Voidable Marriage under HMA
The concept of marriage is a sacred institution which forms a relationship between husband and wife. The right to marry is one of the components of the Right to Life under Article 21 of the Constitution of India. The Hindu Marriage Act of 1955 governs the concept of Hindu marriages. Marriage among Hindus is considered to be a holy union and not a contract. The idea of marriage is to enable a man and a woman to perform religious and spiritual duties, and it is one of the essential ceremonies for every Hindu. In its wisdom, the legislature decided there could be three kinds of marriages among Hindus.
- Valid Marriage – Section 5 of the Act provides conditions for a valid marriage. A marriage can be said valid if it fulfills the conditions of this section.
- Void Marriages – Section 11 of the Act provides the conditions under which a marriage is held void.
- Voidable Marriages – Section 12 of the Act provides the conditions under which a marriage is voidable.
Voidable Marriages (Section 12)
A voidable marriage is binding and valid and continues to exist for all purposes until a decree is passed by a competent court annulling the marriage. It is a perfectly valid marriage as long as one of the parties does not avoid it. A voidable marriage has all the rights and obligations of marriage; it confers the status of husband and wife until the court announces it. In a voidable marriage, the court may pass a decree of annulment at the instance of the aggrieved party.
A marriage is voidable under S.12 of the Act under the following conditions: –
- Where at the time of marriage – A party is incapable of giving valid consent because of unsoundness of mind, or where the party is capable of providing valid consent but because of suffering from a mental disorder, they are unfit for marriage and procreation of children, or the party is subject to recurrent attacks of insanity.
- If either party to the marriage is underage—that is, the bridegroom is under 21 years of age, and the bride is under 18 years of age—the marriage is voidable. In Sivakumar vs The Inspector of Police, Madras High Court, 2011, the court held that the marriage contracted by a person with a female of less than 18 years of age is voidable and shall continue until it is annulled by a competent court.
- Where the consent of one of the parties to the marriage was taken by force or fraud – The consent for marriage obtained by force or fraud is voidable under the law and stands invalid. The “Force” under this section means the use of physical force and threats to use force. For example, where the respondent or anyone on his behalf threatens to kill the petitioner and compels her to marry the respondent, this will amount to force. “Fraud”, on the other hand, essentially means deceit. Courts have taken the view that fraud vitiates the free consent of the party to the marriage.
- Where one of the parties to the marriage has used fraud on the ceremony of marriage, has concealed their identity or age, or there is a concealment of a disease like AIDS, cancer or there is a concealment of religion or caste by one of the parties to the marriage, or there is a concealment of pre-marriage that is, where the party represents that they were a bachelor. They were a married person, etc. On these grounds of force and fraud, a marriage can be annulled by the court’s decree at the instance of the innocent party. The limitation of filing a petition for the marriage being voidable on this ground is that it is presented within one year from the date of fraud being discovered or from the date of cessation of force. With his or her consent, the aggrieved person must not live with the respondent as husband or wife after the discovery of fraud or cessation of force. These requirements must be fulfilled to get relief from the court. In various judgments, the following are some of the grounds which have been held as fraud in marriage w.r.t. wife for annulment of marriage.
- – Concealment of material deformity
- – Concealment of the fact that wife never had menses
- – Erractic psychic and under medication for the same
- – Suppression of Age, when such suppression was very high
- – Educational qualification of wife
- – Deception of identity
- – Deception with respect to employment or income
- – Non disclosure of children from previous marriage
- – Concealment of premarital epilepsy, leucodrama, hysteria, garrulity, incurable schizophrenia.
- – Devoid of having female organs.
- – Suffered from congenital diseases which has continuous effects
- Concealment of pre-marriage pregnancy by some other man the wife is a ground of voidable marriage – The wife at the time of marriage was pregnant by some person other than the aggrieved person, and the aggrieved person at the time of the marriage was unaware of his wife’s pregnancy. The petition to avail the relief on this ground is presented within one year of the commencement of the Act regarding pre-marriages and one year of the marriage regarding post-act marriages. Marital intercourse between the parties to the marriage does not take place with the consent of the aggrieved party after the discovery of the wife’s pregnancy. A decree can be passed by the competent court only when all these conditions are satisfied.
Legitimacy Of Children Of Voidable Marriage Under Section 16 Of The Act
In earlier times, children of voidable marriages became illegitimate when the marriage was annulled. After the Marriage Laws (Amendment) Act of 1976, the child born out of a voidable marriage was termed the legitimate child of the parties to the marriage. Therefore, in a voidable marriage, any child born out of a marital relationship subsequently declared invalid by a court will have the status of a legitimate child.
MAINTENANCE IN VOIDABLE MARRIAGE Sections 24 and 25 provides for the aspect of maintenance under the Hindu Marriage Act. 1955.
Section 24 of the Act deals with Maintenance pendente lite and expenses of proceedings. When a matter is pending in a court for any of the proceedings, be it void, voidable or valid on any grounds like Divorce, Restitution of Conjugal Rights or annulment, one of the parties to the marriage is not able to maintain his/herself or support the expenses of the proceedings because of insufficient income, then on an application filed by the aggrieved party, the court can order the opposite party to pay the aggrieved party expenses of the proceeding or a monthly sum during the proceeding, keeping in mind the income of both the parties.
Section 25 of the Act deals with Permanent alimony and maintenance. Alimony is the amount given after the court has passed the decree in divorce cases. In contrast, maintenance under this section can be provided in any proceedings filed under The Hindu Marriage Act. Under this section, any court of competent jurisdiction at the time of passing any decree or after the decree has been passed on an application made by one of the parties to the marriage can order the opposite party to pay the aggrieved party a lump sum or a monthly sum for his/her maintenance and support, not beyond the life of the aggrieved party keeping in mind the conduct, income, property of both the parties and other circumstances of the case. If the court is satisfied beyond probabilities that there is a change in the circumstances of the case after it has passed the order, at the instance of either party, it may modify, substitute or rescind altogether the order it had passed earlier.
In Ramesh Chandra Daga vs Rameshwari Daga, Supreme Court of India, 2004, it was held that when by court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, the court undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power to be invoked on application by a party entitled to relief. And such order, in all events, remains within that court’s jurisdiction, to be altered or modified as future situations warrant.
Thus, in cases of annulment of marriage, the court can award maintenance when passing any decree that results in a breach of a marriage, considering the facts and circumstances of the case.
Marriage under Hindu Law is considered a sacramental bond, but specific instances are likely to annul it. A competent court can declare a marriage voidable on the grounds mentioned above; until then, a perfectly valid marriage exists between the parties.
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