Annulment Of Marriage

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Annulment is a legal process for the declaration of marriage null and void. It can only be stated null and void if there are certain legal requirements were not met at the time of the marriage and then it is considered to have been never existed, legally. Such a process is known as annulment of marriage or nullity of marriage which is very different from divorce.  The clear distinction between annulment and divorce is that the annulment refers to the marriage which is never existed at all whereas the divorce dissolves the marriage. Annulments are granted when a court makes a finding a marriage is invalid. 

What are the grounds for obtaining an annulment?

The grounds for a marriage annulment may vary according to the different legal jurisdiction. But generally, an annulment may be obtained for one of the following reasons:

  • The marriage was incestuous.
  • The marriage was bigamous.
  • The marriage was the result of force, fraud, or physical or mental incapacity.
  • The marriage took place when one or both spouses were below the legal age for marriage.
  • The marriage took place when one or both spouses were already married or in a registered domestic partnership.
  • The marriage took place when one or both spouses were under the influence of drugs or alcohol.

Nullity of marriage under Hindu law

Under the Hindu Marriage Act, 1955 there are certain grounds on which marriage shall be declared null and void. These grounds are given under Clause (i), (iv) and (v) of Section 5 of The Hindu Marriage Act, 1955. These grounds are as follow:

  1. If either party has a living spouse at the time of marriage i.e. bigamy
  2. If marriage between prohibited degree relation unless customs and usage are allowed,
  3. If marriage between sapindas unless customs and usage are allowed such marriage.


  • Void Marriages: How can it be annulled?

As per Section 11 of Hindu Marriage Act, 1955, which deals with void marriages described as the marriage solemnized after the commencement of the Act shall be null and void and become null and void by presenting a petition through any of the party on the basis of the above-mentioned grounds.

Concept of Bigamy – In case any of the spouses was still legally married to another person at the time of the marriage to the other spouse then the marriage is considered to be void and no requirement for applying the annulment before the court is mandatory.

  • Voidable Marriages

There are voidable marriages also which are valid until declared null and void. Voidable marriage shall be annulled by the decree of nullity under section 12 of Hindu Marriage Act, 1955. It is at the option of the parties to continue with marriage or to annul marriage by a decree of a court. Grounds are as follow

  1. Impotency of the respondent
  2. Incapacity to give valid consent or forced consent of parties or mental illness or person unfit for procreation of a child
  3. Underaged marriage
  4. If the respondent was pregnant by some other person at the time of marriage.

Nullity of marriage under Muslim Personal law

Under Islam marriage is a dissoluble contact different from the Hinduism where marriage is indissoluble. Under Muslim personal law, marriage is treated as a contract where valid consent of both the parties is required and ‘Mehar’ is also decided. Hence dissolution of marriage is also permitted in both the sect Shia and Sunni.  Under Dissolution of Muslim Marriage Act, 1939 and personal law marriage without valid consent by the parties or their guardian is void. There are some other grounds also on which marriage can be declared null and void. These grounds are as follow:

  1. Interreligious marriage by a woman does not have religious status. A Muslim male also cannot marry a female who does not follow Isalm.
  2. Marriage between milk relation or ‘Maharam’ close blood relatives.
  3. Marriage with a person who renounces Islam or not having faith in the principle of Islam.
  4. Temporary or conditional marriage is void in Sunni.
  5. Marriage to a woman during the period of iddat.
  6. Where conditions of marriage are against the principle of Islam.

Nullity of marriage under Christian law in India

By the evolution of Christianity status of marriage has also changed. Christianity is also indissoluble and holy wedlock and made it a public religious ceremony. Hence nullity of marriage is difficult to grant. But by the development of society and to remove the discrimination for the Indian Christian there is separate marital law Indian Christian Marriage Act, 1872 was enacted and for their divorce or nullity of marriage Indian Divorce Act, 1869 is also there. This Act was amended in the year 2001. According to this Act on following ground marriage can be declared null and void:

  1. Respondent was impotent at the time of marriage and at the time of institution of the suit,
  2. Either of the party has living husband or wife at the time of marriage and that marriage is in force i.e. bigamy
  3. Marriage between the persons within the prohibited degree of consanguinity or affinity
  4. Either party was lunatic or idiot at the time of marriage.

Under the Indian Divorce Act, 1896 consent is not a ground for nullity of marriage.

Nullity of marriage under the Parsi Marriage and Divorce Act, 1936

In India, there is a separate marital law for the Parsi community. Under this Act under section 30 where the consummation of marriage due to some natural causes is impossible, at the instance of the party marriage can be declared null and void.


Nullity of marriage under Special Marriage Act, 1954

Under section 24 of the Act on the petition of either of the party, marriage can be declared null and void by the decree of nullity on the following ground

  1. Neither party has a living spouse
  2. Incapable to give valid consent due to unsoundness of mind or mental illness or unfit to the procreation of children
  3. Parties are under aged
  4. Parties are in a relation of a prohibited degree
  5. Impotency of respondent

There are some other grounds on which voidable marriage can be declared null and void.

  1. Marriage has not been consummated due to willful refusal of the respondent.
  2. If the respondent was pregnant by some other person at the time of marriage.
  3. Consent of either party was obtained by fraud or coercion as defined in the Indian Contract Act, 1872

Special marriage Act provides legal status and security to the interreligious marriage performed according to the provisions of this Act. Any person of any caste or religion may perform his or her marriage under this Act.


Who can seek Annulment?

Any party to the marriage can file an application for the annulment for declaration of the marriage as null and void. However, this is just a procedure to be brought on record before the court and is done as the precaution so that in future, no question of void marriage can be called.

A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud.

Procedure for obtaining a decree of nullity marriage

The procedure is generally the same in all personal law for obtaining a decree of nullity of marriage. Petition for nullity of marriage shall be presented before the court. The jurisdiction of the court is decided where the defendant or respondent has resided or marriage has solemnized or place where the party has last resized together. Then court issue notices to the respondent or defendant to give a reply before the court. After hearing and evidence court grant relief accordingly. Under the Parsi law court means the court established under the Act. Under the Hindu Marriage Act, 1955 and Special Marriage Act, 1954 court is Family court or city civil court. Under the Muslim law matter does not decide by the court but matter decided by the religious practice.

Effects of Marriage Annulment

Annulling a marriage simply erases it from the records, as if it never took place. The result of a marriage annulment is a decree that the marriage never existed. It nullifies the marriage, returning the parties to their prior single status. It's a common misconception that short marriages can be annulled, but the length of the marriage is not a qualifying factor. Many times, annulments occur after very short marriages, so there is no need to divide assets or debts or decide custody of children produced by the marriage. In the case of a long marriage that is annulled, the court will divide the property of the parties.   

The legitimacy of Children after the Annulment of Marriage

If a child is born out of wedlock which is subsequently declared to be null and void, that child will not be considered illegitimate but he shall be considered legitimate despite the marriage being illegal from its inception. The section provides a cushion to the children of void marriages and prevents them from being bastardised.

Rights of Children to Property Inheritance after Annulment of Marriage

  1. The status of legitimacy, that is declared by section 16, is part of the incidence of birth.
  2. The children born in a void or voidable marriage should be legitimate. If they were declared legitimate, then they cannot be discriminated against and they will be on a par with other legitimate children and be entitled to all the rights in the property of their parents, both self-acquired and ancestral.
  3. The deemed status of legitimacy entitles such children to inherit and demand partition of only the properties of their parents and excludes any other properties. In the case of joint family property, such children will be entitled only to a share in their parents' property but they cannot claim it on their own right. Logically, on the partition of ancestral property, the property falling in the share of the parents of such children is regarded as their self-acquired and absolute property.

Right of Claiming Maintenance by a Woman after Annulment of Marriage

Unilateral divorcees (wives) whose marriages stand terminated by acts of their husbands and persons whose marriages have been terminated by intervention of Courts at the instance of either spouse, are certainly included within the sweep of the inclusive definition of "Wife". The Legislature by a bold intervention included women of such terminated marriages also within the sweep of the expression "wife" subject to an important condition that they should not have re-married.

The issue of the right to maintenance under Section 25 of the Act, to a woman whose marriage is in contravention with Section 5(i) of the Hindu Marriage Act 1955, and has been declared null and void by a court has been faced by various High Courts as well as the Supreme Court, and the courts have given different views depending upon the facts and circumstances of each case.

The Supreme Court in the matter of 
Smt. Yamunabai Anantrao Adhav A vs. Ranantrao Shivram Adhav And Ors. discussed the issue of granting maintenance and accordingly held “that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of section 125 of the CrPC”. However, various High Courts have observed and it is a generally accepted rule that even in such cases, that the wife is entitled to maintenance under sec. 18 of the Hindu Adoptions and Maintenance Act, 1956 and under section 25 of the Hindu Marriage Act, 1955.