Report No. 15
This deals with the subject of void marriages.1
The form of the clause follows that of the corresponding provision in the Hindu Marriage Act, with this difference that while the Hindu Marriage Act confines the right to apply to the parties to the marriage (vide the words "on petition presented by either party thereto"), the draft clause eliminates that requirement.
The reason for the omission is, that there may be occasions when a person who is not a party to the marriage has to sue for a decree of nullity of that marriage,-for example, when, after a marriage between A and B, A again enters into marriage with C and it therefore becomes necessary for B to sue for nullity of the second marriage. It may be noted that the provision in the Special Marriage Act does not require that the petition should be filed by either party.
(Under section 11 of the Hindu Marriage Act, it has been held2,3 that the previously married wife cannot apply under that section to have the later marriage declared null and void).
The following chart will show the points of difference between void and voidable marriages:-
|1. A void marriage does not require a judicial declaration before it can be treated as void.||1. A voidable marriage is valid unless set aside by a court,|
|2. A void marriage can be repudiated by either party.||2. A voidable marriage can be repudiated only by the party aggrieved by the flaw in the marriage.|
|3. A void marriage can be impugned by third parties also.||3. A voidable marriage cannot be impugn¬ed by third parties.|
|4. A void marriage can be annulled after the death of the parties.||4. Certain voidable marriages, for example those voidable for impotence, can be invalidated only during life time.|
|5. A void marriage does not change the domicile of the wife.||5. A voidable marriage confers a unity of domicile on the husband and the wife.|
|6. A decree of nullity is always retrospective||6. A decree of nullity in a voidable marriage, is properly speaking, prospective.|
1. As to the substance of the clause, please see the discussion in the body of the Report, para. 31, et seq.
2. Amarlal v. Vijayabai, AIR 1959 MP 400.
3. Lakshmi Animal v. Ramswami, AIR 1960 Mad 6.