Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

Lucknow

Faculty of Law

PROJECT ON

[NULLITY OF MARRIAGE & DIVORCE]

CLASS: B.Com., LL.B (Hons.) 5th Semester

Submitted by

[SOUMYA PRAKASH MISHRA]

[B.Com.LL.B/2016-17/13]

Academic Session: 2018-19

Under the Supervision of

MUKESH SIR
Faculty of Law
Dr. Shakuntala Misra National Rehabilitation University
 TABLE OF CONTEND

Page No. TOPIC

1. INTRODUCTION
Nullity Of Marriage

Void Marriage (Section-11, Hindu Marriage Act 1955)

2. Grounds of Void Marriage:

3. Voidable Marriage (Section-12, Hindu Marriage Act 1955)1

4 Children of Void and Voidable Marriages

Difference between Void and Voidable Marriages

5
JUDICIAL SEPARATION

Difference between Judicial Separation and Divorce

 3. CONCLUSION
4. BIBLIOGRAPHY

INTRODUCTION

Marriage is an important institution of human society. In the remote past of

human History, man was living and behaving like an animal. Then he was hardly
even aware of his relationships to his parents, brother and sisters. In the Biological
kingdom, this primitive man was even subordinate in status to the animals.
Neither did he have the strength of an elephant nor the sharp teeth and claws of
the carnivore. He did not even have the hard protective hide of the rhinoceros and
could not save his life by any other extraordinary physical capability.
Nevertheless, he did possess the unique human instinct of cooperation and
organization, with the help of which, he could dominate over the animals besides
protecting and proliferating his own species. But in spite of this natural trait, in
absence of permanent arrangements for housing, food and clothes, the primitive
man was living in small groups, in large caves and on trees. Since in those days
the institution of family had not come into existence, the relation between man
and woman was different from what it is today, in modern times. Then, all women
members of the community were being treated as common sexual partners and
their progenies regarded as children of the community. According to a reference
in Mahabharat, analyzing the problems of this system, a social reformer named
Shwet Ketu proposed and established the institution of marriage from which
evolved the present set of family.2

Nullity Of Marriage

A marriage may be declared null and void to the effect that the marriage will be
regarded as not having taken place ab initio. On the other hand, a marriage may
be voidable and will subsist until a decree annulling it has been pronounced by a
court. The distinction is crucial: if the marriage is void, no valid marriage existed;
whereas, if the marriage is voidable, it is valid and recognised at law until it is
2
http://www.amusingplanet.com/2013/08/isle-of-sark-europe-last-feudal-state.
brought to an end by a decree of nullity. A decree of nullity is a statement to the
effect that the marriage in question never existed, i.e. the marriage is and has
always been null and void. The law of nullity relates to the Pre-marriage
impediments to the marriage and is related to capacity to marry. If there are
certain impediments parties cannot marry each other. If they still marry, marriage
may not be valid. These impediments can be divided into 2 categories.3

1. Absolute Impediments: The marriage will be void ab initio.

2. Relative Impediments: The marriage is voidable which may be avoided by
one of the parties if he or she desires.

On this basis marriages can be divided into 2 kinds:4

1. Void marriages: Section 11

2. Voidable marriages: Section 12

Void Marriage (Section-11, Hindu Marriage Act 1955)

A void marriage is no-marriage. It is a marriage which does not exist from its
beginning. It is called a marriage because two persons have undergone the
ceremonies of marriage. A void marriage confers no status of legitimacy and
therefore children of void marriage are illegitimate. In respect of a void marriage
no decree of court is necessary. A void marriage does not give rise to mutual
rights and obligation.

Grounds of Void Marriage: Section 11 of the Act lays down that any marriage
solemnized after the commencement of the Act, in contravention of any of the
conditions in clauses (i), (iv) and (v) of section 5 is void. These conditions are:

1. Neither party has a spouse living at the time of marriage. The first marriage
must be a valid marriage.
2. These parties are not within the prohibited degree of relationship.
3. The parties are not spinda to each other.

3
Divorce Magazine Grounds for Divorce"
4
Avtar singh , family law, 95,(LexisNexis,5, 2011)
Apart from section 11 declaring a marriage void, a marriage may be declared void
on following grounds:

1. That the parties are not Hindus.

2. That the marriage is not solemnized according to the customary rites and
ceremonies as provided by section 7 of the Act.
3. A marriage which is solemnized in violation of provisions of the
Prohibition of Child Marriage Act, 2006, is declared void under Sections
12 and 14 of the Act.

Voidable Marriage (Section-12, Hindu Marriage Act 1955)5

A voidable marriage is a legal marriage that can be cancelled at the option of one
of the parties and it is subject to cancellation if contested in court. A voidable
marriage is a perfectly valid marriage so long as it is not avoided. A voidable
marriage can be avoided only on the petition of one of the parties to the marriage

Grounds of Voidable Marriage:

1. Pre-marriage pregnancy of the wife: If the wife was pregnant before

marriage from a person other than the petitioner who did not know of the
pregnancy, the marriage is voidable. But for this, petition must be
presented within 1 year of the commencement of the Act, if the marriage
is Pre-Act marriage. If the marriage is Post-Act marriage the petition
should be filed within one year of marriage. No marital intercourse should
take place with the consent of petitioner after the discovery of pregnancy.
The burden of proof is on the petitioner who alleges pre-marriage
pregnancy of the wife.
In Baldev Raj V Urmila Kumari AIR 1999 SC, a child was born after 7
months of marriage and the evidence of the doctor that pregnancy had
started somewhere 2 months before marriage the evidence was held
sufficient to hold the ground.

2. Consent obtained by Fraud or Force: The requirements of this ground are:

First, consent of the petitioner was obtained by fraud or force. Fraud relates
to ceremonies/facts. Secondly, the petition must be presented within 1 year
5
Avtar singh , family law, 95,(LexisNexis,5, 2011)
 of the discovery of fraud or cessation of force. Thirdly, the petitioner must
not have lived with the respondent as husband or wife with his or her
consent.
Fraud has same meaning as given in Section 17 of Indian Contract Act,
1872.
Nature of ceremony, past conduct and financial status of the parties,
Educational qualification, pre-marriage status, concealment of religion or
caste, concealment of identity, vasectomy operation before marriage,
mental defect, are some of the grounds of fraud.

3. Impotency: Inability of the respondent to consummate marriage is also a

ground of voidable marriage. If the marriage has not been consummated
due to impotency of either party, it is a voidable marriage.

4. Unsoundness of mind: As explained in Section- 5(ii) which includes

soundness of mind and incapacity to give a valid consent, recurrent attacks
of insanity.

Children of Void and Voidable Marriages

Section 16, Hindu Marriage Act- According to the original notion, the children
of a void marriage were illegitimate, whether the marriage was declared null and
void or not, and children of voidable marriage became illegitimate when marriage
was annulled.6

The section as amended by the Marriage Laws (Amendment) Act, 1976, lays
down that the children of annulled voidable marriages and children of void
marriages (whether declared void or not) are legitimate children. However, this
confers a status of legitimacy on those void marriages which are void under
Section 11. If the marriage is void for any other reason, such as on account of
lack of proper ceremonies, then such children will continue to be illegitimate.

Difference between Void and Voidable Marriages

6
The Child Marriage Restraint Act in India"
  A void marriage is void ab initio but a voidable marriage becomes void
when one party seeks matrimonial relief by a petition in a court.7
 A void marriage does not give the status of husband & wife to the parties
and mutual rights and duties do not arise but in case of voidable marriage
status of husband & wife and mutual rights and duties arise.
 The parties to a void marriage may perform another marriage without a
decree of court but the parties to a voidable marriage will be guilty of
bigamy if they contract another marriage.
 There is no right of inheritance of the parties to a void marriage but in the
case of a voidable marriage, if a party dies, the other will inherit.

JUDICIAL SEPARATION

Under English Law, before the Reformation, the marriage was regarded by the
Church as a sacrament which made it impossible to obtain a divorce ‘a vinculo
matrimonii’, i.e., divorce dissolving the marriage absolutely. In the case of
marriage validly contracted, the ecclesiastical courts granted ‘divorcium a mensa
et thoro’, i.e., divorce from bed and bread, not enabling the parties to remarry.
This remedy of divorce a mensa et thoro is not divorce, i.e., dissolving the
marriage tie. This remedy now is called judicial separation which allows the
parties to live separate from each other, without dissolution of marriage tie, with
a possibility of re-uniting and living together again if circumstances subsequently
change.

Section 10 of the Hindu Marriage Act, provides for relief of judicial separation.
Before the amendment of this section in 1976, it provided judicial separation on
six grounds viz, desertion, cruelty, leprosy, venereal disease, unsoundness of
mind and extra marital sexual intercourse. By the amendment in 1976 all these
grounds of judicial separation were made grounds of divorce under section13(1)
of the Act. The amended section now does not give any separate grounds on
which this remedy can be sought but sub-section (1) says that an application for
judicial separation may be presented on any of the grounds specified in section

7
"The Hindu Marriage Act 1955"
13(1) and in case of the wife also on any of the grounds specified in section 13(2)
of the Act

Sub-section (2) of section 10 provides that after the passing of the decree of
judicial separation, it shall no longer be obligatory on the petitioner to cohabit
with the respondent, but the Court may, on the application of either party, rescind
the decree after being satisfied that it is just and reasonable to do so.

Object of remedy- The object of this remedy of judicial separation is that in any
case where the petitioner has a good ground of getting divorce, he/she may seek
the lesser relief of judicial separation in order to enable himself/herself to live
away from the erring spouse with fond hopes that the other spouse would realise
his/her mistake by passage of time and which may consequently result in his/her
coming back to live with him/her.

Secondly, under section 13A of the Act, the Court may, on a petition for divorce,
having regard to the circumstances, pass instead decree for judicial separation.

Thirdly, if the separation of the parties does not result in resumption of

cohabitation within the prescribed period (one year), the marriage may be taken
to be broken down and under section 13(1A)(i) either party can seek divorce on
this ground.

Judicial Separation and Separate Residence and Maintenance

Section 18(2), Hindu Adoption and Maintenance Act, 1956 provides that on
certain grounds, a Hindu wife may live separately and claim maintenance from
her husband. This provision is different and distinct from judicial separation. In
a given case a wife may not like to obtain a decree for judicial separation, yet she
may also not like to live with her husband. It may also be that no ground of
judicial separation is available to her. In such a case, if a ground is available to
her under section 18(2), Hindu Adoptions and Maintenance Act, 1956, she may
live separate from her husband and claim maintenance from him. 8

Difference between Judicial Separation and Divorce9

Judicial separation is different from divorce. Divorce puts the marriage to an end.
All mutual obligation and rights of husband and wife cease. In short, after a decree

8
Protest against Marriage Bill". 26 Aug 2013.
9
"Hindu Marriage Act,1955 And Special Marriage Act, 1954"
of dissolution of marriage, marriage comes to an end; parties cease to be husband
and wife, and are free to go their own ways. There remain no bond between them
except in relation to section 25 (maintenance and alimony) and section 26
(custody, maintenance and education of children). After divorce parties are free
to remarry. On the other hand, judicial separation merely suspends marital rights
and obligation during the period of subsistence of the decree; parties continue to
be husband and wife.

Grounds Of Judicial Separation- After the amendment of the section in 1976,

all the grounds mentioned in section 13(1) are also grounds on which the remedy
of judicial separation can be sought. These grounds are:10

Fault Grounds:

1. Adultery
2. Cruelty
3. Desertion
4. Conversion to any religion
5. Incurably of unsoundness of mind
6. Leprosy
7. Venereal disease
8. Renunciation
9. Presumption of death

Special Grounds for Wife (Section 13(2))

1. Pre-Act polygamous marriage-11 in the case of any marriage solemnized

before the commencement of this Act, that the husband had married again

10
Code of Canon Law, canon 1060
11
Avtar singh , family law, 95,(LexisNexis,5, 2011)
 before such commencement or that any other wife of the husband married
before such commencement of the petitioner.
2. Guilty of Unnatural Offences- that the husband has, since the
solemnization of the marriage, been guilty of rape, sodomy or bestiality.
3. Non-resumption of cohabitation after an order of maintenance.
4. Repudiation of marriage- that her marriage was solemnized before she
attained the age of fifteen years and she has repudiated the marriage after
attaining the age but before attaining the age of eighteen years.

Rescission of decree- Sub-section (2) of section 10, confers power on the Court
to rescind the decree of judicial separation on application by either party if it
considers it just and reasonable to do so.

After the passing of the decree, no obligation is cast on the parties to resume
cohabitation. However, if one of the spouses is interested and takes appropriate
steps to resume cohabitation, he/she can approach the Court for getting the decree
rescinded. 12

12
Aquil Ahmad- Mohammedan Law, 21st edn. 2004, p.108, Central Law Agency, Allahabad.
CONCLUSION
According to many religions, divorce is not acceptable, yet if circumstances do not allow for a
couple to undergo a normal marital relationship (see grounds for voidable marriages) nullity
seems a perfectly tolerable option. In conclusion, the idea of void and voidable marriages is
becoming somewhat outdated. Although it serves the purpose for people not to have to undergo
what could be seen as a difficult process, divorce can also have religious or social taboos,
whereas nullity does not carry the same stigma. If the amount of people petitioning for a decree
of nullity is substantially lower than those petitioning for divorce, why continue to confuse and
contradict people,
BIBLIOGRAPHY
Primary sources

1. Sharma, B.K. Hindu Law. Allahabad: Central Law Publications. 2011

2. http://www.amusingplanet.com/2013/08/isle-of-sark-europe-last-feudal-state.
3. Avtar singh , family law, 95,(LexisNexis,5, 2011)
4. Aquil Ahmad- Mohammedan Law, 21st edn. 2004, p.108, Central Law Agency, Allahabad.
5. Code of Canon Law, canon 1060
6. "Hindu Marriage Act,1955 And Special Marriage Act, 1954"
7. Protest against Marriage Bill". 26 Aug 2013

CASES-

 Baldev Raj V Urmila Kumari AIR 1999 SC,

Secondary sources

WEBSITES
 Indian kanoon
 Judice .nic.in
 Scribd.com