Any lawyer who is aware of this
Querist :
Anonymous
(Querist) 20 July 2011
This query is : Resolved
I am really surprised by the way lawyers have been knowing facts , I asked a team of 6 lawyers that , I am absolutely aware that epilepsy is not a ground for divorce in HMA , but is it a ground for NULLITY /ANNULMENT of marriage . Can any body tell that, void and voidable marriages have this clause, but is this clause applicable even after amendment of HMA , does any one have sections of HMA AFTER AMENDMENT IN 1995, when it was made a rule that epilepsy is not a ground for divorce , any book which has the act after amendment of HMA
Regards
Jeewan
prabhakar singh
(Expert) 20 July 2011
A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of [twenty-one years] and the bride the age of [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
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.
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 6[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 circumstances 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 had 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 the 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 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.
YOU CAN SEE THAT EXISTENCE OF CONDITION s5(ii)(c) does not find a pLace of mention in section 11 which speaks of only clauses (i)(iv)and (v)hence existence of insanity or epilepsy of a party to marriage at the time of marriage does not make it void or a nullity.
IT IS SECTION 12(1)(b)THAT MAKES THE MARRIAGE
VOIDABLE AT YOUR OPTION BY A PETITION.
Querist :
Anonymous
(Querist) 20 July 2011
Dear Sir ,
My question is there was an amendment in this act & that was in 1995 , where it said the word epilepsy is removed , is it removed from section 13 or from whole HMA
