What do you mean by void and voidable marriages?

What do you mean by void and voidable marriages? What is the rule about the legitimacy of children of void and voidable marriages ?

Ans. Void marriages.—Section 11 of the Hindu Marriage Act, says that “any marriage solemnized after the commencement of this Act 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 any one of the conditions specified in clauses (i), (iv) and (v) of section 5.” Thus a marriage will be void ‘ab (I) Bigamy : if any party to the marriage has a spouse living at the time of the marriage [Section 5(i), (AIR 1964 SC 1625)]; (ii) Prohibited degrees of relationship : if the parties are within the degrees of prohibited relationship unless the custom or usage governing each of them permits such a marriage [Section 5 (iv)]. (iv) Sapind Relationship: if the parties are Sapindas of each other, unless the custom or usage governing each of them permits such a marriage [Section 5 (v)]. In MM. MaMotra v. Union of India, (AIR 2006 SC 80), the Apex Court observed that the marriages covered by Section 11 of the Act are void ipso jure, that is, void from the very inception and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of the petition, it is not essential to obtain in advance such a formal declaration from a Court in a proceeding commenced for the purpose. The provisions of Section 11 of Hindu Marriage Act for declaration of a marriage null and void, and of Section 13 for divorce, require that a petition under these sections is to be presented by either the husband or the wife. Therefore, where the first wife of a person seeks declaration as to nullity of marriage between her husband and some other lady, the suit shall not be governed by this Act, but shall be governing by Section 9 of C.P.C. read with Section 34 of Specific Relief Act Illarmohan v. Smt. Karnak, AIR 1979 OH. 511. Voidable marriage.—According to Section 12 any marriage solemn ized,whether before or after commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely — (a) Impotency: that the marriage has not been consummated owing to the impotence of the respondent. [Section 12 (1) (a)]. The wife need not prove that the husband was impotent at the time of marriage and continued to be so when the petition was filed. It is enough if it is proved that the marriage has not been consummated and the non-consummation is due to the impotency of the husband. 1Smt. Suvarna v. GM. Achary, AIR 1979 A.P. 1691, • p Insanity, Unsoundness of mind: that the marriage is in contravention of the condition specified in clause (ii) of section 5. [Section 12 (1) (b)]. Section 12 (i) (b) refers that any marriage shall be voidable and may be annulled if the marriage is in contravention of the condition specified in clause (ii) of Section 5. On a plain reading of the said provision it is manifest that the condition prescribed in that section, if established, disentitles the party to a valid marriage. The marriage is not per se void but viodable under the clause( Lakshmi Narayan v. Santhi, 2001 (45) ALR 515 (S.C)1. (c) Consent obtained by force or fraud : that the lespondent of the petitioner, or where the consent ofthe guardian in marriage of the petitioner is required under section 5, the consent of such guardian, was obtained by force or by fraud as to the nature of the ceremonies or as to any material fact or circumstances concerning the respondent; [Section 12 (I ) (01 p Pregnancy of the Respondent: that the espondent was at the time of marriage pregnant by some person other than the petitioner. [Section 12(1)(d)]  In Mahendra v. Sushila Bai (AIR 1965 SC 364), it was held that where the wife admitted her pregnancy before the solemnisation of marriage, when the husband had not met her the case would be covered u/s 12(1) (d) and the husband would be entitled to get a decree of nullity. In Baldev Raj Miglani v. Smt. Urmila Kumari (AIR 1979 S.C. 879), the Court was so satisfied even though the doctor who testified was not specialised in gynecology and held that the appellant had satisfactorily discharged the burden which lay upon him of proving that the respondent was pregnant since long before the date of wedding as a result of sexual relations with some person other than the appellant and was pregnant at the time of marriage that it passed the decree of nullity in favour of the appellant. In G Venkatnarayan v. Kurupati Lakhsmi Devi in 1985, where the court in a matrimonial proceeding under this section appointed a commissioner—Doctor for examining a party to marriage to know whether he or she was impotent or not and whether he or she was able to consummate the marriage here was no deprivation ofpersonal liberty or breach of Art. 21 of the Constitution. Distinction between void and voidable marriages.—The main distinction between the two is as follows: (1) A void marriage is void ab initio and is a nullity. It is void ipso facto. A voidable marriage, on the other hand, is a marriage whidi is legal for all purposes whatsoever unless it is annulled by the Court on the petition of the aggrieved party. (2) A fresh marriage contracted during the subsistence of a voidable marriage and before it is annulled by a decree of nullity will be considered a bigamous one, and either spouse of the second marriage is liable under the penal provisions of section 18 of the Act. But it is not so in the case of void marriage. (3) Under section 11, a marriage, solemnised after the commencement of theAct, shall be null and void if it is in contravention of clauses (i), (iv). and (v) of Sec. 5. But any marriage may be declared void by a decree of nullity whether solemnised before or after the commencement of the Act, under section 12. The scope of section 11 of the Act is wider than the scope of Sec. 1.2 in view of the fact that Sec. 11 restricts its application only to some of the conditions of a valid marriage, whereas several other grounds apart from some of the grounds of a valid marriage, also come within the purview of section 12.