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sivvi (own)     12 August 2013

Appeal after marriage null and void decree

My brother got married 4 months. The girl has some incurable disease for 10 years and got married to my brother without his knowledge. we have filed for marriage null and void decree. The other party has agreed on nullifying the marriage if we provide some compensation. Now both the parties have agreed on this and we are compensating for marriage expenses also. 

Question is whether the other party be able to make appeal to re-open the case or make an appeal on the decision even after mutual consent on the null and void decree?


 15 Replies

Shantanu Wavhal (Worker)     12 August 2013

first of all, there is nothing in law called as - declaring marriage null and void BY MUTUAL CONSENT.

the marriage of ur brother is valid marriage & is covered by sec. 12 - voidable marriage and this marriage has to be annulled by court.

it can not be declared void ab initio.

either he has to file sec. 12

other option : MCD.

Nadeem Qureshi (Advocate/     13 August 2013

if there is any aprehension regarding future security then filing MCD is better option

sivvi (own)     13 August 2013

Thanks for the reply.

But my concern is 

1. Say the marriage has been annulled by court. Will the other party be able to make an appeal against the decision by court?

2. Also, If we go for MCD, do we have to wait for 1 year completion of marriage?


Shantanu Wavhal (Worker)     13 August 2013

yes to both

gd dy (gd dy)     13 August 2013

gd mrng.

first let the court take own decision after hearing both concerned parties. thn think to go for appeal or not.

only those go for appeal, judgement is not in their favour..

r u got the order and in whose favour  ?


@ sivvi

r u still waking even @ 04:00am. seems much tensed.

try to understand ur mental position. u must luv ur brother too much.

gd dy (gd dy)     13 August 2013

gd. dy.,
don't knw whether appreciate ur patient or say wht type of the person they r. @ the cost of one innocent life who r unaware of it.

frm the detail of ur post it seems tht ur brother did not consumate marriage. means she suceeded to deny him under one or other pretext. imagine tht he agreed. reason : trust. like me.

m also victim of the same kind. bt nw v r both free and my ex has married to her byfrnd.

so it is ur new case.

by the way u did not mention when ur brother is  married ? she is still with him if not thn their seperation period ? it is important. also in which city & state u live.

decision of cases in fmly court in maharashtra r speedy and myself too experienced it. if u r in maharashtra thn don't hv much time problem.

it goes w/o say tht all formalities relating to claim r over.


why u worry ? if one is clear from bottom of heart thn no need to worry.

Shantanu Wavhal (Worker)     13 August 2013

decision of cases in fmly court in maharashtra r speedy


OMG ! really ??

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     13 August 2013

In most cases your brother won't be able to nullify his marriage, but will have to go through adivorce. However, there are certain circumstances where your brother marriage is automatically void, like if his partner was a blood relative or under 16.


If your brother marriage is not valid for any reason then he can have the marriage 'Annulled'. This is done by presenting a 'Nullity Petition'.

Here are some examples of when your brother may seek an annulment of his marriage:

  • It has not been consummated (i.e. he has not had s*x with each other since they were married)
  • At the time of the marriage his partner was already married to someone else
  • One of them was under 16 years of age when he got married
  • they have inter-married (i.e. married a close relative)
  • His partner had a s*xually transmitted infection at the time of the marriage and they were aware of this at the time, but you weren't
  • His partner was pregnant with another person's child at the time of the marriage and they were aware of this at the time, but you weren't
  • He must apply to annul the marriage within a reasonable period of time, in some cases this will be within three years. There is no requirement to have been married for 12 months before applying for a nullity.
  • His partner was pregnant with another person's child at the time of the marriage and they were aware of this at the time, but you weren't

Shantanu Wavhal (Worker)     13 August 2013

sec. 5, 11 & 12 should be construed properly.


5.         Conditions for a Hindu marriage

A marriage may be solemnized between any two Hindus, if the following condition are fulfilled,  namely:-

(i)        neither party has a spouse living at the time of the marriage

1[(ii)     at the time of marriage, neither party-

(a)       is incapable of giving a  valid consent to it in consequence of unsoundness of mind; or

(b)       though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c )       has been subject to recurrent attacks of insanity2 [***]

(iii)       the bridegroom has completed the age of 3[twenty one years] and the bride, the age of  4[eighteen years] at the time of marriage

(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;

(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; 5[***].


Hindu Marriage Act not only makes bigamous marriage void but also punishable under s.17 read with sections 494 and 495 of Indian Penal Code. What is to be established is that the second marriage is valid but for this provision and the spouse to the first marriage is the  legally wedded spouse and the that marriage is having its existence on the date second marriage is solemnized- Gopal Lal v. State of Maharashtra AIR 1979 SC 713

In order to render second marriage invalid, it is necessary to establish first marriage as valid. Where an application to claim maintenance is moved by second wife, onus is upon the husband establishing the second marriage in contravention of the provisions of cl.(1) of s.5 -Mohan Ram v. Badamo Devi 1974 cr. LJ 227

Suffering from schizophrenia as a sound ground for a decree of nullity. Whether the disease is curable or not does not make any difference. Where in due course the disease is cured, it would not affect the question of validity of marriage.-Tulsi Bai v. Manoharan 1990 (1)HLR 318

It is not the requirements that a person should be insane or suffering from epilepsy at the time of marriage. It is sufficient if he or  she had been subject to recurrent attacks of insanity or epilepsy-Bala Krishna v. Lalitha 1984 (1)APLJ 32

In the case of a bigamous marriage, it is necessary to establish the performance of essential ceremonies which constitute a valid marriage and thereafter leading some evidence in support thereof. -Ashok Kumar v. Krishna Kumari 1993(1) HLR 114

The expression “connivance” suggests some aiding or abetting which is active or some conduct sufficient to infer such aiding or abetting within the term “connivance”is included such conduct which would amount to passive acceptance of the lapse of the wife and the other men concerned-Krushan Chandra Patra v. Tanu Patra 1993 (1) HLR 116

The expression “procreate” having a very wide meaning, indicating capacity of spouse to give birth as also to rear up the children.-Alka Sharma v.A.C.Sharma AIR 1991 MP 205.


Where the marriage is solemnized, disregarding the provision of Child Marriage Restraint Act, the petition of the wife claiming restitution of conjugal rights is liable to be dismissed.-Dinesh v.Rekha 1986 (1)HLR 


11.       Void marriage

Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 5[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.


The expression “either party thereto” as used section 11 means only the actual parties, to the marriage. The expression does not include any third party.-Suresh Kumar v. Smt Asha Rani 1993 (1) HLR21 .Where the decree of nullity has been granted by the High Court, question does not arise of the marriage being again declared a nullity by confirming the  decree passed by the District Judge.-Thomas Cherian v.Nisha Thomas AIR1993 Ker 19

12.       Void able marriages

(1)       Any marriage solemnized, whether before of after the commencement of this Act, shall be voidable and maybe annulled by a decree of nullity on any of the following grounds, namely.-

1[(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

(b)               that the consent of the petitioner, or where the consent of he guardian in  marriage of the petitioner 2[was required under section 5 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 3[or by fraud as to the nature of the ceremony or as to any material fact or  circumstance 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  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 special in clause (d) of sub-section (1) shall be entertained unless the  court is satisfied-

(i)        that the  petitioner was at the  time of marriage ignorant of the facts alleged.;

(ii)               that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriage solemnized 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  4[the said ground]



Where the petition for annulment of marriage is filed after 8 years of marriage, such a petition would be barred by time-Sarlabai V.Komal Singh AIR 1991 MP 358.Selectin of bride with total knowledge as regards her defects would  serve as estoppel from arguing that marriage was tainted with fraud.-Ruby Roy v. Sudarsan Roy 1988 Cal.210.

Where mental disorder of the wife was the ground for obtaining divorce, there cannot be a challenge to the grant of alimony on the ground that mental disorder was in existence prior to the marriage and therefore the marriage was  voidable under s. 12(1)(b) -Mukesh Mathur V.Veena Mathur AIR 1989 Raj 97.

Where the annulment is sought on the ground of fraud, details which  the professional match makers supply bear no relevancy as the parties are at liberty to verify the facts.-Deepayan Chatterjee V.Papiya Chatterjee 1990 (1)HLR 113

gd dy (gd dy)     13 August 2013

appreciate ur readiness to b helpful. bt first of all knw the details. such as 'NAME' of incurable disease her sil hv.

bt fail to understand why queriest wants tht her sil should not go for appeal. her afraid is confusing.
to appeal or not to appeal is entirely discrency of person. no one can stop. thn why one worry unless there is cooking.

ofcourse reason only suvvi knw & only she can explain.

sivvi (own)     20 August 2013

Thanks amit.. U have cleared my queries. 


jayesh   02 March 2015

hi my frind is jain girl 

she will 1st divorce don at may 2010 and she will second marrige in nov 2009 in arrya samaj as a she is unmarride so second marrige is not sucsess coz boy is not good he had afair someone and drinking proble and more then. she will try with murtul divorce but he not agree so divorce not done so now how can diclare second marrige is null and void, that how can do that and how much time 2 prosses for that plz help me 

Adv. Chandrasekhar (Advocate)     02 March 2015

If first marriage divorce happened in May, 2010 but second marriage happened in Nov. 2009 - seven months earlier to the divorce, then second marriage is void.  She can file petition for declaration of that second marriage is void.  For that she has to prove that second marriage happened in Nov. 2009 and first marriage divorce decree dated May 2010.

Adv k . mahesh (advocate)     02 March 2015

arya samaj will provide you a certificate with that any aggrieved party can file to make the marriage a null and void

and why ever a new query is started dont club with another query , start a new thread 

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