According to Section 11 of the Hindu marriage Act, a void marriage means which is void since its beginning or inception. In other words, it does not exist. It is called as a marriage because two persons have undergone the ceremonies required to perform a marriage, and thus become husband and wife. For example: If a Brother and Sister perform all the requisite ceremonies required to constitute a marriage, then they will be Husband and Wife. But such a marriage is not allowed as a brother and a sister cannot marry each other. So, this marriage would be considered as VOID-Ab-Initio. When a Void marriage is done, no decree of court is necessary to declare it as void. In some cases, if one of the party files a suit for such declaration, the court merely declares the fact that marriage is null and void. It is an existing fact that the marriage is void and the court by passing a decree make a judicial declaration of such fact.
The grounds on which marriage can be declared void are as follows:
1. If at the time of the marriage, either of the party has a spouse living, then that would become a bigamous marriage and such a marriage is void. For example, if a Husband marries to a girl without having a decree of divorce from the first wife, thus the subsequent marriage shall be considered as void since beginning.
2. If the parties are sapindas to each other then according to the law such marriage are unlawful and thus void since beginning.
3. If the parties are within the prohibited degree of relationship, it is considered as void.
4. If the ceremonies of the marriage are not performed properly, then also it can become as a ground of a void marriage as strict observation is made regarding to the ceremonies.
5. If the marriage is in violation of Section 15 of the Hindu Marriage Act, then also it would become as void.
VOIDABLE MARRIAGE: According to Section 12 of the Hindu Marriage Act, there are four grounds of voidable marriage which are available in respect to both the pre act and post act marriage. Such grounds are as follows: –
1. Inability of the respondent to consummate the marriage on the account of his or her impotency
2. if the respondent is not in his mental capacity and is of unsound mind then he cannot give a consent to the marriage as he is not in his senses while giving consent to such a marriage
3. Concealment of the pre- marriage pregnancy by the respondent is the ground for the voidable marriage.
The ground is pre marriage pregnancy of the bride and not her unchastity. The requirements of this ground are as follows :-
• Respondent was pregnant at the time of the marriage. • She was pregnant from the person other than the petitioner
• The petitioner at the time if the marriage didn’t know about such pregnancy
• The petition must be represented within one year of the commencement of the act in respect of the pre act marriage and within one year of marriage in respect of the post marriage
• Marital intercourse did not take place with the consent of the petitioner after the discovery of the respondent’s pregnancy by the petitioner.
4. Consent of the petitioner being obtained by the fraud and force, then it would amount to a voidable marriage. If the consent of the person is not given to a particular marriage according to his/her consent or against the will of the person or by fraud or forcefully then it can be taken up as a ground for the divorce.
DIFFERENCE BETWEEN VOID AND VOIDABLE MARRIAGE:
A void marriage is void-ab-initio. It does not alter the status of the parties as they do not become husband and wife and also it does not lead to rise to any of the 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 only annulled by the decree of the court. It is not necessary that the decree declaring a void marriage as void is passed. But a voidable marriage remains a valid marriage until a decree annulling it is passed. The parties to the void marriage may perform another marriage without a decree declaring their marriage as a void and neither will be guilty of bigamy.
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