Nullity of marriage

In one minute

A decree of nullity says that a marriage was not valid. A void marriage (section 11) is invalid from the start. A voidable marriage (section 12) is valid until a court annuls it, and only the aggrieved party can ask for that.

A void marriage arises from a living spouse, a prohibited relationship or a sapinda relationship. A voidable marriage arises from impotence, mental disorder, force or fraud, or pregnancy by another person. Children of both kinds are legitimate under section 16.

Legal provision

• Section 11: a marriage solemnised after the Act is null and void if it breaks clause (i), (iv) or (v) of section 5. Either party may ask for a decree of nullity.
• Section 12(1): a marriage is voidable and may be annulled on any of four grounds. They are set out in the explanation below.
• Section 12(2): limits on petitions under clauses (c) and (d).
• Section 16: legitimacy of children of void and voidable marriages.
• Sections 24 and 25: maintenance and alimony can be asked in these proceedings, as in any proceeding under the Act.

Meaning and definition

A decree of nullity is a court order that declares a marriage void or annuls a voidable one. A void marriage has no legal effect from the start. A voidable marriage is valid unless and until annulled.

• Nullity of marriage
  • Void (section 11)Living spouse, prohibited relationship, sapinda relationship: section 5(i), (iv), (v).
  • Voidable (section 12)Impotence, mental disorder, force or fraud, pregnancy by another person.

Detailed explanation

Step 1: void marriages (section 11)

A marriage is void in three cases. Either party had a living spouse (section 5(i)). The parties were in a prohibited relationship (section 5(iv)), or they were sapindas (section 5(v)). In the last two cases the marriage is not void if a custom permits for both parties. Either party may ask for a decree of nullity against the other, but the marriage is invalid even without a decree. A court decree gives clarity and proof.

Step 2: voidable marriages (section 12)

1. Impotence (12(1)(a)): the marriage was not consummated owing to the impotence of the respondent.
2. Mental disorder (12(1)(b)): the marriage broke the mental capacity condition of section 5(ii).
3. Force or fraud (12(1)(c)): the consent of the petitioner was obtained by force, or by fraud about the nature of the ceremony or a material fact about the respondent.
4. Pregnancy by another person (12(1)(d)): the wife was pregnant by someone other than the petitioner at the time of the marriage. This ground needs the petitioner to show that he was ignorant of it.

Step 3: limits on voidable petitions (section 12(2))

• Force or fraud: no petition after one year from when the force ended or the fraud was discovered. No petition if the petitioner has since lived with the other party as husband or wife with full consent.
• Pregnancy: the court must be satisfied that the petitioner did not know the facts at the time. The petition must be filed within one year of the marriage. No marital intercourse with consent may have taken place after the petitioner discovered the facts.

Step 4: legitimacy of children (section 16)

Children of a void marriage are legitimate, even without a decree (section 16(1)). A child conceived before a decree of nullity for a voidable marriage is also legitimate (section 16(2)). Section 16(3) says these children have no rights in the property of any person other than their parents. The Supreme Court in Jinia Keotin read this narrowly: such a child gets no birthright in the wider joint family property. In Revanasiddappa v. Mallikarjun (2023), a three-Judge Bench reconsidered the matter and held that these children are entitled to the property of their parents and not of any other person.

Step 5: effects of the decree

A decree under section 12 annuls the marriage from the date of the decree. In a void marriage the second spouse has no status as wife or husband, as in Yamunabai. The court may still award interim and permanent maintenance on the application of a party, as in other proceedings under the Act.

Exceptions and special rules

• Age breach: a breach of section 5(iii) does not make a marriage void or voidable under the Act.
• Customs: custom can save a marriage in a prohibited or sapinda relationship.
• Child marriage: the Prohibition of Child Marriage Act, 2006 makes a child marriage voidable at the option of the party who was a child.

Don't confuse: void and voidable marriages

Point	Void marriage	Voidable marriage
Section	11	12
Validity	Invalid from the start	Valid until annulled
Who can petition	Either party	Only the aggrieved party
Time limit	None	Yes, on some grounds
Ratification by conduct	Not possible	Possible; the marriage stands if not challenged

Common mistakes

• Writing that a voidable marriage is void until it is set aside. It is valid until annulled.
• Placing impotence or fraud under section 11. They are section 12 grounds.
• Saying that an under-age marriage is void.
• Forgetting the time limits of section 12(2).
• Saying that children of a void marriage are illegitimate.

Apply it

Problem

Geeta, aged 20, was told that her fiancé Raj was an engineer in Hyderabad. After marriage she found that he is a daily-wage labourer. She petitions for annulment 18 months after the marriage. Decide.

Issue

Does fraud about a material fact make the marriage voidable, and is the petition in time?

Rule

Section 12(1)(c) makes a marriage voidable on fraud about a material fact concerning the respondent. Section 12(2)(a) bars a petition more than one year after the fraud was discovered.

Application

Raj's occupation is a material fact that was misstated. The one-year period runs from discovery, and the petition must come within one year of discovery.

Conclusion

If Geeta discovered the fraud within the last year, her petition is in time. If she discovered it long before, the bar applies.

Leading case laws

• Jinia Keotin v. Kumar Sitaram Manjhi

  Facts. Children of a man's second, void marriage claimed a share in the wider joint family's coparcenary property.

  Principle. Section 16(3) limits legitimacy to succession to the parents' own property. It gives no coparcenary birthright in the wider joint family property.

  Why it matters. It shows how far section 16 goes. It was reconsidered in Revanasiddappa v. Mallikarjun (2023).

• Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav

  Facts. A woman went through rites with a man whose first wife was alive and claimed maintenance as his wife.

  Principle. The marriage was void under sections 5(i) and 11, and she could not claim the status of a wife under section 125 of the Code of Criminal Procedure.

  Why it matters. It shows the effect of a void marriage on the second spouse.

How to write this answer in the exam

Key points to remember

• Void (section 11): sections 5(i), (iv), (v). Invalid from the start.
• Voidable (section 12): impotence, mental disorder, force or fraud, pregnancy by another.
• Voidable marriage is valid until annulled; only the aggrieved party can petition.
• Section 12(2) time limits: one year on force, fraud and pregnancy.
• Section 16: children of void and voidable marriages are legitimate, with rights in their parents' property.

Quick self-test

Related topics

• Conditions of Hindu Marriage
• Divorce
• Monogamy