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Report No. 59

2.3. Section 11.-

Section 11 of the Hindu Marriage Act, in so far as is material, provides that a marriage shall be null and void and may "on a petition presented by either party thereto," be so declared by a decree of nullity, if it contravenes one of the specified conditions,(briefly, the conditions relate to monogamy, prohibited decrees of relationship, and absence of sapinda relationship). The proposal now is that the words "on a petition presented by either party thereto", should be omitted. The obvious object is to make the relief in question available at the instance of other parties who may have a legitimate interest in seeking such relief.

The proposal was mooted because the present restriction causes hardship when a first wife, for example, seeks to get a second marriage set aside or when relief of nullity is sought after the death of a party. The proposal may, at first sight, appear to be attractive. If a marriage is void, why, it is argued, should the relief under the Act be confined to the parties? It is stated that the words "on a petition presented by either party thereto" (or similar words) do not appear in the corresponding provision of the Special Marriage Act, 1954.

2.4. At the same time, there is a strong argument against it. The Hindu Marriage Act is a piece of matrimonial law and decrees of nullity, contemplated by it, are decrees passed by a Matrimonial Court. It is fundamental that a Matrimonial Court has concern only with the marital rights of the parties to marriage (and incidentally with the rights of the children), but with nothing else. A petition for a decree of nullity in respect of a void or avoidable marriage can be made only by either the husband or the wife. It would not be appropriate to provide that a petition for the purpose can be made by a stranger to the marriage. A third party (for example, a person interested in the estate of either the husband or the wife) can certainly question the validity of their marriage in a civil suit and obtain a finding, or he may even bring a suit for a declaration that the marriage was void1. But such a decree, made by a civil court, will not be a decree of "nullity", as contemplated by matrimonial law.

1. See para. 2.6, infra.



Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back




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