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In Case of Void MarriageAs noticed earlier, section 5 of Hindu Marriage Act provides that for a valid marriage, following three conditions must be fulfilled:
(1) neither party has a spouse living at the time of the marriage;
(2) 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;
(3) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Non-fulfillment of anyone of the aforesaid conditions renders a marriage null and void. Section 11 provides that such marriage shall be null and void.
However, any party can obtain decree of nullity of marriage from the Court.
In Case of Voidable MarriagesSection 5 of the Act provides that 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.
Section 12 of Hindu Marriage Act, provides for a decree of nullity of marriage, which is voidable, on any of the following grounds:(a) that the marriage has not been consummated owing to the impotence of the respondent. A party is impotent if his or her mental or physical condition makes consummation of marriage a practical impossibility.
(b) that the marriage is in contravention of the conditions specified in clause (ii) of section 5, i.e., at the time of the marriage, any party was incapable of giving a valid consent to it in consequence of unsoundness of mind, or if even capable of giving a valid consent, such party 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 the other party has been subject to recurrent attacks of insanity.
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as 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.
However, it is significant to note that no such petition for annulling a marriage on the ground specified in clause (c) of sub-section (1) of section 12 i.e., on the ground of consent by force or fraud, shall be entertained if 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. Therefore, where your consent in the marriage is obtained by fraud, you have to file petition for annulment of marriage within one year from the time when the fraud is discovered.
Also remember that no such petition shall lie before the Court, in case you continued to live with the other party to the marriage as husband or wife, even after the force ceased to operate or the fraud was discovered.
In case of petition for annulment of marriage on the ground that at the time of marriage, the other party was pregnant by some other person, the court is to be satisfied that you were ignorant of this fact at the time of marriage. Furthermore, petition on this ground has to be filed within one year from the date of the marriage. Also remember, that in case of a petition on this ground, marital intercourse with the consent of the petitioner should not have taken place ever since the discovery of the fact that the other party was pregnant by some other person.
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