Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

LUCKNOW

SYNOPSIS ON

NULLITY OF MARRIAGE AND DIVORCE

(UNDER THE SUPERVISION Of VIJETA DUA MA’AM)

SUBMITTED TO: SUBMITTED BY

VIJETA DUA MA’AM Ashish Singh

Assistant Professor, B.COM LL.B 5TH SEM.

DSMNRU DSMNRU
 TABLE OF CONTEND

Page No. TOPIC

1. INTRODUCTION
Nullity Of Marriage

Void Marriage (Section-11, Hindu Marriage Act 1955)

2. Grounds of Void Marriage:

3. Voidable Marriage (Section-12, Hindu Marriage Act 1955)1

4 Children of Void and Voidable Marriages

Difference between Void and Voidable Marriages

5
JUDICIAL SEPARATION

Difference between Judicial Separation and Divorce

3. CONCLUSION
 4. BIBLIOGRAPHY
INTRODUCTION

Marriage is an important institution of human society. In the remote past of human History,
man was living and behaving like an animal. Then he was hardly even aware of his
relationships to his parents, brother and sisters. In the Biological kingdom, this primitive man
was even subordinate in status to the animals. Neither did he have the strength of an elephant
nor the sharp teeth and claws of the carnivore. He did not even have the hard protective hide
of the rhinoceros and could not save his life by any other extraordinary physical capability.
Nevertheless, he did possess the unique human instinct of cooperation and organization, with
the help of which, he could dominate over the animals besides protecting and proliferating his
own species. But in spite of this natural trait, in absence of permanent arrangements for
housing, food and clothes, the primitive man was living in small groups, in large caves and
on trees. Since in those days the institution of family had not come into existence, the relation
between man and woman was different from what it is today, in modern times. Then, all
women members of the community were being treated as common sexual partners and their
progenies regarded as children of the community. According to a reference in Mahabharat,
analyzing the problems of this system, a social reformer named ShwetKetu proposed and
established the institution of marriage from which evolved the present set of family.2

Nullity Of Marriage

A marriage may be declared null and void to the effect that the marriage will be regarded as
not having taken place ab initio. On the other hand, a marriage may be voidable and will
subsist until a decree annulling it has been pronounced by a court. The distinction is crucial:
if the marriage is void, no valid marriage existed; whereas, if the marriage is voidable,it is
valid and recognised at law until it is brought to an end by a decree of nullity. A decree of
nullity is a statement to the effect that the marriage in question never existed, i.e. the marriage
is and has always been null and void. The law of nullity relates to the Pre-marriage
impediments to the marriage and is related to capacity to marry. If there are certain

2
http://www.amusingplanet.com/2013/08/isle-of-sark-europe-last-feudal-state.
impediments parties cannot marry each other. If they still marry, marriage may not be valid.
These impediments can be divided into 2 categories.3

1. Absolute Impediments: The marriage will be void ab initio.

2. Relative Impediments: The marriage is voidable which may be avoided by one of the
parties if he or she desires.

On this basis marriages can be divided into 2 kinds:4

1. Void marriages: Section 11

2. Voidable marriages: Section 12

Void Marriage (Section-11, Hindu Marriage Act 1955)

A void marriage is no-marriage. It is a marriage which does not exist from its beginning. It is
called a marriage because two persons have undergone the ceremonies of marriage. A void
marriage confers no status of legitimacy and therefore children of void marriage are
illegitimate. In respect of a void marriage no decree of court is necessary. A void marriage
does not give rise to mutual rights and obligation.

Grounds of Void Marriage: Section 11 of the Act lays down that any marriage solemnized
after the commencement of the Act, in contravention of any of the conditions in clauses (i),
(iv) and (v) of section 5 is void. These conditions are:

1. Neither party has a spouse living at the time of marriage. The first marriage must be a
valid marriage.
2. These parties are not within the prohibited degree of relationship.
3. The parties are not spinda to each other.

Apartfrom section 11 declaring a marriage void, a marriage may be declared void on

following grounds:

3
Divorce Magazine Grounds for Divorce"
4
Avtarsingh, family law, 95,(LexisNexis,5, 2011)
 1. That the parties are not Hindus.
2. That the marriage is not solemnized according to the customary rites and ceremonies
as provided by section 7 of the Act.
3. A marriage which is solemnized in violation of provisions of the Prohibition of Child
Marriage Act, 2006, is declared void under Sections 12 and 14 of the Act.

Voidable Marriage (Section-12, Hindu Marriage Act 1955)5

A voidable marriage is a legal marriage that can be cancelled at the option of one of the
parties and it is subject to cancellation if contested in court.A voidable marriage is a perfectly
valid marriage so long as it is not avoided. A voidable marriage can be avoided only on the
petition of one of the parties to the marriage

Grounds of Voidable Marriage:

1. Pre-marriage pregnancy of the wife: If the wife was pregnant before marriage from a
person other than the petitioner who did not know of the pregnancy, the marriage is
voidable. But for this, petition must be presented within 1 year of the commencement
of the Act, if the marriage is Pre-Act marriage. If the marriage is Post-Act marriage
the petition should be filed within one year of marriage. No marital intercourse should
take place with the consent of petitioner after the discovery of pregnancy. The burden
of proof is on the petitioner who alleges pre-marriage pregnancy of the wife.
In Baldev Raj V UrmilaKumari AIR 1999 SC, a child was born after 7 months of
marriage and the evidence of the doctor that pregnancy had started somewhere 2
months before marriage the evidence was held sufficient to hold the ground.
2. Consent obtained by Fraud or Force: The requirements of this ground are: First,
consent of the petitioner was obtained by fraud or force. Fraud relates to
ceremonies/facts. Secondly, the petition must be presented within 1 year of the
discovery of fraud or cessation of force. Thirdly, the petitioner must not have lived
with the respondent as husband or wife with his or her consent.
Fraud has same meaning as given in Section 17 of Indian Contract Act, 1872.
Nature of ceremony, past conduct and financial status of the parties,
Educational qualification, pre-marriage status, concealment of religion or

5
Avtarsingh, family law, 95,(LexisNexis,5, 2011)
 caste, concealment of identity, vasectomy operation before marriage,
mental defect, are some of the grounds of fraud.

3. Impotency: Inability of the respondent to consummate marriage is also a ground of

voidable marriage. If the marriage has not been consummated due to impotency of
either party, it is a voidable marriage.
4. Unsoundness of mind: As explained in Section- 5(ii) which includes soundness of
mind and incapacity to give a valid consent, recurrent attacks of insanity.

Children of Void and Voidable Marriages

Section 16, Hindu Marriage Act- According to the original notion, the children of a void
marriage were illegitimate, whether the marriage was declared null and void or not, and
children of voidable marriage became illegitimate when marriage was annulled.6

The section as amended by the Marriage Laws (Amendment) Act, 1976, lays down that the
children of annulled voidable marriages and children of void marriages (whether declared
void or not) are legitimate children. However, this confers a status of legitimacy on those
void marriages which are void under Section 11. If the marriage is void for any other reason,
such as on account of lack of proper ceremonies, then such children will continue to be
illegitimate.

Difference between Void and Voidable Marriages

 A void marriage is void ab initio but a voidable marriage becomes void when one
party seeks matrimonial relief by a petition in a court.7
 A void marriage does not give the status of husband & wife to the parties and mutual
rights and duties do not arise but in case of voidable marriage status of husband &
wife and mutual rights and duties arise.
 The parties to a void marriage may perform another marriage without a decree of
court but the parties to a voidable marriage will be guilty of bigamy if they contract
another marriage.
6
The Child Marriage Restraint Act in India"
7
"The Hindu Marriage Act 1955"
  There is no right of inheritance of the parties to a void marriage but in the case of a
voidable marriage, if a party dies, the other will inherit.

JUDICIAL SEPARATION

Under English Law, before the Reformation, the marriage was regarded by the Church as a
sacrament which made it impossible to obtain a divorce ‘a vinculomatrimonii’, i.e., divorce
dissolving the marriage absolutely. In the case of marriage validly contracted, the
ecclesiastical courts granted ‘divorcium a mensa et thoro’, i.e., divorce from bed and bread,
not enabling the parties to remarry. This remedy of divorce a mensa et thorois not divorce,
i.e., dissolving the marriage tie. This remedy now is called judicial separation which allows
the parties to live separate from each other, without dissolution of marriage tie, with a
possibility of re-uniting and living together again if circumstances subsequently change.

Section 10 of the Hindu Marriage Act, provides for relief of judicial separation. Before the
amendment of this section in 1976, it provided judicial separation on six grounds viz,
desertion, cruelty, leprosy, venereal disease, unsoundness of mind and extra marital sexual
intercourse. By the amendment in 1976 all these grounds of judicial separation were made
grounds of divorce under section13(1) of the Act. The amended section now does not give
any separate grounds on which this remedy can be sought but sub-section (1)says that an
application for judicial separation may be presented on any of the grounds specified in
section 13(1) and in case of the wifealso on any of the grounds specified in section 13(2) of
the Act

Sub-section (2) of section 10 provides that after the passing of the decree of judicial
separation, it shall no longer be obligatory on the petitioner to cohabit with the respondent,
but the Court may, on the application of either party, rescind the decree after being satisfied
that it is just and reasonable to do so.

Object of remedy- The object of this remedy of judicial separation is that in any case where
the petitioner has a good ground of getting divorce, he/she may seek the lesser relief of
judicial separation in order to enable himself/herself to live away from the erring spouse with
fond hopes that the other spouse would realise his/her mistake by passage of time and which
may consequently result in his/her coming back to live with him/her.
Secondly, under section 13A of the Act, the Court may, on a petition for divorce, having
regard to the circumstances, pass instead decree for judicial separation.

Thirdly, if the separation of the parties does not result in resumption of cohabitation within
the prescribed period (one year), the marriage may be taken to be broken down and under
section 13(1A)(i) either party can seek divorce on this ground.

Judicial Separation and Separate Residence and Maintenance

Section 18(2), Hindu Adoption and Maintenance Act, 1956 provides that on certain grounds,
a Hindu wife may live separately and claim maintenance from her husband. This provision is
different and distinct from judicial separation. In a given case a wife may not like to obtain a
decree for judicial separation, yet she may also not like to live with her husband. It may also
be that no ground of judicial separation is available to her. In such a case, if a ground is
available to her under section 18(2), Hindu Adoptions and Maintenance Act, 1956, she may
live separate from her husband and claim maintenance from him. 8

Difference between Judicial Separation and Divorce9

Judicial separation is different from divorce. Divorce puts the marriage to an end. All mutual
obligation and rights of husband and wife cease. In short, after a decree of dissolution of
marriage, marriage comes to an end; parties cease to be husband and wife, and are free to go
their own ways. There remain no bond between them except in relation to section 25
(maintenance and alimony) and section 26 (custody, maintenance and education of children).
After divorce parties are free to remarry. On the other hand, judicial separation merely
suspends marital rights and obligation during the period of subsistence of the decree; parties
continue to be husband and wife.

Grounds Of Judicial Separation- After the amendment of the section in 1976, all the
grounds mentioned in section 13(1) are also grounds on which the remedy of judicial
separation can be sought. These grounds are:10

Fault Grounds:

8
Protest against Marriage Bill". 26 Aug 2013.
9
"Hindu Marriage Act,1955 And Special Marriage Act, 1954"
10
Code of Canon Law, canon 1060
 1. Adultery
2. Cruelty
3. Desertion
4. Conversion to any religion
5. Incurably of unsoundness of mind
6. Leprosy
7. Venereal disease
8. Renunciation
9. Presumption of death

Special Grounds for Wife (Section 13(2))

1. Pre-Act polygamous marriage-11 in the case of any marriage solemnized before the
commencement of this Act, that the husband had married again before such
commencement or that any other wife of the husband married before such
commencement of the petitioner.
2. Guilty of Unnatural Offences- that the husband has, since the solemnization of the
marriage, been guilty of rape, sodomy or bestiality.
3. Non-resumption of cohabitation after an order of maintenance.
4. Repudiation of marriage- that her marriage was solemnized before she attained the
age of fifteen years and she has repudiated the marriage after attaining the age but
before attaining the age of eighteen years.

Rescission of decree- Sub-section (2) of section 10, confers power on the Court to rescind
the decree of judicial separation on application by either party if it considers it just and
reasonable to do so.

After the passing of the decree, no obligation is cast on the parties to resume cohabitation.
However, if one of the spouses is interested and takes appropriate steps to resume
12
cohabitation, he/she can approach the Court for getting the decree rescinded.

11
Avtarsingh, family law, 95,(LexisNexis,5, 2011)
12
Aquil Ahmad- Mohammedan Law, 21st edn. 2004, p.108, Central Law Agency, Allahabad.
CONCLUSION

According to many religions, divorce is not acceptable, yet if circumstances do not allow for
a couple to undergo a normal marital relationship (see grounds for voidable marriages) nullity
seems a perfectly tolerable option. In conclusion, the idea of void and voidable marriages is
becoming somewhat outdated. Although it serves the purpose for people not to have to
undergo what could be seen as a difficult process, divorce can also have religious or social
taboos, whereas nullity does not carry the same stigma. If the amount of people petitioning
for a decree of nullity is substantially lower than those petitioning for divorce, why continue
to confuse and contradict people.
BIBLIOGRAPHY

Primary sources

1. Sharma, B.K.Hindu Law. Allahabad: Central Law Publications. 2011

2. http://www.amusingplanet.com/2013/08/isle-of-sark-europe-last-feudal-state.
3. Avtarsingh, family law, 95,(LexisNexis,5, 2011)
4. Aquil Ahmad- Mohammedan Law, 21st edn. 2004, p.108, Central Law Agency,
Allahabad.
5. Code of Canon Law, canon 1060
6. "Hindu Marriage Act,1955 And Special Marriage Act, 1954"
7. Protest against Marriage Bill". 26 Aug 2013

CASES-

 Baldev Raj V UrmilaKumari AIR 1999 SC,

Secondary sources

WEBSITES
 Indian kanoon
 Judice .nic.in
 Scribd.com