Section 11 lays down that “any marriage solemnized at the commencement of this Act shall be null and void and may, on a petition, presented by either party thereto (against the other party) be declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. Thus a marriage would be void ab initio if—
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(1) Any party to marriage has a spouse living at the time of marriage [Section 5(1)].
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(2) The parties to marriage are within the degree of prohibited relationship unless the custom and usage governing each of them permits such a marriage [Section 5(iv)].
(3) The parties to marriage are ‘sapinda’ of each other, unless the custom or usage governing each of them permits such a marriage [Section 5(v)].
Such marriages in contravention to the provisions of Section 5(i), (iv) and (v) would be void ab initio and ipso facto. This section would apply only when the marriage was solemnised after the enforcement of the Hindu Marriage Act, 1955. Thus where a person marries another wife or husband during the subsistence of first marriage the subsequent marriage would become void under the section.
It is open to the parties to treat it a nullity without even asking for a declaration .from the court. Thus where a person married his sister’s daughter after the commencement of this Act, it was held that the position of the wife was not better than concubine, and the marriage was void.
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This section does not entitle the first wife to the marriage, performed before the commencement of the Act of 1955 to apply for the declaration that her husband’s second marriage was null and void, but a declaration to that effect could be sought by the second wife on the ground that his first marriage was subsisting. The first wife could obtain a decree of judicial separation successfully.
Although the wife could not recourse to this section for a declaration of nullity but under the Specific Relief Act, 1963 she can get a declaration that her husband’s second marriage was illegal and void. The same view has been upheld by the Allahabad High Court recently in Bivendra v. Kamla, where it was observed that in view of Sections 11 and 17 of the Hindu Marriage Act there is no remedy in case her husband married another lady. In Common law she has right to file a suit for declaration that the marriage of her husband with second wife is illegal and void.
In Harmohan v. Kamla Kumari, it was laid down that a third person could also file a civil suit for declaration that a marriage between two persons was void and ineffective if it adversely affected his legal rights. This view has been reaffirmed in the case of Surjeet Singh v. Mahendra Pal Singh. In this way the wife of first marriage can file a suit for a relief that her husband’s second marriage be declared null and void. This kind of suit will be only under the Specific Relief Act, 1963.
In Prabhjot Singh v. Prabhjit Kaur, it was laid down that the marriage was solemnized in sapindas and the allegation of wife was that her marriage was performed under threat. She and her husband were within prohibited degree of relationship. In this case the husband could not prove by producing any evidence that he was not governed by Hindu Marriage Act and customs in his society permit such marriage. The court declared that such marriage was nullity as per Section 11 of Hindu Marriage Act.
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Section 11 specifically enables either party to the marriage to have it declared null and void by a decree of nullity against the other party. The Section does not confine the right to present a petition there under to the aggrieved party alone. On the other hand, it expressly confers the right to sue on either party to marriage which contravenes any of the conditions of clause (i), (iv) and (v) of Section 5.
No wife can apply for injunction restraining her husband to remarry, because such a provision has not been made cither in Section 11 or in Section 17. But in Uma Shanker v. Radha Devi, the Patna High Court ruled that the first wife could obtain perpetual injunction to prevent second marriage of her husband under Section 9 of the Civil Procedure Code and Section 54 of the Specific Relief Act. The Mysore High Court has confirmed this view in Shankerayya v. Vasumura.
The parties to void marriage could in disregard of such marriage, contract another valid marriage but in the case of voidable marriages it could not be done without first getting such a marriage declared null and void.
In void marriage there is no need of court’s decree for getting the decree of nullity. When the court grants a decree it merely declares the marriage null and void. Either party to marriage could file a petition to this effect. The Punjab High Court in Krishnan Devi v. Tulsa held that a party to void marriage could file a petition under Section 11 for the declaration of its nullity even after the death of the other party. But the Law Commission has criticised this view and observed that section is not meant for granting legitimacy to the offsprings of the marriage but aims at providing relief to the parties of such marriage.
A void marriage is void ab initio and ipso facto. Such marriages do not constitute a marriage in the eyes of law and hence a declaration of nullity from the court is not required. In a voidable marriage if the second marriage of either party thereto takes place without first seeking from the court a decree for nullity as such, they said marriage would not be valid and the concerned party would be liable for punishment.