Source: Allahabad High Court

Why in News?

Recently, the Allahabad High Court in the matter of Km. Ankita Devi v. Shri Jagdependra Singh @ Kanhaiya, has highlighted the difference between void and voidable marriage and held that Section 11 of the Hindu Marriage Act, 1955 (HMA) cannot be judged on grounds other than those mentioned in Section 11.

What is the Background of Km. Ankita Devi v. Shri Jagdependra Singh @ Kanhaiya Case?

• In this case, the appellant (wife) had filed a matrimonial petition before the Family Court under Section 12 of HMA however, vide amendment, Section 12 was replaced with Section 11 of HMA.
• It was contended by the appellant that the marriage was an outcome of fraud and the petition under Section 11 was liable to be allowed.
• Whereas the respondent (husband) contended that the marriage had taken place in a simple ceremony and thereafter the marriage was registered by the appellant.
• The Family Court dismissed the petition filed under Section 11 of HMA.
• Thereafter, the appellant filed an appeal before the Allahabad High Court which was later dismissed by the Court.

What were the Court’s Observations?

• The bench comprising Justices Vivek Kumar Birla and Donadi Ramesh observed that a void marriage is regarded as non-existent or as never having taken place and such declaration that the marriage is void ab initio can be sought under Section 11 HMA on the grounds as provided therein whereas a voidable marriage is regarded as valid and subsisting unless a competent Court annuls it until the decree of nullity is obtained in accordance with the HMA.
• The Court further held that grounds under Section 11 of HMA are very different from grounds under Section 12 of HMA and thus, a petition filed under Section 11 of the Act cannot be judged on grounds other than those mentioned in Section 11.

What are the Relevant Legal Provisions Involved in it?

Section 11 of HMA

About:

• Section 11 of HMA deals with the provision of Void Marriages.
• This section does not define void marriages but gives the grounds on which a marriage can be called void.
• It states that 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.

Grounds:

• Under HMA any marriage is void if it does not fulfill the conditions mentioned under section 5 clause (i), (iv) and (v).
  • Under Clause (i) of Section 5 neither party has a spouse living at the time of the marriage.
  • Under Clause (iv) of Section 5 the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits a marriage between the two.
  • Under Clause (v) of Section 5 the parties are not sapindas of each other, unless the custom or usage governing each of them permits a marriage between the two.

Effect:

• The parties don’t have the position of husband and wife in a void marriage.
• Children born from a void marriage are legitimate according to Section16 of HMA.

Section 12 of HMA

About:

• Section 12 of HMA envisages provision for voidable marriage as:
  • A voidable marriage is a valid marriage until it is avoided, and it can only be done if one of the parties to the marriage files a petition for the same.
  • However, in case any of the parties do not file a petition for the annulment of the marriage, it will remain valid.

Grounds:

• Clause (ii) of Section 5 of HMA if not complied with, makes a marriage voidable.
  • As per Section 5 - (ii) at the time of the marriage, neither party —

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind;

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity.

• Section12 further mentions following grounds on which marriage can be declare as voidable:
  • If the marriage has not been consummated because of impotency of the respondent.
  • If either of the parties to the marriage is incapable of giving consent or has been subject to recurrent attacks of insanity.
  • If the consent of the petitioner or the consent of the guardian of the petitioner has been obtained by force or fraud.
  • If the respondent was pregnant before the marriage by some other person than the petitioner.

Effect:

• The parties have the status of a husband and a wife, and their children are considered to be legitimate by virtue of Section 16 of HMA. All the other rights and obligations of the spouses remain intact.