Annulment says the marriage was never valid. Divorce says a valid marriage has ended. People often want the former for reasons of stigma, but it is only available where the statute allows it.
The distinction between void and voidable is where most of the confusion sits, and the guide on annulment of marriage in India works through it with the case law. In short: a void marriage is a nullity from the start and a decree merely declares what is already so, while a voidable marriage is perfectly valid until a court annuls it, and if nobody applies in time it remains valid for good.
Void marriages: Section 11
These are nullities from the beginning. A decree merely declares what is already the case. The grounds:
- Either party had a living spouse at the time of the marriage
- The parties are within the degrees of prohibited relationship, unless custom permits
- The parties are sapindas of each other, unless custom permits
The first of those is the one that comes up in practice, and it usually arrives with a criminal complaint attached, because contracting a marriage while a spouse is living is also an offence. The civil declaration and the criminal case run in parallel, before different courts and on different standards of proof, and the guide on bigamy law in India explains how the two fit together. Obtain the civil declaration even though the marriage is void without it: a bank, an employer, an insurer or a succession court wants a document, not an argument.
Voidable marriages: Section 12
These are valid until annulled, and only the aggrieved party can apply:
- Non-consummation owing to the impotence of the respondent
- The marriage was in contravention of the condition as to capacity to consent or mental disorder
- Consent obtained by force or fraud as to the ceremony or as to a material fact or circumstance concerning the respondent
- The respondent was pregnant by another person at the time of the marriage
For fraud or force, the petition must be filed within one year of the fraud being discovered or the force ceasing, and the petitioner must not have lived with the other party as husband and wife after that point. For pre-marriage pregnancy, within one year of the marriage, and the petitioner must have been ignorant of the fact at the time. Miss these and the remedy is gone, whatever the merits.
| Void (Section 11) | Voidable (Section 12) | |
|---|---|---|
| Status | Null from the beginning | Valid until annulled |
| Typical case | Living spouse, prohibited relationship, sapinda | Impotence, unsound mind, consent by fraud or force, concealed pregnancy |
| Decree needed | Not strictly, but a declaration is advisable | Yes, or the marriage stands |
| Time limit | None | Yes, and it is short for some grounds |
| Children | Legitimate by statute | Legitimate by statute |
Which court, what to file, and what it costs
A petition for a decree of nullity goes to the Family Court, and Section 19 of the Hindu Marriage Act decides which one on the same forum rules that govern a divorce petition; in Bengaluru that is the Family Courts at Nyaya Degula, H. Siddaiah Road, Shanthinagar. Plead the ground with dates and particulars, because generalities will not do where the statute requires a specific vitiating fact. Annex the proof of marriage, the material establishing the ground, and, where the ground is a subsisting earlier marriage, the certified record of that marriage. Where the ground is impotence or mental disorder, medical evidence will be needed and the court may direct an examination, which is a sensitive stage best discussed before the petition is drafted rather than after. The court fee is a fixed amount under Schedule II of the Karnataka Court Fees and Suits Valuation Act, 1958, and a contested nullity petition takes about as long as a contested divorce.
For a marriage solemnised under the Special Marriage Act, 1954 the corresponding provisions are Sections 24 and 25, and the grounds are not identical. Under Section 25 a marriage under that Act is voidable where it has not been consummated owing to the wilful refusal of the respondent, where the respondent was pregnant by some person other than the petitioner at the time of the marriage, or where the consent of either party was obtained by coercion or fraud. Check which Act your marriage was solemnised under before assuming which list applies to you.
What "fraud" means here
It is narrower than people hope. Concealment of a serious pre-existing mental illness, of a subsisting marriage, or of material facts about identity have been accepted. Disappointment about income, family circumstances or temperament, generally has not. Courts require the concealment to go to a material fact or circumstance concerning the respondent.
The children are protected either way
Section 16 makes children of a void or voidable marriage legitimate, and they inherit from their parents. That is worth knowing before choosing the remedy, because it removes one of the common fears about annulment.
Section 16(1) protects a child of a marriage null and void under Section 11 whether or not a decree of nullity is ever granted, and Section 16(2) protects a child begotten or conceived before a decree annulling a voidable marriage. What the section confers is a right to the property of the parents; it does not put such a child in the same position as a child of a valid marriage in relation to ancestral or coparcenary property.
When divorce is the better remedy anyway
Two practical reasons to think twice before insisting on nullity. The first is the limitation bar above: once the year has run, annulment is gone and divorce is all that remains. The second is that the grounds for divorce are wider and are frequently easier to prove than fraud, so a party who holds out for a declaration that the marriage never existed can spend two years failing at it when a petition on cruelty or desertion would have succeeded. Those grounds, and what each requires, are set out in the guide on the grounds for a contested divorce in India. Where both are arguable they can be pleaded in the alternative in one petition, which is usually the sensible course.