• Null and void marriage

One of my associates living in Delhi had married a girl of same gotra few months ago. It was not known before marraige. Now he doesnt want to continue with this marraige because of gotra being same.  Can this marriage be treated as null and void. What would be  the court judgment in this case. Please advise.
Asked 2 years ago in Family Law from valsad, Gujarat
Religion: Hindu
it can not be null and void on this basis
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
On the ground of same gotra, marriage can not be declared by the court as null and void. there are other grounds for the same.Please free free to call for clarification.
S.P. Srivastava
Advocate, New Delhi
703 Answers
13 Consultations
4.8 on 5.0
1. There are grounds prescribed in law for which you can pray for the marriage to be declared as Null & Void,

2. Same gotra marriage has not been prescribed to be a ground for annulling the marriage.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
Hi,
 For applying for nullity you should prove that you both belong to the prohibited degree of relationship of marriage that is "Sapinda" to each other. How can you play the card of ignorance where you yourself is the person who did it. If you have really any other reason to take divorce you should convince your wife and aks her for that, then proceed with a mutual consent divorce, which will be faster. In case your wife is not agreeable file on grounds of cruelty and get ready to produce sufficient proof for this.  To put it in legal way, same  Gotra is not an objection or the marriage is not void. In case your gotra is objecting it if she is not a sapinda to you you can still get the help of a court to continue in the marriage.
For your reference Iam attaching the text Hindu marriage Act 1955-"Section 3 (f):

i. "Sapinda relationship" with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;

ii. two persons are said to "sapindas" of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

Section 3 (g):

"degrees of prohibited relationship" – two persons are said to be within the "degrees of prohibited relationship" –

if one is a lineal ascendant of the other; or 
if one was the wife or husband of a lineal ascendant or descendant of the other; or 
if one was the wife of the brother or the father’s or mother’s brother or of the grandfather’s or grandmother’s brother; or 
if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters; 
Explanation – For the purposes of clauses 3(f) and 3(g), relationship includes –

relationship by half or uterine blood as well as by full blood; 
illegitimate blood relationship as well as legitimate; 
relationship by adoption as well as by blood; 
and all terms of relationship in those clauses shall be construed accordingly.

Degrees of Prohibited relationship as per the Special Marriage Act, 1954

Section 2 (b):

"Degrees of prohibited relationship" – a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship.

Explanation (I) – Relationship includes, --

relationship by half or uterine blood as well as by full blood; 
illegitimate blood relationship as well as legitimate; 
relationship by adoption as well as by blood; 
and all terms of relationship in this Act shall be construed accordingly.

Explanation (II) – "Full blood" and "half blood" – two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives.

Explanation (III) – "Uterine blood" – two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands.

Explanation (IV) – In Explanations II and III, "ancestor" includes the father and "ancestress" the mother;
THE FIRST SCHEDULE [ DEGREE OF PROHIBITED RELATIONSHIP]

PART – I

Mother. 
Father’s widow (step mother). 
Mother’s mother. 
Mother’s father’s widow (step grand-mother). 
Mother’s mother’s mother. 
Mother’s mother’s father’s widow (step great grand-mother).

Mother's father’s mother. 
Mother’s father’s father’s widow (step great grand-mother). 
Father’s mother. 
Father’s father’s widow (step grand-mother). 
Father’s mother’s mother. 
Father’s mother’s father’s widow (step great grand-mother). 
Father’s father’s mother. 
Father’s father’s father’s widow (step great grand-mother). 
Daughter. 
Son’s widow. 
Daughter’s daughter. 
Daughter’s son’s widow. 
Son’s daughter. 
Son’s son’s widow.
Daughter’s daughter’s daughter. 
Daughter’s daughter’s son’s widow. 
Daughter’s son’s daughter. 
Daughter’s son’s son’s widow. 
Son’s daughter’s daughter. 
Son’s daughter’s son’s widow. 
Son’s son’s daughter. 
Son’s son’s son’s widow. 
Sister. 
Sister’s daughter. 
Brother’s daughter. 
Mother’s sister. 
Father’s sister. 
Father’s brother’s daughter. 
Father’s sister’s daughter. 
Mother’s sister’s daughter. 
Mother’s brother’s daughter.

Explanation – For the purposes of this Part, the expression "widow" includes a divorced wife.

PART – II 

Father. 
Mother’s husband (step-father). 
Father’s father. 
Father’s mother’s husband (step grand-father). 
Father’s father’s father. 
Father’s father’s mother’s husband (step great grand-father). 
Father’s mother’s father. 
Father’s mother’s mother’s husband (step great grand-father). 
Mother’s father. 
Mother’s mother’s husband (step grand-father). 
Mother’s father’s father. 
Mother’s father’s mother’s husband (step great grand-father).

Mother’s mother’s father. 
Mother’s mother’s mother’s husband (step great grand-father). 
Son. 
Daughter’s husband.
Son’s son.
Son’s daughter’s husband. 
Daughter’s son. 
Daughter’s daughter’s husband. 
Son’s son’s son. 
Son’s son’s daughter’s husband. 
Son’s daughter’s son. 
Son’s daughter’s daughter’s husband. 
Daughter’s son’s son. 
Daughter’s son’s daughter’s husband. 
Daughter’s daughter’s son. 
Daughter’s daughter’s daughter’s husband. 
Brother. 
Brother’s son. 
Sister’s son. 
Mother’s brother. 
Father’s brother. 
Father’s brother’s son. 
Father’s sister’s son. 
Mother’s sister’s son. 
Mother’s brother’s son. 

Explanation – For the purposes of this Part, the expression "husband" includes a divorced husband. 

Legal consequences are that the marriage is void.

Void marriage

Section 11 of the Act provides the circumstances under which a marriage shall be declared null and void, on a petition presented by either party on the grounds that the marriage contravened the conditions specified for a valid marriage in section 5 which are;

Neither party must have a living spouse at the time of marriage 

The parties are not within the degrees of prohibited relationship unless the custom or usage of either party permits marriage between such parties within a prohibited relationship. 

The parties are not sapindas of each other unless the custom or usage of the parties permits marriage between them. 

A marriage which is solemnized after the commencement of this Act in contravention of any of the conditions mentioned above is null and void ab initio from its inception and either party can obtain a decree of nullity from the Court. Any marriage that is null and void shall be so declared, and dissolved by the court on a petition presented by either party.

Legitimacy of children born out of a void marriage

Section 16 of the Act grants legitimacy to the children who are born out of a void marriage and declares them to be legitimate regardless of a decree of nullity being passed by the Court.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
Dear Querist
Mr. Mathew explain all the things in detail.  I don't think that there is any doubt.
Nadeem Qureshi
Advocate, New Delhi
3539 Answers
131 Consultations
4.9 on 5.0
same gotra marriage s are not illegal . marriage cannot be declared as null and void on this ground
Ajay Sethi
Advocate, Mumbai
23405 Answers
1230 Consultations
5.0 on 5.0

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