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MARRIAGE :- Marriage, whether considered as a sacrament or a contract, gives rise to a status. It confers a status of husband and wife on parties to the marriage, and a status of legitimacy on the children of the marriage. For a valid marriage, in most systems of law, two conditions are necessary

(a) parties must have capacity to marry, and

(b) they must undergo the necessary ceremonies and rites of marriage.

In some ancient communities both the requirements were nominal. Any two persons, a man and a woman, could live together as husband and wife if they intended to do so. Even today, in some systems of law, the requirement of capacity and formalities are not very stringent, though most systems require that some conditions must be satisfied. Some modern systems still lay down very stringent conditions of capacity and prescribe very elaborate ceremonies and rites of marriage. Some insist on the performance of some public ceremonies, while in others performance of private ceremonies is enough. In our contemporary world, in most systems, marriage is considered either as a contract or a near contract, and the requirements of capacity are laid down by law. Most systems even to-day insist on performance of some ceremonies of marriage, religious or secular, elaborate or simple. Hindus refined the institution of marriage and idealized it. In this process they have laid down detailed rules covering practically all aspects of marriage. While maintaining some continuity with the past, the Hindu Marriage Act has simplified the law of marriage. The Act has also added a chapter on matrimonial causes.

In Tikait Munmohinti v. Basant Kumar,’ it was observed that in Hindu Law, marriage was sacrament, a union, an indissoluble union of flesh with flesh, bone with bone—to be continued even in the next world. According to the Hindu texts, a man cannot be said to have a material existence until he took a wife. A man is the only half of his self. Therefore he is not fully born until he takes a wife and after marriage alone he becomes complete. That is why the Brahmins declare thus : The person known as the husband is verily known as the wife.

Nature and concept of Marriage (under the Hindu Marriage Act).— Marriage under the Hindu Marriage Act, 1955 no longer remains a sacrament— an eternal union for spiritual purposes. Under the Act, provisions for the divorce are laid down in Sections 13 and 13-B of the Act. Moreover, remarriage of a widow woman or a widower is possible. Therefore, the sacramental character of the Hindu marriage has been done away with by this Act. Hindu marriage, however, has not become a contract, because essential requirements of contract are lacking in the Hindu marriage. Marriage of a person of unsound mind or of a minor is not void, though the agreement entered into by these persons are void. Marriage of a person of unsound mind is voidable under Section 12 (1) (b) of the Act; and marriage of a minor is valid marriage, though punishable under Section 18 (a) of the Hindu Marriage Act and also under the provisions of the Child Marriage Restraint Act, 1929. Therefore, marriage under the Hindu Marriage Act has not become a contract.

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Conditions for Marriage under Hindu Marriage Act, 1955—Sec. 5 :- Marriage between a Hindu and non-Hindu is void under the Hindu Marriage Act.Now under the Hindu Marriage Act, 1955, the identity of caste or sub-caste is not necessary for a marriage. Ancient texts on Hindu law prohibited Pratiloma marriage i.e., between males of lower castes and females of higher castes. But they permitted Anuloma marriage, marriage between males of higher castes and females of lower castes. Under the Hindu Marriage Act inter-caste marriage is valid and legal, whether it is Anuloma marriage or Pratiloma marriage. There is no bar to an intercaste marriage under the Hindu Marriage Act. The Act had provided six conditions as prerequisites for a valid Hindu Marriage, but Act No. 2 of 1978 has omitted the sixth condition relating to guardianship in marriage and now there are only five conditions as prerequisites for a valid Hindu marriage.

In Valsamma Paul v. Cochin University A.l.R.(1996)S.C. 1011 the Supreme Court has held that as regards the validity of a Hindu marriage under the Act recognition of the marriage by community or by parents of the spouses is not any pre-requisite. If the conditions laid down in section 5 are fulfilled, the marriage is valid. Essential conditions of valid marriage may be described under the following heads:

(1) Bigamy.—The first condition provides that “neither party has a spouse living at the time of marriage, [Section 5 (i)].

(2) Soundness of mind.—At the time of marriage, neither party,U_ (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity or epilepsy. [Section 5 (ii)].

(3) Age of Marriage.—The third condition is that “the bridegroom has completed the age of [twenty-one years]25 and the bride the age of [eighteen years]26 at the time of the marriage.” [Section 5 (iii)].

(4) (4) Beyond prohibited degrees.—The fourth condition lays down that “the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits a marriage between the two.” [Section 5 (iv)].

(5) Beyond “sapinda” relationship.—.-The fifth condition is that “the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.” [Section 5 (v)].

The first condition— Bigamy :- Monogamy means that one is permitted to have oniy one wife or one husband at a time. Bigamy is the reverse of monogamy. Section 5(i) of the Hindu Marriage Act prohibits bigamy. Section 11 makes a bigamous marriage void and Section 17 makes it a penal offence for both 1-lindu males and females under Sections 494 and 495, I.P.C. The offence of bigamy is committed by a Hindu marrying again during the life time of his or her spouse (wife or husband, as the case may be), provided that the first marriage is not null and

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void. If the subsisting marriage is voidable, then also offence of bigamy is committed. The offence of bigamy is committed only if the required ceremonies of marriage are performed.’ The second marriage cannot be taken to be proved by the mere admission of the parties; essential ceremonies and rites must be proved to have taken place. But where a husband had married a woman whose marriage was in subsistence, his subsequent marriage, in such circumstances, would not be bigamous, his first marriage being void. The solemnization of marriage is proved by showing that the marriage was performed with the proper and essential rites and ceremonies of marriage prescribed under the law or custom applicable to parties. A prosecution for bigamy will fail if what is established is that some sort of ceremonies (not the essential ceremonies as prescribed by law or custom) were performed with the avowed purpose that the parties were to be taken as married, and it is immaterial even if it is established that the parties intended seriously to marry and thought that; the ceremonies performed by them would confer marital status on them. It is now established that if the second marriage of the accused is declared void before the prosecution is commenced, no prosecution for bigamy can be made. The mere intention of parties, however serious, will not make them husband and wife and the accused will escape prosecution even if he deliberately performed defective ceremonies. So long as the solemnization of a marriage depends upon the performance of a ceremony, the law cannot be otherwise. Two persons cannot be husband and wife by seriously intending to live and living as husband and wife, if they do not perform the necessary ceremonies. Similarly, persons who perform bigamous marriage cannot be guilty of bigamy if they omit, deliberately or inadvertently, to perform the essential ceremonies of marriage. The solution lies in prescribing one ceremony for all Hindu marriages, and by providing for registration of marriages. So long as we recognize all sorts of ceremonies, such things are bound to happen; dupes may take advantages and innocent persons may become their victims. In the case of a bigamous marriage, the ‘second wife’ has no status of wife. But in case she files a petition for nullity, she can claim both interim and permanent maintenance. If a husband (or wife) is about to take a second wife (or husband), the first wife (or husband) can ask for an injunction from the court.

The Supreme Court in Smt. Yamunahai Anant Rao Adhar v. Anant Rao Thiraram Adhar,AIR 1988 SC 644 held that the marriage becomes null and void where it is in violation of the first condition of section 5. It becomes void ab inito and ipso facto. The Apex Court observed further that the wife in a void marriage cannot claim maintenance under section 125 of the Criminal Procedure Code.. Thus a man whose wife is alive and his marriage is valid and subsisting at the time, cannot marry another wife. He will be guilty of committing the offence of bigamy, if he marries another wife during the continuance of the former marriage. So also a woman whose husband is alive and her marriage is valid and subsisting at the time, cannot marry another husband and she will be committing the offence of bigamy, if she niarries another husband. But the parties to void marriage within the purview of Section 11 can contract a valid marriage. So also if there has been a dissolution of marriage either by a decree of nullity under Section 12 or by a decree of divorce under Section 13, either party of such a marriage is at liberty to marry again and the prohibition of Cl. (i) of Section 5 will have no operation in such cases, On the question whether the former husband or wife is alive or dead at the time of the second marriage the fact that he or she has not been heard of for a period of 7 years by those who are likely to

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have heard qf him or her, raises a presumption that he or she is dead at the time, and it is open to the other spouse to contract a second marriage on the footing that the former marriage had been dissolved by death, and in such case the onus of proving that the former spouse is alive is on the person applying for decree of nullity of the second marriage on this ground.

A second marriage in the lifetime of spouse of the first marriage, in view of Section 5 (i) of this Act will be against law and void, even if the second marriage was contracted outside India. The person commits the crime of bigamy and it does not matter in what part of the world the second marriage has been contracted. In order to prosecute a person for bigamy it is necessary to prove that he or she has already a living spouse and the prior marriage had been duly celebrated with the performance of ceremonies. If the previous marriage was not solemnised properly, the law would not recognise it as a marriage and the parties would not be known as husband and wife of each other. Under such conditions such parties to marriage could settle a fresh marriage without rendering themselves liable to any punishment. Similarly where a person is prosecuted for having contracted a second marriage and there is lack of proper and adequate religious or customary ceremonies as evidence of such marriage, he cannot be punished for bigamy.

In Shanta Dev Berma v. Smt. Kanchan Prava Devi,AIR 1991 SC 816 the Supreme Court held that the proof of the performance of ceremonies is essential for a valid marriage.

In Joginder Singh v. Smt. Jogindero,AIR 1996 SC 1654 the only proof of re-marriage was mutation of name in the revenue record alleged to have been made by plaintiff (wife) herself. There was no evidence to show that plaintiff (wife) had ever made any statement of her re-marriage and the real brother of second husband also denied the marriage of his brother with plaintiff (wife). The Supreme Court held that on the basis of above facts, second marriage by the plaintiff (wife) could not be proved therefore, her re-marriage cannot be upheld.

Mental Capacity : Incapacity to Consent and Mental Disorder :- At one time, a view was expressed that marriage of a lunatic or idiot was valid under Hindu law, Originally, the Hindu Marriage Act, Section 5(ii) laid down that neither party to marriage should be an idiot or lunatic at the time of marriage. The Marriage Laws (Amendment) Act, 1976 has reframed the clause thus At the time of the marriage, neither party—

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity (or epilepsy).’ These three clauses of Section 5(ii) are independent of each other. If a case is covered under any of these clauses, the marriage can be annulled. Under clause (a) every kind of ‘unsoundness of mind” is not covered. The unsoundness of mind should be such which incapacitates a person from giving a valid consent to

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marriage. It need not be persistent or continuous “unsoundness of mind”. It may exist just before the marriage.

An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a 1arriage which has in fact taken place. The onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder.’

In S. Laxminarayan v. Shanti, AIR 2001 SC 2116 the Supreme Court observed that to brand the wife as unfit for marriage and procreation of children it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a married life. Where the fact of unsoundness of mind of one of the parties to marriage was concealed at the time of marriage and it was not disclosed even after marriage for sometime by the parents of girl, the court held it to be sufficient ground for avoiding the marriage under Section 12 (i) (c) of the Act. It cannot be said in this respect that it was the duty of the other party to find out the facts about her. Marriage performed in contravention of Section 5 (2) is voidable and not void.

“At the time of marriage”.—The words “at the time of marriage” in the clause are important. It follows from this that where a person subsequent to the date of marriage becomes an idiot or lunatic, the provisions of this clause are not attracted. Subsequent lunacy will not affect the marriage nor the subsequent recovery will serve it.

The Hindu Marriage Act still does not say that a valid consent is necessary for marriage. That seems to be the position even now. Thus, unsoundness of mind which incapacitates a person from giving a valid consent to marriage will render the marriage voidable, but non-consent will not render the marriage void or voidable.

Under clause (b), the words “has been suffering” requires that “mental disorder” should be of some duration. Of precisely “what duration, it will differ from case to case, and no hard and fast rule can be laid down. It is not every “mental disorder” which renders the marriage voidable, but should satisfy two conditions : (i) it renders him unfit for marriage, and (ii) of procreation of children. Recurrent attacks of insanity (or epilepsy) makes a person unfit for marriage. [Clause (c) The words “insanity” and (“epilepsy”) are not qualified with “incurable”. Thus, if attacks of insanity (or epilepsy) are recurrent that is enough. It is obvious that the scope of mental capacity has been extended. Earlier it was only idiocy or lunacy which rendered the marriage voidable. The mental conditions specified in the clauses relate to pre-marriage conditions and not to post-marriage mental conditions.’ though for post- marriage mental disability, divorce or judicial separation may be available. The burden of proof that the respondent is suffering from any of the mental conditions specified in any of the three clauses is on the petitioner.

Mental Capacity : Age :- There is a well considered view that in ancient India child marriages were not allowed, though there is sufficient textual authority to indicate that the Hindu sages were in favour of early marriages of girls.2 At the time when the British rule came to be

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established in India, child marriages were very common. In 1929, an attempt was made to lay down minimum age of marriage for both the boys and girls. The Child Marriage Restraint Act, 1929 prescribed 15 as the minimum age for girls, and 18 for the boys. But such was the impact of the then prevailing social notions that the child marriages were made neither void nor voidable, but, once performed, they were perfectly valid,4 This position has been maintained by the Hindu Marriage Act, 1955. The Child Marriage Restraint (Amendment) Act, 1978 now raises the minimum age of marriage to eighteen for girls, and 21 for boys. However, the marriage performed in violation of this condition is valid. This Act has been repealed by The Prohibition of Child Marriage Act, 2006. This Act received assent of the President of India on 10th January, 2007. This Act has brought in significant changes in the area of child marriages. The Act of 1929 has often been criticized as a toothless tiger, as a dog that barks but not bites. The Act of 2007 would have far reaching ramifications. It being a secular Act, a piece of uniform civil code would be applicable on all communities of India. This Act defines a child in case of males as being a person who has not completed the age of 21 years and in case of females as being a person who has not completed the age of 18 years. Another significant change brought by the Act is that it makes a child marriage voidable and in some cases void. This is a drastic change in the sense that the old Act did not affect the validity of marriage, an underage marriage being a perfectly valid marriage. A child marriage under the new Act is a marriage where either party or both are children as defined by the Act and it is voidable at the option of the party who is the child. Further, the Act provides for the maintenance of the female spouse of such marriage. Then provisions for custody and maintenance of a child of such marriages has been made.’ Section 12 makes such marriages null and void in case the child is enticed or taken away from the custody of his/her lawful guardian or is by force compelled or by deceitful means induced to go from any place or is sold for the purposes of marriage and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes. Sections 9 and 10 prescribe punishments, the former for the adult male marrying a minor girl, it being rigorous imprisonment up to two years, or fine up to one lakh rupees, or both and the latter being for punishment for any person who performs, conducts, directs or abets such marriage.

Sapinda Relationship and Degrees of Prohibited Relationship.— The prohibition of sapinda marriage is also based on the rule of exogamy. The Dharamshastra considered sex relationship with one’s mother, or one’s sister or one’s daughter or even with one’s son’s wife as the highest sin, mahapataka. It is not certain as to when the shastric limitation on marriages within certain degrees of generation came to be established. It seems that according to the Satapanthda Brahmana, the prohibition extended only to the third or fourth degree of kinship. Ultimately, it came to be established that one cannot marry a person related to him within five degrees on mother’s side and seven degrees on the father’s side.

Theories of sapinda relationship.—In the ancient Hindu law, two theories of sapinda relationship were propounded

(a) oblation theory, and (b) particles of the same body theory.

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Before Vijnaneshwara, the sapinda relationship was linked with the oblations that one offered to his departed ancestors. The Hindus believe in ancestor worship and offer pinda-dan to their departed ancestors. Every year in the shradha fortnight, offerings are made to departed ancestors. These offerings are mainly in the form of pinda. The pinda literally means a ball, The pinda is usually made from rice. The rule is that one offers one full pinda each to his three paternal ancestors and one full pinda each to his two maternal ancestors. One also offers one divided pinda (lep) each to his three next paternal ancestors and one divided pinda each to his two next maternal ancestors. Thus, he is connected by pinda dan to the six ancestors on the paternal side and the four ancestors on the maternal side and is sapinda to them. When two persons offer pindas to the same ancestor, they are also sapindas to each other. The other theory, the particles-of-the-same-body theory, was propounded by Vijnaneshwara. He changed the meaning of pinda from ball to particles-of-the-same-body. According to him, the sapinda relationship arises between two persons on account of their being connected by particles of one body. The great jurist said, “One ought to know that whenever the word sapinda is used, there exist between the persons to whom it is applied a connection with one body, either immediately or by descent.” This is something like saying that all those who have the same blood are related to each other. But, obviously such a definition of sapinda is too wide as such relationship can exist in eternal circles of birth. It may exist upto 10, 20 or 100 or more generations, so long as one can trace his descent through a male or female to a common ancestor or ancestress. Realizing this, Vijnaneshwara proceeded to limit it by saying that it existed upto seventh degree on the father’s side, and upto fifth degree on the mother’s side. He fixed this limit on the basis of traditional meaning of sapinda relationship, otherwise it did not fit rationally into his definition. But one merit of Vijnaneshwara’s change of meaning of sapinda is that it explained many prohibited relationships in marriage which could not be explained on the basis of the oblation theory. Vijnaneshwara’s formulation of sapinda relationship applies not only to marriage but also to inheritance. He classifies sap indas into two samangotra sapindas and bhinagotra sapindas. The former are agnates within seven degrees, and the latter are cognates within five degrees of the common ancestor.

Section 5(v), Hindu Marriage Act.— The Hindu Marriage Act, 1955 reduces the degrees of Sapinda relationship by two degrees on either side. Thus, in the modern Hindu law, the sapinda relationship extends upto five degrees on the paternal side and three degrees on the maternal side. In th modern Hindu law, prohibition of marriage with relations is divided into two heads

(1) Sapinda relationship. Two persons who are sapindas to each other cannot marry. But if custom permits such a marriage, it is valid.

(2) Degrees of prohibited relationship. Two persons cannot marry they are related to each other within the degrees of prohibited relationship. But if custom permits such a marriage, it is valid.

Sapinda Relationship.—Section 5(v), Hindu Marriage Act lays dow that the parties to marriage should not be sapindas to each other.3 Secti 3(f) defines sapinda relationship.The clause (f) of S. 3 runs as under : ‘

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(i) ‘sapinda relationship’ with reference to any person extends as far as the third generation (inclusive) in the line of ascent throug. the mother, and the fifth (inclusive) in the line of ascent through the father the line being traced upward in each case from the person concerned who is to be counted as the first generation;

(ii) two persons are said to be sapindas of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sap inda relationship with reference to each of them’.

One person will be sapinda to the other (i) if he is in direct degrees of ascent within five degrees to the other through the father or three degrees of ascent to the other through the mother.

(ii) If, both are sapindas to the common ancestors. For computation sapinda relationship, lines are traced upwards upto five degrees or three degrees, as the case may be, depending upon whether the line, through which ascent is traced, is paternal or maternal.

The fourth condition—Beyond prohibited degree—[Section 5 (iv)].—This clause prohibits marriage between persons who are within the prohibited degrees of relationship with each other. According to Section 3 (g) “two persons are said to be within the degrees of prohibited relationship (i) if one is a lineal ascendent of the other;

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or

(iii) if one was the wife of the brother or of the father’s Or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or sisters. It should also be noted that prohibited relationship includes— (i) relationship by half or uterine blood as by full blood: (ii) illegitimate blood relationship as well as legitimate; (iii) relationship by adoption as well as by blood: and all terms of relationship in those clauses shall be construed accordingly.

But in the ‘custom’ or ‘usage’ governing each of the parties to the marriage allows the marriage within the degrees of prohibited relationship, then such marriage will he valid and binding.

In Smt. Shakuntala Devi v. Amar Nath, the Punjab High Court has held that the validity of marriage under Section 5 (iv) is subject to customs and usage accepted in a particular Hindu community. It simply implies that if a marriage could take place between two Hindus of prohibited degrees by force of customs its validity cannot he challenged.

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The following will be within the degrees of prohibited relationship of a male :—

1. a female ascendant in the line, 2. wife of an ascendant in the line, 3. wife of a descendant in the line, 4. wife of the brother, 5. wife of the father’s brother, 6. wife of the mother’s brother,7. wife of the grandfather’s brother, 8. wife of the grandmother’s brother, 9. sister, 10. brother’s daughter, 11. sister’s daughter, 12. father’s sister, 13. mother’s sister, 14. father’s sister’s daughter, 15. father’s brother’s daughter, 16. mother’s sister’s daughter, 17. mother’s brother’s daughter.

The following will be within the prohibited degrees of a female— 18. her lineal ascendant like father, father’s father, 19. the husband of a lineal ascendant, 20. the husband of a lineal descendant, 21. brother, 22. father’s brother, 23. mother’s brother, 24. brother’s son, 25. sister’s son, 26. lather’s brother’s son, 27. father’s sister’s son, 28. mother’s brother’s son, 29. Mothers Sisters son

Section 11, Hindu Marriage Act.—Meaning of void marriage.— 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. Since they absolutely lack capacity to marry, they cannot, by just undergoing ceremonies, become husband and wife. For instance, if a brother and sister perform all the ceremonies of marriage, say, in 1956, and start living as man and wife, that will not make them husband and wife in the eyes of law. From the very beginning, i.e., right from 1956, they will not be deemed to be husband and wife. In other words, no legal consequences flow from a void marriage. The legal consequences of marriage are it confers a status of husband and wife on parties; it confers a status of legitimacy on the children of the marriage; and it gives rise to certain rights and obligations against each other as well as against third persons. In the case of a void marriage, parties have no status of husband

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and wife. Thus, if one of them or both of them take another spouse, the offence of bigamy will not be committed. If someone calls the wife a concubine, it will not amount to defamation. Any individual can take a stand and say that parties are not married persons, even if no court has declared such a marriage as void. The question of nullity of marriage can be raised in collateral proceedings also. For instance, A and B are two brothers. A marries W, but the marriage is void. A dies leaving behind his brother B, his widow W. B claims that he is entitled to inherit A’s properties, because W was not A’s wife. If he files a suit claiming inheritance to his brother’s property, he can prove in these proceedings that marriage of A and W was void, hence W is not entitled to succeed to A. A void marriage confers no status of legitimacy and therefore children of void marriage are illegitimate. A void marriage does not give rise to mutual rights and obligations. In respect of a void marriage, no decree of court is necessary. Even when the court passes a decree (sometimes people file an action for such a declaration, as they want to be certain about their legal position), it merely declares that marriage is null and void. It is not the decree of the court which renders such a marriage void. It is an existing fact that marriage is void and the court merely makes a judicial declaration of that fact. However, a petition for nullity under Section 11 of the Hindu Marriage Act, 1955, can only be made by either party to the marriage. That this is so has been clarified by the 1976 amendment.

CONDITIONS OF A VOID MARRIAGE:- Section 11 of the Act: Void Marriage—Any marriage solemnized after 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 one of the conditions specified in clauses (i), (iv) and (v) of Section 5. Section 11 only applies to marriages solemnized after the commencement of the Act. The Court may on the petition presented by either party to the marriage declare such marriage to be null and void. The three grounds for a marriage to be regarded as void are: (a) that the party has a spouse living at the date of the marriage. (b) that the parties to the marriage are within the degrees of prohibited relationship. (c) that the parties to the marriage are sapindas of each other. If the parties to marriage are within the degrees of prohibited relationship or are sapindas of each other, their marriage may still be valid in the presence of a custom or usage allowing the same. Under Section 11, any marriage, which is solemnized in contravention of the condition specified in section 5 (i), is thus void. The conditions mentioned in Section 11 rendering a Hindu marriage null and void are exhaustive and it is only on these grounds that a Court can declare by a decree of nullity that a marriage solemnized after the commencement of the Act is null and void.

MARRYING WITHIN DEGREES OF PROHIBITED RELATIONSHIP :- Section 5 (iv): The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two

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Section 3 (g) of the Act refer to certain relationships which fall within degrees of prohibited relationship and Section 5 (iv) bars the marriage between two persons if they fall within degrees of prohibited relationship2. Section 3 (g) runs as: Two persons are said to be within the ‘degrees of prohibited relationship’ — (i) if one is a lineal ascendant of the other; or (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or (iii) if one was the wife of the brother or of father’s or mother’s brother or of grandfather’s or grandmother’s brother of the other; or (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters. Explanation to Sections 3 (g) states that relationship includes relationship by full blood, half blood, uterine blood, illegitimate blood relationship, legitimate relationship and relationship by adoption as well as by blood.

Section 11 of the Act-Void Marriage: Any marriage solemnized after 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 one of the conditions specified in clauses (1), (iv) and (v) of Section 5.

Section 18(b) of the Act: Every person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in clauses (iv) and (v) of Section 5 shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

Consequences of Marrying within Prohibited Degrees of Relationship :- According to clause (iv) of Section 5, the parties to the marriage should not fall within degrees of prohibited relationship. The concept of prohibited relationship has already been detailed in second chapter. A contravention of the provision of clause (iv) of Section 5 renders the marriage void according to Section 11. Thus if the parties to the marriage fall within degrees of prohibited relationship, their marriage is void under Section 11 and punishable under clause (b) of Section 18. But if there is any custom or usage governing both of them1 which allows a marriage between the two, it shall not be hit by Section 11 or Section 18.

MARRYING WITHIN SAPINDA RELATIONSHIP :- Section 5 (v): The parties are not sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two . Sub-clause (1) of Section 3 defines ‘sapinda relationship’. It runs as: ‘sapinda relationship’ with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation. Explanation to Sections 3 states that relationship includes relationship by full blood, half blood, uterine blood, illegitimate blood relationship, legitimate relationship and relationship by adoption as well as by blood.

Section 11 of the Act-Void Marriage— Any marriage solemnized after the commencement of this Act shall be null arid void and may, on a petition presented by either party thereto against

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the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.

Section 18 (b) of the Act: Every person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in clauses (iv) and (v) of Section 5 shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

Consequences of Marrying within Sapinda Relationship :- According to clause (v) of Section 5, the parties to the marriage should not be sapindas of each other. The concept of sapinda relationship has already been detailed in second chapter. If the parties marry in contravention of this clause, the marriage is void as per the provisions of Section 11 and is punishable under Section 18 of the Act although it is doubtful as to how much deterrent the effect of such punishment would be.

CONSEQUENCES OF AVOID MARRIAGE :- A void marriage is no marriage in the eyes of law. It is said to be null and void from the beginning. No legal consequences follow from a void marriage. Thus, the persons despite performing the essential ceremonies to the marriage are not conferred with the status of ‘Husband and Wife’. It implies that there are no mutual marital obligations or other rights or liabilities in respect of property of each other. A petition for nullity under Section 11 can be moved only by one of the parties to the marriage. Further a void marriage cannot be approbated or ratified. As it is a void marriage since its inception, there is no need to go to the Court to get a decree of nullity, but parties still prefer to go to Court, present a petition for getting a decree of nullity to safeguard themselves against litigations in future. The reason is that if a person remarries a second person while the first spouse is alive, he can be tried for bigamy. So to avoid the trial of bigamy and proving at that stage that the first marriage was null and void; parties prefer getting a decree of nullity to avoid all the doubts and complications.

CHILDREN OF VOID AND VOIDABLE MARRIAGES :- Section 16 of the Act confers a status of legitimacy on children of void marriages as well as voidable marriages which are declared null and void by a decree of Court. The marriage has to be void under the provisions of Section 11 or has to be declared void under Section 12 of the Act to avail of the legitimate status of children under Section 16. If the marriage is otherwise void, e.g. if the marriage is void because no essential ceremonies were performed, then children born out of such wedlock shall continue to be bastards. Section 16 of the Act does not deal with rights of children through concubinage .

Section 16 of the Act: Legitimacy of children of void and voidable marriages: -

(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 child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

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(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, the children of a void marriage and annulled voidable marriage are legitimate by virtue of Section 16 of the Act . For void marriages, even if no decree is obtained from the Court for nullity, the children out of that marriage are legitimate but for voidable marriage passing of the decree is essential. As regards applicability of Section 16 to marriages which are void under Section 11, since Section 11 applies to marriages solemnized after the commencement of the Act, children of second marriage solemnized prior to the Act and void are not entitled to be legitimized children.

Rights of Inheritance of Children of Void and Annulled Void Marriages :- Further children of void (whether decree of nullity is granted or not) and annulled voidable marriage inherit the property of their parents alone3 and of none else. In the case of Neelamma and Ors v. Sarojamma and Ors, (2006) 9 S.C.C. 612. the Supreme Court observed, ‘So far as Section 16 of the Act is concerned, though it was enacted to legitimize children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provides in sub-section (3) by engrafting a provision with a non-obstante clause. ....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. In the light of such an express mandate of the legislature itself, there is no room for according upon such children any further rights than envisaged therein by resorting to any presumptive or inferential process of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in the sub-section (3) of Section 16 of the Act, but would also amount to Court re-legislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself.’

In Rameshwari Devi v. State of Bihar A.I.R. 2000 S.C. 735, the Apex Court held that sons born out of a void marriage would be entitled to the property of the deceased for equal shares along with the widow (first wife) and sons of first wife. The sons born herein are not the coparceners and hence cannot demand partition during the lifetime of their father. Children born out of void marriage are entitled to succession certificate.

Section 12, Hindu Marriage Act—Voidable marriage.—-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. If one of the parties does not petition for annulment of marriage, the marriage will remain valid. If one of the parties dies before the marriage is annulled, no one can challenge the marriage. The marriage will remain valid for ever. So long as it is not avoided, all the legal consequences of a valid marriage flow from it. It confers a status of

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husband and wife on the parties, the children are legitimate, and all mutual rights and obligations of the marriage arise from it.

Grounds of voidable Marriages.—Section 12, Hindu Marriage Act, lays down four grounds of voidable marriages which are available in respect to both the pre-Act and the post-Act marriages. These grounds are (i) Inability of the respondent to consummate the marriage on account of his or her impotency. (This ground we have already discussed in the preceding Chapter). (ii) Respondent’s incapacity to consent or her/his suffering from a mental disorder. (This too has been discussed in the preceding Chapter). (iii) Concealment of pre-marriage pregnancy by the respondent. (iv) Consent of the petitioner being obtained by fraud or force.

IMPOTENCY’ :- Section 12 (1) (a): That the marriage has not been consummated owing to the impotence of the respondent.

Meaning of impotence and consummation :- Under sub- clause (a) of Section 12 (1), ‘impotence’ does not mean sterility or incapacity to bear or conceive a child. Impotency means inability to perform sexual act. ‘Consummation’ means sexual intercourse.

Samar v. Sadhana is an interesting case for understanding that impotence is not related to incapability of bearing children. In this case, wife had prior to marriage undergone operation for removal of uterus and as such was alleged to be impotent and unfit for consummation of marriage. The Court dismissed the petition of the husband and observed, ‘It cannot be disputed that a woman without a uterus is quite fit for sexual intercourse. Impotency is incapacity for sexual intercourse or when coition is difficult or painful. As has been stated already the presence or absence of uterus is quite immaterial to the question whether a woman is impotent or not.’

Incapacity to consummate: absolute, relative; physical, mental :- The Courts do not interfere on the basis of structural defect but on the basis of impracticability of consummation. Impotence is referred to as the physical incapacity of a person to consummate the marriage. This physical incapacity may be absolute or may be relative, that is, a person may be in a position to otherwise consummate but not in relation to a particular person which means incapacity to consummate exists vis-a-vis a particular person and not otherwise.

No limitation period for petition under Section 12 (1) (a) :- D. Balakrishnan v. Paualamani,2 medical evidence showed that marriage was not consummated due to impotency of the husband. Wife was found to be virgin through expert evidence. Petition for annulment of marriage was filed after ten years of marriage. Petition was held not to be barred by limitation. The Court also held that limitation prescribed in clauses (c) and (d) of sub-section (2) of Section 12 is applicable only for the grounds specified in clauses (c) and (d) of sub-section (1).

UNSOUNDNESS OF MIND:- Section 12 (1) (b): That the marriage is in contravention of the conditions specified in clause (ii) of Section 5. Section 5: Conditions for a Hindu marriage—A marriage may be solemnized between any two

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Hindus, if the following conditions are fulfilled, namely:— (ii) at the time of the marriage, neither party— (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity.

Unsoundness of mind, mental disorder or attacks of insanity :- This clause of Section 12 deals with the mental capacity of a person. The section contemplates to judge the mental capacity of a person from three different perspectives. The first is that a person is incapable of forming the valid consent to the marriage because of unsoundness of mind. Second is that he is capable of giving a valid consent but has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children and thirdly, the person has been subject to recurrent attacks of insanity. The three conditions are mutually exclusive and independent of each other.

Unsoundness of mind :- Under clause (ii) of Section 5, a person has to be either of unsound mind or mentally disordered or has to be insane. Unable to give a valid consent because of unsoundness of mind implies that the person is unable to form a rational judgment with regard to giving his consent to the marriage. The consent to be valid has to be free and an un-vitiated consent but because of unsoundness of mind if a person cannot form the same, his case will fall within the ambit of sub-clause (a) of Section 5 (ii). Feebleness of mind is not insanity. Thus, if a person is slow in understanding the things but otherwise possesses mental capacity sufficient to understand the nature of marital obligation and willingness to shoulder them, his case will not be covered under this sub-clause. According to Explanation (a) to sub-clause (iii) of Section 13 (1), ‘mental disorder’ means mental disorder or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia and explanation (ii) defines ‘psychopathic disorder’. It means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment.

CONSENT OBTAINED BY FORCE OR FRAUD:- Section 12 (1) (c): That the consent of the petitioner or, where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such petitioner was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. Expression ‘consent of the petitioner’ includes consent given by petitioner to the marriage as a result of negotiations made on his/her behalf by his/her parents, elders in the family or other relations including friends.

Section 12 (1) (c) is to be read with Section 12 (2) (a). Section 12 (2): Notwithstanding anything contained in sub-section (1), no petition for

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annulling a marriage-(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if— (i) the petition is presented more than one year after the force had cased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife, after the force had ceased to operate or, as the case may be, the fraud had been discovered.

Thus, for presenting a decree of nullity on the ground mentioned in 12 (1) (c), the necessary conditions are-

1. The consent of the petitioner has been obtained by force or fraud.

2. In case of obtaining consent by force, (a) The petition is presented within one year of cessation of force. (b) The petitioner has not lived with the other party to the marriage as husband or wife as the case may be, after the force ceased to operate.

3. In case of obtaining consent by fraud, (a) Fraud should relate to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. (b) The petition is presented within one year of discovery of fraud. (c) The petitioner has not lived with the other party to the marriage as husband or wife as the case may be, after the discovery of fraud.

Sub-clauses (b) and (c) of Section 12 (1) provides the grounds when the petition for nullity can be presented due to the incapability of either parties to give consent to the marriage due to unsoundness of mind or insanity or the obtaining of consent by exercise of force or fraud. Thus none of the two sub- clauses cover the case where the consent is not there at all or where the consent

Effect of ratification :- Sub-section (2) of Section 12 also gives recognition to the concept of ratification, that is, if the person on whom force is exercised or fraud is practiced, if he or she lives as husband or wife respectively after the cessation of force or discovery of fraud, then the ground available under Section 12 (1) (c) for presenting the petition is lost by ratification.

Meaning of ‘Force’ :- Force does not necessarily mean the use of physical violence or threat1 of the same. It also applies where the force is applied by causing an immediate apprehension in the mind of the person against grave danger to his or her life, limb or liberty or against his property or of those who are very dear to him or her. The basic test is that consent to the marriage should have been given under grave fear or actual force applied to that person or his property or to the person or property of persons dear to him. It is not every fear or force which is covered here. It has to be a real fear and not superficial. [f a person consents to the marriage due to the fear of not disobeying his or her parents, such marriage shall not be annulled under Section 12.

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Meaning of ‘Fraud’ :- ‘Fraud’ means deceit is practiced on a person. Plaintiff is bound to prove every item of fraud and how it was practised upon him. Plaintiff has also to prove that he was influenced by misrepresentation.3 Under Section 17 of the Indian Contract Act, 1872,

PRE-MARITAL PREGNANCY:- Section 12 (1) (d): That the respondent was at the time of the marriage pregnant by some person other than the petitioner .This clause has to be read with Section 12 (2) (b). It reads as follows: Section 12 (2) (b): Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage (b on the ground specified in clause (d) of sub-section (1) shall be entertained unless the Court is satisfied

(i) That the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) That proceedings have been instituted in the case of a marriage solemnized before

the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) That marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

A combined reading of the relevant sub-clauses of Section 12 signifies that following are the essentials for presenting a decree of nullity under sub-clause (d) of clause (1) of Section 12:— 1. That the respondent was pregnant by some other person than the petitioner. 2. That the pregnancy existed at the date of the marriage. 3. That the petitioner was unaware of the fact of the pregnancy by some other person than the petitioner. 4. That the petition has been presented within one year from the date of the marriage. 5. That the petitioner has not had marital intercourse (with the respondent) with his consent after the discovery of the existence of pre-marital pregnancy. The Act does not differentiate between pregnancy caused voluntarily or forcibly. So the ground of annulment of marriage is available to the petitioner even if the pregnancy has resulted because the female was raped. Chastity or immorality is not the factor to be taken into consideration while adjudicating on a petition filed under this sub-clause.

Effect of delay on petition :- The period of one year prescribed herein not the period of limitation but a condition precedent for presenting a petition under this sub-clause. Once this period is over, the aggrieved party looses the right to file a petition under this sub-clause.

CONSEQUENCES OF VOIDABLE MARRIAGES :- Any marriage, which is voidable under Section 12, is a valid marriage and all the legal incidents of a valid marriage flow from it. The marriage ceases to be a marriage only if the competent Court passes a decree of nullity on a petition presented under Section 12 of the Act. Thus, passing of decree of nullity is essential to hold that such marriage is no marriage in the eyes of the law. Once a decree is passed, the decree is effective from the date of the marriage. Time limits for presenting a petition have been

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prescribed so that if those time limits expire and no petition is presented, the ground available to a person is no longer available to him or her due to ratification or condonation on his behalf. The children born out of annulled voidable marriages are legitimate by virtue of Section 16 of the Act. This has been discussed at the end of the chapter on void marriages.