Divorce
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This article has been written by Harshita Varshney and updated by Ishani Samajpati. The article aims at elaborating on the legal and procedural differences between the annulment of marriage and divorce in India. It also highlights the provisions of both divorce and annulment of marriage under different personal laws in India, with decisions by various courts, including the Apex Court. Furthermore, it also discusses the annulment of marriage at the option of one party. Finally, it examines the fate of the children born in both annulment of marriage and divorce.

It has been published by Rachit Garg.

Introduction

The perception of marriage differs among people due to the diversity of their religion. Vedas have observed Hindu Marriage as an indissoluble union till eternity. It is defined as a union of bones with bones, flesh with flesh and skin with skin, the husband and wife become as if they were one person. Under Muslim Law, marriage is treated as a civil contract where an offer is proposed and accepted by the parties in the presence of each other.

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Due to the diversity of religion in India Marriage is treated as part of the personal law of the parties and the people are allowed to perform marriage as per their personal laws.

However, with the advancement of time and social awareness, various legislations have been passed by the government to make the present-day separation procedure in India more progressive with respect to gender affairs and related sensitive issues. Prima facie the two terms namely annulment and divorce may look similar as both of them deal with termination of marriage but they hold two different meanings.

Marriage has been considered one of the most important and probably the oldest social institutions in civilised human society since ancient times. It is commonly known as the union between a man and a woman sanctioned by society and protected by the law. It is also considered a foundation for creating a family. 

The Hindu shastras view marriage not only as a holy sacrament but also as sacrosanct. Several rituals establish an irrevocable bond between a husband and wife. On the other hand, marriage is considered a contract in Islam and Christianity. Over time, society has accepted various types of marriage, including same-sex marriage, and there are attempts around the world to legalise it.

In contrast, both annulment and divorce lead to the end of the institution of marriage. The Oxford Dictionary of Sociology defines ‘divorce’ as “the formal legal dissolution of a legally constituted marriage” and ‘annulment’ as “the act of stating officially that something, usually a marriage, is not legally recognised.” Hence, it can be inferred that while both of them end the marriage, there are some procedural and legal differences between them. Apart from that, Indian marriage laws also contain provisions for annulment of marriage at the option of one party.

Grounds for annulment of marriage under different personal laws

Even though there are different personal laws governing the annulment of marriage, the grounds for getting an annulment  under different personal laws are mostly similar, except under the Muslim personal laws. For example, a marriage while having one or more living spouses (polygamy) is not an offence under Muslim law, while even a second marriage while having a living spouse is void ab initio for all other faiths. Similar is the case with bigamy. 

The following grounds under different personal laws are applicable for marriages that are void ab intio. Even if the parties do not obtain a decree of annulment from the court, it is still void. It implies that obtaining a decree from the court is discretionary for the parties. The general grounds for annulment of marriage under different personal laws are as follows:

Living spouse

Except for a Muslim marriage, if either party has a living spouse at the time of marriage, such marriage is void. The earlier marital tie still continues even though there is no relationship between husband and wife.

The provisions for annulment of marriage on this ground are present in all marriage enactments, which are as follows:

Bigamy

Bigamy is the offence of marrying another person while being lawfully married to another. It is an offence under Section 494 of the Indian Penal Code. The exceptions are when the previous marriage has been declared void by a court or the spouse has been unheard for a continuous period of seven years and the whereabouts of the spouse are not known by anyone who would have known had he or she been alive in the meantime under Section 108 of the Indian Evidence Act, 1872.

However, it must be noted in this connection that the present government has recently brought a massive overhaul to the criminal justice system of India. Bharatiya Nyaya Sanhita, 2023 which seeks to replace the IPC, deals with the offence of bigamy under Section 81. Under this new Bill, concealment of a previous marriage while contracting the new marriage is also punishable with ten years of imprisonment and a fine.

Prohibited degrees of relationship or sapinda

If the parties to the marriage are within a degree of a prohibited relationship or are sapindas to each other, the marriage is void. However, if a custom permits this type of marriage, it is not void.

The provisions for this ground are as follows:

  • Foreign Marriage Act, 1969 – Section 4(d);
  • Hindu Marriage Act, 1955 – Section 5(iv) and (v), degrees of prohibited relationship and sapinda respectively
  • Indian Christian Marriage Act, 1872 – Section 88; 
  • Parsi Marriage and Divorce Act, 1936 – Section 3(a); 
  • Special Marriage Act, 1954 – Section 4(d) read with Section 24(1)(i);

Defective wedding formalities 

Some personal laws include this ground. For example, Section 4 of the Indian Christian Marriage Act, 1872, lays down that marriages solemnised otherwise than in accordance with Section 5 shall be void. However, Section 77 of the Act lists down the irregularities for which marriages solemnised under the provisions of Sections 4 and 5 shall not be void. These include statements regarding consent or dwelling, notice of marriage, the certificate or its translation, the time and place of marriage, and the registration of marriage.

Similarly, Section 7 of the Hindu Marriage Act, 1955 states that a marriage may be solemnised under Hindu rites and ceremonies. If rites and ceremonies include saptapadi, i.e., taking seven steps by bridegroom and bride together, the marriage will be binding only after completing the seventh step. Before that, it is defective, and the marriage can be revoked.

Other grounds

  • Marriage before attaining the marriageable age, such as marriage of a minor, is void.
  • A decree of nullity can be obtained if either of the spouses is impotent.
  • If either party had lunacy or unsoundness of mind at the time of marriage, the marriage shall be void. Section 4(b) of the Foreign Marriage Act, 1969 further states that a marriage can only be solemnised if neither party is lunatic nor suffering from unsoundness of mind.

The party alleging the mental disorder of the spouse should prove it on his or her own. The party must establish that the mental illness suffered by the spouse is to such an extent that it is impossible to lead a normal married life. The Supreme Court of India clearly elaborated this in R. Lakshmi Narayan v. Santhi (2001).

Grounds for annulment in Muslim personal laws

Some of the essentials of annulment of Muslim marriage are as follows:

Capacity to marry 

Every male who has attained the age of puberty and is of sound mind is competent to contract a marriage. The general presumption is that after attaining 15 years of age makes one competent for marriage. A male who is not of sound mind or has not attained the age of puberty can contract marriage with the supervision of his guardian. Consent of contract to marriage of girls differs in different schools of Muslim law. The general law is that a girl who has attained the age of majority (18 years) has the capacity to contract her marriage without a wali (guardian). 

However, under the Prohibition of Child Marriage Act, 2006, the  Madras High Court in the case of M Mohamed Abbas v. Chief Secretary, Government of Tamil Nadu (2015)  held that preventing marriages of Muslim girls under the age of 18 years is not depriving them of their enjoyment of religious rights but to empower and grant equal status to the girl child.

Intersect and inter-religion marriages

Muslim law does not prohibit anyone from performing an intersect marriage, and hence it is a valid marriage. However, the concept of void and null marriages comes into play in the case of inter-religion marriages. Mulla’s Principles of Muslim Law states that in Shia personal law, marriage between a Shia and a non-Muslim is void. On the other hand, the marriage of a Sunni male with a kitabia female is valid. The term kitabia implies believer, meaning a person who believes in the Holy book. Kitabia does not include fire worshippers or idol worshippers. Hence, marriage with a Shia male with any Christian or Jew woman is valid, but not the same with a Hindu, Sikh, Jain, or Buddhist woman. 

A Sunni Muslim female is not allowed to marry any non-Muslim under any conditions, and the marriage under Muslim law is void ab initio. Though there are some differences of opinion between scholars in this regard.

On the other hand, marriage between a Hanafi male and a fire-worshipper or idol-worshipper female is considered irregular. 

Void inter-religious marriages are validated through a civil marriage if it is solemnised under the Special Marriage Act, 1954, and the succession of the children born in the wedding is governed by the Indian Succession Act, 1925.

Marriage within degrees of prohibited relationship 

In Muslim law, the prohibited relationship refers to those degrees of relations under which two persons are not allowed to marry, and even if they do,  the marriage is either considered batil or fasid. Quranic verses have laid down the degrees of prohibited relationships clearly. The degrees of prohibited relationships in Muslim law are: 

  • Consanguinity; 
  • Affinity;
  • Fosterage; and,
  • Unlawful conjugation

Marriage within the first three categories is considered batil and void ab initio while the last criteria render a marriage fasid. Two expressions are used to define prohibited relationships: how highsoever and how lowsoever. It means such ascendants and descendants, to any degree, fall under the category of prohibited relationships.

Consanguinity 

Consanguinity, according to the Oxford Dictionary of Sociology, is  “a kin relationship based on descent from a common (male or female) ancestor.” Muslim law prohibits relationships on the male side. Prohibited relationships on consanguinity are the same among Shias and Sunnis. A Muslim male is absolutely prohibited from marrying these relations, and marrying within such degrees makes the marriage void ab initio:

  • The mother or grandmother of the male Muslim how highsoever;
  • The daughter or granddaughter how lowsoever;
  • Full, consanguine, or uterine sister;
  • Niece or grandniece how lowsoever; and,
  • Aunt or grandaunt how highsoever, both from father’s and mother’s side.
Affinity 

Affinity is those relationships that are created after marriage between two persons. Except for the Shafi’i school, all other schools of Shias and Sunnis deem the existence of the relationship of affinity not only during when the marriage is valid but also after when it is invalid. Even though the marriage is not consummated, the degree of prohibition on the ground of affinity arises once the valid marriage is contracted. However, no relationships based on affinity are created in batil marriages. 

Prohibited relationships on the ground of affinity are as follows:

  • Wife’s mother or grandmother how highsoever;
  • Father’s wife or father’s father’s wife how highsoever;
  • Wife’s daughter or granddaughter how lowsoever; and,
  • Son’s wife or son’s son’s wife how lowsoever.

Prohibited relationship with wife’s daughter or granddaughter how lowsoever only arises if the marriage has been consummated.

Fosterage 

Thoughts of Shias and Sunnis vary on prohibited relationships on the basis of the degree of fosterage. According to Shias, the foster relationship only arises if the foster mother nourishes the child and breastfeeds. 

However, Sunnis permit marriage with a certain degree of foster relationships:

  • The child’s father with the mother of the child’s foster mother;
  • With the foster mother’s daughter;
  • Foster mother with foster child’s brother;
  • Marriage with the foster mother of an uncle or aunt.
Unlawful conjugation

While marriages with degrees of prohibited relationships based on consanguinity, affinity, and fosterage are absolute grounds for making a marriage null and void, while unlawful conjugation is a relative ground. It means it is a moral ground and renders a marriage void or irregular.

According to Mullah, a man cannot marry two wives who are related by consanguinity, affinity, or fosterage. Thus, a person cannot marry two full, consanguine, or uterine sisters or an aunt and niece. The rule of unlawful conjugation is only applicable when the said marriage on whose basis the relationship of unlawful conjugation is declared is subsisting. If there is divorce from the marriage, the prohibition on the basis of unlawful conjugation does not apply.

Under Sunni schools, such marriages are irregular; however, in Shia law, these marriages are absolutely void.

According to Fatwa-i-alamgiri, the source of Islamic laws in India, children born in such marriages are valid.

Other relative criteria

These criteria are not obligatory but are of recommendatory and moral nature. These are also relative because the validity of marriage under these criteria varies in various schools of Islam. These grounds are as follows:

  • Marriage with a woman undergoing iddat is not void but irregular, as laid down in Md Hayat v. Md Nawaz 1935 Lah 622. This judgement is still used by Indian courts to decide the validity of marriage. The Delhi High Court, in Md. Muzibur Rahman v. Husna Begum (2017), also held the same. However, in Shia schools, such marriage is void.
  • Marriages violating the doctrine of equality might be rendered irregular or void. There are certain differences as to what defines equality. For example, according to Hanfi law, the social status of both families must be equal. On the other hand, according to Shias, only two conditions are necessary. The man must be a practising Muslim and should have the financial capacity to maintain his wife. However, in modern times, no Indian court shall annul such marriages based on equality of social status. The only equality the courts may examine is equality in terms of physical capacity. If either of the parties is impotent, the other party has the right to annulment of marriage. In such a case, the right to annulment of marriage belongs to the party himself or herself, and not to the wali.
  • A person who is on pilgrimage, should not marry, and such a marriage will be rendered void, according to Ithana Ashari and Safii schools. 
  • Remarriage with a woman whom the man divorced with triple talaq is void unless that woman remarries another man. After the consummation of the marriage, once the man divorces her, the remarriage can take place.  
  • However, polygamy is not a ground for annulment of Muslim marriages. A man can marry up to four wives and it is subject to the Muslim Personal Law (Shariat) Act, 1937. However, in Khursheed Ahmad Khan v. State Of U.P. and Ors (2015), the Supreme Court reaffirmed that “Polygamy was not an integral part of religion (Islam) and monogamy was a reform within the power of the State under Article 25.”

Grounds for annulment of marriage at the option of either party

The marriages which can be annulled at the option of either party are known as voidable marriages. These marriages are entered into illegally and are allowable if not objected to, but the court can annul the marriage once a petition is filed. The decree of annulment can be obtained at the option of the injured party, and before passing the decree, the marriage is binding.

The grounds for annulment at the option of either party are as follows:

  • If the respondent was impotent at the time of marriage and is the same during the institution of the annulment proceeding, it is a ground for the petitioner to get an annulment. Section 12(1)(a) of the Hindu Marriage Act, 1955, Section 19 of the Divorce Act, 1869, and Section 30 of the Parsi Marriage and Divorce Act, 1936 are examples of this ground.
  • An annulment of marriage can be sought on grounds of fraud, coercion, undue influence, or misrepresentation under Section 19 of the Divorce Act, 1869,   Section 12(1)(c) of the Hindu Marriage Act, 1955; and Section 25(iii) of the Special Marriage Act, 1954.

There is a limitation period for presenting the petition for annulment. The petition for annulment should be presented within one year after the marriage or when the fraud has been discovered, as the case may be, held by the Madras High Court in V. Raja v. Bhuvaneswari (1997).

  • Under the provisions of Section 12(1)(b) read with Section 5(ii) of the Hindu Marriage Act, a marriage can be annulled on the ground that the respondent was a lunatic or person of unsound mind at the time of marriage. Similar is the case in Mohammedan law, discussed in the later part of this article in more details.
  • Pre-marital pregnancy by a third party is a ground for annulment. But the petitioner must satisfy that, at the time of marriage, he was ignorant of this fact. The conditions regarding limitation and ratification of the exercise of marital rights are also strictly applicable.

The provisions for this under different personal laws are as follows:

  • Section 12(1)(d) of the Hindu Marriage Act, 1955;
  • Section 25(ii) of the Special Marriage Act, 1954;

Such provisions in these Acts are similar to Section 12(f) of the Matrimonial Causes Act, 1973.

Section 112 of the Indian Evidence Act, 1872 states that the burden of proof in this case is on the petitioner. It applies when a child is born during a valid marriage or within 280 days of the dissolution of the marriage if the wife remains unmarried. This Section is based on the maxim pater est quem nuptiae demonstrant (he is the father to whom marriage indicates). Hence, to get an annulment under this ground, the petitioner has to prove a “non-access” element.  The Supreme Court, in the case of Dukhtar Jahan v. Mohammed Farooq (1987) stated that ”courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.”

A suit for annulment of marriage may be converted to a suit for dissolution of marriage, depending on the facts and circumstances of the case, as in the case of Pawan Kumar v. Smt. Mukesh Kumari (2001).

  • Wilful refusal of the respondent to consummate the marriage is a voidable marriage and a ground for annulment under Section 25(i) of the Special Marriage Act, 1954.
  • Venereal disease in communicable form is also a ground for avoiding marriage,

Fasid marriage

Fasid marriage, in Muslim law, is also known as irregular marriage. It means there are some relative impediments to marriage that can be removed to render the marriage valid. It is not similar to voidable marriage in other Indian laws. A voidable marriage is valid until one party wants annulment and it has the same legal effects of void marriage after annulment. However, fasid marriage is a marriage that is neither valid nor void. For example, if a person marries his wife’s sister, the marriage is considered void on the basis of unlawful conjugation. If he pronounces talaq on the first wife, the impediment is removed and the marriage becomes valid.

Similarly, if a Sunni male marries an idol or fire worshipper, the marriage is not valid under Muslim law until the wife converts to Islam. 

Fasid marriage does not have any legal effect before consummation, and the husband can terminate immediately by saying talaq. If consummation takes place, the wife is entitled to dower and should perform idaat after the divorce or death of the husband. The children born in fasid marriages are legitimate and have rights to inherit properties from both sides. 

A marriage in Muslim law is considered fasid on the following grounds:

  • A marriage contracted without witnesses. However, no witness is necessary for Shia marriage.
  • Marriage with women undergoing iddat;
  • Marriage with idol or fire worshipper without conversion;
  • Marriage with the fifth wife;
  • Unlawful conjugation.

Fasid marriages are not recognised in the Ithna Ashari school of Shia. Hence, a marriage with any of the last four conditions is rendered void. 

Annulment of marriage

An annulment means an official announcement which ends the existence of the marriage. It is a process in which the marriage is declared as null and void due to some reasonable causes and these causes include that the legal requirements were not met at the time of marriage. When certain legal requirements are not met at the time of the marriage then the marriage is not considered as a valid marriage. The annulment of such marriage is passed by the authorities which never existed in the eye of law because of the absence of certain legal requirements which are important to make a marriage valid. When a petition for annulment of marriage is made by one party the court has to decide whether a valid marriage took place between the parties or not. When the decree of annulment is passed by the Court then the further duties or obligations towards each other also ends with the non-existence of the marriage.

Provisions of annulment under different personal laws

The provisions regarding the annulment of marriage have been dealt with in various personal laws. Those laws are discussed below:

The Hindu Marriage Act, 1955

The provision related to the annulment of marriage has been dealt with under the head “Nullity of Marriage and Divorce”. Among Hindus, marriage is regarded as the sacred bond between the two individuals. The old Hindu laws of marriage have been wholly transformed by the Hindu Marriage Act, 1955 to remove all the social defects introduced by the old laws. The new legislation has not only introduced some major changes but also tried to customise it so as to remove the social disparity. As per Hindu law, marriage can be of three types: Valid Marriage, Void Marriage and Voidable marriage.

Section 5 of the Hindu Marriage Act, 1955 (hereinafter HMA) provides for the conditions for a valid Hindu marriage. The conditions provided by the law for the valid Hindu marriage are:

  • First of all, both parties must be Hindu. It has been clearly pointed out by Section 5 that “a marriage may be solemnized between any two Hindus”. Even if one party to a marriage is a non-Hindu then also their marriage would not be subjected to this law.
  • According to Section 5(i), any party to a marriage should not have a spouse living at the time of the marriage. This provision barred bigamous or polygamous act.
  • As per Section 5(ii), the following conditions should be kept in mind by the parties at the time of marriage:
    • Any of the party to a marriage should not be incapable of giving a valid consent due to the unsoundness of mind;
    • If both the parties to a marriage are capable of giving a valid consent but any of them should not suffer from such a mental disorder, which is unfit for marriage and the procreation of a child;
    • Any of the party to a marriage should not have been subject to recurrent attacks of insanity.
  • As per Section 5(iii), at the time of marriage, the bridegroom must have completed the age of twenty-one years and the bride must have completed the age of eighteen years;
  • According to the custom or usage of the parties, their relationship must not fall within the degrees of a prohibited relationship if it so then it must be allowed by their custom and usage as provided by Section 5(iv);
  • Section 5(v) provides that the parties should not be sapindas of each other. But if the customs or usage governing the parties to marriage allows then such marriage will be a valid marriage.

So, these were the conditions which should be fulfilled for a valid marriage under the Hindu law.

Void and voidable marriages

The concept of nullity of marriage was first introduced by the Hindu Marriage Act, 1955. When at the time of a marriage, the conditions specified under Section 5 are not fulfilled then such marriage is not regarded as the valid marriage. Section 11 of the Act provides that any marriage, solemnized after the commencement of this act, would be declared as void if it contravenes clause (i), (iv) and (v) of Section 5 if a petition has been moved by any of the parties to a marriage. Simply, a marriage should not infringe these conditions:

  • Any party to a marriage should not have a spouse living at the time of the marriage;
  • Their relationship must not fall within the degrees of a prohibited relationship if it so then it must be allowed by their custom and usage; and
  • The parties should not be sapindas of each other. But if the customs or usage governing the parties to marriage allows then such marriage will be a valid marriage.

If any of these three conditions would exist, the marriage would automatically become void under this section. The decree of nullity may be passed by the court at the petition moved by either party of the marriage. Any marriage violating any of these conditions would be void ipso jure. There is no need to ask from the court for the declaration of nullity of their marriage. It becomes null and void by the mere operation of law. However, the parties may file a petition for procuring the decree of nullity. It is left on the parties to a marriage to treat their marriage void without asking for a formal declaration from the court.

On the other hand, voidable marriages continue to exist until the parties to a marriage approach the court for the annulment of their marriage. It is left on the parties whether they want to file a petition in the court for the annulment of their marriage. Section 12 of the HMA talks about voidable marriages. It says that any marriage solemnized, before or after the enforcement of this act shall be a voidable marriage, or maybe declared as null by a decree of annulment on the basis of following grounds:

  • That the marriage has not been consummated by the parties of a marriage due to the inability of the respondent; or
  • That the marriage is in violation of the conditions specified under Section 5(ii) and those conditions are:
    • Any of the party to a marriage should not be incapable of giving a valid consent due to the unsoundness of mind;
    • If both the parties to a marriage are capable of giving a valid consent but any of them should not suffer from such a mental disorder, which is unfit for marriage and the procreation of a child;
    • Any of the party to a marriage should not have been subject to recurrent attacks of insanity;
  • That the consent of the petitioner was obtained by fraud or force for the ceremony of a marriage or any material situation connected with the respondent; or
  • That the respondent was pregnant by some person other than the petitioner at the time of solemnization of marriage.

Sub-section 2 of this section has also laid down some conditions which are necessary to be observed before filing a petition for obtaining the decree of annulment. It says that if the petitioner is filing a petition for a decree of annulment on the ground that the consent of his/her was obtained by fraud or force then the petition would not be entertained by the court if:

  • the petition is after one year or more when the force had ceased to work or the fraud had been discovered as the case may be;
  • the petitioner has decided or gives his or her consent to live with another party even after the force had ceased to work or the fraud had been discovered as the case may be.

Another condition imposed by sub-section 2 of this section is that if the petitioner is filing a petition for a decree of annulment on the ground that the respondent was made pregnant by some other person and not the petitioner, then the petition would not be entertained by the court if:

  • The petitioner was not aware of the alleged facts at the time of the marriage;
  • In the case of a marriage which was solemnized before the commencement of this Act then the proceedings have been instituted within one year of such commencement and in the case of marriage solemnized after the commencement of this act then the proceedings have been instituted within one year of the date of the marriage;
  • Since the disclosure of the mentioned grounds by the petitioner, the marital intercourse with the consent of the petitioner has not taken place between them.

Therefore, the main distinction between the void and voidable marriage is that the void marriage is void ab initio which means it is null from the very beginning. Whereas, a voidable marriage is annulled by the court on the petition moved by the party of a marriage.

Special Marriage Act, 1954

The Special Marriage Act, 1954 governs the inter-caste or the inter-religion marriages in India. This act applies to the marriages of Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists. The provisions of this legislation apply not only to Indian citizens who belong to different castes and religions but also to Indian nationals who live abroad. Section 25 of the act deals with voidable marriages. According to it, any marriage, solemnized after the commencement of this act, shall be voidable and may be declared by a decree of annulment, if:

  1. If the respondent has refused to consume the marriage;
  2. If at the time of marriage, the respondent was pregnant by some person, other than the petitioner;
  3. If the consent of either party was not the free consent, which means it has been obtained by fraud, coercion and misrepresentation, as defined under the Indian Contract Act, 1872.

It is also provided that the court should not grant the decree of nullity in the case specified under clause (ii), related to pregnancy unless it is satisfied:

  • That the petitioner was not aware of the alleged facts at the time of the marriage;
  • That the proceedings were initiated in the court within a year from the date of the marriage; and
  • That since the petitioner has discovered the grounds of a decree for nullity of marriage, the petitioner has not given the consent for the marital intercourse.

Further, it is provided that the court should not grant the decree of nullity in the case specified under clause (iii), related to consent unless it is satisfied that,

  • If the proceedings have not been initiated within one year of the after the consent was obtained either coercively or through fraud as the case may be;
  • If 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.

Parsi Marriage and Divorce Act, 1936

This law governs the marriage and divorce of the Parsi community. People have regarded The Parsi Marriage as a contract made through a religious ceremony of Ashirvad which is necessary for its validity. ‘Ashirvad’ literally means blessings. A prayer or divine exhortation to the parties to observe their marital obligations with faith. Section 30 in the Parsi Marriage and Divorce Act, 1936 talks about the suits for the nullity of the marriage. According to it, if in any case, the consummation of marriage becomes impossible due to the natural causes then it may be declared as null or void, at the instance of any party to a marriage.

Indian Divorce Act (for Christians), 1869

The Indian Divorce Act, 1869 is one of the important codified personal laws in India which governs the Christian community. The provisions of the act define the power of the court and describe the relief granted by courts to the parties of the marriage such as the dissolution of marriage, nullity of their marriage or judicial separation.

Under Section 18 of the Indian Divorce Act, 1869, any husband or wife can move to the District Court or to the High Court by filing a petition that his or her marriage may be declared as null and void.

Section 19 of the act provides for the grounds for passing such a decree of nullity of the marriage. According to it, a decree for nullity of marriage may be passed on any of the following grounds:

  1. The impotency or lunacy of the respondent at the time of solemnization of marriage and as well as the at the time of institution of the proceeding;
  2. That the parties to a marriage are bounded by the prohibited degrees of consanguinity (whether natural or legal) or affinity;
  3. That either party to a marriage was a lunatic or idiot at the time of the marriage;
  4. That at the time of marriage, the previous marriage of either party was in force or the former husband or wife of either party was living at the time of new marriage.

It is also provided that under this act, the High Court has jurisdiction to pass a decree of nullity of marriage if the consent of the parties to a marriage was obtained by fraud or force and this power of the High Court should not be affected by any provision of Section 19 of this act.

Annulment of marriage in Muslim law

There is no specific codified law on annulling marriages in Muslim personal law since the concept of annulment of marriages is not recognised. However, schools of Muslims recognise three types of marriages, which include: i) valid marriages, or sahih, ii) void marriages, or batil and iii) irregular marriages, or fasid. The last two categories of marriages can be annulled, even though batil marriages are void ab initio. The Ithari Ashari school does not recognise irregular marriage (fasid) and their marriage can either be valid or void.

Batil marriage

Batil marriage has no legal effect and is void ab initio. It is called marriage because the parties have undergone the necessary formalities of marriage. However, it does not grant the status of husband and wife or the legitimacy of children born in this wedlock, nor does it create a marital bond between the two through the marriage.

Since batil marriage is void ab initio, the parties, including the wife, are free to marry others and are not held guilty. A marriage that does not follow the valid requirements of marriages under Muslim personal law, is termed a void marriage.

No declaration or decree for annulment is required to nullify the marriage. However, an interested person may file a suit for a declaration under Section 9 of the Code of Civil Procedure, 1973 read with Section 34 of the Specific Relief Act, 1963.

Foreign Marriage Act, 1969

The Foreign Marriage Act, 1969 recognises marriages between Indian citizens in foreign countries and marriages between an Indian citizen and a foreigner. Section 4 of the Act states that at least one of the parties to the marriage should be Indian. It also states the following conditions, which, if not followed, should be held void:

  • No party to the marriage has any living spouse;
  • No party is an idiot or a lunatic;
  • The bridegroom and bride have completed twenty-one  and eighteen years, respectively, at the time of marriage;
  • They are not within degrees of prohibited relationships. Though the Act does not define the term, Section 2(a) states that it has the same meaning as under the Special Marriage Act, 1954. 

A petition for annulment for both void and voidable marriages under this Act can only be presented if the marriage was solemnised under this Act.

Section 18 of the Act states that any kind of matrimonial reliefs under this Act should be governed by the provisions of  Chapters IV, V, VI and VII of the Special Marriage Act, 1954. For obtaining a decree of annulment for an avoidable marriage, Section 18(3)(b) states that a court is not authorised to make a decree for annulment if:

  • The parties are domiciled in India during presenting the petition for annulment in court;
  • If the petitioner for the decree of annulment is the wife, before presenting the petition in court, she has been residing in India for a period of three years. She should be an “ordinary resident”, which means she has been residing in her own will without any professional, educational, or other obligations.

Clause (c) under Section 18(3) of the Act provides the conditions for granting a decree of annulment. The situations where a court shall not grant a decree for annulment of a void marriage are as follows:

  • During presentating the petition for annulment, one of the parties is domiciled in India. It means any petition for annulment of void marriage can only be filed under this Act if both parties to marriage have domiciles outside India.
  • Marriage of the parties seeking annulment should be solemnised under this Act and the petitioner is in India while filing the petition. Therefore, the petitioner should not reside outside India while filing the petition for annulment under this Act.

Divorce under Muslim personal laws

A marriage under Muslim personal laws can be dissolved in  the following ways:

  • Talaq, i.e., divorce by the husband at his will;
  • Mutual consent of both the parties to marriage, khula, and mubara’at; or,
  •  Divorce by judicial decree.

Talaq

In Muslim law, when the husband at his own will divorces the wife, it is known as talaq. A Muslim husband who is of sound mind and has attained the age of puberty can divorce his wife through talaq.

The three modes of talaq are as follows:

  • Talaq-e-ahasan: A Muslim husband can divorce his wife through talaq-e-ahasan. It consists of a single pronouncement during the period of tuhr (when the wife is not having her menstrual cycle) that the husband should abstain from sexual intercourse. The wife is then left to observe her iddat period. 

Talaq-e-ahasan is revocable, and the husband can revoke the divorce before the iddat period of the woman is over. Once the iddat is over, the divorce becomes irrevocable.

  • Talaq-e-hasan: To divorce the wife through talaq-e-hasan, the husband must pronounce talaq thrice over three successive periods of tuhrs. No sexual intercourse must take place during this period.

It can be revoked before the third pronouncement of divorce. Once the third pronouncement is made, the divorce becomes irrevocable, irrespective of the iddat period.

  • Talaq-ul-Biddat or Talaq-ul-Bain: It provides the Muslim man divorce from his wife instantly. It becomes effective as soon as pronouncements are made. It is a disapproved form of divorce and the divorce obtained by talaq-ul-biddat or talaq-ul-bain is irrevocable. 

It consists of three pronouncements of talaq made during a single tuhr. It is also known as triple talaq and was held unconstitutional by the Apex Court in the case of  Shayara Bano v. Union of India and Ors. (2017).

Talaq-e-tafweez

It is a delegated form of divorce and the only type of divorce that enables Muslim women to get a divorce. Ordinarily, the husband himself gives talaq to his wife. But in some cases, he delegates the power to divorce to his wife or other third parties. The authority of delegation may be absolute or conditional and may be given for a temporary or permanent period. In such a case, the wife may repudiate the marriage, and it will have the same effect as the husband pronouncing talaq.

However, the wife may not have the unrestricted liberty to divorce herself. It depends on the delegation of the husband. If the delegation is bilateral, the wife cannot divorce herself alone at her own will. In the case of Monjila Bibi v. Noor Hossain (1992),  it was held that the wife can only divorce unconditionally if the husband delegates unilaterally. Since, in this case, the personal law does not prohibit divorce, the wife can divorce herself at her own will.

Khula and Mubara’at

While talaq provides the husband with the means to divorce his wife, marriage under Muslim personal law can also be divorced by an agreement between husband and wife. It can be affected in two ways: khula and mubara’at.

Khula is a form of divorce where the wife initiates the divorce and the proceedings starts with her consent. She agrees to give consideration to the husband in return for her release from the marriage. She may also relieve her husband from paying the mahr as consideration. If no consideration is paid by the wife, the husband can claim it.

In mubara’at, both the husband and wife want to end the marriage and can do so by mutual consent. Both parties initiate the divorce.

Divorce by judicial decree

Section 2 of the  Dissolution of Muslim Marriages Act, 1939 provides the wife with certain grounds to get a divorce through a court decree. Some of the grounds are the husband missing for four years, negligence on the part of the husband or failure to pay maintenance, a sentence of imprisonment to the husband, impotency, failure to perform marital obligations, maltreating the wife, etc.

Divorce under the Foreign Marriage Act, 1969

There is no provision for divorce under the Foreign Marriage Act, 1969, even though it contains provisions for annulment. Divorce under this Act is governed by Chapter VI of the Special Marriage Act, of 1954. The grounds for divorce are given under Section 27 of the Act.

Irretrievable breakdown of marriage

The Law Commission of India, in 1978, in its Seventy-First Report, dealt with the concept of irretrievable breakdown of marriage. It opined that this should be a ground for divorce under the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. Over the years, the position of courts has evolved as to whether or not to include this as a ground for divorce. The ground for the irretrievable breakdown of marriage first arose in the case of Dr. N.G. Dastane v. Mrs. S. Dastane (1975) where the parties fought for a long period and their marital bond was so severed that nothing could heal it. The case emphasised including the said ground as a separate ground for divorce. But various courts differed on this point.

For example, in Harendra Nath Burman v. Smt. Suprova Burman and Anr. (1989), the Calcutta High Court observed that the mere breakdown of marital bonds, however irretrievable, is not a ground for divorce as yet in any Indian matrimonial laws. The Supreme Court in Smt. Saroj Rani v. Sudarshan Kumar Chadha (1984), observed that conjugal rights in India are not created merely by any statute. It is inherent in the institution of marriage. On the other hand, the Apex Court, in cases such as Ms. Jordan Diengdeh v. S.S. Chopra (1985) and Smt. Sneh Prabha v. Ravinder Kumar (1995) considered and granted a divorce on the ground.

The Supreme Court in the case of Naveen Kohli v. Neelu Kohli (2006) recommended the Union of India to consider an amendment of the Hindu Marriage Act, 1955 to incorporate this ground for divorce. 

In 2009, the Law Commission of India, again in its 217th Report recommended to include irretrievable breakdown of marriage as a ground for divorce under the provisions of divorce laws.

Very recently, the Supreme Court, in the case of Mansi Khatri v. Gaurav Khatri (2023) granted a divorce on this ground through its power under Article 142 of the Constitution of India.

Provisions for divorce by mutual consent in Indian laws

The provisions for divorce by mutual consent under various Indian laws are as follows:

Hindu Marriage Act, 1955 

Originally, there was no provision for divorce by mutual consent under this Act. The Marriage Laws (Amendment) Act, 1976, was inserted under Section 13B of the Hindu Marriage Act, 1955. It is applicable for both marriages solemnised before or after the Amendment. The grounds for divorce under this are as follows:

  • The spouses have been living separately for one year or more;
  • They are not able to live together;
  • They have mutually agreed to end the marriage.

After presenting the petition in court, there is a waiting period of six months. If the petition is not withdrawn within six to eighteen months, the court, after making an enquiry regarding the solemnisation of marriage and the averments in the petition, shall grant a decree of divorce.

Recently, in the case of Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution bench in the Supreme Court of India held that under the special powers of Article 142, the Supreme Court can waive the mandatory waiting period under Section 13B.

Christian

Similar to the Hindu Marriage Act, 1955, there was no provision for divorce by mutual consent under the earlier Indian Divorce Act, 1869. Through the Indian Divorce (Amendment) Act, 2001, such provision was inserted under Section 10A and the Act came to be known as the Divorce Act, 1869. The only difference is that here the parties shall live separately for a period of two years while in other statutes, it is one year.

Parsi 

The provision for mutual divorce under the Parsi Marriage and Divorce Act, 1936 was inserted through the 1988 Amendment under Section 32B.

Special Marriage Act, 1954

The provisions for divorce under mutual consent under the Special Marriage Act, 1954 are given under Section 28.

Foreign Marriage Act, 1969

According to Section 18 of the Act, the divorce procedures under this Act shall be governed by the provisions of the Special Marriage Act, 1954. Divorce by mutual consent under this Act is governed by Section 28 of the Special Marriage Act, 1954.

Fate of children in annulment and divorce

While the annulment is the cancellation of marriage, and divorce severs the marital tie between husband and wife, the children, if any, born in the marriage suffer to a great extent. So, all the Indian laws have considered the fate of the children in such cases and contain provisions to protect them. The laws provide that where a decree of annulment has been granted.

According to the legal provisions, when a decree of nullity is granted by the court, annulling the marriage between parties in a void or voidable marriage, any child born or conceived before the decree is made or who is a legitimate child of the parties (not born outside marital relation), shall be deemed to be their legitimate child even if the marriage is annulled. The child possesses the same rights as a legitimate child born in a valid marriage. Such a child would also have inheritance rights to the parents’ self-acquired property. However, property rights are not applicable if the child is illegitimate. 

The provisions under personal laws are as follows:

  • Section 16 of the Hindu Marriage Act, 1955;
  • Section 26 of the Special Marriage Act, 1954;
  • Section 21 of the Divorce Act, 1869 states that children begotten or conceived before the decree of annulment are entitled to inherit parents’ properties as legitimate children in the following cases:
  • Marriages were annulled on the ground of bigamy but the marriage was contracted in good faith with the belief that the spouse was dead;
  • Marriages annulled on the ground of insanity

On the other hand, in the case of divorce, the major issue concerning the child is custody. No dispute arises on the question regarding the inheritance rights of the child. The custody of the child is governed by the custody laws of the respective faiths. Generally, in the case of a minor child, both parents have equal rights. If there is no mutual agreement on the part of the child’s parents, the family court decides the custody of the child. It is a complicated procedure and may affect the child negatively. In the case of Sheoli Hati v. Somnath Das (2019), the Supreme Court held that while deciding custody of a child, the “welfare of the child is of paramount consideration.” There are both secular and religious laws governing the custody of the child: 

  • The Guardians and Wards Act, 1890 is a secular law that governs the custody and guardianship of all Indian children, irrespective of their religion.
  • Under Section 26 of the Hindu Marriage Act, 1955, the court can pass interim orders and also add provisions in the decree regarding the “custody, maintenance and education of minor children, consistently with their wishes.” After passing the decree, if any petition under this Section is filed in court, it may pass orders regarding custody. This Section also authorises the court to revoke or modify any order relating to the same.
  • The Hindu Minority and Guardianship Act, 1956 is a supplemental Act to the Guardians and Wards Act, 1890 governing the custody of Hindu children.
  • Under Muslim personal law, the father is the natural guardian of the child, but custody remains with the mother until the age of seven for a boy, and for a girl, it is before she reaches the age of puberty.
  • Section 49 of the Parsi Marriage and Divorce Act, 1936 governs the custody of Parsi children.
  • Section 41 of the Divorce Act, 1869 empowers the court to pass orders regarding Christian children.
  • Section 38 of the Special Marriage Act, 1954 governs custody of both the children of parents whose marriages were registered under this Act and also under the Foreign Marriage Act, 1969.

However, it must be noted that the statutory laws regarding custody of the child are also applicable for illegitimate children and also children of annulled marriages if any such disputes arise. The dispute over the custody of the child is more common in divorce proceedings.

Remarriage of divorced persons vs annulled marriage

There are no particular legal provisions on the remarriage of persons in annulled marriages. From the existing legal provisions, it can be inferred that if a marriage is annulled for being a void marriage, the marriage is prohibited by the statutes. Even if the parties remarry each other after the annulment, it will still be a void marriage and will not get any legal status. However, in cases of voidable marriages, where the marriage was annulled at the request of the injured party, they may get married at their own choice. On the other hand, since the decree of annulment invalidates the marriage, the parties may remarry immediately since the previous marriage did not exist in the eyes of the law. So once the marriage is annulled, the marriage does not exist anymore. The parties, after getting a decree of annulment, may remarry a third person.

The laws have provisions on whether divorced persons may get remarried: Normally, the parties have to wait to get the decree of divorce and there might be some time limitations. For example, divorced persons may remarry once the decree of divorce is granted by the court and there is no appeal against it, under Section 15 of the Hindu Marriage Act, 1955.

Provisions of divorce under different personal laws

A divorce is a legal procedure where a valid marriage is dissolved by the court. The provisions providing the grounds for divorce under different personal laws are as follows:

The Hindu Marriage Act, 1955

Prior to the enactment of the Hindu Marriage Act, 1955 there wasn’t any concept of Divorce as, under the Hindu Law, the marriage was considered as an indissoluble union of the Husband and wife. But the present legislation has introduced various important and dynamic changes in the law of marriage and divorce. It has clearly laid down under what circumstances one can seek a divorce from the other party and such circumstances have been laid down under Section 13 of the Act. It has laid down the grounds which are available to both husband and wife. According to it, any marriage solemnised whether before or after the enactment of this act may be dissolved, on a petition filed by either the husband or the wife on the following grounds that he/she:

  • Had performed sexual intercourse with any person other than his or her spouse after the solemnization of the marriage; or
  • Has treated the petitioner with cruelty after the solemnization of the marriage; or
  • Has deserted the petitioner for a continuous period of not less than two years before initiating the petition for divorce;
  • Has converted himself into another religion; or
  • Has been incurable of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent; or
  • Has been suffering from a communicable disease; or
  • Has renounced the world by entering into a religious order; or
  • Has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or

The parties to a marriage can also file a petition for the dissolution of their marriage on the ground that:

  • There has been no resumption of cohabitation between the parties for a period of one year or more after the passing of a decree for judicial separation in a proceeding to which they were parties; or
  • The decree for restitution of conjugal rights has been passed and such decree has not been complied with within one year of the passing of the decree.

Special Marriage Act, 1954

Section 27 of the Act has provided the grounds for divorce. According to it, the petition for divorce may be presented by husband or wife on the ground that:

  1. The respondent had performed sexual intercourse with any person other than his or her spouse after the solemnization of the marriage;
  2. The respondent has deserted the petitioner for a continuous period of not less than two years before initiating the petition for divorce;
  3. The respondent has been facing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code, 1860;
  4. Since the solemnization of marriage, the defendant has treated the petitioner with cruelty; or has been incurable of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent;
  5. The respondent has been suffering from venereal disease, a communicable disease;
  6. The respondent has been suffering from a disease, leprosy, which has not been transferred from the petitioner; and
  7. The respondent has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive.

Parsi Marriage and Divorce Act, 1936

Section 32 of the Parsi Marriage and Divorce Act, 1936 has laid down the grounds for the divorce. According to it, any party to a marriage can sue another party on the basis of one or two of the following grounds:

  • That the marriage was not consummated within the one year of marriage due to the willful refusal on the part of the defendant;
  • That from the date of marriage and up to the time when the suit for divorce was initiated, the defendant was of unsound mind;
  • That the defendant was pregnant at the time of marriage by some person other than the plaintiff;
  • That since the solemnization of marriage, the defendant has committed adultery or fornication or bigamy or rape or an unnatural offence;
  • That since the solemnization of marriage, the defendant has voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with a venereal disease or, where the defendant is the husband and he has compelled his wife to submit herself to prostitution;
  • That the defendant has been facing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code, 1860;
  • That the defendant has deserted the plaintiff for at least two years;
  • That the parties have not consummated their marriage for one year or more since the order for awarding separate maintenance for the plaintiff by the defendant has been passed by a magistrate;
  • That the defendant is no more belongs to the Parsi religion by conversion to another religion.

Indian Divorce Act (for Christians), 1869

The Indian Divorce Act, 1869 is one of the important codified personal laws in India which governs the Christian community. Section 10 of part III of the Indian Divorce Act, 1869 has laid down the grounds for the dissolution of a marriage. According to it, any husband can move to the District Court or to the High Court by filing a petition and praying for dissolving his marriage on the grounds that since the solemnization of the marriage, his wife has been guilty of adultery.

Similarly, any wife may pray to the District Court or to the High Court by filing a petition for dissolving her marriage on the grounds:

  • That her husband has renounced the Christian religion and has adopted another religion;
  • That her husband has gone through a form of marriage with another woman;
  • That her husband has been guilty of incestuous adultery, or of bigamy with adultery, or marriage with another woman with adultery, or of rape, sodomy or bestiality;
  • That her husband has deserted her for two years or more without reasonable excuse.

The Indian Divorce Act, 1869, governing the divorce and other matrimonial causes of the Christian community was based on the English law of divorce and this is suggested by Section 7 of the act which says that the court should act according to the principles of English Divorce Court. These provisions regarding the divorce, contain discriminatory laws to get a divorce from a wife the husband has to prove that his wife has committed adultery. However, for a wife to get divorced from her husband has to prove an additional matrimonial offence like bigamy.

Therefore, a need to reform the present discriminatory law was felt and the same was held by the Supreme Court in the case of Ms. Jordan Diengdeh vs S.S. Chopra (1985). The constitutional validity of Section 10 was challenged in the case of Mary Sonia Zachariah vs Union Of India (Uoi) And Ors. (1995), in which the Supreme Court asked the union to amend the law within six months.

This gave a new law Section 10A, with the heading ‘dissolution of marriage by mutual consent’ which was introduced by the Indian Divorce (Amendment) Act, 2001. According to Section 10A(1), a petition for dissolution of marriage can be moved by both parties to the district court on the grounds:

  • That both the parties were living separately for two or more years;
  • That they are unable to live together;
  • That they have mutually agreed to dissolve their marriage.

Sub-section 2 of this section says that if six months after the date of institution of proceedings and after the eighteen days of the said date, the petition is not withdrawn by the parties then the court should pass the decree of dissolution of marriage to be dissolved with effect from the date of the decree, after being satisfied by hearing both the parties that a marriage has been solemnized and that the averments in the petition are true.

How an annulment is different from divorce

Annulment is a procedure in which a marriage is declared as null and void. These marriages are good in law until avoided by one party at whose option it is voidable. Divorce is altogether a different concept. In a divorce, the petitioner prays to end the marital bond owing to certain events which may be overlapping with some of those under which makes a marriage voidable. Prima facie these two terms may look similar as both of them deal with termination of marriage but they hold two different meanings.

Effect of annulment is that there was no marriage between the parties after the decree of nullity is passed by the court. Whereas in case of divorce, the petitioner seeks only to break the bond. Petitioner does not challenge the marriage itself. While praying for the decree of annulment, the petitioner challenges the validity of the marriage. The main differences between the two concepts are:

  • The main aim of annulment is to declare a marriage void which was never valid. However, the party prays for divorce to end a valid marriage.
  • After the annulment, the status of the party becomes single or unmarried and after divorce, the parties become divorced.
  • After the annulment of marriage, no duties or obligations are aroused but after the divorce, a situation to pay alimony may arise as it depends on the case.

Conclusion

Annulment is a process in which the marriage is declared as null and void due to some reasonable causes and these causes include that the legal requirements were not met at the time of marriage. When certain legal requirements are not met at the time of the marriage then the marriage is not considered as a valid marriage. A divorce is a legal procedure where a valid marriage is dissolved by the court. These two terms deal with two different legal concepts. In the case of divorce, the petitioner seeks only to break the bond. Petitioner does not challenge the marriage itself. While praying for the decree of annulment, the petitioner challenges the validity of the marriage.

References

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