Nullity of marriage

1. Nullity of marriage • Two types of bar/impediments to a marriage. • Absolute bar-then marriage is void. • Relative bar-then marriage is voidable. • Void marriage is void ab initio I;e does not exist from very beginning. • Then why called marriage? –because they have undergone ceremonies but they lack capacity to marry. • This kind of marriage can neither be approbated nor ratified. • Decree of nullity is not necessary in case of void marriage. • Only Either party to marriage can file a petition for nullity.

2. Nullity of marriage • Grounds of void marriage under HMA [sec 11] • [applicable only on post Act marriage i.e 18 may 1955. • Bigamy- • Parties sapinda to each other- • Parties are within prohibited relationship • Voidable marriages-perfectly valid so long as either party to marriage does not avoid by filling petition of annulment in court. • One parties dies before challenging it –can stranger challenge ?-No • If one party to earlier marriage remarries w/o getting voidable marriage annulled , liable for bigamy.[while party to void marriage can marry w/o any decree of court]

3. Nullity of marriage • Retrospective date from date of marriage-if voidable marriage is annulled. • Marriage is deemed to be void from very inception. • Wife can ask for maintenance in such case u/s 125 cr.p.c but wife of void marriage can not. • Grounds of voidable marriage • Impotency of respondent-respondent must be impotent ‘at the time of consummation of marriage.

4. Nullity of Marriage • Partial or imperfect, difficult and painful intercourse amounts to impotency. • But if incompetency is occassional , then it does not amount to impotency • [Shakuntala v Om Prakash AIR 1981 Del • If it is curable then it does not amount to Impotency unless respondent refuses to undergo treatment • Rajendra v. Shanti AIR 1978 P&H • Mere barrenness/sterility or No uterus does not amount to Impotency, when wife was capable of having sexual intercourse. • Bop lies solely upon the petitioner. • Evidence of doctor assumes significance. • Concept of just ground-under cr.p.c court may order to give maintenance to wife who is living separetely. • Ashok singh v. add.session judge, varanasi 1991 Cr.L.J • Impotency is also a good defence to a petition for restitution of conjugal rights. • Where the fact of impotency was suppressed-other can also claim damage for mental agony and cheating.

5. Nullity of marriage • Mental unsoundness-discussed earlier • Fraud or force-absence of free consent renders the marriage voidable.[12(1)(c) • If consent obtained by fraud or force • Petition must be presented within one year of the discovery of fraud or cessation of force. • Once discovered, petitioner must not have lived with other as husband or wife. • Any marriage solemnized before or after commencement of Act. • A single act of sexual intercourse after such discovery will be fatal to petition. • Force implies coercion or undue influence. • Concealment of fact must relate to nature of ceremony or which causes an interference with the marital life and pleasure. • E.g concealment of identity, serious disease, age , religion, caste, • Non disclosure of pre-marriage status [divorcee] amounts to fraud.

6. Nullity of marriage • Concealment of pre marriage relationship and even delivery of child does not amount to fraud • Law commission in 59th report 1974 observed-ignore otherwise most of the marriages would become avoidable. • Concealment of financial status and educational qualification is fraud [Anurag anand v.Smita Anand AIR 1997 Del • A minor girl can avoid marriage u/s 12(1)(c) if she was married against her consent and wishes. • With knowledge-valid • w/o-he has power to repudiate[Manu said-somebody else’s child can’t be foisted on the husband] • Pre marriage pregnancy is ground of voidable marriage not ‘pre marriage unchastity. • Grounds to declare it voidable • Wife pregnant at time of marriage other than petitioner [Husband]

7. Nullity of marriage • Petitioner did not at time of marriage know it • Petition must be presented within one year of marriage.[parsi-2 y] • Marital intercourse did not take place with petitioner’s consent after the discovery of pregnancy by petitioner. • Bop on petitioner-How-husband had no access to her before marriage [e.g jail/outside India etc

8. Nullity of Marriage • Bigamy-any marriage solemnized after commencement of this Act • Punishment may extend to 7 yrs and also fine. • If previous marriage was not disclosed to person then punishment may extend 10 years and also fine. • Bhurao v state of maharastra 1965 sc • Husband entered into second marriage but could but could not perform ceromanies required for marriage , held not liable for marriage. • First wife can not file a suit to declare second marriage void u/s 11. • She can file declaratory suit u/s 34 of SRA 1963. • Bigamy is matrimonial wrong but it is very difficult to prove. • Fact is bigamous marriage is performed w/o strictly observing all ceremonies.