Annulment versus Divorce are seemingly the same but in fact, have different meaning and scope under the law. It’s like identifying a non-existing relationship vs bringing the relationship to end.
Something can only be dissolved if it was in existence ever and which was not there in its life and form, the question of dissolution doesn’t arise. In terms of a marriage accordingly, it can end up in dissolution /divorce only if the marriage existed earlier legally. Under a number of statutes in India, the procedure of divorce has been laid out in case a valid marriage reaches to a stage of discord and disharmony. The court in case of valid marriages upon appreciation of facts produced, can award a decree of Divorce.
But what if, the very circumstances and facts does not constitute a valid marriage in first place? What if the marriage has taken place at gun point, fraud or in contravention to any set norms of a religion? These marriages have no legal existence and can be adjudged null and void by the courts upon production of evidences material to the marriage.
In theory and practice, there could be two scenarios of marriages entered on illegitimate grounds, depending upon the degree of the wrongs involved. One, where there has been an outright breach of law with malafide objectives another, where illegal means have been used but the objective is not to put another partner in any disadvantageous position. In legal terms, the former can be termed as void marriage while, the latter as voidable. The court in case of void and voidable marriages, upon appreciation of facts produced, can award a decree of nullity.
On the face, divorce and annulment might look similar as both of them deal with termination of marriage but the implications of both the processes are different.
Decree of annulment is pronouncement by the court to the effect that there did not exist any marriage between the petitioner and the respondent. Decree of Divorce is the pronouncement by the court to the effect that a valid marriage earlier stands dissolved now but the either spouses are bound to be governed by the law of rights to property and maintenance.
While making prayers for the decree of annulment, the petitioner challenges the validity of the marriage. In case of divorce, the petitioner only prays for putting union to an end but does not challenge the marriage per se. Annulment can be differentiated from Divorce on the following lines:
Differentiating Annulment from Divorce
| Annulment | Divorce |
|---|---|
| Applies to marriages which were either void or voidable | Applies to marriages which were legally valid |
| Conditions of rendering void /voidable should exist at the time of marriage | Conditions to frustrate the purpose of marriage should arise after marriage |
| Aim is to declare a marriage null & void which was never valid | Aim is to put an end to union of marriage that was based on trust & harmony |
| After the annulment, the status of the party becomes single or unmarried with no strings attached. | The parties become divorced and obligated for compliance of conditions after divorce |
| After the annulment of marriage, no duties or obligations arise | Divorce may obligate share in property and or alimony depending upon the case. |
| Rare instances of marriage termination are seen through annulment | Large number of marriage termination are seen through Divorce |
From the above discussion, it is obvious that in order to understand Annulment of marriage void & Voidable marriages have to be identified. Similarly, to understand Divorce in its totality, the grounds recognized under the statutes have to be looked into.
Annulment Under Various Statutes
1. Hindu Marriage Act 1955 [HMA]
The HMA applies to same religion marriages between two individuals of Hindus, Buddhists, Jains & Sikhs regardless of sects thereunder AND convert or re-convert to Hindus, Buddhists, Jains or Sikhs. For annulment of marriages under this Act we need to identify the instances of Void and Voidable Marriages.
1.1. Void Marriages Under HMA
Void marriages under HMA have been dealt with, under section 11 of the act.
Section 11 reads: “ 11. Void marriages.—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.”
What the section says is that marriages would be null and void on the grounds of violation of clauses (i), (iv) and (v) of section 5 of HMA. And further, on petition if the court holds that there are contraventions of said clauses can issue decree of nullity. Basically, the section 5 lays down conditions for a valid marriage under HMA, some of which conditions if violated would render the marriages null and void.
Now it becomes extremely relevant to see what the clauses (i), (iv) and (v) of section 5 say. Here are the sub-clauses so referred:
“5(i) neither party has a spouse living at the time of the marriage;”
“5(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;”
“5(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;”
Accordingly, once contravened the marriages would look like:
- Either of party has a spouse living at the time of the marriage.
- Parties fall within the degrees of prohibited relationship (Only exception is the Custom/usage governing each of them which could permit)
- The parties are sapindas of each other (Only exception is the Custom/usage governing each of them which could permit)
The spirit of the Act is indicative of the fact that there is no need to ask from the court for the declaration of nullity of their marriage. Existence of these contraventions makes the Hindu marriages void by mere operation of law. However, it is up to the either of the parties to file a petition and obtain the decree of nullity.
1.2. Voidable Marriages Under HMA
Voidable marriages under HMA are dealt with, in accordance with Section 12 of the Act. Section 12 of the HMA reads as following:
“12. Voidable marriages— (1) Any marriage solemnised, 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, 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 (2 of 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 circumstances concerning the respondent]; or
(d) 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—
(a) on the ground specified in clause (c) of sub-section (1) 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;
(b) on the ground specified in clause (d) of sub-section (1) 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 solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised 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.”
It is thus, obvious that Section 12(1) of the HMA governing the voidable marriages lays the elements of voidable marriages in the face of which an application to the court for decree of nullity can be made. subclause1(a) is non consummation of marriage due to the impotence of the respondent, 1(b) is about being incapable of giving a valid consent, 1(c) is about consent of either party OR their guardian under force or fraud 1(d) women being pregnant by another person.
The section 12(2) lays down the conditions under which only the applications for nullity making base of force/fraud and pregnancy shall be entertained by the court.
On the plain reading of the statutory provisions itself, the concept of void and voidable marriages gets clarified without any difficulty.
2. Special Marriage Act, 1954 (SPA)
The Special Marriage Act is applicable to the marriages held between two individuals of different religions staying in India and also applies to Indian nationals staying abroad. For annulment of marriages under this Act we need to identify Void and Voidable Marriages.
2.1. Void Marriages Under SPA
Section 24 of the Special Marriage Act defines Void marriages. Let’s see what section 24 requires about void marriages:
“24. Void marriages― (1) Any marriage solemnized under 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―
(i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled; or
(ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.
(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of section 15”
As obvious, the section 24(1) talks about contraventions of the clauses (a), (b), (c) and (d) of section 4 as the essential element of a void marriage under Special Marriage Act.
The section 24(2) says that registration of marriages under this act but solemnized/celebrated under different, if entered in violation of clauses (a) to (e) of section 15 may be declared of no-effect/void. However, in the spirit of section 18 that aims according legitimacy to all children born after the date of the ceremony/celebration of marriage, the marriages will not be impacted
For the purpose of clarity in respect of provisions under Section 24(2), it will be pertinent to see what Section 15 lays down. This section lays down the conditions for registration of marriages already solemnized under an Act other than SPA. And the conditions are as below:
- A ceremony of marriage has been already performed and the have been living together as husband and wife.
- Neither party has at the time of registration more than one spouse living.
- Neither party is an idiot or a lunatic at the time of registration;
- Both parties have completed the age of twenty-one years at the time of registration.
- The parties are not within the degrees of prohibited relationship
- The parties are staying within the district of the Marriage Officer for 30 days or more.
2.2. Voidable Marriages Under SPA
Section 25 of the Special Marriage Act defines Marriages which are voidable. The voidable marriages are not void ab-initio but can be rendered void/annulled at the option of the either of the party to marriage challenging the validity. Section 25 of the SPA reads as:
“25. Voidable marriages― Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if―
(i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or
(ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or
(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872):
Provided that, in the case specified in clause (ii), the court shall not grant a decree unless it is satisfied-
(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(b) that proceedings were instituted within a year from the date of the marriage; and
(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree:
Provided further that in the case specified in clause (iii), the court shall not grant a decree if―
(a) proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or
(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.”
A plain reading of the section 25 of the SPA impresses upon the circumstances for voidable marriages and include: non-consummation of marriage on account of wilful refusal of the respondent party, the respondent being pregnant at the time of marriage by the person other than the person seeking nullity, the consent for marriage has not been a free consent. There are two provisos for getting entertained the application for nullity.
The first proviso speaks about the necessity of ignorance of the petitioner of the pregnancy, filing of petition within a year after marriage and no sexual intercourse after discovering the prior pregnancy.
And, the second proviso speaks about the necessity of instituting the proceedings of nullity within a year of coercion ceasing to exist or the discovery of fraud.
3. Parsi Marriage and Divorce Act, 1936
Under Parsi Marriage and Divorce Act, there is no distinct section for void or voidable marriages. However, there is elaborate provisions of Dissolution of marriages.
There is only Section 30 under the Act that talks about suits for nullity. The section 30 of the Act reads as following:
“30. Suits for nullity— In any case in which consummation of the marriage is from natural causes impossible, such marriage may, at the instance of either party thereto, be declared to be null and void.”
What the section provides regarding the nullity is Only the decree of nullity and how it can be obtained. The grounds of seeking the nullity is non-consummation of the marriages on account of whatsoever natural causes alone. The provision has implied meaning that in any other situations man-made or natural only termination remedy lies in dissolution of marriage.
4. The Divorce Act, 1869 (Earlier, The Indian Divorce Act)
One of the most comprehensively codified personal law is The Divorce Act, 1869, that governs the Divorce and Matrimonial Causes of Christians staying in India. Prior to amendment of 2001 the term “Indian” was omitted from the original title of the Act as it was originally titled “The Indian Divorce Act, 1869”
Chapter IV of the Act covering Sections 18-26 is dedicated to NULLITY OF MARRIAGE with regard to Christian Community. Section 18 of the Act lays down that a petition seeking decree of nullity can be filed by either parties to the marriage in a district court whereas Section 19 lays down the grounds of seeking the nullity.
Section 18 of the Act reads as:
“18. Petition for decree of nullity. —Any husband or wife may present a petition to the District Court, praying that his or her marriage may be declared null and void.”
Whereas Section 19 of the Act reads as:
“19. Grounds of decree. — Such decree may be made on any of the following grounds: —
(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;
(2) that the parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
Nothing in this section shall affect the [jurisdiction of the District Court] to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.”
The provisions of the Section 19 clearly provides that a district court has jurisdiction to pass a decree of nullity on the grounds of impotency, prohibited degree of consanguinity, unsound mindedness and either of the party having a living spouse. And that its jurisdiction is not affected by the extraordinary powers of High Court which is empowered to pass decree where consent for marriage has been obtained by force or fraud.
Section 8 of the Act provides for extra-ordinary powers of High Court. The section reads as:
“8. Extraordinary jurisdiction of High Court— The High Court may, whenever it thinks fit, remove and try and determine as a Court of original jurisdiction any suit or proceeding instituted under this Act in the Court of any District Judge within the limits of its jurisdiction under this Act.
Power to transfer suits— The High Court may also withdraw any such suit or proceeding, and transfer it for trial or disposal to the Court of any other such District Judge.”
Divorce Under Various Statutes
The Divorce is a legal termination of marital ties through a series of legal proceedings. In India, divorce is governed by a couple of Acts viz. : The Hindu Marriage Act, 1955, the Special Marriage Act, 1954, the Dissolution of Muslim Marriages Act, 1939, Parsi Marriage and Divorce Act, 1936, and the Indian Divorce Act, 1869. Basically, these ACTs provide grounds which must be satisfied for a divorce to be decreed.
1.Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955, applies to Hindus, Jains, Sikhs, and Buddhists, and the section 13 of the ACT provides for certain grounds for divorce, including:
1.1. Adultery: If either spouse engages in voluntary sexual intercourse with another person, it constitutes adultery and is a valid ground for divorce.
1.2. Cruelty: If one spouse is subjected to physical or mental cruelty by the other, it is a valid ground for divorce. Cruelty can include physical violence, emotional abuse, and mental harassment.
1.3. Desertion: If one spouse abandons the other without a reasonable cause, it is a valid ground for divorce. Desertion can be either actual or constructive.
1.4. Conversion: If one spouse converts to another religion, it is a valid ground for divorce if the other spouse does not wish to continue the marriage.
1.5. Mental Disorder: If one spouse is suffering from a mental disorder that makes it impossible to continue the marriage, it is a valid ground for divorce.
1.6. Leprosy and other communicable disease
1.7. Renunciation: When the respondent has renounced the way of life and has walked on the path of God,
1.8. Presumption of death: when the respondent is not heard of being alive for 7 years.
Wife can exclusively seek Divorce on the ground if: she was married before the age of 15, husband is guilty of rape, sodomy or bestiality or, if husband has married another woman in her life time.
2. Special Marriage Act, 1954
The Special Marriage Act, 1954, applies to marriages between people of different religions or nationalities. It provides for the following grounds for divorce:
2.1. Adultery: If either spouse engages in voluntary sexual intercourse with another person, it constitutes adultery and is a valid ground for divorce.
2.2. Cruelty: If one spouse is subjected to physical or mental cruelty by the other, it is a valid ground for divorce. Cruelty can include physical violence, emotional abuse, and mental harassment.
2.3. Desertion: If one spouse abandons the other without a reasonable cause, it is a valid ground for divorce. Desertion can be either actual or constructive.
2.4. Conversion: If one spouse converts to another religion, it is a valid ground for divorce if the other spouse does not wish to continue the marriage.
2.5. Mental Disorder: If one spouse is suffering from a mental disorder that makes it impossible to continue the marriage, it is a valid ground for divorce.
2.6. Leprosy and/or, Venereal disease communicable in nature
2.7. Unsound mindedness
2.8. Not heard of being alive for 7 years
2.9. No resumption of cohabitation after one year or upwards after the decree for judicial separation.
2.10. No restitution of conjugal rights for a period of one year or upwards after a decree in that respect.
Wife exclusively can file Divorce suit basis: Husband is guilty of rape, sodomy, or bestiality and that a decree of maintenance has not been complied with for more than 1 year.
3. Dissolution of Muslim Marriages Act, 1939
Muslim Women as per religious practice cannot give Talaq to their husband on their own accord. However, Dissolution of Muslim Marriages Act, 1939 has conferred statutory rights to Muslim women to seek Divorce without anyone’s permission. Section 2 of the Dissolution of Muslim Marriages Act, 1939 lays down few grounds on which a Muslim women can get decree of Divorce.
3.1. The whereabouts of the husband unknown for a period of 4 years;
3.2. The husband has deserted her for a period of at least two years;
3.3 The husband is sentenced to imprisonment for a period of 7 years or upwards;
3.4. The husband has failed to perform his marital obligations for a period of 3 years;
3.5. Husband was impotent at the time of the marriage and continues to be so,
3.6. The husband is not sane for a period of 2 years or is suffering from a virulent venereal disease;
3.7. She was given in marriage by a guardian other than father and has repudiated before attaining 15 years of age and marriage has not been consummated.
3.8. Cruelty meted out to her, physical or mental.
3.9. On any other ground which is recognized as valid for the dissolution of marriages under Muslim law
There are some conditions before a decree of Divorce takes effect
(a)’sentence’ should be final (meaning no appeal pending/appeal exhausted)
(b)6 months’ cooling period in case of unknown whereabouts
(c) In case of impotence clause, husband will get a chance to prove otherwise
There are some extra judicial ways (sharia law) for dissolution of marriage in Islam too. Some of them are mentioned:
I. Off court practices that lead to Judicial Divorce
Lian: Muslim women can seek a judicial divorce from court of law if she has been falsely charged unchaste by husband.
Fask (judicial annulment): Prior to dissolution of marriage act 1939 in being, Muslim woman could only apply for Divorce under the doctrine of Faskh. The principle of faskh is founded upon Koran and Tradition that says “If a woman be prejudiced by a marriage, let it be broken off”. Usually Quazi navigated the through the proceedings on application by wife.
II. Divorce by Husband
Talak i ahasan: Huband has to say Talaq only once during the period of tuhr i.e. period between two mensuration However, the Talaq can be revoked any time during the period of iddat.
Talaq i hasan: Husband has to say Talaq three times during three successive tuhr. Divorce becomes irrevocable if there is no intercourse during these periods.
Ila: Husband takes an oath to not have intercourse with her wife and leaves her to observe iddat. It is necessary to note that iddat is not practised in India.
Zihar: Husband compares his wife to any other female who is in prohibited degree e.g. mother/ sister.
III. Divorce by wife:
Talaq-i-Tafweez: This type of divorce is also known as delegated divorce. In this husband delegates his power to divorce to his wife.
IV. Divorce by Mutual Consent
Khula: Under this modality, wife agrees to give consideration to her husband if she is relieved of marital ties. Essentially, it is redemption of the contract of marriage.
Mubarat: This modality applies when neither of the spouses wants to continue marital ties. Either of the partners can move the proposal and on acceptance by another divorce is valid.
The extra judicial methods of Divorce are processed through personal Sharia law are usually under the scrutiny of a Quazi, who in turn work on terms of All India Muslims Personal Law Board (AIMPLB).
Strangely, conversion doesn’t lead to dissolution of marriage in Islam. The plaintiff has to seek decree on the grounds stipulated under the ACT.
Time and again, the courts have maintained that Divorce can be sought through sharia law in the spirit of Article 14 & 25 of the Constitution.
However, Triple Talaq /Talaq-e-Biddat (Intant Divorce), is no longer a valid ways of divorce under Section 3 of the Muslim Women (Protection of Right of Marriage) Act 2019.
4. The Divorce Act, 1869 (Earlier, The Indian Divorce Act, 1869)
The Indian Divorce Act, 1869, applies to Christians and provides for the following grounds for a divorce decree in favour of petitioner if the respondent:
4.1. has committed adultery
4.2. has ceased to be Christian by conversion to another religion
4.3. has been of incurably unsound mind for at least 2 years
4.4. has been suffering from venereal disease in a communicable form
4.5. has not been heard of as being alive for a period of 7 years
4.6. has wilfully refused to consummate the marriage
4.7. has failed to comply with a decree for restitution of conjugal rights for a min. of 2 years
4.8. has deserted the petitioner for at least 2 years
4.9. has treated the petitioner with unreasonable cruelty
The wife may especially seek the divorce on the grounds of rape, sodomy or bestiality
5. Parsi Marriage and Divorce Act, 1936
Section 32 of the Parsi Marriage and Divorce Act, 1936 provides for the grounds of seeking divorce.
5.1. Wilful refusal to consummate for one year after solemnization of marriage: Makes a valid ground for Divorce for the aggrieved partner.
5.2. Unsound mindedness of defendant before the marriage and the plaintiff was ignorant- Makes a valid ground of Divorce for plaintiff within 3 years of marriage.
5.2.1. Unsound mindedness of defendant after marriage- Filing the suit after 2 years of such persistent/intermittent conditions makes a valid ground.
5.3. Pregnancy other than plaintiff spouse- Makes a valid ground if (i) the plaintiff was at the time of the marriage ignorant of the fact (ii)suit is filed within 2 years of marriage (iii) no intercourse has taken place after the plaintiff knew the fact.
5.4. The defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence.
5.5. The defendant has caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the husband, has compelled the wife to prostitution
5.6. The defendant is serving imprisonment for seven years or more
5.7. The defendant has deserted the plaintiff for at least 2 years.
5.8. Separate maintenance is decreed to the plaintiff and no intercourse has taken place for at least 1 year.
Section 32A: Non-resumption of cohabitation after a year of judicial separation decree or an order for restitution of conjugal rights
Section 32B: Divorce by mutual consent when at least a year has passed after marriage
Section 31: Strangely, Divorce has been termed as dissolution under this ACT which is a special case in which suit can be filed by the aggrieved if the partner is absent for a space of 7 years.
NOTE:
From the close observation of the ACTS, it is seen that the grounds provided therein are not sacrosanct. Meaning, there are certain loopholes that needs to be plugged for the grounds to stand valid for a decree of Divorce. Accordingly, the proviso and explanations provided under each clause has to be read simultaneously along with the clauses.
Even strangely, for similar grounds and two different ACTS the proviso and/or, explanations are not the same. It is felt that if the Uniform Civil Code (UCC), as debated since long is enacted, this disparity will be eliminated and similar grounds will find similar exception/proviso etc.