Introduction

The term nullity of marriage is a declaration by the court that your supposed marriage is null and void, and there is no valid marriage between you and your spouse.

Nullity of Marriage

• About
  • Nullity of marriage is a judicial declaration that marriage is not in existence. It refers to the validity of marriage according to Hindu Personal laws.
  • It means that a valid marriage has not been performed between the parties.
• Nullity & Divorce
  • One thing to be noted here is that nullity is not the same thing as divorce.
  • Divorce is the declaration of ending a valid marriage. But on the other hand, nullity is a declaration that a valid marriage never existed.
• Nullity & Annulment
  • Annulment is a legal procedure for declaring a marriage null and void.
  • In strict legal terminology, annulment refers only to making a voidable marriage null.
  • If the marriage is void ab initio (void from the beginning), then it is automatically null, although a legal declaration of nullity is required to establish this.

Concept of Nullity Under Void and Voidable Marriage

• The law of nullity talks about two types of marriages that may be cancelled. These are known as void marriage and voidable marriage
• Voidable marriage is annulled by the decree whereas void marriage does not require any formality to terminate the marriage.

Grounds for Declaring a Marriage Null and Void

Void marriage

• A marriage that is declared automatically void and is automatically annulled when it is prohibited by Hindu Personal law is known as a void marriage.
• Section 11 of the Hindu Marriage Act, 1955 (HMA) deals with the void marriages. It states that -
  • A marriage which has been solemnized after the commencement of the HMA shall be null and void, on a petition filed by either one of the grieved party, against the other party.
  • And it shall be declared as null and void by a decree of nullity if it contravenes the conditions specified in clauses (i), (iv) and (v) of Section 5 as stated in the HMA.
    • 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.

Voidable Marriage

• A marriage which can be annulled or avoided at the option of one or both the parties is known as voidable marriages.
• A voidable marriage remains valid and binding and continues to subsist for all purposes, unless a decree is passed by the court annulling the same on any of the grounds mentioned in Section 12 of HMA.

A voidable Marriage may be Annulled by a Decree of Nullity on the Following Grounds:

• Due to Impotency of the Respondent Under Section 12(1)(a):
  • The SC in the case of Digvijay Singh v. Partap Kumari (1970), has given the legal meaning of impotency as a physical or mental condition which makes consummation of marriage a practical impossibility.
  • Exceptions:
    • If it can be cured by medical treatment or surgery, it would not amount to impotency.
  • Unsoundness of Mind Under Section 5(2):
    • The HMA still does not say that a valid consent is necessary for marriage but a marriage which is in contravention of section 5(2) is voidable under section 12(I)(b).
  • Consent Obtained by Force or Fraud Under Section 12(i)(c):
    • Clause (c) of section 12 says that marriage is voidable on the ground that the consent of the petitioner or guardian has been obtained by force or fraud.
  • Pregnancy of the Wife at the Time of Marriage:
    • In the petition for the annulment of marriage on this ground the petitioner has to prove beyond reasonable doubt that the respondent was pregnant by someone else at the time of marriage.
    • In the case of Baldev raj v. Urmila Kumari (1979), the testimony of the doctor clearly established that the respondent wife was pregnant long before the date of the marriage. The testimony of doctor was accepted.