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How to End a Marriage in India?

November 15, 2023 हिंदी में पढ़ें


Marriages are considered to be pious in India. They are believed to be an eternal bond that lasts not only for this lifetime but also for the lives to come. Couples may want to end their marriage due to incompatibility issues or for that matter any other reason. In India, marriages are governed by personal laws depending upon the religion of the person. There are commonly two methods of ending a marriage in India either through divorce or an annulment decree from the court. Divorce dissolves a marriage whereas annulment declares a marriage as null and void as if the marriage did not happen at all. The grounds for both of them differ. In case of a divorce, the divorced couple is tagged as a divorcee, whereas in annulment the status of the couple goes back to what it was prior to marriage,i.e. Single.


Concept of Marriage

Marriage is one of the oldest establishments in our country. It is one of the ten most important religious sacraments of the Hindus. It plays a very important role in the social life of a Hindu and has no doubt become an obligatory duty. In a Hindu marriage, a father gives his daughter to a sound groom who then is the daughter's husband and will take care of her, this form of marriage has been entrenched since the Vedic period. A Muslim marriage is a civil contract and is not anyway related to religion. The nature of Muslim marriages is very different from that of Hindu marriages. Marriage in Muslim law has the aim of the unity of two sexes to form a family. Just like Hindu marriage is known as a sacrament in Christianity also. It is considered a relationship that is not dissolvable. According to Christianity God is the creator of marriage, and lays the plan of marriage as a lifelong union.


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Annulment of Marriage

Annulment is a legal procedure declaring a marriage null and void. There are different grounds on which a marriage can be annulled. An annulment can be done in cases of void marriages and voidable marriages.


Meaning

A void marriage is no marriage at all, it is considered to invalid from the very beginning. A voidable marriage is one that can be avoided at the option of the parties to the marriage. Voidable marriages are valid unless their validity is questioned. In the case of void marriages, parties can remarry without getting a decree of nullity from the court but they cannot do so in case of a voidable marriage.

Consult: Top Divorce Lawyers in India


The Grounds for Annulment

Following are the grounds for annulment- 1. Inability to consummate the marriage- If either of the spouses is chronically unable to have sexual intercourse or is impotent. 2. Incapable of giving Consent- If either of the spouses was incapable of giving consent at the time of the marriage. 3. Mental Disorder- If either of the spouses was suffering from a mental disorder at the time of marriage owing to which he or she cannot be considered fit for marriage or procreate children. 4. Insanity or epilepsy- If either of the spouses suffered from recurrent attacks of insanity or epilepsy then it serves as a ground for getting an annulment. 5. Under the legal marriage age- In India, the legal age of marriage for males is 21 years and for females is 18 years. If either of the spouses is under this age then annulment can be sought.


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Religious Annulments

There are laws for divorce and annulment in many religions. Permission is frequently given by written policies or by the clergy from a particular religion. Religious authorities' consent for an annulment or divorce is typically obtained through a different procedure from the legal one. Your religion's divorce and annulment laws usually dictate whether you can take part in other religious rites or whether one, both, or neither of the parties is permitted to remarry within the faith (or in a religious ceremony).


Voidable Marriages

As per Section 12 of the Hindu Marriage Act , marriage is considered voidable if- 1. Consent is obtained by fraud 2. Forced Consent- If consent to marriage is obtained through coercion or physical threat then such forced consent is a valid ground to seek an annulment. 3. Concealment of material facts- If any material fact like the age, past, or criminal record has been concealed by the parties then the aggrieved spouse can seek an annulment on this ground. 4. Pregnancy- If at the time of the marriage the respondent is carrying a child of some other person the husband can seek an annulment but this right is forfeited if the marriage is consummated after he came to know of this fact.


In cases of Children Born out of Marriage

If a marriage is void and children are born out of that marriage then according to the Hindu law, these children are legitimate. In cases where the children are born out of the voidable marriage then the children are legitimate and they can inherit the properties of their parents but will have no right to the ancestral property.


Nullity of Marriage

An official statement that a marriage never happened is known as the nullity of marriage. This indicates that the parties were not legally married the circumstances or the parties themselves are invalid.


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Divorce

If your marriage is not void or voidable then the other way to end a marriage is through a divorce. Divorce can be done either with mutual consent or it can be a contested divorce.


Mutual Consent Divorce

In mutual consent divorce as the word suggests is with the consent of both the parties, i.e. both the parties agree to divorce each other and end the marriage. Previously, the provision of mutual consent divorce was a little tough whereas with the help of the recent Supreme Court judgment mutual consent has been made easier and also serves as a time saver. Couples who do not wish to live together can just simply go to the court and file for the mutual consent divorce as in this kind of divorce with recent modifications the cooling-off period of six months has been waived off.


Contested Divorce

A contested Divorce is when only one of the parties wants a divorce. The party seeking divorce can file for it on any of the following grounds-


Cruelty

As per the Hindu Divorce Laws in India, if one spouse has a reasonable fear in the mind that the partner's conduct in all likelihood be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse. It can be both mental or physical.


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Adultery

In India, adultery is a criminal offense. Adultery means to have sexual intercourse outside of marriage. The wife may, also, file for divorce as another remedy.

Consult: Top Divorce Lawyers in India


Mental Disorder

If either spouse is suffering from mental illness and is incapable of performing the normal duties expected in a marriage then it becomes a valid ground for divorce.


Desertion

A spouse leaving/ abandoning the other without reasonable cause is a valid ground for divorce. For instance, as per Hindu laws, the desertion must last for at least 2 continuous years. However, the spouse who abandons the other should do so to desert and there should be evidence of it.


Communicable Disease

Under the Hindu Divorce Laws, if a spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy then it is a valid ground for divorce.


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Presumption of Death

If either of the spouses has not been heard of by the other spouse as being alive for a period of at least seven years, then the spouse who is alive can obtain a divorce.


Conversion

If a spouse converts to another religion then the partner can seek divorce. This reason does not require any time limit to have passed before a divorce can be filed.


Renunciation of the World

If either of the spouses surrenders his/her married life and chooses to be a sanyasi, the aggrieved spouse may obtain a divorce on this ground.


Nullity of Marriage Under Different Personal Laws in India


Under Hindu law

Hindu laws are derived from two sources: contemporary and ancient. Shruti, Smriti, Commentaries and Digests, and Customs are the oldest sources. Justice, equity, and good conscience, as well as precedent and legislation, are the contemporary sources. According to Smrities, marriage is a necessary sanskar. Smriti asserts that everyone must perform. Prior marriages were unbreakable, and religious and spiritual obligations had to be fulfilled. Before the parliamentary passage, Hindu personal law did not recognise the concept of annulment or nullity of marriage because it saw marriage as a lifelong holy union.

  1. If, at the time of the marriage, any partner is married to someone else.

  2. At the time of the marriage: Neither partner shall be incapable of giving consent due to unsoundness of mind

  3. Even if both individuals are competent to give permission, they shouldn't have any mental illnesses that would prevent them from being married and having children.

  4. There shouldn't be a history of repeated episodes of insanity for either party.

  5. The wife must be at least eighteen years old, and the husband must be at least twenty-one.

  6. Hindu law forbids marriage between people in relationships unless local norms approve of such partnerships.

  7. If their customs do not permit it, parties should not be members of the same sapindas.

Some marriages, referred to as voidable marriages, are nonetheless legally binding up until they are ruled void. A Hindu Marriage Act of 1955 section 12 declaration of nullity dissolves a voidable marriage. It is entirely up to the partners in voidable marriages whether to dissolve the union by a court order or carry on with the union. A marriage can be held voidable in case of-

  • Impotency

  • Lack of valid consent or forced consent

  • Underaged marriage

  • if at the time of marriage, the respondent is pregnant with somebody else's child.

Consult: Top Divorce Lawyers in India


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Nullity of Marriage Under Muslim Personal Law

A marriage is defined by the Muslim Personal Law (Shariat) Application Act, 1937 as a dissolution agreement between two people of different genders. A contract is one in which & quot Mehar& quot is also decided and both parties must provide legitimate consent. For this reason, divorce is accepted among both Sunnis and Shias. The Dissolution of Muslim Marriage Act, of 1939, states that a marriage is null and void if neither party or their legal guardian has given their legitimate permission. According to Muslim personal law, the following reasons might lead to a marriage being dissolved:

  • Marriage with a woman who does not follow Islam

  • Marriage between & quot Maharam& quot or & quot milk relation& quot near blood relatives

  • marriage to someone who does not believe in Islam or who renounces it

  • Conditional or temporary marriages are null and void among Sunnis.

  • marriage with a lady during her Iddat phase

  • If the terms of marriage conflict with Islam


Nullity of Marriage Under Christian Law in India

Separation is forbidden by Christianity. Marriage is therefore a public religious ritual since it is an indissoluble and holy relationship. As such, a marriage's nullity is hard to declare. Nonetheless, a distinct marital statute known as the Indian Christian Marriage Act, of 1872, was created to protect Indian Christians from prejudice and advance societal development. In addition to their divorce, the act was passed. For the nullity of marriage, Indian Christians likewise adhere to the Indian Divorce Act of 1869. The grounds for a marriage being deemed void under the 2001 amendments to The Indian Divorce Act 1869 are:

  • In the case that the respondent was impotent both when the lawsuit was filed and when they were married.

  • When a couple marries, they both have a living spouse at the time of the marriage, and the marriage remains valid.

  • Marriage between individuals whose consanguinity or affinity is forbidden

  • When they got married, one of the parties was insane.


Nullity of Marriage Under Parsi Marriage and Divorce Act, 1936

The Parsi community in India adheres to their own set of regulations about marriage. As to the provisions of Section 30 of the act, a marriage that cannot be consummated due to natural causes may be deemed null and void upon the request of either of the involved parties.


Nullity of Marriage Under Special Marriage Act, 1954

  • A marriage may be ruled void by a decree of nullity under Section 24 of the Special Marriage Act, 1954, upon the petition of any party. The grounds behind are-

  • Each party's spouse is still alive.

  • Due to mental illness, incapacity to give informed permission, or unfitness to bear children, either party was unable to give their informed consent.

  • The parties are underraged.

  • The parties are involved in an unlawful relationship.

  • Respondent's impotence


Other Grounds to Declare Voidable Marriage Null and Void Under Special Marriage Act, 1954

  • The marriage has not been consummated because of the respondent's deliberate unwillingness.

  • Respondent's pregnancy through another person at the time of marriage

  • According to the Indian Contract Act of 1872, any party's consent was obtained through deception or coercion.


Procedure to Obtaining Decree of Nullity of Marriage

Under all Indian personal laws, the process for obtaining a decree of nullity of marriage is essentially the same.

  • The petition must be filed with the relevant court (relevant courts under various personal laws: The Hindu Marriage Act of 1955 and the Special Marriage Act of 1954 provide for the matter to be decided by a family court or a city civil court. In Muslim law, the religious community makes the final decision on matters rather than the court (in Parsi law, the court refers to the court created by the act).

  • The residence of the respondent or defendant will be determined by the jurisdiction of the relevant court.


Timing of an Annulment vs. Divorce

People frequently believe that because the duration of a marriage lasts only a few months, it might be dissolved by annulment. However, a brief term is not a valid reason for annulment. For a marriage to be deemed void, it must still satisfy one or more of the aforementioned requirements. Furthermore, a long-term marriage could not be eligible for annulment. An annulment cannot be granted in several states after a specific amount of time. For instance, in California, if one party claims the other tricked them into accepting the marriage, the other partner must obtain an annulment on the grounds of fraud within four years of the fraud being discovered. You can file for an annulment fairly shortly after getting married. However, before filing for divorce, a couple may be required by law to be married or in a committed relationship for a set amount of time (usually one or two years). Additionally, in certain states, the couple must live apart for a certain amount of time before one of them can petition for divorce.

Consult: Top Divorce Lawyers in India


Fault vs. No-Fault Divorce

A common reason given for a fault divorce is infidelity, imprisonment, or desertion. In a no-fault divorce, either side doesn't need to show that the other is at fault for the divorce to be approved. In every state, no-fault divorce is permitted. An & quot irreconcilable differences& quot defence is frequently used in no-fault divorce proceedings. Whatever the form, the divorced couple may still need court orders to resolve disagreements about assets, money, child custody, and other issues. In the case of no-fault divorce, the proceedings are usually cheaper than the other.


How can a Lawyer help you?

Divorce is a stressful time for everyone involved. Hiring an attorney to complete a divorce is one way to reduce the stress of the divorce. While the attorney will need to gather information from you regarding the case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced divorce attorney can give you expert advice on how to handle your divorce owing to his years of experience in handling such cases. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers. A divorce lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he can avoid delay and get the divorce completed as quickly as possible.



These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.

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