A unition between a man and a woman that defines and establishes certain
rights and duties between the two respective parties is termed as a marriage.
Marriage is a socially and religiously recognized act that has strong roots in
the religion of Hinduism. The man and the woman bound in this union are called
husband and wife respectively.
Marriage is a contract between the two, that is,
the husband and wife and it is a contract that enables them to live together
harmoniously. The contract of Marriage is a Sacrament (Samskara) and the
marriage solemnizes two unique individuals for life, so that they can pursue
their dharma (duty), Artha (possessions), fulfil their Kama (physical desires),
and finally attain their Moksha (ultimate spiritual release) together.
concept and practice of marriage is the basis of social organization and the
foundation of important legal rights and obligations. It is an oath between two
people to stay together and uphold traditional family values in accordance with
the practice of Dharma. It is a tradition that brings about the union of two
families. In the traditional and older form of the Hindu system of marriage,
there is no significant role for the state in the affairs of marriage, as a
marriage remained a private affair within the social realm.
Marriage in Hinduism
is one of the most important transitional point in oneís life and it is the most
important of all the Hindu samskaras that exist within the religion of
The concept of Annulment, however is a thorny and shunned remedy that is a
practice that is avoided in most circumstances. Annulments are very rarely
bestowed to people and when they are granted very specific circumstances must
exist. An Annulment, when observed tends to be more a creature of religion than
The tradition of marriage is a sacred relationship but it is a complex
sacrament. The complexities of this concept and by its development in the
society, the concept of the Nullity of Marriage came to life.
In our country, a Marriage is a religious establishment which is considered as
an important essential for the progress and development of our general public
while the practice of divorce or annulment is intensively judged upon and it is
a practice that faces a lot of stigma and discrimination and is subconsciously
regarded as a sin in the eyes of society.
Introduction to Annulment of Marriages
An Annulment is the legal procedure through which a marriage can be declared as
null and void. A marriage requires certain legal requirements that need to be
fulfilled at the time of the marriage and if these legal requirements are not
met then the marriage is considered to have never existed in the eyes of the law
and the process to obtain a declaration of nullity is called an annulment.
annulment refers to the procedure of making a voidable marriage null and
non-existent; and if the marriage is void from the beginning(void ab initio),
then it is automatically null and void, but there is a need to procure a legal
declaration of nullity to establish this and this can be obtained by filing your
grievances at a respective court.
A void marriage is one which is already considered as a non-existent marriage
in the eyes of the law whereas a voidable marriage which is a completely
different concept is a marriage which can be declared as invalid by the court on
the petition of either one of the concerned parties to such a marriage.
court has the power to declare a marriage void or voidable and it will do so
under the guidance of Section 11 and 12 respectively, of the Hindu Marriage Act,
of 1955 and when a court declares that a marriage between two people is invalid,
the marriage is said to be nullified.
Sadly though, Annulments are rarely granted and when they are, they are granted
only cause of bigamy or not meeting the minimum age requirement for marriage.
This is because of the stigma behind the concept and practice and the hope we as
Indians have in our moral value that a difficulty or complication endured in the
marriage will be overcome through talking, religion and family interference.
It is very important to remember , that the concept of annulment is very
different from a divorce. A divorce dissolves a marriage that has existed, while
an annulment annuls a marriage that never existed at all. Thus unlike divorce,
an annulment is retroactive because an annulled marriage is considered never to
have existed at all.
Grounds For Annulment
Now the question arises when would a marriage be called illegal or void or
The grounds for a marriage to be annulled may vary according to the
different legal jurisdictions present within our legal framework, but are in
general limited to bigamy, fraud, mental incompetence and blood relationship and
will also including the following:
- If one of the spouse was already married to someone else at the time of
the marriage in question
- If one of the spouse was under the legal age to get married, or is too
young without the required court or parental consent.
- If one of the spouse was intoxicated or under the influence of drugs at
the time of the marriage.
- If one of the spouse was mentally incapacitated due to a mental illness
at the time of the marriage.
- If the consent of one of the parties in the marriage was procured on the
basis of coercion or fraud or force.
- If one of the spouse is physically incapable to consummate the marriage
that is they are unable to have sexual intercourse at the time of the
- If the marriage is prohibited by law due to the relationship between the
two parties. This is termed as the "prohibited degree of consanguinity", and
it refers to the presence of a blood relationship or the presence of a
common lineal ancestor between the two respective parties.
- If one of the spouse is a prisoner, who is sentenced to a term of life
imprisonment, such a person cannot marry.
- If a fact is concealed and that fact can hamper the integrity of a
marriage for example one of the parties has a drug addiction that they have
concealed, or a prior criminal record or the possession of a sexually
Established in the Section 5 of the Hindu Marriage Act, of 1955, there are some
very important conditions laid down by the act for a Hindu Marriage which must
be fulfilled prior to the solemnization of any marriage ,and if these criteria
are not met the process of annulment can be initiated by the concerned or
A marriage may be solemnized between any two Hindus, if only
the following conditions are fulfilled and they are as follows:
- Neither party has a spouse living at the time of the marriage.
- At the time of the marriage, neither party:
- Is incapable of giving a valid consent of it in consequence of
unsoundness of mind; or
- 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
- Has been subject to recurrent attacks of insanity or epilepsy;
- The bridegroom has completed the age of twenty one years and the bride
the age of eighteen years at the time of the marriage
- 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
- The parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two.
A marriage is that is declared as automatically void and is automatically
annulled as it is prohibited by law is known as a void marriage. Section 11 of
the Hindu Marriage Act, 1955 deals with the Nullity of marriage and divorce and
defines the term void marriage as follows.
A marriage which has been solemnized after the commencement of the Hindu
Marriage Act shall be null and void, on a petition filed by either one of the
grieved party, against the other party, and it shall be declared as null and
void by a decree of nullity if it contravenes or is in conflict with any one of
the conditions specified in clauses (i), (iv) and (v) of Section 5 as stated in
the Hindu Marriage act.
Section 5 clause (i):
Neither party has a spouse living at the time of the marriage;
If any one of the parties to a marriage already has another spouse
living at the time of marriage, the marriage shall be considered as null and
void and no formal annulment is necessary.
Section 5 clause (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
Prohibited degree marriages:
A marriage between two people of prohibited degree
relations is void unless the customs and usages allow it. Any marriage between a
descendant and his or her ancestor or between two siblings, or whether the
relationship is by a half blood or whole blood bond or by adoption, any such
marriage would be void ab initio and null in legal eyes.
Section 5 clause (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.
Sapindas- Any marriage between two parties who are sapindas of each other is
void unless allowed by customs and usages. A marriage where the relationship
between the two parties is connected by half blood or the whole blood, will be
null and void except those marriages permitted by established customs.
relationship talks about a relation to any person that extends as far as the
third generation in the line of ascent through the mother, and the fifth through
the father, the line being traced upwards in each case from the person
concerned, which is to be counted as the first generation. Two people or
concerned parties are said to be sapindas to each other if one is of them is a
lineal ascendant of the other within the limits of sapinda relationship with
reference to each one of them.
When certain requisite elements of a marriage contract are not fulfilled at the
time of the marriage, a marriage is rendered that can be established as a null
marriage with the power of the court, on the petition of a concerned party and
this is called as a voidable marriage. In a voidable marriage, an annulment is
not automatic and must be sought by at the option of one of the afflicted
If the intent to enter into a civil contract of marriage was not
present at the time of the marriage, either due to intoxication, mental
incapacity or fraud then an annulment can be sought after. A voidable marriage
unless averted by either party to the marriage, will have all the legal
consequences that is present in a valid marriage and will have the same title
under the eyes of the law as that of a valid marriage. Marriages can be held
voidable by the decree of nullity by the court under the Section 12 of the Hindu
Marriage Act, 1955.
Section 12 of the Hindu Marriage Act:
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:
- that the marriage has not been consummated owing to the impotency of the
- that the marriage is in contravention of the condition specified in
clause (ii) of Section 5; or
- 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
- that the respondent was at the time of the marriage pregnant by some
person other than the petitioner.
Notwithstanding anything contained in sub-section (1), no petition for
annulling a marriage:
- On the ground specified in clause (c) of sub-section (1) shall be
- 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
- 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;
- On the ground specified in clause (d) of sub-section (1) shall be
entertained unless the court is satisfied:
- that the petitioner was at the time of the marriage ignorant of the
- 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
- that marital intercourse with the consent of the petitioner has not
taken place since the discovery by the petitioner of the existence of the
If any one of the spouse is physically incapable of consummating a
marriage, usually because of the lack of ability to have sexual intercourse, and
if this inability appears incurable or if the spouse refuses to take any action
or refuses to undergo any treatment to cure the inability, then there are
grounds for an annulment that can be pursued.
The sexual incapacity must
continue to exist at the time of the suit. A party is considered to be impotent
if their mental or physical condition makes the consummation of marriage an
In the case of Laxmi Devi v. Babulal
, the wife in this situation had no
vagina at all, although by surgical intervention an artificial vagina was
inserted, the husband in this scenario is completely within his legal right to
file for an annulment.
Lack of Mental Capacity:
If a marriage is in conflict with the conditions
specified in clause (ii) of section 5, that is at the time of the marriage, a
party was incapable of giving a valid consent to the union because of the
consequence of unsoundness of mind, or if even if they were capable of giving a
valid consent, the party has been suffering from some kind of mental illness,
that is to such an extent that renders the afflicted to be unfit for marriage
and unfit for the procreation of children or the party has been subject to
recurrent attacks of insanity, then the marriage has reached the crossroads of voidability and the concerned party can file for an annulment.
If the court
finds and establishes that either one of the spouse did not have the capacity
and ability to understand the nature of the marriage contract or the duties and
responsibilities of the marriage contract, then the annulment will be bestowed
to the grieved party. However, if the spouse who at an earlier time did not have
the ability to understand the contract later on gains the capacity to understand
it and freely lives with the other spouse, then this ground will not apply.
In the case of Pronab v. Krishna
, it was held in this case that Schizophrenia
which is a type of a mental disorder is a ground for making a marriage as null
Under the Age of Consent:
The legal age to get married in India for boys is 21
years and for girls is 18 years any marriage in which either one of the parties
is under the legal age as stated in the legal framework, can be annulled. A
marriage by an underage party can become incapable of an annulment and legally
binding after the concerned person has reached the age of consent, and the
cohabitation of the parties as husband and wife, during the period continued
under free will and on their own choice.
In the case of Jitender Kumar Sharma Vs. State of Delhi and another
, the court
decided that the girl who was underage when getting married could proceed to
live with her husband as her life was in danger if she was forced to return to
her parentís house.
Fraud or Force:
If the consent of one of the parties to a marriage was obtained
either by coercion or force or through fraud, and by not meeting the criteria of
consent as stated under section 5 of the Hindu Marriage Act, then the grounds
for an annulment can be established. If the spouse who has been deceived or
coerced or threatened in relation to the marriage continues to live with their
respective spouse after the discovery of the deception or the fraud or coercion.
it is a possibility that this ground will not apply.
In Anurag Anand v. Sunita Anand
, the court held and stated that any false
information in a bio data based upon which the marriage was solemnized will
amounts to fraud and the marriage may proceed to be annulled by the aggrieved
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:
- The petition should be filed within one year of the practice of force or
fraud and discovery of the same
- The petitioner, at the establishment of the marriage, should not have
had knowledge of the fact alleged in the petition.
- The petition should be filed within one year from the time when parties
got the knowledge of fact alleged.
- 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
In the case of Parayan K. Amma v. K. Devi
, the court stated that the
amendment act has conferred the status of legitimacy on the children , and those
who are not awarded the title of legitimate children, will be treated as a
bastard, but still will have the ability to inherit the property of their father
as stated under Section 8 of the Hindu Succession Act, 1956.
Section 16 of the Hindu Marriage Act, 1955:
Legitimacy of children of void and voidable marriages
- Notwithstanding that a marriage is null and void under Section 11, any
child of such marriage who would have been legitimate if the marriage had
been valid, shall be legitimate, whether such a child is born before or
after the commencement of the Marriage Laws (Amendment) Act, 1976, and
whether or not a decree of nullity is granted in respect of the marriage
under this Act and whether or not the marriage is held to be void otherwise
than on a petition under this Act.
- Where a decree of nullity is granted in respect of a voidable marriage
under Section 12, any child begotten or conceived before the decree is made,
who would have been the legitimate child of the parties to the marriage if
at the date of the decree it had been dissolved instead of being annulled,
shall be deemed to be their legitimate child notwithstanding the decree of
- Nothing contained in sub-section (1) or sub-section (2) shall be
construed as conferring upon any child of a marriage which is null and void
or which is annulled by a decree of nullity under Section 12, any rights in
or to the property of any person, other than the parents, in any case,
where, but for the passing of this Act, such child would have been incapable
of possessing or acquiring any such rights by reason of his not being the
legitimate child of his parents.
Thus as seen above, children from these marriages will be regarded in law as
legitimate children for all purposes including succession. In the case of Sarda
Ram v. Durga Bai, it has been established that children of these marriages
can inherit the separate property of their father as sated under the Section 8
of Hindu Succession Act, but they have been given no birth right to claim any
right in the coparcenary entities of their father and cannot also inherit from
the Hindu Joint Family Property.
Precedents established by cases within the Indian Legal Framework:
In the cases of Lila v. Laxman
, it was held by the Allahabad High
court that a null and void marriage does not need a decree of nullity as it was
already perceived as a faux marriage in the eyes of the law. A decree passed for
a void marriage is only a mere declaration of nullity of the marriage. The court
and the decree only establishes the fact clearly that there was no marriage
between the parties.
In the case of Yamunabai Anantrao Adhav v. Anantarao Shivram Adhav
it was held that a marriage which is in conflict with the section 11 of Hindu
Marriage Act, 1955 shall be treated as null and void from the time of its
In the case of C.S. Rangabhattar v. C. Choodamani
, the Andhra Pradesh
High Court held that when a husband continues to live with his wife even when he
is aware of the wifeís pregnancy at the time of marriage, he cannot file a
petition for annulment of marriage.
In the case of Bassappa v. Sidhagangamma
, it was established by the
Karnataka High Court that a wife whose marriage has been declared null and void
because it was in conflict with Section 5 (i), (iv) or (v) of the Hindu Marriage
act is not entitled to claim any form of maintenance of any form as she does not
have a legal status of wife under Section 18 of Hindu Adoption and Maintenance
In the case of Moina Khosla v. Amardeep Khosla
, the husband was not
capable of consummating the marriage on multiple attempts and failed to have
sexual intercourse with his wife and was incapable of interacting much with
females. It was held by the court that the wife was entitled to a decree of
nullity of marriage.
In the cases of Dr.Shrikant Adya v. Smt. Anuradha
, the Karnataka High
Court held that if a husband is not able to lead a healthy sexual life, it would
amount to mental cruelty to the wife and she can file a petition for the
annulment of the marriage.
In the case of Gayatri Bai v. Pradeep Kumar Chourasia
, the Court
defined the term impotency as a practical impossibility to perform sexual
intercourse completely and stated that complete sexual penetration is an
important criteria for ordinary intercourse but the satisfaction and pleasure
obtained by the parties is irrelevant to this definition.
In the case of Smt.Sariabai v. Komalsingh
, it was held that a
petition for annulment after eight years of marriage is barred by statute of
limitation and cannot be entertained.
An annulment is a legal procedure which nullifies a marriage between a man and a
woman. Annulling a marriage simply erases the fact of this marriage from the
records legally. It basically declares that the marriage was never valid and
never technically existed. Prior to the enactment of the Hindu Marriage Act,
1955 , parties to such a marriage had no remedy or method of reform to get out
of such a marriage which is in the end a burden for both of them.
To provide a form of a reform and solution, 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.
- The Hindu Marriage Act, 1955
- The Hindu Marriage Act, 1955
- The Hindu Marriage Act, 1955
- The Hindu Marriage Act, 1955
- The Hindu Marriage Act, 1955
- AIR 1973 Raj 89, 1972 WLN 463.
- AIR 1975 Cal 109, 78 CWN 448
- 1997 IAD Delhi 37, AIR 1997 Delhi 94, 65 (1997) DLT 1037, II (1996) DMC
389, 1997 (40) DRJ 68
- 1996 AIR 1963, 1996 SCC (4) 76
- The Hindu Marriage Act, 1955
- AIR 1987 Bom, 285
- 1978 AIR 1351, 1978 SCR (3) 922
- 1988 AIR 644, 1988 SCR (2) 809
- AIR 1992 AP 103, 1991 (3) ALT 278
- II (1992) DMC 167, ILR 1992 KAR 1798, 1992 (2) KarLJ 357
- AIR 1986 Delhi 399, 1986 (10) DRJ 286
- AIR 1980 Kant 8, ILR 1979 KAR 2332, 1980 (1) KarLJ 101
- II (1998) DMC 211
- AIR 1991 MP 358, II (1992) DMC 44, 1992 (0) MPLJ 276