By Hindu marriage was once considered an unbreakable sacrament. Today, it is a union governed by strict statutory boundaries. Section 11 of the Hindu Marriage Act, 1955, provides the legal mechanism to declare specific marriages non-existent—void ab initio—as if they never occurred. This is not divorce; it is a judicial confirmation that a valid marriage never existed.
This guide examines the three absolute prohibitions—Bigamy, Prohibited Degrees, and Sapinda relationships—that render a marriage void. We analyze the procedural requirements for filing a petition and the landmark 2025 Supreme Court judgment in Sukhdev Singh v. Sukhbir Kaur, which fundamentally shifted the maintenance rights for women in these unions.
Nullity of Marriage
The definitive guide to declaring a Hindu marriage void under Section 11. Covering jurisdiction, strategic estoppel, evidence, the 2025 maintenance revolution, and procedural drafting.
The concept of Hindu marriage has shifted. Once an indissoluble sacrament, it is now a union governed by strict statutory boundaries. The Hindu Marriage Act, 1955 (HMA) introduced Section 11, a mechanism to declare a marriage non-existent (null and void) if it violates specific fundamental conditions. This is the absolute dissolution of a marriage, confirming it never legally existed.
This treatise dissects the legal architecture of nullity, the crucial role of the Affidavit, and the landmark 2025 Supreme Court judgment in Sukhdev Singh v. Sukhbir Kaur that rewrote the rules on maintenance.
The Three Pillars of Nullity
A marriage is not void simply because it fails. It is void only if it breaches one of three specific conditions laid out in Section 5 of the HMA.
Section 5(i)
Neither party can have a spouse living at the time of the marriage. Bigamy renders the second union void ab initio. The petitioner must prove the first marriage was valid and subsisting.
Section 5(iv)
Marriage is prohibited between lineal ascendants (e.g., father-daughter) or specific relatives (e.g., brother-sister, aunt-nephew), unless a valid custom governs the community allowing such a union.
Section 5(v)
The law prohibits unions between “sapindas.” This extends three generations through the mother and five through the father. A mathematical prohibition rooted in both eugenics and tradition.
Void vs. Voidable: The Vital Distinction
Legal practitioners often confuse Section 11 (Void) with Section 12 (Voidable). This distinction dictates the drafting of the affidavit and the timeline for filing.
Legal Status
Void: Invalid from inception. Non-est. Does not exist in the eyes of the law.
Legal Status
Voidable: Valid for all legal purposes until a court decree annuls it.
Limitation Period
Void: No time limit. Can be challenged 20 years later.
Limitation Period
Voidable: Strict limitation (usually 1 year from knowledge of fraud/force).
Third Party Challenge
Void: Can be challenged by third parties (e.g., in inheritance disputes).
Third Party Challenge
Voidable: Only parties to the marriage can petition.
Jurisdiction: Where to File?
Filing in the wrong court is the fastest way to get your petition dismissed. Under Section 19 of the HMA, jurisdiction is not discretionary. You must file in the Family Court (or District Court where Family Courts are absent) within the local limits of whose jurisdiction:
1. Marriage Location
The place where the marriage was solemnized.
2. Respondent’s Residence
The place where the Respondent resides at the time of presentation of the petition.
3. Last Resided Together
The place where the parties last resided together. (Most common ground).
4. Petitioner’s Residence
Only if the Respondent resides outside India or has not been heard of for 7 years.
Strategic Dynamics: Estoppel & ‘Clean Hands’
One of the most complex aspects of nullity litigation is the conduct of the parties. Does the court care if the petitioner knew the marriage was void when they entered it?
Unlike divorce, where a person cannot take advantage of their own wrong, Section 11 permits “either party” to file for nullity. This means even a bigamous husband can file a petition to declare his second marriage void to avoid future liabilities. The court focuses on the status of the marriage (Public Policy) rather than the equity of the petitioner.
Interaction with Section 9
If a spouse previously filed for Restitution of Conjugal Rights (Section 9) and obtained a decree, the court has implicitly accepted the validity of the marriage. A subsequent petition for Nullity (Section 11) might be barred by the principle of Res Judicata unless the petitioner can prove the earlier decree was obtained by fraud or that they were unaware of the nullity grounds at that time.
Nullity vs. Divorce: The Conceptual Chasm
Clients often ask, “Why not just get a divorce?” The distinction is not merely semantic; it alters the social and legal status of the individual.
| Parameter | Decree of Nullity (Sec 11) | Decree of Divorce (Sec 13) |
|---|---|---|
| Effect on Marriage | Declares it never existed (Non-est). | Dissolves a valid existing marriage. |
| Status of Wife | Returns to status of “Spinster” (Maiden name). | Acquires status of “Divorcee”. |
| Grounds | Strict statutory defects (Bigamy, Sapinda). | Fault grounds (Cruelty, Adultery, Desertion). |
| Time Limit | None (Can be filed anytime). | Usually after 1 year of marriage (except hardship). |
The Evidence Matrix
In a Nullity suit, the burden of proof lies heavily on the petitioner. Allegations are insufficient; documentary evidence is paramount.
Required for Bigamy (Section 5(i))
- Proof of 1st Marriage: Marriage certificate, wedding photos, or invitation cards of the Respondent’s first marriage.
- Proof of Subsistence: Voter list, Ration card, or Aadhar card showing the first spouse’s name with the Respondent.
- Ceremonial Validity: As per Dolly Rani (2024), you must prove the first marriage included essential ceremonies (Saptapadi).
Required for Sapinda (Section 5(v))
- Genealogical Tree: A certified family tree tracing lineage back 3 generations (mother’s side) or 5 generations (father’s side).
- No Custom Exception: An affidavit stating no custom exists in the community that permits such a union.
The Criminal Overlap: Section 494 IPC
A civil decree of nullity under Section 11 often runs parallel to criminal proceedings for Bigamy under Section 494 of the Indian Penal Code (IPC). Understanding the interplay is vital for strategic litigation.
Standard of Proof
Civil court operates on “preponderance of probabilities,” while Criminal court requires proof “beyond reasonable doubt.” A civil decree helps but does not guarantee a criminal conviction.
Stay of Proceedings
Following Sethi v. Sethi, criminal proceedings are generally NOT stayed merely because a civil nullity petition is pending. Both can proceed simultaneously.
Punishment
If proven, Bigamy attracts imprisonment up to 7 years. A nullity decree is often the strongest piece of evidence to initiate an FIR or private complaint.
The 2025 Rights Revolution
For decades, women in void marriages were legally invisible regarding maintenance. The 2025 Supreme Court judgment in Sukhdev Singh v. Sukhbir Kaur changed this landscape. The court ruled that “any decree” in Section 25 (Permanent Alimony) includes a decree of nullity.
Figure 1: The trajectory of legal rights for women in void marriages (1955–2026).
This ruling affirms that dignity (Article 21) supersedes technical validity. A woman duped into a bigamous marriage can now claim permanent alimony and interim maintenance under Section 24.
The NRI Context: Cross-Border Nullity
Non-Resident Indians (NRIs) face unique challenges where one spouse abandons the other after a “holiday marriage.”
An ex-parte nullity decree obtained abroad (e.g., in the UK or USA) is not conclusive in India if it violates Section 13 of the CPC (e.g., obtained without valid notice or against Indian law). You must validate it or file a fresh Section 11 petition in India.
Tip: If the Respondent is abroad, serve notice via email/WhatsApp (valid per recent Supreme Court guidelines regarding Hague Convention delays).
Asset Division: Stridhan vs. Alimony
A decree of nullity ends the marriage, but what about the assets? There is a strict legal distinction between “Maintenance” and “Return of Property.”
Section 27 HMA (Stridhan)
The court can order the return of property presented at or about the time of marriage. This includes jewelry, gifts, and cash given to the wife. This is her absolute property, regardless of the marriage’s validity.
Section 25 HMA (Alimony)
This covers ongoing financial support. While Stridhan is a “return” of what you own, Alimony is a “grant” based on the husband’s income and the wife’s need.
Procedural Timeline
From filing to decree, a contested nullity petition typically spans 12 to 24 months. An uncontested (ex-parte) matter may conclude in 6 months.
Step 1: Filing the Petition
Draft the petition under Section 11. Attach the affidavit, marriage photos, and evidence of the contravention (e.g., proof of previous marriage).
Step 2: Notice & Summons
The court issues a summons to the Respondent. If they refuse to accept, notice is served via publication (newspaper) or affixation.
Step 3: Written Statement
The Respondent must file a reply within 30 days (extendable to 90). They may deny the first marriage or claim a custom permits the sapinda relationship.
Step 4: Evidence & Arguments
Examination-in-chief and cross-examination. This is where the validity of the ceremonies of the first marriage is often contested.
Step 5: Decree
The court passes a decree of nullity. If maintenance was requested, the quantum is decided simultaneously.
Post-Decree Protocol
Obtaining the decree is not the end. You must regularize your civil status.
1. Wait for Appeal Period
Do not remarry immediately. Wait for the 90-day appeal period (Section 28) to expire to avoid validity challenges to the next marriage.
2. Update Documents
Apply to remove the spouse’s name from Passport and Aadhar using the certified copy of the decree.
3. Certified Copies
Obtain at least 3-4 certified true copies from the court registry. You will need them for various administrative updates.
Appellate Remedies
If the Family Court dismisses your petition (or decrees against you), Section 28 HMA provides the right to appeal to the High Court.
Strict Limitation Period
The appeal must be filed within 90 days of the decree. Remarriage before this period expires (or before the appeal is decided) is risky and may lead to new complications.
Status of Children: Section 16
A common fear is that annulling a marriage renders children “illegitimate.” Section 16 of the HMA provides a statutory shield. Children born of void or voidable marriages are deemed legitimate.
| Rights | Child of Valid Marriage | Child of Void Marriage |
|---|---|---|
| Legitimacy | Legitimate | Deemed Legitimate (Sec 16) |
| Parents’ Property | Full Inheritance Rights | Full Inheritance Rights |
| Ancestral Property | Coparcenary Rights by Birth | No Coparcenary Rights (Recent SC View) |
Note: The distinction in ancestral property rights remains a subject of judicial evolution, specifically regarding Joint Hindu Family property.
Drafting the Affidavit
The affidavit is the evidentiary backbone of your petition. It must withstand strict judicial scrutiny. Below are verified templates for different scenarios.
Frequently Asked Questions
Technically, no. A void marriage is void by operation of law. However, for practical purposes like claiming maintenance, settling property disputes, or remarrying without fear of bigamy charges, a judicial Decree of Nullity is indispensable.
Yes. Section 16 of the HMA confers legitimacy on children born of void marriages. They can inherit the self-acquired and ancestral property of their parents, though their rights to joint family property of other relatives remain limited.
Per the 2024 Dolly Rani judgment, a marriage certificate alone is insufficient. Essential ceremonies like Saptapadi (seven steps) or Datta Homa must be performed. If no ceremonies occurred, there is no “marriage” to annul; a civil declaration suit is the correct remedy.
Yes. Following the Sukhdev Singh (2025) ruling, courts now grant interim maintenance under Section 24 even in proceedings for nullity. The previous view that a “void wife” gets nothing has been overruled.
If the spouse has not been heard of for 7 years, you may file for divorce on that ground, but if you have proof the marriage was void initially (e.g. sapinda), you proceed under Section 11 ex-parte after notice by publication.
