Hindu Marriage Act, 1955: Key Provisions, Features, and Legal Analysis of Hindu Marriage Laws in India

Understanding the Hindu Marriage Act, 1955: Provisions, Conditions for Valid Marriage, and Legal Reforms in India

November 9, 2025

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Salient Features of the Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955 has reformed Hindu law of marriage. It is a landmark in the history of social legislation. It has not simply codified the Hindu law of marriage but has introduced certain important changes in many respects. The Hindu marriage contemplated by the Act hardly remains sacramental. The Act has brought in some changes of far-reaching consequences which have undermined the sacramental nature of marriage and rendered it contractual in nature to a great extent.

Table of Contents

Ancient Hindu Law of Marriage

The Hindu law of marriage, as the British rulers of India found, interpreted and applied, was, in a nutshell, as follows:

Marriage was a holy sanskar, it could be solemnised in one of the eight forms recognised by law.
The solemnisation would be according to the Shastric or customary rites.
One could marry at any age, as there was no lowest age of marriage.
Inter-religious and inter-caste marriages were prohibited, but the latter could be sanctioned by custom.
Marrying within one’s gotra or pravara was not allowed, except among the Shudras.
Husband and wife would live together, the wife would submit to the wishes of the husband, and the husband would maintain her.
Marriage was indissoluble; divorce was not permitted unless recognised by custom.
Death did not dissolve a marriage and therefore a widow could not remarry unless permitted by custom to do so.

The courts in India recognised, interpreted, and applied all these principles in their minutest details.

Changes Brought About by the Hindu Marriage Act, 1955

The new Act has made radical and substantial changes in the institution of marriage. The following changes are important:

A Hindu marriage is now not so much concerned with religion. It is more a result of mutual consent than sacramental (Sections 5(ii), (iii), 11–13, and 7).
Marriages amongst Hindus, Jains, Sikhs, and Buddhists are now valid Hindu marriages in the eyes of the law (Section 2).
The divergence between the Mitakshara and Dayabhaga schools regarding “prohibited degrees of relationship” has been removed. The strict rule prohibiting marriages within the limits of Sapinda relationship has been relaxed, and new degrees of relationship have been added.
Monogamy amongst Hindus is introduced for the first time. Bigamy is now punishable under the Indian Penal Code. The conditions of a valid marriage are simplified (Sections 5 and 17).
Caste considerations for inter-caste and inter-communal marriages are now irrelevant.
Different kinds of marriages prevalent before the Act are now of no consequence. The form of marriage is determined by the customary rites of the parties (Section 7).
No distinction between the marriage of a maiden and that of a widow.
The bridegroom must have completed 21 years and the bride 18 years of age (Section 5).
The Act lays down the conditions of a valid marriage but prescribes no specific form (Section 5).
No particular ceremony is prescribed. Marriage can be solemnised according to the customary rites of either party (Sections 5 and 7).
Provision for registration of Hindu marriages introduced for the first time (Section 8).
Restrictions based on gotra, pravara, and sapinda relationship are eliminated. The Act provides for judicial separation, divorce, and annulment (Sections 10–14).
Provisions for restitution of conjugal rights (Section 9).
Either party may remarry after a valid divorce (Section 15).
Provisions for legitimacy of children born out of void or voidable marriages (Section 16).
Provisions for maintenance pendente lite and legal expenses (Section 24).
Permanent alimony and maintenance (Section 25).

The custody, maintenance, and education of minor children during the pendency of legal proceedings, as well as after passing of the decree, are provided under Section 26.

Applicability of Legislation (Section 2)

The Act applies to three types of persons:

Category	Description
(i)	Those who are Hindus by religion in any of its forms or developments.
(ii)	Those who are Buddhists, Jains, or Sikhs by religion.
(iii)	Those domiciled in India who are not Muslim, Christian, Parsi, or Jew by religion.

However, this Act does not apply to:

Persons who have renounced Hindu religion and converted to another faith.
Persons descended from Hindu ancestors but converted into a new community with distinct religion and usages.
Children whose parents, though one is Hindu, are not brought up as Hindus.

Who Are Hindus

Till date, there is no precise statutory or judicial definition of the term ‘Hindu’. However, since Hindu law applies to all those considered Hindus, it becomes necessary to know who they are. The answer lies in determining to whom Hindu law applies.

Categories of Hindus

The persons to whom Hindu law applies may be divided into three categories:

Hindus by Religion: Any person who is a Hindu, Jain, Sikh, or Buddhist by religion.
Hindus by Birth: Any person born to Hindu parents, where both or one parent is a Hindu, Jain, Sikh, or Buddhist by religion.
Others Governed by Hindu Law: Any person who is not a Muslim, Christian, Parsi, or Jew, and who is not governed by any other personal law.

Explanation to Section 2(1) further categorises Hindus into:

Hindu by Religion
Hindu by Birth

Hindus by Religion

This category includes two types of persons:

A. Those Who Are Originally Hindus, Jains, Sikhs or Buddhists by Religion

As rightly observed by the Supreme Court in Chandrasekhar v. Kulandaivelu, any person who is a Hindu, Jain, Buddhist or Sikh by religion is a Hindu if:

He practises, professes or follows any of these religions, and
He remains a Hindu even if he does not practice, profess or follow the tenets of any one of these religions.

Thus, a person does not cease to be a Hindu if he becomes an atheist, or dissents or deviates from the central doctrines of Hinduism, or lapses from orthodox practices, or adopts a western way of life, or eats beef.

B. Those Who Are Converts or Reconverts to Hindu, Jain, Sikh or Buddhist Religion

A person who ceases to be a Hindu by converting to a non-Hindu religion will again become Hindu if he reconverts to any of the four religions of Hindus.

A non-Hindu will become a Hindu by conversion:

If he undergoes a formal ceremony of conversion or reconversion prescribed by the caste or community to which he converts or reconverts; or
If he expresses a bona fide intention to become Hindu accompanied by conduct unequivocally expressing that intention, coupled with the acceptance of him as a member of the community into the fold of which he was ushered into.

Further, when a person declares that he is a follower of Hindu faith and if such a declaration is bona fide and not made with any ulterior motive or intention, it amounts to his having accepted the Hindu approach to God. He becomes a Hindu by conversion.

Hindu by Birth

Under modern Hindu law, a person will be a Hindu by birth if:

Both his parents are Hindu; or
One of the parents is a Hindu and he is brought up as a Hindu.

Such a child is Hindu irrespective of the fact whether he/she is legitimate or illegitimate.

In case after the birth of the child both or one of the parents convert to another religion, the child will continue to be a Hindu unless, in the exercise of their parental right, they also convert the child into the religion in which either or both of the parents have converted.

A relevant judgement in this context is Maneka Gandhi v. Indira Gandhi, wherein the Court held that Sanjay Gandhi was a Hindu because:

One of the parents, namely his mother, was a Hindu; and
He was openly brought up as a Hindu.

Section 2(2) provides that nothing contained in this Act shall apply to the members of any Scheduled Tribes (even if they are Hindus) unless the Central Government by notification in the official gazette otherwise directs. Most of the scheduled tribes are still governed by customs.

Concept and Forms of Marriage

The concept of marriage is to constitute the relationship of husband and wife. According to ancient Hindu law, marriage is the last of ten sacraments and is a sacred tie which can never be broken. It is a relation established from birth to birth. According to Smritikars, even death cannot break this relation of husband and wife which is not only sacred and religious but also a holy union.

The object of marriage was to enable a man and a woman to perform religious duties and to beget progeny. According to ancient writers, a man was incomplete without a woman and a woman is half of her husband (ardhangini) and completes him.

Every Hindu male or female had to marry. Where a person could not remain a perpetual student or did not desire to be an ascetic (sanyasi), he was enjoined by the shastra to marry. Marriage, therefore, was as good as compulsory and more so in case of a female.

Marriage: Sacrament or Contract

Marriage being one of the essential Samskaras is sacramental in nature. The sacramental nature of marriage has three characteristics:

It is a permanent union, i.e., once tied cannot be untied.
It is an eternal union, i.e., valid not only in this life but in lives to come.
It is a holy union, i.e., performance of religious ceremonies is essential.

Since Hindu marriage was considered to be a sacrament, the consent of the parties did not occupy any important place. Thus, the person married may be a minor or even of unsound mind; if the marriage is duly solemnised, there is a valid marriage. Under the Contract Act, the contract of a minor or of a person of unsound mind is void. Further, Section 12 of the Hindu Marriage Act lays down that a marriage is voidable if consent is obtained by fraud or force, but it is not laid down that if one’s consent was not obtained the marriage is voidable. This shows that despite the fact that a party is able to prove the absence of consenting mind, the marriage will continue to remain valid.

The modern concept of marriage is contractual in nature. It receives the ideals of liberty and equality (free volition of individuals). Today, it is an established notion of the West that marriage, to be effective, must be an agreement voluntarily entered into by both parties.

In the light of the modern concept of marriage, could we say that Hindu marriage continues to be sacrament? By recognising divorce and widow remarriage, the first two characteristics of sacramental marriage have been waived. However, the third characteristic is still retained.

Summary

To sum up, the Hindu marriage has not remained a sacrament and has also not become a contract, but it has a semblance of both.

Forms of Marriage

The ancient Hindu law recognised three forms of Shastric marriages as regular and valid. These were:

Form of Marriage	Description	Type
Brahma	Bride given as a gift by her father.	Arranged Marriage
Gandharva	Mutual agreement between the bride and bridegroom.	Love Marriage
Asura	Bride virtually sold by the father.	Arranged Marriage

The first and third forms are arranged marriages, whereas the second one is a love marriage.

Forms of Marriages in Modern Hindu Law

The Hindu Marriage Act, 1955, does not specially provide for any forms of marriage. The Act calls marriage solemnized under the Act as Hindu marriage, which may be performed in accordance with Shastric rites and ceremonies or in accordance with the customary ceremonies prevalent in the community to which the bride or bridegroom belongs. However, it does not mean that a marriage cannot take any of the aforesaid forms now. Marriage can still be entered into in any one of the three forms.

Arranged and Love Marriages in Hindu Society

Looking from another aspect, in Hindu society there are mainly two forms of marriages: arranged marriages and love marriages. Most Hindu marriages are still arranged marriages. An arranged marriage may be either in the form of Brahma marriage or Asura marriage.

Among the Sudras, the Asura form of marriage is very common.
Among the high-class Hindus, the Brahma form of marriage is common.
The Gandharva form of marriage is fast becoming popular among the younger generation.

Ceremonies

Marriage among Hindus being a religious and sacred tie, performance of certain ceremonies is still necessary for a valid marriage. There were three important stages wherein certain ceremonies were to be performed. They were:

Betrothal or Sagai: A formal promise to give the girl in marriage.
Kanyadan: The actual giving away of the girl in marriage by her father.
Saptapadi: The ceremony of taking seven steps before the sacred fire by the bride and the groom. The performance of Saptapadi marked the completion of marriage and made it irrevocable.

As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the ceremonies of marriage, and its non-performance will invalidate the marriage. The performance of Vedic rites alone is not enough to solemnize the marriage.

Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi. It may be totally non-religious or very simple. For instance, among Santhals, smearing vermilion by the bridegroom on the forehead of the bride is the only essential ceremony.

Necessary ceremonies—Shastric or customary—whichever are prevalent on the side of the bride or bridegroom, must be performed; otherwise, the marriage will not be valid. No one can innovate new ceremonies. A marriage performed with newly invented rites is invalid.

The Hindu Marriage Act allows inter-caste marriages. However, marriage between a Hindu and a non-Hindu is not permissible under the Hindu Marriage Act, and such a marriage if performed in India will be invalid. In a foreign country, such marriage may be valid. In India, it is valid only if performed under the Special Marriage Act, 1954.

Conditions for the Validity of Marriage (Sections 3 and 5)

A marriage may be solemnised between any two Hindus if the following conditions are fulfilled:

Neither party has a spouse living at the time of the marriage.
At the time of the marriage, neither party:
- Is incapable of giving valid consent due to unsoundness of mind; or
- Though capable of giving valid consent, has been suffering from a mental disorder making them unfit for marriage or procreation; or
- Has been subject to recurrent attacks of insanity or epilepsy.
The bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage.
The parties are not within the degrees of prohibited relationship unless permitted by custom or usage.
The parties are not sapindas of each other unless permitted by custom or usage.

Ingredients of Section 5

Parties must be Hindus under Section 2(3) of the Hindu Marriage Act. Both parties must be Hindus. If one of them is a Hindu and the other a non-Hindu, the marriage will not fall under this Act but under some other law such as the Special Marriage Act.

Clause (i) – Condition of Monogamy

This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither party has a spouse living” means that the spouse must not be alive at the time of marriage. If the spouse is alive at the time of marriage, that bars remarriage. However, the first marriage of a person should be legally valid.

If, despite a valid first marriage, a person remarries in violation of Section 5(i), the second marriage will be null and void, and the person will be subject to penal consequences. The Scheduled Tribes are exempted from the application of this Act, but there must be a proved custom to this effect.

Bigamy – Section 5(i)

Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void, and Section 17 makes it a penal offence for both Hindu males and females under Sections 494 and 495 of the Indian Penal Code (IPC). The offence of bigamy is committed only if the required ceremonies of marriage are performed. The second marriage cannot be taken to be proved by the mere admission of the parties; essential ceremonies and rites must be proved to have taken place. In the case of a bigamous marriage, the “second wife” has no status of wife.

Clause (ii) – Condition Regarding Mental Health or Capacity

Sub-clause (a) requires that at the time of marriage, neither party is incapable of giving valid consent to marriage due to unsoundness of mind.

Sub-clause (b): Mental Disorder

According to sub-clause (b), at the time of marriage, neither party should be suffering from a mental disorder of such nature and to such a degree as to be unfit for:

Marriage, and
Procreation of a child.

In Tarlochan Singh v. Jit Kaur, the court held the marriage void on the ground that the wife was suffering from schizophrenia within a short period after marriage and the disease was not disclosed to the husband before marriage.

Sub-clause (c): Recurrent Attacks of Insanity

If a person has been subject to recurrent attacks of insanity, he is also not qualified for marriage under the Hindu Marriage Act. He cannot marry even during a lucid period.

Post-Marriage Mental Illness

If a party to a marriage is not suffering from any mental defect described under Section 5(ii) but falls ill mentally after the marriage, there is no violation of this condition.

Clause (iii) – Condition of Marriageable Age

According to this clause, at the time of marriage the bride must have completed the age of 18 years and the bridegroom 21 years. Thus, a child marriage is prohibited under the Hindu Marriage Act. However, violation of this condition does not make the marriage void or voidable. It means that it is valid though it may attract penalties. But it can become a valid ground for repudiation of the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for punishment for such marriages.

Provision	Offence	Punishment
Section 18 of Hindu Marriage Act	Marriage in contravention of Section 5(iii)	Up to 15 days imprisonment or fine up to ₹1000 or both
Child Marriage Restraint Act, 1929	Male above 25 years marrying a girl below 15 years	Up to 3 months imprisonment and fine
Child Marriage Restraint (Amendment) Act, 1978	Raised marriageable age of girl	18 years

Clause (iv) – Avoidance of Degrees of Prohibited Relationship

The parties to marriage must not fall within the degree of prohibited relationship, as defined under Section 3(g) of the Act.

Definition Under Section 3(g)

“Degree of prohibited relationship” means when two persons are related to each other in any of the following manners:

By lineal ascent: One is a lineal ascendant of the other, covering the Sapinda relationship (fifth degree in the father’s line, third in the mother’s line).
By affinity: One is the husband or wife of the lineal ascendants or descendants of the other (e.g., father-in-law and daughter-in-law).
Wives of certain brother relations: If one was the wife of:
- The brother,
- The father’s or mother’s brother,
- The father’s father’s or mother’s father’s brother,
- The father’s mother’s or mother’s mother’s brother.
Certain close relations: Such as
- Brother and sister,
- Niece and uncle,
- Nephew and aunt,
- Children of a brother and a sister,
- Children of two brothers,
- Children of two sisters.

According to Section 11 of the Hindu Marriage Act, a marriage in contravention of this condition is void and punishable under Section 18(b) of the Act.

Examples

‘A’ marries his adopted sister – not valid, as it falls within prohibited degrees.
‘A’ marries the wife of his pre-deceased brother – not valid.
‘A’ marries his stepmother’s sister – not valid, being related by half-blood.

Clause (v) – Avoidance of Sapinda Relationship

According to the Dharmashastra, the Sapinda relationship is significant in marriage. According to Mitakshara Law, ‘Pinda’ means body, and those related by body, blood, or consanguinity are sapindas. The Hindu Marriage Act adopts this definition but limits the Sapinda relationship to:

Five degrees in the father’s line, and
Three degrees in the mother’s line.

Definition Under Section 3(f)

Two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant.

Rules for Determining Sapinda Relationships

The relationship extends to the third generation in the maternal line.
The relationship extends to the fifth generation in the paternal line.
It may subsist through either or both lines.
The line is traced upwards, counting each person as the first generation.

Sapinda relationship includes relations by half or uterine blood, by full blood, and by adoption. It also includes legitimate and illegitimate blood relationships.

Solemnisation of Marriage (Section 7)

The term “solemnise” means to celebrate marriage with proper ceremonies and in due form. Unless the marriage is celebrated with proper ceremonies, it cannot be said to be solemnised.

Provisions of Section 7

A Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party.
Where such rites include the saptapadi (seven steps before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

Types of Ceremonies

Customary Ceremonies
Shastric Ceremonies

Customary rites must meet the conditions under Section 3(a) of the Act, meaning they must be continuously and uniformly observed for a long time, be certain, reasonable, and not opposed to public policy.

Custom and Usage

It is not necessary for customary rites to be ancient; continuity and uniformity over time are sufficient. When essential ceremonies of a Hindu marriage are not proved, the mere issuance of a certificate under the Special Marriage Act cannot validate the marriage.

Essential Rites of Hindu Marriage

While the Act does not specify ceremonies, the essential rites common to all are:

Invocation before the sacred fire (havan), and
Saptapadi – taking seven steps by the bride and groom jointly before the sacred fire.

Registration of Marriage (Section 8)

Section 8(1) of the Hindu Marriage Act provides that for the purpose of facilitating the proof of Hindu marriages, the state government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

Registration When Necessary

Section 8(2) of the Act provides that the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to above shall be compulsory in the state or in any part thereof, whether in all cases or in such cases as may be specified.

There was no requirement for the registration of Hindu marriages before the Hindu Marriage Act, 1955. Generally, Hindus do not get their marriages registered unlike adoption, will, transfer of property, and partition. The Act does not contain the rules of registration and the State Government has been authorised to frame them.

The purpose of registration is only to furnish convenient evidence of marriage. Clause (4) provides that Hindu Marriage Registers will be admitted as evidence. The certificate is, however, not a conclusive proof of marriage.

Importance of Registration

Besides the evidentiary value, the National Commission for Women has pointed out that registration of marriage has critical importance to various women-related issues, such as:

Prevention of child marriage.
Prevention of marriage without the consent of the parties.
Prevention of illegal bigamy or polygamy.
Enabling married women to claim their right to live in the matrimonial home, maintenance, etc.
Enabling widows to claim various rights after the death of their husbands.
Deterring men from deserting their wives after marriage.
Deterring the sale of girls under the garb of marriage.

It is explicitly laid down in this Act that non-registration does not affect the validity of marriage. Thus, marriage can be valid without registration.

In Seema v. Ashwini Kumar, the Supreme Court has dwelt at length on the topic of registration of marriages and suggested the compulsory registration of marriages in all the states.

Void and Voidable Marriages (Sections 11 and 12)

There are three types of marriages under this Act:

Valid
Void
Voidable

Section 11 deals with void marriages, and Section 12 deals with voidable marriages. All other marriages which are not covered by these two sections are valid.

Void Marriages

Section 11 states that any marriage solemnized at 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 of the conditions specified in clauses (i), (iv), and (v) of Section 5.

Conditions for Void Marriage

Thus, a marriage will be void ab initio if:

Any party to the marriage has a spouse living at the time of the marriage [Section 5(i)].
The parties are within the degree of prohibited relationship unless the custom or usage governing each of them permits such a marriage [Section 5(iv)].
The parties are sapindas of each other, unless the custom or usage governing each of them permits such a marriage [Section 5(v)].

Section 11 of this Act is prospective in nature. It is only applicable to marriages solemnized after the commencement of the Hindu Marriage Act, 1955.

Effect of Void Marriages

A void marriage is no marriage; it is void since its inception. No legal rights and duties flow from it. Therefore, the relationship of husband and wife does not come into existence from a void marriage. No declaration of the court is necessary to this effect.

The issues from a void marriage are illegitimate unless legitimized by law in some way. If one withdraws from the society of the other, the other party has no right to restitution of conjugal rights. If one of them marries again, he or she is not guilty of bigamy, and the validity of the later marriage is not affected because of the first so-called marriage.

Voidable Marriages

A marriage which can be annulled or avoided at the option of one or both parties is known as a voidable marriage. Section 12 of the Hindu Marriage Act contains relevant provisions regarding voidable marriages.

This section lays down four grounds on which a Hindu marriage becomes voidable. These are:

Inability of the respondent to consummate the marriage on account of his or her impotency.
Respondent’s incapacity to consent or suffering from a mental disorder.
Consent of the petitioner being obtained by fraud or force.
Concealment of pre-marriage pregnancy by the respondent.

Impotency [Section 12(1)(a)]

Section 12(1)(a) can be dissected as under:

That the marriage has not been consummated; and
That the non-consummation is due to the impotence of the respondent.

Meaning of Consummation

Consummation of marriage means full and normal sexual intercourse between married persons. A marriage is consummated by sexual intercourse. It consists in the penetration by the male genital organ into the female genital organ. Full and complete penetration is an essential ingredient of ordinary and complete intercourse. Partial, imperfect, or transient intercourse does not amount to consummation. The degree of sexual satisfaction obtained by the parties is irrelevant. Consummation may be proved by medical evidence.

Meaning of Impotency

Impotency is the inability to have complete and normal sexual intercourse. It may arise from a physical defect in either partner or from a psychological barrier amounting to invisible repugnance on the part of one to sexual relations with that partner. Sterility is irrelevant and does not imply impotency. Absence of uterus in the body of a female partner does not amount to impotency, but the absence of a proper vagina would mean impotency. Similarly, organic malformation making a woman sexless would mean impotency. If a husband fails to satisfy his wife’s abnormal appetite for sex, that cannot be regarded as impotency. Thus, impotency means the practical impossibility of consummation of marriage. Sexual intercourse which is incomplete occasionally does not amount to impotency. It includes the discharge of healthy semen containing living sperms in men and discharge of menses in women.

Principles Laid Down by Courts

Regarding impotency, the various principles laid down by the courts could be summarised as follows:

Full and complete penetration is an essential ingredient of ordinary and complete intercourse, though the degree of sexual satisfaction obtained by the parties is irrelevant. If one spouse is oversexed and the other is not, it does not amount to impotency.
Impotency is usually either:
- Physical: Includes malformation of or structural defects in the organs, such as an unduly large male organ or abnormally small vagina.
- Mental: Emotional, psychological, or moral repugnance or aversion to the sexual act.
In Shantabai v. Tara Chand, the wife was alleged to have an absolute repugnance towards sexual intercourse although she had normal sexual organs. Held that it amounts to impotency. In Nijhawan v. Nijhawan, the court gave a liberal interpretation to the term ‘impotence’. The court held that vigorous and harmonious sexual activity is the foundation of marriage, and a marriage without sex is anathema.
If impotency can be cured by medical treatment or surgery, it would not amount to impotency unless the respondent refuses to undergo treatment. In Rajendra v. Shanti, the court held that where the wife’s vagina after surgery was one and a half inches but fit for intercourse, she was not impotent.
Mere barrenness, incapacity to conceive, or sterility does not amount to impotency. In Shewanti v. Bhaura, the wife was sterile but capable of sexual intercourse; hence, she was not impotent.

Burden of Proof

The burden of proof lies on the petitioner, but once impotency is proved, there is a rebuttable presumption in favour of its continuance.

For marriage, the consent of the parties concerned must be free. This is not because marriage is a contract but because the success of a married life depends upon harmony between both parties. If the consent to marriage is not free, this harmony is a remote possibility. That is why Section 12(1)(c) allows annulment where consent to marriage is obtained by force or fraud.

Section 12(1)(c) provides that a marriage is voidable on the ground that the consent of the petitioner or of the guardian has been obtained by force or fraud. After the Child Marriage Restraint Act, the consent of the guardian became irrelevant as the minimum marriageable age was set at 21 years for bridegrooms and 18 years for brides.

Conditions for Petition

No petition for annulling a marriage can be presented:

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 (Section 12(2)(a)(i)); or
If the petitioner has, with his or her full consent, lived with the other party as husband or wife after the force ceased to operate or the fraud was discovered (Section 12(2)(a)(ii)).

Meaning of Force

The word “Force” is not defined by the Act, but it may include all cases of compulsion, coercion, or duress. Abduction, terror, coercion, and threat to commit suicide are covered by the term force. Whenever, owing to some natural weakness of mind or on account of some fear—whether entertained reasonably or unreasonably—a party finds it almost impossible to resist the pressure, it amounts to force. However, mere pressure, strong advice, or persuasion does not amount to force.

Meaning of Fraud

This section does not refer to fraud in a general way or every misrepresentation or concealment which may be fraudulent, but to fraud as to:

The nature of the ceremony; or
Any material fact or circumstance concerning the respondent.

Prior to the 1976 Amendment, the clause did not include “any material fact or circumstance concerning the respondent.” After the amendment, the scope of the clause was extended to cover such material facts. Whether a misrepresentation, false statement, or concealment is as to any such material fact depends on the facts and circumstances of the case.

However, it must be something vital, affecting the respondent, and such as to have definitely induced or influenced consent. The petitioner must show that but for such false representation, statement, or concealment, he or she would not have married the respondent.

Grounds of Fraud

Some important grounds of fraud include:

Nature of ceremony
Identity of the party
Concealment of disease
Concealment of religion or caste
Concealment of previous marriage
Concealment of unchastity
Concealment of illegitimacy
Concealment of age
Petitioner’s father’s fraud
Concealment of financial status or nature of employment

Time Limit for Filing Petition

A petition for nullity must be filed within one year of the discovery of fraud or cessation of force. This condition is mandatory.

Scope of Amendment

The operation of Section 12(1)(c) has been considerably widened by the 1976 Amendment, enhancing protection against marriages obtained by force or fraud.

Pre-Marriage Pregnancy [Section 12(1)(d)]

Section 12(1)(d) provides that a marriage is voidable on the ground that the respondent was, at the time of the marriage, pregnant by some person other than the petitioner.

Section 12(1)(d) is to be read with Section 12(2)(b), which lays down three further conditions to be satisfied in order to avail of the remedy under Section 12(1)(d). These are:

That at the time of the marriage, the petitioner was ignorant of the facts alleged.
That the petitioner has started proceedings under Section 12 within one year of the marriage.
That the petitioner did not have, with his consent, marital intercourse with his wife ever since he discovered that the wife was pregnant by some other person.

Requirements for Annulment under Section 12(1)(d)

The requirements of this ground are as follows:

The respondent was pregnant at the time of marriage.
The respondent was pregnant by a person other than the petitioner.
The petitioner was ignorant of this fact at the time of marriage.
The proceeding is started within one year of the marriage.
Absence of marital intercourse by the petitioner husband with his wife since such discovery.

Applicability of Section 12(1)(d)

If the girl becomes pregnant by some person before her marriage and subsequently the same person marries her, the section has no application. Similarly, if the bride becomes pregnant by some other person than her husband after marriage, the section has no relevance.

Onus of Proof

The onus of proof lies on the petitioner husband to prove his wife’s admission of pre-marriage pregnancy, plus the fact that the husband had no access to her before marriage, is sufficient to establish her pre-marriage pregnancy.

Case Law: Nishit v. Anjali

In Nishit v. Anjali, where a bride gave birth to a mature child within 167 days from the date of marriage, it was held that it was for the wife to raise a reasonable doubt that she was pregnant by the person who became her husband.

Blood Test and Paternity

A blood test for the ascertainment of the child’s paternity is also possible. If the wife volunteers for the same, then it is well and good, but it cannot be forced upon her.

Difference Between Void and Voidable Marriage

Void Marriage	Voidable Marriage
A marriage which is void ab initio is a total nullity. It is non-existent and does not affect or alter the status of the parties. It creates no rights and obligations of the parties, which normally result from a valid marriage.	A voidable marriage remains valid and binding till avoided. It continues to be a valid marriage for all purposes till a decree annulling it is passed under Section 12.
Parties to a void marriage are criminally liable.	No penalty is laid down for a voidable marriage.
A void marriage is void ab initio and can be held to be so without a formal declaration by a court under Section 11.	For a voidable marriage, annulment is necessary to put an end to it.
Section 11 applies to void marriages only contracted after the commencement of the Act.	Section 12 applies to marriages contracted before or after the commencement of the Act.
In the case of Section 11, the Act itself declares a marriage to be null and void without any action by either spouse. However, a spouse may obtain a declaration of nullity for record purposes. Children born out of void and voidable marriages are legitimate (Section 16).	The remedy under Section 12 is optional — the party must take the aid of a court for an annulment decree.
It is not necessary that a decree declaring a void marriage as void is passed. The parties may perform another marriage without obtaining a decree and will not be guilty of bigamy.	A voidable marriage remains valid until a decree annulling it is passed.

Written By: Laksheyender Kumar. I Am Pursuing B.A.,LL.B.(H) 5th Year From Jamia Millia Islamia

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