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Nullity of Marriage under the Hindu Marriage Act,1955

A unition between a man and a woman that defines and establishes certain rights and duties between the two respective parties is termed as a marriage. Marriage is a socially and religiously recognized act that has strong roots in the religion of Hinduism. The man and the woman bound in this union are called husband and wife respectively.

Marriage is a contract between the two, that is, the husband and wife and it is a contract that enables them to live together harmoniously. The contract of Marriage is a Sacrament (Samskara) and the marriage solemnizes two unique individuals for life, so that they can pursue their dharma (duty), Artha (possessions), fulfil their Kama (physical desires), and finally attain their Moksha (ultimate spiritual release) together.

The concept and practice of marriage is the basis of social organization and the foundation of important legal rights and obligations. It is an oath between two people to stay together and uphold traditional family values in accordance with the practice of Dharma. It is a tradition that brings about the union of two families. In the traditional and older form of the Hindu system of marriage, there is no significant role for the state in the affairs of marriage, as a marriage remained a private affair within the social realm.

Marriage in Hinduism is one of the most important transitional point in one�s life and it is the most important of all the Hindu samskaras that exist within the religion of Hinduism.

The concept of Annulment, however is a thorny and shunned remedy that is a practice that is avoided in most circumstances. Annulments are very rarely bestowed to people and when they are granted very specific circumstances must exist. An Annulment, when observed tends to be more a creature of religion than of law.

The tradition of marriage is a sacred relationship but it is a complex sacrament. The complexities of this concept and by its development in the society, the concept of the Nullity of Marriage came to life.

In our country, a Marriage is a religious establishment which is considered as an important essential for the progress and development of our general public while the practice of divorce or annulment is intensively judged upon and it is a practice that faces a lot of stigma and discrimination and is subconsciously regarded as a sin in the eyes of society.

Introduction to Annulment of Marriages

An Annulment is the legal procedure through which a marriage can be declared as null and void. A marriage requires certain legal requirements that need to be fulfilled at the time of the marriage and if these legal requirements are not met then the marriage is considered to have never existed in the eyes of the law and the process to obtain a declaration of nullity is called an annulment.

An annulment refers to the procedure of making a voidable marriage null and non-existent; and if the marriage is void from the beginning(void ab initio), then it is automatically null and void, but there is a need to procure a legal declaration of nullity to establish this and this can be obtained by filing your grievances at a respective court.

A void marriage is one which is already considered as a non-existent marriage in the eyes of the law whereas a voidable marriage which is a completely different concept is a marriage which can be declared as invalid by the court on the petition of either one of the concerned parties to such a marriage.

The court has the power to declare a marriage void or voidable and it will do so under the guidance of Section 11 and 12 respectively, of the Hindu Marriage Act, of 1955 and when a court declares that a marriage between two people is invalid, the marriage is said to be nullified.

Sadly though, Annulments are rarely granted and when they are, they are granted only cause of bigamy or not meeting the minimum age requirement for marriage. This is because of the stigma behind the concept and practice and the hope we as Indians have in our moral value that a difficulty or complication endured in the marriage will be overcome through talking, religion and family interference.

It is very important to remember , that the concept of annulment is very different from a divorce. A divorce dissolves a marriage that has existed, while an annulment annuls a marriage that never existed at all. Thus unlike divorce, an annulment is retroactive because an annulled marriage is considered never to have existed at all.

Grounds For Annulment

Now the question arises when would a marriage be called illegal or void or voidable?
The grounds for a marriage to be annulled may vary according to the different legal jurisdictions present within our legal framework, but are in general limited to bigamy, fraud, mental incompetence and blood relationship and will also including the following:
  • If one of the spouse was already married to someone else at the time of the marriage in question
  • If one of the spouse was under the legal age to get married, or is too young without the required court or parental consent.
  • If one of the spouse was intoxicated or under the influence of drugs at the time of the marriage.
  • If one of the spouse was mentally incapacitated due to a mental illness at the time of the marriage.
  • If the consent of one of the parties in the marriage was procured on the basis of coercion or fraud or force.
  • If one of the spouse is physically incapable to consummate the marriage that is they are unable to have sexual intercourse at the time of the marriage.
  • If the marriage is prohibited by law due to the relationship between the two parties. This is termed as the "prohibited degree of consanguinity", and it refers to the presence of a blood relationship or the presence of a common lineal ancestor between the two respective parties.
  • If one of the spouse is a prisoner, who is sentenced to a term of life imprisonment, such a person cannot marry.
  • If a fact is concealed and that fact can hamper the integrity of a marriage for example one of the parties has a drug addiction that they have concealed, or a prior criminal record or the possession of a sexually transmitted disease.

Established in the Section 5 of the Hindu Marriage Act, of 1955, there are some very important conditions laid down by the act for a Hindu Marriage which must be fulfilled prior to the solemnization of any marriage ,and if these criteria are not met the process of annulment can be initiated by the concerned or afflicted party.

A marriage may be solemnized between any two Hindus, if only the following conditions are fulfilled and they are as follows:

  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 of 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 or epilepsy;
  3. The bridegroom has completed the age of twenty one years and the bride the age of eighteen 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.[1]

Void Marriages

A marriage is that is declared as automatically void and is automatically annulled as it is prohibited by law is known as a void marriage. Section 11 of the Hindu Marriage Act, 1955 deals with the Nullity of marriage and divorce and defines the term void marriage as follows.

A marriage which has been solemnized after the commencement of the Hindu Marriage Act shall be null and void, on a petition filed by either one of the grieved party, against the other party, and it shall be declared as null and void by a decree of nullity if it contravenes or is in conflict with any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 as stated in the Hindu Marriage act.

Section 5 clause (i):

Neither party has a spouse living at the time of the marriage;[2]


If any one of the parties to a marriage already has another spouse living at the time of marriage, the marriage shall be considered as null and void and no formal annulment is necessary.

Section 5 clause (iv):

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;[3]

Prohibited degree marriages:

A marriage between two people of prohibited degree relations is void unless the customs and usages allow it. Any marriage between a descendant and his or her ancestor or between two siblings, or whether the relationship is by a half blood or whole blood bond or by adoption, any such marriage would be void ab initio and null in legal eyes.

Section 5 clause (v):

The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.[4]

Sapindas- Any marriage between two parties who are sapindas of each other is void unless allowed by customs and usages. A marriage where the relationship between the two parties is connected by half blood or the whole blood, will be null and void except those marriages permitted by established customs.

Sapinda relationship talks about a relation to any person that extends as far as the third generation in the line of ascent through the mother, and the fifth through the father, the line being traced upwards in each case from the person concerned, which is to be counted as the first generation. Two people or concerned parties are said to be sapindas to each other if one is of them is a lineal ascendant of the other within the limits of sapinda relationship with reference to each one of them.

Voidable Marriages
When certain requisite elements of a marriage contract are not fulfilled at the time of the marriage, a marriage is rendered that can be established as a null marriage with the power of the court, on the petition of a concerned party and this is called as a voidable marriage. In a voidable marriage, an annulment is not automatic and must be sought by at the option of one of the afflicted parties.

If the intent to enter into a civil contract of marriage was not present at the time of the marriage, either due to intoxication, mental incapacity or fraud then an annulment can be sought after. A voidable marriage unless averted by either party to the marriage, will have all the legal consequences that is present in a valid marriage and will have the same title under the eyes of the law as that of a valid marriage. Marriages can be held voidable by the decree of nullity by the court under the Section 12 of the Hindu Marriage Act, 1955.

Section 12 of the Hindu Marriage Act:

  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:

    1. that the marriage has not been consummated owing to the impotency of the respondent; or
    2. that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
    3. that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian 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
    4. that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
  2. Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage:

    1. On the ground specified in clause (c) 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;
    2. On the ground specified in clause (d) 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 the said ground.[5]


If any one of the spouse is physically incapable of consummating a marriage, usually because of the lack of ability to have sexual intercourse, and if this inability appears incurable or if the spouse refuses to take any action or refuses to undergo any treatment to cure the inability, then there are grounds for an annulment that can be pursued.

The sexual incapacity must continue to exist at the time of the suit. A party is considered to be impotent if their mental or physical condition makes the consummation of marriage an impossibility.

In the case of Laxmi Devi v. Babulal[6], the wife in this situation had no vagina at all, although by surgical intervention an artificial vagina was inserted, the husband in this scenario is completely within his legal right to file for an annulment.

Lack of Mental Capacity:

If a marriage is in conflict with the conditions specified in clause (ii) of section 5, that is at the time of the marriage, a party was incapable of giving a valid consent to the union because of the consequence of unsoundness of mind, or if even if they were capable of giving a valid consent, the party has been suffering from some kind of mental illness, that is to such an extent that renders the afflicted to be unfit for marriage and unfit for the procreation of children or the party has been subject to recurrent attacks of insanity, then the marriage has reached the crossroads of voidability and the concerned party can file for an annulment.

If the court finds and establishes that either one of the spouse did not have the capacity and ability to understand the nature of the marriage contract or the duties and responsibilities of the marriage contract, then the annulment will be bestowed to the grieved party. However, if the spouse who at an earlier time did not have the ability to understand the contract later on gains the capacity to understand it and freely lives with the other spouse, then this ground will not apply.

In the case of Pronab v. Krishna[7], it was held in this case that Schizophrenia which is a type of a mental disorder is a ground for making a marriage as null and void.

Under the Age of Consent:

The legal age to get married in India for boys is 21 years and for girls is 18 years any marriage in which either one of the parties is under the legal age as stated in the legal framework, can be annulled. A marriage by an underage party can become incapable of an annulment and legally binding after the concerned person has reached the age of consent, and the cohabitation of the parties as husband and wife, during the period continued under free will and on their own choice.

In the case of Jitender Kumar Sharma Vs. State of Delhi and another, the court decided that the girl who was underage when getting married could proceed to live with her husband as her life was in danger if she was forced to return to her parent�s house.

Fraud or Force:

If the consent of one of the parties to a marriage was obtained either by coercion or force or through fraud, and by not meeting the criteria of consent as stated under section 5 of the Hindu Marriage Act, then the grounds for an annulment can be established. If the spouse who has been deceived or coerced or threatened in relation to the marriage continues to live with their respective spouse after the discovery of the deception or the fraud or coercion. it is a possibility that this ground will not apply.

In Anurag Anand v. Sunita Anand[8], the court held and stated that any false information in a bio data based upon which the marriage was solemnized will amounts to fraud and the marriage may proceed to be annulled by the aggrieved party.

Unbeknownst Pregnancy:

If a spouse is pregnant with a child and the father is not the husband and the husband was unaware of such a pregnancy, the spouse is within the rights to file for an annulment.

A petition for annulment under Section 12 for nullity of a voidable marriage shall be allowed only if the following few conditions are fulfilled:

  1. The petition should be filed within one year of the practice of force or fraud and discovery of the same
  2. The petitioner, at the establishment of the marriage, should not have had knowledge of the fact alleged in the petition.
  3. The petition should be filed within one year from the time when parties got the knowledge of fact alleged.
  4. The parties should not have been sexually involved with each other since the fact alleged had been discovered.

Rights of Children From Annulled Marriages

Section 16 of the Hindu Marriage Act after the amendment act of 1976, states that the children born, before or after the commencement of the Act, out of a voidable or void marriage is legitimate, to reiterate children conceived from an annulled marriage are legitimate. The court will also have the ability to establish rights and obligations in relation to the children from such marriages.

In the case of Parayan K. Amma v. K. Devi [9], the court stated that the amendment act has conferred the status of legitimacy on the children , and those who are not awarded the title of legitimate children, will be treated as a bastard, but still will have the ability to inherit the property of their father as stated under Section 8 of the Hindu Succession Act, 1956.

Section 16 of the Hindu Marriage Act, 1955:

Legitimacy of children of void and voidable marriages
  • Notwithstanding that a 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 a child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of the marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
  • 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 notwithstanding the decree of nullity.
  • 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.[10]

Thus as seen above, children from these marriages will be regarded in law as legitimate children for all purposes including succession. In the case of Sarda Ram v. Durga Bai[11], it has been established that children of these marriages can inherit the separate property of their father as sated under the Section 8 of Hindu Succession Act, but they have been given no birth right to claim any right in the coparcenary entities of their father and cannot also inherit from the Hindu Joint Family Property.

Precedents established by cases within the Indian Legal Framework:

In the cases of Lila v. Laxman[12], it was held by the Allahabad High court that a null and void marriage does not need a decree of nullity as it was already perceived as a faux marriage in the eyes of the law. A decree passed for a void marriage is only a mere declaration of nullity of the marriage. The court and the decree only establishes the fact clearly that there was no marriage between the parties.

In the case of Yamunabai Anantrao Adhav v. Anantarao Shivram Adhav[13], it was held that a marriage which is in conflict with the section 11 of Hindu Marriage Act, 1955 shall be treated as null and void from the time of its inception.

In the case of C.S. Rangabhattar v. C. Choodamani[14], the Andhra Pradesh High Court held that when a husband continues to live with his wife even when he is aware of the wife�s pregnancy at the time of marriage, he cannot file a petition for annulment of marriage.

In the case of Bassappa v. Sidhagangamma[15], it was established by the Karnataka High Court that a wife whose marriage has been declared null and void because it was in conflict with Section 5 (i), (iv) or (v) of the Hindu Marriage act is not entitled to claim any form of maintenance of any form as she does not have a legal status of wife under Section 18 of Hindu Adoption and Maintenance Act, 1956.

In the case of Moina Khosla v. Amardeep Khosla[16], the husband was not capable of consummating the marriage on multiple attempts and failed to have sexual intercourse with his wife and was incapable of interacting much with females. It was held by the court that the wife was entitled to a decree of nullity of marriage.

In the cases of Dr.Shrikant Adya v. Smt. Anuradha[17], the Karnataka High Court held that if a husband is not able to lead a healthy sexual life, it would amount to mental cruelty to the wife and she can file a petition for the annulment of the marriage.

In the case of Gayatri Bai v. Pradeep Kumar Chourasia [18], the Court defined the term impotency as a practical impossibility to perform sexual intercourse completely and stated that complete sexual penetration is an important criteria for ordinary intercourse but the satisfaction and pleasure obtained by the parties is irrelevant to this definition.

In the case of Smt.Sariabai v. Komalsingh [19], it was held that a petition for annulment after eight years of marriage is barred by statute of limitation and cannot be entertained.

An annulment is a legal procedure which nullifies a marriage between a man and a woman. Annulling a marriage simply erases the fact of this marriage from the records legally. It basically declares that the marriage was never valid and never technically existed. Prior to the enactment of the Hindu Marriage Act, 1955 , parties to such a marriage had no remedy or method of reform to get out of such a marriage which is in the end a burden for both of them.

To provide a form of a reform and solution, the Act was established and the concept of Nullity of Marriage was enacted while keeping in mind the religious sentiments of the citizens of our country. Hence, Section 11 and 12 of the Act is a remedy for parties who are in a voidable or void marriage.

The concept of Annulment of marriage is very important in the foundation of matrimonial laws as there is no point in carrying the burden of divorce in cases where marriage has been solemnized and established on the strength of fraud or where the marriage is established despite the fact that the one of the spouse was already married.

With the establishment of the Amendment Act, 1976, children born out of a void or voidable marriage are also awarded a title of legitimacy, which is a blessing for such children. Annulments are very important for the growth of the society as it allows for the growth of the human being which in turn allows for a harmonious and beautiful society.

  1. The Hindu Marriage Act, 1955
  2. The Hindu Marriage Act, 1955
  3. The Hindu Marriage Act, 1955
  4. The Hindu Marriage Act, 1955
  5. The Hindu Marriage Act, 1955
  6. AIR 1973 Raj 89, 1972 WLN 463.
  7. AIR 1975 Cal 109, 78 CWN 448
  8. 1997 IAD Delhi 37, AIR 1997 Delhi 94, 65 (1997) DLT 1037, II (1996) DMC 389, 1997 (40) DRJ 68
  9. 1996 AIR 1963, 1996 SCC (4) 76
  10. The Hindu Marriage Act, 1955
  11. AIR 1987 Bom, 285
  12. 1978 AIR 1351, 1978 SCR (3) 922
  13. 1988 AIR 644, 1988 SCR (2) 809
  14. AIR 1992 AP 103, 1991 (3) ALT 278
  15. II (1992) DMC 167, ILR 1992 KAR 1798, 1992 (2) KarLJ 357
  16. AIR 1986 Delhi 399, 1986 (10) DRJ 286
  17. AIR 1980 Kant 8, ILR 1979 KAR 2332, 1980 (1) KarLJ 101
  18. II (1998) DMC 211
  19. AIR 1991 MP 358, II (1992) DMC 44, 1992 (0) MPLJ 276

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