Voidable Marriage Essay

Voidable Marriage Essay-82
Annulment is a legal procedure for declaring a marriage null and void.

Bigamy - If either spouse was still legally married to another person at the time of the marriage then the marriage is void and no formal annulment is necessary. A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption. A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.

A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties.

In Section 5 of the Hindu Marriage Act 1955, there are some conditions laid down for a Hindu Marriage which must be fulfilled in case of any marriage between two Hindus which can be solemnized in accordance with the requirements of this Act.

Section 5 Condition for a Hindu Marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (i) Neither party has a spouse living at the time of the marriage; (ii) At the time of the marriage, neither party,- (a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity or epilepsy; (iii) The bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage; (iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two: An annulment may be granted when a marriage is automatically void under the law for public policy reasons or voidable by one party when certain requisite elements of the marriage contract were not present at the time of the marriage.

A marriage is automatically void and is automatically annulled when it is prohibited by law.

Section 11 of Hindu Marriage Act, 1955 deals with: Nullity of marriage and divorce- Void marriages - Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 mentioned above.

A marriage by an underage party may become legally binding and incapable of annulment if the cohabitation of the parties as husband and wife continues voluntarily after the person reached the age of consent.

Fraud or Force - If the consent to the marriage contract was obtained either by fraud or force, then there are grounds for an annulment.

2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

Impotency - If either spouse was physically incapable of entering the marriage at the time of the marriage, usually because of a lack of ability to have sexual intercourse, and if this inability appears incurable or if the spouse refuses to take any action to cure the inability, there are grounds for an annulment.

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