Tag Archives: Voidable Marriage

Marriage Between Persons within Prohibited Degree of Relationship – Null and Void

The marriage between persons within prohibited degrees is declared null and void by operation of law. In respect of such a null and void marriage, an option has been left to the parties to the marriage to initiate proceedings for a declaration being made under Section 24 of the Special Marriage Act, 1954. Even in the absence of the declaration by the Court, the marriage would continue to be void in the eyes of law.        

Section 25 of the Special Marriage Act provides for a decree of nullity being made in respect of voidable marriage and for the purpose it has been provided that the Court shall not grant such a decree unless the proceedings are initiated within one year from the date of the marriage. Smt. Mausmi Sarma v. Himanshu Sharma, 2018 (126) ALR 642.

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Void and Voidable Marriages

Section 11 of the Hindu Marriage Act provides for void marriages which may be declared as a nullity and lays down that void marriages are those marriages which are solemnized in contravention of Clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act.

        Section 12 of the Hindu Marriage Act provides for voidable marriages and that a marriage performed in contravention of the Clause (ii) of Section 5 to be declared as void.         The marriages performed in violation of the Clauses (i), (ii), (iv) and (v) of Section 5 alone are void or voidable and can be declared a nullity, but not the marriages solemnized in contravention of Clause (iii) of Section 5 of the Act. Therefore, a marriage solemnized in contravention of Clause (iii) of Section 5 of the Hindu Marriage Act, i.e., before the parties attain the marriageable age, is neither void nor voidable and cannot be declared a nullity. Kamlesh Yadav v. Surmila, 2018 (151) ALR 132.

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Appeal from Decree of Divorce – Filed beyond expiry of period of Limitation

As held by the Hon’ble Supreme  Court in Anurag Mittal v. Shaily Mishra Mittal reported in (2018) 9 SCC 691, the object of Section 15 of Hindu Marriage Act is to provide protection to the person who had filed an appeal against the decree of dissolution of marriage and to ensure that such appeal was not frustrated. The protection afforded by Section 15 is primarily to a person contesting the decree of divorce. It was held as under:—

“It is necessary to state how the question before us has already been settled by the decision in Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258. Even when the words of the proviso were found to be prohibitory in clear negative terms — “it shall not be lawful”, etc., the Hon’ble Court held that the incapacity to marry imposed by the proviso did not lead to an inference of nullity, vide para 9 of  Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258. It is all the more difficult to infer nullity when there is no prohibition; where there are no negative words but on the other hand positive words like “it shall be lawful”. Assuming that a marriage contracted before it became lawful to do so was unlawful and the words create a disability, it is not possible to infer a nullity or voidness vide paras 9 and 10 of Lila Gupta case…

“………. What is held in essence is that if a provision of law prescribes an incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity. Quae incapacity imposed by statute, there is no difference between an incapacity imposed by negative language such as “it shall not be lawful” or an incapacity imposed by positive language like “it shall be lawful (in certain conditions, in the absence of which it is impliedly unlawful)”. It would thus appear that the law is already settled by the Court that a marriage contracted during a prescribed period will not be void because it was contracted under an incapacity. Obviously, this would have no bearing on the other conditions of a valid marriage.”

In Leela Gupta v. Laxmi Narain reported in (1978) 3 SCC 258, it was held thus:

“…..the interdict of law is that it shall not be lawful for a certain party to do a certain thing which would mean that if that act is done it would be unlawful. But whenever a statute prohibits a certain thing being done thereby making it unlawful, without providing consequence for the breach, it is not legitimate to say that such a thing when done is void because that would tantamount to saying that every unlawful act is void.”

“….Merely because each one of them is prohibited from contracting a second marriage for a certain period, it could not be said that despite there being a decree of divorce for certain purposes the first marriage subsists or is presumed to subsist…….. An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting…..”

“Thus, examining the matter from all possible angles and keeping in view the fact that the scheme of the Act provides for treating certain marriages void and simultaneously some marriages which are made punishable yet not void and no consequences having been provided for in respect of the marriage in contravention of the proviso to Section 15, it cannot be said that such marriage would be void”

In any case, the bar of Section 15 of Hindu Marriage act is not at all attracted where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an appeal. Section 15 permits a marriage after dissolution of a marriage if there is no right of appeal against the decree, or even if there is such a right to appeal, the time of appealing has expired without an appeal having been presented, or the appeal has been presented but has been dismissed. The bar, if any, under Section 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce is stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal. Krishnaveni Rai v. Pankaj Rai, Cr. Appeal No. 321 of 2020 (Arising Out of SLP (Cri) No. 7903 of 2019).

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