How Are Nullity and Divorce Seen under Indian Laws?

Nullity of a marriage is not equivalent to a divorce, the former being less grave than the latter. A decree of nullity can be obtained when the marriage is either void or voidable.

For example, if a woman, living in Patna, is unaware that she has a distant cousin in Ranchi and marries him, their marriage is void. Even the best divorce lawyers of Patna would advise her to apply for a decree of nullity, even though it is mandatory as per law.

Also, contrary to common belief, child marriages are not void in India.

Such ties of matrimony between related people are prohibited by law, in that, their marriages are void. Therefore, one spouse cannot be the sapinda of the other spouse, nor can the other spouse be in the degree of prohibited relationship of the other spouse. Sapindas, are relations up to the third generation (both inclusive) along the maternal line and relations up to the fifth generation (both inclusive) along the paternal line. Degrees of prohibited relations are certain relations among which a person cannot marry unless the custom of both the parties approves of such a relationship.

Apart from marriages among related members of a family, bigamous marriages are also void, and therefore, the other spouse of such a marriage can marry an already unmarried person, and such marriage would be completely legal in law.

Additionally, a marriage which hasn’t been solemnized as per proper Hindu rites and customs shall also be void. Even though the statute doesn’t state all the necessary rituals, the taking of the seven pheras around the holy firs, exchange of flower garlands, managalsutra and sindur are some of the fundamental requisites, without which no Hindu marriage can be said to be complete.

Section 12 of the Hindu Marriage Act, 1955, also provides for a marriage to be declared void, on a petition made by one spouse on any of the following grounds:

  1. Pregnancy (with a third person) of the wife at the time of marriage, which fact was unknown to the petitioner, provided the petition is filed within one year from the date of the marriage for marriages solemnized after the commencement of the Act and within one year of the enactment of the Act for marriages which were solemnized before the Act came into force.
  2. Impotency (both physical and mental), of the other spouse, as a result of which, the marriage has failed to be consummated.
  3. Insanity or unsoundness of mind (whether permanent or temporary), which affected the free consent of that spouse at the time of marriage.
  4. If the consent of the other spouse was sought by force or fraud, provided that the petition is filed within one year from the date when such force ceased to apply or as the case may be, the fraud was discovered.

For ground numbers 1 and 4 mentioned above, there must not have been an act of condonation on behalf of the aggrieved spouse. An act of voluntary sexual intercourse or living together as husband and wife shall qualify to be acts of condonation.