sec. 5, 11 & 12 should be construed properly.
5. Conditions for a Hindu marriage
A marriage may be solemnized between any two Hindus, if the following condition are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage
[(ii) at the time of marriage, neither party-
(a) is incapable of giving a valid consent to 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 [***]
(iii) the bridegroom has completed the age of [twenty one years] and the bride, the age of [eighteen years] at the time of 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; [***].
COMMENTS
Hindu Marriage Act not only makes bigamous marriage void but also punishable under s.17 read with sections 494 and 495 of Indian Penal Code. What is to be established is that the second marriage is valid but for this provision and the spouse to the first marriage is the legally wedded spouse and the that marriage is having its existence on the date second marriage is solemnized- Gopal Lal v. State of Maharashtra AIR 1979 SC 713
In order to render second marriage invalid, it is necessary to establish first marriage as valid. Where an application to claim maintenance is moved by second wife, onus is upon the husband establishing the second marriage in contravention of the provisions of cl.(1) of s.5 -Mohan Ram v. Badamo Devi 1974 cr. LJ 227
Suffering from schizophrenia as a sound ground for a decree of nullity. Whether the disease is curable or not does not make any difference. Where in due course the disease is cured, it would not affect the question of validity of marriage.-Tulsi Bai v. Manoharan 1990 (1)HLR 318
It is not the requirements that a person should be insane or suffering from epilepsy at the time of marriage. It is sufficient if he or she had been subject to recurrent attacks of insanity or epilepsy-Bala Krishna v. Lalitha 1984 (1)APLJ 32
In the case of a bigamous marriage, it is necessary to establish the performance of essential ceremonies which constitute a valid marriage and thereafter leading some evidence in support thereof. -Ashok Kumar v. Krishna Kumari 1993(1) HLR 114
The expression “connivance” suggests some aiding or abetting which is active or some conduct sufficient to infer such aiding or abetting within the term “connivance”is included such conduct which would amount to passive acceptance of the lapse of the wife and the other men concerned-Krushan Chandra Patra v. Tanu Patra 1993 (1) HLR 116
The expression “procreate” having a very wide meaning, indicating capacity of spouse to give birth as also to rear up the children.-Alka Sharma v.A.C.Sharma AIR 1991 MP 205.
Where the marriage is solemnized, disregarding the provision of Child Marriage Restraint Act, the petition of the wife claiming restitution of conjugal rights is liable to be dismissed.-Dinesh v.Rekha 1986 (1)HLR
11. Void marriage
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)of section 5.
COMMENTS
The expression “either party thereto” as used section 11 means only the actual parties, to the marriage. The expression does not include any third party.-Suresh Kumar v. Smt Asha Rani 1993 (1) HLR21 .Where the decree of nullity has been granted by the High Court, question does not arise of the marriage being again declared a nullity by confirming the decree passed by the District Judge.-Thomas Cherian v.Nisha Thomas AIR1993 Ker 19
12. Void able marriages
(1) Any marriage solemnized, whether before of after the commencement of this Act, shall be voidable and maybe annulled by a decree of nullity on any of the following grounds, namely.-
[(a) that the marriage has not been consummated owing to the impotence of the respondent ; or]
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5;or
(b) that the consent of the petitioner, or where the consent of he guardian in marriage of the petitioner [was required under section 5 it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978(2 of 1978)], the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent ] ;or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub section(1), no petition 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 special in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-
(i) that the petitioner was at the time of 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 marriage 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]
COMMENTS
Where the petition for annulment of marriage is filed after 8 years of marriage, such a petition would be barred by time-Sarlabai V.Komal Singh AIR 1991 MP 358.Selectin of bride with total knowledge as regards her defects would serve as estoppel from arguing that marriage was tainted with fraud.-Ruby Roy v. Sudarsan Roy 1988 Cal.210.
Where mental disorder of the wife was the ground for obtaining divorce, there cannot be a challenge to the grant of alimony on the ground that mental disorder was in existence prior to the marriage and therefore the marriage was voidable under s. 12(1)(b) -Mukesh Mathur V.Veena Mathur AIR 1989 Raj 97.
Where the annulment is sought on the ground of fraud, details which the professional match makers supply bear no relevancy as the parties are at liberty to verify the facts.-Deepayan Chatterjee V.Papiya Chatterjee 1990 (1)HLR 113
