A socially and religiously recognized union between a man and a woman that
establishes certain rights and duties between them is called a marriage. The
parties to the marriage that is the man and the woman are call husband and wife
respectively. A marriage is often referred as a contact between the husband and
wife to live together. In our nation, marriage is a religious establishment
which is essential for the development of our general public.
Marriage has been awarded a legal status Under various personal laws. These laws
include Hindu Marriage Act, 1955, Parsi marriage and divorce act,1936. Indian
Christain Marriage Act, 1872 and Special Marriage Act, 1954. The marriage is
considered as a sacred relationship. But it's complexities In the society give
birth to the concept of nullity of marriage.
Meaning Of Nullity Of Marriage:
The term nullity of marriage Is a declaration by a court that your supposed
marriage is null and void, And there is no valid marriage exist between you and
your spouse. In simple words, It is a declaration that the supposed marriage
never happened. One thing to be noted here that, Nullity is not the same thing
as divorce. Divorce is the declaration ending a valid marriage. But on the other
hand, nullity is a declaration that valid marriage never existed.
Law of nullity talks about Two types of marriages that may be cancelled. These
are known as void marriage and voidable marriage respectively.
If your marriage is void, it means that it is never having taken place.
Technically, if marriage between you and your spouse never took place, then
there is no need of court to obtain a degree of annulment. You can simply act as
though your marriage never happened. But, it is advisable to obtain a court
order declaring that your marriage is annulled so that any doubt can be removed.
But on the other hand, if your marriage is voidable, this is considered yo be a
valid marriage until and unless a degree of annulment is made.
In order to obtain a degree of annulment in a voidable marriage either of the
party has to apply to the court for a nullity. If the court deems it fit that
your marriage was invalid from the start and your marriage never happened, it
passes the order for nullity of marriage.
Firstly, it has to be noted that nullity of marriage is different from divorce
and judicial separation. Nullity of marriage is the declaration of the court
that marriage was not in existence. It refers to the validity of a marriage
according to the law. It clearly states that there was not a valid marriage
performed between the parties.
Divorce on the other hand is a judicial declaration on the petition of the
parties of marriage which led to the end of a valid marriage. It is to be noted
here that in divorce the validity of a marriage is not questioned but the
continuation of marriage is affected and there is an end of a valid marriage.
Judicial separation is also different from nullity of marriage. In judicial
separation there is a court's declaration on the petition of the parties of
marriage to live separate under the status of marriage. It is not an end of the
marriage. The duties of husband and wife remain same towards each other.
Nullity of Marriage under Hindu Law:
According to the smrities, marriage is considered as an essential sanskar for
the Hindus. It is a duty of the members to perform it. Before the enactments of
the parliament, there was no such concept of end of marriage or nullity of
marriage under the Hindu personal law and the marriage is treated as a holy and
strong wedlock for the whole life. But after the enactment of Hindu Marriage Act
 There are certain grounds on which marriage shall be declared null and void
by the court. These grounds are given under Clause i, iv, and v of section 5 of
the Hindu Marriage Act.
The term void can be generally understood as a synonym of the word illegal.
hence anything which is void would have one consequence for sure that it would
be illegal as well. A void marriage therefore means an illegal marriage.
Section 5 of the Hindu Marriage act lays down certain essentials which are to be
fulfilled for a valid marriage. On the other hand, section 11 of the Hindu
marriage act lays down the grounds which shall render a marriage as void.
These grounds are as follows:
The very first condition for a valid Hindu marriage is that none of the
parties to the marriage shall have a living spouse at the time of their
marriage. If either of them has a spouse alive from an earlier marriage,
their subsequent marriage is considered as no marriage in the eyes of law.
It is considered as void from the very beginning.
- Prohibited Relationships:
Under prohibited relationships, lineal ascendants are to be seen from both
sides that is from the father's side as well as from the mother's side too.
So, both the mother and father are lineal ascendants. Father's father is a
lineal ascendant whereas mother's mother is also a lineal ascendant. So, no
marriage is performed between the prohibited relationships. And if performed
these marriages have no validity in the eyes of law.
- Sapinda Relationships:
By the virtue of Section 3(f) clause ii, not only those who fall within the
limits of sapinda relationships shall be a sapinda to the person but also
where two persons have a common lineal ascendant who is within the limits of
sapinda relationships with reference to each of them, both of them shall be
a sapinda to each other.
Voidable marriage is also categorized under Hindu Marriage act. The voidable
marriage is a one which is valid until declared null and void. This marriage
shall be annulled by the decree of nullity taken under section 12 of Hindu
Marriage Act. It is totally upon the parties that whether they want to continue
with the marriage or to annul marriage by the decree of the court.
Following are the grounds to set aside a marriage and make it voidable:
Difference between Void and Voidable Marriage:
- Impotency of the respondent.
- Incapacity to give valid consent or forced consent of parties or mental
illness or the person is unfit for creation of a child.
- Under aged marriage. 
- If respondent was pregnant by some other person at the time of marriage.
Nullity of Marriage under Special Marriage Act, 1954:
- Void marriage is void from the very beginning but voidable marriage is
valid unless it is avoided by either party to the marriage.
- In void marriage a mere degree is passed as to nullity of marriage by
the court. But in voidable the marriage is annulled by the decree of nullity
by the court.
- Parties are free to perform another marriage without getting a decree of
nullity in a void marriage. But in voidable marriage, parties cannot perform
another marriage unless the marriage is annulled by the court.
- A wife has no right to claim compensation in a void marriage. On the
other hand, in voidable marriage wife has the right to claim compensation.
Section 24 of the special marriage act also talks about the nullity of marriage
which also have certain grounds. Like neither party has living spouse, incapable
to give valid consent, parties are under aged, parties are in relation of
prohibited degree and impotency of respondent.
Procedure For Obtaining Decree Of Nullity:
The procedure for obtaining decree of nullity of marriage is same in all
personal laws. The petition for nullity of marriage shall be presented before
the court. The jurisdiction of court is decided on the basis that where the
defendant or respondent has resides or marriage has solemnized or place where
the party has last resized together.
After it, the court issue notice yo respondent or defendant to give reply before
the court. After hearing of parties and considering the related evidences court
grant the relief accordingly.
Consequences Of Nullity Of Marriage And Children Born Out Of These Marriages:
After the declaration of nullity of marriage is made , the court also decides
maintenance which is given to the opposite party either monthly or yearly or
lump sum amount.
Children born out of this marriage are considered to be legitimate. After the
order of nullity of marriage is made the parties are free to marry with any
other person. Order of nullity of marriage declares that there was no status of
marriage between two persons. A marriage which is null and void have no legal
status at all.
Parayan K. Amma vs. K. Devi 
The court in this case held that for the purpose of bringing social reform, the
amendment act has been conferred the status of legitimacy on children, who if
not awarded the title of legitimate children, will be treated as bastards.
Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav 
In this case, it has been held that a marriage which is contravention of section
11 of the Hindu marriage act shall be treated as null and void from the time of
Lila vs Laxmi 
In this case it was held by the Allahabad High Court that a void marriage does
not need a degree of nullity as it is no marriage in the eyes of the law. A
decree passed for this marriage is a mere declaration of nullity of marriage.
Smt.Sariabai vs. Komalsingh 
It was held that petition after eight years of marriage is barred by the statute
of limitation and cannot be entertained.
Ratenshwari vs. Bhagwati 
In this case the federal court held that marriage with person of unsound mind is
void because at the time of marriage he could not know the nature of his act.
In a country like India there are different religions and practices and each
having it's own personal laws related to the marriages. In our country marriage
is considered as a holy religious sacrament which is very essential for the
systematic functions of our society. So, it should be done without any kind of
force and fraud. The grounds for nullity in all personal laws are almost same in
India. Nullity of the marriage makes a person free from the bond of the marriage
which is like a burden over them. The grounds of the nullity of marriage are
also legal as well as taking care of religious sentiments.
- Hindu Law; Author : Mulla , Published by: Delhi Law House
- Hindu Law, By: Tahir Mohammad , Published by: Law Book Company, 1981
- Law of Marriage and Divorce, By: Sumeet Malik , Published by: EBC ,
- Which is enforceable from year 1955.
- Section 11 of the Hindu Marriage act, 1955.
- Section 12 of Hindu Marriage Act, 1955.
- Age which is 18 years for a girl and 21 years for a boy needed for a
- 1996 SC
- AIR 1988 SC 644
- AIR 1991 M.P. 358
- AIR 1950 FC 142.