Explain the difference between Void and Voidable marriage and discuss whether the child born out of void or voidable marriage will be considered legitimate?
Marriage is a backbone of every society because it helps the society in continuation by adding a unit into it. Moreover, it is one of the most important phase in every persons life because it unites two persons of different sex for whole life and arises some matrimonial rights and obligations between them. It gives legitimacy to the child born out of their wedlock. These things are possible only in case of valid marriage.
But, if the marriage is void or voidable marriage then the situations will be different. Section 11 of Hindu Marriage Act, 1955 deals with the provisions of Void marriage and section 12 of Hindu Marriage Act, 1955 deals with the provisions of Voidable marriage.
According to Hindu Marriage Act, 1955, a void marriage is no marriage. It is void ab initio i.e. it does not exist from its very beginning. It is a marriage only because parties to it have undergone the ceremonies of marriage but as they absolutely lack the capacity to marry they cannot be considered husband and wife. It does not create any rights and obligations and confer the status of husband and wife.
According to this Act, it is not necessary to get the decree of nullity of marriage in case of void marriage. Even when the court passes a decree it merely declares that marriage is null and void. It is not a decree of court which renders such a marriage void. Parties to marriage sought this decree just to avoid subsequent complications and to get the ancillary reliefs.
According to this act, the grounds given under Section 11 applies only to the marriages solemnized after the commencement of this Act i.e. after 18 May, 1955. Moreover, this Act provides the provisions regarding criminal liability in case of void marriage.
Whereas, according to Hindu Marriage Act, 1955, a voidable marriage is a valid marriage until it is avoided by any of the party to marriage. It remains valid and binding and continues to subsist for all purposes unless a decree annuls it. According to section 12, the aggrieved spouse can get the decree of nullity of marriage if the another spouse is unable to consummate the marriage because of impotency or if another spouse is suffering from mental disorder or if the consent of aggrieved spouse has been obtained by fraud or force or if the female spouse conceals the fact of pre- marriage pregnancy.
According to section 12 of Hindu Marriage Act, 1955, this remedy is an optional because if the aggrieved spouse does not want to get the marriage annulled, then that spouse will not file the petition for annulment of marriage. Moreover, the grounds given under section 12 applies to the marriages solemnized before the enactment of this Act and also after the enactment of this Act and this Act does not laid down any penalty for a voidable marriage.
These are the main differences between void marriage given under section 11 and voidable marriage given under section 12.
Now, the main question arises that, “whether the child born out of void or voidable marriage will be considered legitimate?”
According to section 16 of Hindu Marriage Act, 1955, if any child born out of a void marriage or a voidable marriage which has been declared null and void, that child will be considered legitimate child. But, that child will inherent the property of his parents only and he will not inherent the property of ancestors of his patents. The main aim of this section is to protect the child from being considered as a bastard.
In a leading case of Rameshwari Devi vs. State of Bihar(AIR 2000 SC 735), the court stated that under section 16 of Hindu Marriage Act, 1955, the children of void and voidable marriage are legitimate.
Hence, it can said that the child born out of void or voidable marriage will be considered legitimate child.