Matrimonial remedies refer to the remedy which are available to the spouses who are facing issues in the marriage. The remedies permissible under Hindu Marriage Act are classified into two categories:
- Main Matrimonial remedies – Decree of nullity, restitution of conjugal rights, judicial separation, and divorce.
- Ancillary Matrimonial remedies – Maintenance, custody and guardianship of children, and distribution of matrimonial property.
Table of Contents
- Void Marriages
- Voidable Marriages
- Impotency
- Unsound Mind (Mental Disorders)
- Consent Obtained by Fraud or Force
- Pregnancy by Another Person
Void Marriages
Section 11 of the Hindu Marriage Act, 1955 deals with void marriages. A marriage is void if it contravenes any of the following provisions:
- Section 5(i) – Monogamy: Neither party should have a spouse living at the time of marriage.
- Section 5(iv) – Prohibited degree of relationship.
- Section 5(v) – Sapinda relationship.
Voidable Marriages
Section 12 of the Hindu Marriage Act, 1955 deals with voidable marriages. These are valid until annulled by a court. The grounds for voidable marriage are explained below:
1. Impotency- Section 12(1)(a) of the Hindu Marriage Act, 1955, provides impotency as a valid ground to make a marriage voidable. Impotency refers to a party’s incapability of completing the normal act of marital intercourse. Impotency may be physical, mental/psychological, pathological, permanent or temporary, complete or partial
👉 Either spouse—husband or wife—can approach the court seeking annulment of marriage on this ground.
To invoke this provision, two major conditions must be satisfied:
Non-consummation of Marriage- This implies that the parties have not engaged in sexual intercourse. If even a single act of intercourse has taken place, the marriage is not voidable under this ground.
Impotency of the Respondent- The reason for non-consummation must be due to the respondent’s impotency. If the non-consummation is due to other reasons, this provision does not apply.
Case Laws:
- Sunil K Mirchandani vs Reena S. Mirchandani (AIR 2000 Bom 66)- In this case the husband filed for annulment citing the wife’s impotency. However, letters written by him reflected sexual satisfaction, proving that the marriage was consummated. Since the marriage was consummated, no relief could be granted.
- Samar Roy Chowdhary vs Snigdha Roy Chowdhary (AIR 1977 Cal 213)- Even if the impotency is curable, the fact that consummation has not occurred due to such impotency is sufficient to make the marriage voidable.
- Anju Kundu vs Shyamal Kumar Kundu [AIR 2010 (NOC) 436 (Cal)]- In this case it was held that a breast tumour cannot be equated with impotency under Section 12(1)(a)
2. Contravenes Section 5(ii)- Section 5(ii) of the Hindu Marriage Act, 1955 lays down essential conditions regarding mental capacity at the time of marriage. It states:
“At the time of the marriage, neither party—
is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
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
has been subject to recurrent attacks of insanity.”
If a marriage violates any of these conditions, the aggrieved party has the right to seek annulment, making the marriage voidable in the eyes of law.
Case- Triveni Singh vs State of UP(AIR 2010 All 81)- In this case it was held that Marriage can only be annulled on grounds related to unsoundness of mind. Diseases like HIV infection do not fall under Section 5(ii).
Case- R Lakshmi Narayan vs Santhi (AIR 2001 SC 2110) In this case it was held that the burden of proof lies on the party seeking annulment under Section 5(ii).
Case- Jayanti Bai vs Gore Lal [2000 (2) DMC 62]- In this case it was held that mental incapacity must be established by expert medical evidence.
Case- Bipinchandra Shantilal Bhatt vs Madhuriben Bhatt(AIR 1963 Guj 250)- In this case it was held that a person cannot be compelled to undergo medical examination to determine mental health. However, refusal to undergo such examination may lead to adverse inference by the court.
3. Consent Obtained by Fraud or Force [Section 12(1)(c)]- If consent is obtained by fraud or force, the marriage is not automatically void—but it can be made voidable under Section 12(1)(c) of the Hindu Marriage Act. Under Section 12(1)(c), a marriage is voidable, when:
- Consent of the party was obtained by force or fraud.
- Fraud may relate to identity, past life, customs, or personal facts that materially affect married life.
- The aggrieved party must file a petition within 1 year of discovering the fraud or the cessation of force.
There are various penal consequences in the cases of marriage by fraud. These penal consequences are defined under section 493 and section 496 of the Indian Penal code. In the current Bhartiya Nyay Sanhita same sections are given under Section 81 and 83 respectively.
Exceptions under Section 12(2)(a)- As per Section 12(2)(a), a marriage cannot be annulled on grounds of fraud or force if:
- If the petition is filed after 1 year of discovering fraud or force ceasing to operate.
- If the petitioner continued to cohabit with consent after fraud/force discovery.
Case Laws:
- Birendra Rajbongshi vs Parul Rajbongshi (AIR 2019 Gau 102)- In this case marriage was performed at gunpoint in 1983 and petition for annulment was filed in 2015. It was held that lapse of over 30 years and the birth of a child barred annulment.
- M. Devender vs A. Sarika [(2008) 4 ALD 728 (DB)]- In this case it was held that false information about education and financial status amounts to fraud.
- Babui Panmato Kuer vs Ram Agya Singh (AIR 1968 Pat 190)- In this case a 19 year old girl overheard her parents conversation regarding her marriage to a man of 25 years. At the time of marriage such a marriage is done by er being in complete veil as according to her customary rights. Later she found that her husband is a man of around 55 years of age. So she filed a case for making her marriage voidable under section 12(1)(c). In this case it was held that anybody, who is familiar with the family life of an average Hindu, knows that talks about marriage between a father and a daughter are not carried on directly but are conveyed indirectly through the agency of female relatives, particularly the mother, if she is available. So, in this case the marriage can be said to be done by fraud.
- Surjit Kumari Harichand vs Raj Kumari (AIR 1967 P&H 172)- In this case it was held that Concealment of past unchastity (e.g., prior pregnancy) is not a valid ground for annulment under Section 12(1)(c).
4. Pregnant by Another Person- The fourth ground on which the marriage can be declared voidable is the pregnancy of wife by the person who is not his husband. It is immaterial that whether the wife knows about his pregnancy or not. The husband has the right to make the marriage voidable on the ground of pregnancy by another person.
Case Law: Banas Kumar Kar vs Binaya Mishra (AIR 2020 Orissa 3)- In this case court ruled that there should be a balance between the rights of the man to clarify his genuine suspicion about the child and also to protect the tarnishing reputation of the wife.
References:
- Family Law-I by Dr. Poonam Pradhan Saxena-I
- Hindu Marriage Act, 1955 – Bare Act
