Before understanding the annulment of marriage, first, we have to understand the actual concept of marriage in India. Marriage is based on socialization. In most cases, it is solemnized and performed by the religious sacrament; On a religious basis, the marriage parties are considered as husband and wife. Through marriage, the spouse gets some legal rights. However, The marriage can not be dissolved by due process of law. In India, many different religions people are living in. That’s why we can say that marriage is covered as a part of personal law, which may be different according to various personal laws.
Now in a day-changing time with social awareness, the government has passed various provisions related to separation. That provision help spouses to resolve marriage-related issues for any unwanted reasons. Generally, this type of issue may arise when a spouse seeks annulment or divorce. Both annulment and divorce seem similar and deal with the dissolving of marriage; however, there are some differences between them. Annulment of marriage is a kind of legal process to declare a said marriage null and void, but the divorce is different from that.
What Is Annulment Of Marriage in India?
India is a large country that belongs to various religions. As per the particular religion, they follow their law. And that’s the reason marriage is part of their law which gives legal status to the spouse. Let’s talk about that personal law which mostly belongs in India. That may be the Hindu marriage act, Muslim Personal Law (Shariat) Application Act, 1937, 1955, Indian Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936, and Special Marriage Act, 1954.
Every marriage is performed as per religion between a man and a woman known and accepted by society; they become husband and wife. The marriage ceremony may be different as per their religion. That can also be referred to as a contract between man and woman. After that, their status is known as a spouse, and they can live together as a husband and wife.
In legal terms, annulment of Marriage means to make a null and void of Marriage. In some cases, when Marriage performs without solemnizing any essential, necessary legal representation, that Marriage is known as the void in legal terms that is automatically null. However, legally that is required to be declared as null and void.
When Marriage needs to be declared null and void by law, that is called Annulment marriage. Here Marriage is declared null and void, which is not performed as per the legal formalities. Such is never considered as a marriage without fulfilling the legal requirement in the eye of law.
Here, we should know that annulment of marriage is different from divorce, many of the similarities between them. In the case of divorce, the marriage is declared dissolved, which already existed by law. In the case of annulment marriage, that is stated as an annulment that is not valid by law.
What are the grounds for a marriage annulment?
The parties of marriage do not comply with the law at the time of marriage sometimes happen that the party does not consent to the marriage. There are many grounds that can be considered for declaring a marriage annulment. that is because of their different legal jurisdiction and personal law, directly connected to religion. However, some of the following grounds can be considered for a marriage annulment.
- Either husband or wife is already married and performs another marriage which is in question.
- If the party of the marriage is affected by any alcohol or drugs at the time of marriage.
- The party of marriage is mentally not capable of suffering any mental illness.
- If the party of marriage is not covered under the legal age; or too young. That is prohibited by law. And such marriage is not performed without prior permission of legal authority or parents. ( In some cases, that kind of marriage is still valid if it continues when a spouse reaches the age of majority.)
- If the marriage is performed without the spouse’s consent or if such type of consent is taken by force based on doing fraud.
- In the case of when a spouse is physically disabled or not capable of marriage.
- If the spouse is not capable of sexual intercourse.
- If the marriage is restricted by law which is not recognized as a valid marriage.
- If someone is jailed as an under-prisoner for a sentence of life imprisonment can not marry.
Who is eligible to apply for marriage Annulment?
Anyone of husband or wife is eligible to file a petition for annulment marriage null and void. It is a court procedure to produce a record by the applicant. Suppose The applicant has robust proof that the marriage does not fulfil the due process of law, and the court finds any truth regarding the application; Then the court can order to declare the marriage is void.
What are the ways to end a marriage in India?
There are many legal options available to save the marriage. For example, the spouse can approach the mediation centre, file a petition for restitution of conjugal rights in the court, etc. But if we talk about the end of marriage most effectively in terms of legal terms, there are two ways; the first is an annulment of marriage, and the second is divorce.
Who can seek Annulment?
The affected party of the marriage can file a petition to the court for Annulment of marriage. Either husband or wife is entitled to file a petition for that. An applicant has to pray to the court that a declaration of the marriage is null and void. To avoid any question related to invalid marriage in the future, that is necessary to apply to the court for Annulment of marriage.
What is the process of annulment of marriage?
The marriage annulment process is different, unlike the procedure of divorce. That is not a common process; that jurisdiction is similar to the dissolution of marriage or divorce. In the case of seeking annulment of marriage, a person needs to fulfill the residency requirement of where they live. The procedure of annulment seems like a divorce that anyone, either husband or wife, can file.
Here the petitioner has to specifically mention some details in the petition like, where he is born, the place where the marriage is solemnized, after the marriage, he stays together for a continuous 90 days period. The petitioner must mention the grounds for seeking annulment of marriage. All though we can say that the divorce process is more complicated than the process of annulment of marriage.
How to get a marriage annulled in India?
A party who wants to file a petition for annulment of marriage has to follow some essential requirement that is given below;
- First is to find a reason why the marriage needs to be annulled and need to collect the incidental proof for that.
- After confirming the ground of annulment, he needs to verify which jurisdiction he can file the petition. That jurisdiction may be different in some places, for example, urban and rural areas. (e.g., file a petition in family court or metropolitan magistrate court). Under the Hindu marriage act, the petition can be filed; Where the marriage is solemnized; The place where the husband and wife last reside; The place where the wife currently resides; etc.
What are Provisions of annulment under the Hindu Marriage Act,1955?
As we discussed above, India belongs to various religions, and that’s why every religion has its law. Marriage is also a holy part of the region so that it is governed under a particular personal law. Let’s see the provision related to an annulment of marriage in The Hindu marriage act, 1955.
The Hindu is a large and old community in India; that’s why the Hindu law belongs to two sources: the first is ancient, and the second is modern. The ancient sources covered shruti, smriti, customs, etc. The contemporary source covered equality, justice, legislation, a good conscience, etc. Once upon in Hindu law, the marriage did not dissolve; because that is treated as a spiritual responsibility as holy wedlock for a lifetime based on religion. The old concept of marriage also needed some changes.That’s why the old Hindu laws related to marriage provisions were transformed with the Hindu marriage act1955; it removed some social functionality strictly followed by ancient laws.
The new law removed some social defects of the old law, made some functional changes, and modified the old pattern related to marriage. As per the concept of the Hindu marriage law, marriage is categorized into three parts, valid marriage, void marriage, and a voidable marriage.
What Section 5 of the Hindu Marriage Act 1955 says?
The Hindu marriage act,1955 ( Sort’ HMA), under section deals with the conditions of marriage, this section concerns with provision of a valid Hindu marriage. There are several conditions required for a valid Hindu marriage that is given below;
The parties of the marriage should be Hindu; A marriage is solemnized between two Hindus;
A party of marriage not living as a spouse at the time of marriage.
(a)The party of marriage is not to be in a situation of incapable mind or unsoundness who cannot give valid consent at the time of marriage.
(b)The party of marriageable to give valid consent should not suffer from a mental disorder or the procreation of child; or
(c) The party of marriage should not be subject to recurrent attacks of insanity or epilepsy;
The parties to a marriage must be of legal age, such as the bridegroom must be twenty-one years old and the bride must be eighteen years old.
The parties of marriage are not covered under the degrees of prohibited relationship; unless their custom or usage is allowed.
The marriage parties are restricted to each other like cousin or blood relation unless the custom or usage allows them as a valid marriage.
These conditions must be required to fulfill a valid marriage as per the provisions of the Hindu marriage act.
What is void marriage under the Hindu marriage act?
Marriage is known as void if that is prohibited by law; such is atomically annulled. Section 11 of the Hindu marriage act deals with void marriage.
Nullity of marriage
Nullity of marriage means if any marriage solemnizes without considering section 5 of the Hindu marriage act. If it does not fulfill such conditions given under this section, that marriage is not valid in the eye of law. Section 11 of the act specifies that if any marriage solemnizes after the commencement of the act, it would be counted as a void marriage if that contravenes clauses (i), (iv), (v) of section 5 of the act.
If the spouse is already married to another person at the time of marriage, in that case, the marriage is void because the Hindu law does not permit remarriage if the previous marriage is continued. There is no formality required for declaring an annulment of marriage.
Marriage is solemnized between an entire blood relationship like a brother and sister, ancestor, and even the half or whole blood relation, etc. That Marriage is known as inter-family Marriage. That is also prohibited in the Hindu marriage act.
Marriage between Close Relatives
That kind of marriage is solemnized between uncle and a niece, an aunt and a nephew, and marriage with first cousins; whether that relationship belongs to whole or half-blood. That kind of marriage is prohibited by law, except if customs permit it.
What is voidable marriage under the Hindu marriage act?
The Hindu marriage act section 12 deals with the voidable marriage; this section clearly says that a marriage that is solemnized even before or after enforcement of the Hindu marriage act may be declared voidable or null by getting a decree of annulment from the court. The voidable marriage can be automatically annulled that must be prayed for a grant of relief by the parties from the competent court by filing a petition with the particular grounds.
In the case of voidable marriage, anyone party of the marriage may cancel the marriage in the annulment process. In terms of the validity of such marriage, that is still valid unless one of the parties of marriage approaches the court and prays the cancellation for that.
Generally, the following grounds can be considered;
- Any party of marriage is not consummated due to the inability of the other party; or
- The marriage which is solemnized between the parties based on the violence of conditions of section 5(ii) of the act; those conditions are given below;
- If the party of marriage is not capable of giving valid consent due to unsoundness.
- In the case of parties capable of giving valid consent but any of the people living with a mental disorder, that may count as not qualified for marriage and or inability to have children.
- A party of marriage is subject to recurrent attacks of insanity.
- If the consent of marriage given by fraud, or forcefully for the marriage ceremony or any that kind of situation is a concern with the respondent; or
- The defendant party of marriage is pregnant at the time of marriage by another person.
- If we refer to Section 12 (2) of the act, specific conditions need to be considered before applying for a decree of annulment of marriage from the court.
For example, if the party of marriage wants to obtain a decree of marriage on the ground of consent by force or fraud, such a petition can not be entertained if it is filed more than one year after the force ceased or fraud has to be discovered.
Suppose the petitioner files the petition on the grounds that the other party was pregnant by another person at the time of marriage in that situation. In that case, the petitioner has to satisfy the court as to why the fact was not considered at the time of marriage.
- The petitioner will also have to satisfy the court that the marriage has not been entered into with his consent.
In Partap vs. Veena 1997 (1) HLR 110, The Himachal Pradesh High Court has rightly observed that the child is born after 204 days as a premature; the allegation of the husband the child was illegitimate that contention is rejected by the court..
In Usharani Lenka And Panigrahi vs Panigrahi Subash Chandra Dash, (AIR 2005 Ori 3), the orissa high court held that, the husband bald allege that wife is already pregnant by some other person before the marriage or she had undergone abortion before marriage or she is not fit for sexual intercourse that can not be taken as a efficient to satisfy requirements of section 12 (1) (a) and (d)..
Impotency means an inability to get and keep the intercourse. That is also a ground for the annulment of marriage. Suppose any party of the marriage is not capable of sex or intercourse. Then the affected party can file a petition for annulment of such marriage. Here, we should note that inability must be continued and exist at the time of court proceedings.
In Yuvraj Digvijay Singh vs Yuvrani Pratap Kumari ,(1970 AIR 137), the supreme court held that, A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. In order to entitle a petitioner under Sec. 12 (1) (a) Hindu Marriage Act, 1955 to obtain a decree of nullity, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings..
Lack of Mental Capacity
If any party of the marriage has suffered some mental inability, then naturally, they can not understand the marriage contract and its responsibilities. That’s why it is also considered as grounds for annulment of marriage. Suppose the court found that either husband or wife due to lack of mental disorder or not capable of understanding the nature of the contract and the duties related to the said marriage. That may be a ground for annulment of such marriage, but the party of the marriage must prove that.
In the case of R. Lakshmi Narayan v/s Santhi, (AIR SC 2110), the supreme court rightly observed that, To brand the wife as unfit for marriage and procreation of children on account of the mental disorder it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a normal married life. This is the requirement of the law as appears on fair reading of the statutory provisions. Merely giving a finding that wife was suffering from some mental disorder and she did not have cohabitation with her husband during the period they stayed together is not sufficient to comply with the condition prescribed under S. 5(ii) (b) of the Act. Husband fails to establish case for declaring marriage null and void under Ss. 12(1)(b) read with S. 5(ii) of Act..
If the party of marriage does not have the age of majority
The legal age for males is 21 years, and for females, 18 years is a mandatory requirement for valid and legal marriage. The marriage under that age may cause annulment. That can become legal if the cohabitation as a husband and wife continues after reaching the age of majority.
The consent obtained by fraud or force
If the consent of a marriage contract is obtained based on fraud or force, that may be a ground for annulment of marriage. That will not be applied if the party of marriage is aware that and continues to live together more than one year after discovering fraud or force.
Can a woman be entitled to claim maintenance after the annulment of marriage?
As we refer to the provision of section 24 of the Hindu marriage act, 1955, there is mention that ether wife or husband is entitled to interim maintenance till the pendent lite and expense of proceedings. The court cannot defer that till the disposal of the main issue. Section 25 of the act also deals with the maintenance or alimony of the party of marriage, e.i. The wife or husband is entitled to file an application to the court for maintenance under that section.
In the case of Smt. Sushila Viresh Chhadva vs Viresh Nagshi Chhadva, (AIR 1996 Bom 94), the bombay high court held, The right of a wife for maintenance is an incident of the status or estate of matrimony. S. 24 of Act, which provides for maintenance pendente lite and expenses of proceedings, clearly applies to all proceedings under the Act. An order for maintenance pendente lite and costs of the proceedings can, as the initial words of the section clearly state, be made in any proceeding under the Act, viz. for restitution of conjugal rights, judicial separation, divorce or nullity of void and voidable marriage..
In Narendra Kumar Mehta vs Suraj Mehta (AIR 1982 AP 100), the andhra high court held, There can be no doubt that under S.24 the payment can be ordered to be made only during the pendency of the proceedings and the court can direct payment every month ‘during the proceeding’ and not for any period beyond termination of the proceeding. The term “during” implies the period intervening the commencement and termination of the proceeding..
In Bhausaheb @ Sandu S/O Raghuji vs Leelabai W/O Bhausaheb Magar, (AIR 2004 Bom 283), the bombay high court held, Maintenance claimed by illegitimate wife can not be granted.that kind of claim is not maintanable because she has not right to claim for permenant alimoney. In the absence her status as wife as per act, she can not entertain such kind of relief..
Rights of Children From Annulled Marriages
Section 16 of the Hindu marriage act,1955 deals with the Legitimacy of children of void and a voidable marriage. The court has the power to protect the rights of the children who are born declared as legitimate from marriage. The children have entitled to properties rights of their parents whether such properties are self-acquired or ancestral.
As per deemed his status as a legitimacy, he is to inherit and claim partition of their parents only. But he can claim his rights to any other properties which are not covered under his parents’ rights. If the properties belong to joint family properties, the child can claim only a part of his parent’s property other than all properties.
In Jagarlamudi Sujata And Another vs Jagarlamudi Jadadish Krishna, (AIR 1992 AP 291), the Andhra pradesh high court held, The right of the illegitimate children who have been made legitimate by the virtue of the amendment to S. 16(1) of the Act are concerned only with the property left by their parents i.e. they succeed to the property on the death of their parents..
In Bhogadi Kannababu & Ors vs Vuggina Pydamma & Ors, (AIR 2006 SC 2403), the supreme court held, The second marriage between parties was a void marriage, their daughters, were entitled to inherit the properties in question, with the first wife..
An annulment of marriage is a part of the legal procedure through which the party of marriage is enabled to declare the marriage null and void. A marriage based on cheating, fraud, or any illegality mentioned above cannot be valid in the eyes of the law. That can be declared null and void.
(1) Partap vs. Veena 1997 (1) HLR 110.
(2) Usharani Lenka And Panigrahi vs Panigrahi Subash Chandra Dash, (AIR 2005 Ori 3).
(3) Yuvraj Digvijay Singh vs Yuvrani Pratap Kumari ,(1970 AIR 137).
(4) R. Lakshmi Narayan v/s Santhi, (AIR SC 2110).
(5) Smt. Sushila Viresh Chhadva vs Viresh Nagshi Chhadva, (AIR 1996 Bom 94).
(6) Narendra Kumar Mehta vs Suraj Mehta (AIR 1982 AP 100).
(7) Bhausaheb @ Sandu S/O Raghuji vs Leelabai W/O Bhausaheb Magar, (AIR 2004 Bom 283).
(8) Jagarlamudi Sujata And Another vs Jagarlamudi Jadadish Krishna, (AIR 1992 AP 291).
(9) Bhogadi Kannababu & Ors vs Vuggina Pydamma & Ors, (AIR 2006 SC 2403).