Due to the diversity of religion in India Marriage is treated as part of the personal law of the parties and the people are allowed to perform marriage as per their personal laws. Nullity of marriage is a judicial declaration that marriage was not in existence and marriage was not valid. It refers to the validity of marriage according to law. The declaration makes it clear that the marriage never took place or it was void ab initio. Nullity of marriage is also referred as annulment of marriage. Section 18 to 21 of the Divorce Act, 1869 deals with the nullity of Christian marriage. Legal consequences flow down from a valid marriage. Once a marriage is declared as null and void, no legal consequences flow from it.
For Example, ‘A’ whose marriage was void dies leaving wife ‘W’, son ‘S’, daughter ‘D’ and father ‘F’. Father ‘F’ can claim to inherit entire property of ‘A’ on the ground that the marriage between ‘A’ and ‘W’ was void and the children ‘S’ and ‘D’ illegitimate.
Though nullity, divorce and judicial separation are ways to end a marriage, but they are not similar. There are differences between these three. The nullity of marriage is a legal declaration that marriage was not in existence. There is question of the validity of the marriage. 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. 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.
In Lila v. Laxmi, 1968 All LJ 683 case, the Court held that since a void marriage is a no marriage, a decree of nullity is not necessary.
In Harmohan v. Kamla, AIR 1979 Orissa 51 case, the Court held that a third person has no locus standi to file a petition of nullity, though, it seems he can file a declaratory suit under Section 9 of the Civil Procedure Code read with Section 34 of the Specific Relief Act, 1963.
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Provisions for Nullity of Christian Marriage in Divorce Act:
The Indian Divorce Act, 1869 governs matrimonial matters of the Christian community. The provisions of the act define the power of the court and describe the relief granted by courts to the parties of the marriage such as the dissolution of marriage, nullity of their marriage or judicial separation. When the declaration of nullity of marriage is made with it court also decides the maintenance which is to be given to the opposite party either monthly or yearly or lump sum amount.
Under Section 18 of the Indian Divorce Act, 1869, any husband or wife can move to the District Court or to the High Court by filing a petition that his or her marriage may be declared as null and void.
Section 19 of the Act provides for the grounds for passing such a decree of nullity of the marriage. According to it, a decree for nullity of marriage may be passed on any of the following grounds:
- The impotency or lunacy of the respondent at the time of solemnization of marriage and as well as the at the time of institution of the proceeding;
- That the parties to a marriage are bounded by the prohibited degrees of consanguinity (whether natural or legal) or affinity;
- That either party to a marriage was a lunatic or idiot at the time of the marriage;
- That at the time of marriage, the previous marriage of either party was in force or the former husband or wife of either party was living at the time of new marriage.
Impotency:
Impotency is the lack or absence of capacity to consummate a marriage by an act of normal, natural and complete intercourse. It is a state of mental or physical condition which makes consummation of marriage a practical impossibility. Impotency is an incapacity for sexual intercourse or where coitus is either impossible or very painful. Full and complete penetration is an essential ingredient to complete intercourse. There is no mention of the maximum number of days within which the marriage must be consummated in any statute while dealing with impotency. It is stated in the statute if it is proved that the respondent was impotent at the time of marriage and continued to be so till the time of institution of the suit, a decree of nullity can be given.
Lunacy:
If the court finds that either spouse did not have ability to understand the nature of the marriage contract or the duties and responsibilities of the marriage contract, then there may be grounds for a nullity of marriage. However, if the spouse who did not have the ability to understand the contract gains the capacity to understand it and freely lives with the other spouse, then this ground does not apply. This particular ground most often applies to someone who has been mentally ill or who has suffered from mental or emotional disorder. Under the broad term of mental disorder, mental illness, psychopathic disorder, schizophrenia, and incomplete development of mind have been included
Consanguinity and affinity:
The Indian Christian Marriage Act, 1872 does not specify the degrees of prohibited relationship but merely lays down that a marriage which is forbidden by the personal law of the parties is not valid. This includes prohibitions such as prohibited degrees of consanguinity or affinity. The Divorce Act lays down that the parties should not be within the prohibited degrees of consanguinity (whether natural or legal) or affinity.
Bigamy:
Bigamy means, either of the party has living husband or wife at the time of marriage and that marriage is in force. A marriage is void ab initio if spouse of either parties to marriage are alive.
It is also provided that under this act, the High Court has jurisdiction to pass a decree of nullity of marriage if the consent of the parties to a marriage was obtained by fraud or force and this power of the High Court should not be affected by any provision of Section 19 of this act.
Under Section 20 of the Act, Every decree of nullity of marriage made by a District Judge shall be subject to confirmation by the High Court Division, and the provisions of section 17, clauses 1, 2, 3 and 4, shall, mutatis mutandis, apply to such decrees.
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Procedure to Annul Marriage:
The following process needs to be followed for annulling a marriage:
- Determine the jurisdiction where the case needs to be filed viz the place the marriage was solemnized or where the couple last lived together as husband and wife, or where the estranged wife is residing or in the event of death or whereabout not being known where the petitioner is residing.
- Appoint a lawyer, and provide them with all details and documents to draft the petition.
- File the petition and pay the required court fee.
- Get the decree after the court examines the evidence in detail.
Rights of Children (if any) After Nullity of Marriage:
According to Section 21 of the Act, where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract. Thus, the children out of such wedlock are considered to be legitimate after the annulment of the marriage. They can inherit and demand partition of only the properties of their parents, as deemed children can. In the case of ancestral property, these children can claim their share in the property falling in the share of the parents.
Conclusion:
Nullity of marriage is a judicial declaration that marriage was not in existence and marriage was not valid. It refers to the validity of marriage according to law. The declaration makes it clear that the marriage never took place or it was void ab initio. Nullity of marriage is also referred as annulment of marriage. Once a marriage is declared as null and void, no legal consequences flow from it.