Report No. 15
Clause 28
General.-This deals with voidable marriages1.
Sub-clause (1).-In treating the marriage as voidable in the circumstances dealt with here, the corresponding provision in the Hindu Marriage Act has been followed.
(It should be noted here that the Special Marriage Act treats a marriage as void in cases of idiocy or impotence).
The language of the various paragraphs is also modelled on the Hindu Marriage Act, except that (with respect to impotence) the positive "till" has been preferred to the negative "until" used in the Hindu Marriage Act.
Sub-clause (2).-This is new. It is considered that where parties below age marry or where the guardian's consent in not obtained, the marriage should be voidable, though not void. The Special Marriage Act makes the marriage of a person below the requisite age void, and the sub-clause therefore differs from that. The Hindu Marriage Act is silent on the subject, and the sub-clause differs from that also by making an express provision. The sub-clause will, however, be limited to marriages solemnised after the new Act, since there was no such provision in the old Act. It is, further considered desirable to specify the period within which the parties may set aside the marriage2.
It is considered that in the case of the want of the guardian' consent, only the minor, that is the wife should have the right to avoid.
Sub-clause (3).-This follows the language of the corresponding provision in the Hindu Marriage Act and the Special Marriage Act.
As regards para. (a)(ii) relating to the petitioner living with the other party to the marriage after the force has ceased etc., the draft uses the words "full consent" as in the Hindu Marriage Act, while the Special Marriage Act uses the words "free consent". In the context in which the words are used, it is presumed that both would carry the same meaning.
Sub-clause (4).-Notes under sub-clause (2) above may be seen. The formula "unless the petition is presented within one year", has been avoided, since it would create a slight uncertainty as to whether the petition can be presented before attaining majority.
1. As to the substance of the provision, please see also the discussion in the body of the Report, para. 31 et seq.
2. See clause 28(4).
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