Report No. 15
32. Existing law under the Divorce Act, 1869.-
This subject is dealt with in section 19 of the Divorce Act, 1869. Under that section, a marriage would be void if
(i) the respondent was impotent at the time of the marriage and at the time of the institution of the suit;
(ii) the parties are within the prohibited degrees of consanguinity or affinity;
(iii) either party was a lunatic or idiot at the time of the marriage; or
(iv) the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force. The section saves the jurisdiction of the court to annul marriages on the ground that the consent thereto was obtained by fraud or force. On general principles, those marriages would be voidable. The distinction between void and voidable marriages has been adopted in the Special Marriage Act1 and in the Hindu Marriage Act2.
1. Sections 24, 23 ITO 26.
2. Sections 11, 12 and 16.
33. Now the question is as to how marriages should be dealt with under the proposed Act, when they are invalid either on account of breach of a condition prescribed or otherwise. The opinion is overwhelmingly in favour of limiting the category of void marriages within the narrowest limits, the reason being that the children of such marriages would be illegitimate. Agreeing with this view, we have provided that marriages shall be void only in two cases: (i) when either party has a spouse living at the time of the marriage, or (ii) when the parties are within prohibited relationship. Reasons of public policy require that these marriages should be prohibited, and that is also in consonance with the sentiment of the members of the community. In all other cases, we have provided that the marriages would be voidable,
34. Conformably to the rules relating to avoidance of contracts, the right to obtain annulment of a voidable marriage will be available only to the party aggrieved, and that is to be exercised subject to the conditions prescribed.