Annulment or Nullity of Marriage

Annulment or Nullity of Marriage or Cancellation of Marriage

An essential basic unit of a society being the individual family, is created through the foundation of ‘marriage’. Thus marriage becomes the building block of society. In Indian law to have a lawful marriage within the bounds of religion and law there are certain conditions. If the marriage falls short of these conditions, the validity of the marriage is questionable. Hence the law decides such marriage as void ab initio. Although the marriage is void ab initio, a legal declaration of nullity is required to establish this. 

What is Void Marriage?

A void marriage means “No Marriage” even though the formalities/ ceremonies of a marriage might have taken place. So these marriages are void from the moment they are entered into, and neither the wishes of the participants nor their living together can change the status of the marriage. Even if the petitioner seeking the nullity was aware of the fact that the marriage is the void one before or while going through the marriage ceremony the court cannot use discretion to make the marriage valid.

 What is Voidable Marriage?

Some marriages, even though entered-into illegally, are allowable. Hence such marriages are called Voidable Marriages. It means to say that until court decides them to be invalid, such marriages are legal and binding. Voidable marriages may be declared void only at the option of the injured party to such marriage, only if petition is presented within limitation period and the injured party must not have ratified the defect by voluntary exercise of marital rights after the defect was detected, fraud discovered or force removed. 

Difference between Annulment & Nullity of a Marriage

Annulment is a procedure of declaring a voidable marriage null and void. Decree of nullity is a declaration by the court that marriage never existed as per law which means the marriage is void from the beginning. Annulment or Nullity is different from Divorce, wherein divorce the decree is passed to end the valid marriage.  

1. 1. Nullity (of Void Marriages) under Hindu Marriage Act, 1955:

Section 11 of the Act deals with Void marriages which means there is no marriage existing between the parties and hence a decree of nullity can be sought through a petition to the court of law. The requirement for such petition is that the marriage contravenes the conditions laid down in the same Act under section 5 clauses i, iv,  and v. To understand this further, the  conditions are explained hereunder;

1. 1. Living Spouse

Section 5 (i) – At the time of marriage neither of the parties have a living spouse. When either of the parties has a spouse who is still alive at the time of marriage, such marriage is void. Even if the husband and wife of the earlier marriage are living separately, it is considered the marital ties are still continuing unless and until there is a divorce decree. Here clear proof of the earlier marriage is essential to establish a subsisting marriage.

In Vimala K Vs Veeraswamy K (1991)2 SCC 375 it was observed that even entries in insurance policy and family identity card issued by employer are not sufficient proof of the subsisting marriage. This appeal was by the second wife for maintenance under Criminal Procedure Code section 125. “…However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision. Therefore, the law which disentitles the second wife from receiving maintenance from her husband for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children. Accordingly, when an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court should insist on strict proof of the earlier marriage.”

2. 2. Prohibited Relationship 

As per Section 5 (iv), if the parties are within the degrees of prohibited relationship of each other the marriage is void unless the custom or usage governing each of them permits a marriage between them. A prohibited degree can be from either paternal or maternal side. If it is on the maternal side, within or has a common ancestor relative within three generations above the bride/groom. If it is on paternal side, within or has a common ancestor relative within five generations above the bride/groom.

The prohibited relationship is further explained in the same Act (Sec 3(g)) in detail as follows;

• • If one is a lineal ascendant of the other; or

• • If one was the wife or the husband of a lineal ascendant or descendant of the other; or

• • If one was the wife of the brother or the father’s or mother’s brother or the grandfather’s or grandmother’s brother of the other; or

• • If two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister, or two brothers or two sisters 

These relations include;

• • Relationship by half or uterine blood as well as by full blood;

• • Illegitimate blood relationship as well as legitimate; 

• • Relationship by adoption as well as by blood

3. 3. Sapindas of each other 

As per Section 5 (v), the parties to the marriage are not Sapindas of each other, unless custom and usage governing each of them permits the marriage between the two. Sapinda relationship means both the parties have the same ancestor to whom they would offer Pinda during the Sraddha ceremony of that ancestor. In other words the parties to the marriage must not be connected with the same blood. Different schools of Hindu Law have defined this concept. The definition provided in The Hindu Marriage Act, 1955 (Sec 3(g)) applies to this condition as well. However if the custom and usage governing each of the parties allows such marriage, then the marriage is not void. 

2. 2. Annulment (of Voidable Marriages) under Hindu Marriage Act, 1955:

Section 12 of the Hindu Marriage Act, 1955 provides the grounds on which marriages become voidable and can be annulled by a decree of nullity. 

1. 1. Impotency of the Respondent – Non consummation 

The marriage is not consummated owing to the impotency of the respondent. The physical incapacity for accomplishing the sexual act is impotency. The Supreme Court decision in the case of Digvijay Singh Vs Pratap Kumari AIR 1970 SC 137 states that “A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of marriage and continued to be so until institution of the proceedings.”

Impotency is distinguished from sterility, which means inability of procreation of children. Sterility or infertility is neither a ground for divorce nor a condition for a valid marriage. 

2. 2. Unsoundness of mind, insanity, no consent due to mental disorder

Under the provisions of Sec 12 (1) (b) read with Sec 5 (ii) of the Hindu Marriage Act, a marriage can be voided on the ground that the respondent was a lunatic or  idiot at the time of marriage. The consent given by a person with mental disorder is considered to be invalid and such marriage becomes voidable. 

3. 3. Consent of the petitioner obtained by force or by fraud

A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. The fraud can be actual or constructive. Some examples of fraud in the marriages as pointed out by the courts;

1. 1. Ananth Nath Dev Vs Lajjabati Devi AIR 1959 – it was not disclosed during negotiation of marriage that the bride was suffering from tuberculosis

1. 1. Tarlochan Singh Vs Jit Kaur AIR 1986 – concealment of the fact that the wife was suffering from schizophrenia before the marriage would lead to grant of a decree for annulment of marriage as it amounts to matrimonial fraud. 

1. 1. P J Boore Vs Valsa AIR 1992 – concealment of vasectomy by the husband to the bride’s party constitutes fraud. It has observed therein that one of the sublime objects of married life is to have offspring. 

1. 1. Gitika Bagchi Vs Subhabrata Bagchi AIR 1996 – the concealment of overage by three years showing her to be younger than the respondent constitutes fraud. 

1. 1. Sujatha Vs Hariharan 1995 (II) MLJ 327 (DB) – A fact concealed must be of such nature which affects ordinary marital life. Non-disclosure of an eye defect curable by proper treatment cannot be said to be fraud. Hence annulment on that ground cannot be granted. 

Conditions to use ‘consent obtained by force/fraud’ as a ground seeking annulment: 

i) The petition must be presented to the court within one year from the time the fraud was discovered; or

ii) The petition must be presented to the court within one year once the force is ceased; and

iii) The petitioner with his/ her full consent must not have lived/ continuing to live with the other party after the force was ceased or the fraud was discovered. 

4. 4. Respondent was pregnant by some other person than the petitioner at the time of marriage

A marriage may be annulled on the ground that the respondent was at the time of marriage pregnant by some person other than the petitioner. 

Conditions to claim this ground for annulment are;

i) Petitioner must satisfy that at the time of marriage he was ignorant of such pregnancy. 

ii) Petition must be filed within one year of marriage

iii) Once the petitioner discovered the pregnancy by some other person, must not have had marital intercourse with the respondent with his consent. 

3. 3. Nullity ( Void Marriages) under Special Marriage Act, 1954:

Special Marriage Act, 1954 has special provisions for marriages that do not fall under any personla laws that are in place and includes, inter-religious marriages. As per Section 24 of the Act, a marriage solemnised under this Act can be declared null and void when a petition is presented to the court with any of the following grounds;

1. 1. Living spouse – at the time of marriage neither of the parties should have a living spouse, where the earlier marriage is still subsisting. To explain it further, the earlier marriage/ marriages should have been dissolved through a divorce decree or death of the spouse can be proved. 

2. 2. No Valid Consent due to unsoundness of mind/ mental disorder/ recurrent attacks of insanity – under section 24(1)(i) read with Section 4 (b) of the Special Marriage Act, the marriage shall be void if either party was an idiot or lunatic at the time of marriage. In teh case of R Lakshmi Narayan Vs Santhi (2001) 4 SCC 688 it was stated that ‘The party alleging mental disorder of the spouse must establish that the  mental illness suffered by the  spouse is of such kind and extent that it would be impossible for the petitioner to lead a normal married life.’

3. 3. Under age marriages – Male must complete 21 years and Female must complete 18 years of age for a valid marriage. 

4. 4. Prohibited Relationship – the degrees of prohibited relationship are defined in the Act, which are as same as Hindu Marriage Act, explained in this article above. If the custom or usage governing each of the parties allows the marriage between such relatives, then the marriage is valid. 

5. 5. Impotency of the Respondent – Under Sec 24(1)(iii) of the Special Marriage Act, the marriage shall be null and void and may be declared by a decree of nullity if the respondent was impotent at the time of marriage and at the time of institution of the suit. 

4. 4. Annulment (of Voidable Marriages) under Special Marriage Act, 1954:

Any marriage solemnised under  the Act shall be voidable and may be annulled by a decree of nullity if a petition is filed under the following grounds:

1. 1. Non-consummation due to refusal by the Respondent

A marriage can be voided on the ground that it has not been consummated owing to the wilful refusal of the respondent. In the case of ‘Prafulla Bala Biswas Vs Ila Dass’ (1992) 2Cal LT(HC) 315 it was stated “One of the grounds on which marriage becomes voidable under sec 25 of the Special Marriage Act is that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate. Therefore, under the Act, non-consummation under specified circumstances, at best makes the marriage voidable, obviously at the option of the aggrieved spouse, and, a third person cannot assail the marriage on the ground of non-consummation. 

2. 2. Pregnancy of Respondent 

The pregnancy of the Respondent at the time of marriage by some person other than petitioner is a ground to seek annulment. In the case of Immaneni Vasantha v Immaneni Srinivasa Prasad (1996) DMC 535 (AP-DB), soon after the marriage, the husband noticed some abnormality in the stomach (abdomen) of his wife. She was sent for medical examination within one month of the marriage. In the scanning report, she was found pregnant for five months. No evidence was forthcoming that there was ill-treatment or dowry demands from husband’s side, nor was there any evidence that he knew about the pregnancy at the time of marriage or that he had resumed marital intercourse after detection of pregnancy. Held, the case deserved a decree of nullity. 

Conditions to claim this ground for annulment are;

i) Petitioner must satisfy that at the time of marriage he was ignorant of such pregnancy. 

ii) Petition must be filed within one year of marriage

iii) Once the petitioner discovered the pregnancy by some other person, must not have had marital intercourse with the respondent with his consent.

3. 3. Consent obtained by fraud or coercion 

The fraud for the purpose of annulment of marriage refers to the fraud which might have been practiced prior to the solemnization of the marriage. At the time of marriage proposals/ alliance seeking, the parties exchange relevant information about the proposed bride and bridegroom. There can be misrepresentation of facts with regard to the status of the parties, financial status, educational qualification, health status, age of the parties, etc. When consent to the marriage was taken based on these misrepresented facts, it is considered that the fraud is being played by one party on the other. To claim fraud being played by the other party, the condition is that prior to the marriage the fraud must not have been known to the petitioner. Within one year from the date on which fraud was discovered, petition to be filed After the fraud was discovered there must not be any marital intercourse with the free will of the petitioner. 

Consent obtained by coercion 

Coercion is committing or threatening to commit any act forbidden by the Criminal Code, or the unlawful detaining or threatening to detain any property to the prejudice of another person whoever, with the intention of causing any person to enter into an agreement as per section 15 of Indian Contract Act, 1872. Coercion includes every kind of compulsion even if it does not measure up to this definition. The conditions to claim this ground include petition to be filed within one year of coercion being ceased, after the coercion ceased there must not be any marital intercourse with the free consent of the petitioner with the respondent. 

5. 5. Nullity ( Void Marriages) under Divorce Act, 1869 (For Christians):

Section 18 of the Act states that any husband or wife can pray for decree of nullity through a petition on the grounds mentioned under section 19 of the Act. 

1. 1. Impotency of the Respondent

Impotency of the respondent at the time of marriage as well as at the time of institution of the suit is a ground to seek nullity of the marriage.

2. 2. Prohibited degrees of consanguinity 

The parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity. However, degree of consanguinity is not defined under this Act. The courts have considered general rule as followed in the personal laws. Degree of consanguinity is up to 4 degrees of lineal ascendants and descendents including parents, children, grandparents, grandchildren, aunt, uncle, nephew, niece, great grandparents etc. Degree of affinity is on the side of the spouse, which includes parent in-laws, daughter/son-in-law, etc. 

3. 3. Either party is Lunatic/ Idiot 

At the time of marriage either party was lunatic or idiot at the time of marriage is also a ground to seek nullity. However the party seeking nullity has to prove the lunacy/ idiocy of the other. 

4. 4. Living spouse from a subsisting earlier marriage

There must not be previous marriage in force at the time of marriage. A divorce/annulment decree from the court of law is essential even if Ecclesiastical Annulment is obtained. 

6. 6. Nullity (of Void Marriages) under Muslim Personal Law:

Under the Muslim personal law, the void marriages are termed as Batil marriages. The following are the conditions under which marriages are considered to be Batil marriages, which can be annulled through court of law. 

1. 1. Married Woman cannot contract another marriage, while her husband is still living and the marriage is still in force.

1. 1. Marriage within the prohibited degree of consanguinity 

1. 1. Marriage within the prohibited degree of affinity 

1. 1. Fosterage – if a woman has nursed a child, cannot marry that child 

7. 7. Nullity (of Voidable/Irregular Marriages) under Muslim Personal Law:

Under Islam, the voidable marriages are called Fasid Marriages, or irregular marriages. These marriages either can be terminated by either party or can be regularized by removing the defect.

The following conditions make Fasid Marriages:

1. 1. Witnesses – inadequacy or no witness to the contract of marriage

1. 1. In case of man – already has 4 wives and all the marriages are subsisting 

1. 1. Marriage with a woman undergoing the period of Iddat

1. 1. Difference of religion 

1. 1. Marriage with a woman so related to the previous wife that if one of them had been a male, they could not have lawfully married to each other.

PROCEDURE FOR ANNULMENT OF MARRIAGE:

1. 1. Filing a Petition – A petition has to be filed in the appropriate court of law through an advocate practicing family law. 

1. 1. Notice/ Summons – The court follows the procedure to send the notice to the opposite party. 

1. 1. Court Proceedings – The different stages of the court proceedings include filing the written statement by the opposite party, evidence by both parties, examination & cross examination of both the parties, arguments and judgment. Only if the court finds the claim made by the petitioner is true, a decree of annulment is passed; if not the petition is dismissed and the marriage subsists. 

Effect of the Annulment Decree: 

The decree of Annulment means the marriage never existed, it cancels the marriage and all such records. The status of the parties returned to that which existed before the marriage took place. Spouses cannot claim maintenance from each other. If any children begotten through annulled marriages, are considered to be legitimate and all the other laws of succession apply. 

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