Annulment of Marriage:

Valid, Void and Voidable Marriage under Hindu Marriage

Act, 1955

Sections 11- 12 read with sections 5, 16, 17, 18, Hindu

Marriage Act, 1955
 Annulment of Marriage

What is Annulment of Marriage or Nullity of

Marriage?
“The process of declaring a marriage - which
suffers from a legal defect - as null and void.”
 Valid, Void and Voidable Marriage
Valid Marriage
◦ A marriage in compliance of S. 5 and S. 7, HMA, 1955

Void Marriage:
◦ A marriage in contravention of Section 5 Clauses (i), (iv) and (v). Void under S. 11, HMA,
1955. Punishable under S. 17, 18.
Voidable Marriage:
◦ A marriage in contravention of Section 5 Clauses (ii).
◦ Non – consummation due to Impotency of the respondent.
◦ Consent to marriage obtained by Fraud or Force
◦ Pre- Marriage Pregnancy.
 VALID MARRIAGE
A marriage solemnized and complying with all the conditions of Section 5.
5 conditions
Solemnization (Performance of Ceremonies)

Effects of a valid marriage:

Parties have Status of Husband and Wife and mutual rights and obligations including
inheritance rights.
Children are legitimate and inheritance rights over parental and grandparents property.
Dissolution of marriage only by divorce or death.
 VOID MARRIAGE
Provided in Section 11, HMA, 1955
◦ Any marriage solemnized after the commencement of this Act
shall be null and void and
◦ may, on a petition presented by either party thereto [against
the other party], 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.
Section 11- applies - prospectively – only to Post – Act Marriages.
(prospective operation- no retrospective effect).

◦ Use of words “marriage solemnized “after the commencement of this Act”

shall be null and void. (Act came into force on 18 May, 1955.)
◦ Pre-Act Bigamous marriages are saved. (Marriages solemnized before 18 May, 1955).
◦ As Polygamy was allowed (not Polyandry). Bigamous marriages solemnized before the
Act continue to be valid.
◦ Bigamous marriage solemnized after the Act came into force- are null and void.
 Marriage -Void ab initio

A void marriage is void an initio- null and void from the very beginning.
No need to get declared null and void from court of law.
But if parties desire -may get a decree of nullity.
Optional. May obtain decree for the sake of record-to avoid subsequent complications- a mere
declaration by court as to nullity.
Ancillary reliefs can be given in nullity proceedings- spousal maintenance/custody of children.

Why called marriage?- As two Hindus solemnized marriage with proper ceremonies.
If no proper ceremonies are performed? – NO MARRIAGE AT ALL. (Neither valid,
nor void, nor voidable- as no solemnization).
 Effects of Void Marriage
No Legal Effects/Consequences.
No status of husband and Wife-
◦ no mutual rights/liabilities between husband and wife.
◦ No inheritance rights.
◦ Parties free to marry elsewhere.
But children are legitimate. (By virtue of S. 16, HMA, 1955-
◦ Statutory Legitimacy conferred.
◦ Children only entitled to inheritance over parental property (self-acquired or
ancestral share) and not from the property of Grandparents or other relatives.
 Who can apply for nullity?
Question: Who can file for nullity?
Wether the first wife or the Second wife?
◦ Only Second wife can apply for nullity under S. 11.
◦ Not the first wife.
◦ Use of The words “either party thereto- against the other party.”

◦ Remedies before the First wife?

◦ Can file a regular suit for declaration of the nullity of the second marriage of her
husband. (Under Specific Relief Act and CPC- S. 34, SRA 1963 Read with S. 9 CPC)
◦ Can file an injunction to restrain the husband from contracting a second marriage.
 GROUNDS FOR VOID MARRIAGE

Violation of Section 5 Clause (i), (iv) and (v) -

◦ Bigamy
◦ Marriage between persons within degree of prohibited
relationships
◦ Marriage between persons related to each other by sapinda
relationships.
 VOIDABLE MARRIAGE

Section 12- Voidable Marriage

(1) 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:-
(a) that the marriage has not been consummated owing to the
impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified
in clause (ii) of section 5; or
(c) that the consent of the petitioner, …was obtained by “force” or
“by fraud as to the nature of the ceremony or as to any material
fact or circumstance concerning the respondent”; or
(d) that the respondent was at the time of the marriage pregnant by
some person other than the petitioner.
 Section 12- Sub Section (2)
(2) Notwithstanding anything contained in sub-section (1), no petition for
annulling a marriage-

(a) on the ground specified in clause ( c ) of sub-section (1) (ground-consent

obtained by fraud or force) shall be entertained if-
(i) 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
(ii) 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;
no petition for annulling a marriage-
(b) on the ground specified in clause (d) of sub-section (1) (ground-pre-
marriage pregnancy) shall be entertained unless the court is satisfied-
(i) that the petitioner was at the time of the marriage ignorant of the facts
alleged;
(ii) 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
(iii) 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.
 Voidable Marriage
A marriage is voidable on the grounds mentioned in S. 12.
Nature of voidable marriage?
Valid for all purposes so long as not avoided.
Valid and subsisting unless declared by court as a nullity u/Sec. 12,
HMA. (not void an initio)
Petition for nullity under Sec. 12 is mandatory.
Formal Declaration of Nullity required.
 Retrospective Effect of Section 12

Use of words “any marriage solemnized whether

“before or after the commencement of this Act” shall be voidable…
Applies to both Pre- Act and Post- Act Marriages- such marriages
can be declared null and void under S. 12 on the grounds mentioned.
Distinct from Void Marriage – S. 11 – (S. 11 - prospective effect).
 Legal Effects of Voidable Marriage

Valid until declared formally as annulled by court on petition of party.

Effects before declaration as nullity- All consequences of a valid marriage.

Valid –parties have status of husband and wife - Cannot marry elsewhere unless the
marriage is declared null and void- if marry- would attract bigamy.
Status of Children before declaration of Nullity- Children legitimate and inheritance
rights from parents and other relatives (before declaration as nullity).
Effects after Declaration as Nullity –

After declaration as Nullity – Children legitimate (by virtue of S. 16,

HMA- statutory legitimacy) but only inherit property from their
parents and not other relatives.
 After annulment- parties cease to be husband and wife- no mutual rights
of inheritance- free to marry elsewhere.
 Grounds- 1. Non Consummation of marriage due to
Impotency of the Respondent

S. 12 (1) (a)- Marriage not consummated, and Such non-

consummation was due to impotence of the respondent.
Voidable at the instance of non- impotent spouse.
Consummation of marriage- means- full and complete
sexual intercourse (coitus) between parties to the marriage.
 Impotency
Impotency – inability to have complete normal sexual
intercourse.
Legal meaning of Impotency:
A physical or mental condition which makes consummation
of marriage a practical impossibility. (Digvijay Singh v.
Pratap Kumari AIR 1970 SC 137).
Impotency may arise due -
Physical defects (Physical Impotency) –
Inability to perform sexual intercourse due to some physical defects
like structural defects in sexual organs, lack of sexual organs,
incapacity to have an intercourse in a normal way.
Psychological barriers (Psychological impotency)
Emotional, psychological or moral repugnance or aversion to sexual act amounts to
psychological impotency.
Shantabai v. Tarachand (AIR 1966 MP 9)- Wife had normal sexual organs but she had
an absolute repugnance (intense disgust) towards sexual intercourse. Held that it
amounted to impotency.
Absence of uterus does not amount to impotency.
Whether Barrenness amounts to impotency? -Mere inability to beget
children does not amount to impotency or
the incapacity of a husband to father a child does not amount to impotency.
Absence of female organ or male organ amounts to impotency as it makes
consummation of marriage an impossibility.
Sexual dissatisfaction shall not amount to impotency. Impotency is inability
to have sexual intercourse.
 Shewanti v. Bhaura (AIR 1971 MP 168)

Wife was sterile (incapable of begetting children)

but she was capable of having sexual intercourse.
Held – she was not impotent. Nullity of marriage
denied.
A single act of sexual intercourse after marriage
may amount to lose of remedy under section 12.
If impotency curable by medical treatment or
surgery – does not amount to impotency unless the
respondent refuses to undergo treatment.
 Rajendra Prashad v. Shanti Devi (AIR 1978 P
& H 181)

Wife’s sexual organ was small- she got it operated

before marriage- and she was fit for intercourse.
Nullity petition filed by husband was dismissed – on
ground - that whatever might be her position before
marriage- she was now fit to consummate the
marriage.
 P. Vs. K (AIR 1982 Bom 400)
Held: Consummation means having sexual intercourse in a normal way. If the
condition of the spouse is such as to make intercourse imperfect, it would amount to
impotency.
Facts: The wife was suffering from prolapse of uterus because of which the intercourse
was possible only after manipulation with hands.
Held, the sight of protruding uterus is more likely than not to cool down the desire of
husband to perform the sexual act resulting in frustration.
Intercourse which demands previous manipulation of the uterus before penetration cannot
be said to be a normal intercourse.
 Second Ground- Incapacity to give consent –due to Unsoundness of
Mind/Mental disorder/ Recurrent attacks of Insanity
S. 12 (1) (b)

To attract this ground, these conditions must exist ‘at the time of marriage’.
Post marriage unsoundness of mind is a ground of divorce.
Ground is available to both the parties.
Incapacity to consent would render the marriage voidable but non – consent
does not render the marriage void or voidable.
 R. Laksmi Narayan v. Santhi AIR 2001 SC 2110

Held: For proving that a wife is unfit for marriage and procreation of
children due to a mental disorder, it is to be established that the ailment
suffered by her is of such a kind and to such an extent that it is impossible
for her to lead a normal married life.
The standard of proof is strict.
Such an inference cannot be drawn from the mere fact that the wife had
undergone some treatment for some mental problem before marriage and
there was no cohabitation for a short period of one month during which the
parties stayed together.
 Consent obtained by Fraud or Force S. 12 (1)
Consent obtained by Force or Fraud:
Force- actual use of force or threat to use violence.
Fraud with regard to
 As to the ‘Nature of Ceremony’, or
 As to any ‘material fact or circumstance concerning the respondent’
 Petition must be presented within One year- from cease of force or
discovery of fraud.
 The petitioner must not have lived, with his/her free consent, as
husband/wife with the respondent after such cease or discovery.
 Fraud
Fraud is not defined in HMA. S. 17, Indian Contract Act defines Fraud.
Before 1976 word ‘Fraud’ was used. After 1976 amendment in the HMA,
Fraud was qualified by words ‘as to the nature of ceremony and as to any
material fact concerning the respondent.’
‘Fraud’ under S. 12 (1) (c) means deception or misrepresentation.
S. 12 (1) (c) does not use the words “at the time of marriage” - not
necessary that the fraud must be committed at the time of solemnization of
marriage. It can be committed during the marriage negotiations.
 Nature of Ceremony

Respondent takes petitioner to Arya Samaj temple

and tells her that shuddi ceremony is being
performed while actually it was a marriage
ceremony,
It amounted to fraud as to the nature of ceremony.
 Material Fact or Circumstance
Vital and important facts having tendency to influence the mind of the party
to give consent or to withhold consent to marriage.
The fact must be material as well as related to the respondent and no other.
Fraud is – where a man causes another to act on a false belief by a
representation which he does not himself believe to be true. (suggestio falsi-
false representation) or
where there is a suppression of a material information. (suppresio veri-
non-disclosure of a fact).
 Babui Panmato Kuer v. Ram Agya Singh, AIR 1968
Pat 190.
Misrepresentation (false suggestion- suggestion falsi) as to the age of
the bridegroom made to the mother who acted as an agent and the
daughter consented for the marriage believing the statement to be true.
Held that the consent was vitiated by fraud.
Bridegroom was of around 60 years of age but was represented as
between 25-30 years of age.
Also held that it is not necessary that the consent has been obtained
by fraud at time of marriage. Such requirement is not there in S. 12 (1)
(c).
 Sunder Lal Soni v. Smt. Namita Jain, AIR
2006 MP 51

Non-disclosure of age (Suppresio Veri) and factum of

having major children by husband at the time of marriage
amounts to fraud and suppression of material facts having
bearing on marriage.
Husband was of the age of 55 years of age and had 5
major children.
 Saswati Chattopadhyaya v. Avik
Chattopadhyaya (2007) (Cal. HC)

Non – disclosure of Pre- Marital status of the

bride (appellant) have been held to be a fraud
under S. 12 (1) (c).
 Leelamma v. Dilip Kumar AIR 1993 Ker 57

Kerala HC held that concealment of One’s religion

amounts to Fraud under section 12 (1) c).
It is a material fact concerning the respondent.
 Unchastity – A Ground for nullity?
Surjit Kumar Harichand v. Smt. Rajkumari AIR 1967 P H 172

P & H Court holding that, Unchastity is not a ground of nullity of marriage, observed:

“Chastity, it is said, is a mere personal quality, and its non-existence at the time pf the marriage does not
amount to absence of an essential condition of the marriage relation. Moreover, it is declared, prenuptial
unchastity does not necessarily prevent the woman from becoming a faithful wife or from performing her
part in the bearing of off spring, and to consider misrepresentation in regard thereto a ground for
decreeing nullity of marriage would be inconsistent with reason and sound policy…”
 S. Khushboo Vs Kanniammal & Anr.(SC, 2010)

Hon’ble Supreme Court has finally settled the controversy on pre-marital sex by holding that –

“while it is true that the mainstream view in our society is that sexual contact should take place
only between marital partners, there is no statutory offence that takes place when adults
willingly engage in sexual relations outside the marriage setting, except for ‘adultery’ as
defined under Section 497 IPC.”

Note: Now adultery (Post Marital-Sexual Intercourse with another person other than the
spouse) is not an offence under S. 497 IPC. (Case: Joseph Shine v. U.O.I (2018/SC). It is only a
ground for divorce under Hindu Law.
 Bar To Relief- S. 12 (2)
Petition for nullity to be filed within 1 year from the discovery
of fraud and cease of force.
Statutory bar (limitation). Cannot be extended.
In Nanikaram v. Drupadiberi AIR 1974 Guj 111
Held: Bar contained in S. 12 (2) (i) is a statutory bar and once the
period of one year expires, the period for filing the petition cannot
be extended.
 Pre-Marriage Pregnancy of Wife
S. 12 (1) (d)
Respondent (wife) was pregnant from some other person other than the
petitioner.
Essentials:
 Wife pregnant at the time of marriage
 Pregnant from some other person other than the petitioner (husband).
 Husband must be ignorant of this fact of pregnancy at the time of marriage.
 Petition must be filed:
 The husband has had no marital intercourse after the discovery of the pregnancy of the wife.
 In case of pre Act-Marriage- within 1 year from the date of commencement of this Act
 In case of post-Act marriages- within 1 year from the date of Marriage.
Suppression of fact (suppresio veri) as to pre marriage-
pregnancy – special case of fraud- kept in a separate category
under clause (d).
Proof of Pregnancy:
◦ By admission of parties and non access by the husband to the
wife –sufficient to establish pre-marriage pregnancy.

◦ The burden of proof is on the petitioner to prove pre-marriage pregnancy

and he will also have to prove that he did not cause the pre marriage
pregnancy.
 Mahendra Nanavati v. Sushila Nanavati AIR 1965
SC 364

◦A child was born within 171 days of marriage by

a normal delivery.
◦SC held that the child was not child of the
husband. Marriage declared annulled.
Thank you