Void and Voidable Marriages Under Hindu Law
- Lets Learn Law
- Aug 21
- 7 min read
Abstract
Void and voidable marriages under the Hindu Marriage Act, 1955 have been explained by this article based on their meaning in terms of the law. Although a void marriage has been defined to be null and void, a voidable marriage is operative until such a marriage is found null and void by a court of law. This piece demystifies the landmark judicial interpretations that have shaped such provisions, from maintenance to legitimacy of children. The Hindu Marriage Act, by its wise interpretations, weighs the sanctity of marriage against the necessity of granting legal remedies for defective marriages so that justice and equity can reign in marriage cases.
Introduction
The doctrine of void and voidable marriages under the Hindu Marriage Act, 1955, is responsible for determining the legality and implications of marriage unions. The Act not only grants relief to the aggrieved parties but also dispenses with issues about maintenance, legitimacy of children, and rights of the parties in such marriages. Judicial interpretations have also shed more light on these provisions, making the system equitable and just while maintaining the dignity of marriage. This structure is indicative of the Act’s attempt to reconcile established principles with the changing realities of contemporary relationships.
Void Marriage
The term “void” refers to something that is null and has no legal validity or effect. Section 11 of the Hindu Marriage Act, 1955, defines a void marriage as “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”.1
Clause (i), (iv) and (v) of Section 5 of the Hindu Marriage Act are:
i) Neither party has a spouse living at the time of the marriage.2
iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.3
v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.4
If any of the three conditions mentioned in Section 5 of the Hindu Marriage Act, 1955 is not met, the marriage is void ab initio. Here, either of the parties can approach a court of law and seek a decree of nullity. But it must be understood that neither of the parties is under any obligation to make such a statement as it is primarily for cautionary purposes and documentation.
Consequently, a marriage will be void ab initio where the marriage is bigamous or in the degree of prohibited relationship or sapindas except where the usage or custom permits such a marriage. Section 11 does not apply to marriages that were solemnized before the coming into force of this Act, i.e., before 18th May 1955,5 although such marriages will be void.
Section 166 makes the child born as a result of the void marriage entitled to be considered a child born legitimate. Sections 25 and 267 of the Hindu Marriage Act, 1955 state that a woman, being in a void marriage, can claim maintenance or alimony permanently from her husband.
Voidable Marriage
Section 12 of the Hindu Marriage Act, 1955 provides:
1) Any marriage solemnised, 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;8
Impotency
Unsoundness of mind
Consent to marriage by force or fraud
Pregnant by some person other than the partner at the time of marriage
2) Exception for the ground of -
a) Fraud consent
The petition is submitted more than one year after the force ceased or, in the case of fraud, after its discovery.
The petitioner, with full consent, has cohabited with the other party as husband or wife after the force had stopped or, in the case of fraud, after its discovery.
b) Pregnant at the time of marriage.
That the petitioner was, at the time of the marriage, aware of the facts of pregnancy.
The petitioner consented to the marital intercourse even after discovering the ground for the petition.
A voidable marriage is valid until it is set aside by the competent court of law. The voidable marriage can be set aside only by the parties to the marriage. Section 12 of the Act will govern any marriage between two Hindus performed before or after the coming into force of the Hindu Marriage Act, 1955. All voidable marriages under this section can be annulled by a decree of nullity.
Their difference
Void Marriage | Voidable Marriage |
Void at the time of its inception and has no legal status | Remain valid until the court declares it as void |
A decree of nullity of marriage is not necessary | A decree of nullity of marriage is necessary |
Decree of nullity of marriage pronounces the legal status of the marriage | Decree of nullity of marriage alters the legal status of the marriage |
Either party may file a petition of nullity of marriage | Only the aggrieved party may file a petition of nullity of marriage |
Either party can have another marriage and won’t attract bigamy | No party can have another marriage unless the court declares the nullity of the marriage. Also, attracts bigamy if any party remarries |
Section 11 of the Hindu Marriage Act, 1955 deals with void marriages | Section 12 of the Hindu Marriage Act, 1955 deals with voidable marriages |
Marriages after the commencement of the Hindu Marriage Act, 1955 are applicable | Marriages before or after the commencement of the Hindu Marriage Act, 1955 are applicable |
Parties to void marriages are criminally liable | Parties of voidable marriages are not criminally liable |
No exceptions for void marriages | Exceptions for voidable marriages |
Conditions of void marriages are :
| Conditions of voidable marriages are :
|
Judicial Responses
Courts have always dealt with matters like maintenance, legitimacy of children, and the reasons for annulment, granting relief to the aggrieved party while protecting the sanctity of marriage.
In Sukhdev Singh v. Sukhbir Kaur,9 the Supreme Court held that a spouse whose marriage has been declared void under Section 11 of the Hindu Marriage Act, 1955 is entitled to seek permanent alimony or maintenance from the spouse.
In Margabandhu v. Kothandarama,10 the court held that illegitimate children are entitled to a share in the property of their parents only and not from ancestral property.
In Leela v. Laxmi,11 the court held that in void marriages there is no need for a decree of nullity as the court is only declaring its legal status and there is no marriage happening at all.
In Sambireddy v. Jayamma,12 it was held that Section 11 stating void marriages does not offend Article 15(1) of the Constitution.
In Suvarna v. GM. Acharya,13 the court granted the decree of nullity of marriage under the ground of impotency because the wife remained a virgin even till the date of filing the petition of nullity.
In Vinod Chand Dubey v. Aruna Dubey,14 where the husband filed a petition of nullity after 8 years of marriage on the ground of impotency of the wife with no satisfactory explanation of delay, the court ruled that there was no bar to the acceptance of the petition on the ground of delay until it is improper and incongruous.
In Paramasami v. Sornathammal,15 it was observed that a sexless person (eunuch) would be deemed to be impotent within the meaning of Section 12(1)(a) of the Act, and marriage with such a person can be declared null and void at the instance of the party.
In Nand Kishore v. Munni Bai,16 the Court held that the terms “fraud’ and ‘force’ mean those conditions in which real consent is absent.
In Som Dutt v. Raj Kumari,17 The court ruled that the marriage was subject to annulment because the wife had committed serious matrimonial fraud by concealing her true age, thereby deceiving the husband into marrying someone significantly older than him.
In Amina v Hassan Koya,18 the fact is that a child is born just four months after the marriage, and the husband gives his name to the child and continues to bring up the child for nearly four years after the child is born. The respondent contended that the child was not his, but the facts on record show that the husband was aware of the pregnancy of the wife at the time of marriage. Therefore, it was held that the marriage was not invalid.
In Nitish Kumar Biswas v. Anjali Biswas,19 the facts of the case are that a bride gave birth to a healthy child within 167 days from the date of marriage without unusual difficulty. The normal period of human gestation is about 280 days from the date of first intercourse. The court ruled that it is the wife’s responsibility to establish the child’s father being the husband even though the burden of proof rested with the husband.
Conclusion
Hindu marriages in India are legalized and regulated by the Hindu Marriage Act, 1955. To secure the sanctity of Hindu marriage and provide remedies to the aggrieved parties, it makes a distinction cautiously between void ab initio marriages and voidable marriages. The judiciary plays an important role in the administration of the framework through interpretations. Through judicial precedents and legislative measures, the act keeps Hindu marriages enforceable and offers legal remedies against injustice.
References
Hindu Marriage Act 1955, s 11
Hindu Marriage Act 1955, s 5(i)
Hindu Marriage Act 1955, s 5(iv)
Hindu Marriage Act 1955, s 5(v)
HINDU MARRIAGE ACT, 1955 (BDLR) <https://ehcr.bhc.gov.in/entities/act/2deb6926-fd67-4c40-82c8-374e12051449> accessed 25 February 2025
Hindu Marriage Act 1955, s 16
Hindu Marriage Act 1955, s 25,26
Hindu Marriage Act 1955, s 12(1)
Sukhdev Singh v. Sukhbir Kaur, 2025 INSC 197
Margabandhu v Kothandarama, 1988 (2) HLR 97 (Mad)
Leela v. Laxmi, 1968 All. LJ 683
Sambireddy v. Jayamma, AIR 1972 AP 156
Suvarna v. GM. Acharya, AIR 1979 AP 169
Vinod Chand Dubey v. Aruna Dubey, AIR 1977 Del. 24
Paramasami vs Sornathammal, AIR 1969 MAD 124
Nand Kishore v. Munni Bai, AIR 1979 M.P. 45
Som Dutt v. Raj Kumari, AIR 1986 P&H 191
Amina v Hassan Koya, 2003 (6) SCC 93
Nitish Kumar Biswas v. Anjali Biswas, AIR 1968 Cal. 105
This article is authored by Hashim AK. He was among the Top 40 performers in the Corporate Law Quiz Competition organized by Lets Learn Law.
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