Nullity of marriage under indian divorce act

P. Vijaya Akilan (Querist) 08 July 2013 This query is : Resolved
hi,
i have question regarding the nullity of marriage under the indian divorce act.
the petitioner is a husband and he is studying in Korea and he was married to a girl who is working as a nurse in army. at the time of marriage itself the boy's parents informed the parents of the girl that their son is studying in korea and he will not be able to come down frequently and the parents of the girl agreed that the their daughter would go to korea in the months of january and febuary every year. after marriage the marriage did not consumate and they both left for their respective places and after that the girl started to avoid the husband and stated during talking over skype that she married the boy out of force only by her parents and she was not interested in marriage.
now i wanted to know is whether a person can file a petition for divorce under section 19 of indian divorce act in the district court on the ground of force or fraud. and also want to know about the limitation period whether i can file the petition within 1 year of marriage

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Devajyoti Barman (Expert) 08 July 2013
No, except expiry of one year the ovorce suit is not proceed with.
tHE GROUNDS SET FORTH ABOVE IS GOOD GROUND FOR DIVORCE.

Advocate M.Bhadra (Expert) 08 July 2013
Annulment of marriage on nullity ground is different issue from Divorce.Either party can file a Suit for Annulment of Marriage under Special Marriage Act for non-consummated marriage if their marriage is concerned under SPECIAL MARRIAGE ACT.

Section 25 in The Special Marriage Act, 1954
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 wilfull 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;
1. Subs. by Act 68 of 1976, s. 25, for certain words.
(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.

Calcutta High Court
Smt. Gitika Bagchi vs Subhabrota Bagchi on 25 September, 1995
Equivalent citations: AIR 1996 Cal 246, 100 CWN 646
Author: R Bhattacharyva
Bench: S Mukherjee, R Bhattacharyya
ORDER

R. Bhattacharyva, J.