Nullity of Marriage(sec.

11&12)
(void and voidable marriage)

Void Marriage (Sec.11)

Any marriage in violation of any one of three
conditions under sec.5(i),(iv) and (v) of the Act is
null and void.
Sec.5(i): Monogamy,
Sec.5(iv): not with in the prohibited relationship,
Sec.5(v): not sapindas each other.
- According to sec.11, either party may file a
petition against other party for getting a decree of
nullity.
- Section 11 is not applicable to marriage
solemnized before the commencement of the
Hindu Marriage Act 1955, i.e. before 18th May
1955

Legal consequences of void marriage:

The effect of marriage being null and void is

that is non est and law does not recognize it.
Law takes it that such a marriage has not
been taken place.
The parties have no status of wife and
husband
It does not give rise to mutual rights and
obligations between the parties.
The offence of Bigamy will not be applicable,
if one of them married again.

Voidable Marriage (Sec.12):

The marriage which can be avoided at
the option of one of the parties to the
marriage.
It remains valid, binding and continue
to subsist unless it is challenged.
According to sec.12(1):

Any marriage solemnised, whether before or

after the commencement of this Act, shall be
voidable and may be annulled by a decree of
nullity on any of the following four grounds.

a) Impotency- inability to have conjugal

intercourse or incapacity to consummate the
marriage.

Barrenness and sterility cannot be equated with

impotency if there is consummation of the
marriage:
Shewanti v. Bhaura (AIR 1971MP 168)
Facts: The appellant Smt. Shewanti and the respondent
Bhaurao were married and lived together for four years.
the husband made an application under Section 12(1)
(a)of the Hindu Marriage Act that the wife was impotent
at the time of the marriage and continued to be so until
the institution of the proceeding. The wife denied the
alleged impotency.
Evidence given by the lady doctor shows that Shewanti
was sterile, but it could not be said that she was
impotent. District court declared the marriage was void
on the ground that the sterility can be considered as
impotency.

She came to the High Court of M.P

Judgment: The High court set aside the lower court

judgment and held that the word "impotent" the
legislature did not intend to bring in the idea of
sterility or incapability of conception;
Impotency here signifies incapacity to consummate
the marriage in other words incapacity to have
normal sexual intercourse.
It is possible that a person may be sterile, still he or
she may be capable of conjugal intercourse.
Sterility alone, however, is no ground for holding
the marriage voidable or declaring it a nullity.
Incapacity owing to congenital deformities to beget
children would not amount to impotency where she
can actively participate in sexual intercourse.

b) Marriage is in contravention of the condition specified in

clause (ii) of section 5 (unsound mind and insanity or
epilepsy)
c) Consent of the 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.
According to sec.8(2):
no petition for 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 ceased 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;

Gullipilli Sowria Raj v. Bandaru Pavani (AIR2009SC1085)

Facts: The appellant, who is a Roman Catholic

Christian allegedly married the respondent, who is a
Hindu, on 24.10.1996, in a temple only by exchange of
`Thali' and in the absence of any representative from
either side. Subsequently, the marriage was registered
under Section 8 of the Hindu Marriage Act, 1955.
Soon thereafter, on 13.3.1997, the respondent- wife
filed a petition before the Family Court at
Visakhapatnam, under Section 12(1)(c) of H.M Act, for
a decree of nullity of the marriage.
The main ground for declaring the marriage to be a
nullity was mainly misrepresentation by the appellant
regarding his social status and that he was a Hindu by
religion. The Family Court dismissed the said petition.

But the High Court allowed the appeal upon holding

that the marriage between a Hindu and a Christian
under the 1955 Act is void ab initio and that the
marriage was, therefore, a nullity. Thereafter, the
appellant filed a Special Leave Petition before
Supreme Court.

Issue: Whether a marriage entered into by a Hindu

with a Christian is valid under the provisions of the
Hindu Marriage Act, 1955.

Judgment: The Preamble to the Hindu Marriage

Act, 1955 , which reads as follows:
An Act to amend and codify the law relating to
marriage among Hindus.
the Preamble itself indicates that the Act was
enacted to codify the law relating to marriage
amongst Hindus.

Section 5 of the Act also makes it clear that a marriage

may be solemnized between any two Hindus if the
conditions contained in the said Section were fulfilled.
The usage of the expression `may' in the opening line
of the Section, in our view, does not make the provision
of Sec.5 optional. On the other hand, it in positive
terms, indicates that a marriage can be solemnized
between two Hindus if the conditions indicated were
fulfilled.
The expression `may' used in the opening words of
Sec.5 is not directory, but mandatory and non fulfilment
thereof would not permit a marriage under the Act
between two Hindus.
Finally, the court held that the respondent can avoid
the marriage under sec.12(1)(c) and marriage
purported to have been performed between the
appellant and the respondent was a nullity.

Flg. Officer Rajiv Gakhar v. Bhavana @ Sahar Wasif

(AIR 2011 SC 2053 )

Facts: The Appellant is a pilot with the Indian Air Force

and once, when he was traveling by train from Delhi to
Hyderabad wherein the Respondent also happened to
be traveling and at which time she introduced herself
as Bhavana. During the conversation, Respondent
claimed to be a spinster, aged 27 years and disclosed
that she was traveling to Hyderabad in connection with
a book she was writing on Anglo Indians.
Subsequently, both of them met at Delhi and ultimately
the Respondent tricked the Appellant into marrying her
at Arya Samaj Mandir, Bikaner, Rajasthan as per Hindu
rites and ceremonies. The Respondent also gave a
written affidavit to the Arya Samaj Mandir that she was
a Hindu, a spinster and was never married before.

After two months, the appellant, through

respondents father came to know that the
Respondent was a Muslim and her actual name was
Sahar Wasif and her previous marriage had taken
place according to Muslim Law with a Muslim-Wasif
Khalil after her conversion to Islam and had two
children out of the said wedlock. The Appellant filed a
suit under Sections 5 and 12 of the Hindu Marriage
Act, 1955 seeking dissolution of marriage .
The trial Court declared the marriage between the
parties to the petition a nullity. Then the Respondent
preferred an appeal before the High Court whereby
the learned Single Judge allowed the appeal and set
aside the judgment and decree passed by the Trial
Court. Aggrieved by the said order, the Appellant has
preferred this appeal by way of special leave before
Supreme Court.

Judgment: The evidence of respondent clearly

show that the Respondent-wife established that
before the marriage with the Appellant she
became a full-fledged Hindu by performing
Shudhikaran ceremonies in the manner and being
followed by Hindu custom and all these material
facts were known to the Appellant at the time of
the marriage.so the ratio in Gullipilli
(AIR2009SC1085) is not applicable to the present
case.
And the Respondent-wife established her claim
that on the date of marriage she was a Hindu and
the same is permissible under Section 5 of the Act.
Supreme Court upheld the decision of High court
and dismissed the petition.

d) Pregnancy at the time of marriage by

some other- the husband can file a
petition for decree of nullity.
Conditions- section 8(2):
the petitioner was at the time of the
marriage ignorant of the facts
ii. Petition must be filed with in one year
iii.
that marital intercourse with the consent of
the petitioner has not taken place
Here the burden of proof is on the part of the
Husband.
i.

Legitimacy of children of void

and voidable marriages