..Continued
CHAPTER VI
NULLITY OF MARRIAGE AND DIVORCE
24. Void Marriages. – (1) Any marriage solemnized
under this Act shall be null and void 19[and may, on
a petition presented by either party thereto against
the other party, be so declared] by a decree of nullity
if –
(i) any of the conditions specified in clauses (a),
(b), (c) and (d) of section 4 has not been fulfilled;
or
(ii) the respondent was impotent at the time of the
marriage and at the time of the institution of the suit.
(2) Nothing contained in this section shall apply to
any marriage deemed to be solemnized under this Act
within the meaning of section 18, but the registration
of any such marriage under Chapter III may be declared
to be of no effect if the registration was in contravention
of any of the conditions specified in clauses (a) to
(e) of section 15:
Provided that no such declaration shall be made in any
case where an appeal has been preferred under section
17 and the decision of the district court has become
final.
25. Voidable marriages – Any marriage solemnized
under this Act shall be voidable and may be annulled
by a decree of nullity if, –
(i) the marriage has not been consummated owing to the
willful refusal of the respondent to consummate the
marriage; or
(ii) the respondent was at the time of the marriage
pregnant by some person other than the petitioner; or
(iii) the consent of either party to the marriage was
obtained by coercion or fraud, as defined in the Indian
Contract Act, 1872 (9of 1872) :
Provided that, in the case specified in clause (ii),
the court shall not grant a decree unless it is satisfied,
–
(a) that the petitioner was at the time of the marriage
ignorant of the facts alleged;
(b) that proceedings were instituted within a year from
the date of the marriage; and
(c) that marital intercourse with the consent of the
petitioner has not taken place since the discovery by
the petitioner of the existence of the grounds for a
decree:
Provided further that in the case specified in clause
(iii), the court shall not grant a decree if, –
(a) proceedings have not been instituted within one
year after the coercion has ceased or, as the case may
be, the fraud had been discovered; or
(b) the petitioner has with his or her free consent
lived with the other party to the marriage as husband
and wife after the coercion had ceased or, as the case
may be, the fraud had been discovered.
20[26. Legitimacy of children of void and voidable
marriages. – (1) Notwithstanding that a marriage
is null and void under section 24, and 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 (68 of 1976), and whether
or not 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 25, 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 the date of the decree it has 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 25, any rights
in or to the property of any person, other than the
parents, in 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 his not being
the legitimate child of his parents.]
27. Divorce. – 21[(1)] Subject to the provisions
of this Act and to the rules made thereunder, a petition
for divorce may be presented to the district court either
by the husband, or the wife on the ground that the respondent
–
22[(a) has, after the solemnization of the marriage,
had voluntary sexual intercourse with any person other
than his or her spouse; or
(b) has deserted the petitioner for a continuous period
of not less than two years immediately preceding the
presentation of the petition; or]
(c) is undergoing a sentence of imprisonment for seven
years or more for an offence as defined in the Indian
Penal Code;
23* * * * * *
(d) has since the solemnization of the marriage treated
the petitioner with cruelty; or
24[(e) 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 sub-normality of intelligence) which
results in abnormally aggressive or seriously irresponsible
conduct on the part of the respondent, and whether or
not it requires or is susceptible to medical treatment;
or
(f) has been suffering from venereal disease in a communicable
form; or]
(g) has 25***been suffering from leprosy, the disease
not having been contracted from the petitioner; or
(h) has not been heard of as being alive for period
of seven years or more by those persons who would naturally
have heard of the respondent if the respondent had been
alive.
26[Explanation. – In this sub-section, the expression
”desertion” means 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 willful neglect of the
petitioner by the other party to the marriage and its
grammatical variations and cognate expressions shall
be construed accordingly.]27***
27 *
23 *
26[1A) A wife may also present a petition for divorce
to the district court on the ground, –
(i) that her husband has, since the solemnization of
the marriage, been guilty of rape, sodomy or bestiality;
(ii) 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]
28[(2) Subject to the provisions of this Act and to
the rules made thereunder, either party to a marriage,
whether solemnized before or after the commencement
of the Special Marriage (Amendment) Act, 1970 (29 of
1970), may present a petition for divorce to the district
court 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]
COMMENTS
(i) The time has come for complete reform of the law
of marriage and make a uniform law applicable to all
people irrespective of religion or caste. It is necessary
to introduce irretrievable breakdown of marriage and
mutual consent as grounds of divorce in all cases.
[Jorden Diengdeh, AIR 1985 SC 935]
(ii) Where incessant cruelty meted out to the wife is
entitled her to a decree of divorce.
[Mrs. M. v. Mr. A, AIR 1993 Bombay 110]
reasonable to do so.
[Introduction]
[Sections 1
to 8] [Sections 9
to 23] [Sections 24
to 27] [Sections 27A
to 34] [Sections 35
to 41] [Schedule-
I To II] [Schedule-III]
OTHER
TOPICS IN THIS SECTION
Quantum
Designs