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Cupid Cupid (CRM)     10 October 2012

Marriage annulment in india

Hi, 

I understand that Dviorce cannot be filed within one year of the marriage (as per hindu marriage act); marriage should be more than a year old for divorce. However, what is the duration for filing annulment of marriage in india? Is this also one+ year or can marriage annulment in india be filed even within the first year of the marriage? 

I have this question since my lawyer says that some of the judges may dismiss or not entertain divorce cases if the marriage is less than a year old. When I talked to him about annulment of the marriage, he simply says that it is similar to divorce and there isn't much difference.

Kindly advice.



Learning

 21 Replies

Waren Siegel (Independent Lawyer)     11 October 2012

Divorce can be filed within a year if there are exceptional circumstances which is decreed very rarely. Anullment has to be filed within a year from the coercion or fraud having taken place. The earlier it is filed the better it is.

Don't venture into understanding the academic difference between annulment and divorce according to the Hindu law. If bringing to an end the marriage is what you intend then it shouldn't matter whether it comes by a decree of annulment or divorce. You can seek both the alternate reliefs in your petition. Take the decision after discussing with your lawyer. Your lawyer is your best judge.

1 Like

Pradeep Kumar (Lawyer)     11 October 2012

Annulment of marriage is not equal to divorce. Divorce proves the fact of marriage but annulment of marriage is based on the fact that marriage doesn't subsist. Now, annulment of marriage can only be made within a year or marriage but not afterwards. Adv.Pradeep Kumar,09871765000 ,Gurgaon.

Ashimta Lekhi Malhotra (Independent Lawyer)     11 October 2012

I endorse the opinion of Mr.Siegel that you should ask for both the alternative reliefs of annulment and divorce. Leave it to be decided by your lawyer.

Shantanu Wavhal (Worker)     11 October 2012

 

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]

 

COMMENTS

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

Distressed_Girl (home)     29 January 2014

Hello Sir,

I was married in November 2012. It was an arranged marriage.

My in-laws and husband subjected me to physical and emotional torture and also openly asked for dowry, although my parents had given us everything in the wedding. My husband even refused to sleep in the same room with me for the same reason. ventually I was thrown out of the house, and told to return only if my parents agreed with their demands. I even filed a case of dowry harassment against them, in Jan 2013.

 I have been living apart from my husband since Jan 2013 now. Please guide me as to how may I file for annullment of marriage in this case, as we have already spent so much time apart, and I do not wih to remain attached to such a man, in any way.

stressed guy (designer)     08 September 2015

hi,

I was married one month back with one of indian girl in my same cast was an arrange marriage. I live overseas permenant base which was i already ask to girl that need to move overseas but now after marriage girl and their parents are rejecting to move overseas even after marriage we never stay overnight underroof and never had s*xual relation is that good enough ground to get annulment marriage? And could you please provide some duration will run in court process.

Thanks

I walk alone (Asst Manager)     08 September 2015

@ Stressed Guy, dont get stressed not at all..!

Just wanna ask some thing, what is that you wanna do? Dump her? Just like that? Just because she is not willing to move? What have you done to change her mind? what are the husbandly resposibilities you have done to her? Have you even asked her why she is not willing to move abroad with you? Have you analysed her problems? Have you tried speaking to her family thru your elders? Have you personally spoken with her parents and trying convincing her about moving? How come a newly married couple never stayed together for even a single day even for a marriage of one month? Very stragne... & buddy this are not my questions, these are the basis questions you're gonna face in the case of annulment/divorce.

In Annulment of Marriage you've to prove you spouce as impotent or relatively impotent or underage, marriage without consent, or her pregnancy with some other man during the time of marriage & then you have to prove that martial intercource didnt take place. I guess none of this is happens to you right? So forget about Annulment so clearly Annulment is not possible for your case (in HMA). my sueestion is, try the things which you didnt, (I mentioned in previous paragraph) & live a happily married life. Everything's gonna be fine if you want it to be. Even you can convince her to move with you instead of staying here in India. Finally its your call....

For the divorce, you need to wait for 1 year & then you & your wife can go for MCD, 6 months case will take. Otherwise, you can also file Contested divorce on the gorunds "Cruelty to Husband - Unwilling to move & Unwilling to have s*x" which will take years to prove and come into the reality & additionally, be prepared for 498A & 406 (As mostly this is what she will counter your claim to shut your mouth) now its your call... what you wanna do!

I walk alone (Asst Manager)     08 September 2015

@ Distressed Girl

Can you prove as you husband as impotent or relatively impotent or underage, marriage without consent or was out of sence and forcibly married to you? if not forget about the Annulment.

Better go for MCD, as you have already done half of your work, (Filing Dowry Harrasment, I'm sure your advocate has also filed 498A), you husband and your in-laws are already facing the heat anyways, so better talk to them and move the MCD. & yes, if you ask for Money (alimony) then, you know this better, your in-laws are very adament enough to not to give you any money and can do anything (when they can ask money for dowry)

I assume, you're well educated female, havent ever thought, giving dowry is equally an offence??

 

1 Like

stressed guy (designer)     08 September 2015

Yes I had ask her to get the passport to sponsor to travel another country than she start making excuse as I just went for a two week to meet in than both liked each other and than step in for ahead process as I do not had much time to spend in india for bigger marriage ceremony n all we end up with marry in our samaj and they registered it. After marriage her mother ask us not yet to declare everything as they want to do proper marriage than wants to declare so we did same as they ask n also said that we can not send their daughter to their house in marriage dress so they take her back. Than after we meet during day time in public place and all but just talking n all no s*xual things. After a week I had flight to australia so I came back. After week or so she start making excuses why she not going for passport to get it when I clearly ask I am going to sponser you next month than she just denied and start saying I dont thing our thinking is matching, you never gave any gift, you never take me out anywhere n all. Which was total lie. So you can understand what should be my answer for this type of dump minded girl, no one like to live with that who just dont have any understanding n all the time playing games. Thats the situation. Need big help😢😢😢😢

stressed guy (designer)     08 September 2015

Even my family went to talk to girl but she never stay home that time obviously we call first and ask we need to talk can you give time? But still she wasnt here is not good enough to know she just no more interested or may be has been forced to do so?

I walk alone (Asst Manager)     08 September 2015

See Brother, As per my understanding, Your wife is not expecting anything wrong from you. Try to understand girls mind (very hard though) they like to be pampered, they like to be cared by their husband/Boyfriends. additionally, she just have known you (as you already said, marriage took place within very short notice) how come, she would go to an unknown country with you? think, isnt it logical to ask? Pls spend some time with her in India, give her some time and show your care & love towards her. Let her know what you're actually made of and your emotional side. I'd just say, she is being protective & nothing else.

In the worst scenario, pls wait for a year, walk together for a MCD.

deep (deep)     08 September 2015

My husband filed annulment of marriage after 2 years 10 months of our marriage, we have a son of 2 and half years. If annulment case is to be filed within a year, but i received summons. 

 

I walk alone (Asst Manager)     08 September 2015

Hi Deep, what is the reason of annulment he mentioned, can you briefly mention?

deep (deep)     08 September 2015

Hnji sure.

Now he (husband) filed divorce u/s 12 in ambala saying my bad character, no saptapadi (phery) in our marriage. 

Ground taken fraud by him section12 c (he says wen they came for marriage, my parents said hmary family me phere ni hoty . So they took wife (me) home believing the same. In 2014, petitioner (my husband)inquired n came to know that respondent (my)family me phere ka custom hai . So respondent played fraud.they say in petition that - no saptapadi- no shadi mentioned section 7 (2) HMA so now applied for nullment. Phere huy thay but I have no photographs no proof. All dowry, my original certificates, marriage photos etc in their possession. He has written in petition is as under

The petitioner came to know about this fraud that saptpadi is prevent n compulsory in brides family a few months back otherwise petitioner would not have cohabilitated n married the respondent wife. So he says girl n her family played fraud in customs etc It is second marriage of both of us, so it was very simple but everything otherwise was given in marriage n every occassion, but no outsider witness present. I have many photos but not that of saptpadi, and that he knows because he knows I have only photos of Garland, sindhoor, manglasutra etc , (rest all photos of phere etc photos, greh prevesh photos he has, but he is not producing those delibrately.)

 


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