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Nullity of Marriage

Marriage is necessarily the basis of social organization and the foundation of


important legal rights and obligations. In Hindu Law, Marriage is treated as a
Samaskara or a Sacrament. Divorce, however is a thorny question and
Annulment is a very unusual remedy. In our modern world, an Annulment tends
to be more a creature of religion than of law. Annulments are rarely granted and
when they are, very specific circumstances must exist.
Annulment of Marriage
In strict Legal terminology, annulment refers only to making a voidable
marriage null; if the marriage is void ab initio, then it is automatically null,
although a legal declaration of nullity is required to establish this.
Annulment is a legal procedure for declaring a marriage null and void. With the
exception of bigamy and not meeting the minimum age requirement for
marriage, it is rarely granted. A marriage can be declared null and void if certain
legal requirements were not met at the time of the marriage. If these legal
requirements were not met then the marriage is considered to have never existed
in the eyes of the law. This process is called annulment. It is very different from
divorce in that while a divorce dissolves a marriage that has existed, a marriage
that is annulled never existed at all. Thus unlike divorce, it is retroactive: an
annulled marriage is considered never to have existed.
Difference between Void and Voidable marriage:
Void

Voidable

Defined by section 11

Defined by section 12

Grounds Grounds:
1. Performed in contravention of
1. Unable to consummate - Impotence
5(i), 5(iv), or 5(v)
(not same as incapacity to conceive
2. Ceremonies in section 7 not
or
impregnate)
performed.
Samar vs Snigdha - Full and
complete penetration (vera copula) is
3. In contravention of section 15
an essential ingredient of ordinary
- Divorce not granted yet or
intercourse though degree of
time to appeal has not
satisfaction
is
immaterial.
elapsed.
Kanthy vs Harry - Unduly large
male organ amounts to physical
abnormality and thus impotence.

Laxmi vs Babulal - Absence of


vagina, even though an artificial
vagina was created, was held
impotence.
Jagdeesh vs Seela - Husband lived
with wife for 3 days and nights
immediately after marriage but could
not consummate. Held that it was
because of incapacity, nervousness,
or hysteria. Thus, was impotent.
Shewanti vs. Bharua 1971 - Wife
was sterile and suffering from nonmenses, though she was capable of
normal sexual intercourse. Held not
impotent because capacity to bear
children is not impotence. Impotence
only refers to sexual intercourse.
2. In contravention of 5(ii) - Mentally
unsound.
3. Consent obtained by force or fraud.
Force - Rice vs Rice - threatened
with pistol.
Fraud - Rama vs Mohinder 1996 Did not tell that she had a child with
cesarean.
Fraud - Purbi vs Basudev 1969 Husband's pre-marriage boasting
about high prospects in life is not
fraud.
Fraud - Som Dutt vs Raj Kumar
1986 - Wife concealed her age. She
was 7 yrs elder.
4. Girl was pregnant by some other
person
Mahendra vs Sushila 1965 -Girl's
admission to pre-marriage pregnancy
when husband had no access to her.

Marriage does not exist at all.

Marriage is fully valid until it is declared


void by the court.

No consequences of marriage - right


in property, conjugal rights, Full consequences while marriage lasts.
maintenance.
Court decree is necessary. Marriage can be
avoided only on the petition of one spouse.
No decree of court is necessary.
If one person does not petition for
Decree can be obtained by either
annulment, marriage will remain valid. If
person.
one person dies, the marriage will remain
valid for ever.
If someone calls the wife a
concubine, it will not amount to Decree is given retroactively.
defamation.

Effects of a void and voidable marriage


Section 16 - Children of void (sec 11) or annulled voidable (sec 12) marriage,
though termed legitimate under section 16, do not get any right in the joint
family of parents. They have right in personal self earned property of parents.
Spouses cannot claim any matrimonial reliefs.
Illustration A and B are brothers. W is A's wife but marriage is void. A
dies without any children. B can claim all of A's property.
In the case of Sudarsan vs State 1988, it was held that this legitimacy is
conferred only in cases when marriage is void on account of sec 11 and not if a
marriage is void due to another reason such as lack of proper ceremonies.
(1) Notwithstanding that a marriage is null and void under Section 11, any child
of such marriage who would have been legitimate if the marriage had been
valid, shall be legitimate, whether such a child is born before or after the
commencement of the Marriage Laws (Amendment) Act, 1976, and whether or
not a decree of nullity is granted in respect of the marriage under this Act and
whether or not the marriage is held to be void otherwise than on a petition under
this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under


Section 12, any child begotten or conceived before the decree is made, who
would have been the legitimate child of the parties to the marriage if at the date
of the decree it had been dissolved instead of being annulled, shall be deemed to
be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as
conferring upon any child of a marriage which is null and void or which is
annulled by a decree of nullity under Section 12, any rights in or to the property
of any person, other than the parents, in any case, where, but for the passing of
this Act, such child would have been incapable of possessing or acquiring any
such rights by reason of his not being the legitimate child of his parents.
Thus, such children would be regarded in law as legitimate children of the
parents for all purposes including succession.

It is suggested to go through class notes also.