How Can a Marriage Under Hindu Marriage Act be Annulled

Annulment of marriage means that the marriage never existed in the eyes of law. Any marriage which fulfills the conditions of sec 11 and 12 of the Hindu Marriage Act can obtain a decree of nullity by instituting a suit before the court of competent jurisdiction. Annulment of marriage is not the same as divorce.

Fri Mar 11 2022 | HLL Knowledge Series | Comments (0)


Marriage according to  Hindus is a sacrament which continues for the lifetime, even beyond eternity. To  perform a valid marriage according to the Hindu Marriage Act, the marriage  should be performed as per the rites and ceremonies as mentioned in the Act and  should also fulfill the underlying requirements of the Act. Any marriage which  does not fulfill the legal requirements as mentioned the Act, is not considered  to be a valid marriage under the Hindu Marriage Act.
Annulment of marriage  means that the said marriage never existed- A marriage which is null and void/voidable.  It is a declaration that ends the marriage from its inception as if it never  existed in the eyes of law because of the absence of the essential legal  requirements which are essential for a valid marriage. When the decree of  annulment is passed by the Court, all further duties and responsibilities towards  each other come to an end along with the marriage. There are various  grounds for annulment of marriage.

Conditions for a  valid Hindu marriage as under section 5 of the Hindu Marriage Act-

A marriage may be  solemnized between any two Hindus, if the following conditions are fulfilled,  namely-

  1.  neither party has a spouse living at  the time of the marriage.
  2. at the time of the marriage, neither party-
    1. is incapable of giving a valid consent to  it in consequence of unsoundness of mind; or
    2. though capable of giving a valid consent,  has been suffering from mental disorder of such a kind or to such an extent as  to be unfit for marriage and the procreation of children; or
    3. has been subject to recurrent attacks of  insanity 
  3. the bridegroom has completed the age of 21  years and the bride, the age of 18 years at the time of the  marriage
  4. the parties are not within the degrees of  prohibited relationship unless the custom or usage governing each of them  permits of a marriage between the two
  5.  the parties are not sapindas of each  other, unless the custom or usage governing each of them permits of a marriage  between the two.

Any marriage which does  not fulfill the requirements as per sec 5, is not considered as a valid  marriage.

Void and voidable  marriages

Any marriage which  contravenes Sec 5 clause (i), (iv) and (v) will be considered as null and void  as per section 11 of the Hindu Marriage Act.
If any of the three  conditions are satisfied, the marriage would automatically become void under t section  11, HMA. 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.
According to sec 12 of the Hindu Marriage Act,  any marriage shall be voidable and may be annulled by a decree of nullity on  any of the following grounds, namely-

  1.  that the marriage has not been  consummated owing to the impotence of the respondent.
  2. that the marriage is in contravention of  the condition specified in clause (ii) of section 5.
  3. that  the consent of the petitioner or guardian was obtained by force. The petition  on the said ground 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 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.
  4. that the respondent was at the time of the  marriage pregnant by some person other than the petitioner. A petition under  this ground shall be entertained unless the court is satisfied that the  petitioner was at the time of the marriage ignorant of the facts alleged and that  marital intercourse with the consent of the petitioner has not taken place  since the discovery by the petitioner of the existence of  the said ground.

Procedure to annul  the marriage

In order to annul a marriage, the jurisdiction  should be determined viz the place where the marriage was solemnized or where  the couple last lived together as husband and wife, or where the estranged wife  is residing or in the event of death or whereabout not being known where the  petitioner is residing.
The completely drafted  petition containing all the essential details as to the parties, facts and  circumstances should be filed before the said court.
Once the court is  satisfied after examining the details, evidence etc, the decree of nullity will  be passed.
To conclude, a marriage  can be annulled if it satisfies the conditions as mentioned above. Further, the  children born out of such wedlock are considered to be legitimate and can  inherit the properties of their parents. In the case of ancestral property,  these children can claim their share in the property falling in the share of  the parents.

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