Section 25 in The Special Marriage Act, 1954
25. Voidable marriages.—Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if,—
(i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or
(ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or
(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872): Provided that, in the case specified in clause (ii), the court shall not grant a decree unless it is satisfied,—
(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(b) that proceedings were instituted within a year from the date of the marriage; and
(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree: Provided further that in the case specified in clause (iii), the court shall not grant a decree if,—
(a) proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or
(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.
Nullity of Marriage
The concept of a marriage being a nullity from the very beginning or being annulled subsequent to the marriage is a concept of English origin from the times of the ecclesiastical courts which exercised jurisdiction over every aspect of marriage. The ecclesiastical doctrine laid down that marriage was not regarded as consummated if parties have not become one flesh by sexual intercourse, and consequently if one of the parties was impotent and therefore unable to consummate the marriage, he or she lacked the capacity to marry. Further, annulling a voidable marriage was given retrospective effect. According to ecclesiastical law, a marriage was either valid forever or never, in cases similar to the above, the marriage was declared void ab initio. Such uncontrolled and unrestrained power in the hands of the religious leaders to declare marriages void and bastardize the issue was a cause of great concern to the royal courts.
It was situations like this that lead to the question, whether laws which in spite of their ecclesiastical authority character should force such arbitrary rules upon the common man. It was as an answer to this question that laws were divided into (a) civil and (b) canonical. It was further decided that a marriage in violation of the former would be void and latter would voidable. It was also understood as a general principle that the validity could be questioned only by the parties to a marriage and further that if one of the spouses died, such a question could never arise.
A marriage which arises on account of the fact that the parties have no capacity to marry, have in fact married undergoing the requisite rites and ceremonies of marriage. Such a marriage is a misnomer, a contradiction and is void ab initio. The essential feature of such a marriage is that no legal consequences arise from it, i.e. no rights and obligation arise from it. Further since a void marriage is no marriage at all, a decree of nullity is not necessary, as a decree merely makes a judicial declaration of an existing fact.[i]
Grounds of void marriage
A marriage performed in violation of absolute impediments is void. Under the SMA, a marriage is void on the following grounds:[ii]
Either party has a spouse living at the time of marriage.
Either party was at the time of marriage incapable of giving a valid consent in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children or has been subject to recurrent attacks of insanity.
The bride was below 18 years in age and bridegroom was below age of 21 years at the time of marriage
Parties were within the degree of prohibited relationship.
The respondent was impotent t the time of institution of the suit.
These grounds do not apply to marriages registered under the Act. The registration however maybe cancelled on the following grounds:
Marriage was bigamous
Either party was an idiot or lunatic at the time of marriage
No valid ceremony of marriage was performed between the parties
One of the parties or both were under the age of 21 years at the time registration
Parties are within the degrees of prohibited relationship
A voidable marriage is one which is valid until it is avoided. It can be avoided by a petition by either party to a marriage if it violates conditions requisite to make a marriage valid. If, however none of the parties petition for an annulment, it will remain valid. If one of the parties dies, the validity cannot be questioned. The marriage will give rise to rights and obligations as long as it is valid.
Grounds of voidable marriage:-
Under SMA, a marriage is voidable on the following grounds:
Non consummation of marriage on account of wilful refusal of the respondent to do so
Pre-marriage pregnancy of the respondent of which the petitioner was not the cause and of which the petitioner was at the time of marriage ignorant, and marital inter course had not take place with the consent of the petitioner after the knowledge of pregnancy and further that the petition is presented within a year from the date of marriage
Petitioners consent was obtained by fraud or force, provided that the petitioner did not live with the respondent as husband or wife after the discovery of fraud or cessation of force and provided further that the petition was presented within one year of the discovery of fraud or cessation of force.
Pre-marriage pregnancy is a ground for voidable marriage under the SMA[iii]. This ground has its origin in English and if often called a special kind of fraud. It has to be noted that this ground talks about pre-marriage pregnancy lone and not pre-marriage unchastity. Even if the woman is unchaste before the marriage and she had delivered an illegitimate child, the marriage could not be avoided, since unchastity is not a ground of annulment of marriage[iv]. The conditions to be roved here are,
Respondent was pregnant at the time of marriage
She was pregnant from a person other than the petitioner
Petitioner was not aware of respondent’s pregnancy at the time of marriage
Petition must be presented within one year of the marriage under the SMA
No marital intercourse should take place with the consent of the petitioner after he had known of wife’s pregnancy
It is essential that all these conditions must be fulfilled before a petition can be filed. In case of this particular ground the burden of proof is on the petitioner who must establish all the aforesaid requirements. Also if the petition is not presented within the time limit specified under the Act, it will become time-barred and the petitioner will be left with no remedy.
Fraud or Force
Broadly the ground uses the terms fraud and force. The SMA, 1954 uses the words coercion and fraud. The requirements are:
Consent of the petitioner was obtained by fraud or coercion
Petition must be presented within one year of the discovery of fraud or cessation or coercion
Petitioner must not have lived with the respondent, as husband or wife, as the case maybe, after the discovery of fraud or coercion.
Force i99n this context does not mean merely physical force it also includes mental agony and torture. English authorities lay down that whatever owing to some natural weakness of mind or on account of some fear, whether entertained reasonably or unreasonably, but nonetheless entertained really, or when a party is in such a mental state that he finds it almost impossible to resist the pressure, it will amount to duress as in such a case there is no real consent. This is what coercion means under the SMA[v].
Strong advice and persuasion does not come within this definition. This is primarily because in most cases of arranged marriage some element of persuasion is present and it would be absurd to include all such cases as forceful and inclusive of coercion. Further it is also to be noted that for the purpose of personal laws in India, the terms force, coercion, duress etc mean the same.
It basically means situation sand circumstances as to show want of real consent to marriage. The main element here is deceit. Unlike the Law of Contracts, misrepresentation either innocent or fraudulent will not terminate the marriage. The important aspect here is respect to the fact that has been fraudulently represented. If it a crucial element in the marital relation then it will affect the marital relation. For example if there is a misrepresentation with respect to the ceremonies or identity of the party. Under the Act the following are classified as fraudulent:
Fraud as to the nature of the ceremony
Shiram v. Taylor[vi] is a case where the parties went through with a ceremony of marriage though the husband had no intention to regard it as a real marriage.
As to the identity of the person
C v. C[vii] is a case where W married H in the erroneous belief that he was well known boxer called Miller.
Concealment of disease
Amarnath v. Layyabati[viii] is a case where concealment of venereal disease lead to nullification of the marriage. It was also held that some cases like syphilis will not be sufficient ground.
Concealment of religion or caste unchastity
Leelamma v. Dilip Kumar[ix] is an example where thewife married H under the impression that he was a Christian belonging to an ancient family, when in fact he turned out to be an Ezhava.
Concealment of unchastity or illegitimate birth.
Harbhajan v. Brij[x] is a case where H married W under the assurance that she was still a virgin. It was however revealed that she had earlier given birth to an illegitimate child. The court refused to grant the petition saying that this will be valid only if it can be proved that the husband attaches great importance to her chastity
Several other factors, like concealment of age, financial status etc. Have aso been considered as fraud in several other instances. The above list though not a comprehensive one deal with the most important items.