Void and Voidable Marriages, and the Legitimacy of Their Children

Section 12: voidable marriages

Section 12(1) provides that any marriage solemnised, whether before or after the commencement of the Act, shall be voidable and may be annulled by a decree of nullity on any of four grounds.

(a) Impotence. That the marriage has not been consummated owing to the impotence of the respondent. The clause was substituted in 1976. Read it precisely: the ground is non-consummation caused by the respondent's impotence, so mere wilful refusal is not within this clause, and impotence that has not prevented consummation is not within it either. Impotence may be general or relative to the particular spouse.

(b) Mental capacity. That the marriage is in contravention of clause (ii) of section 5, that is, incapacity to consent through unsoundness of mind, or mental disorder making the party unfit for marriage and the procreation of children, or recurrent attacks of insanity.

(c) Consent obtained by force or fraud. That the consent of the petitioner, or of the guardian in marriage where such consent was required under section 5 as it stood before the Child Marriage Restraint (Amendment) Act 1978, 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.

The words after "fraud" were added in 1976 and matter a great deal. Before the amendment, fraud had to be as to the nature of the ceremony, which is a very narrow thing. Now a material fact or circumstance concerning the respondent will do, which is what brings concealment of a serious pre-existing condition or of a previous marriage within the section.

(d) Pre-marriage pregnancy. That the respondent was at the time of the marriage pregnant by some person other than the petitioner.

The bars in section 12(2)

The two later grounds are hedged, and the bars are as examinable as the grounds.

For clause (c), force or fraud, no petition is entertained if:

• it is presented more than one year after the force ceased to operate or, as the case may be, the fraud was discovered; or
• the petitioner has, with full consent, lived with the other party as husband or wife after the force ceased or the fraud was discovered.

For clause (d), pregnancy, no petition is entertained unless the court is satisfied:

• that the petitioner was at the time of the marriage ignorant of the facts alleged;
• that proceedings were instituted within one year of the marriage, or within one year of the commencement of the Act for a marriage solemnised before it; and
• that marital intercourse has not taken place with the petitioner's consent since the petitioner discovered the pregnancy.

The pattern is the same in both: knowledge plus continued cohabitation defeats the petition. A person who learns the truth and stays cannot afterwards complain.

Void and voidable, side by side

Section 16: the legitimacy of the children

This is where the Act is at its most humane, and where an examiner is most likely to probe.

What the section gives

Section 16(1). Notwithstanding that a marriage is null and void under section 11, any child of such a marriage who would have been legitimate if the marriage had been valid shall be legitimate, whether born before or after the 1976 amendment, and whether or not a decree of nullity is granted, and whether or not the marriage is held void otherwise than on a petition under the Act.

The words "whether or not a decree of nullity is granted" are the 1976 amendment's most important contribution, and there is a reason for them. Under the section as originally enacted, legitimacy depended on a decree of annulment being passed, which in practice would never happen if the parties simply stayed away from court. The result was that the children who most needed the provision were precisely the ones it did not reach. The Supreme Court in Revanasiddappa records that this anomaly was noticed both by earlier decisions and by the Fifty-ninth Report of the Law Commission of India of March 1974, and that the legislature deliberately chose the widest of the possible positions: that these children should in all cases succeed to their parents as if legitimate.

Section 16(2). Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree, who would have been the legitimate child of the parties if the marriage had at the date of the decree been dissolved instead of annulled, is deemed to be their legitimate child notwithstanding the decree.

Section 16(3). Nothing in sub-sections (1) or (2) confers on such a child any rights in or to the property of any person other than the parents, in a case where but for the Act the child would have been incapable of possessing or acquiring such rights by reason of illegitimacy.

The limit, and what the Supreme Court has now settled

Sub-section (3) is the sting. The child is legitimate for all purposes but takes only from the parents. Not from the grandfather, not from the uncle, not from the joint family as such.

That left a hard question. If the father was a coparcener in a Mitakshara joint family, what exactly is "the property of the parent"? Does the legitimated child take a share of it, and if so how is it identified?

Revanasiddappa v. Mallikarjun, 2023 INSC 783, decided on 1 September 2023.

Facts. A reference to a three-judge Bench of the Supreme Court on what section 16 gives a child of a void or annulled marriage, and in particular whether such a child can claim in the coparcenary property of a Mitakshara joint family of which the parent was a member.

Held. By Dr D. Y. Chandrachud CJI, with J. B. Pardiwala and Manoj Misra JJ, the reference was answered. A child conferred with legitimacy by section 16(1) or (2) is entitled to a share in the property of the parents, and by section 16(3) to no rights in the property of any person other than the parents. Where the parent was a coparcener, the parent's share is ascertained by the notional partition that the Hindu Succession Act requires, that is, by assuming a partition of the coparcenary property immediately before the coparcener's death. Once that share is ascertained, the heirs, including the children legitimated by section 16, are entitled to their share in it. The provisions of the Hindu Succession Act 1956 must be harmonised with the mandate in section 16(3). The Court expressly confined the reference to joint Hindu families governed by Mitakshara law.

Why it matters here. It disposes of the standard trap in one move. The legitimated child does not become a coparcener and acquires no interest by birth in the joint family property. What the child gets is a share in whatever the parent's own notional-partition share turns out to be. Read this chapter with the section 6 chapter in Module III, where the notional partition is worked through.

A worked example

MU's February 2023 paper puts this as a problem: a husband has an adulterous relationship and a child is born of it; what can the wife do, and does the child inherit?

The answer has two halves and they are governed by different sections.

The wife's remedy is under section 13(1)(i), voluntary sexual intercourse with any person other than the spouse after the solemnisation of the marriage, which is a ground of divorce. She may also seek judicial separation on the same ground under section 10, and maintenance under section 24 or section 25.

The child's position is not governed by section 16 at all, and this is the trap. Section 16 legitimates the children of void and voidable marriages. A child born of an adulterous relationship where there was no marriage between the parents is not the child of a void marriage; there is no marriage to be void. Such a child is illegitimate, and takes from the mother under section 15 of the Hindu Succession Act rather than from the father.

Say that distinction out loud in an answer. It is the difference between a marriage that failed a condition and no marriage at all.

What it does NOT mean

A void marriage is not a marriage at all. It is a nullity from the beginning, and a decree under section 11 declares rather than creates that.

A voidable marriage is not invalid until annulled. It is valid for all purposes until a decree is passed.

Section 11 does not cover every breach of section 5. It covers clauses (i), (iv) and (v) only.

Section 11 does not apply to old marriages. It reaches marriages solemnized after the commencement of the Act.

Anybody may raise a void marriage; only a party may annul a voidable one. Section 12 requires a petition by a party, and delay or cohabitation may bar it.

Section 16 does not depend on a decree. The children are legitimate whether or not a decree of nullity is granted.

Section 16(3) does not give the child a share in the family property. It confines the child to the property of the parents, and on Revanasiddappa the route where the parent was a coparcener is through the parent's notional-partition share, never by becoming a coparcener.

Quick revision

• Void: a nullity from the start, on three grounds under s.11, breach of s.5(i) bigamy, s.5(iv) prohibited degrees, and s.5(v) sapinda, for marriages after the Act; anyone may raise it and no decree is necessary.
• Voidable: valid until annulled, on four grounds under s.12: impotence, that is non-consummation owing to the respondent's impotence; contravention of s.5(ii), the mental-capacity limbs; consent obtained by force or fraud; and the respondent being pregnant by another at the marriage.
• s.12(2) bars the last two: for force or fraud, a petition presented more than one year after the force ceased or the fraud was discovered, or cohabitation with full consent after that; for pregnancy, ignorance of the fact at the marriage, a petition after one year, and no marital intercourse since the discovery.
• s.16: children of a void marriage, and of a voidable marriage annulled under s.12, are legitimate, whether or not a decree is passed and whether or not the marriage is held void otherwise than on a petition.
• s.16(3): they take no rights in the property of any person other than the parents. Revanasiddappa: where the parent was a coparcener, the child shares in the parent's notional-partition share and does not become a coparcener.

Test yourself

1. Distinguish a void from a voidable marriage. A void marriage is no marriage at all: it is a nullity from the beginning, its invalidity may be set up by anyone and at any time, and no decree is necessary, though either party may obtain one under section 11. A voidable marriage is valid and subsisting until it is annulled by a decree under section 12, which only a party to it may seek, and the right may be lost by delay or by conduct.

2. On what grounds is a marriage void? Under section 11, for marriages solemnized after the commencement of the Act, if it contravenes section 5(i), a spouse living; section 5(iv), the degrees of prohibited relationship; or section 5(v), sapinda relationship.

3. On what grounds is a marriage voidable? Under section 12: that it has not been consummated owing to the impotence of the respondent; that it contravenes the mental-capacity conditions in section 5(ii); that the consent of the petitioner or, where required, of the guardian was obtained by force or by fraud as to the ceremony or a material fact or circumstance concerning the respondent; and that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

4. What is the position of the children of such marriages? By section 16 they are legitimate, whether or not a decree of nullity is granted and whether or not the marriage is held to be void otherwise than on a petition under the Act. By section 16(3) they take no rights in the property of any person other than the parents; and on Revanasiddappa, where the parent was a coparcener the child's share comes through the parent's notional-partition share and the child does not become a coparcener.