...Continued
(Act No. 25 of 1955)
[18th May, 1955]
Nullity of Marriage and Divorce
11. Void marriages – Any marriage solemnized
after the commencement of this Act shall be null and
void 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.
12. Voidable marriages – (1) 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:-
(a) that the marriage has not been consummated owing
to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition
specified in clause (ii) of section 5; or
(c) 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, 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
(d) that the respondent was at the time of the marriage
pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section
(1), no petition for annulling a marriage –
(a) on the ground specified in clause (c) of sub-section
(1) shall be entertained if –
(i) 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
(ii) 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 has been discovered;
(b) on the ground specified in clause (d) of sub-section
(1) shall be entertained unless the court is satisfied
–
(i) that the petitioner was at the time of marriage
ignorant of the facts alleged;
(ii) 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
(iii) that material intercourse with the consent of
the petitioner has not taken place since the discovery
by the petitioner of the existence of the said ground.
13. Divorce – (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 –
(i) has, after the solemnization of the marriage,
had voluntary sexual intercourse with any person other
than his or her spouse; or
(ia) has, after the solemnization of the marriage,
treated the petitioner with cruelty, or
(ib) has deserted the petitioner for a continuous
period of not less than two years immediately preceding
the presentation of the petition; or
(ii) has ceased to be Hindu by conversion to another
religion; or
(iii) 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, (a) 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;
(b) the expression “psychopathic disorder”
means a persistent disorder or disability of mind
(whether or not including subnormality 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
(iv) has been suffering from a virulent and incurable
form of leprosy; or
(v) has been suffering from veneral disease in a communicable
form; or
(vi) has renounced the world by entering any religious
order; or
(vii) has not been heard of as being alive for a period
of seven years or more by those person who would naturally
have heard of it, had that party been alive.
Explanation - In this sub-section 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.
(1A) 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 -
(i) that there has been no resumption of cohabitation
as between the parties to the marriage for a period
of one year or upwards after the passing of a decree
for judicial separation in a proceeding to which they
were parties; or
(ii) that there has been no restitution of conjugal
rights as between the parties to the marriage for
a period of 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
–
(i) 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
(ii) that the husband has, since the solemnization
of the marriage, been guilty of rape, sodomy or bestiality;
or
(iii) 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 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;
(iv) 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).
13A. Alternate relief in divorce proceedings –
In any proceeding under this Act, on a petition for
dissolution of marriage by a decree of divorce, except
in so far as the petition is founded on the grounds
mentioned in clauses (ii) (vi) and (vii) of sub-section
(1) of section 13, the court may, if it considers
it just so to do having regard to the circumstances
of the case, pass instead a decree for judicial separation.
13B. Divorce by mutual consent - (1) Subject to the
provisions of this Act a petition for dissolution
of a marriage by a 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, 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.
(2) 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.
14. No petition for divorce to be presented within
one year of marriage – (1) Notwithstanding anything
contained in this Act, it shall not be competent for
any court to entertain any petition for dissolution
of a marriage by a decree of divorce, unless at the
date of presentation of the petition one year has
elapsed since the date of the marriage:
Provided that the court may, upon application made
to it in accordance with such rules as may be made
by the High Court in that behalf, allow a petition
to be presented before one year has elapsed since
the date of the marriage on the ground that the case
is one of exceptional hardship to the petitioner or
of exceptional depravity on the part of the respondent,
but if it appears to the court at the hearing of the
petition that the petitioner obtained leave to present
the petition by any misrepresentation or concealment
of the nature of the case, the court may, if it pronounces
a decree, do so subject to the condition that the
decree shall not have effect until after the expiry
of one year from the date of the marriage or may dismiss
the petition without prejudice to any petition which
may be brought after the expiration of the said one
year upon the same or substantially the same facts
as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section
for leave to present a petition for divorce before
the expiration of one year from the date of the marriage,
the court shall have regard to the interests of any
children of the marriage and to the question whether
there is a reasonable probability of a reconciliation
between the parties before the expiration of the said
one year.
15. Divorced persons when may marry again –
When a marriage has been dissolved by a decree of
divorce and either there is no right of appeal against
the decree or, if there is such a right of appeal,
the time for appealing has expired without an appeal
having been presented. Or an appeal has been presented
but has been dismissed it shall be lawful for either
party to the marriage to marry again.
16. Legitimacy of children of void and voidable
marriages – (1) Notwithstanding that a marriage
is null and void under section 11, any child of such
marriage who would have been legitimate if the marriage
had been valid, shall be legitimate, whether such
child is born before or after the commencement of
the Marriage Laws (Amendment) Act, 1976, and whether
or not a decree of nullity is granted in respect of
that marriage under this Act and whether or not the
marriage is held to be void otherwise than on a petition
under this Act.
(2) Where a decree of nullity is granted in respect
of a voidable marriage under section 12, any child
begotten or conceived before the decree is made, who
would have been the legitimate child of the parties
to the marriage if at date of the decree it had been
dissolved instead of being annulled, shall be deemed
to be their legitimate child notwithstanding the decree
of nullity.
(3) Nothing contained in sub-section (1) or sub-section
(2) shall be construed as conferring upon any child
of a marriage which is null and void or which is annulled
by a decree of nullity under section 12, any rights
in or to the property of any person, other than the
parents, if any case where, but for the passing of
this Act, such child would have been incapable of
possessing or acquiring any such rights by reason
of this not being the legitimate child of his parents.
17. Punishment of bigamy - Any marriage between
two Hindus solemnized after the commencement of this
Act is void if at the date of such marriage either
party had a husband or wife living; and the provisions
of sections 494 and 495 of the Indian Penal Code (45
of 1860) shall apply accordingly.
18. Punishment for contravention of certain other
conditions for a Hindu marriage – Every person
who procures a marriage of himself or herself to be
solemnized under this Act in contravention of the
conditions specified in clauses (iii), (iv) and (v)
of section 5 shall be punishable –
(a) In the case of a contravention of the condition
specified in clause (iii) of section 5, with simple
imprisonment which may extend to fifteen days, or
with fine which may extend to one thousand rupees,
or with both;
(b) In the case of a contravention of the condition
specified in clause (iv) or clause (v) of section
5, with simple imprisonment which may extend to one
month, or with fine which may extend to one thousand
rupees, or with both.
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