Home कानून विधि Annulment v. divorce in India - iPleaders

Annulment v. divorce in India – iPleaders


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This article has been written by Harshita Varshney from Faculty of Law, Aligarh Muslim University. The author has tried to describe what is an annulment and how it is different from divorce in India. Also, it has been discussed in this article that under which circumstances a decree of annulment can be passed. 

The perception of marriage differs among people due to the diversity of their religion. Vedas have observed Hindu Marriage as an indissoluble union till eternity. It is defined as a union of bones with bones, flesh with flesh and skin with skin, the husband and wife become as if they were one person. Under Muslim Law, marriage is treated as a civil contract where an offer is proposed and accepted by the parties in the presence of each other. 

Due to the diversity of religion in India Marriage is treated as part of the personal law of the parties and the people are allowed to perform marriage as per their personal laws. 

However, with the advancement of time and social awareness, various legislations have been passed by the government to make the present-day separation procedure in India more progressive with respect to gender affairs and related sensitive issues. Prima facie the two terms namely annulment and divorce may look similar as both of them deal with termination of marriage but they hold two different meanings.

An annulment means an official announcement which ends the existence of the marriage. It is a process in which the marriage is declared as null and void due to some reasonable causes and these causes include that the legal requirements were not met at the time of marriage. When certain legal requirements are not met at the time of the marriage then the marriage is not considered as a valid marriage. The annulment of such marriage is passed by the authorities which never existed in the eye of law because of the absence of certain legal requirements which are important to make a marriage valid. When a petition for annulment of marriage is made by one party the court has to decide whether a valid marriage took place between the parties or not. When the decree of annulment is passed by the Court then the further duties or obligations towards each other also ends with the non-existence of the marriage. 

The provisions regarding the annulment of marriage have been dealt with in various personal laws. Those laws are discussed below: 

The Hindu Marriage Act, 1955 

The provision related to the annulment of marriage has been dealt with under the head “Nullity of Marriage and Divorce”. Among Hindus, marriage is regarded as the sacred bond between the two individuals. The old Hindu laws of marriage have been wholly transformed by the Hindu Marriage Act, 1955 to remove all the social defects introduced by the old laws. The new legislation has not only introduced some major changes but also tried to customise it so as to remove the social disparity. As per Hindu law, marriage can be of three types: Valid Marriage, Void Marriage and Voidable marriage. 

Section 5 of the Hindu Marriage Act, 1955 (hereinafter HMA) provides for the conditions for a valid Hindu marriage. The conditions provided by the law for the valid Hindu marriage are: 

  • First of all, both parties must be Hindu. It has been clearly pointed out by Section 5 that “a marriage may be solemnized between any two Hindus”. Even if one party to a marriage is a non-Hindu then also their marriage would not be subjected to this law. 
  • According to Section 5(i), any party to a marriage should not have a spouse living at the time of the marriage. This provision barred bigamous or polygamous act. 
  • As per Section 5(ii), the following conditions should be kept in mind by the parties at the time of marriage:
    • Any of the party to a marriage should not be incapable of giving a valid consent due to the unsoundness of mind;
    • If both the parties to a marriage are capable of giving a valid consent but any of them should not suffer from such a mental disorder, which is unfit for marriage and the procreation of a child;
    • Any of the party to a marriage should not have been subject to recurrent attacks of insanity.
  • As per Section 5(iii), at the time of marriage, the bridegroom must have completed the age of twenty-one years and the bride must have completed the age of eighteen years;
  • According to the custom or usage of the parties, their relationship must not fall within the degrees of a prohibited relationship if it so then it must be allowed by their custom and usage as provided by Section 5(iv);
  • Section 5(v) provides that the parties should not be sapindas of each other. But if the customs or usage governing the parties to marriage allows then such marriage will be a valid marriage. 

So, these were the conditions which should be fulfilled for a valid marriage under the Hindu law. 

Void and voidable marriages

The concept of nullity of marriage was first introduced by the Hindu Marriage Act, 1955. When at the time of a marriage, the conditions specified under Section 5 are not fulfilled then such marriage is not regarded as the valid marriage. Section 11 of the Act provides that any marriage, solemnized after the commencement of this act, would be declared as void if it contravenes clause (i), (iv) and (v) of Section 5 if a petition has been moved by any of the parties to a marriage. Simply, a marriage should not infringe these conditions:

  • Any party to a marriage should not have a spouse living at the time of the marriage;
  • Their relationship must not fall within the degrees of a prohibited relationship if it so then it must be allowed by their custom and usage; and
  • The parties should not be sapindas of each other. But if the customs or usage governing the parties to marriage allows then such marriage will be a valid marriage. 

If any of these three conditions would exist, the marriage would automatically become void under this section. The decree of nullity may be passed by the court at the petition moved by either party of the marriage. Any marriage violating any of these conditions would be void ipso jure. There is no need to ask from the court for the declaration of nullity of their marriage. It becomes null and void by the mere operation of law. However, the parties may file a petition for procuring the decree of nullity. It is left on the parties to a marriage to treat their marriage void without asking for a formal declaration from the court. 

On the other hand, voidable marriages continue to exist until the parties to a marriage approach the court for the annulment of their marriage. It is left on the parties whether they want to file a petition in the court for the annulment of their marriage. Section 12 of the HMA talks about voidable marriages. It says that any marriage solemnized, before or after the enforcement of this act shall be a voidable marriage, or maybe declared as null by a decree of annulment on the basis of following grounds: 

  • That the marriage has not been consummated by the parties of a marriage due to the inability of the respondent; or 
  • That the marriage is in violation of the conditions specified under Section 5(ii) and those conditions are: 
    • Any of the party to a marriage should not be incapable of giving a valid consent due to the unsoundness of mind;
    • If both the parties to a marriage are capable of giving a valid consent but any of them should not suffer from such a mental disorder, which is unfit for marriage and the procreation of a child;
    • Any of the party to a marriage should not have been subject to recurrent attacks of insanity;
  • That the consent of the petitioner was obtained by fraud or force for the ceremony of a marriage or any material situation connected with the respondent; or
  • That the respondent was pregnant by some person other than the petitioner at the time of solemnization of marriage. 

Sub-section 2 of this section has also laid down some conditions which are necessary to be observed before filing a petition for obtaining the decree of annulment. It says that if the petitioner is filing a petition for a decree of annulment on the ground that the consent of his/her was obtained by fraud or force then the petition would not be entertained by the court if: 

  • the petition is after one year or more when the force had ceased to work or the fraud had been discovered as the case may be;
  • the petitioner has decided or gives his or her consent to live with another party even after the force had ceased to work or the fraud had been discovered as the case may be.

Another condition imposed by sub-section 2 of this section is that if the petitioner is filing a petition for a decree of annulment on the ground that the respondent was made pregnant by some other person and not the petitioner, then the petition would not be entertained by the court if: 

  • The petitioner was not aware of the alleged facts at the time of the marriage;
  • In the case of a marriage which was solemnized before the commencement of this Act then the proceedings have been instituted within one year of such commencement and in the case of marriage solemnized after the commencement of this act then the proceedings have been instituted within one year of the date of the marriage;
  • Since the disclosure of the mentioned grounds by the petitioner, the marital intercourse with the consent of the petitioner has not taken place between them. 

Therefore, the main distinction between the void and voidable marriage is that the void marriage is void ab initio which means it is null from the very beginning. Whereas, a voidable marriage is annulled by the court on the petition moved by the party of a marriage. 

Special Marriage Act, 1954

The Special Marriage Act, 1954 governs the inter-caste or the inter-religion marriages in India. This act applies to the marriages of Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists. The provisions of this legislation apply not only to Indian citizens who belong to different castes and religions but also to Indian nationals who live abroad. Section 25 of the act deals with voidable marriages. According to it, any marriage, solemnized after the commencement of this act, shall be voidable and may be declared by a decree of annulment, if:

  1. If the respondent has refused to consume the marriage;
  2. If at the time of marriage, the respondent was pregnant by some person, other than the petitioner;
  3. If the consent of either party was not the free consent, which means it has been obtained by fraud, coercion and misrepresentation, as defined under the Indian Contract Act, 1872

It is also provided that the court should not grant the decree of nullity in the case specified under clause (ii), related to pregnancy unless it is satisfied:

  • That the petitioner was not aware of the alleged facts at the time of the marriage;
  • That the proceedings were initiated in the court within a year from the date of the marriage; and
  • That since the petitioner has discovered the grounds of a decree for nullity of marriage, the petitioner has not given the consent for the marital intercourse. 

Further, it is provided that the court should not grant the decree of nullity in the case specified under clause (iii), related to consent unless it is satisfied that,

  • If the proceedings have not been initiated within one year of the after the consent was obtained either coercively or through fraud as the case may be;
  • If the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.  

Parsi Marriage and Divorce Act, 1936

This law governs the marriage and divorce of the Parsi community. People have regarded The Parsi Marriage as a contract made through a religious ceremony of Ashirvad which is necessary for its validity. ‘Ashirvad’ literally means blessings. A prayer or divine exhortation to the parties to observe their marital obligations with faith. Section 30 in the Parsi Marriage and Divorce Act, 1936 talks about the suits for the nullity of the marriage. According to it, if in any case, the consummation of marriage becomes impossible due to the natural causes then it may be declared as null or void, at the instance of any party to a marriage. 

Indian Divorce Act (for Christians), 1869

The Indian Divorce Act, 1869 is one of the important codified personal laws in India which governs the Christian community. The provisions of the act define the power of the court and describe the relief granted by courts to the parties of the marriage such as the dissolution of marriage, nullity of their marriage or judicial separation. 

Under Section 18 of the Indian Divorce Act, 1869, any husband or wife can move to the District Court or to the High Court by filing a petition that his or her marriage may be declared as null and void. 

Section 19 of the act provides for the grounds for passing such a decree of nullity of the marriage. According to it, a decree for nullity of marriage may be passed on any of the following grounds: 

  1. The impotency or lunacy of the respondent at the time of solemnization of marriage and as well as the at the time of institution of the proceeding;
  2. That the parties to a marriage are bounded by the prohibited degrees of consanguinity (whether natural or legal) or affinity;
  3. That either party to a marriage was a lunatic or idiot at the time of the marriage;
  4. That at the time of marriage, the previous marriage of either party was in force or the former husband or wife of either party was living at the time of new marriage. 

It is also provided that under this act, the High Court has jurisdiction to pass a decree of nullity of marriage if the consent of the parties to a marriage was obtained by fraud or force and this power of the High Court should not be affected by any provision of Section 19 of this act. 

A divorce is a legal procedure where a valid marriage is dissolved by the court. The provisions providing the grounds for divorce under different personal laws are as follows: 

The Hindu Marriage Act, 1955

Prior to the enactment of the Hindu Marriage Act, 1955 there wasn’t any concept of Divorce as, under the Hindu Law, the marriage was considered as an indissoluble union of the Husband and wife. But the present legislation has introduced various important and dynamic changes in the law of marriage and divorce. It has clearly laid down under what circumstances one can seek a divorce from the other party and such circumstances have been laid down under Section 13 of the Act. It has laid down the grounds which are available to both husband and wife. According to it, any marriage solemnised whether before or after the enactment of this act may be dissolved, on a petition filed by either the husband or the wife on the following grounds that he/she: 

  • Had performed sexual intercourse with any person other than his or her spouse after the solemnization of the marriage; or
  • Has treated the petitioner with cruelty after the solemnization of the marriage; or 
  • Has deserted the petitioner for a continuous period of not less than two years before initiating the petition for divorce;
  • Has converted himself into another religion; or
  • Has been incurable of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent; or
  • Has been suffering from a communicable disease; or
  • Has renounced the world by entering into a religious order; or 
  • Has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or 

The parties to a marriage can also file a petition for the dissolution of their marriage on the ground that:

  • There has been no resumption of cohabitation between the parties for a period of one year or more after the passing of a decree for judicial separation in a proceeding to which they were parties; or 
  • The decree for restitution of conjugal rights has been passed and such decree has not been complied with within one year of the passing of the decree.  

Special Marriage Act, 1954

Section 27 of the Act has provided the grounds for divorce. According to it, the petition for divorce may be presented by husband or wife on the ground that:

  1. The respondent had performed sexual intercourse with any person other than his or her spouse after the solemnization of the marriage;
  2. The respondent has deserted the petitioner for a continuous period of not less than two years before initiating the petition for divorce;
  3. The respondent has been facing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code, 1860;
  4. Since the solemnization of marriage, the defendant has treated the petitioner with cruelty; or has been incurable of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent;
  5. The respondent has been suffering from venereal disease, a communicable disease;
  6. The respondent has been suffering from a disease, leprosy, which has not been transferred from the petitioner; and 
  7. The respondent has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive. 

Parsi Marriage and Divorce Act, 1936

Section 32 of the Parsi Marriage and Divorce Act, 1936 has laid down the grounds for the divorce. According to it, any party to a marriage can sue another party on the basis of one or two of the following grounds: 

  • That the marriage was not consummated within the one year of marriage due to the willful refusal on the part of the defendant; 
  • That from the date of marriage and up to the time when the suit for divorce was initiated, the defendant was of unsound mind;
  • That the defendant was pregnant at the time of marriage by some person other than the plaintiff;
  • That since the solemnization of marriage, the defendant has committed adultery or fornication or bigamy or rape or an unnatural offence;
  • That since the solemnization of marriage, the defendant has voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with a venereal disease or, where the defendant is the husband and he has compelled his wife to submit herself to prostitution;
  • That the defendant has been facing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code, 1860;
  • That the defendant has deserted the plaintiff for at least two years;
  • That the parties have not consummated their marriage for one year or more since the order for awarding separate maintenance for the plaintiff by the defendant has been passed by a magistrate; 
  • That the defendant is no more belongs to the Parsi religion by conversion to another religion. 

Indian Divorce Act (for Christians), 1869

The Indian Divorce Act, 1869 is one of the important codified personal laws in India which governs the Christian community. Section 10 of part III of the Indian Divorce Act, 1869 has laid down the grounds for the dissolution of a marriage. According to it, any husband can move to the District Court or to the High Court by filing a petition and praying for dissolving his marriage on the grounds that since the solemnization of the marriage, his wife has been guilty of adultery. 

Similarly, any wife may pray to the District Court or to the High Court by filing a petition for dissolving her marriage on the grounds:

  • That her husband has renounced the Christian religion and has adopted another religion;
  • That her husband has gone through a form of marriage with another woman;
  • That her husband has been guilty of incestuous adultery, or of bigamy with adultery, or marriage with another woman with adultery, or of rape, sodomy or bestiality;
  • That her husband has deserted her for two years or more without reasonable excuse. 

The Indian Divorce Act, 1869, governing the divorce and other matrimonial causes of the Christian community was based on the English law of divorce and this is suggested by Section 7 of the act which says that the court should act according to the principles of English Divorce Court. These provisions regarding the divorce, contain discriminatory laws to get a divorce from a wife the husband has to prove that his wife has committed adultery. However, for a wife to get divorced from her husband has to prove an additional matrimonial offence like bigamy.

Therefore, a need to reform the present discriminatory law was felt and the same was held by the Supreme Court in the case of Ms. Jordan Diengdeh vs S.S. Chopra (1985). The constitutional validity of Section 10 was challenged in the case of Mary Sonia Zachariah vs Union Of India (Uoi) And Ors. (1995), in which the Supreme Court asked the union to amend the law within six months. 

This gave a new law Section 10A, with the heading ‘dissolution of marriage by mutual consent’ which was introduced by the Indian Divorce (Amendment) Act, 2001. According to Section 10A(1), a petition for dissolution of marriage can be moved by both parties to the district court on the grounds:

  • That both the parties were living separately for two or more years; 
  • That they are unable to live together;
  • That they have mutually agreed to dissolve their marriage. 

Sub-section 2 of this section says that if six months after the date of institution of proceedings and after the eighteen days of the said date, the petition is not withdrawn by the parties then the court should pass the decree of dissolution of marriage to be dissolved with effect from the date of the decree, after being satisfied by hearing both the parties that a marriage has been solemnized and that the averments in the petition are true. 

Annulment is a procedure in which a marriage is declared as null and void. These marriages are good in law until avoided by one party at whose option it is voidable. Divorce is altogether a different concept. In a divorce, the petitioner prays to end the marital bond owing to certain events which may be overlapping with some of those under which makes a marriage voidable. Prima facie these two terms may look similar as both of them deal with termination of marriage but they hold two different meanings. 

Effect of annulment is that there was no marriage between the parties after the decree of nullity is passed by the court. Whereas in case of divorce, the petitioner seeks only to break the bond. Petitioner does not challenge the marriage itself. While praying for the decree of annulment, the petitioner challenges the validity of the marriage. The main differences between the two concepts are: 

  • The main aim of annulment is to declare a marriage void which was never valid. However, the party prays for divorce to end a valid marriage. 
  • After the annulment, the status of the party becomes single or unmarried and after divorce, the parties become divorced. 
  • After the annulment of marriage, no duties or obligations are aroused but after the divorce, a situation to pay alimony may arise as it depends on the case.

Annulment is a process in which the marriage is declared as null and void due to some reasonable causes and these causes include that the legal requirements were not met at the time of marriage. When certain legal requirements are not met at the time of the marriage then the marriage is not considered as a valid marriage. A divorce is a legal procedure where a valid marriage is dissolved by the court. These two terms deal with two different legal concepts. In the case of divorce, the petitioner seeks only to break the bond. Petitioner does not challenge the marriage itself. While praying for the decree of annulment, the petitioner challenges the validity of the marriage.


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