereto' to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under sec.10 or divorce under sec.13.
When the legislature has used such wide expression as 'at the time of passing of any decree,' it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under sec.9 judicial separation under section 10, declaring marriage as null and void under sec.11 annulment of marriage as voidable under sec.12 and Divorce under section 13.
Section 25 is an enabling provision. It empowers the Court in a matrimonial case to consider facts and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance.
The Supreme Court has held that a bigamous marriage may be illegal in law, it cannot be held to be immoral for as to deny maintenance to an affected spouse financially weak and economically dependent. As per the apex court’s ruling, an ‘illegal’ wife is entitled to alimony.
Thus, the spouse of a null and void union, entered into during the pendency of an earlier marriage is entitled to maintenance on the passing of a decree of nullity.
