What is the difference between a void marriage and a voidable marriage?

Question

I found out my spouse was already married when we got married, and I want to know whether our marriage is automatically void or whether I need to go to court. What I am unsure about is the procedure — where the application goes, what it costs, and how long void marriage vs voidable marriage matters usually take. A plain explanation of the steps, in order, would help more than a general answer.

MyVakeel Legal Desk · Accepted Answer

The law that applies to void marriage vs voidable marriage here is Hindu Marriage Act 1955, Section 11, Hindu Marriage Act 1955, Section 12 and Hindu Marriage Act 1955, Section 5. The detail below matters, because Hindu Marriage Act 1955, Section 11 draws the line differently depending on what your documents show.

Section 11 declares a marriage void ab initio, meaning it is treated as never having legally existed, if it contravenes the conditions in Section 5 relating to bigamy, prohibited degrees of relationship, or sapinda relationship without custom permitting it.

Section 12 lists grounds that make a marriage voidable, such as impotence, consent obtained by fraud or coercion, pre-marriage pregnancy by another person unknown to the husband, and mental incapacity, but these marriages remain valid until a decree of nullity is obtained.

A void marriage does not require a court decree to be treated as invalid, though parties often still obtain a formal declaration for clarity on issues like remarriage, inheritance and legitimacy of children.

Children born from void or voidable marriages are legitimate under Section 16 of the Hindu Marriage Act for the purpose of inheriting from their parents, even though the marriage itself has no legal standing between the spouses.

A petition for nullity of a voidable marriage under Section 12 must generally be filed within one year of discovering the fraud or force, or within a reasonable time after the marriage, depending on the specific ground invoked.

In practice, in this order: 1) Identify whether your ground falls under the void categories in Section 11 or the voidable categories in Section 12; 2) Gather evidence supporting the specific defect in the marriage, such as proof of a prior subsisting marriage; 3) File a petition for a declaration of nullity in the family court promptly, especially for voidable marriage grounds; 4) Consult a lawyer to understand the effect on legitimacy of children and property rights.

Timing matters here: Hindu Marriage Act 1955, Section 11 works on limitation periods, so a void marriage vs voidable marriage claim that is right on the merits can still fail if it is brought late. You can post the details on the MyVakeel forum for a practising advocate to review, or book a paid consultation with a Bar Council verified lawyer in family law.