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Annulment of Marriage V. Divorce

By Shruti Agrawal July 29, 2016

For a marriage to be valid there are certain conditions that need to be fulfilled. Such specific requirements are legally recognised under section 5 of the Hindu Marriage Act, 1955.

A marriage can be invalid either from the beginning (void marriages) or it can be made invalid from the time annulment is sought by either spouse (voidable marriages). For void marriages no formal annulment is necessary and is automatic which means one does not need to go to the court and ask for a decree of annulment.

Such grounds for void marriages are-

  • Bigamy
  • Prohibited relationships
  • Sapinda relationship

Grounds which need to be proved by the spouse seeking a decree of annulment are-​

  • Inability to consummate the marriage-  If either of the spouse is unable to have sexual relationship due to impotency of the other spouse
  • Consent- If either of the spouse was incapable of giving valid consent at the time of the marriage due to unsoundness of mind
  • Mental disorder- If either of the spouse was suffering with a mental disorder at the time of the marriage due to which he or she can be said to be unfit for marriage or procreate children
  • Insanity or epilepsy- If either of the spouses suffered from recurrent attacks of insanity or epilepsy then it serves as a ground for annulment.
  • Under the age of consent- If either of the spouses was under the legal age of consent – Male 21 years and female 18 years- then annulment can be sought. However, if cohabitation asa couple continues voluntarily after the person has attained the age of consent then marriage becomes legally binding.

Section 12 of the HMA, 1955 give grounds on which marriage is specifically voidable.

These grounds are-

  • Impotency- if either of the spouse has physical inability to have sexual relationship in the marriage and due to that inability no sexual relationship is there between the husband and wife then a suit for annulment can be filed by the aggrieved spouse. However, such impotency must continue to exist at the time of filing of the suit.
  • Consent obtained by fraud – If at the time of marriage either of the spouse was misled or induced or deceived for instance if A was told to get married to B but he got married to C then this results in fraud
  • Forced consent- If consent of either of the spouse was obtained through force – by the use of threat or physical force then such forced consent is a valid ground to seek annulment.

(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)

  • Concealment of material facts- If any material fact such as the status of the parties, age, or past is concealed by either of the spouse then it is a valid ground for divorce by the aggrieved spouse. (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease)
  • Pregnancy- If at the time of the marriage the respondent was carrying a child of some person other than the petitioner and this fact was not known to him then it is the right of the petitioner husband to seek annulment. However, this right is forfeited if marriage is consummated after he came to know of the fact.
  • - A suit for annulment can only be filed within one year of the solemnisation of marriage and

not beyond that.

Intercourse between the couple must not have taken place after the grounds of the decree is discovered.


Another way to end a marriage legally is by filling a suit for divorce. Divorce dissolves the marriage which was legal or valid in the eyes of the law. The grounds to obtain divorce are provided under section 13 of the Hindu Marriage Act, 1955. These grounds can be categorised into (i). fault disability –which only the aggrieved spouse may avail, (ii). break down- which either the aggrieved or the guilty spouse may avail and (iii) special grounds which only a wife can avail.

Fault disability grounds are-

  • Adultery- if after the solemnisation of the marriage either of the spouse had voluntary sexual intercourse with some person other than his or her spouse
  • Cruelty- If the aggrieved spouse was treated with cruelty
  • Desertion- If the petitioner was deserted for a continuous period of 2 years immediately preceding from the date of filing of the suit.
  • Renunciation of the world or conversion- if either of the spouse has renounced the world or has converted to a religion other than Hinduism then it can be a ground for filing a suit for divorce
  • Mental disease or unsound mind- the respondent is suffering from an incurable mental disorder or unsoundness of mind and the petitioner cannot be reasonably expected to live with that person
  • Virulent or incurable form of leprosy
  • Communicable venereal disease
  • Presumption of death(Not heard alive for more than 7 years)- If the respondent is not heard of being alive for more than seven years by those persons who would have naturally heard of it


Grounds on break down theory-

  • No resumption of cohabitation- If there has been no resumption of cohabitation for a period of one year or upwards after the passing of decree of judicial separation or from the date of passing of a decree for restitution of conjugal rights.

Additional grounds for divorce for wife-As per section 13(2)

  • Bigamy
  • Husband is guilty of rape, sodomy, bestiality after the marriage
  • Cohabitation between the parties had not been resumed : where a wife obtains a decree or order for maintenance either under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973 if cohabitation between the parties had not been resumed for one year or upwards after the decree, can avail herself of this provision for obtaining divorce, notwithstanding that she was living apart
  • Repudiation of marriage before attaining 18 years of age- A wife who was married before she had attained the age of 15 years, , and who had repudiated the marriage after attaining that age but before attaining the age of 18 years may file a suit for divorce.

The advantage of obtaining an annulment over divorce is that the parties can legally say that they were never married to each other. A court can also not order any spousal support in case of annulment unlike the decree of alimony or maintenance under divorce.However, in comparison to a Divorce petition the number of cases filed for annulment are few in number mainly because of lack of awareness of annulment and because of the lengthy procedure as the aggrieved spouse needs to prove all the allegations in the court which sometimes becomes difficult to prove.



Image Credits:


Neha Agarwal (Campus Law Center - Delhi University) 

Tags: ANNULMENT V. DIVORCE , grounds for annulment , grounds for divorce , break down theory , indian law , Section 12 of the HMA , section 13 of HMA , family law , hindu marriage act , 1955

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