Nullity of Marriage — Void & Voidable

Divorce under HMA Section 13 terminates a valid, subsisting marriage — the parties were validly married and the decree ends that valid marriage. Nullity is different: for a void marriage (Section 11), the decree declares the marriage was always null and void — it never legally existed. For a voidable marriage (Section 12), the decree annuls a defective but valid marriage. The key difference: a divorced person was 'married'; a person whose void marriage is declared null was 'never validly married.' This distinction affects second marriages, maintenance, and property rights.

Yes — under Section 5(i) and Section 11 HMA, if a Hindu person marries a second time while their first spouse is alive and the first marriage has not been dissolved by a valid divorce decree or annulment — the second marriage is void ab initio. It does not matter whether the first spouse has been absent for years. Under BNS Section 82, bigamy is also a criminal offence punishable with imprisonment up to 7 years. Exception: if the first marriage was validly dissolved by a competent court before the second marriage — bigamy does not apply.

Yes — as per the Supreme Court's 3-judge bench decision in Sukhdev Singh v. Sukhbir Kaur (2025 INSC 197, decided 12.02.2025), maintenance under Section 25 HMA can be granted even when a marriage is declared void under Section 11. Interim maintenance under Section 24 HMA is also available during pendency of nullity proceedings. The grant of maintenance is discretionary — the court takes into account the conduct of both parties. This overruled conflicting High Court decisions that had denied maintenance in void marriages.

Yes — Section 16(1) of HMA explicitly provides that children of a void marriage are deemed legitimate — regardless of whether a decree of nullity has been granted. For voidable marriages, Section 16(2) makes children conceived before the decree legitimate. Under Section 16(3), these children have property rights limited to their parents' property. The SC in Revanasiddappa v. Mallikarjun (2023) expanded this to include the parents' share of ancestral/coparcenary property after notional partition under HSA Section 6(3).

For void marriage (S.11 HMA): no time limit — a void marriage is null from inception and can be declared void at any time. For voidable marriage (S.12 HMA): (1) Fraud/force ground (S.12(1)(c)): petition within 1 year of discovering the fraud/cessation of force — AND petitioner must not have voluntarily cohabited after discovery; (2) Pre-marital pregnancy ground (S.12(1)(d)): within 1 year of the marriage; (3) Impotence (S.12(1)(a)) and mental disorder (S.12(1)(b)): no specific time limit — but unreasonable delay may be held as a bar by courts.

Under Section 12(1)(c), fraud means misrepresentation or concealment as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. Courts have held the following as fraud: concealment of a prior subsisting marriage; concealment of a serious hereditary disease; concealment of religion/caste where the petitioner would not have married had they known the truth. Mere exaggeration or concealment of minor facts is not fraud. The fraud must be about something material — something that would have caused a reasonable person to not marry had they known the truth.

No — HMA applies only to Hindus, Buddhists, Jains, and Sikhs. For Muslims: Islamic personal law has its own categories of void (batil) and irregular (fasid) marriages, and dissolution under the Dissolution of Muslim Marriages Act 1939. For Christians: the Divorce Act 1869 provides for nullity. For inter-religion civil marriages under SMA 1954: Sections 24-25 SMA provide void and voidable marriage grounds similar to HMA.

Yes — since a void marriage is null from inception (it never legally existed), any interested party can challenge it — including the first wife. The first wife can file a petition for declaration that the second marriage is void under Section 11 HMA. She can also file a criminal complaint for bigamy under BNS Section 82. This is distinct from a voidable marriage (Section 12) — where only the parties to that specific marriage can petition for annulment. Third parties cannot challenge a voidable marriage.

Under Section 5(iv) and the First Schedule of HMA, prohibited relationships include: a person and their lineal ascendant or descendant (parent, grandparent); a man and his brother's daughter, sister's son, mother's brother's daughter, etc. The full list is in Schedule I to HMA. Exception: if the custom or usage governing each of the parties permits marriage within the prohibited degree — the marriage is not void. Certain communities in South India have customary practices permitting uncle-niece or cross-cousin marriages — such marriages are valid under this exception.

Impotence under Section 12(1)(a) requires that the marriage has not been consummated. If the marriage has been consummated at any point, this ground is unavailable. The impotence must have existed at the time of marriage and must have persisted. If the couple has lived together for years without consummation and the petitioner has not condoned the situation, the ground may still be available. Courts look at all circumstances including whether the petitioner raised the issue or acquiesced. There is no rigid time limit but delay and conduct are relevant considerations.