Section 11 of the Hindu Marriage Act, 1955 lays down the conditions in which a marriage between persons is regarded as void ab initio. As per the Section, any marriage solemnized at the commencement of this Act shall be if it contravenes any of the conditions which are specified in Clauses (i), (iv) and (v) of Section 5. A marriage would be deemed to be void if:-

• The spouse of any of the party to marriage is living at the time of marriage. [Section 5 (i)]

• The parties to the marriage are within the degrees of prohibited relationship. The marriage would be valid if the customs and usage governing each of them permits such marriage. [Section 5 (iv)]

• The parties to the marriage are sapinda to each other. The marriage will be valid if the customs and usage governing each of them permits such marriage. [Section 5 (v)]

These provisions are applicable only to the marriages which are solemnized after the commencement of the Hindu Marriage Act, 1955. The parties are open to treat the marriage as nullity even without asking for the court declaration. Thus, where a person marries his sister’s daughter after the commencement of this Act, the position of wife was held to be that of concubine, and the marriage would be considered to be void. This was held in the case of Meenakshi Sunderam v. Nammalwar, AIR 1970 Mad. 402

Under this Section the first wife to marriage which is solemnized before the commencement of the Act of 1955 cannot apply for the declaration of her husband’s second marriage to be considered as null and void. However, the second wife can opt for the declaration on the grounds that his first marriage was subsisting. In this case, the first wife can opt for judicial separation.

In the case of Bivendra v. Kamla, it was observed that in view of Section 11 and 17 of the Hindu Marriage Act, 1955, there is no remedy in case of husband marrying another lady.

In the case of Harmohan v. Kamala Kumari, AIR 1979 Ori. 51, it was held by the court that a third party can also file for a suit for declaration that the marriage between the parties was void and ineffective if it adversely affected the legal rights of the third party.

Section 11 enables the party to marriage to get the marriage declared as null and void by a decree of nullity against the other party. On the other hand, in case of contravention of any of the conditions specified in clauses (i), (iv) and (v) of Section 5 by any party, the other party has the right to sue.

The court’s decree o nullity is not necessary in case of a void marriage. The court’s decree of nullity is merely a declaration that the marriage is null and void. The parties to void marriage can contract another valid marriage but the same is not with voidable marriages. In case of a voidable marriage, a decree of nullity by the court is needed first before the second marriage solemnized. A void marriage is void ab initio and therefore such marriage is not a marriage in the eyes of the law and hence a declaration of nullity from the court is not required.

Aishwarya Says:

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