MAINTENANCE IN A VOID MARRIAGE

knowledge that one party knew of the previous marriage  or customary divorce cannot validate a marriage which is void ab initio in the eyes of law. therefore it is usually  held that such marriages were subsisting at the time of the second  marriage . The subsequent marriage is,  in clear contravention of Section 5(i) of the HMA and is void under Section 11 . As far as the issue of  interim maintenance pendente lite and permanent alimony/maintenance, it is well settled that the grant of maintenance pendente lite or permanent alimony under Section 24 & 25 of the HMA respectively, is not precluded merely because the marriage has been declared void under Section 11 of HMA. MAT.APP. (F.C.) 236/2019, Pronounced on: 29 .05 .2026 passed by the Hon'ble High Court of Delhi.

In voidable marriage, the applicable section is  Section 23(1)(a) which is considered , however in case of  void  marriages the applicable  section is  Section 11 for contravention of Section 5 (i) of the HMA,  which have distinct legal consequences.  Marriages solemnized in contravention of Section 5(i) are distince from those falling under Section 5(ii)(a), (b) and (c) thereof. Section 23(1)(a) has no application to void marriages  which are solemnized in violation of Section 5(i).

In Bhimashya v. Janabi, (2013) 13 SCC 627, the Supreme Court held that a valid custom must be ancient, certain, reasonable, and continuously observed.

In Saraswathi Ammal v. Jagadambal, (1953) 1 SCC 362, the Supreme Court held that a custom may be proved through authoritative texts, judicial recognition, or long and continuous usage.