The institution of marriage is an important subject matter to all human beings. Weddings are celebrated, acknowledged, and embraced by civilized society around the world. In India, the concept of marriage is much more cherished as it is believed to be a sacramental union between a man and a woman. Traditionally, marriage is an eternal union of a man and a wife. It is a legally and socially sanctioned union. Marriage marks the rights and duties of one partner towards the other.
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. This means that the marriage of a girl less than 18 years of age is not only illegal but also falls under the category of a voidable marriage.
The Indian Legal System, with the gradual change in social values, customs, beliefs, and modernization, has classified marriages into three heads: Valid Marriage, Void Marriage and Voidable Marriage. Marriage is called valid, void, or voidable as per the norms of their personal laws. India, being a secular country, has many religions, therefore, people of different religions have different practices concerning marriages. For instance, polygamy is not a crime for a Muslim man though it is a criminal offence for others under section 494 of the Indian Penal Code, 1860.
Marriage is a substantial part of the personal laws, as a result, the religion of the parties involved plays a crucial role in their marriage. In India, different provisions for marriages were made under the family law for different religions. Hindu marriages are regulated under the Hindu Marriage Act, 1955 while the Muslim Marriage Act, 1957 deals with Muslim marriages. Similarly, there is the Christian Marriage Act, 1872 and the Parsi Marriage and Divorce Act, 1936 for the Christian and Parsi marriages in India. With the changing times, the Special Marriage Act, 1954 was also enacted for inter-faith marriages. These statutes have different provisions, making a marriage valid, void, or voidable.
A Marriage is said to be valid when it fulfils all the conditions stated by the law. Different religions have different conditions for a marriage to be valid. Among Hindus, marriage is believed to be a sacrosanct, permanent, and indissoluble union between a man and wife. As a result, there are certain conditions to be fulfilled for a marriage between two Hindus to be valid. The conditions for a valid marriage are mentioned in Section 5 of the Hindu Marriage Act, 1955. It includes monogamy, soundness of mind, age of the marriage (18 years for women and 21 years for men), beyond prohibited degrees of relationship and beyond sapinda relationship. If all these conditions in a Hindu marriage are fulfilled, then it is said to be a valid marriage.
In the case of Muslim marriage, the institution of marriage is seen as a contract between a husband and wife. A valid Muslim marriage is one that confirms the requisites as mentioned under section 6 of the Muslim Marriage Act. A valid Muslim marriage is termed as Sahih, which loosely means “proper”. A marriage is said to be valid between two Muslims if both parties are competent, has attained puberty, is of sound mind, beyond the prohibited degree of relationship and there is free consent of the parties. Further, a Muslim Marriage is a contract, therefore there needs to be an offer (Ijab), acceptance (Qabool) and a minimum of two witnesses. A marriage without witnesses is not a valid Muslim marriage.
The Special Marriage Act deals with inter-faith marriages, it establishes provisions to declare marriages of parties of different religions valid. The act mentions the conditions relating to the solemnization of special marriages. The conditions are like those mentioned in the Hindu Marriage Act. For a marriage to be valid under the Special Marriage Act, there must be only one living spouse, soundness of mind, the legal age of marriage and should not be within the degrees of prohibited relationship. Such a marriage that fulfils all the above conditions is marked to be a valid marriage.
It is important to understand the sanctity of a valid marriage both socially and legally. Socially, only a valid marriage, which has fulfilled all the conditions are accepted and appreciated. While in the eyes of law, only valid marriages are recognized and are subject to legal remedies. A marriage that is not valid in the eyes of the law does not create rights and obligations between the parties. A marriage that is not a valid marriage is either void or voidable marriage. As the name suggests, a void marriage is null and has no value whatsoever in the eyes of law. While Voidable marriages are marriages that are valid unless avoided by one or both parties. Both these categories of marriage are incomplete in nature as it does not satisfy the social-legal conditions of a valid marriage in some way or the other.
A marriage that does not fulfil the conditions of a valid marriage is often termed void. A void marriage is no marriage. In law, the term Void means “no legal effect”. A void marriage is a marriage that has no legal effect. It does not create any legal liability, rights, or obligations on any of the parties. In other words, they are unenforceable by law. To substantiate, in the case of a living spouse, a second marriage would be termed as void under the Special Marriage Act. Likewise, under Muslim personal law, marriage to the fifth wife is void marriage (Batil). Further, marrying within the prohibited degree of relationship also falls under void marriages. The reasons for a marriage to be void are different under India personal laws, however, as mentioned earlier, a marriage within the prohibited degree of relationship or bigamy (except among Muslims) is deemed to be void under all personal laws.
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.
A voidable marriage is a valid marriage until it is avoided by either of the parties. In simple terms, a voidable marriage enjoys all the ingredients of a valid marriage if it not avoided by one or both parties by filing a petition in the court. It means, parties have the status of husband and wife, children are legitimate, and all mutual rights and duties arise between the parties. Some of the grounds of voidable marriage under Indian personal laws are impotence of respondent, unsoundness of mind or insanity, respondent’s pregnancy at the time of marriage, force or fraud or age of the parties or concealment of religion.
Often, the grounds of voidable marriage are reinstated as grounds of void marriages. However, there is a notable amount of difference between a void and voidable marriage. A void marriage is void ab intio, i.e., void since the very beginning. While on the other hand, a voidable marriage is valid and binding in the beginning till it is avoided by either party. In the case of a void marriage, there is no change in the marital status or no mutual rights, or obligations arise between the parties. However, in a voidable marriage spouses are legally and socially obligated to live in the capacity of husband and wife. A void marriage is unenforceable by law, but a voidable marriage is a valid marriage in the eyes of laws until it is avoided.
The three categories of marriage, valid, void, and voidable, defines the complexity of marriage within the branch of family law. A Marriage is regarded as a socially and legally accepted institution as it regulates a man and woman by conferring rights and responsibilities to live as a husband and wife. The distinction of marriage into these categories (valid, void, and voidable) is crucial from a legal and social perspective. It provides options to the parties in case of moral or ethical wrong.
1) The Indian Penal Code, 1860, No.45 of 1860.
2) The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955.
3) Paras Diwan, Family Law, 94-99 (Allahabad Law Agency, 2021).