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 ¹[against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses 1, 4 and 5 of section 5.

12. Voidable marriages.

1. Any marriage solemnized, whether before or after the commencement of this act, shall be voidable and maybe annulled by a decree of nullity on any of the following grounds, namely:-

1. ²[ That the marriage has not been consummated owing to the impotence of the respondent; or)

2. That the marriage is in contravention of the condition specified in clause (it) of section 5; or

3. That the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner ³[was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)1, the consent of such guardian was obtained by force ⁴[or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

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

2. Not withstanding anything contained in sub-section (1), no petition for annulling a marriage-

(a) On the ground specified in clause (3) of sub-section (1) shall be entertained if

1. 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

2. 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;

(b) On the ground specified in clause(4)of sub-section(1)shall be entertained unless the court is satisfied-

1. That the petitioner was at the time of the marriage ignorant of the facts alleged;

2. 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

3. That marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 5[the said ground].

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

1. ⁶[Has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

2. Has, after the solemnization of the marriage, treated the petitioner with cruelty; or

3. Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

4. Has ceased to be a Hindu by conversion to another religion; or

5. ⁶[Has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.

In this clause,

• The expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

• The expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

6. Has ⁷[* * *] been suffering from a virulent and in curable, form of leprosy; or

7. Has ⁷[* * *] been suffering from venereal disease in a communicable form; or

8. Has renounced the world by entering any religious order; or

9. 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; ⁸[* * *]

⁷[Explanation.

In this subsection, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]
⁸[* * *]

1. ⁹[Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-

• That there has been no resumption of cohabitation as between the parties to the marriage for a period of ¹⁰[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

• That there has been no restitution of conjugal rights as between the parties to the marriage for a period of ¹⁰[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

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

1. 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

2. That the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or ¹¹[bestiality; or]

3. ¹²[ That in a suit under section 18 of the Hindu Adoptions and 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 not withstanding 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;

4. 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 that age but before 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).

Comments

1. It is not necessary for a party claiming divorce to prove that the mental cruelty complained is of such a nature as to cause an apprehension- reasonable apprehension- in his/her mind that it will he harmful or injurious for him/her to live with the other party. While arriving at such a conclusion regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in and all other relevant facts and circumstances. The allegations of the wife that the husband who was an advocate is a lunatic and there is a streak of insanity running through his entire family amounts to mental cruelty; V. Bhagat v. D. Bhagat, AIR 1994 SC 710.

2. A threat to commit suicide by the wife would amount to infliction of mental cruelty on the husband but it should not be uttered in a domestic tiff; Pushpa Rani v. Vijay Pal Singh, AIR 1994 All 220.

3. Allegation made in the written statement can never be the basis of divorce on the ground of cruelty. The petitioner must have beer, treated with cruelty prior to the filing of the petition. A petitioner approaching court with a petition for a divorce on the ground of cruelty can succeed only if he proves the act of cruelty on which he has based his petition. No subsequent acts either by way of allegations in written statement, responsible or not, baseless or not, can be taken help of in order to show cruelty; A v H, AIR 1993 Bum 70.

    

4. Allegations by the wife that husband had tried to burn her which were found to be false and baseless were held amounting to mental cruelty; Ashok Kumar v. Vijay Lakshmi, AIR 1992 Del 182.

    

5. Solitary instance of cruelty would not constitute cruelty so as to grant a decree for divorce rather the behaviour of the other party has to be persistently and repeatedly treating the other spouse with such cruelty so as to cause a reasonable apprehension in the mind of the husband/wife that it will be harmful or injurious for him or her to live with the other party. The expression "persistently" means continue firmly or obstinately and the expression "repeatedly" means to say or do over again; Vimlesh V.Prakash Chand Sharma,AIR1992 All 261.

    

6. The law is settled that filing of false complaints to the police and other authorities and initiation of false prosecution amounts to cruelty. It is also settled that complaints filed to the employer or personal authority which are found to be baseless and scandalous may amount to cruelty; RajinderBhardwaj v. Anita Sharma, AIR 1993 Del 140.

    

7. There was no desertion on the part of the appellant because she had in fact been turned out of the house by respondent when she objected to his relations with the lady servant. Held that there could be no divorce on grounds of desertion; Vimlesh v. Prakash Chand Sharma, AIR 1992 All 261.

    

8. In order to draw an inference of desertion there must be proved "Animus Deserendi " (i.e. the obvious intention of desertion). In other words it has to be proved positively that parties have no inclination to resume marital relations. The letters of the wife indicated that she had all love and respect for her husband and is willing to fulfil all marital obligations as a wife and hence no desertion could be proved on the part of the wife; Vimlesh v. Prakash Chand Sharma, AIR 1992 All 261.

    

9. The allegation by the husband that the wife was of incurably unsound mind was not proved by the husband by his statement that the wife was being treated by Dr. Yadav of a mental hospital; Vimlesh v. Prakash Chand Sharma, AIR 1992 All 261.

    

10. The degree of mental disorder must be such that the spouse seeking relief cannot reasonably be expected to live with the other; Rajinder Bhardwaj v. Anita Sharma, AIR 1993 Del 140.