This article has been written by Ms. C.S Poorna a 2nd year student of Lloyd Law College

Abstract

This article discusses the legal concept or legal procedure for separation which is the annulment of marriage. It gives a short information annulment of Hindu marriages. Shows the conditions given under The Hindu Marriage Act for the marriages to become valid, voidable, and void.In the end, the difference between the two main legal concepts for separation, divorce and annulment is discussed.All these topics give a better understanding to the people about separation of marriage in different manners.

Introduction

In India, a variety of social practices and customs shape the concept of marriage. Hindu, Muslim, Christian, and Sikh communities have different traditions and customs related to marriage. Due to the diversity of religion marriage has become a part of the personal laws. As time passed the concept of separation came. The partners decided to discontinue their marital relationship. For this, the legal system of India brought the legal procedures for separation of marriage. The two terms annulment and divorce deal with the separation of marriage. Both the terms might look the same as they both deal with the separation of marriage but they both hold different meanings and procedures for the separation of marriage.

Defining annulment as a legal term : 

In legal terms, annulment is a process to make the marriage null and void. When the certain legal procedure is not conducted at the time of the marriage it is the kind of marriage that is not valid and is void ab initio in nature i.e. from the beginning the marriage between both parties was not valid. Annulment of marriage is a procedure of making an official announcement which ends the existence of the marriage.

Annulment of Hindu marriage : 

There are different religions and personal laws in which annulment of marriage happens. In Hindu marriage, according to section 12 of The Hindu Marriage Act of 1955, the annulment of Hindu marriage is being stated. There are several conditions provided by the law which present under section 5 of The Hindu Marriage Act of 1955. These conditions must be fulfilled by the couple when the marriage is being performed thus it will make the marriage a valid marriage. 

Grounds:

As per section 5 of the Hindu Marriage Act of 1955, the grounds for making the marriage valid are : 

• Both parties should not have any spouse living at their house during the marriage being performed.
• Both parties should not be in a state of unsoundness of mind at the time of giving consent during the performance of the marriage.
• Either of the parties is unfit for the performance of the marriage. Or unfit for taking care of their children due to mental disorder.
• Both parties should not be subject to having recent attacks of insanity
• The age of the groom should attain the age of twenty one and the bride should attain the age of 18 at the time of performing the marriage.
• Both parties should not have any prohibited relationships unless the custom and tradition are given a permit to have a relationship of marriage.
• Both parties should not be the sapindas of each other’s family unless the custom and tradition are giving a permit for that marriage.

How void marriages can be annulled : 

Void marriages are those marriages which has been invalid from the beginning of the marriage being performed.

So as under section 5 of the Hindu Marriage Act 1955 states the conditions that need to be fulfilled to have a valid marriage.But to find under what grounds or conditions the marriages are being void before they are performed.So void marriages that can be annulled are stated under section 11 of the Hindu Marriage Act of 1955. 

Section 11 of the Hindu Marriage Act of 1955 states that marriage becomes void when it is engaged in violation of : 

• Bigamy: Bigamy is stated under section 5 (i) of the Hindu Marriage Act of 1955. Bigamy is something when either of the spouses has been through a valid marriage and again marrying someone else. If any spouse is performing bigamy then their marriage will become null and void. Bigamy is a punishable offense under the Hindu Marriage Act of 1955 and is also punishable under section 494 and section 495 of the Indian Penal Code.
• Prohibited degrees of relationship: Prohibited degrees of relationship are stated under section (iv) of the Hindu Marriage Act of 1955.Either of the spouses should not come under the prohibited degrees of relationship. It refers to if both parties’ relationship is prohibited by the law i.e. if the marriage is being taken place between father and daughter etc. Thus these kind of relationship comes under the prohibited degrees of relationship and their marriage will become null and void. Coming in the prohibited degrees of relationship is an offense under section 18(b) of the Hindu Marriage Act of 1955.
• Sapinda relationship: Sapinda relationship coming under null and void marriage is stated under section 5(v) of the Hindu Marriage Act of 1955. The meaning of sapinda relationship is defined under section 3(f) of the Hindu Marriage Act of 1955.Sapinda relationship is something when both the husband and wife have a close relationship or blood relationship which is also referred to the sapinda then their marriage will be null and void.Sapinda relationship is a punishable offense under section 18(b) of The Hindu Marriage Act of 1955.

Effects of a void marriage : 

There are situations given under section 11 of the Hindu Marriage Act in which marriages can be null and void. When the marriage has become void what will be its effects?The effects of void marriage are:

• The marriage between both parties becomes void ab initio i.e the marriage becomes invalid from the beginning 
• After the marriage becomes null and void there are no legal consequences that need to be taken care of.
• Neither the parties who were engaged in the marriage had not status of husband and wife after their marriage became null and void.
• There are no rights and duties given to both parties as their marriage has become null and void.
• Children born by the parties of void marriage then those children are stated to be legitimate children as per section 16 of the Hindu Marriage Act of 1955.

How voidable marriages can be annulled : 

Voidable marriages are those marriages in which either of the parties can seek legal help and declare their marriage void. There are certain situations in which either of the parties can declare their marriage void in court. Voidable marriage situations are stated under section 12 of The Hindu Marriage Act of 1955. 

Those situations are as follows : 

• Impotency: Impotency refers to the inability to perform the act of sexual intercourse. Impotence can happen to either husband or wife. Impotency can be physical impotency which refers there is any physical inability to perform the act of sexual intercourse.Impotency can be psychological impotency in which either of the partners has emotional aversion towards the other. So under section 12(1)(a), it is stated that if the cause is impotency then the marriage is voidable. So here impotency should be from the beginning of the marriage either of the partners should be impotent from the beginning of the marriage to make their marriage voidable.
• Marriage engaged in violation of section 5(ii) of The Hindu Marriage Act of 1955: This is stated under section 12(1)(b) of The Hindu Marriage Act of 1955. The situations given for making a marriage valid under section 5(ii) are being violated then the marriage can become voidable.
• The situation under section 5(ii) are : 
  • Either husband or wife is incapable of giving valid consent for the marriage because they are of unsound mind. Thus the marriage will become voidable.
  • Either husband or wife can give valid consent but either of them is unfit for the marriage or unfit to take care of a child because they are suffering from a mental disorder. Thus the marriage will become voidable.
  • If either of the parties has any recent attacks of insanity then the marriage becomes voidable.
• Either of the parties’ consent is being obtained by physical force, fraud in fraud either of the party marrying without giving the information or either of the parties hiding truth or facts for eg: either of the parties performing bigamy. This is present under section 12(1)(c) of The Hindu Marriage Act of 1955.
  • If either of the party has given consent through fraud or force then within the time of 1 year the party has to bring the petition to make the marriage voidable.
  • If either of the parties has the information about the offense the other party has committed and both the parties are staying with free consent then a petition cannot be brought by either of the parties.
• As per section 12(1)(d) of The Hindu Marriage Act of 1955 if the wife is pregnant with another man’s child at the time of the marriage and the husband is not having the information about it then it is a voidable marriage. The husband has to bring the petition within the time of 1 year to declare their marriage voidable. The husband should not be engaging in any sexual intercourse with the wife after knowing about the pregnancy of the wife.

Difference between divorce and annulment : 

Annulment is a process in which the main aim is to declare the marriage null and void by either party with the help of grounds given under The Hindu Marriage Act of 1955. Divorce on the other hand is something where the main aim is to end a valid marriage which is done by either party. In annulment of marriage, there are no legal duties towards either of the parties as their marriage becomes null and void. But on the other side in divorce both the parties are bound by legal duties towards each other as it is an end to a valid marriage. In annulment of marriage, the status of both the parties gets unmarried as their marriage is void and in divorce, the status becomes divorced as their marriage is valid. These are some differences as they both hold different legal meanings. But both are used for separation.

Conclusion : 

The society is aware of the legal ways in which they can end their marital relationship. Those two ways are divorce and annulment. Divorce is a concept that is known and practiced more by the people of the society if they require it. Annulment is a legal way where both partners can end their marital relationship on specific grounds, not on general grounds. Marriage can be valid, voidable, and void. To ensure the nature of marriage whether separation is required or not several conditions are given for knowing whether marriage is valid, voidable, or void. Many people are still not aware of these conditions and are stuck with delayed divorce cases to seek separation.

References

The Hindu Marriage Act 1955

This article was originally Harshita Varshney on ipleaders website. The link for the same is herein.

https://blog.ipleaders.in/annulment-v-divorce-india/#How_an_annulment_is_different_from_divorce

This article was originally written by Tanya Khan and published on Legal Service India website. The link for the same is herein.

https://www.legalserviceindia.com/legal/article-5458-annulment-of-marriage-under-hindu-law.html