Family Law II - 20th May 2021

Position of Children under Void and Voidable marriage

Under matrimonial act of 1950 children of voidable marriage are

legitimate. Even of passing of decree of annulment of marriage.

If the marriage is void (null and zero) the children remain illegitimate.

The position under Hindu Marriage Act and Special Marriage

Act,

a) in case of both the act the children of un annulled voidable

marriage will be legitimate.

b) Children of un annulled voidable and void marriage (whether

declared void or not) are legitimate but they will inherit the
property of their parents alone and no one else.

a) If the marriage is void or voidable under any provisions of the

law, except under section 11 and 12, the children will be
illegitimate.

Refer Section 11 and 12 of Hindu Marriage Act.

It is not established that such children can inherit the separate

property of their father under Section 8 of Hindu Succession Act but
could not lay any claim on the coparcenary interest of father.

Sardar Ram Vs. Durgabai AIR 1987

Similarly Sujata Vs. Jagar

Child of such marriage has no birth right in the Hindu joint family
property

Position of children under Parsi Marriage & Divorce act is the same
as under Divorce act.
Pre-Marriage Pregnancy

It is one of the grounds for voidable marriage under section 25 (2) of

Hindu Marriage Act and Section 12 (1) (d) of Special Marriage Act
and Section 32 (1) of Parsi Marriage and Divorce Act

This is also one of the ground of voidable marriage under

Matrimonial causes act 1973 and it is called as Pregnancy Per Alium.

The term pre-marriage pregnancy is called as Pregnancy Per Alium.

Under earlier English matrimonial law this was considered (pre-

marriage pregnancy) as a special case of fraud.

According to Dharmashastra, if a man knowingly married a

pregnant woman, she is his wife and the child born to her is his child
known as Sahodaja son.

According to Manu Smriti if he married a pregnant woman without

any knowledge of her pregnancy he has a power to repudiate the
marriage and return the wife to her father.

Under Modern law, it has been made separate ground of annulment

of marriage. It is a ground of voidable marriage since it amounts to
foisting somebody else child on the husband.

Surjit Vs. Raj Kumar AIR 1967

Section 25 (2) - The ground is pre-marriage pregnancy and not pre-
marriage unchastity. Even if a women was unchaste before the
marriage and she has delivered an illegitimate child, the marriage
could not be avoided since unchastity is not a ground of annulment of
marriage.
What are the requisite conditions of pre-marriage? Marriage and
divorce

1) Respondent was pregnant at the time of marriage

2) The pregnancy was from some other person other than petitioner
3) Petitioner was unaware of pregnancy of respondent at the time
of marriage (Unawareness of petitioner where the respondent is
pregnant)
4) Petition muse be presented within one year of marriage –
under Hindu Marriage act, special marriage act and in Parsi
Marriage & Divorce Act within 2 years of marriage.
5) No marital intercourse should take place with the consent of the
petitioner after he had known of his wife’s pregnancy.

Mohinder Vs. Bikker Singh AIR 1970

Nishit Vs. Anjali 1968

Mahendra Vs. Sushila 1965

Over here the burden of proof is on petitioner who must establish all
the fore said requirements

Mahendra Vs. Sushila 1965

It was held that wife’s admits that her pre-marriage pregnancy.

Baldev Raj Vs. Urmila Kumar

Medical evidence may also to be given.

Pawan Kumar Vs. Mukesh Kunar AIR 2001 (Land Mark Case)
Where wife was pregnant by some other person and the marriage had
broken down immediately though the petition was filed because the
fact is that if the husband comes to know the wife is pregnant other
than him, it is mental agony and cruelty upon the husband. For
him to digest that his wife became pregnant because of some other
men, it is great insult to his ego.
Lack of Consent

For the grounds of valid marriage you require consent. Without

consent is one of ground of voidable marriage.

Matrimonial Causes Act 1973 – it says marriage shall be voidable if

either party did not consent to it. Because of inconsequence of
Duress, mistake, unsoundness of mind or otherwise. The word
Duress means Coercion, compulsion, force (physical force).

Under Indian personal laws, the ground is worded differently. That

means Hindu Marriage Act it may be different,

Under Hindu Marriage Act 1955 Section 12 (1) C, it is laid down that
whenever the consent of the petitioner is obtained by fraud or force,
the marriage is voidable at its instance.

Special Marriage Act, the consent of either party was obtained by

coercion or fraud has been defined under Section ….of Indian
Contract act. (Find the section)

Particularly under Parsi marriage & divorce act, it is same i.e. lack of
consent

Particularly under Muslim law, where there is lack of consent, such

marriage is not voidable but appears to be void.

Particularly under Hindi Marriage Act and Special Marriage Act,

1) The requirements of the ground are consent of the petitioner was

obtained by fraud or force. Fraud or forces appears under Hindi
Marriage Act and but coercion or fraud find under Special Marriage
Act.
1) Petition must be present within 1 year of marriage. (discovery of
fraud)
2) Petitioner must not have believed the respondent as husband or
wife as the case may be, after the discovery of fraud or cessation of
force.

Force: means physical force, physical violence, it can be even a

threat

The word used under English law, we don’t use in India law – we use
coercion and force

Coercion Section 15 in contract act

Here is the force might be exerted by the respondent himself or by

someone else.

Strong advice, persuasion will not amount to force.

Shitij Khurana Vs. Shreha Khurana AIR 2014

Where a marriage solemnized under influence of drugs administered
by husband and his sister, are included in the term of force because its
lack pre-consent.

Purabji Vs. Basudeo AIR 1969

Appibai Vs. Khimji 1936

Scott Vs. Sebright 1886

Rice Vs. Rice – land mark old case where the marriage was
solemnized on gun point

All these cases it has been held that coercion and undue influence
included in term force.
Fraud
In fraud you deceive the party, by concealing the fact.
The main element of fraud is deceit.
The fraud in matrimonial law is different from fraud in commercial
contract.

The Marriage laws amendment act 1976, lays down that the fraud
vitiating the consent should relate to
1) Nature of Ceremony
2) Any material fact or circumstance concerning the respondent.

(Family or broker exaggerating)

Nand Kishor Vs. Munnibai AIR 1979

It was observed that fraud should be such which procures the
appearance without reality of consent and thereby becomes an act
fitted to deceit.

Purbai Vs. Basudev AIR 1969

WIFE sought annulment of marriage because her husband boosted as
to high prospects in life.

Grounds
The courts confirmed certain grounds which may be classified as
under
1) Fraud on nature of ceremony.
2) Fraud as to identity of the parties to marriage
3) Concealment of disease
4) Concealment of religion or cast
5) Concealment of unchasisty
6) Concealment of illegitimate birth