Void and Voidable Marriages: Annulment and Bigamy Under the Hindu Marriage Act

Not every marriage that has taken place is legally valid. Sometimes a spouse discovers that the other was already married, that there was fraud, or that an essential condition was never met. In those cases the remedy is not divorce but a declaration that the marriage is void, or an annulment of a voidable marriage. The Hindu Marriage Act, 1955 deals with both, and the difference matters for time limits, rights and consequences.

What Conditions Must a Hindu Marriage Meet?

Section 5 lays down the conditions for a valid marriage. In summary:

• Neither party has a living spouse at the time of marriage
• Neither party is unable to consent because of unsoundness of mind or a mental disorder
• The bridegroom is at least 21 and the bride at least 18
• The parties are not within the prohibited degrees of relationship, unless custom permits
• The parties are not sapindas of each other, unless custom permits
• A marriage must also be solemnised with the ceremonies required by either party's customs, as Section 7 provides

What Is a Void Marriage?

Under Section 11, a marriage is void from the beginning if it breaches the conditions on a living spouse (bigamy), prohibited degrees or sapinda relationship. It is treated as though it never existed. Either party can ask the court to declare it void, and in some cases courts have allowed others to raise the issue. The usual practical reason to seek a declaration is to obtain a formal order that clears the person's status, so that they can remarry or protect their property and inheritance position.

What Is a Voidable Marriage?

A voidable marriage is valid until a court annuls it. Section 12 lists the grounds, which a spouse can raise:

• Non-consummation because the respondent is impotent
• The respondent was of unsound mind or had a mental disorder at the time of marriage
• Consent was obtained by force or by fraud about a material fact or circumstance
• The respondent was pregnant by another person at the time of marriage

Only the affected spouse can seek annulment, and time limits apply. For force or fraud, the petition must be filed within one year after the force ceased or the fraud was discovered, and it fails if the spouses have lived together voluntarily after that. For pregnancy by another, the petition must be filed within one year of the marriage, and the petitioner must not have had intercourse since learning of it. These limits are strict, so delay can defeat a good claim.

What Happens to the Children?

Section 16 protects them. Children of a void or voidable marriage are treated as legitimate, even if the marriage is declared invalid. Their right to the parents' property has been the subject of Supreme Court decisions: they are entitled to inherit their parents' self-acquired property, while the question of their share in joint family property has been taken up by larger benches, so the position should be checked for each case. Questions about custody and maintenance for the children follow the same principles as in any family dispute, which we explain in our guide to child custody after separation.

Can the Wife Claim Maintenance?

This is difficult where the marriage is void, because the claimant is not a lawful wife. Courts have taken a protective approach for a woman who was deceived: in Badshah v. Urmila Badshah Godse (2013), the Supreme Court read the law purposively and allowed maintenance to a woman who had married in good faith without knowing that the man was already married. Interim maintenance and expenses under Section 24 of the Act are also available to a spouse in a petition for a declaration or annulment, and the court can order permanent maintenance under Section 25. Our guide to maintenance and alimony explains how amounts are decided.

What Is the Law on Bigamy?

Marrying again while a spouse is alive is both a ground for the second marriage to be void and a criminal offence. It is punishable under Section 82 of the Bharatiya Nyaya Sanhita, which replaced Section 494 of the Indian Penal Code, with imprisonment of up to seven years and a fine, and a higher punishment where the earlier marriage is concealed. Two points trip people up. First, a second marriage needs valid ceremonies to be a marriage at all, so courts look at whether it was properly solemnised. Second, converting to another religion does not allow a person to remarry without divorce; the Supreme Court held so in Sarla Mudgal v. Union of India (1995).

What Should a Spouse Do on Discovering a Problem?

Collect proof of the earlier marriage or the fraud, such as marriage certificates, records, messages and witnesses. Do not continue to live as spouses voluntarily if you intend to seek annulment, since that can defeat the claim. Take advice early about the time limit and about filing the right petition: annulment, declaration, divorce, or a criminal complaint.

Where a marriage is invalid or doubtful, the right choice depends on the facts and the limit that applies. Our Family & Matrimonial Law practice advises on annulment, declarations and bigamy complaints, and you can request a consultation. For divorce on other grounds, see our guide to divorce in India.