Nullity of Marriage — Void & Voidable विवाह की अमान्यता — शून्य और शून्यकरणीय विवाह — धारा 11 और 12 HMA

Divorce dissolves a valid marriage that existed — after divorce, both parties are free to remarry and the marriage is treated as having existed until dissolution. Nullity (especially void marriage) says the marriage never legally existed — it is treated as never having taken place. Annulment of a voidable marriage is closer to divorce — the marriage existed but is now cancelled. Key practical differences: (1) A void marriage can be questioned by anyone (including third parties and even after death of parties); (2) Nullity has implications for bigamy charges; (3) Status of the parties differs — a person whose first marriage is declared void was never legally married; (4) Property rights of children are identical in both cases under S.16 HMA.

Yes — under Section 5(i) and Section 11 of the 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 many years. Under the Bharatiya Nyaya Sanhita 2023 (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 landmark 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. The court also held that interim maintenance under Section 24 HMA is available during pendency of nullity proceedings. The grant of maintenance is discretionary — the court takes into account the conduct of both parties. This ruling overruled earlier conflicting High Court decisions that had denied maintenance in void marriages.

Yes — Section 16(1) of the Hindu Marriage Act, 1955 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 of annulment legitimate. Under S.16(3), these children have property rights limited to their parents' property. The Supreme Court in Revanasiddappa v. Mallikarjun (2023) expanded this to include the parents' share of ancestral / coparcenary property.

For void marriage (S.11 HMA): there is 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 must be filed within 1 year of discovering the fraud / cessation of force — AND the petitioner must not have voluntarily cohabited with the respondent after discovering the fraud; (2) Pre-marital pregnancy ground (S.12(1)(d)): petition must be filed 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.

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; misrepresentation about occupation, financial position or social standing in some cases. Mere exaggeration or puffery 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.

Yes — but the applicable law differs. For Muslims: the personal law does not use the term "nullity" as such, but certain marriages under Islamic law are batil (void) or fasid (irregular/voidable). Muslim women can also seek dissolution under the Dissolution of Muslim Marriages Act, 1939. For Christians: nullity is available under the Divorce Act, 1869 — which provides grounds for dissolution and nullity of marriage. For inter-religion civil marriages under the Special Marriage Act, 1954: Sections 24-25 SMA provide void and voidable marriage grounds similar to HMA.

Yes — since a void marriage is null from inception and is treated as if it never existed, any person with an interest 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 Section 82 BNS 2023. This is distinct from a voidable marriage (S.12) where only the parties to the marriage can petition — third parties cannot seek annulment of a voidable marriage.

Under Section 5(iv) and the First Schedule of HMA, the following are prohibited relationships (among others): a person and their lineal ascendant or descendant (parent, grandparent, great-grandparent etc.); a man and his brother's daughter, sister's son, mother's brother's daughter, father's sister's son or daughter, etc. The full list is in the Schedule to the HMA. Exception: If the custom or usage governing each of the parties permits marriage between those within the prohibited degree — the marriage is not void. This exception covers certain communities in South India where uncle-niece or cross-cousin marriages are customary.

Impotence under Section 12(1)(a) HMA — as a ground for voidable marriage — requires that the marriage has not been consummated. If the marriage has been consummated at any point, this ground is no longer available. 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 voluntarily condoned the situation, the ground may still be available. However, courts look at all circumstances including whether the petitioner raised the issue or acquiesced to the situation. There is no rigid time limit but delay and conduct are relevant considerations.