Any marriage solemnized either before or after the commencement of the Hindu Marriage Act, 1955 shall be voidable at the option of the aggrieved party and can be annulled by a decree of nullity if any of the conditions mentioned in Section 12 of the Act are satisfied. The grounds mentioned in Section 12 for the marriage to be considered as voidable are as follows:-
- Due to the impotency of the respondent, the marriage has not been consummated, or
- If either of the party to the marriage suffers from unsoundness of mind at the time of marriage, or
- The consent of the petitioner or the consent of the guardian was obtained by force or by fraud, or
- That the respondent was pregnant at the time of the marriage by some person other than the petitioner.
The brief description of the above mentioned points are as follows:-
The primary reason for a marriage is the procurement of a child and for that physical capacity is an essential requisite. Under the Hindu Law, the marriage of an impotent person, either male or female, is considered to be wholly ineffective. Impotency means inability to cohabit, either it is physically or mentally, but it should be of permanent nature and incurable. Refusal to cohabit due to psychological reasons is also considered as impotency.
- Unsoundness of mind
An essential condition for a valid marriage is that the parties to the marriage must be of sound mind. This is provided under Section 5 (2) of the Act. For a marriage to be lawful it is necessary that at the time of marriage neither party be:-
- Of unsound mind and thus incapable of giving a valid consent, or
- Suffering from mental disorder of such a kind as to be unfit for marriage and the procreation of children, or
- Subject to recurrent attacks of insanity.
It is not necessary to prove that insanity is not incurable. The only condition which is stipulated in this Section is the recurrent attacks of insanity.
Recently, in the case of Girish Dangwal v. Smt. Sushma Dangwal AIR 2009, the Court observed that mere forgetfulness cannot be treated as insanity or unsoundness of mind.
- Consent obtained by fraud or force
When consent to a marriage is obtained by fraud or by force, the marriage becomes voidable and a decree of nullity can be obtained in such case.
After the Child Marriage (Amendment) Act, 1978 came into force, the bride’s age for marriage has been changed to 18 years of age and therefore the question of consent of the guardians has become redundant.
The concealment of a fact which constitutes a material fact to marriage is also considered as fraud sufficient to avoid the marriage.
- Pregnancy at the time of marriage
The fourth ground on which the marriage can be nullified is when the respondent is pregnant at the time of the marriage and the pregnancy is by some person other than the petitioner. However, in this case it is the duty of the petitioner to show that he was not aware of the fact of pregnancy at the time of the marriage.
Under section 12 of the Act, in order to sustain the petition, the petitioner needs to prove the following:-
- At the time of marriage the wife was pregnant
- Pregnancy was by some person other than the petitioner
- The petitioner was unaware of the pregnancy at the time of the marriage
- The petition was filed within 1 year from the date of the marriage
- No marital intercourse had taken place between the husband and wife after the discovery of respondent’s pregnancy.
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