Hindu Marriage Act | Plea To Declare Marriage Void U/S 11 Can't Be Judged On Grounds Of Voidable Marriage U/S 12: Allahabad High Court

The Allahabad High Court has held that grounds under Section 11 (Void Marriages) of the Hindu Marriage Act 1955 are very different from grounds under Section 12 (Voidable Marriages) and thus, a petition filed under Section 11 of the Act cannot be judged on grounds other than those mentioned in Section 11.

The Court held that a marriage performed in contravention of Clauses (i), (iv) and (v) of Section 5 of the Act is void and cannot be cured or ratified. However, in case of a voidable marriage, declaration is necessary, otherwise the marriage continues to subsist.

The bench comprising Justice Vivek Kumar Birla and Justice Donadi Ramesh held,

“Needless to point out that a void marriage is regarded as non-existent or as never having taken place and such declaration that the marriage is void ab initio can be sought under Section 11 of the Act on the grounds as provided therein whereas a voidable marriage is regarded as valid and subsisting unless a competent Court annuls it until the decree of nullity is obtained in accordance with the Hindu Marriage Act. Unless the decree is granted, the lis remains binding and continues to subsist.”

The appellant-wife challenged the order of the Family Court dismissing her petition filed under Section 11 as being patently illegal. Appellant pleaded that the petition was earlier filed under Section 12, however, vide amendment, Section 12 was replaced with Section 11 of the Act. It was argued that though the husband had filed his written statement, he had absented himself from the proceedings, thus the Court had proceeded ex-parte.

It was also argued that the marriage was entered into under duress since the appellant-wife did not have funds for her mother's treatment. Lastly, it was argued that the marriage was an outcome of a fraud and the petition under Section 11 was liable to be allowed.

The Court observed that there were no grounds as mentioned in Section 11 for declaring the marriage void. It was observed that since no saptapadi (sat fera) had taken place, the marriage between the parties was not valid and the registration of marriage was inconsequential.

It was further observed that since the appellant wife had admitted to the factum of marriage before the Sub Registrar, Kanpur Nagar the question of fraud cannot be raised.

The Court held that the amendment application was filed by the appellant herself, changing the nature of the petition from Section 12 to Section 11, therefore, it was not open for her to contend that the petition could have been considered on grounds other than Section 11. The Court held that the grounds available for divorce under Section 11 and Section 12 are different.

“The Delhi High Court in MAT. APP. (F.C.) 204 of 2023 (wherein names of the parties have not been given) filed for annulment of marriage on the ground of fraud under Section 12 (1)(c) of the Hindu Marriage Act considered the various aspects of the matter and noticed that the term "fraud" has not been defined in the Act and observed that 'not every kind of misrepresentation or concealment of fact' can be termed as “fraud” as envisaged under Section 12 of the Act,” observed the Court.

Further, the Court held the for a voidable marriage a declaration is necessary, however, the same is not the case with a marriage void. Since the appellant is an educated lady and working as Executive Officer, Nagar Panchayat, Manjhanpur, District Kaushambi, it was unbelievable that she could be forced to have signed marriage registration papers.

Since no grounds under Section 11 of the Hindu Marriage Act were available to the appellant-wife, the Court dismissed the appeal at the stage of admission.

Case Title: Km. Ankita Devi vs. Shri Jagdependra Singh @ Kanhaiya 2024 LiveLaw (AB) 58 [FIRST APPEAL No. - 1391 of 2023]

Case Citation: 2024 LiveLaw (AB) 58

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