As per Section 11 of the Hindu Marriage Act, any marriage solemnized in violation of Clause (i) (already having spouse); (iv)(relationship under prohibited degree) and (v) (sapindas) of section 5 of the Hindu Marriage Act is void and the same may be declared by a decree of nullity, whereas under Section 12 (in case of either party’s insanity and unsoundness of mind) of the Hindu Marriage Act, a voidable marriage may be annulled by a decree of nullity.
Void and voidable Marriages
The different expressions used in these two provisions cannot go unnoticed. So far as Section 11 of the Hindu Marriage Act is concerned, the marriage is not annulled and is only declared as void by a decree of nullity. Thus, what is done by the court is only a declaration and not annulment of marriage.
But, under Section 12 of the Hindu Marriage Act, since the marriage is not void ab initio, the same requires to be annulled by a decree of nullity. Here, it is not declaration but a positive act of annulment of the marriage by a decree of nullity.
Similarly, under Section 3 of the Prohibition of Child Marriage Act also, the court annuls the marriage by a decree of nullity if marriage is solemnized when parties were children or either party was child. Thus, Section 12 (1) of the Hindu Marriage Act and Section 3(1) of the Prohibition of Child Marriage Act are in pari materia. Therefore, unless there is a positive decree passed by the competent court annulling the child marriage, the marriage shall be subsisting.
Differences between the two
- The term “valid” denotes the converse of the term “invalid”. In other words, a voidable marriage is not invalid. But, at the same time, it cannot be construed stricto sensu that it is a valid marriage.
- So far as the victim of the voidable marriage at whose option the marriage can be annulled is concerned, all rights emanating from a valid marriage will ensue in favour of her/him.
- But, so far as the other spouse is concerned, the said marriage shall confer only limited rights upon him/her. But at the same time, it would impose all legal liabilities upon him/her towards the other spouse who is the victim of the voidable marriage.
For example, if a minor girl is married to a boy aged more than 21 years, as per the Prohibition of Child Marriage Act, undoubtedly, the marriage is a child marriage and, therefore, the same is voidable. From out of the said voidable marriage, the minor girl will acquire all the rights against the male contracting party which are otherwise available to a wife of a valid marriage.
But, the male contracting party who has contracted the minor’s marriage will not acquire all the rights which would otherwise emanate from a valid marriage as against the wife except certain limited rights. However, it will impose all liabilities upon the male contracting party such as liability to maintain the victim of the child marriage, liability to provide shelter and liability to afford protection, etc.
For instance, if the female child contracting the marriage declines to live in the matrimonial home and prefers to live elsewhere either with parents or with somebody else, the male contracting party will not have right to obtain a decree under Section 9 of the Hindu Marriage Act for restitution of conjugal rights.
Similarly, until the female [child] attains the age of 18 years, the male cannot file a petition for divorce on any ground. If the marriage is construed to be valid stricto sensu as per the classification referred to above such rights under Sections 9 and 13 of the Hindu Marriage Act will very much be available to the male. Because the marriage remains to be voidable and the same is not valid stricto sensu, though out of the said marriage the male [major] burdens himself with liabilities towards his minor wife [child], he does not acquire all the rights against his wife like any husband of a valid marriage.
This is the basic difference between a valid marriage stricto sensu and a voidable marriage.
The legal position under Hindu marriages act, 1955
Into the scheme of the Hindu Marriage Act the expressions ‘husband’ and ‘wife’ have not been defined anywhere in the Act. But, in Sections 9 (restitution of conjugal rights) and 13(divorce) of the Act these two expressions have been used.
Incidentally, we may notice that, reliefs under sections 9 and 13 of the Act are available only to parties to a valid marriage. It is by virtue of such valid marriage, the parties to the marriage acquire the status of husband and wife. Obviously, this is the reason why, in sections 9 and 13 of the Act, the legislature used the expressions ‘husband’ and ‘wife’.
But, the legislature has intentionally omitted to use these expressions viz., husband and wife in sections 11 and 12 of the Act. In section 11, the expression used is ‘either party thereto against the other party’.
In section 12, the expressions used are ‘petitioner’ and ‘respondent’. There can be no doubt that parties to a void marriage do not acquire the status of husband and wife at all since the marriage is ipso jure void. It is because of this reason, in section 11 of the Act, the legislature has consciously omitted the expressions ‘husband’ and ‘wife’ and instead has used the expressions ‘either party thereto against the other party’.
Similarly, in section 12 of the Act, had it been the intention of the legislature to give the parties to a voidable marriage, the full status of husband and wife, the legislature would have used the expressions ‘husband’ and wife’. The omission to use these two expressions in section 12 perhaps, would only reflect the intention of the legislature not to give the full status of the husband and wife to the parties to a voidable marriage, like the spouses of a valid marriage.
Sections 9 and 13 are in pari materia in so far as the expressions referable to the parties to the marriage are concerned, whereas sections 11 and 12 are in pari materia in terms of the expressions referable to the parties to a voidable marriage.
Legal position in Prohibition of Child Marriage Act, 2006
If we look into the provisions of the Prohibition of the Child Marriage Act, it is obvious that here also, the legislature has consciously omitted the expressions ‘husband’ and ‘wife’. In particular, in section 3 of the Act, the expression ‘contracting party’ has been used. The term ‘contracting party’ is defined in section 2 (c) of the Act which states that a contracting party, in relation to a marriage means either of the parties whose marriage is or about to be thereby solemnized.
Thus, to some extent, Section 3 of the Prohibition of Child Marriage Act is in pari materia with Sections 11 and 12 of the Hindu Marriage Act insofar as the expressions referable to the parties to the marriage are concerned.
This would again go to strengthen our conclusion that the male who contracts a child marriage of a female child cannot attain the full status of a husband like a husband of a full-fledged valid marriage. To repeat, by the said marriage, though he burdens himself with legal liabilities arising there from, he acquires only limited rights as we have illustrated above.
T. Sivakumar v. The Inspector of Police, (2011)