Void and Voidable Marriage in India

Difference between void and voidable marriage
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What is Void and voidable marriage?

A union between a man and a woman that establishes the rights and duties for each other and their families is called marriage. Before the Hindu marriage act 1955 was enacted, the divorce and nullity of marriage both did not recognize under Hindu law. The term nullity was first introduced after the enactment of the Hindi marriage Act, 1955. Marriage is also considered as the contract between both the male and female to live with each other. But sometimes, the marriage can convert into a void and voidable marriage, so now, let’s know more about the void and voidable marriages and difference between void and voidable marriage under Hindu law.

What is Void marriage?

The marriage which is invalid from the very beginning is called void marriage. These types of marriage are also considered as unlawful. Still, it is called marriage because the two persons have been gone through all ceremonies of marriage.

There can be various types of reasons to prove the marriage invalid or void marriage

The marriage will be void if:

  • The party was already married lawfully with another person and the spouse of old marriage is still living at the time of the marriage and the former marriage is still in force.
  • The male person marries who is under the age of fewer than 21 years
  • The female is less than 18 years of age.
  • The husband and wife are within the prohibited degrees of relationship.
  • The husband and wife are under Spinda relationship 

Leela V. Lakshmi

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It was held by the court that [void marriage] does not require any decree of the court if the marriage follows any of the following given points the marriage is considered null and void marriage.

What is Voidable marriage?

A marriage that can be avoided at the option of either of the parties is known as voidable marriage. Any voidable marriage shall become void if any of the party wished to do so. This marriage requires a valid order of the court to prove the marriage invalid.

The relevant provisions for voidable marriage are given under section 12 of the Hindu Marriage Act. The section gives some conditions where the court may declare the marriage voidable to void under these conditions, which are as follow:

Conditions for the Voidable marriage:

  1. Impotency
  2. Consent
  3. Consent of guardian
  4. Pregnancy
  5. Venereal disease

Impotency

If any of the couples are dealing with impotency or the person is unable to do marital cohabitation, the opposite party can file a suit in the court to take divorce on the ground of Impotency.

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Consent

The consent of a person plays a very important role in any type of valid contract. As we know that the marriage is also a pure form of contract that’s why if any of the people are failed to give his or her consent due to any of the reason or if the consent was taken by coercion, the marriage will be considered as voidable at the option of that party. He or she can file a suit to make the marriage invalid.

Consent of guardian

The marriage may also be considered as voidable where the consent of the parents or the guardians is important and the consent was not free to consent.

Pregnancy

If the opposite party is already pregnant at the time of marriage from a person who is not going to be her husband, the person can go to the court to invalidate the marriage.

Venereal disease

The applicant can go for court if the other spouse was suffering from venereal disease and the disease is communicable.

Difference between void and voidable marriage:

S. No Void Marriage Voidable Marriage
1 This marriage is void-ab-initio, which means the marriage was void from the very starting. The marriage is voidable at the open of the one-party of both the parties.
2 Not important to take the decree of the court. The marriage will be considered void only by the decree of the court.
4 The parties can remarry with other persons without getting the decree of the court. A spouse cannot remarry until the court passes the decree.
5 The wife cannot claim maintenance. The wife has the right to claim the maintenance under voidable marriage.
6 The parties do not have any state of husband and wife. Both will be considered as husband and wife.

Read Also:

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Types of Divorce in India

Restitution of conjugal rights under Hindu law

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