What's the procedure for Divorce and it's difference from annulment?
What should I do for the Annulment of my marriage? What is the difference between Divorce and Annulment? If I have to take Divorce from my wife, what is the procedure?
In strict Legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this.
Annulment is a legal procedure for declaring a marriage null and void. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.
Grounds For Annulment (mentioned in Section 5 read with Section 12 of the Hindu Marriage Act).
The grounds for a marriage annulment may vary according to the different legal jurisdictions, but are generally limited to fraud, bigamy, blood relationship and mental incompetence including the following:
1) Either spouse was already married to someone else at the time of the marriage in question;
2) Either spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse's reaching marriageable age);
3) Either spouse was under the influence of drugs or alcohol at the time of the marriage;
4) Either spouse was mentally incompetent at the time of the marriage;
5) If the consent to the marriage was based on fraud or force;
6) Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;
7) The marriage is prohibited by law due to the relationship between the parties. This is the "prohibited degree of consanguinity", or blood relationship between the parties. The most common legal relationship is 2nd cousins; the legality of such relationship between 1st cousins varies around the world;
8) Prisoners sentenced to a term of life imprisonment may not marry;
9) Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease).
Now with respect to divorce, the Hindu Marriage Act recognizes the petition for divorce by one of the spouses or a divorce by mutual consent.
Section 13. Divorce - (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:-
i) is living in adultery; or
ii) has ceased to be a Hindu by conversion to another religion; or
iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or
iv) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or
v) had, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or
vi) has renounced the world by entering any religious order; or
vii) 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 it, had that party been alive; or
viii) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or
ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground:-
i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
Section 13 B: The benefit of this is that you both can agree on the terms and conditions of the divorce and be divorced within 6 months.
Section 13 B states that the parties can jointly move a petition for dissolution of marriage by a decree of divorce in the District Court on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. The Court shall then record the joint statement of the Parties and pass a First Motion Order giving time of 6 month to the parties to resolve their dispute, however in case the parties are unable to resolve the issues within the stipulated time, the Court shall pass a decree of Divorce. So therefore divorce by mutual consent takes about 6-7 months.
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