How to End a Marriage in India?

December 17, 2018
By Advocate Chikirsha Mohanty



Marriages are considered to be pious in India. They are believed to be an eternal bond which 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.
 

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. Voidable marriage is the one which can be avoided at the option of the parties to the marriage. Voidable marriages are valid unless its validity is questioned. In 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.
 

The Grounds for Annulment

Following are the grounds for annulment- 

1. Inability to consummate the marriage- If either of the spouse is chronically unable to have sexual intercourse or is impotent. 

2. Incapable of giving Consent- If either of the spouse was incapable of giving consent at the time of the marriage. 

3. Mental Disorder- If either of the spouse 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 its serves as a ground for getting 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 spouse is under this age then annulment can be sought. 
 

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, 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 of 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 is 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 in the ancestral property.

Related Post: Guide to Consult a Divorce Lawyer
 

Divorce

If your marriage is not void or voidable then the other way to end a marriage is through 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 it 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 judgement the mutual consent have been made easier and also serves as 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 have been waived off.
 

Contested Divorce

Contested Divorce is when only one of the parties want 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. 
 

Adultery

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

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.
 

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 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.



 

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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