Marriage

A decree of nullity is a declaration by a court that your marriage never existed in the eyes of the law. It means that no valid marriage exists between you and your partner. Nullity (or annulment) is not the same as divorce. Divorce is a declaration ending a valid marriage. Nullity is a declaration that a valid marriage never existed.

There are three types of marriages under this Act: (i) valid, (ii) void, and (iii) voidable. Section 11 deals with void marriages and Section 12 deals with voidable marriages. All other marriages which are not covered by these two sections are valid.

Nullity decree; decree absolute of nullity = for void marriages

Annulment = for voidable marriages

Valid marriage(Sec.5) HMA

Section 5 of the Hindu Marriage Act 1955 includes essential conditions of a valid marriage. It contains such conditions that if
violated shall result in a void marriage. Section 5 of the Hindu Marriages Act says A marriage may be solemnized between any two Hindus if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) though capable of giving valid consent has been suffering from a mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the
marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them
permits marriage between the two;
(v) the parties are not sapindas of each other unless the custom or usage governing each of them permits marriage between the two

Void marriages (Nullity of Marriage)

A void marriage is a marriage that is unlawful or invalid under the laws of the jurisdiction where it is entered. A void marriage is invalid from its beginning and is generally treated under the law as if it never existed and requires no formal action to terminate.

Section 12 of the Hindu Marriage Act, provides for a decree of nullity of marriage, which is voidable, on any of the following
grounds:
(a) that the marriage has not been consummated owing to the impotence of the respondent. A party is impotent if his or her mental or physical condition makes the consummation of marriage a practical impossibility.
(b) that the marriage is in contravention of the conditions specified in clause (ii) of section 5, i.e., at the time of the marriage, any party was incapable of giving valid consent to it in consequence of unsoundness of mind, or if even capable of giving valid consent, such party has been suffering from mental disorder .of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or the other party has been subject to recurrent attacks of insanity.
(c) that the consent of the petitioner, or where the consent of the guardian in the marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child’s Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. However, it is significant to note that no such petition for annulling a marriage on the ground specified in clause (c) of sub-section (1) of section 12 i.e., on the ground of consent by force or fraud, shall be entertained if the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered.

Therefore, where your consent in the marriage is obtained by fraud, you have to file a petition for annulment of marriage within one year from the time when the fraud is discovered. Also remember that no such petition shall lie before the Court, in case you continued to live with the other party to the marriage as husband or wife, even after the force ceased to operate or the fraud was discovered. In case of a petition for annulment of marriage on the ground that at the time of marriage, the other party was pregnant by some other person, the court is to be satisfied that you were ignorant of this fact at the time of marriage. Furthermore, a petition on this ground has to be filed within one year from the date of the marriage. Also remember, that in case of a petition on this ground, marital intercourse with the consent of the petitioner should not have taken place ever since the discovery of the fact that the other party was pregnant by some other person

What Is Annulment Of Marriage

In strict Legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this. Annulment is a legal procedure for declaring a marriage null and void. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.

Grounds For Annulment

The grounds for a marriage annulment may vary according to the different legal jurisdictions, but are generally limited to fraud, bigamy, blood relationship and mental incompetence including the following:

1) Either spouse was already married to someone else at the time of the marriage in question;

2) Either spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse’s reaching marriageable age);

3) Either spouse was under the influence of drugs or alcohol at the time of the marriage;

4) Either spouse was mentally incompetent at the time of the marriage;

5) If the consent to the marriage was based on fraud or force;

6) Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;

7) The marriage is prohibited by law due to the relationship between the parties. This is the “prohibited degree of consanguinity”, or blood relationship between the parties. The most common legal relationship is 2nd cousins; the legality of such relationship between 1st cousins varies around the world.

8) Prisoners sentenced to a term of life imprisonment may not marry.

9) Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease)

Basis Of An Annulment

In Section 5 of the Hindu Marriage Act 1955, there are some conditions laid down for a Hindu Marriage which must be fulfilled in case of any marriage between two Hindus which can be solemnized in accordance with the requirements of this Act.

Section 5 Condition for a Hindu Marriage – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) Neither party has a spouse living at the time of the marriage;

(ii) At the time of the marriage, neither party,-

(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity or epilepsy;

(iii) The bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;

(iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two:

An annulment may be granted when a marriage is automatically void under the law for public policy reasons or voidable by one party when certain requisite elements of the marriage contract were not present at the time of the marriage

Voidable Marriages

Section 12 of Hindu Marriage Act, 1955 deals with

Voidable Marriages- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(a) that the marriage has not been consummated owing to the impotency of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

Marriage between Close Relatives

.A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.

Nullity of marriage and divorce- Void marriages –

Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 mentioned above.

Bigamy –

If either spouse was still legally married to another person at the time of the marriage then the marriage is void and no formal annulment is necessary. Inter family Marriage. A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption.

Impotency –

If either spouse was physically incapable of entering the marriage at the time of the marriage, usually because of a lack of ability to have sexual intercourse, and if this inability appears incurable or if the spouse refuses to take any action to cure the inability, there are grounds for an annulment. The inability must continue and must exist at the time of suit.

The Constitutional validity of subjecting parties to andrological and gynecological tests to determine potency of parties was challenged in B.Madan Vs. N.S. Santhkumar AIR 2015 Mad 78

Lack of Mental Capacity –

If the court finds that either spouse did not have ability to understand the nature of the marriage contract or the duties and responsibilities of the marriage contract, then there may be grounds for an annulment. However, if the spouse who did not have the ability to understand the contract gains the capacity to understand it and freely lives with the other spouse, then this ground does not apply. This particular ground most often applies to someone who has been mentally ill or who has suffered from mental or emotional disorder

A Party was Under the Age of Consent –

If you were married while you are under the legal age, your marriage may be annulled. The legal age for boys is 21 years and for girls is 18 years. A marriage by an underage party may become legally binding and incapable of annulment if the cohabitation of the parties as husband and wife continues voluntarily after the person reached the age of consent.

Fraud or Force –

If the consent to the marriage contract was obtained either by fraud or force, then there are grounds for an annulment. Fraud is simply not telling the truth in order to induce the other party to enter into the marriage contract. Whether the failure to tell the truth will be grounds for annulment depends of the facts of the case. Force implies the use of or threat of the use of physical violence to make a person get married. The person who has been threatened or deceived about the marriage contract continues to live with the spouse after the discovery of the fraud or the deception or after being forced into the marriage, it is possible that this ground will not apply

Marriage solemnized under the influence of drugs administratered by husband and his sister is voidable as it lacks free consent held in Shitij Khurana Vs. Shreha Khurana, AIR 2014 All 27.

Unbeknownst Pregnancy:

If a spouse is pregnant with a child and the father is not the husband and the husband was unaware of such a pregnancy, the spouse is within the rights to file for an annulment.

A petition for annulment under Section 12 for nullity of a voidable marriage shall be allowed only if the following few conditions are fulfilled:

1. The petition should be filed within one year of the practice of force or fraud and discovery of the same
2. The petitioner, at the establishment of the marriage, should not have had knowledge of the fact alleged in the petition.
3. The petition should be filed within one year from the time when parties got the knowledge of fact alleged.
4. The parties should not have been sexually involved with each other since the fact alleged had been discovered.

Rights of Children From Annulled Marriages

Section 16 of the Hindu Marriage Act after the amendment act of 1976, states that the children born, before or after the commencement of the Act, out of a voidable or void marriage is legitimate, to reiterate children conceived from an annulled marriage are legitimate. The court will also have the ability to establish rights and obligations in relation to the children from such marriages.

Pawan Kumar Vs. Mukesh Kumar AIR 2001 Raj 1, in this case wife was pregrant by some other person and marriage had broken down immediately though petition was filed belatedly. The fact of premarriage pregnancy by other person itself was held in causing cruelty and mental agony, therefore the application was held into decree of divorce.

Annulment Process

Now that no-fault divorce is readily available, marriage annulment is not very common. To get an annulment, a person first needs to meet the residency requirements of the state that they live in. The jurisdictional requirements are similar to those required for dissolution or divorce: one of the parties must live in the state where the marriage annulment is filed for a continuous ninety-day period. Similar to a divorce filing, marriage annulment case proceeds with a filing, petition, summons, and ancillary documents. An annulment case can be initiated by either the husband or the wife in the marriage. The grounds for marriage annulment are stated in the petition. A divorce can be much more complicated than an annulment

Conclusion

The Act was established and the concept of Nullity of Marriage was enacted while keeping in mind the religious sentiments of the citizens of our country. Hence, Section 11 and 12 of the Act is a remedy for parties who are in a voidable or void marriage. The concept of Annulment of marriage is very important in the foundation of matrimonial laws as there is no point in carrying the burden of divorce in cases where marriage has been solemnized and established on the strength of fraud or where the marriage is established despite the fact that the one of the spouse was already married. With the establishment of the Amendment Act, 1976, children born out of a void or voidable marriage are also awarded a title of legitimacy, which is a blessing for such children. Annulments are very important for the growth of the society as it allows for the growth of the human being which in turn allows for a harmonious and beautiful society.