Void and Voidable Marriage under Hindu Marriage Act, 1955, and Divorce

Abstract

In this assignment, I have to discuss about the thoughts relating to void and voidable marriage under Hindu Marriage Act and after the discussion I have to discuss about the difference between Judicial Separation and Divorce under the same Act. So to complete the whole assignment firstly I will discuss about void and voidable marriage and later on I will discuss about judicial separation and divorce.

Before starting the discussion I want to tell something about marriage. So, marriage (Maritagium), Marriage has not been defined in any parliamentary statute. Personal laws are, however, clear on the point. It is known to be a process or event signifying the assumption of roles of husband and wife in accordance with the jural tenets prevalent in the society or stratum of society to which the parties belong, in contemporary societies, marriages are by and large contracts which have the legal sanction of the State.

Even though, in most parts of the marriage may be contracted without religious ceremonies, historically marriage was the concern of religious institutions. Later, it became the official concern of the State. F. Stroud in his Judicial Dictionary, 2nd Ed. compiled — "I conceive that marriage may be defined as the voluntary union for life of one man and one woman, to the exclusion of all others, the man and woman not being legally prohibited from marrying one another (per Penzance, J.O., Hyde v Hyde., LRIP & D 133:35 LJPM & A 58). The Form or Ceremony of marriage is not essential, so long as the marriage, as above defined, is intended and the law is observed and the contracting parties. have the legal capacity thereunto" — Dairymple v Dalrymple, 2 Hagg Con 54.

Now the thing is a Hindu for the purpose of the Hindu Marriage Act, the answer may be that he is a Hindu, who is belong to a: 1. Arya Samaji; or 2. Brahmosamaji; or 3. Buddhist; or 4. Jain; or 5. Lingayat; or 6. Prarthana Samaji; or 7. Sikh; or 8. Virashaiva; or 9. Legitimate or illegitimate child whose both the parents belong to any of the groups of 1 to 8 above; or 10. Any legitimate or illegitimate child whose (/) one of the parents belongs to any group of 1 to 8 above, and (//) who is brought up as a member of that group, i.e. with any group of 1 to 8 above as the case may be; or 11. A convert to any group of 1 to 8 above; or one not a Muslim, Christian, Parsi or Jew, but (/) domiciled in the territories where this Act applies, and (//) it is not proved that such person would not have been governed by the Hindu law if this Act had not ften passed.

While defining Hinduism, some tried to find its root in the Vedas. Some have limited it to innumerable religious rites and practices, casteism, rebirth after death and idolatry and so forth. But to be known as a Hindu, one needs hardly know what Veda is. He may also ignore casteism. Inter-caste marriage does not strip a Hindu of his religion. A follower of the great sage Charbak may not be a believer of atma or life after death. An advaitabadiis may not an idolator, but all of them are Hindus.

The words "Hinduism" and "Hindutya" are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the people of India depicting the way of life of the Indian people — J.S. Verma J in Ramesh Yeshwant Prabhoov Prabhakar K. Kunte (1986) I SCC 130.

Now we are going to know about void and voidable marriage, so, a marriage may be void Marriage if it has (I) Living spouse (II) Bigamy {Bigamta) (III) Prohibited degrees, Sapinda (iv) Under-age (v) Impotency, (VI) Lunacy or unsoundness of mind (vii) Mental disorder of spouse (viii) Defective formalities; and may be voidable Marriage if it has (/) Impotency, (II) Fraud, coercion, undue influence or misrepresentation (Hi) Fraud, whether giving false address in the matrimonial advertisement constitutes (iv) Consent (v) Coercion (vi) Undue influence (vii) Misrepresentation (Suggestio Falsi) (viii) Limitation, (/x) Consent obtained by misrepresentation (x) Lunacy or unsoundness of mind (xi) Pre-marital pregnancy by another person (xil) Wilful refusal to consummate (xIII) Venereal disease in a communicable form (xiv) Impotency.

Keywords: void and voidable marriage

JEL Classification: K39