Annulment of Marriage & How it is different from Divorce

11/08/2020 - Even though marriage is considered as a sacrament, a sacred bond and a bond of life time, yet, in today’s world marriages are being treated as a contract and further like any other contract people tend to revoke it by treating it as a contract, whereas as per law, the marriage is not a contract.

As per the provisions of Hindu Marriage Act, a marriage can be brought to an end either by filing for a divorce as per the provisions of (Section 13) of Hindu Marriage Act or by getting a marriage declared as Null and Void as per the provisions of (Section 11 and 12) of Hindu Marriage Act. Any marriage which contravenes the provisions of (Section 5) of Hindu Marriage Act, which defines the conditions of a Hindu marriage is either a void marriage or voidable marriage. The petition of annulment of marriage can be filed both in the case of a void marriage as well as a voidable marriage.

VOID MARRIAGE

A void marriage is a marriage which is null and void ab-initio i.e. (it never existed) as it contravenes the conditions specified in (Clauses (i), (iv), (v) of Section 5) of Hindu Marriage Act meaning thereby that a petition can be filed for declaring a marriage void if:

1. Either party has spouse living at the time of marriage;
2. The parties are within the decree of prohibited relationship (unless the custom governing each of them permits a marriage between two);
3. The parties are sapindas of each other meaning thereby that they are related to each other as first cousins (unless the custom or usage governing each of them permits the marriage between the two).

VOIDABLE MARRIAGE

Similarly, a voidable marriage is one which contravenes the condition specified in Clause (ii) of Section 5 of Hindu Marriage Act as well as other grounds as mentioned below:

1. The marriage has not been consummated owing to the impotence of the respondent
2. The consent of either of the parties is not a valid consent due to the unsoundness of the mind of either of the parties
3. The consent of the parties or the guardian of one of the parties was obtained by force or by fraud etc.
4. The respondent at the time of marriage was pregnant by some other person than the petitioner

Difference between Void & Voidable Marriage:-

A voidable marriage is different from a void marriage as a voidable marriage subsisted as a marriage while a void marriage is considered to not to take effect into a marriage at all. A voidable marriage is a legal marriage which can be cancelled by any one of the parties to the marriage.

How Annulment is different from Divorce:

Although divorce and annulment have the same effect of dissolving marriages, there is a remarkable difference between the two.

A divorce returns both the parties to their pre-marital status where they can get married again and enter into domestic relationship. When a couple gets a divorce decree, they are recognized as having been married previously. After a divorce, the couple may still have obligations to each other such as alimony and maintenance of spouse, child custody rights and division of property etc. whereas Annulment of marriage in effect means that No Marriage even took place

Legitimacy of Children after annulment:-

If a child is born out of a wedlock which subsequently declared void, that child will not be considered illegitimate but shall be considered legitimate despite the marriage being illegal from its inception.

This status of legitimacy entitles such children to inherit and demand partition of properties of their parents.

Right of maintenance after annulment:-

According to various recent Supreme Court Verdicts, a wife is entitled to maintenance from her husband, if the marriage is declared null and void due to the mischief or the wrong committed by the husband under Section 125 of Code of Criminal Procedure, 1973.

Divorce of annulment: depends on the circumstances

One can resort to the advice of specialized family lawyers to guide them through the legal complexities in order to determine whether to file for divorce or annulment.