Void and Voidable Marriages Under Hindu Law

Under the Hindu Marriage Act, 1955, a void marriage (Section 11) is no marriage at all in the eyes of law: it happens when a party already has a living spouse, or the parties are within prohibited degrees or are sapindas without a custom allowing it. A voidable marriage (Section 12) is valid until a court annuls it, on grounds such as impotence, lack of mental capacity, consent obtained by force or fraud, or the wife's pregnancy by another man at the time of marriage. Children of both kinds of marriage are treated as legitimate under Section 16.

This explainer is written for B.A. LL.B. and LL.B. students preparing for family law papers, and for anyone in Tamil Nadu who wants to know where they stand. A woman in Nagercoil who learns that her husband was already married, or a young man in Madurai who says he was forced into a wedding, needs to know first whether the marriage is void or voidable, because the remedy, the time limit and the effect all depend on that answer.

What makes a Hindu marriage void under Section 11?

Section 5 of the Act lays down the conditions for a valid Hindu marriage. Section 11 picks out three of them. A marriage solemnized after the Act came into force is void if it breaks any of these:

• Section 5(i): neither party may have a living spouse at the time of marriage. A second marriage while the first subsists is void.
• Section 5(iv): the parties must not be within the degrees of prohibited relationship, unless the custom or usage governing each of them permits the marriage.
• Section 5(v): the parties must not be sapindas of each other, again unless custom governing each of them permits it.

Either party may petition for a decree of nullity against the other. The decree only declares what was always true: the marriage never had legal existence. Section 17 adds that a bigamous Hindu marriage is void and attracts the criminal law on bigamy.

What makes a marriage voidable under Section 12?

A voidable marriage stands until one party goes to court and obtains a decree of annulment. Section 12(1) gives four grounds:

1. The marriage has not been consummated owing to the impotence of the respondent.
2. The marriage breaks Section 5(ii), that is, at the time of marriage a party was incapable of giving valid consent because of unsoundness of mind, or suffered from a mental disorder making them unfit for marriage and the procreation of children, or was subject to recurrent attacks of insanity.
3. The petitioner's consent (or the guardian's, where it was required) was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.
4. The respondent was, at the time of marriage, pregnant by some person other than the petitioner.

Section 12(2) puts limits on the last two grounds. A petition based on force or fraud is barred if filed more than one year after the force ceased or the fraud was discovered, or if the petitioner, with full consent, lived with the other party as husband or wife after that. A petition based on pregnancy needs proof that the petitioner did not know the facts at the time of marriage, that proceedings began within one year of the marriage, and that there has been no marital intercourse with consent since the petitioner discovered the facts.

What about underage marriages?

Section 5(iii) requires the bridegroom to be at least 21 and the bride at least 18. Breaking this condition does not make the marriage void under Section 11. Instead, the Prohibition of Child Marriage Act, 2006 makes a child marriage voidable at the option of the party who was a child (Section 3), with a petition to the district court before that person completes two years after attaining majority. Section 12 of the 2006 Act makes the marriage void outright where the minor was enticed, forced, deceived, sold or trafficked. Section 20 of the same Act amended Section 18 of the Hindu Marriage Act so that an age violation is punishable with rigorous imprisonment up to two years, or fine up to one lakh rupees, or both.

Are the children legitimate, and can they inherit?

Yes. Section 16(1) treats a child of a void marriage as legitimate, whether or not a decree of nullity is passed. Section 16(2) does the same for a child conceived or born before a voidable marriage is annulled. Section 16(3) limits their property rights to the property of the parents.

In Revanasiddappa v. Mallikarjun (decided 1 September 2023 by a three-judge bench led by Chief Justice D.Y. Chandrachud), the Supreme Court held that such a child is entitled to the parent's share in Mitakshara joint family property, worked out by a notional partition immediately before the parent's death. The child is not a coparcener by birth and has no claim on the shares of other coparceners.

Can a spouse of a void marriage claim maintenance?

For years High Courts disagreed on two questions: can a spouse of a void marriage get permanent alimony, and can interim maintenance be paid while a nullity case is pending? In Sukhdev Singh v. Sukhbir Kaur (12 February 2025, 2025 INSC 197), a three-judge bench answered both questions in favour of relief:

• A spouse whose marriage is declared void under Section 11 can seek permanent alimony or maintenance under Section 25, because "any decree" includes a decree of nullity.
• Interim maintenance under Section 24 can be granted while the case is pending, even if the court prima facie finds the marriage void or voidable.
• Both reliefs are discretionary, and the conduct of the party is relevant.

The Court distinguished Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988), which was a case under Section 125 CrPC (now Section 144 BNSS). It also called the expressions "illegitimate wife" and "faithful mistress" used in some High Court rulings misogynistic and contrary to dignity under Article 21. Students should avoid those phrases in answers.

How does criminal law treat bigamy in 2026?

Bigamy is now covered by Section 82 of the Bharatiya Nyaya Sanhita, 2023 (earlier Sections 494 and 495 IPC). Marrying again during the lifetime of a spouse is punishable with imprisonment up to seven years and fine. Concealing the earlier marriage from the new spouse raises the maximum to ten years. The offence does not apply where the earlier marriage was declared void by a court, or where the earlier spouse was continuously absent for seven years, not heard of as alive, and the facts were disclosed before the new marriage.

Is there anything specific to Tamil Nadu?

Tamil Nadu added Section 7A to the Act in 1967. It recognises suyamariyathai and seerthiruththa marriages, solemnized before relatives, friends or other persons by a declaration, exchange of garlands or rings, or tying of the thali, without a priest. In Ilavarasan v. Superintendent of Police (28 August 2023), the Supreme Court held that such marriages need no public declaration, while saying advocates should not solemnize marriages in their professional capacity. Section 7A deals with the form of ceremony. It does not displace the Section 5 conditions, so a Section 7A marriage with a living spouse is still void under Section 11.

How should you write this in an exam?

1. Open with a one-line distinction: void is a nullity from the start, voidable is valid until annulled.
2. Set out Section 5, then map clauses (i), (iv), (v) to Section 11 and clause (ii) to Section 12.
3. List the four Section 12 grounds and the Section 12(2) time limits.
4. Deal with Section 16 and cite Revanasiddappa (2023).
5. Add maintenance under Sukhdev Singh (2025) and bigamy under Section 82 BNS.
6. For a Tamil Nadu paper, mention Section 7A and Ilavarasan (2023).

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Sources

• India Code: The Hindu Marriage Act, 1955: official record of the Act (Act No. 25 of 1955).
• Prohibition of Child Marriage Act, 2006 (PRS India): text of Sections 3, 12 and 20.
• Supreme Court Observer: Sukhdev Singh v. Sukhbir Kaur: report of the 2025 ruling on alimony in void marriages.
• Revanasiddappa v. Mallikarjun judgment (LiveLaw copy): full text of the 2023 ruling on Section 16.
• Supreme Court of India: Ilavarasan v. Superintendent of Police: 2023 judgment on Section 7A marriages.
• Bharatiya Nyaya Sanhita, Section 82 (AdvocateKhoj bare act): text of the bigamy offence.