When “Void” Doesn’t Mean Nothing: Rethinking Nullity Under the Hindu Marriage Act
*Trisan Karan
Introduction and Thesis
Section 11 of the Hindu Marriage Act, 1955 declares certain marriages void, and Section 12 makes others voidable, that is, valid until annulled. A woman who lives with a man believing herself his wife, and learns when she claims maintenance that he had a living spouse, finds her marriage void under Section 11 and treated as never having existed. This article is concerned with the gap between what the two provisions say and how they operate in practice, not with their text.
This article argues that the void and voidable scheme has no place for the spouse who married in good faith and was deceived, and that the burden falls mostly on women. Courts have begun to correct this where the text allows: Section 16 protects the children, and in Badshah v. Urmila Badshah Godse the Supreme Court read “wife” in Section 125 of the Code of Criminal Procedure to include a deceived woman.1 The article proposes that courts apply this good-faith reading to maintenance claims, leaving the marriage void and the first wife’s rights untouched (Part VII).
The Scheme of Sections 11 and 12
Section 11, read with Section 5(i), (iv) and (v), makes void a marriage where a spouse is living, or where the parties are within the prohibited degrees of relationship or are sapindas of each other, the last two unless custom permits.2 Such a marriage is void from the outset, and no act of the parties can validate it. Section 12, by contrast, makes a marriage voidable on grounds touching the parties alone (impotence, mental disorder, force or fraud, pregnancy by another man): it stands until the injured spouse petitions to annul it, a right lost by delay or cohabitation under Section 12(2). This account is accurate but incomplete, and the gap is gendered: it assumes the affected party knows of the defect and says nothing of the spouse who did not, often the second wife.
Void Marriages and the Second Wife
Maintenance shows the effect most clearly. In Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, the Supreme Court held that a woman who marries a man with a living wife cannot claim maintenance as a “wife” under Section 125 of the Code of Criminal Procedure, because the marriage was void ab initio. The logic is internally consistent: if the union never existed in law, no marital status can be claimed through it. But the rule attaches its consequence to the woman, though the concealment was the husband’s act. Savitaben Somabhai Bhatiya reaffirmed it.3 Bhaurao Shankar Lokhande v. State of Maharashtra adds a difficulty: a second marriage is bigamous only if solemnised with the ceremonies the applicable law or custom requires, so where they were not proved the husband was acquitted,4 and the woman who believed in the ceremony has a weaker claim than one whose ceremony was complete. Her position thus depends on a ceremonial completeness she may have had no reason to question. Badshah has since qualified the rule: it held that a husband who suppressed his first marriage cannot rely on his own wrong, so that a deceived woman is a wife for Section 125, distinguishing the earlier cases without overruling them. The Committee on Reforms of Criminal Justice System (the Malimath Committee) recommended in 2003 that “wife” in Section 125 be widened, but Parliament has not done so, and Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 125, keeps the old structure. For the second wife, the effect is that Section 11, though said to protect the sanctity of marriage, relieves the husband of the obligations of a valid marriage.
The Act offers another route. Sections 24 and 25 allow interim and permanent maintenance in proceedings under the Act, and the Supreme Court has held that they apply where a marriage is void.5 But the route needs a matrimonial proceeding, so the woman must ask the court to declare her own marriage void, and the award is discretionary. Her remedy thus depends on the forum and not on the fairness of her claim.
Voidable Marriages: Fraud, Consent and the Limits of Section 12
Section 12 shows that the Act does consider consent given under a false belief. Where the concealed fact is a subsisting marriage, however, the marriage is void under Section 11 and the deceived spouse has no choice to make; where it is another fact, such as illness, the marriage is voidable. The two can overlap.6 Section 12(1)(c) permits annulment for force or fraud as to the nature of the ceremony or “any material fact or circumstance concerning the respondent”, words added in 1976. Courts hold that this is not Contract Act fraud, that not every concealment suffices, and that the fact must be one that would have led the petitioner not to consent, as in Smt. Reeta Jha v. Mukund Kumar Jha.7 Concealment of serious illness or an earlier marriage has been held material, exaggeration has not, and the decisions do not settle caste, a previous relationship or serious debt. That is the position established by authority. What follows is the author’s own proposal, not settled law: the same test should reach such facts without a presumption that any category of concealment is trivial. Section 12(2) also bars petitions filed more than a year after discovery, or after cohabitation with “full consent”.8 Courts have not treated mere co-residence as enough, but none of the decisions considered addresses a spouse who stays for want of income. The author’s view, again not settled law, is that such a spouse does not consent “fully”. Reading “full consent” otherwise would treat economic dependence as forgiveness, which it is not.
Conversion and the Misuse of Nullity
The rigidity of Section 11 also invites misuse. In Sarla Mudgal v. Union of India, the Supreme Court held that conversion to Islam does not dissolve a subsisting Hindu marriage, so a convert’s second marriage is bigamous and void.9 The second wife is then left where Section 11 places her worst, with a void marriage entered on a conversion the law does not recognise, whatever she knew, and such cases show nullity being used to regulate religious identity rather than to decide marital validity.
Children and Second Wives: The Section 16 Comparison
Where the Act has improved is the treatment of children. Section 16 legitimises the children of void marriages and of voidable marriages that are annulled.10 In Revanasiddappa v. Mallikarjun, a two-judge bench read Section 16(3) generously, invoking equality and dignity, to give such children a share in parental property, but in 2023 a three-judge bench confined them to the parent’s share on notional partition, because Section 16(3) limits their rights to the parents’ property. Constitutional reasoning thus helped the innocent child but stopped at the text. The same reasoning can reach maintenance because “wife” in Section 144 BNSS and “any decree” in Section 25 can bear a wider meaning, and the harm, a status the person did not choose, is the one Revanasiddappa addressed. Badshah has applied it, though only for a deceived woman and without displacing Yamunabai. Its limit is that of the 2023 decision: constitutional reasoning chooses between meanings the words allow and cannot override the text or confer the status of a lawful wife.
The Proposed Reform: A Good-Faith Principle
This does not mean merging void and voidable marriages, categories inherited from English law,11 as has sometimes been suggested in uniform civil code debates.12 The distinction matters: it states publicly that a bigamous marriage is not a marriage, and that a marriage between persons within the prohibited degrees of relationship is not one, while voidable marriages leave the choice to annul with the spouse whose consent was defective. The reform is one of interpretation. Courts should read “wife” in Section 144 BNSS (formerly Section 125 CrPC) and the discretion under Sections 24 and 25 to cover a woman who entered a void marriage without knowing of the defect, on the reasoning of Badshah, the dignity reasoning of Sukhdev Singh and the equality reasoning applied to Section 16. The test of good faith is that, when she married, the woman neither knew of the defect nor had reasonable grounds to suspect it. The rule would require that test to be met on evidence, as the Magistrate found it in Badshah; it would leave the marriage void and the first wife’s claim intact, apportioning maintenance as the putative spouse rule of the Uniform Marriage and Divorce Act does;13 and it would end when the woman learns of the defect. A two-judge decision cannot settle the point against Yamunabai, so this judicial route needs a larger bench to secure it. The alternative is legislative: amending “wife” in Section 144 BNSS along Malimath lines. Whether “void” ends a good-faith wife’s claim will depend on whether courts adopt this reading in the next maintenance case or Parliament amends the section.
Endnotes
Code of Criminal Procedure, 1973, s. 125 (now Bharatiya Nagarik Suraksha Sanhita, 2023, s. 144).
Hindu Marriage Act, 1955, ss. 3(f)–(g), 5, 11, 12 (text: https://indiankanoon.org/doc/590166/).
Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636.
Indian Penal Code, 1860, s. 494 (now Bharatiya Nyaya Sanhita, 2023, s. 82).
Chand Dhawan v. Jawaharlal Dhawan, (1993) 3 SCC 406; Rameshchandra Daga v. Rameshwari Daga, (2005) 2 SCC 33; Sukhdev Singh v. Sukhbir Kaur, 2025 INSC 197.
ABC v. XYZ, 2024:AHC-LKO:61602-DB (Allahabad High Court), noting the marriage would also have been void under s. 5(i).
Raghunath Daftardar v. Vijaya Daftardar, AIR 1972 Bom 132; Anath Nath De v. Lajjabati Debi, AIR 1959 Cal 778; Law Commission of India, 59th Report (1974).
Bikkar Singh v. Mohinder Kaur (Punjab and Haryana High Court), cited in Reeta Jha; Hindu Marriage Act, 1955, s. 12(2).
Lily Thomas v. Union of India, (2000) 6 SCC 224.
Hindu Marriage Act, 1955, s. 16.
Matrimonial Causes Act 1973, ss. 11–13 (Eng.).
See generally Flavia Agnes, Law and Gender Inequality: The Politics of Women’s Rights in India (Oxford University Press 1999).
Uniform Marriage and Divorce Act § 209.
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