Nullity Of Marriage Under Different Personal Laws Of India


When a court declares a marriage null, it means that there was never a union between the two parties and that the union was invalid. It is an assertion that marriage never ever took place. There must be a formal nullity declaration to prove that a marriage is void ab initio, even though it already is. An annulment solely refers to voiding a marriage, according to specific legal definitions. The legal process of annulment enables a marriage to be deemed unlawful and invalid. Apart from bigamy and not being of legal marriageable age, it is extremely infrequently permitted. If a few legal conditions weren’t satisfied when the couple was married, the union can be declared null and void. If these procedures weren’t followed, the marriage would have been regarded by the law as never having happened. An annulment is the process that is being used. An annulled marriage is not a divorce because there was never a marriage to begin with, which is a fundamental distinction. A marriage that is annulled is treated as never having existed because, unlike divorce, it is retroactive.


  1. Nullity of Marriage Under Hindu Law in India

Marriage is a necessary sanskar for Hindus, per Smritis. It must be done by one person. Marriage was unbreakable and important for fulfilling religious and spiritual duties. Hindu personal law did not recognise the concept of divorce or the nullity of a marriage prior to the parliamentary statute; rather, marriage was considered as a holy and strong union for the rest of a person’s life. Even after the Hindu Marriage Act of 1955 went into effect, there are still specific situations when a marriage might be declared null and void.


  1. Void Marriages

Section 11 of the Hindu Marriage Act of 1955 addresses nullity of marriage and divorce. If any of the conditions indicated in the aforementioned clauses I (iv) and (v), Section 5, are violated, marriages solemnised after the commencement of this Act are void and may be declared as such by a decision of nullity on a petition submitted by any party thereto against the other party. These grounds include the following: –

  1. When one or both parties are already married, this is known as bigamy,
  2. If a banned degree of kinship marries, provided that usage and customs are permissible,
  3. If a sapinda couple marries, unless tradition and convention prohibit such a union.


Even if all the requirements for a marriage have been met, it is still not a marriage. When a marriage is void from the start, neither the partners’ intentions nor their cohabitation can alter the facts of the case or the marriage’s legal status. A marriage is null and void from the start if either side has a spouse who is still alive at the time of the union, with the exception of Muslim marriage. Even though the husband and wife might be living apart, it suggests that the old marriage is still going strong. The court determined in Swapna Ghosh v. Sadananda Ghosh[1] that a second marriage, lawful at least in form, is required to prove bigamy even though it may be illegal under the law. “A person who is previously married who, with the intent to seem to contract a second marriage, uses a form known to and recognised by the law as capable of establishing a lawful marriage, is guilty of bigamy even though the second marriage would otherwise be invalid,” the law states.[2]

Bigamy, which is defined as remarriage in The Indian Penal Code’s Section 494 outlines the penalties for violating a husband or wife’s lifetime. Two situations are an exception:

  1. Earlier marriage with such husband or wife having been declared void by a court of competent jurisdiction; or
  2. Such husband or wife at the time of subsequent marriage was absent and unheard of for seven years continuously and his whereabouts were not known to those who would have known it had he or she been alive in the meantime.

This exception is founded once more on the principles outlined in Section 108 of the Indian Evidence Act, 1872, which states that “the burden of proving that a person is alive who has not been heard of for seven years shifts to the person who affirms sit”. So, a marriage must still be active in order to be subject to bigamy penalties Additionally, the marriage is void if either party is in a relationship that is against the law or if they are sapindas of one another, unless the tradition or usage that applies to each of them permits a union between them.

  1. Voidable Marriages

In accordance with Section 5 of the Act, neither party shall, prior to their marriage:

  1. is unable of giving a legal assent to it due to mental incapacity;
  2. although capable of giving a legitimate consent, has been experiencing a mental disease of a nature or severity that makes them unfit for marriage and childbearing; or
  3. has experienced many episodes of insanity.

A decree of nullity of marriage may be issued under Section 12 of the Hindu Marriage Act and may be revoked for any of the reasons listed below:

  1. The respondent’s impotence is to blame for the marriage’s lack of consummation. If a partner’s mental or physical condition makes marriage consummation nearly impossible, that party is deemed impotent;
  2. If any spouse was mentally incompetent at the time of the marriage or, even if competent, was suffering from a mental illness that needed the petitioner’s consent; or if the petitioner’s consent was necessary under Section 5 as it was just before to the marriage;
  3. that the respondent was already pregnant by someone other than the petitioner at the time of the marriage.

It’s crucial to keep in mind that a petition won’t be taken into consideration for annulment on the grounds listed if it is presented more than a year after the use of force had ceased or, in some situations, after the fraud had been discovered, under clause (c) of sub-section (1) of section 12—consent by force or fraud. If you gave your agreement to the marriage fraudulently, you have one year from the time the fraud was discovered to file a petition for the annulment of marriage. Additionally, keep in mind that no such petition may be submitted to the Court if you continued to live with the other party to the marriage in that role even after the force had ceased to exist or the fraud had been committed. had been exposed. If you ask for the annulment of your marriage on the grounds that the other party was pregnant by someone else when you got married, the court must be convinced that you were not aware of this at the time of the wedding. Furthermore, the petition must be filed within a year after the marriage date. Also bear in mind that, in the event of a petition on this basis, no marital relations may have occurred with the consent of the petitioner prior to the petitioner learning that the other party was carrying another person’s child.

A marriage that can be annulled at the discretion of one of the parties is referred to as being voidable, avoidable, or avoidable. Despite being legally binding, the marriage could be annulled if one of the parties challenges it in court. Section 12 of the Hindu Marriage Act of 1955 outlines the reasons why a marriage can be declared null and void (1). These grounds include impotence of the respondent, mental illness and incapacity of the respondent to assent, the petitioner’s consent obtained through coercion or deception, and the respondent’s concealment of a previous pregnancy. In Sarlabai v. Komal Singh[3] According to the court, if an annulment petition is filed more than eight years after the wedding, it would be time-barred. In an another case Mukesh Mathur v.Veena Mathur[4], The court ruled that if the wife’s mental disease was the reason for the divorce, the award of alimony cannot be contested on the grounds that her mental disorder existed before the marriage and so rendered the union voidable under Section 12. In Deepayan Chatterjee v. Papiya Chatterjee[5], The court ruled that while the parties are free to independently evaluate the facts, the information provided by professional matchmakers is irrelevant when an annulment is requested on the basis of fraud.










  1. Nullity of Marriage Under Muslim Law in India


  1. Valid or Sahih Marriage:

Muslim law defines a legitimate marriage as one that has been formed in compliance with the prerequisites outlined before. The wife is given the rights to dower, maintenance, and domicile. She is also obliged to be devoted to her husband, acknowledge having sex with him, and observe Iddat.


  1. Irregular or Fasid Marriage:

The phrase “irregular marriages” refers to unions that are the result of one or both parties failing to meet the requirements for marriage yet nonetheless result in unions that can be ended by either side. They are outcome of-

  • A nuptial without witnesses (Not under Shia Law)
  • The union of the fifth wife.
  • A union with an Iddat-subject woman.
  • tying the knot with someone who worships fire.
  • The restriction against unlawful combining leads to marriage.
  • An erroneous marriage has no legal ramifications prior to consummation; yet, once consummation, it creates a number of rights and obligations.
  1. Void or Batil Marriage:

A union that is illegal from the outset. It does not grant the parties any rights or responsibilities under the law. Illegitimate children are those of void marriages. They are outcome of-

  • Marriage via coerced consent.
  • The husband’s diversity. Consanguinity is a ground for prohibiting marriage.
  • On the grounds of kinship, marriage is forbidden.
  • Due to fosterage, marriage is forbidden.

In contrast to Hinduism, where marriage is indissoluble, Islam views marriage as a dissolvable contract. Muslim personal law treats marriage as a contract in which “mehar” is also decided and both parties must give their lawful permission. Therefore, both the shia and sunni sects allow for the dissolution of marriage. Marriage without legitimate consent from the Dissolution of Muslim Marriage Act, 1939, as well as personal law, declare any agreement between the parties or their guardian void. A marriage may also be deemed null and void for a few additional reasons. These grounds are as follow:

  • Female interfaith marriage has no religious standing. A Muslim man is likewise prohibited from being married to a non-Isalmite woman.
  • Marriage between close blood relatives, often known as “maharim.”
  • Being married to someone who rejects Islam or who does not believe in its tenets.
  • Sunni law does not recognise temporary or conditional marriages.
  • Marrying a woman when the iddat is in effect.
  • Where marriage requirements go against Islamic tenets.


  • Dissolution of Muslim Marriages Act (1939) and Muslim Personal Law: –

The law for Muslims suggests that a person of unsound mind cannot contract a marriage and such a marriage if contracted is void. However, if the guardian of the person of unsound mind considers such marriage to be in his interest and in the interest of society and is willing to take up all the monetary obligations of the marriage, then such a marriage can be performed and may be considered valid.











 III.            Nullity of marriage under Christian law in India

Marriage status has altered as a result of Christian evolution. Additionally holy and indissoluble in Christianity, marriage has been made a public religious ritual. It is therefore challenging to declare a marriage invalid. However, there is a different marital law due to social advancement and to end discrimination against Indian Christians. A law known as the Indian Christian Marriage Act of 1872 and the Indian Divorce Act of 1869 were both passed in India. In the year 2001, this Act underwent amendment. This Act allows for the declaration of a marriage as void for the grounds listed below:

§  When the parties got married and the lawsuit was started, the respondent was ineligible;

§  When one or both partners were previously married to someone who was still alive and whose marriage was still legally binding at the time of the second union, this is known as bigamy;

§  The marriage took place between two people who shared an affinity or consanguinity that was illegal;

§  One or both parties were insane or stupid at the time of the marriage; and

§   Consent is not a basis for the nullity of a marriage, according to the Indian Divorce Act of 1896.





 IV.            Nullity of marriage under Parsi Marriage and Divorce Act, 1936

The Parsi community in India has its own unique marital law. Section 30 of this Act allows for the declaration of a marriage’s nullity at either party’s request when consummation is unattainable due to certain natural causes.

    V.            Nullity of marriage under Special Marriage Act, 1954

Either party may request that their marriage be declared null and void by a declaration of nullity for the purposes of Section 24 of the Act reasons listed below:

§  No spouse is still alive for either party.

§  neither party is of legal age

§  neither party is in a relationship with a prohibited degree

§  Neither party is unable to give legally binding consent and;

§  neither party is incapable of procreating children

§  There are a few other reasons to declare a marriage to be voidable. The respondent’s willful reluctance has prevented the consummation of the marriage. Whether the responder was carrying a child from a previous relationship when they got married. According to the Indian Contract Act, 1872, either party’s consent was obtained by deceit or compulsion.

Interreligious marriages performed in accordance with the terms of the Special Marriage Act are given legal legitimacy and protection. Any person, regardless of cast or religion, is permitted to get married in accordance with this Act.




  1. Procedure for obtaining decree of nullity marriage


To get a decree declaring a marriage null and void, all personal law procedures are essentially the same. The court must receive a petition for the annulment of a marriage. The place wherever the respondent or defendant resided, the marriage was solemnised, or of their most recent resizing together determines the court’s jurisdiction. Then the court will give the respondent or defendant notice to respond in court. In accordance with the facts and hearing, the court grants relief. Court denotes a court created by an Act under parsi legislation. Under the Hindu Marriage Act of 1955 and the Special Marriage Act of 1954, the court is either the city civil court or the family court. In accordance with Muslim law, disputes are resolved through Islamic rituals rather than through courts.


  • Consequences/Effects of nullity of marriage

The support that must be paid to the other party, whether on a monthly, annual, or lump sum basis, is also decided by the court when the nullity of the marriage is declared. The offspring of this union are accepted as genuine children. Declaring that a marriage is null and void means that the parties are no longer husband and wife. They are free to wed one another. There was no status of marriage between two people, according to nullity of marriage. Marriages that are void are not recognised by the law. They are illegal and not supported by the law. Contrary to what is commonly believed, the length of the marriage does not affect whether it is dissolved. There is no need to decide who gets custody of any children born from the marriage because annulments frequently happen even after very brief marriages. The court will divide the couple assets if a long-term marriage is declared invalid. In accordance with the legislation, there is no requirement to name a pleader in family court; however, it can be useful to seek legal counsel to better understand the rules of process.





  • Cases Dealing with Nullity of Marriages
  1. Anima Roy v. Prabadh Mohan Roy[6] , In this instance, two months after getting married, the respondent’s schizophrenia was discovered. The respondent’s psychiatrist couldn’t pinpoint the illness’s exact onset time. As a result, it was decided that there was insufficient evidence to support the marriage-related sickness. Therefore, the nullity was denied.
  2. Kartik Chandra v. Manju Rani[7], After three days of marriage, the respondent in this case began acting strangely. Three months before the examination, the respondent showed up for her matriculation exam. Taking note of the aforementioned information, the court assumed that this mental health had persisted up until her marriage and that the recent collapse had not been considered a sign of insanity at that time.

The respondent had to be admitted into a psychiatric hospital just two weeks after marriage, as was the situation in the previous case. However, due to the disease’s abrupt onset and subsequent precipitation, which was determined to have occurred after marriage, it was determined that incapacity at the time of marriage was not proven.

  1. Gurnam Singh v. Chad Kaur (Punjab High Court, 1980)

In this instance, the court decided that a diagnosis of schizophrenia simply proved that a mental disease existed. It was necessary to demonstrate that the respondent’s condition prevented marriage and childbirth before a nullity ruling could be granted. The respondent was a well-educated woman who was the mother of a daughter. Despite the fact that a mental condition was present, the court declined to declare the marriage invalid in light of this information since it could not be demonstrated that the disorder had rendered the couple incapable.

The court continues to believe that in each of these situations, the parties involved should be able to comprehend the marriage contract and the obligations and responsibilities it entails. It was determined that the respondent had the mental capacity to get married and handle the responsibilities of married life even when she had been found to have subnormal mental capacity, be slow to understand complex questions, but be able to give pertinent answers to simple questions and be able to manage herself and all of her affairs in a straightforward manner.


[2] Halsbury’s Laws of England, 3rd Ed., Vol. 10, p. 664,

[3]  AIR 1991 MP 358

[4] AIR 1989 Raj 97

[5] 1990 (1)HLR 113

[6] AIR 1969, Cal 304

[7] AIR 73, Cal 545


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