Annulment of Marriage
As per Legal terminology, the term annulment refers making a marriage null and
void/voidable; in case the marriage is void ab initio (which means the marriage
is considered to be invalid from its inception), then it shall be automatically
null, even though the statement of nullity is required to be established.
Annulment is a legal process for declaration of marriage null and void. It can
only be stated null and void if there are certain legal requirements were not
met at the time of the marriage and then it is considered to have been never
existed, legally. Such process is known as annulment which is very different
from divorce. The clear distinction between annulment and divorce is that the
annulment refers to the marriage which is never existed at all whereas the
divorce dissolves the marriage.
Basics of an Annulment:
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.
Grounds for annulment
The grounds for a marriage annulment are varied to the different jurisdictions
but are limited to fraud, bigamy, blood relationship and mental incompetence and
includes the following situations as well:
- Any of the spouse was already married to someone at the time of the
- Any of the spouse was young to get marriage or marries without the
consent of parents/court;
- Any of the spouse was under the influence of drugs or alcohol at the
time of the marriage;
- Any of the spouse was mentally incompetent;
- If the consent was obtained through fraud or force;
- Any of the spouse was physically incompetent to get married (basically
he is unable to have sexual intercourse);
- The spouse who is sentenced for a life term imprisonment.
Void Marriages : How can it be annulled?
As per Section 11 of Hindu Marriage Act, 1955, which deals with void marriages
described as the marriage solemnized after the commencement of the Act shall be
null and void and become null and void by presenting a petition through any of
the party on the basis of the above mentioned grounds.
Concept of Bigamy:
In case any of the spouse was still legally married to
another person at the time of the marriage to the other spouse then the marriage
is considered to be void and no requirement for applying the annulment before
the court is mandatory. In M.M. Malhotra v. Union of India
, the court held that
husband married a woman during subsistence of his first marriage. Such marriage
being null and void, his subsequent marriage to another women would not be case
of plural marriage.
Who can seek Annulment?
Any party to the marriage can file an application for the annulment for
declaration of the marriage as null and void. However, this is just a procedure
to be brought on record before the court and is done as the precaution so that
in future, no question of void marriage can be called.
Voidable Marriages : How can it be annulled?
A voidable marriage is basically a legal marriage which can be cancelled by any
one of the parties to the marriage and is contested in the court on the basis of
the below mentioned follows:
- No consummation of marriage because of incapacity of the partner
- Any of the spouse did not provide the free consent to it or in the
consequence of mistake, unsoundness etc.
- Any of the spouses is mentally disordered person but has given the
valid consent for marriage and that person falls under the ambit of the
Mental Disorders Ordinance 1952 Act.;
- Any of the spouse is suffering from the venereal disease which is in
a communicable form;
- The wife is pregnant with some other person at the time of marriage.
Who can seek Annulment?
Below are the parties who can file the petition before the concerned court for
the annulment of the marriage:
- In case the petitioner gives any consent for more than an year
after the fraud committed by the other person.
- In case, the wife is pregnant with some other person at the time
of marriage and the person to the marriage is not aware about the
Basically the process of annulment of marriage is not a common process therefore
a person applying for the annulment has to meet the residency requirement where
he/she is staying. Thereafter the person can file the petition where he was
born, the marriage was solemnized or has been living together and has to stay
for continuous 90 days period before filing the application. The procedure for
the annulment is almost similar to the divorce proceedings and can be filed by
any of the party. However, the divorce is considered to be the most complicated
process as compare to the annulment.
Effects of Annulment Marriage:
Annulling a marriage deletes all things from the records, as if it never took
place before. The outcome of a marriage annulment is a decree that the marriage
never existed. It nullifies the marriage, returning the parties to their status
before existed before marriage. It’s very usual misinterpretation that short
marriages can be annulled, but the length of the marriage is not a measuring
Many times, annulments occur even after very short marriages, so there
is no need to distribute the property between the parties or to decide the
custody of children produced by the marriage. In the case of a longer marriage
that is annulled, the court will distribute the property of the parties.
Legitimacy of Children after the Annulment of Marriage:
If a child is born out of a wedlock which is subsequently declared to be null
and void, that child will not be considered illegitimate but he shall be
considered legitimate despite the marriage being illegal from its inception. The
section provides a cushion to the children of void marriages and prevents them
from being bastardised.
Rights of Children to Property Inheritance after Annulment of Marriage:
- The status of legitimacy, that is declared by section 16, is part of the
incidence of birth.
- The children born in a void or voidable marriage, should be legitimate. If
they were declared legitimate, then they cannot be discriminated against and
they will be on a par with other legitimate children and be entitled to all the
rights in the property of their parents, both self-acquired and ancestral.
- The deemed status of legitimacy entitles such children to inherit and
demand partition of only the properties of their parents and excludes any
other properties. In the case of joint family property, such children will
be entitled only to a share in their parents' property but they cannot claim
it on their own right. Logically, on the partition of an ancestral property,
the property falling in the share of the parents of such children is
regarded as their self-acquired and absolute property
Right of Claiming Maintenance by a Woman after Annulment of Marriage
Unilateral divorcees (wives) whose marriages stand terminated by acts of their
husbands and persons whose marriages have been terminated by intervention of
Courts at the instance of either spouse, are certainly included within the sweep
of the inclusive definition of "Wife". The Legislature by a bold intervention
included women of such terminated marriages also within the sweep of the
expression "wife" subject to an important condition that they should not have
The issue of right to maintenance under Section 25 of the Act, to a woman whose
marriage is in contravention with Section 5(i) of the Hindu Marriage Act 1955,
and has been declared null and void by a court has been faced by various High
Courts as well as the Supreme Court, and the courts have given different views
depending upon the facts and circumstances of each case.
The Supreme Court in the matter of Smt. Yamunabai Anantrao Adhav A vs.
Ranantrao Shivram Adhav And Ors
.discussed the issue of granting maintenance
and accordingly held “that the marriage of a woman in accordance with the Hindu
rites with a man having a living spouse is a complete nullity in the eye of law
and she is not entitled to the benefit of section 125 of the CrPC”.
various High Courts have observed and it is a generally accepted rule that even
in such cases, that the wife is entitled to maintenance under sec. 18 of the
Hindu Adoptions and Maintenance Act, 1956 and under section 25 of the Hindu
Marriage Act, 1955.
Thus, such children would be regarded in law as legitimate children of the
parents for all purposes including succession. In Sarda Ram v. Durga Bai, it is
now established that such children can inherit the separate property of their
father under Section 8, Hindu Succession Act, but could not lay any claim on the
coparcenary interest of the father. Son of such a marriage has no birth right in
the Hindu Joint family property
Another important question that often arises is whether the wife whose marriage
is void under section 11 of the Act can claim maintenance from her husband of
that void marriage. The Supreme Court has held that where a marriage is void,
wife cannot claim maintenance under Sec. 488 CrPC, sec 125 under the Act of
19736 . However it is a generally accepted rule that even in such cases, the
wife is entitled to maintenance under sec. 18 of the Hindu Adoptions and
Maintenance Act,1956 and also under section 24 of the Hindu Marriage Act 1955.
There are two ways to legally end a marriage (a) annulment (b) divorce.It can be
initiated by either the husband or the wife in the marriage. A marriage which is
void ab initio does not alter or affect the status of the parties nor does it
create between them any rights and obligations which must normally arise from a
valid marriage except such rights as are expressly recognised by the Act. A
voidable marriage remains valid and binding and continues to subsist for all
purposes unless a decree is passed by the court annulling the same on any of the
grounds mentioned in Section 12.
Written By Tanya Khan