Nullity of marriage Two types of bar/impediments to a marriage. Absolute bar-then marriage is void. Relative bar-then marriage is voidable. Void marriage is void ab initio I;e does not exist from very beginning. Then why called marriage? –because they have undergone ceremonies but they lack capacity to marry. This kind of marriage can neither be approbated nor ratified. Decree of nullity is not necessary in case of void marriage. Only Either party to marriage can file a petition for nullity.

Nullity of marriage Grounds of void marriage under HMA [sec 11] [applicable only on post Act marriage i.e 18 may 1955. Bigamy- Parties sapinda to each other- Parties are within prohibited relationship Voidable marriages-perfectly valid so long as either party to marriage does not avoid by filling petition of annulment in court. One parties dies before challenging it –can stranger challenge ?-No If one party to earlier marriage remarries w/o getting voidable marriage annulled , liable for bigamy.[while party to void marriage can marry w/o any decree of court]

Nullity of marriage Retrospective date from date of marriage-if voidable marriage is annulled. Marriage is deemed to be void from very inception. Wife can ask for maintenance in such case u/s 125 cr.p.c but wife of void marriage can not. Grounds of voidable marriage Impotency of respondent-respondent must be impotent ‘at the time of consummation of marriage.

Nullity of Marriage Partial or imperfect, difficult and painful intercourse amounts to impotency. But if incompetency is occassional , then it does not amount to impotency [Shakuntala v Om Prakash AIR 1981 Del If it is curable then it does not amount to Impotency unless respondent refuses to undergo treatment Rajendra v. Shanti AIR 1978 P&H Mere barrenness/sterility or No uterus does not amount to Impotency, when wife was capable of having sexual intercourse. Bop lies solely upon the petitioner. Evidence of doctor assumes significance. Concept of just ground-under cr.p.c court may order to give maintenance to wife who is living separetely. Ashok singh v. add.session judge, varanasi 1991 Cr.L.J Impotency is also a good defence to a petition for restitution of conjugal rights. Where the fact of impotency was suppressed-other can also claim damage for mental agony and cheating.

Nullity of marriage Mental unsoundness-discussed earlier Fraud or force-absence of free consent renders the marriage voidable.[12(1)(c) If consent obtained by fraud or force Petition must be presented within one year of the discovery of fraud or cessation of force. Once discovered, petitioner must not have lived with other as husband or wife. Any marriage solemnized before or after commencement of Act. A single act of sexual intercourse after such discovery will be fatal to petition. Force implies coercion or undue influence. Concealment of fact must relate to nature of ceremony or which causes an interference with the marital life and pleasure. E.g concealment of identity, serious disease, age , religion, caste, Non disclosure of pre-marriage status [divorcee] amounts to fraud.

Nullity of marriage Concealment of pre marriage relationship and even delivery of child does not amount to fraud Law commission in 59th report 1974 observed-ignore otherwise most of the marriages would become avoidable. Concealment of financial status and educational qualification is fraud [Anurag anand v.Smita Anand AIR 1997 Del A minor girl can avoid marriage u/s 12(1)(c) if she was married against her consent and wishes. With knowledge-valid w/o-he has power to repudiate[Manu said-somebody else’s child can’t be foisted on the husband] Pre marriage pregnancy is ground of voidable marriage not ‘pre marriage unchastity. Grounds to declare it voidable Wife pregnant at time of marriage other than petitioner [Husband]

Nullity of marriage Petitioner did not at time of marriage know it Petition must be presented within one year of marriage.[parsi-2 y] Marital intercourse did not take place with petitioner’s consent after the discovery of pregnancy by petitioner. Bop on petitioner-How-husband had no access to her before marriage [e.g jail/outside India etc

Nullity of Marriage Bigamy-any marriage solemnized after commencement of this Act Punishment may extend to 7 yrs and also fine. If previous marriage was not disclosed to person then punishment may extend 10 years and also fine. Bhurao v state of maharastra 1965 sc Husband entered into second marriage but could but could not perform ceromanies required for marriage , held not liable for marriage. First wife can not file a suit to declare second marriage void u/s 11. She can file declaratory suit u/s 34 of SRA 1963. Bigamy is matrimonial wrong but it is very difficult to prove. Fact is bigamous marriage is performed w/o strictly observing all ceremonies.