LL.B. 2nd year, University Law College, Jaipur.
Historically Marriage according to Hinduism is considered a sacred relationship between two persons that is not limited to this life alone but also extends across seven or more lives. The saying that marriages are made in heaven very much applies in case of marriage in Hinduism.
As per the ancient texts, there are different phase in life which is called Ashramas. There are four such Ashramas called Bramhacharyashrama, Grihasthasharama, Vanaprasthashrama and Sanyasasharama and it is mandatory to go through with all these phases to attain salvation. Marriage involves coming together of two souls and them tying a knot because their karmas are intertwined and they both resolve to complete many things mutually to attain salvation. Their union is considered indissoluble and to last forever, hence words like divorce, separation are alien to Hinduism in its literal sense.
The Hindu marriage prominently follows the principles of Manu Smriti as to the types of marriages, the permitted and forbidden degrees, the roles and responsibilities of husband and wife and more importantly the purpose of marriage.
As per the ancient Hindu texts, a man without a wife is not considered as complete and without a wife he can’t perform various religious sacraments. Only a wife can complete him, in the journey of attaining the four aspects of life, Dharma (obligation), Artha (possession), Kama (love and desires) and finally Moksha (emancipation). That’s why a wife is not only known as “Patni”, but more importantly “Sahadharmini”, “Dharampatni” or “Ardhangini”.
Legally marriage can be defined as a union of two persons as husband and wife in a legal, consensual and contractual relationship made and dissolvable as per the law.
The marriage between Hindus in India is governed by the the Hindu Marriage Act, 1955 (the “Act”) which contains provisions related to Conditions, Ceremonies, Judicial separation, Void / Voidable marriages, Divorce among others.
The concept of void marriage can be understood to mean a marriage which is devoid of certain essential conditions of as mentioned in the Section 11 of the Act.
A void marriage from the very beginning is invalid in law and does not have any legal effect neither it creates any rights nor obligations between parties and to understand the concept of void marriage a bit better an analysis of provision in law is given ahead along with the subsequent case laws in this article.
The bare reading of the Section 11 of the Act goes as follows:
“Any marriage solemnised 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”.
The analysis can further help in better understanding the position in law having divided in following points:
The Section mentions the words “null and void” at the very beginning which if read together as a whole with entire section means that marriage shall be null from the very moment it was solemnized without a formal declaration by the court or by a decree of court.
The Section mentions the words “on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity”. It can be understood to mean that the marriage will be formally declared as Null and Void with a decree for its nullity after a petition by the affected party (either husband or wife) has been made against the other party before court.
However, even without making a petition the marriage will still be devoid of legal effect but generally the court is considered as a right forum to determine the legality.
Another thing which should be noted is mention of words “by either party thereto” that means a petition can only be presented by a party to such marriage not by an outsider from such marriage. Read with Case Law No. 2
The Section also mentions the words “and may, on a petition presented by either party thereto” where the word “may” represent that it discretionary and not mandatory for the court to declare the marriage as null and void.
The Section mentions the words “if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5” that means the marriage can be declared as void only if it violates the aforementioned conditions which are:
Section 5 (i) – “Neither party has a spouse living at the time of the marriage”.
The above clause is related with Bigamy, the Act explicitly bars Bigamy by any party to the marriage and if any party has a spouse who is also living at the time of marriage then such marriage shall automatically become void.
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”.
The above clause prohibits marriage between persons who are related to each other within certain relations. The degrees of prohibited relationship are mentioned in Section 3(g) of the Act. However, the marriage will still be permitted only if customs of “each of the them” permit or we can say customs of both the parties permit such marriage.
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”.
The above clause prohibits marriage between persons who are sapindas of each other as mentioned in Section 3(f) of the Act. However, the marriage will still be permitted only if customs of “each of them” permit or we can say customs of both the parties permit such marriage.
Hope the above analysis helped you have a fair understanding of this section, however it should not be in any way considered as a legal advice or counsel of any nature.
The case laws are given to have a more better understanding of courts’ intent on interpretation of law and also various precedents guiding the future course of action.
In Abbayolla M. Subba Reddy vs Padmamma
The question arose that whether a Hindu Woman who is married after coming into force of the Hindu Marriage Act,1955 to a Hindu male, having a lawfully wedded wife can maintain a claim for maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956.
The Hon’ble Andhra Pradesh High Court held that a Hindu Woman who is married after coming into force of the Hindu Marriage Act,1955 to a Hindu male, having a lawfully wedded wife cannot maintain a claim for maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956.
In Smt. Ram Pyari vs Dharam Das And Ors. (AIR 1984 Allahabad 147)
The question arose whether the view taken in Smt. Sheelwati v. Smt. Ram Nandani (AIR 1981 Allahabad 42) is correct in so far as it lays down that the validity of a void marriage held in contravention of the provisions of Section 5 (i) read with Section 11 of the Hindu Marriage Act cannot be gone into at the instance of a third aggrieved party after the death of the spouses to the marriage.
The Hon’ble Allahabad High Court held that validity of a void marriage in contravention of the provisions of Section 5(i) read with Section 11 of the Hindu Marriage Act can be gone into at the instance of a third aggrieved party even after the death of one of the spouses to the marriage.
In Basappa vs Siddagangamma on 10 March, 1992
The question arose whether Section 18 of the Hindu Adoptions and Maintenance Act could be construed that notwithstanding the nullity of a marriage under Section 11 of the Hindu Marriage Act the wife claiming maintenance, retains her status as wife for the purposes of applying for maintenance?
The Hon’ble Karnataka High Court held that, the specific finding that the question of marriage of the plaintiff with the 1st-defendant as being null and void the Civil Court’s power to adjudicate fact of maintenance under Section 18 of H.A. & M.Act, 1956 cannot be legally sustained. And in all the cases, where marriage is a null as per relevant clauses of Section 5 of the Hindu Marriage Act the question of a wife claiming maintenance under Section 18 of the Hindu Adoptions and Maintenance Act would not arise. The Court also set-aside directions issued by lower courts as to payment of a sum of Rs. 25/- per month to the wife-plaintiff towards her maintenance and another sum of Rs. 50/- by way of annual payment towards her separate residence.
Web Sources & Credits:
Legal Service India https://www.legalserviceindia.com