NULLITY OF MARRIAGE AND DIVORCE - Hindu Marriage Act 1955

NULLITY OF MARRIAGE AND DIVORCE - Hindu Marriage Act 1955

Section 11 - Void marriages :- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

Section 12 - Voidable marriages :- Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

that the marriage has not been consummated owing to the impotence of the respondent; or

that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as 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 or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

Notwithstanding any contained in sub-section (1), no petition for annulling a marriage:-

On the ground specified in clause (c) of sub-section (1) shall be entertained if:-

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

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;

on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied:-

that the petitioner was at the time of the marriage ignorant of the facts alleged;

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 marriages solemnized after such commencement within one year from the date of the marriage; and

that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

Section 13 - Divorce :-

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

has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

has, after the solemnization of the marriage, treated the petitioner with cruelty; or

has deserted the petitioner for a continues period of not less than two years immediately preceding the presentation of the petition; or the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground;

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

that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

that in a suit under section 18 of the Hindu Adoption sand Maintenance Act, 1956(78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure , 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;

that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age of eighteen years.

Explanation:- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) act, 1976 (68 of 1976).

Section 13B - Divorce by mutual consent :-

Subject to the provisions of this Act a petition for dissolution of marriage by decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the marriage Laws (Amendment) Act 1976 (68 of 1976), 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.

On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Section 24 - Maintenance pendent life and expenses of proceedings :- Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to be court to be reasonable.

Section 25 - Permanent alimony and maintenance :-

Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to he respondent’s own income and other property, if any, the income and other property of the applicant the conduct of the parties and other circumstances of the case it may seem to the court to be jest and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

If the court is satisfied that the party in whose favour an order has been made under this section has re-married or if, such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.