What is correct, please advice!!!

Dude, I don't think you have any issue in your current situation. The thing your are wanting is to dissolve this marriage as early as you can with making it as voidable.

If both party are ready then better one become petitioner and file for the same and other has to become exparte

other option is if one party whatever alleges he/she has to accept the same and accord for the annulment of marriage.

In your case where both are agree to dissolve the marriage then annulment will be beneficial rather than MCD. The reason is as you both will not carry a tag of divorcee if your marriage is granted with decree of annulment.

Mr. Singh,

I dont think annulment of your marriage is possible by law because a petition for declaring the as Null and void can be filed on the grounds of impotency of either person and non consummation of marriage thereon and this should be within one year from the date of such knowledge.  In your case you have stated that you have already filed a petition  seeking restitution of conjugal rights and by this it implies that there was cohabitation between you both and discontinued later on over which you seek the court's intervention.  Also, once you have already filed a RCR petition, if the respondent is not at all willing to join you back, you may have to go for a divorce only on the grounds  that she is no more interested to return to the matrimonial fold.  So its better to withdraw the RCR and apply for divorce under mutual consent if she agrees for that or on the grounds of cruelty and desertion. 

It's highly sarcastic to read the above lawyers comment without any reasoning:

1. If two parties are ready for dissolve their marriage then how can't be the marriage be made voidable??

you guys are just rustic to become lawyers and don't know how you are claimed to be in bar. After reading his commentary on RCR and MCD and annulment , Iam ashamed that is he a lawyer?????

I agree with Mr. Samir who is doing a lovely peace of work on this crooked lawyers to define their greediness and immorality on this forum. Bhaisaheb,

Zara mujhe batayiye ki yahan kyon nahin ho sakta annulment??? only writing as it can't be done doesn't make any sense .

Dear querist,

1.. You have 100% right to withdraw your RCR if you have filled , because it is not made that RCR is non-compuondable as you can't withdraw at any time if you feel so.

So,simply withdraw the RCR as it is of no use.The reason should be that you have got the recent facts about your voidable marriage.

2. When both husband and wife are ready to dissolve marriage then either of party can easily become exparte and doesnot even turn for his/her say leaving the decree passed in favour of petitioner whoever may be at that time.

2. Now in other part ...., if tow consents reach on one allaegations in the court and the respondent easily accept all the allaegations that yes mylord I have supressed these matterial fact's and even I also want to dissolve the marriage without any fear,force or coercion then no court will say that No i won't give you decree,do whatever you can.......lolz again for the lawyers who are here for simply wasting there time.

3. My sincere advise to lawyers be ractical rather than theoritical because paise practice karke kamaoge theory padh ke nain.

4. And in this particular thread and with his past thread it is quite clear that both parties need fastest solution with much benefits. So, getting marriage dissolved by U/s 12ic doesn't need non-consumation of marriage my dear  doubt lawyer mr. Kalaselivan ,,, so go and read the sec-12 for voidable marriage under HMA 1955 as where non-consummation is needed and where supression of matterial facts needed.

And lolz once again for those who are just making fun of for themselves by writing their name as lawyer,consultant,legal expert but they are good for nothing in practical sense.

Sir jii,

Have you read with theory of HMA 1955 as you seem more theoratical rather than practical, I still doubt even you don't know that Null and void marriage comes U/s 11 Hma 1955 and to declare the decree with void-ab initio i.e means void from begining one need's to fullfil the criteria aginst the circumstances led down U/s 5 Hma 1955. And here making void and null doesn't need non-consummation matter as this ground is needed in voidable marriage U/s 12ia. So, pity to read you mr. Kalaiselvan.

You are confused between Voidable and null & void marriage which are both different in the context of HMA .

My sincere advise to you from next time don't interupt illogically and give irrationale commentaries to the victims.

regards.

Hi All,

Please don’t fight.

Please help me in solving this issue. Can any one give the section where I can read about this clearly and solve this issue. Any case that might have solved similar case earlier.

Thank you.

Mukesh Singh.

1) Can any one tell by understanding this situation on what ground nullity is applicable and I don’t want to be wrong or fraud person.

2) How much time will it take for nullity case??

Dear Mukesh

your matter is not a matter of annulment, it's a simple matter of change her mind, it will be better to settle the matter amicably with her & file MCD.

for section you can read section 12, 13, 13B of Hindu Marriage act.

Feel Free to Call

Originally posted by : MKSingh
	1) Can any one tell by understanding this situation on what ground nullity is applicable and I don’t want to be wrong or fraud person. 2) How much time will it take for nullity case??

In your case null n void not applicable.  She went off sitting, telling wont come back does not mean that your marriage has not taken place.

You will have to file divorce petition under Indian Divorce act, thats the only option.  Another option is involve elders ask for MCD.  Part ways peacefully.

By the way divorce case takes 6-7 years to get over.

It is better to 

My advice, Mr. Singh, whatever you do, do not take the advice from ADVOCATES on this forum very seriously but only as a starting point. Sometimes they may be right but most of the time they are wrong, which effectively means that their opinion is unreliable. You should read this forum and get some ideas but in today's day and age, it is easy to confirm the opinions through your own research on the net based. To that extent only the site is useful.

Frankly I am not sure about this issue so I will refrain from giving you any advice. Legal advice, to be reliable, must take into consideration the latest development in the corresponding law which most of these advocates do not take into consideration. Sections and their descripttions are only a starting point even though they are very important. 

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.

———

1. Subs. by Act 68 of 1976, sec. 2, for clause (ii) (w.e.f. 27-5-1976).

2. The words “or epilepsy” omitted by Act 39 of 1999, sec. 2 (w.e.f. 29-12-1999).

3. Subs. by Act 2 of 1978, sec. 6 and Sch., for “eighteen years” (w.e.f. 1-10-1978).

4. Subs. by Act 2 of 1978, sec. 6 and Sch., for “fifteen years” (w.e.f. 1-10-1978).

5. Clause (vi) omitted by Act 2 of 1978, sec. 6 and Sch. (w.e.f. 1-10-1978).

7. Ceremonies for a Hindu marriage.-

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

State Amendments

Section 7A

Pondicherry :

After section 7, insert the following section, namely:—

(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or

(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or

(c) by the tying of the thali.

(2) (a) Notwithstanding anything contained in section 7, but subject to the other provisions of this Act, all marriages to which the section applies solemnised after the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, shall be good and valid in law.

(b) Notwithstanding anything contained in section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, but subject to sub-section (3) all marriages to which this section applies solemnised at any time, before such commencement shall be deemed to have been, with effect on and from the date of the solemnisation of each such marriage, respectively, good and valid in law.

(3) Nothing contained in this section shall be deemed to—

(a) render valid any marriage referred to in clause (b) of sub-section (2), if before the commencement of the Hindu Marriage (Madras Amendment) Act, 1967,—

(i) such marriage has been dissolved under any custom or law; or

(ii) the woman who was a party to such marriage has, whether during or after the life of the other party thereto, lawfully married another; or

(b) render invalid a marriage between any two Hindus solemnised at any time before such commencement, if such marriage was valid at that time; or

(c) render valid a marriage between any two Hindus solemnised at any time before such commencement, if such marriage was invalid at that time on any ground other than that it was not solemnised in accordance with the customary rites and ceremonies of either party thereto:

Provided that nothing contained in this sub-section shall render any person liable to any punishment whatsoever by reason of anything done or omitted to be done by him before such commencement.

(4) Any child of the parties to a marriage referred to in clause (b) of sub-section (2) born of such marriage shall be deemed to be their legitimate child:

Provided that in a case falling under sub-clause (i) or sub-clause (ii) of clause (a) of sub-section (3), such child was begotten before the date of the dissolution of the marriage or, as the case may be, before the date of the second of the marriages referred to in the said sub-clause (ii).”

[Vide Tamil Nadu Act 21 of 1967, sec. 2 (w.e.f. 20-1-1968).]

8. Registration of Hindu marriages.-

(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.

(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.

(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.

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.

——–

1. Ins. by Act 68 of 1976, sec. 5 (w.e.f. 27-5-1976).

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 respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings; 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 is required under section 5, the consent of such guardian was obtained by force or fraud; 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 for 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 grounds for a decree.

9. Restitution of conjugal rights.-

¹[***] When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

²[ Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]

³[***]

COMMENTS

Marital Obligations

If a consent decree for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955, is passed, it will not be a nullity. If it is not challenged in appeal or by way of other remedy available under the law and becomes final, it cannot be ignored and can form the basis of divorce proceedings under section 13(1A) of the Hindu Marriage Act, 1955; Saroj Rani v. Sudarshan Kumar , AIR 1984 SC 1562.

Reasonable excuse

Where it is found that conduct of husband created reasonable apprehension in mind of wife that it would be unsafe for her not to stay with husband, the decree for restitution of conjugal rights in favour of husband cannot be granted; Kamaladevi v. Shiva Kumar Swamy, AIR 2003 Kar 36.

Restitution decree—Limitation

For obtaining a divorce on failure of getting restitution of conjugal rights even after a decree a spouse has to wait for one year. Thus the restitution decree and the second petition for divorce might be a slightly more expeditious way for getting relief; Karabi Das v. Paritosh Das , AIR 2003 Cal 61.

Restitution of conjugal rights

In a petition for restitution of Conjugal Rights, alternative relief of divorce cannot be claimed. These prayers are mutually destructive of each other and, therefore, cannot be made together; Baldev Raj v. Bimla Sharma, AIR 2006 HP 33.

Scope

Any law which would give an exclusive right to the husband to decide upon the place of the matrimonial home without considering the merits of the claim of the wife would be contrary to Article 14 and unconstitutional for that reason; Swaraj Garg v. K.M. Garg , AIR 1978 Del 296.

Withdrawal without reasonable excuse or just cause

Wife is under an obligation to live with her husband in his home and under his roof except in case of distinct and specific misconduct on the part of the husband. The marital obligation has been further buttressed by clear statutory recognition by section 9 of the Hindu Marriage Act; Kailash Wati v. Ayodhia Parkash, 1977 (79) PLR 175.

———

1. The brackets and figure “(1)” omitted by Act 68 of 1976, sec. 3(a) (w.e.f. 27-5-1976).

2. Ins. by Act 68 of 1976, sec. 3(a) (w.e.f. 27-5-1976)

3. Sub-section (2) omitted by Act 68 of 1976, sec. 3(b) (w.e.f. 27-5-1976).