Void Marriage: Void Marriage under HMA

When Marriage Void under Hindu Marriage Act, 1955, A marriage becomes void, if any of the conditions related to Section 5(1), 5(4), 5(5) of HMA is contravened. These conditions hereto are:

1. Either party Has A Spouse Living At the Time Of The Marriage
2. The Parties To the Marriage Fall within The Degrees Of Prohibited Relationship
3. The Parties Are Sapindas Of each Other.

Where one of the Parties to the marriage is not a Hindu, though this marriage is Void, it has to be proved that no Shudhikaran ceremony took place before the solemnization of the marriage. The strong presumption favours the Shudhikaram ceremony, which took place when the priest solemnized the marriage as per Hindu Rites.

Effect of Void Marriage: Where a Marriage is void owing to a contravention of any of the conditions mentioned above, it is void ab initio (Void from the beginning). It would be akin to marriage not being ceremonies at all. No formal decree is required in such a condition. However, it is deemed essential to avoid future litigation. As with any litigation in the Hindu Marriage Act, it can only be started by a party to the marriage and not otherwise. The husband is also under no obligation whatsoever to pay any maintenance etc, if the marriage is void u/s 125 CrPC; however, at the time of passing of the decree of nullity, the court can award alimony u/s 25 of HMA. Also, the so-called wife would not be able to succeed in the man’s property. The same is true even though the said fact was declared or concealed.

Bigamy is one of the instances of void marriage. No matter which party to the marriage had a spouse living at the time of marriage, the other party cannot grant the status of a legally wedded spouse. A person who is fighting divorce or who has some notary divorce or customary divorce, when such custom is not established, cannot be said to be in a legal marriage. Courts have held the same view when the spouse was not heard for many years and even beyond seven years and was presumed dead unless the party had obtained a divorce on this ground. The woman’s state in such a marriage is nothing more than a mistress in the eyes of the law. However, it needs to be proved that there was an already subsisting marriage at the time of the solemnization of the second marriage. And the party who alleges it has to prove it. Bigamy is also a punishable offence u/s 494 (Bigamy: Marrying again during lifetime of husband or wife: Proposed Section 81 of The Bharatiya Nyaya Sanhita, 2023) and 495 of IPC. But that is not the point of this article. Also, change in religion does not dissolve the first marriage. Despite some examples of legendary people marrying by changing religion and not punishing, this can not be termed legal. The reason why they were never punished lies in the caveat that only a party aggrieved by the bigamy can file a case against it. An interesting question has often been raised: Can someone obtain an injunction against their spouse, restraining them from contracting another marriage? Such a question is mainly asked by people whose spouse is living in a foreign country. The Hindu Marriage Act does not provide any such relief; it was recently unheard of. However, courts have started granting perpetual injunctions under the Code of Civil Procedure, 1908. To date, all decisions I have seen are against the husband from getting married again during her lifetime without obtaining a divorce from a competent Indian Court.

Similarly, courts have granted relief by declaring the subsequent marriage void at the instance of the first wife, but that is more an aberration than a rule.

Marriage within Prohibited Degree of Relationship and Sapinda Relationship: The Hindu Marriage Act defines the meaning of Prohibited Degree of Relationship and Sapinda Relationship. However, the same is allowed depending on whether customs and usage permit such marriages. When a custom is relied upon, it must be a valid custom, unbroken in the community. The test is that the same custom should govern both spouses. In some communities of South India, marriage with a maternal uncle is allowed. Also, in some communities which have migrated from Pakistan, marrying close relatives is allowed. However, when such custom is not followed for generations in a particular family, the custom is lost.

Distinction Between Void and Voidable Marriage: The most significant difference is that a Void Marriage is void-ab-initiation, and no decree of nullity is required to end it. However, avoidable marriage is valid unless declared invalid by a competent court. A void marriage can be declared Void even after the spouse’s death, whereas a voidable marriage can be declared void during the lifetime of the spouses of such marriage. The children of Void marriage were treated as legitimate and illegitimate from Voidable marriage. However, this distinction has been deleted by the Supreme Court’s observation that children cannot be branded as illegitimate. A marriage which is void-ab-initiation can be declared void at any stage, and the length of the marriage is immaterial; however, for Voidable Marriage, the same has to be presented in a reasonable time by the Hindu Marriage Act or as laid down by precedents of the Higher Courts.