Void Marriages under the Special Marriage Act: Section 24

A void marriage is no marriage at all in law; a decree of nullity merely declares that fact. Section 24 of the Special Marriage Act makes a marriage void if any of the four core conditions in section 4 was not met, or if the respondent was impotent. The list is wider than under the Hindu Marriage Act, where mental incapacity and impotence make a marriage only voidable and underage marriage is valid. This note covers the grounds, the petition, the special rule for registered marriages, and the consequences of a void marriage.

1. Grounds: Section 24(1)

Figure 1: Five grounds of nullity

• Text. Any marriage solemnized under the Act is null and void, and may on a petition by either party against the other be so declared by a decree of nullity, if (i) any of the conditions in clauses (a), (b), (c) and (d) of s.4 was not fulfilled, or (ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.
• Breach of s.4. An existing spouse, lack of mental capacity, under age, or prohibited relationship without a notified custom (Topic 3)
• Impotence. Physical or mental incapacity to consummate, which must exist both at the marriage and when the suit is filed. Under the Hindu Marriage Act the same defect makes the marriage only voidable.

2. The Petition and the Decree

• Who may petition. Either party to the marriage, against the other. A third person with an interest may seek a declaration by an ordinary civil suit, but not by a petition under s.24.
• Declaratory decree. The marriage is void from the start; the decree declares an existing nullity. In principle a void marriage may be treated as a nullity even without a decree, but a decree provides certainty.
• No time limit. The Act fixes no period for a petition under s.24, unlike the time limits for some voidable grounds under s.25.
• Children. Children of a void marriage are legitimate under s.26, though their property rights are limited to their parents (Topic 14)

3. Registered Marriages: Section 24(2)

• Rule. Section 24(1) does not apply to a marriage deemed solemnized under the Act by registration under Chapter III. Instead, its registration may be declared of no effect if made in contravention of any of clauses (a) to (e) of s.15.
• Proviso. No such declaration may be made where an appeal was preferred under s.17 and the district court's decision has become final.
• Effect. If the registration is declared of no effect, the marriage is no longer deemed to be one solemnized under the Act; its status depends on the law under which it was celebrated.

4. Comparison and Maintenance

Figure 2: Nullity under the two Acts

• Yamunabai Anantrao Adhav v Anantrao Shivram Adhav (1988). Decided under the Hindu Marriage Act: a woman whose marriage is void because the man had a living wife is not his 'wife' and cannot claim maintenance under s.125 of the CrPC.
• Badshah v Urmila Badshah Godse (2014). Where the man concealed his earlier marriage and deceived the woman, he cannot rely on the invalidity of the second marriage to defeat her claim to maintenance under s.125.
• Under this Act. The court may award permanent alimony when passing any decree, including a decree of nullity, under s.37 (Topic 22)

5. Frequently Asked Questions

Is impotence a ground for a void or a voidable marriage under the Special Marriage Act?

Void. Under s.24(1)(ii), a marriage is void if the respondent was impotent at the time of the marriage and at the time of the institution of the suit. Under the Hindu Marriage Act, non-consummation owing to impotence makes the marriage only voidable.

Can a marriage registered under Chapter III be declared void under section 24?

No. Section 24(2) excludes such marriages from s.24(1). Instead, the registration may be declared of no effect if it contravened clauses (a) to (e) of s.15, unless an appeal under s.17 was decided and the decision has become final.

6. Related Topics

• Topic 13: Voidable Marriages, Section 25. The other form of nullity.
• Topic 14: Legitimacy of Children, Section 26. Children of void marriages.