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Report No. 22

30. Clause 27-Void marriages.-

With reference to clause 27, it has been suggested that if either party is a lunatic or idiot, marriage should be void and not merely avoidable as provided in clause 28(1)(a). In our previous Report1 we have observed that a large preponderance of opinion was in favour of limiting the category of void marriages within the narrowest limits, because the children of such marriages would be illegitimate. We, therefore, do not accept the suggestion that marriage with a lunatic or idiot should be declared void.

1. 15th Report, para. 33.

31. Another suggestion which has been made with reference to this clause is, that a third party should not have the right to move the court for nullity of marriage, and that such a right should be given only either to the parties to the marriage or to the previous marriage. This question has been fully considered in our previous Report.1 There is a well-established distinction between marriages which are void and which are voidable, and as observed in Halsbury,2 "suits for annulling void as distinct from voidable marriages may be instituted not only by the parties to the marriage, but also by persons having a financial interest in the matter and even after both parties are dead". We are, therefore, not for restricting the clause in the manner suggested. We may point out that section 24(1) of the Special Marriage Act, 1954, also does not contain any such restriction.

3. 15th Report, Notes on clause 27.

2. Halsbury, 3rd Edn., Vol. XII, p. 226, para. 422, second sub-para.

Christian Marriage and Matrimonial Clauses Bill, 1961 Back

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