Home / Legal / Personal Law / Nullity of Marriage & Divorce
    Personal Law - Nullity of Marriage and Divorce

11.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 1[against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses 1, 4 and 5 of section 5.


12. Voidable Marriages.

1. Any marriage solemnized, whether before or after the commencement of this act, shall be voidable and maybe annulled by a decree of nullity on any of the following grounds, namely:- 

  1. 2[ That the marriage has not been consummated owing to the impotence of the respondent; or) 

  2. That the marriage is in contravention of the condition specified in clause (it) of section 5; or 

  3. That the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 3[was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)1, the consent of such guardian was obtained by force 4[or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or 

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

2. Not withstanding anything contained in sub-section (1), no petition for annulling a marriage-

(a) On the ground specified in clause (3) of sub-section (1) shall be entertained if 

  1. 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 

  2. 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(4)of sub-section(1)shall be entertained unless the court is satisfied-

  1. That the petitioner was at the time of the marriage ignorant of the facts alleged; 

  2. 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

  3. That marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 5[the said ground].

13. Divorce.

1. Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party 

  1. 6[Has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or 

  2. Has, after the solemnization of the marriage, treated the petitioner with cruelty; or 

  3. Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] 

  4. Has ceased to be a Hindu by conversion to another religion; or 

  5. 6[Has been incurably 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.

Explanation.

In this clause,

  • The expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; 

  • The expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

  1. Has 7[* * *] been suffering from a virulent and in curable, form of leprosy; or 

  2. Has 7[* * *] been suffering from venereal disease in a communicable form; or 

  3. Has renounced the world by entering any religious order; or 

  4. 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 it, had that party been alive; 8[* * *]

7[Explanation.]

In this subsection, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]
8[* * *]

1. 9[Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- 

  • That there has been no resumption of cohabitation as between the parties to the marriage for a period of 10[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or 

  • That there has been no restitution of conjugal rights as between the parties to the marriage for a period of 10[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

2. A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground, 

  1. In the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

    Provided that in either case the other wife is alive at the time of the presentation of the petition; or 

  2. That the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 11[bestiality; or] 

  3. 12[ That in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife not withstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; 

  4. That her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation.

This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).

Comments 

  1. It is not necessary for a party claiming divorce to prove that the mental cruelty complained is of such a nature as to cause an apprehension- reasonable apprehension- in his/her mind that it will he harmful or injurious for him/her to live with the other party. While arriving at such a conclusion regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in and all other relevant facts and circumstances. The allegations of the wife that the husband who was an advocate is a lunatic and there is a streak of insanity running through his entire family amounts to mental cruelty;  V. D. Bhagat, AIR 1994 SC 710. 

  2. A threat to commit suicide by the wife would amount to infliction of mental cruelty on the husband but it should not be uttered in a domestic tiff; Pushpa Rani v. Vijay Pal Singh, AIR 1994 All 220. 

  3. Allegation made in the written statement can never be the basis of divorce on the ground of cruelty. The petitioner must have beer, treated with cruelty prior to the filing of the petition. A petitioner approaching court with a petition for a divorce on the ground of cruelty can succeed only if he proves the act of cruelty on which he has based his petition. No subsequent acts either by way of allegations in written statement, responsible or not, baseless or not, can be taken help of in order to show cruelty; A v H, AIR 1993 Bum 70. 

  4. Allegations by the wife that husband had tried to burn her which were found to be false and baseless were held amounting to mental cruelty; Ashok Kumar v. Vijay Lakshmi, AIR 1992 Del 182. 

  5. Solitary instance of cruelty would not constitute cruelty so as to grant a decree for divorce rather the behaviour of the other party has to be persistently and repeatedly treating the other spouse with such cruelty so as to cause a reasonable apprehension in the mind of the husband/wife that it will be harmful or injurious for him or her to live with the other party. The expression "persistently" means continue firmly or obstinately and the expression "repeatedly" means to say or do over again; Vimlesh V. Prakash Chand Sharma,AIR1992 All 261. 

  6. The law is settled that filing of false complaints to the police and other authorities and initiation of false prosecution amounts to cruelty. It is also settled that complaints filed to the employer or personal authority which are found to be baseless and scandalous may amount to cruelty; RajinderBhardwaj v. Anita Sharma, AIR 1993 Del 140. 

  7. There was no desertion on the part of the appellant because she had in fact been turned out of the house by respondent when she objected to his relations with the lady servant. Held that there could be no divorce on grounds of desertion; Vimlesh v. Prakash Chand Sharma, AIR 1992 All 261. 

  8. In order to draw an inference of desertion there must be proved "Animus Deserendi " (i.e. the obvious intention of desertion). In other words it has to be proved positively that parties have no inclination to resume marital relations. The letters of the wife indicated that she had all love and respect for her husband and is willing to fulfil all marital obligations as a wife and hence no desertion could be proved on the part of the wife; Vimlesh v. Prakash Chand Sharma, AIR 1992 All 261. 

  9. The allegation by the husband that the wife was of incurably unsound mind was not proved by the husband by his statement that the wife was being treated by Dr. Yadav of a mental hospital; Vimlesh v. Prakash Chand Sharma, AIR 1992 All 261. 

  10. The degree of mental disorder must be such that the spouse seeking relief cannot reasonably be expected to live with the other; Rajinder Bhardwaj v. Anita Sharma, AIR 1993 Del 140.

13A. 13Alternate relief in divorce proceedings.

    In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses 2, 6 and 7 of subsection (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.


13B. Divorce by mutual consent.

  • Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. 

  • On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

Comments

  1. The period of living separately for one year must be immediately preceding the presentation of petition. The expression 'living separately' connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC 1904. 

  2. The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bonafides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal of consent;Smt. Sureshta Devi v. Om Prabsh, AIR 1992 SC 1904.

14. No petition for divorce to be presented within one year of marriage.

  1. Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, 14[unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage:

    Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented 14[before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the pail of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 14[expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after 14[expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed. 

  2. In disposing of any application under this section for leave to present a petition for divorce before the 14[expiration of one year] from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the 14[said one year].

15. Divorced persons when may marry again.
When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.

15[***]

16. 16[Legitimacy of children of void and voidable marriages.]

  1. Not withstanding that 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 child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that 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 not withstanding 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.]

Comments

Section 16(1) declares that children of void or voidable marriage shall be legitimate and not illegitimate and they shall share equally with the legitimate children in their parents separate property; Baghyavathi V. Lakshmikanthammal, AIR 1993 Mad 350.

17. Punishment of bigamy.
Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code, 1860 (45 of 1860), shall apply accordingly.

Comments

If the marriage is not a valid marriage, it is no marriage in the eyes of law. If the marriage is not a valid one according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. Having regard to section 17 of Hindu Marriage Act, 1955 the essential ceremonies set out under the Act had not been conducted and merely because there was distribution of sugar or gur that would not constitute a valid marriage; Surjit Karur v. Garja Singh, AIR 1994 SC 135

18. Punishment for contravention of certain other conditions for Hindu marriage.
Every person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in clauses 3, 4, 17[and 5] of section 5 shall he punishable 

  1. In the case of a contravention of the condition specified in clause 3 of section 5, with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both; 

  2. in the case of a contravention of the condition specified in clause 4 or clause 5 of section 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both;18[***] 19[* * *]

  1. Ins. by Act 68 of 1976, see. 5.

  2. Subs. by Act 68 of 1976, sec. 6, for clause (a).

  3. Subs. by Act 2 of 1978, see. 6 and Sch., for "is required under section 5" (w.e.f. 1.10.1978).

  4. Subs. by Act 68 of 1976, sec. 6, for "or fraud".

  5. Subs. by Act 68 of 1976, sec. 6, for "the grounds for a decree".

  6. Subs. by Act 68 of 1976, see. 7, for the former clause.

  7. Certain words omitted by Ad 68 of 1976, sec. 7.

  8. Ins. by Act 68 of 1976, sec. 7.

  9. The word "or" at the end of clause (vii) and clauses (viii) and (ix) omitted by Act 44 of 1964, see. 2.

  10. Ins. by Act 44 of 1964, sec. 2.

  11. Subs. by Act 68 of 1976, see. 7. for "two years".

  12. Subs. by Act 68 of 1976, see. 7 for "bestiality".

  13. Ins. by Act 68 of 1976, sec. 7.

  14. Ins. by Act 68 of 1976, see. 8

  15. Subs. by Act 68 of 1976, sec. 9, for certain words.

  16. Proviso omitted by Act 68 of 1976, sec. 10.

  17. Subs. by Act 68 of 1976, see. 11, for section 16.

  18. Subs. by Act 2 of 1978, sec. 6 and Sch., for "(v) and (vi)" (w.e.f. 1.10.1978).

  19. The word "and" omitted by Act 2 of 1978, sec. 6 and Sch. (w.e.f. 1.10.1978).