When Marriage Void under Hindu Marriage Act, 1955, A marriage becomes void, if any of the conditions related to Section 5(1), 5(4), 5(5) of HMA is contravened. These conditions hereto are:
- Either party Has A Spouse Living At the Time Of The Marriage
- The Parties To the Marriage Fall within The Degrees Of Prohibited Relationship
- The Parties Are Sapindas Of each Other.
Where one of the Parties to the marriage is not a Hindu, though this marriage is Void, but it has to be proved that no Shudhikaran ceremony took place before the solemnization of marriage. The strong presumption is in favor of Shudhikaram ceremony having taken place when the priest solemnized the marriage as per Hindu Rites.
Effect of Void Marriage: Where a Marriage is void owing to contravention of any of the conditions mentioned above, it is void-ab-initio (Void from very beginning). It would be akin to a marriage not been ceremonized at all. No formal decree is required in such condition however, it is deemed essential to avoid future litigation. As with regard to any litigation in Hindu Marriage Act, it can only be started by a party to the marriage and not otherwise.
The husband is also under no obligation whatsoever to pay any maintenance etc if the marriage is void u/s 125 CrPC, however at the time of passing of decree of nullity, the court can award alimony u/s 25 of HMA. Also, so called wife would also not be able to succeed any property of the man. The same is regardless of the fact that the said fact was declared or concealed.
Bigamy is one of the instances of void marriage. No matter, which party to the marriage had a spouse living at the time of marriage, the other party cannot grant the status of a legally wedded spouse. A person who is fighting divorce or who has some notary divorce or customary divorce, when such custom is not established, cannot be said to be in a legal marriage. Courts have held the same view when the spouse was not heard for many years and even beyond the seven-year period and was presumed dead unless the party had obtained a divorce on this ground. The status of woman in such marriage is nothing more than a mistress in the eyes of law. However, it needs to be proved that there was an already subsisting marriage at the time of solemnization of second marriage. And the party who alleges it has to prove it. Bigamy is also a punishable offence u/s 494 (Bigamy: Marrying again during lifetime of husband or wife: Proposed Section 81 of The Bharariya Nyaya Sanhita, 2023) and 495 of IPC. But that it is not the point of this article. Also, change in religion does not dissolve the first marriage. Despite having some examples of legendary people marrying by changing religion and not punished, this can not be termed as legal. The reason why they were never punished lies in the caveat that only a party aggrieved by the bigamy can file a case of it.
An interesting question has been raised many times whether someone can obtain injunction against his/ her spouse restraining from contracting another marriage. Such question is mainly asked by people whose spouse is living in some foreign country. Hindu Marriage Act does not provide any such relief and till recently it was unheard off. However, courts have started granting perpetual injunction under Code of Civil Procedure, 1908. Till date all decisions which I have seen are against the husband from getting married again during her lifetime without obtaining divorce from a competent Indian Court. Similarly courts have granted relief by declaring the subsequent marriage void at the instance of first wife, but that is more an aberration that a rule.
Marriage within Prohibited Degree of Relationship and Sapinda Relationship: The Hindu Marriage Act, itself defines the meaning of Prohibited Degree of relationship and Sapinda Relationship. However, depending on whether the custom and usage permits such marriages, the same is allowed. When a custom is relied upon, it must be a valid custom, unbroken in the community. The test is that both spouses should be governed by the same custom. Like in some communities of South India, marriage with a maternal uncle is allowed. Also in some communities which has migrated from Pakistan, marrying in close relatives is allowed. However, when such custom is not followed for generations in a particular family, the custom is lost.
Distinction Between Void and Voidable Marriage: The biggest difference is that a Void Marriage is void-ab-initiation and no decree of nullity is required to end it. However avoidable marriage is a valid marriage unless declared void by a competent court. A void marriage can be declared void even after the death of the spouse, whereas the voidable marriage can be declared void during the lifetime of the spouses of such marriage. The children of Void marriage were treated as legitimate and illegitimate from Voidable marriage. However, this distinction has been deleted by Supreme Court observation that children cannot be branded as illegitimate.
A marriage which is void-ab-initiation can be declared void at any stage and the length of the marriage is immaterial, however for Voidable Marriage, the same has to be presented in a reasonable time in accordance to Hindu Marriage Act or as laid down by precedents of Higher Courts.
7 Comments
dear sir,
hope everything is fine
sir i got married in 2009 and got divorce in 2013 .i have two kids both are daughters i have filed a case against my husband towards settlement and maintainance of my daughters. he is not paying any maintainance and recently got married to a lady again.
sir need your help..
If someone don’t have marriage certificate can we say it is not legally marriage?
I won’t advise anyone to do so.
Even without a certificate marriage is valid… But you should have some proof of your marriage…
Though it is known to all that second marriage while the first marriage is subsisting, why are people [especially men] going for second marriage [mostly while they reside abroad like USA etc.]? even the girls are not thinking of the consequences of marrying a man who has not divorced his wife legally in India though it was made clear in a number of forums, including this forum, that an ex-parte decree of divorce obtained in another country for marriage that took place in India is void. As stated in the article, the second wife is only a mistress of the man and can never be a legally wedded wife as far as Indian Law is concerned. it is better that both males and females know the Law before they go for a marriage with an already married and not divorced person.
Thanks Sir.. very informative post.
We appreciate your efforts sir…thanks for sharing wth us.