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Published : August 31, 2014 | Author : kiruthikadhanapal@legalserviceindia.com
Category : family law | Total Views : 4690 | Rating :

Kiruthika D Student B.A.,B.L.,(Hons) School of Excellence in Law

Annulment of Marriage under Hindu Law

Marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. In Hindu Law, Marriage is treated as a Samaskara or a Sacrament. A Hindu marriage joins two individuals for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together. It also joins two families together. The colours are normally red and gold. It is a vow between two people to stay together and uphold traditional family values in accordance with Dharma. In the traditional Hindu system of marriage, there is no role for the state as marriage remained a private affair within the social realm. Within this traditional framework reference, marriage is undoubtedly the most important transitional point in a Hindu’s life and the most important of all the Hindu samskaras, or life-cycle rituals. Divorce, however is a thorny question and Annulment is a very unusual remedy. In our modern world, an Annulment tends to be more a creature of religion than of law. Annulments are rarely granted and when they are, very specific circumstances must exist.

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

Void Marriages

A marriage is automatically void and is automatically annulled when it is prohibited by law. Section 11 of Hindu Marriage Act, 1955 deals with:

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. Interfamily 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. 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.

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.

Voidable Marriages

A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud


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.

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. In Laxmi Devi v. Babulal, the wife had no vagina at all, though by surgical treatment an artificial vagina was formed, the husband is entitiled to a decree for nullity.

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. In Pronab v. Krishna, it was held that Schizophrenia which is a type of lunacy is a ground for making the marriage as null and void.

A Party was Under the Age of Consent - Marriage under the legal age, 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. In Vinita Saxena v. Pankaj Pandit, it was held that where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible, it may furnish a good ground for nullifying the marriage.

Fraud or Force - If the consent to the marriage contract was obtained either by fraud or force, then there are grounds for an annulment. 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. In Anurag Anand v. Sunita Anand, the court held that false particulars in bio data based upon which the marriage was solemnized amounts fraud and the aggrieved party may annul the marriage.

Rights of Children From Annulled Marriages

The court has the ability to establish rights and obligations related to the children from such marriages. Children from an annulled marriage are legitimate.
Section 16 of Hindu Marriage Act, 1955 deals with

Legitimacy of children of void and voidable marriages

(1) 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.

(2) 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 nullity.

(3) 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, 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.

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.

Effects Of Marriage Annulment

Annulling a marriage simply erases it from the records, as if it never took place. The result of a marriage annulment is a decree that the marriage never existed. It nullifies the marriage, returning the parties to their prior single status. It's a common misconception that short marriages can be annulled, but the length of the marriage is not a qualifying factor. Many times, annulments occur after very short marriages, so there is no need to divide assets or debts or decide custody of children produced by the marriage. In the case of a longer marriage that is annulled, the court will divide the property of the parties.

An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased – legally, it declares that the marriage never technically existed and was never valid. Annulment of marriage is very important in the scheme of matrimonial laws as there is no point in carrying the burden of divorce in cases where marriage has been solemnized on the strength of fraud or where the marriage is solemnized despite the fact that the responding spouse was already married.
# Shubhnut Kaur, “Annulment of Marriagge”, www.legalservice.india.com.
# Subhamay Das, “Nullity of Marriage”, hinduism.about.com.
# Prof. G.C.V. Subba Rao, “Family Law in India”, 10th Ed, S. Gogia & Comapany, 2011, p.220.
# AIR 2006 SC 80.
# Kusum, “Cases and Materials on Family Law”, Universal Law Publishing co Pvt.Ltd, 2007, p.176.
# AIR 1973 Raj. 89.
# AIR 1975 Cal. 109.
# AIR 2006 SC 1662.
# Purabji v. Basudev, AIR 1969 Cal 293.
# AIR 1997 Del. 94.
# AIR 1987 Bom. 285.
# Kusum, “Family Law Lectures”, 3rd Ed, Universal Law Publishing co Pvt.Ltd, 2011, p.134,
# S.A. Desai, “Mulla Hindu Law”, 20th Ed, Lexis Nexis Butterworth, 2007, p. 149.
# Paras Diwan, “Family Law”, 9th Ed, Allahabad Law Agency,2011, p.93.


The  author can be reached at: kiruthikadhanapal@legalserviceindia.com

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