3. Nullity of Marriage — Void and Voidable Marriages

A decree of nullity does not end a marriage the way divorce does — it declares that, in the eyes of law, a valid marriage never properly came into existence at all, or existed only until one party chose to challenge it.

The Problem This Topic Solves

The hardest part of this topic isn't memorising Sections 11 and 12 — it's keeping straight which defects make a marriage void and which merely make it voidable, and why that distinction changes everything about who can challenge the marriage, when, and what happens if nobody ever does. Students also frequently confuse nullity with divorce, since both end up with parties no longer married. This post separates the two cleanly and gives the exact grounds and time-bars examiners test.

Void Marriages — Section 11

A marriage is void ab initio — meaning it never had any legal existence, from the very moment it was performed — if it contravenes any of three specific conditions in Section 5: the condition against bigamy (Section 5(i)), the prohibition on marrying within the degrees of prohibited relationship unless custom permits it (Section 5(iv)), or the prohibition on marrying a sapinda unless custom permits it (Section 5(v)). Either party may present a petition under Section 11 to have this declared by a decree, but strictly speaking the marriage is void whether or not any court ever says so — the decree simply removes any doubt.

Voidable Marriages — Section 12

A voidable marriage, unlike a void one, is perfectly valid and subsisting until a competent court annuls it by a decree of nullity. Until that decree is passed, the marriage has full legal effect. Section 12(1) lists the grounds:

• The marriage has not been consummated owing to the impotence of the respondent.
• The marriage contravenes the mental-capacity condition in Section 5(ii) — a party was incapable of giving valid consent due to unsoundness of mind, or was capable of consenting but suffering from a mental disorder making them unfit for marriage and procreation of children, or had been subject to recurrent attacks of insanity.
• The petitioner's consent (or the guardian's consent, where required) was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.
• The respondent was pregnant, at the time of marriage, by a person other than the petitioner.

Time Bars on Voidable-Marriage Grounds

Section 12(2) puts real limits on the last two grounds so that they cannot be misused indefinitely. A petition on the ground of force or fraud must be filed within one year of the force ceasing or the fraud being discovered, and fails if the petitioner continued to live with the respondent as husband or wife with full knowledge of the true facts. A petition on the ground of pre-marriage pregnancy by another person is not maintainable unless the petitioner was unaware of the fact at the time of marriage, proceedings are instituted within one year of the marriage, and marital intercourse has not taken place since the petitioner discovered the truth.

Comparing Void and Voidable Marriages

• Void marriages (Sec. 11): bigamy, prohibited degrees, or sapinda relationship — void from the very beginning, with or without a decree.
• Voidable marriages (Sec. 12): impotence, mental incapacity under Sec. 5(ii), force/fraud, or concealed pre-marital pregnancy — valid until a decree annuls them.
• Only the party entitled under Section 12 can seek annulment of a voidable marriage; a void marriage can effectively be treated as void by either party.

• Section 12(2)'s one-year time bars exist specifically to stop force/fraud and pregnancy grounds from being raised long after a party has, in effect, accepted the marriage.
• Section 16 legitimises children born of both void and voidable marriages regardless of whether a decree of nullity is ever passed, even though the marriage itself is treated as never having existed or is annulled. But Section 16(3) caps this: such children inherit only from their parents' property, not from any other relative, and the Supreme Court in Revanasiddappa v. Mallikarjun (2023) confirmed they get a share of the parents' property (self-acquired and, via a notional partition, joint-family) but do not become coparceners with rights over the wider ancestral estate.
• A decree of nullity is different from divorce in one crucial way for exam answers: divorce ends a marriage that validly existed; nullity declares that, legally, either no marriage ever existed (void) or the marriage is being undone from a specific point because of a defect present at its formation (voidable).

A Practical Example

A man already married under Hindu law goes through a second marriage ceremony with another Hindu woman without divorcing his first wife. The second marriage is void under Section 11 the moment it is performed — it contravenes the bigamy condition in Section 5(i). The second wife does not need to wait for anyone's permission to treat this as no marriage at all, though she may still approach the court under Section 11 for a decree confirming this, particularly to settle questions about maintenance or the legitimacy of any children.

Quick Revision Points

• Section 11 — void marriages: bigamy, prohibited relationship, sapinda relationship (Sec. 5(i), (iv), (v)). Void from the start, decree or no decree.
• Section 12 — voidable marriages: impotence, mental incapacity, force/fraud, concealed pregnancy. Valid until annulled by decree.
• Section 12(2) time-bars apply strictly to the force/fraud and pregnancy grounds.
• Section 16 protects the legitimacy of children from both void and voidable marriages, but Section 16(3) limits their inheritance to the parents' own property only — Revanasiddappa v. Mallikarjun (2023).
• Nullity is not divorce — nullity addresses a defect present at the marriage's formation; divorce ends a validly formed marriage.