FORMS, VALIDITY AND VOIDABILITY OF MARRIAGE

This article is written by Saloni of 7^th semester of BBALL.B of Bhagat Phool Singh Mahila Vishwavidyalaya, Department of Laws, Khanpur Kalan, an intern under Legal Vidhiya

ABSTRACT

As we all know marriage is a mutually exclusive connection between a man and a woman that legally establish them as husband and wife. Marriage is a universal phenomenon. Every human being has profound emotions towards the institution of marriage. The concept of marriage is much more cherished in India since a man and a woman are thought to be united in a sacramental union. Marriage is typically thought of as an enduring association between a man and a wife. It is a recognized union by both society and law. There are various forms of marriage exist worldwide although not all are legal in every society. The religious affiliations of the persons involved are quite important because marriage is a significant component of personal laws. In India, various family law regulations for marriages were developed for various religions. The Hindu Marriage Act of 1955 governs Hindu marriages, whereas the Muslim Marriage Act of 1957 governs Muslim marriages. For Christian and Parsi weddings in India, there is the Christian Marriage Act, 1872, and the Parsi Marriage and Divorce Act, 1936. The Special Marriage Act of 1954 was also passed for interfaith marriages as a result of the times. Different stipulations in these laws can either make a marriage legitimate, void, or voidable. The main purpose of this article is to understand the different forms of marriage and to also understand the conditions which renders a marriage void or voidable.

KEY WORDS: valid marriage, void marriage, voidability of marriage, essential conditions of marriage under different personal laws

INTRODUCTION

The idea of marriage has existed for centuries in the majority of countries. However with the changing times the meaning of marriage has gone through a substantial change. Since India is a secular nation with many distinct religions, people from various religions have various marriage customs. According to the rules of their individual laws, a marriage is said to as legitimate, void, or voidable. The statutes of different personal laws have different provisions, making a marriage valid, void or voidable. There is no universal definition available for the word marriage. Various anthropologists tried to define marriage in their own way. Every religion defines marriage in its own way. For example Hindu defines marriage as a personal, socio-religious obligation. Islam regards marriage as an obligation, “Sunnah” which must be fulfills by every Muslim. However, Christianity views marriage as being essential to survival. Because it places emphasis on the development of a mutually beneficial relationship between husband and wife and on their obligation to one another

DEFINITION OF MARRIAGE

[1]According to famous anthropologist George Murdock “marriage is a universal institution that involves residential co-habitation, economic co-operation and the formation of the nuclear family.”

[2]However, Westermarck emphasized marriage as a recognized relationship between a man and a woman, where the spouse lives together, and where the couple has explicitly accepted mutual sexual rights.

[3]Malinowski defines marriage as a “contract for production and maintenance of children.”

DIFFERENT FORMS OF MARRIAGE

Numerous criteria are used to categorize marriages. The many types of marriage depend on how many wives or husbands a person has. The main types of marriage, according to the number of partners, are:

Based on number

1. Monogamy: The Greek words “monos,” which denotes one, and “gamy,” which suggests marriage, are combined to form the English word “monogamy.”  It is sometimes referred to as a heterosexual union or a typical marriage. Monogamy is the practice of only having one partner at a time. The most common and socially acceptable type of marriage appears to be monogamy. In this arrangement, a man is limited to having one wife, and a woman is limited to having one husband at a time. Serial monogamy and Straight monogamy are the two additional categories under which monogamy is divided.
2. Serial monogamy: This type forbids a man from marrying more than one woman and requires him to stay monogamous his entire life. He can only remarry after the death of his first wife or following a divorce.
3. Straight monogamy: Remarriage is not permitted in this situation for any of the couples, even if one of them has passed away or divorced.
4. Polygamy: polygamy is the second most common form of marriage. In this type of union, a man or woman may wed more than one woman or man and cohabitate with each spouse simultaneously. The Muslim community as well as several tribes favors this type of union. Polygamy exists in two different forms: Polyandry and polygyny.
5. Polyandry: In this type of union, a woman can be married to multiple men simultaneously. Most cases of polyandry involve women who marry brothers. The khas tribes in Uttaranchal frequently engage in this activity. Polyandry is of two types. (i) Fraternal Polyandry, and (ii) Non-Fraternal Polyandry
6. Polygyny: Here, one man may be married to two or more women at once. Polygyny is the correct term for a marriage between a man and multiple women. Ploygyny is of two types: (i) Sororal Polygyny and (ii) Non- Sororal Polygyny.

On the basis of spouse selection rules:

1. Endogamous marriage: it denotes marriage within a culturally defined group such as within caste, sect and tribe etc. Caste-endogamy, sub-caste endogamy, race endogamy, and tribe endogamy are other forms of endogamy.
2. Exogamy: Exogamy is the term used to describe marriages between members of different Gotras. It is a marriage in which one individual enters into another kin group while leaving their own. This type of marriage is practiced among Jewish, Africana and Native American cultures.

Marriage: based on social status

Hypergamy and hypogamy marriage: Both hypogamous and hypergamous marriages take place between partners with comparable social position. There are two types of marriage that are tied to social status

1. Hypergamy marriage: when a guy marries a lady from a lower social class or when a woman marries “up,” raising her social status.
2. Hypogamy marriage: In this case, a man marries “up,” or to a woman from a higher socioeconomic class. 

Other form of marriage:

Group marriage: An unusual type of marriage called a “group marriage” involves multiple guys marrying multiple girls at the same time. This type of union was historically common among the Toda, but it is now unknown in all current societies.

Fixed term marriage:

Temporary unions that are entered into for a set amount of time are called fixed-term unions. The parties part ways when the time period is through. For people whose society forbids having sex outside of marriage, such as soldiers in times of war, fixed-term marriages legalize sexual interactions.

VALIDITY AND VOIDABILITY OF MARRIAGES

Most societies had the concept of marriages for centuries. However, with changing times and the introduction of the law in social affairs, the meaning of marriage has gone through a substantial change. For example in 1978 the legal age for marriage was increased to 18 years for women, legal recognition to same sex marriage etc. The Indian Legal System has divided marriages into three categories: Valid Marriage, Void Marriage, and Voidable Marriage as a result of the steady change in social values, practices, beliefs, and modernity. Marriage can be called as valid, void or voidable as per the regulation of different personal laws. Marriage is a substantial part of the personal laws; hence religion plays a significant role in marriage.

In the context of marriage, formal validity and essential validity are two different ideas.

Formal validity: The formal conditions that must be satisfied for a marriage to be regarded as legally binding are referred to as formal validity. The marriage may be deemed voidable if these formal conditions are not followed, but this does not necessarily imply that the union is invalid from the very beginning.

Essential validity: It refers to the fundamental prerequisites that must be completed in order for a marriage to be regarded as legal. Age, capacity, consent, and the absence of any legal restrictions on the marriage are a few examples of these prerequisites. The marriage may be deemed void, which indicates that it is inherently invalid, if certain fundamental prerequisites are not met.

Firstly we will understand the meaning of valid, void and voidable marriage.

Socially only valid marriages are accepted which fulfills all the necessary conditions of a marriage. On the other hand only valid marriages are subjected to legal remedies. A void marriage, as the term implies, is null and of no legal significance. Contrarily, a marriage that is voidable is one that is valid unless avoided by one or both parties.

Void marriage

It is common to refer to a marriage as void if it does not meet the requirements for a lawful union. No marriage exists if it is void. The definition of “no legal effect” in law is “void.” In other words, they are unenforceable by law. A void marriage is void ab intio, i.e., void since the very beginning. Although there are various grounds for declaring a marriage null and void in India, all personal laws consider marriages that fall within the parameters of bigamy or relationships that are illegal (with the exception of marriages between Muslims) to be null and void. 

Voidable marriage

A marriage that is voidable is valid up until one of the parties decides to annul it. Simply said, if one or both parties do not prevent the marriage by submitting a petition to the court, a voidable marriage has all the components of a legitimate marriage.

VALIDITY AND VOIDABILITY OF MARRIAGE UNDER DIFFERENT PERSONAL LAWS

We will analyse the conditions of a valid marriage under different personal laws and their consequences of not fulfilling the essentials of a marriage.

HINDU MARRIAGE ACT 1955

Although Hinduism, Buddhism, Jainism and Sikhism are four different religions they are also governed by the same

Conditions for the validity of Hindu marriage:

1. The HMA’s Sections 5 and 7 outline the requirements and prerequisites for a marriage to be lawfully consummated between two Hindus (including Buddhists, Jains, and Sikhs).
2. At the time of the marriage, the person doesn’t have a spouse who is still alive. Having two wives at the same time would be considered bigamy and is prohibited by the Hindu Marriage Act. According to section 494 of the Indian Penal Code, it is illegal.
3. The bride must be at least 18 years old and the groom at least 21. It is important that the person have reached the age limit indicated in this legislation before being married.
4. The consent cannot be obtained through threats or force. In the current world, a father cannot marry off his daughter without her permission. The union is null and void.
5. Unless it is permitted by their customs or tradition, they do not come under the sapinda connection or within the range of prohibited relationships.
6. At the time of the marriage, the person must not have any mental illnesses or insanity.

As a result, for a marriage to be legal between two Hindus, a number of requirements must be met. Section 5 of the Hindu Marriage Act of 1955 lists the prerequisites for a legal marriage.[2] It covers things like monogamy, mental clarity, age of marriage (18 for women and 21 for males), going beyond the range of relationships that are forbidden, and going beyond sapinda relationships. Hindu marriages are considered to be valid if all of these requirements are met.

In accordance with Section 11 of the Hindu Marriage Act, a marriage is deemed void if it does not adhere to the following conditions:

• When one of the parties marries, the marriage must be regarded as null and void if that party still has a spouse.
• The parties’ marriage would be null and void if they were engaged in an prohibited relationship, unless the customs permitted it.
• Marriages between sapindas, or people who are related to or from the same family as each other, are referred to as sapinda marriages.

Case: Smt. Sakuntala Devi v. Amar Nath [4]In this case, the court noted that if a custom exists that permits marriage between the parties to the extent of a prohibited relationship, the custom must meet the criteria for a valid custom, be reasonable, and not be contrary to public policy.

VOIDABLE MARRIAGE
the competent court may declare this marriage null and void in accordance with the Hindu Marriage Act of 1955. In such a marriage, the spouses must decide whether they want to stay married or have the union annulled. Examples of reasons to declare a marriage voidable include the following:

• The party to the marriage is incapable of giving consent due to mental incapacity.
• The party’s mental disorder stopped her from having children at the time of the marriage.
• If the party has experienced many episodes of madness.
• If one of the parties deceives or coerces the other into consenting to a marriage
• The marriage will be voidable if either the bride or the groom is under the age of 21, or both. If, at the time of the wedding, the respondent is expecting a child other than the bridegroom’s

MUSLIM LAW FOR MARRIAGE

Muslim marriages can be of two kinds:

• Permanent marriages, and
• Temporary or Muta marriages

Valid Permanent Marriage
The majority of Muslims enter into Sahih marriages, which are considered to be legally binding permanent unions in accordance with Islamic law. The terms of marriage are laid forth in a Nikah-Nama, a marriage contract that is signed by the parties.

The essentials of a valid permanent marriage include the following:

1. A marriage proposal from one party and acceptance by the other

2. Mahr or Dower 

3. A single meeting is required for the proposal and acceptance.

4. The proposal and acceptance must be witnessed by a minimum of two men, or one man and two women who are both Muslim adults and in good mental health.

5. Shia Muslim marriages, however, are exempt from this requirement and can be solemnized without the presence of witnesses.

6. The marriage should have the parties’ free consent.

7. The parties should be able to legally enter into a marriage

8. Neither of the parties should be legally barred from being married due to consanguinity, affinity, or fosterage.

9. In order for the marriage to be valid or legal, it must not be an illegal union under Islamic law.

10. In general, the marriage should involve only Muslims. A Muslim man can, however, enter into a legal marriage with a Jew or a Christian.

Temporary or Muta Marriages

Shias are the only ones who acknowledge and enter into transitory marriages, or Muta marriage

The following are the characteristics and requirements of a temporary marriage:

1. A Muslim guy is permitted to get into more than four unions.
2. A Muslim man can enter into a temporary marriage with a woman who worships fire in addition to being able to marry a woman who is Muslim, Christian, or Jew.
3. However, a Muslim woman can only get into a short-term marriage with a Muslim male.
4. At the time of the marriage, the contract should include all conditions of a temporary marriage, such as:
5. In addition to these requirements, temporary marriages adhere to all the other requirements of a long-term union.

CHRISTIAN MARRIAGES

The Indian Christian Marriage Act, 1872 (the CMA), which outlines all the requirements and conditions for a legal marriage, governs Christian marriages in India.

1. A marriage requires the participation of one or both Christians. The marriage is also null and void if one of the parties is subject to a legislation that prohibits such a union due to forbidden degrees of kinship.
2. The bride must be at least 18 years old, while the bridegroom must be at least 21.
3. The marriage must have both parties’ voluntary consent.
4. At the time of the marriage, none of the parties shall be married to another person.
5. A person who is authorized by the State Government to issue a certificate of marriage must be present during the marriage ceremony.
6. The marriage must have a minimum of two trustworthy witnesses.

PARSI MARRIAGES

The Parsi Marriages in India are regulated by the Parsi Marriage and Divorce Act, 1936 (the PMA).

The following prerequisites must be met for a Parsi Marriage to be recognized as legitimate:

1. The marriage must involve a Parsi couple.
2. There cannot be any degree of consanguinity or kinship between the parties to the marriage as described in Schedule I of the PMA.
3. At the time of the marriage, neither of the parties should have a spouse who is still alive.
4. The bride must be at least 18 years old and the bridegroom must be at least 21.

Marriages under the Special Marriage Act, 1954

Special marriage act 1954 deals with inter religion or intercaste marriage which n=cannot be solemnized under different personal laws.

Essential conditions for marriage to be a valid marriage:

1. At the moment of the marriage, neither spouse should be a living spouse.

2. The parties must be of sound mind and should also:

• Capable of providing a legally binding agreement to the marriage;
• Not suffering from a mental illness that renders them unfit for marriage and childbearing;
• Not experiencing recurrent episodes of insanity.
• The male must be at least 21 years old, while the girl must be at least 18 years old.
• The parties must not fall within the range of relationships that are forbidden under Part I and II of the SMA’s First Schedule.

DIFFERENCE BETWEEN VOID AND VOIDABLE MARRIAGE

Void marriage	Voidable marriage
A void marriage is unenforceable in the court. The void marriage is void ab initio. Moreover it doesn’t create any rights and obligations of the party to that marriage	A voidable marriage remains valid till voided by the parties. If neither party files a petition with the court to avoid the marriage, it will have all the characteristics of a legitimate marriage.
[5]Not necessary in case of void marriage that a decree to be passed for annulling a marriage	Until an annulment order is issued, a marriage that is voidable will continue to be recognized as legal.
Parties to a void marriage are criminally liable	No penalty is laid down for a voidable marriage

CONSEQUENCES OF VOID MARRIAGE

In cases of void marriages, the legitimacy of children born, maintenance, bigamy, the inheritance of property, rights and obligation of parties are crucial issues that are dealt with in different ways under different statutes. To substantiate, a child born out of a void marriage is legitimate under the Special Marriage Act. However, under Muslim personal law, the offspring is illegitimate.

The Supreme Court ruled in Vidyadhari & Ors v. Sukhrana Bai & Ors. (2008)[6] that although the second marriage is void, the children born of it are entitled to a share of their father’s wealth. Children conceived outside of marriage will still be considered legitimate even if a person marries again while his first marriage is still in effect.

MISCONCEPTIONS REGARDING A VALID MARRIAGE IN INDIA

Conversion of religion by either of the spouse:

The Hindu Marriage Act of 1955 states that either the husband or the wife may file for divorce if they decide to convert or change their religion. The non-converting spouse is the only one who may utilize this ground.

Solemnizing Second Marriage after embracing Islam:

In “Sarla Mudgal v. Union of India AIR 1995 SC 1531,”[7] the Supreme Court held the second marriage performed under Islamic law to be invalid. It will be regarded as, which is against the 1955 Hindu Marriage Act.

Marriage of Minors:

The solemnization of a minor’s marriage is neither invalid nor voidable; the only repercussion is that those responsible may be punished in accordance with Section 18 of the Hindu Marriage Act of 1955.

Option of Puberty:

A minor has the right to approve or disapprove the marriage entered into by a guardian who was neither their father nor their paternal grandpa once they reach puberty. This right is not compulsory. Shia law stipulates that a marriage is not legal unless the minor specifically approves it after reaching majority.

CONCLUSION:

Hence in nutshell is can be conclude that The complexity of marriage within the field of family law is defined by the three kinds of marriage: valid, void, and voidable. The grounds for void marriages are frequently restored to their original status. A void marriage differs significantly from one that is voidable, though. A null marriage has been null from the beginning, or invalid ab intio. A voidable marriage, on the other hand, is legitimate and binding from the start until it is broken by one or both parties. When a marriage is declared null and void, neither the parties’ marital status nor their respective rights or obligations are altered. However, in a voidable marriage, the couple is required to live as husband and wife under both legal and social obligations.

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[1]MARRIAGE Concept, Definitions and Laws of Marriage for competitive exams- ExamRace. (n.d.-b). https://www.examrace.com/Study-Material/Anthropology/Marriage-Concept-YouTube-Lecture-Handouts.html

[2] MARRIAGE Concept, Definitions and Laws of Marriage for competitive exams- ExamRace. (n.d.-b). https://www.examrace.com/Study-Material/Anthropology/Marriage-Concept-YouTube-Lecture-Handouts.html

[3] Sujan. (2023, May 28). What Is Marriage? Definition, Features, Functions, & Types. tyonote.    https://tyonote.com/marriage/

[4] (Shakuntala Devi vs Amar Nath, 1981) https://indiankanoon.org/doc/1679143/

[5] ( Sh. Lila vs Laxmi , 1968) https://www.casemine.com/judgement/in/5ac5e2d84a932619d902ed89

[6] (Vidyadhari & Ors vs Sukhrana Bai & Ors , 2008) https://indiankanoon.org/doc/350765/

[7]  (Smt. Sarla Mudgal, President, … vs Union Of India & Ors , 1995) https://indiankanoon.org/doc/733037/