Void and Voidable Marriages – What it Means?

Law Family Law
02-Jun-2022
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Marriage is a socially and legally sanctioned union that is regulated by -laws, rules, customs, and beliefs that prescribe the rights and obligations of the partners and accords status to their offspring (if any). Marriage is considered a social structure due to its universality within different societies and cultures. It is a social union that legitimizes the union of two. Sometimes there may be some lacunae in fulfilling the requisites for a valid marriage to give it a legal effect. Such marriages are either called void marriages or voidable marriages.

Void Marriage:

A void marriage is considered "no marriage". If a court declares that a marriage between two parties is not valid, it is said to be nullified. 

Since it is already a "no marriage", a decree of nullity is not necessary by the Court. However, if one of the parties files a suit for a declaration that the marriage is void, then the Court passes a decree of nullity in respect of a marriage and it simply declares a marriage as null and void. 

Moreover, the existing facts of a case make the marriage void, and the Court by passing a decree makes a judicial declaration of the facts.

Voidable Marriage:

A voidable marriage on the other hand 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. If one of the parties to the marriage dies before filing such a petition, the validity of the marriage cannot be called into question. As long as a voidable marriage is not avoided, all the legal consequences of a valid marriage flow from it. The parties have the status of a husband and a wife and their children are considered to be legitimate. All the other rights and obligations of the spouses remain intact.

The laws related to marriage have been dealt with under various personal laws, however, the meaning and requisites for a void and a voidable marriage are almost similar. 

Some of them are mentioned below:

Under the Hindu Marriage Act, 1955

Section 11 of the Hindu Marriage Act, 1955 enumerates the provision for void marriage.

  • If any of the parties has a spouse living at the time of the marriage;
  • If the parties to the marriage fall within the prohibited degree of relationship; or
  • If the parties to the marriage are Sapindas to each other.

The marriage is considered to be void if any of the above-mentioned essentials are present.

Furthermore, section 12 of the Hindu Marriage Act, 1955 envisages provision for voidable marriage. For a marriage to be voidable below-mentioned conditions are essential:

  • 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.

Under Muslim Law

Under Muslim Law, from the point of view of validity, marriage has been classified as Sahih (valid), Batil  Nkha(void), and Faced (irregular).

Batil Nikah (Void Marriage)

Under Muslim Law, "Batil nikah" refers to a void or invalid marriage. Marriages that violate the rules of 'consanguinity,' 'fosterage,' or 'affinity' are considered void, meaning that they are not legally recognized or accepted in Islamic law. Such marriages are null and void from the beginning (void ab initio), creating no rights or obligations for either spouse. Additionally, children born out of such marriages are deemed illegitimate.

Consanguinity refers to a blood relationship, fosterage refers to a relationship established by fostering or bringing up a child, and affinity refers to a relationship through marriage, such as the connection between a person and their spouse's relatives.

Fasid (Irregular Marriage)

Muslim Law does not recognize voidable marriage rather it has the concept of irregular marriage. If a marriage is performed in violation of an impediment or prohibition that is either temporary or remedial, then the marriage is irregular. However, such a marriage is not unlawful. It can be rectified by removing that impediment or by rectifying the prohibitions.

Under the Special Marriage Act, 1954

Marriage has been declared void under this act if the following essentials are fulfilled:

  • If either party has a spouse living at the time of the marriage;
  • Even if the parties are capable of giving their consent but suffering from such a mental disorder or unsoundness of mind that they are unfit for marriage and procreation of a child or if such a person is subject to recurrent attacks of insanity;
  • If the male has not completed the age of twenty-one years and the female has not completed the age of eighteen years;
  • If the parties are within the prohibited degree of relationship;
  • If the respondent was found impotent at the time of the marriage or at the time of the institution of the suit.

Further, a marriage is considered voidable if:

  • If the marriage has not been consummated on a willful refusal by the respondent to consummate the marriage;
  • The respondent was pregnant at the time of the marriage by someone other than the petitioner;
  • If the consent to the marriage was obtained by coercion or fraud;

Under Parsi Law

Under Parsi law, a marriage is void if:

  • If the parties are within a prohibited degree of the relation of consanguinity or affinity;
  • If the necessary formalities of a valid marriage are not complied with;
  • If either party to the marriage is impotent;
  • If the male has not attained the age of twenty-one years and the female has not completed the age of eighteen years.

The Parsi Law does not recognize the concept of a voidable marriage.

Generally, the concept of void and voidable marriage equates to every personal law. In void marriage, the marriage is not at all considered to be in existence and voidable marriage is considered valid unless avoided by one of the parties. The rights and obligations of the spouses change if a marriage is declared to be void or voidable. Moreover, the legitimacy of the marriage may be questioned and a child, if any, born out of such marriages may be called illegitimate.  

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