Annulment of Marriage Chandigarh Panchkula Mohali Zirakpur

Last Updated on April 16, 2020 by Legalseva.net

Marriage in Hindu ideology is the basis of social life of men within family. It is the basis of all social organization and is fundamental of all legal rights and obligations. In Hindu law it is more like a sacrament than a contract, unlike in the case of Muslim marriages. The wedlock joins two lives together and leads to creation of an eternal bond. In Hindu ideology marriage perhaps is believed to be the creation of new connection between their families and not just the husband and the wife. Marriage is necessary so as to further continuance of life together and the wedlock is the bond that leads them to pursue Kama (desire), Artha(Possession), Dharma(Duty), Moksha(Salvation) together.

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The marriage upholds the family traditional values of Hindu family in accordance with dharma. From ancient times till the legislation of Hindu laws marriage was purely a customary ritual based on family traditions, and the state has no role in it. However after the legislation and codification of Hindu Laws the customary and sacramental nature of marriages has constricted to some extent in that of a nature like a contract in certain specific circumstances, like Divorce and Annulment of marriages.

There are two ways wedlock can be broken: Annulment and Divorce. The divorce or the dissolution of marriage is an end of the marriage that has been legally valid however the divorce can be sought in certain circumstances like, adultery, bigamy, cruelty, desertion, either of the spouse is suffering from communicable disease, mental incapacity, fraud, force and others. Annulmentis mere a legal declaration stating that the marriage is null and void, in this is the marriage solemnized was never valid rather it was void-ab-intio. So the declaration is mere a formality to legal recognize the singlehood status of the parties. The marriage is said to have never existed in the eyes of law. In Hindu Laws annulment and Divorce are quite different forms. Annulment can be claimed in case of void (Sec.11) or voidable marriages (Sec. 12) of Hindu Marriage Act, 1955 while Divorce can be claimed on the grounds mentioned in Sec. 13 of the Act.

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Grounds of Annulment

The annulment can be claimed in the marriage solemnized through use of force, fraud, or either the spouse has living partner at the time of solemnization of the said marriage, within blood relationship or mental incompetent of either of the spouse, beside that there are certain other grounds on which a marriage can be annulled as follows:

Either of the spouse has already been married at the time of the said marriage,
Either of the spouse has been a minor at the time of marriage,
Either of them has been under influence of drugs or had been intoxicated (either voluntarily or involuntarily),
Either of the parties are mentally incompetent to perform the conjugal obligations,
Consent of either of the spouse has been obtained through force or fraud,
Physical incompetency to get married,
Marriage parties were Sapindas to each other or the parties to it falls under prohibited degree of relationship,
Prisoners sentenced for life cannot marry,
Concealment of a fact either to the age of the parties or ceremonies to the marriages.

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Basis of annulment

The provision for a marriage to be valid Hindu marriage has been given in Sec.5 of the Hindu Marriage Act, 1955, if any of the conditions mentioned in the provision is not followed it would not be a valid marriage and can be annulled by the decree of the court of competent jurisdiction to the affect.

Sec.5 of Hindu Marriage Act, 1955, stated the essential conditions for a valid Hindu marriage which are:

Neither party has a spouse living at the time of marriage;
At the time of the marriage, neither party-
is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
though capable of giving a valid consent, has been suffering from mental disorder of such kind or to such extent as to be unfit for marriage and the procreation of children; or subject to recurrent attacks of insanity;

The bridegroom has completed the age of [ twenty-one years] and the bride, the age of [18 years] at the time of the marriage;

The parties are not within the degree of prohibited relationship unless the custom or usage governing each of them permits of the marriage between the two;
The parties are not sapindas to each other, unless the custom or usage governing each of them permits of a marriage between the two.

Annulment can be sought in the marriages that are either void are voidable based on the grounds mentioned in Sec. 11 and Sec. 12 of Hindu Marriage Act, 1955

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Annulment of Void Marriage:

Sec. 11 of the Hindu Marriage Act provides that, any marriage solemnized after the commencement of this Act shall be null and void and may, on petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

In case of bigamy where spouse is legally married to another person at the time of solemnization of the said marriage the former marriage is void in the eyes of law. M MMalhotra v. Union of India, it was held in this case that husband married a woman during subsistence of his first marriage; such marriage is null and void.

If the marriage has been solemnized between the partiessapindas to each other or the parties fall under the degree of the prohibited relationship then also the said marriage is void-ab-inito and can get annulled.

Also Read- Restitution of Conjugal Rights

Annulment of voidable marriage:

In case of voidable marriage, the marriage does not become void itself but rather one of the parties has to get it annulled. It is at the option of the either of the parties whether to get the marriage annulled or not.

Section 12, of the Hindu Marriage Act contains the grounds for voidable marriage

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 impotence of the respondent; or
that the marriage is in contravention of the condition specified in clause (ii) of the section 5; or
that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner, the consent of the guardian was obtained by force; or
that the respondent was at the time of the marriage pregnant by some other person then 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 entertained if-
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 fact alleged;
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 martial intercourse with the consent of the petitioner has taken place since the discovery by the petitioner of the existence of [the said ground].

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Impotency: when either of the spouse was physically unable to consummate the marriage due to lack of ability to have sexual intercourse, and if the incapability is incurable or either the spouse does not want to take action to cure the incapability the marriage can be annulled.

Lack of mental awareness: if the court finds out that either of the spouse is unable to understand the nature of the marriage and cannot perform the duties and responsibilities of married life, marriage can be annulled.

Fraud or force: when the consent of the party has been obtained through force or fraud, then there is lack of free consent for the marriage but however this ground does not apply if even after discovery of the fact the spouse continues to live together.

Also Read- Annulment of Marriage under Hindu Law

Rights of the children born out of annulled marriages

The rights and obligations of the children born out of such marriages are established by the court after examining of the facts and circumstances. The children born out of annulled marriages are legitimate under Sec. 16 of Hindu marriage Act. Children born out of marriages annulled on the grounds mentioned in Sec. 11 and 12 are legitimate as would have been if the marriage had been valid. Any child conceived before or after passing the decree of nullity of marriage would be legitimate child. The children thus born would have the succession right in the property of the parents but cannot claim any right in the father’s coparcenary rights. Sarda Ram v. Durgabai, it was held that such children can inherit the separate property of their father under Section 8 of Hindu Succession Act, but could not have any claim on father’s coparcenary rights.

Annulment process

Annulment is rare while divorce is way common in Hindu Law. The jurisdictional criteria of both, however is similar, one must be residence of the state and either of the parties must live in the jurisdictional area of the court where the petition has to be filed for at least ninety days. Like divorce, annulment can be initiated by either of the spouse. The annulment process however, is simpler than divorce because it is mere declaration of nullity of a marriage that has already been void-ab-initio or voidable where, divorce in comparison is putting an end to the relationship which was valid.

Effect of annulment

Annulment simply erases the marriage from the records like it never happened or it never existed and put the parties back to their status of singlehood. In short marriage while declaring the nullity of marriage the court has nothing to do with the assets, debts or custody of the children while in marriage lasting longer can be nullified after the court examines the assets, debts, defining custody of the children and dividing the property in both the parties after evaluating the assets, their incomes and financial statement, etc.

Also Read- Woman entitled to alimony even if marriage void: Court

Conclusion

An annulment is a legal procedure which declares a marriage null and void, as there is no point having a relationship that is built on the basis of fraud or force. Otherwise the parties would lack happiness in their relationship and satisfaction towards each other which is the basis of all relationship. No relationship without happiness could last longer. So it is in the benfit of both the spouse to get marriage annulled, which would erase the marriage from the records and return the status of singlehood to the parties.

For case specific advice, please contact Best Family/Matrimonial/Divorce Lawyers Advocate in Chandigarh Panchkula Mohali Kharar Zirakpur Derabassi.

This post is written by Anurag Gupta.