Annulment of marriage

Dear Ashish,

The marriage which your second wife entered into with you is still subsisting as the marriage was not dissolved by passing decree of dissolution of Marriage by the court. In view of the same your marriage with the girl is nullity. Divorce on a stamp paper.

In the case of  Mahendra Nath Yadav Vs Sheela Devi (Supreme Court of India) held:  Hindu Marriage Act, 1955, ss. 9 and 13-B -A divorce got through the panchayat as per the local customs of a particular community will not be recognised by any court of law. A divorce, in order to be legalised, mandatorily requires a judicial decree from a court of law and nothing less would do. Dissolution of marriage through panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce under Section 13 of the Act, 1955. HC has rightly held that dissolution of marriage through Panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce u/s. 13 of the Act, 1955 - Moreover, in case the appellant wanted a decree on the basis of customary dissolution of marriage through Panchayat, he would not have filed a petition u/s. 13 of the Act, 1955 - Filing this petition itself means that none of the parties was of the view that the divorce granted by the Panchayat was legal - No reason to interfere with the well-reasoned judgment of the HC - Appeal dismissed.

You can file a petition for nullity of marriage u/s 11 of Hindu Marriage Act seeking nullity of marriage on this ground. Even if your wife choose to file petition under the provisions of D V Act, the same won't stand.

No, you will have to get the decree for nullity of marriage and then only you can re-marry be in India or UK.

I differ with the advise of Mr.Nayar above, a marriage solemnised in violation of S.5 of the Hindu Marriage Act, whereby one enters into a bigamous marriage, with a marriage already subsisting is VOID AB INITIO, a decree of nullity is not required in such a case. You can marry even without such a decree.

Read this :

M.M.Malhotra v. UOI & Ors. 2005 SC

Need for obtaining a declaration as to voidness of a marriage A void marriage is no

S.11 does not make the obtaining of a decree of nullity from the court – mandatory in order to make a marriage a void marriage – any marriage in which S.5 (i) (iv) (v) has been violated will be a void

Dear Querist

first of all I want to tell you that your marriage with your present wife is ab initio void and this marriage has no legal entity.you are free to get marry. if you have commited any violence with her she has right to file a case against you, if not she can not file any case.

 

11. Void marriages.-

 

Any marriage solemnised 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 (i), (iv) and (v) of section 5.

 

Comments

 

Injunction restraining the other from performing bigamous marriages

 

There is no provision in the Hindu Marriage Act, 1955 under which a wife, apprehending her husband's taking second wife, can apply for and obtain an injunction restraining him from doing so. She cannot do so under section 11 or 17 or any other provision of the Act; Umashanker v. Radhadevi , AIR 1967 Pat 220.

 

5. Conditions for a Hindu marriage.-

 

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;

 

¹[(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 ²[***];]

 

(iii) the bridegroom has completed the age of ³[twenty-one years] and the bride, the age of ⁴[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;

 

⁵[***]

 

COMMENTS

 

Burden of Proof

 

The material made available documentary and oral, not supporting that the wife is christian. Held that the marriage is not illegal and void; T. Perumal v. R. Nesammal , AIR 2004 Mad 37.

 

Child Marriage

 

Any marriage solemnized in contravention of clause (iii) of section 5 is neither void nor voidable, the only consequence being that the persons concerned are liable for

the punishment under section 18 and further if the requirements of clause (iv) of sub-section (2) of section 13 as inserted by the marriage laws (Amendment) Act, 1976 are, satisfied, at the instance of the bride, a decree of divorce can be granted; P. Venkataramana v. State , AIR 1977 AP 43.

 

Necessity for a Hindu Marriage

 

(i) A marriage between a Hindu man who converted as Christian and a Christian lady in a Hindu form is not a valid marriage. According to section 5 of the Act marriage can be solemnised between two Hindus; M. Vijayakumari v. K. Devabalan , AIR 2003 Ker 363.

 

(ii) To draw an inference merely from the fact that the spouses had no co-habitation for a short period of about a month, is neither reasonable nor permissible. To brand the wife as unfit for marriage and procreation of children on account of the mental disorder, it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a normal married life; R. Lakshmi Narayan v. Santhi , AIR 2001 SC 2110.

 

Scope

 

If a man and a woman are living under the same roof and cohabiting for a number of years, the law would raise presumption that they lived as husband and wife; S.P.S. Balasubramanyam v. Suruttayan, AIR 1992 SC 756.

Feel free to call

dear querist, in my opinion, your marriage with your present wife is void abinitio having failed the conditioins prescribed in sec 5 of HMA.

Dear Sir

 

 I am extremely thankful and grateful to you for sage conference and wise counsel. It has really illuminated me and dispelled my gloom. Your  advice has come to me as great solace and comforts to initiate action and prompt  me to proceed  for filing petition u/s 11 of HMA at the earliest. I will proceed with scant evidences I have at my disposa as  I intend to come out of this rut. I hope it should take months .. I donot know how many.

I will  further appreciate you to   advice  what counterclaims and cases she can lodge against me  such as DVA/125/ or anyother leagal entaglements if i proceed with sec 11 for nullity so that I take appropriate caution as her brothers are lagal savvy.Should I also prepare myself to procure Anticipatory Bail on this apprehension beforehand.

 My  heartfelt thanks again for guidance .

 Ashish

Dear Sir I am extremely thankful and grateful to you for sage conference and wise counsel. It has really illuminated me and dispelled my gloom. Your advice has come to me as great solace and comforts to initiate action and prompt me to proceed for filing petition u/s 11 of HMA at the earliest. I will proceed with scant evidences I have at my disposa as I intend to come out of this rut. I hope it should take months .. I donot know how many. I will further appreciate you to advice what counterclaims and cases she can lodge against me such as DVA/125/ or anyother leagal entaglements if i proceed with sec 11 for nullity so that I take appropriate caution as her brothers are lagal savvy.Should I also prepare myself to procure Anticipatory Bail on this apprehension beforehand. My heartfelt thanks again for guidance . Ashish

 

Dear Sir

 

 I am extremely thankful and grateful to you for sage conference and wise counsel. It has really illuminated me and dispelled my gloom. Your  advice has come to me as great solace and comforts to initiate action and prompt  me to proceed  for filing petition u/s 11 of HMA at the earliest. I will proceed with scant evidences I have at my disposa as  I intend to come out of this rut. I hope it should take months .. I donot know how many.

I will  further appreciate you to   advice  what counterclaims and cases she can lodge against me  such as DVA/125/ or anyother leagal entaglements if i proceed with sec 11 for nullity so that I take appropriate caution as her brothers are lagal savvy.Should I also prepare myself to procure Anticipatory Bail on this apprehension beforehand.

 My  heartfelt thanks again for guidance .

 Ashish

Respected Advocates/Counsellors

 As per my case discussed above, My void wife  and her brothers are approaching me through  powerful social mediators( using even my relatives to their favour)   to end the relationship ( which I too want  to end it ) and what I guess they would go for ending the relationship / divorce or nullity thorugh notarised stamp paper agreement ( as being usual practice).

Those social mediators are in the  regular customery habit of  effecting mutual consent divorces of the two dissenting parties through mediation and affirming, proclaiming and endorsing it with the  sindhi community panchayat decisions and then getting it notarised. If I  resist and say  to them MCD/nullity cannot be done on stamp paper they scoff  and mock at me  for my ignorance  and  little knowledge about the powers of  community Panchayat  and on this matter of which  they are so habitual in rendering  the customery divorce patterns of the parties they handle and say it is all legal on their part. 

It is really  very common practice  on their part in the community to get divirces through panchayat which they hold as good as legal system, endorse them , give witnesses, and go for notarisation.

 I  prefer filing petition under sec11 in the Court which  mediators unitedly will  discourage  and say  that the court proceedings will take a long time and  will attract counter cases/litigations from both ends to futher complicate and entangle the whole issue such as DVA etc.

I will appreciate if you suggest me  how to handle them legally  and procure a declaration/decree of nullity as I will be alone before  those social mediators  who  are inducted by my void- in-laws and would support them under influence and their mutual interests.

Should I enter such ending of relationship through notary and file the same later  as a  supporting evidence /proof  in Court u/s sec11 for getting nullity ( i will seek their commitment and  ask them to mention their staus from earlier marriage as divorced/separated/broken relationship) . But in notary agreement it  is  usually committed by both parties that neither party would bring the matter to court for litigation after entering into this kind of agreement.

Pl advise.

 

Dear Sir

  I greatly appreciate your replies  which are highly enlightening and very practical and focus on law points always .  I am really benefitted by this reply. Hats off to you for your guidance in all legal matters to all !

 But in order to get marriage certificate  quashed , won’t it be necessary to still procure declaration of nullity ?

Dear Sir

 My heartfelt Thanks  for your very valuable reply based on judgements.

ashok, 

check ur PM.

check your PM

 Dear Experts
 Thanks for your valuable advice.I do appreciate what you have said. I have filed a petition u/s 11 and 13 ( cruelty). Her advocate is insisting for  an amicable patch -up or settlement or  amicably mutual divorce u/s 13B without splashing mud on each other/ onion peelings.
What should I do ?

my friend is jain girl
she will 1st divorce done at 2010 may, but she will second marriage at nov 2009 in aarya samaj as a she is unmarried girl, but second marriage is not success, she want remarry second guy never ready to divorce her.
plz tell for her how can null or void 2nd marriage and how much time legal presses. can PETITION FOR DECREE OF NULLITY OF MARRIAGE on no Notary 
how can she remmry 3rd person plz help it 

and any friend put the case for nullity then how much time to order given by court