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Nullity of Marriage in India

Nullity of Marriage

Nullity of Marriage in India

Marriage is an agreement to be united to a person of the opposite sex as a wife or a husband in a legal, consensual, and contractual relationship recognized and sanctioned, and dissolvable only by law. Marriage is a state of being accepted and acknowledged by society and religion, between a man and a woman, who are termed husband and wife, respectively. Marriage is also referred as a contract between man and woman to live life together as husband and wife, marriage is a religious sacrament. In India, a marriage is a legal status under different personal laws, followed in India, like Hindu Marriage Act, Muslim Personal Law (Shariat) Application Act, 1937, 1955, Indian Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936, and Special Marriage Act 1954.

Nullity of Marriage

Nullity, in general, means an act that is legally void in nature. In case of a marriage, it means a legal statement by the family court that there was the marriage didn’t exist between two people, and marriage was not valid. The declaration makes it clear that the marriage never took place.

Difference Between Nullity of Marriage, Divorce and Judicial Separation

Though nullity, divorce and judicial separation are ways to end a marriage, but they are not similar. There are differences between these three.

Nullity of Marriage

As mentioned, the nullity of marriage is a legal declaration that marriage was not in existence. It points out the validity of marriage according to law it was performed. This means that there was not a valid marriage has performed between the parties; either the parties or the circumstance is not valid by the law.


A divorce is a formal ending of a marriage. It is a legal declaration on the petition by the parties of the marriage, that led to an end of a valid marriage. Under a divorce, the validity of the marriage is not questioned, but it questions the continuation of marriage. If successful, it ends a valid marriage. A divorce is more permanent than nullity and judicial separation.

Judicial Separation

A judicial separation is declared legally on request of the parties that they must be allowed living separately under the status of marriage. It is not an end of a marriage; neither it questions the validity of the marriage. Under Judicial separation, duties and liabilities remain the same for both the parties.

Nullity of Marriage Under Different Personal Laws in India

Under Hindu law

Hindu laws are based upon two sources ancient sources and modern sources. The ancient sources are Shruti, Smriti, Digests and Commentaries, and Customs. The modern sources are Justice, Equity, and Good Conscience, Precedent, and Legislation.

The marriage, according to Smrities, is an essential sanskar. Smriti says it is a must duty to everyone to perform. Earlier marriage was undissolvable, and it was necessary to perform religious and spiritual responsibility. Before the parliamentary enactment, there was no concept of the ending a marriage or nullity of marriage under Hindu personal law, as it was treated as holy wedlock for the whole life.

After application of the Hindu Marriage Act, 1955, now there are certain grounds on which marriage shall be declared null and void. These grounds are mentioned under Section 5, clause (i), (iv) and (v), The Hindu Marriage Act, 1955. These grounds are as follow:

  1. In case any of the party has a living spouse at the time of marriage
  2. At the time of the marriage:
    1. None of the party should be incapable of giving a valid consent to it in consequence of unsoundness of mind;
    2. Though capable of giving valid consent, neither party has been suffering from any kind of mental disorder or to any extent be unfit for marriage and the procreation of children.
    3. Neither of the party has been subject to recurrent attacks of insanity
  3. The bridegroom has completed the 21 years of age and the bride must have completed the age of 18 at the time of the marriage.
  4. Both the parties should not fall within the degrees of any prohibited relationship under the Hindu law unless the custom or usage governing each of them allows marriage between the parties.
  5. Both the parties should not belong to same sapindas unless the custom or usage governing each of them allows marriage between the parties.
  6. Sagotra marriage is valid under the Hindu Marriage Act, 1955

Termed as voidable marriages, few marriages are also valid till declared null and void. A voidable marriage is annulled by the decree of nullity under section 12 of the Hindu Marriage Act, 1955. Under voidable marriages, it is the complete discretion of the parties to continue with marriage or to annul marriage by a decree of the court.

The grounds for voidable marriage are:

  • In case the respondent is impotent
  • In case of incapacity to give valid consent or forced consent of parties or mental illness or person unfit for procreation of a child
  • Underaged marriage
  • If the respondent was pregnant by some other person at the time of marriage.

Nullity of Marriage Under Muslim Personal Law

Under Muslim Personal Law (Shariat) Application Act, 1937, a marriage is a dissoluble contract between two parties of the opposite sex. A contract, where valid consent of both the parties is required, and ‘Mehar’ is also decided. Therefore dissolution of marriage is also permitted in both the Shias and Sunnis. Without a valid consent by the parties or their guardian, a marriage is void, according to the Dissolution of Muslim Marriage Act, 1939. These are the following grounds for dissolution of marriage under Muslim Personal Law:

  • Interreligious marriage to a woman who does not have religious status (a Muslim male also cannot marry a female who does not follow Islam)
  • Marriage between milk relation or ‘Maharam’ close blood relatives
  • Marriage with a person who renounces Islam or not having faith in Islam
  • In Sunnis conditional or interim marriage is void
  • Marriage to a woman in her Iddat period
  • In case the conditions of marriage are against Islam

Nullity of Marriage Under Christian Law in India

Christianity also does not allow a separation. Hence, marriage is indissoluble and holy wedlock that makes it a public religious ceremony. Therefore, it is difficult to grant a nullity of marriage. However, for the sake of the development of society and to save the Indian Christians from discrimination, there is separate marital law Indian Christian Marriage Act, 1872. The act was enacted and for their divorce. Indian Christians also follow the Indian Divorce Act, 1869, for nullity of marriage.

In the year 2001, The Indian Divorce Act 1869 was amended and the grounds for nullity of a marriage under the act are:

  • In case the respondent was impotent at the time of marriage and also at the time of institution of the suit.
  • Bigamy: Either of the party has living husband or wife at the time of marriage and that marriage is in force
  • Marriage between the persons within the prohibited degree of consanguinity or affinity
  • Either party was lunatic at the time of marriage.

Nullity of Marriage Under Parsi Marriage and Divorce Act, 1936

The Parsi community in India follows there separate act for marital laws. According to Section 30 of the act, in any case, in which consummation of the marriage by natural causes is impossible, such marriage may, at the instance of either party thereto, be declared to be null and void.

Nullity of Marriage Under Special Marriage Act, 1954

According to Section 24 of the Special Marriage Act, 1954 on the petition of either of the party, a marriage can be declared null and void by the decree of nullity. Following are the grounds for it:

  • Either party has a living spouse
  • Either party was incapable of giving valid consent due to unsoundness of mind or mental illness or unfit to the procreation of children
  • Parties are under aged
  • Parties are in a relation of a prohibited degree
  • Impotency of respondent

Other Grounds to Declare Voidable Marriage Null and Void Under Special Marriage Act, 1954

  • Due to willful refusal of the respondent, marriage not been consummated
  • Pregnancy of the respondent by some other person at the time of marriage
  • Consent of any of the party was gained by fraud or coercion as defined in the Indian Contract Act, 1872

Procedure to Obtaining Decree of Nullity of Marriage

The procedure of obtaining a decree of the Nullity of Marriage under all personal laws in India is almost similar.

  • The petition should be presented before the court (Concerned courts under different personal laws: Under the Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Family court or city civil court decides the matter. Under the Muslim law, matter does not decide by the court but matter decided by the religious practice (Under the Parsi law court means the court established under the act).
  • The jurisdiction of the concerned court will decide where the defendant or respondent resides.
  • The court issue notice to the respondent or defendant to give a reply before the court.
  • Court grants relief accordingly, after hearing and evidence.

Maintenance Under of Nullity of Marriage

Acting upon the petition submitted, when the court declares nullity of a marriage, it also decides the maintenance to be given to the opposite party, either in a lump sum amount, or yearly or monthly.

Legitimacy of Children Born Out of Null Marriage 

According to Section 16 of the Hindu Marriage Act, 1955 grants legitimacy for the children born out of a void marriage. This particular section protects the children born out of void marriages and prevents them from being bastardised.