In Case of Void Marriages
Under Section 5 of Hindu Marriage Act, a marriage is considered valid if it fulfills the following three conditions:
1. None of the parties have a spouse who is alive at the time of this marriage;
2. Both parties do not fall under the degrees of prohibited relationship, until and unless the custom or usage that governs them allows the union between the two of them;
3. The parties are not Sapindas of each other, until and unless the custom or usage that governs them allows the union between the two of them;
If any of the above stated conditions are unable to be fulfilled, a marriage then stands as null and void under Section 11.
However, any of the two parties are allowed to obtain a decree of nullity of marriage from the Court.
In Case of Voidable Marriages
Section 5 of the Act mandates that at the time of marriage, neither individual-
(a) is not capable of giving a valid consent to the marriage as a consequence of an unsound of mind; or
(b) though capable of providing valid consent, has been suffering from mental disorder of such a kind or to such an extent that can be deemed unfit for marriage and the procreation of children; or
(c) has been prone to recurrent attacks of insanity.
There is provision for obtaining a decree of nullity of marriage, voidable in nature, under Section 12 of Hindu Marriage Act on any of the grounds listed below:
(a) That a marriage that has not been consummated due to the respondent’s impotence. A party is deemed impotent when his/her physical or mental condition renders consummation of a marriage impossible.
(b) that the marriage breaches the conditions specified in clause (ii) of section 5, i.e., if at the time of the marriage, either party was incapable of giving a valid consent to it as a result of unsoundness of mind, or if even capable of giving a valid consent, such party has been suffering from mental disorder of such a kind or to such an extent so as to be unfit for marriage and the procreation of children; or the other party has been facing frequent attacks of insanity.
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978) commenced, the consent of such guardian 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; or
(d) that the respondent was pregnant at the time of marriage and the pregnancy was caused by a person other than the petitioner.
However, it is imperative to note that no such petition for annulment of a marriage on the grounds specified in clause (c) of sub-section (1) of section 12 i.e., on the ground of consent obtained by force or fraud, shall be entertained if the petition is presented more than one year after the force had come to an end, as the case may be, the fraud had been discovered. Therefore, where you know that your consent in the marriage was obtained by fraud, you are required to file the petition for annulment of marriage within one year from the time when the fraud was discovered.
You should also remember that no such petition should lie before the Court, in the evnt that continued living with the other party as husband or wife, even once the force by which consent was obtained came to an end and was discovered.
Regarding the last clause that state that the other party was pregnant by someone else, the court should know that you did not know of the spouse’s pregnancy at the time of marriage. Petitions filed on this ground should be filed within a period of one year from the marriage. It should also be noted that marital intercourse with the petitioner should not have occurred ever since it had been discovered that the other party was pregnant by someone else.