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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 Sanaskara 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.
Void marriages
Section 11 states that any marriage solemnized at the commencement of this Act shall be null
and void and may, on a petition presented by either party thereto against the other party be so
declared by a decree of nullity if it contravenes any of the conditions specified in clauses (i),
(iv) and (v) of Section 5. Thus a marriage will be void ab initio:
1. If any party to marriage has a spouse living at the time of the marriage [Section 5(i)].
2. If the parties are within the degree of prohibited relationship unless the custom or usage
governing each of them permits such a marriage [Section 5(iv)].
3. If the parties are sapindas of each other, unless the custom or usage governing each of
them permits such a marriage [Section 5(v)].
Section 11 of this Act is prospective in nature. It is only applicable to marriages solemnised
after the commencement of the Hindu Marriage Act, 1955.
Voidable marriages
A marriage which can be annulled or avoided at the option of one or both the parties is known
as a voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of
Voidable Marriage.
This section lays down four grounds on which a Hindu marriage becomes voidable. These are:
1. Inability of the respondent to consummate the marriage on account of his or her
impotency.
2. Respondent’s incapacity to consent or suffering from a mental disorder.
3. Consent of the petitioner being obtained by fraud or force.
4. Concealment of Pre-marriage pregnancy by the respondent.
Parties to a void marriage are criminally No penalty is laid down for a voidable marriage.
liable.
A void marriage is void ab initio and it can be While for a voidable marriage, to put an end to it,
held to be so without a formal declaration by a annulment is necessary.
court under Section 11.
Section 11 applies to a void marriages only Section 12 applies to marriages contracted before
contracted after the commencement of the or after the commencement of the Act.
Act.
In case of Section 11 the Act itself declares a The remedy available under Section 12 is an
marriage to be null and void without any optional remedy, i.e., the party concerned has to
action on the part of any spouse. Of course, take the aid of a court for an annulment decree.
nobody can stop a spouse from getting a
declaration of nullity for the purpose of
precaution and for the record.
It is not necessary that a decree declaring a But a voidable marriage will remain a valid
void marriage as void is passed. The parties to marriage till a decree of annulment is passed.
a void marriage may perform another
marriage without getting a decree declaring
their marriage as void and neither will be
guilty of bigamy.
Children born out of void and voidable marriages are legitimate (Section 16).
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.
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.
Legitimacy of Children:
(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.