According to Lord PENZANCE in the case of HYDE V. HYDE,marriage is the voluntary union between man and woman to the exclusion of all others.There are certain circumstance where a marriage can be void or voidable.
Void marriages are marriages which is defective to the root.There are marriage not recognize by law as such marriages are against public policy or prohibited by law.For instance ,Section 3(c) of the matrimonial Causes Act (M.C.A),any union between two people within the prohibited degree of consanguinity and affinity is void.
Voidable marriage are marriages which are valid until set aside by one of the party.The defectiveness do not go to the root of the marriage.For instance where a woman is pregnant for another person other than her husband.Section 5(1)(a) of the MCA and the court in SMITH V. SMITH provide that such pregnancy is a ground to held the marriage as voidable and can be set aside.
There are difference between void and voidable marriage and they are:
1.Void marriage is non existing from the beginning of the marriage while voidable marriage is recognized by law until set aside.
2.As regards rectification,void marriage cannot be rectified but voidable marriage can be rectified either through cohabitation or by prescription.
- The validity of void marriage can be challenged even after the death of either party but a voidable marriage can ONLY be challenged during the lifetime of both parties and not after the death of either parties.
- For void marriage ,a decree declaring it void is not necessary.But for a voidable marriage ,a decree is necessary to annul such marriage.
5.Where the marriage is voidable ,the wife automatically acquires the domicile of her husband by reason of the marriage but for void marriage ,the wife does not acquire the domicile of her husband.
6.For voidable marriage,only parties can apply for annulment but for void marriage ,a third party can apply for declaration of marriage as void.