What is Void Marriage
A void marriage is no marriage. It is a marriage that does not exist from its beginning. This is given under Section 11 of the Hindu Marriage Act, 1955.
It is termed as marriage because two persons undergo the ceremonies of marriage, but due to some incompetency, it is void.
If a brother and sister perform all the ceremonies of marriage and start living as husband and wife, they will not become husband and wife in the eyes of the law even though they have performed the ceremonies and rituals of a marriage.
Grounds of a Void Marriage
1. Bigamy (it means either party has a spouse living at the time of marriage)
2. When the parties are sapinda to each other (refer Section 3(f) of the Hindu Marriage Act, 1955).
3. When the parties are within the prohibited degree of relationship (see Section 3(g) of Hindu Marriage Act, 1955)
The other two cases in which marriage is void.
1. If proper ceremonies of marriage have not been performed.
2. If a marriage has been performed in violation of the requirement of Section 15 of the Hindu Marriage Act. (Divorced persons when may marry again.)
What is Voidable Marriage
A voidable marriage is a perfectly valid marriage, so long it is not avoided. It can be avoided only on the petition of one of the parties. This is given under Section 12 of the Hindu Marriage Act, 1955.
If one of the parties dies before the marriage is annulled, then no one can challenge the marriage. The marriage will remain valid forever.
Suppose the husband is impotent and thus can not consummate the marriage. Now, if the wife wants, she can continue being his wife and keep the marriage alive. It will just be like any other regular marriage. But if she likes, she can avoid the marriage and file a petition in a competent court for cancellation of marriage or to declare it as a void marriage.
Grounds of a Voidable Marriage
1. Marriage not consummated due to the impotency of the respondent.
2. Respondent is suffering from a mental disorder as to be unfit for marriage and procreation of children.
3. The consent of the petitioner has been taken by fraud or force.
4. That the respondent was pregnant by some other person other than the petitioner.
Note: The ground is the pre-marriage pregnancy of the wife and not her unchastity. (relating to or engaging in sexual activity, especially of an illicit or extramarital nature)
“Sapinda Relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upward in each case from the person concerned, who is to be counted as the first generation.