There are two ways to legally end a marriage first is “annulment” and second is “divorce”. Annulment is a legal process which erases marriage as if it never took place. Marriage can only be stated null and void if there certain legal requirements are not met at the time of marriage. Such marriage is considered to have been never existed legally.
This process is very different from divorce. The basic distinction between annulment and divorce is that annulment refers to a marriage which is never existed at all in the eyes of law, whereas divorce dissolves the marriage. The major issue in annulment of marriage is that whether valid marriage took place or not. It questions the validity of marriage rather than sustainability.
Who can file?
Any party to the marriage can seek annulment for declaring the marriage as null and void. Aggrieved party to the marriage with whom injustice is caused in terms of the grounds of nullity of marriage under the various laws can approach the court to declare his/her marriage to be null and void.
Where to go?
Parties intended to nullify their marriage can file petition before the concerned District Court. Such petition can be filed at the following places:-
- Where the marriage in question took place.
- Where the parties last resided together.
- Where the petitioner resides or carries out his/her work.
- Where the respondent resides or carries out his/her work.
What are the grounds for annulment of marriage?
The grounds for annulment of marriage may differ according to various personal laws. Generally, fraud, bigamy, blood relationship, mental incompetency are the grounds. The grounds for annulment enshrined under various personal laws are discussed below:-
Under Hindu Law:-
Void Marriages: – Section 5 of the Hindu Marriage Act provides five conditions for valid marriage between two Hindus. If three conditions out of five are not fulfilled then marriage become void and anyone from the marriage institution can file for annulment of marriage under Section 11 of the Hindu Marriage Act. These three conditions are enumerated below:-
- Both parties must not have spouse living at the time of marriage i.e. bigamy.
- Marriage must not be in prohibited degree relationship unless customs and usage of the parties allowed the same.
- Parties to the marriage must not be Sapindas of each other unless customs and usage permitted the same.
Voidable Marriages: – Section 12 of the Hindu Marriage Act provides conditions for voidable marriages. Voidable marriages are valid until declared null and void by the court. These marriages can be annulled by the decree of nullity under Section 12 of the Hindu Marriage Act, it is upto the parties to continue with the marriage or to annul the marriage by decree of court. The grounds under Section 12 are given below:-
- Incapacity to give valid consent due to unsoundness of mind. Or if capable to give valid consent but suffering from mental disorder of such kind or to such extent that unfit for marriage and for procreation of children.
- Consent of either of the party has been obtained by force or fraud by concealing material facts.
- If bride was pregnant by some other person at the time of marriage.
It is marked here that in case of force or fraud the petition for annulment can be filed within period of 1 year from discovery of such fraud or operation of force. Where the spouse gave his/her full consent to live in the matrimonial institution after discovery of fraud or cease of force then petition of annulment of such spouse can’t be entertained.
When the aggrieved spouse didn’t knock the door of court for long period then it is presumed by the court that such spouse has accepted the fraud or fraud.
Under Muslim Law:-
Under Muslim Law there is no declaratory decree in case of void marriage. Even there is no concept of voidable marriages. However, declaratory suits can be filed with regard to status of Muslim Marriage. Any party to the marriage who wants judicial separation in the terms of nullity of the marriage can file suit for declaration under Section 34 of Specific Relief Act. Some grounds are given below under which Muslim marriage is considered to be null and void.
- Interreligious marriage.
- Marriage between milk relation or close blood relatives.
- Marriage with person who renounce Islam or not having faith in the principles of Islam.
- Marriage during iddat period of woman.
- Where conditions of marriage are against the principles of Islam.
Under Christian Law:
Indian Divorce Act is application on the Christian marriages. The ground provides under the Act are mentioned below:-
- Bigamy i.e. either party is still legally married to another person at the time of marriage.
- Mental disorder or insanity.
- Parties to the marriage are in prohibited degree of consanguinity.
Under Special Marriage Act:
Special Marriage Act applies to people of all religions in India who perform civil marriage. The conditions for annulment of marriage under Act are specified here:-
- Parties to the marriage are less than marriageable age i.e. 18 years for bride and 21 years for bridegroom.
- If anyone of the spouses is impotent.
- Parties to the marriage are related to each other by blood relation.
- If anyone of the spouses is of unsound mind.
What is the legal status of child born in annulled marriage?
According to Section 16 of the Hindu Marriage Act, the children born out of annulled marriage are legitimate in the eyes of law. A child is entitled to all the rights as if he/she is born in a valid marriage. Howbeit, such children can only claim share in property of their parents not from the extended family. On partition of ancestral property, the property falling in the share of the parents of such child is termed as their absolute and self-acquired property.
What about wife’s rights in annulled marriage?
As per some recent verdicts of Hon’ble Supreme Court, a wife shall have right to claim maintenance from her husband under Section 125 of Cr.P.C., if the marriage is declared null and void because of mischief or the wrongs committed by the husband. However, both the husband and wife are not subjected to any kind of responsibilities or duties towards each other once the marriage got nullity.
In case of T K Surendran vs P Najima Bindu (21st August, 2019) Hon’ble Supreme Court upheld the judgement of Kerala High Court of granting maintenance to wife under Section 125 of Cr.P.C. by husband whereby marriage between them was declared as null and void due to impotency of the husband. The Apex Court granted maintenance rights to the wife on the ground that the marriage got nullity due to husband’s wrong and mischief.
Marriages in India are governed under various laws applicable on people belonging to different religions. The issues related to the marriages are also different because of different personal laws. Annulment of marriage is one of those issues related to marriage. It is one of the ways to legally end the marriage.
Annulment of marriage is better way than divorce to get rid of the marriage if such marriage falls under category of null and void marriage as specified under various personal laws. It is highly recommended to seek the help of lawman in the process of annulment of marriage in order to avoid unfavorable consequences in the future. If there are more enquiries in your mind, feel free to contact us at [email protected]
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali