Annulment is a process in which the marriage is declared as null and void due to some reasonable causes and these causes include that the legal requirements were not met at the time of marriage. When certain legal requirements are not met at the time of the marriage then the marriage is not considered as a valid marriage. A divorce is a legal process where a valid marriage is dissolved by the court. These two terms deal with two different legal concepts.

Annulment of marriage
An annulment means an official announcement which ends the existence of the marriage. It is a process in which the marriage is declared as null and void due to some reasonable causes and these causes include that the legal requirements were not met at the time of marriage. When certain legal requirements are not met at the time of the marriage then the marriage is not considered as a valid marriage.

The annulment of such marriage is passed by the authorities which never existed in the eye of law because of the absence of certain legal requirements which are important to make a marriage valid. When a petition for annulment of marriage is made by one party the court has to decide whether a valid marriage took place between the parties or not. When the decree of annulment is passed by the Court then the further duties or obligations towards each other also ends with the non-existence of the marriage.

Provisions Of Annulment Under Different Personal Laws
The provisions regarding the annulment of marriage have been dealt with in various personal laws. Those laws are discussed below:

The Hindu Marriage Act, 1955
The provision related to the annulment of marriage has been dealt with under the head "Nullity of Marriage and Divorce". Among Hindus, marriage is regarded as the sacred bond between the two individuals. The old Hindu laws of marriage have been wholly transformed by the Hindu Marriage Act, 1955 to remove all the social defects introduced by the old laws. The new legislation has not only introduced some major changes but also tried to customize it so as to remove the social disparity.

As per Hindu law, marriage can be of three types:

1. Valid Marriage,
2. Void Marriage and
3. Voidable Marriage.

Section 5 of the Hindu Marriage Act, 1955 (hereinafter HMA) provides for the conditions for a valid Hindu marriage.

Void and Voidable Marriages
The concept of nullity of marriage was first introduced by the Hindu Marriage Act, 1955. When at the time of a marriage, the conditions specified under Section 5 are not fulfilled then such marriage is not regarded as the valid marriage. Section 11 of the Act provides that any marriage, solemnized after the commencement of this act, would be declared as void if it contravenes clause (i), (iv) and (v) of Section 5 if a petition has been moved by any of the parties to a marriage.

Simply, a marriage should not infringe these conditions:

• Any party to a marriage should not have a spouse living at the time of the marriage;
• Their relationship must not fall within the degrees of a prohibited relationship if it so then it must be allowed by their custom and usage; and
• The parties should not be sapindas of each other. But if the customs or usage governing the parties to marriage allows then such marriage will be a valid marriage.

If any of these three conditions would exist, the marriage would automatically become void under this section. The decree of nullity may be passed by the court at the petition moved by either party of the marriage. Any marriage violating any of these conditions would be void ipso jure. There is no need to ask from the court for the declaration of nullity of their marriage.

It becomes null and void by the mere operation of law. However, the parties may file a petition for procuring the decree of nullity. It is left on the parties to a marriage to treat their marriage void without asking for a formal declaration from the court.

On the other hand, voidable marriages continue to exist until the parties to a marriage approach the court for the annulment of their marriage.

Special Marriage Act, 1954
The Special Marriage Act, 1954 governs the inter-caste or the inter-religion marriages in India. This act applies to the marriages of Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists. The provisions of this legislation apply not only to Indian citizens who belong to different castes and religions but also to Indian nationals who live abroad. Section 25 of the act deals with voidable marriages.

According to it, any marriage, solemnized after the commencement of this act, shall be voidable and may be declared by a decree of annulment, if:

• If the respondent has refused to consume the marriage;
• If at the time of marriage, the respondent was pregnant by some person, other than the petitioner;
• If the consent of either party was not the free consent, which means it has been obtained by fraud, coercion and misrepresentation, as defined under the Indian Contract Act, 1872

How Annulment Is Different From Divorce
Annulment is a procedure in which a marriage is declared as null and void. These marriages are good in law until avoided by one party at whose option it is voidable. Divorce is altogether a different concept. In a divorce, the petitioner prays to end the marital bond owing to certain events which may be overlapping with some of those under which makes a marriage voidable. Prima facie these two terms may look similar as both of them deal with termination of marriage but they hold two different meanings.

Effect of annulment is that there was no marriage between the parties after the decree of nullity is passed by the court. Whereas in case of divorce, the petitioner seeks only to break the bond. Petitioner does not challenge the marriage itself. While praying for the decree of annulment, the petitioner challenges the validity of the marriage.

The main differences between the two concepts are:

• The main aim of annulment is to declare a marriage void which was never valid. However, the party prays for divorce to end a valid marriage.
• After the annulment, the status of the party becomes single or unmarried and after divorce, the parties become divorced.
• After the annulment of marriage, no duties or obligations are aroused but after the divorce, a situation to pay alimony may arise as it depends on the case.

Case Laws
Bajirao Raghoba Tambre Vs Tolanbai (Miss) D/O Bhagwan Toge, 1979
The facts of the case are that the petitioner is married to one Dwarkabai 1961. During the subsistence of this marriage, the petitioner married the respondent No. 1 Tolanbai in 1966. In September 1975, Tolanbai filed an application under section 125 of the Code alleging inter alia that the petitioner beat her and drove her out of the house and, therefore, she has been staying with her parents who are poor, and she has no means of livelihood.

She claimed an amount of Rs. 500/- per month by way of maintenance. The trial Court held that the petitioner's marriage with Dwarkabai had taken place in the year 1961 while his marriage with the respondent had taken place in the year 1966. It also held that having regard to the fact that the necessary ceremonies for solemnization of the marriage according to customary Hindu Law having been gone into, she must be deemed to be a legally wedded wife for the purposes of section 125 of the Code.

Aggrieved by this decision, both the petitioner and the respondent filed revision applications in the Sessions Court which came to be dismissed with the result that the order or maintenance passed by the trial Court was maintained. The petitioner has, therefore, preferred this present challenging the order of the courts below.

The Bombay High Court held that the marriage of the petitioner with the respondent was void ab initio and the respondent could not get the status of a legally wedded wife inspite of the solemnization of the marriage under the Hindu Law having gone into as it was not a valid marriage. Hence, the petition was allowed and the impugned order passed by the Judicial Magistrate, First Class and the order passed by the Sessions Judge, dismissing the revision application of the petitioner, are quashed and set aside, and the respondent No. 1's application for maintenance stands rejected.

A.P.K. Narayanaswami Reddiar Vs Padmanabhan (Minor) And Ors, 1965
This is an appeal by the first defendant from a decree of the Additional Subordinate Judge, Mayuram, and granting maintenance at the rate of Rs. 15 per mensem to each of the first three plaintiffs. After the marriage, the first defendant took the fourth plaintiff to his native place at M. Adanur near Kattumannargudi, and lived there as husband and wife and begot through her plaintiffs 1 to 3, who are all minor, misunderstandings arose as a result of, that is the plaint case, ill-treatment meted out by the first defendant to the fourth plaintiff.

Then they separated for some time. He pleaded that he had married one Janaki Ammal in 1921, who gave birth to defendants 2 to 4 and died in 1956. There could, therefore, be no lawful marriage, in any case, of a second wife during the lifetime of Janaki Ammal. The Additional Subordinate Judge framed appropriate issues and found that the marriage pleaded by the 4th plaintiff was true but invalid in law.

It was held that the decree of the learned Subordinate Judge is correct except in regard to the maintenance, past and future, decreed in favor of the fourth plaintiff. Moreover, the 4th plaintiff and the first defendant did go through a form of marriage in accordance with their personal law and that even if by the said Act the marriage is void, she should nevertheless, be held to be entitled to maintenance.

Banshidhar Jha Vs Chhabi Chatterjee, 1966
This implication is directed against an order of the Sub-divisional Magistrate by which the petitioner was required to pay Rs. 30 per month for the maintenance of his wife, Chhabi Chatterjee, and Rs. 20 per month for the maintenance of his infant daughter through the mother Chhabi Chatterjee under Section 488 of the Code of Criminal Procedure.

The opposite party Chhabi Chatterjee filed an application under that Section on the 26th June 1903. alleging that she had been married with petitioner Banshidhar Jha, by exchanging gar-lands m a temple on the 6th Shravan, corresponding to the 21st July 1962, according to the customary right as also by the petitioner putting vermilion on her forehead. Since then, she claims to have lived with him as his lawfully wedded wife and given birth to the girl on the 23rd May.

The petitioner denied the allegations and said that the infant girl was not his child, nor was Chhabi Chatterjee his wife. He further pleaded that he had already a lawfully married wife under Hindu law since 1952 and in view of the provisions of the Hindu Marriage Act, 1955, the marriage, if any, with Chhabi Chatterjee was void ab initio and therefore she was not entitled to claim any maintenance under Section 488 of the Code of Criminal Procedure. The only question for consideration is whether Chhabi Chatterjee is entitled to any maintenance or not.

It was held that a marriage which is void ab initio does not alter or affect the status of the parties nor does it create between them any rights and obligations which must normally arise from a valid marriage. A voidable marriage remains valid and binding and continues to subsist for all purposes unless a decree is passed by the court annulling the same on any of the grounds mentioned in Section 12.

In the result the impugned order of the Magistrate was set aside only so far as it relates to the maintenance allowed to Chhabi Chatterjee and the case is remanded to the Magistrate to determine the question referred to in the preceding paragraph and to pass such consequential order as may be necessary, in accordance with law on the basis of the materials already on the record.

Bai Bhanbai Mavji Vs Kanbi Karshan Devraj And Anr, 1969
Bai Bhanbai of Sukhpar, the applicant, filed Criminal Miscellaneous Application in the Court of the Judicial Magistrate, First Class, claiming maintenance at the rate of Rs. 150 per month against the opponent No. 1 under Section 488 of the Criminal Procedure Code. She alleged that she was the wife of the opponent and that she was ill-treated by her husband and ultimately driven out. She also alleged that she had two daughters and that she was pregnant at the date of the application.

The opponent resisted that she was not his lawfully married wife and that she was merely staying with him as his mistress, and that, therefore, she was not entitled to claim any maintenance from him. He also denied the allegations about ill-treatment etc.

The learned Magistrate after considering the effect of the evidence adduced in the case found that the petitioner was not lawfully married wife of the opponent and consequently she was not entitled to claim any maintenance from him. As to the claim for maintenance of the children, the opponent was directed to pay at the rate of Rs. 15 per month to the applicant from the date of the application. Feeling dissatisfied with that order, the applicant has come in revision before this Court.

The Gujarat High Court held that her second marriage with the opponent was void in view of section 11 read with Section 5(1) of the Hindu Marriage Act. The learned Sessions Judge was, therefore, right in holding that the applicant failed to establish that she was the lawfully married wife of the opponent so as to entitle her to claim maintenance from him. Hence, the application is dismissed.

Raj Talreja Vs Kavita Talreja, 2017
Parties to the appeal got married in 1989 according to Hindu rites. Out of this wedlock a son was born in the year 1990. Till the year 1999 both husband and wife lived together with the parents of the husband. In the year 1999, the couple shifted to their own residence. On 19.03.2000, the husband left the matrimonial home and, soon thereafter, on 25.03.2000, filed a petition for grant of a decree of divorce dissolving the marriage.

It is not disputed that the wife filed a suit praying for injunction that the husband should not be permitted to enter the matrimonial home. The wife filed a complaint to the State Women Commission making serious allegations against the husband. Thereafter, on 05.12.2000, she sent a similar letter to the Chief Justice of the High Court as well as the Superintendent of Police. Finally, on 07.12.2000, she made another complaint to the Chief Minister.

On 16.03.2001, these complaints were found to be false. On 12.04.2001, a First Information Report (for short the 'FIR') was registered at the instance of the wife against the appellant husband under Section 452, 323 and 341 of the Indian Penal Code. The police investigated the matter and filed a report stating that there is no merit in the FIR. According to the police, the injuries on the person of the wife were self-inflicted and she has filed a false FIR.

The court held that the acts of the wife in filing false complaints against the husband amounts to cruelty, we are, however, not oblivious to the requirements of the wife to have a decent house where she can live. Therefore, some permanent arrangement has to be made for her alimony and residence. Keeping in view the status of the parties, we direct that the husband shall pay to the wife a sum of Rs.50, 00,000/- as one time permanent alimony.

The appeal is accordingly allowed and the petition for divorce filed by the husband under Section 13 of the Act is decreed and the marriage of the parties solemnized on 13.04.1989 is dissolved by a decree of divorce.

Geeta Jagdish Mangtani Vs Jagdish Mangtani, 2005
Briefly, the facts are that the marriage between the parties took place in 1992 at Ulhasnagar, Mumbai where the husband resides with his parents and other family members. The wife stayed in the matrimonial home up to 2nd June, 1993. In between she had returned to her parents' house at Adipur, Bhuj (Gujarat) on a couple of occasions to join her service as a teacher in a school at Anjar, Bhuj, Gujarat. The wife is teaching in the Municipal School at Anjar since prior to marriage.

It is common case of the parties that on 2nd June, 1993, the appellant-wife left the husband's house for her parents' house at in Bhuj, Gujarat for her first delivery. A son was born on 11th November, 1993. The fact is clearly established on record that after 2nd June, 1993 the appellant never returned to her husband to join him in the matrimonial home at Ulhasnagar.

On 30th September, 1996, husband sent a notice to the wife through his lawyer alleging desertion on her part and also alleging that the wife wanted that the husband should resign his job in Ulhasnagar and stay with the wife at Adipur, Gujarat. There was exchange of notices and the replies only one thing emerges that till 1996 there was no attempt on the part of the wife to join the husband.

Ultimately, the husband filed a divorce petition seeking divorce on the ground of cruelty and desertion. The trial court granted a decree of divorce. However, on an appeal filed by the wife, the lower Appellate Court reversed the judgment of the trial Court and dismissed the divorce petition filed by the husband. The husband appealed to the High Court against the said order. The High court by the judgment which is under challenge in this appeal confirmed the decree of divorce granted by the trial Court but only on the ground of desertion as the ground of cruelty was not pressed on behalf of the husband before the High Court.

K.Gangatharan Vs Sornasundari, 2018
This Civil Miscellaneous Second Appeal has been filed by the appellant (husband) under Section 28 of the Hindu Marriage Act, 1955 against the judgment confirming the judgment passed by Subordinate Judge, Devakottai. The appellant herein is the husband and he had filed for divorce under Section 13(1) (i-a) of the Hindu Marriage Act, 1955.

Briefly stated that the case of the appellant is that the marriage between the appellant and the respondent was solemnized on 26.10.2001 and after the marriage, they lived in joint family in the matrimonial home. Within few days of the marriage, the respondent did not respect the parents of the appellant and she had not done her duty to her husband. In the absence of the appellant, the father of the respondent took her to his home and whenever, the appellant went to his father-in-law house to take back his wife, the father of the respondent ill-treated, abused and threatened him. The trial Court dismissed the petition for divorce filed by the appellant.

It was held that looking at the facts and circumstances, it will not be possible for the parties to live together and therefore, there is no purpose in compelling both the parties to live together. Therefore, the best course is to dissolve the marriage by passing a decree of divorce. In the result, the Civil Miscellaneous Second Appeal is allowed and the judgment passed by the learned District Judge, Sivagangai, confirming the order dated 03.03.2004 passed in H.M.O.P.No.60 of 2002 on the file of the learned Sub-Court, Devakottai is set aside and the marriage between the appellant and respondent stands dissolved.

Mon Mohan Kohli Vs Natasha Kohli, 2013
Present petition is directed against the order passed by the Additional District Judge, Delhi, whereby an application filed by the petitioner (husband) for passing a decree of annulment of marriage in view of admission made by the respondent (wife) in the written statement, was rejected.

Petitioner was married to the respondent on 14.11.1994 and a male child was born out of their wedlock. The petitioner has filed a petition for grant of divorce under Section 13 (1) (ia) of the Hindu Marriage Act on the ground of cruelty which petition is also pending. Meanwhile, petitioner has filed another petition for grant of decree of nullity under Section 11 of the Hindu Marriage Act in the alternate under section 12(c) of the Hindu Marriage Act for annulment of marriage on the ground of fraud.

According to the petitioner, marriage between the petitioner and the respondent is a nullity since the respondent had a subsisting marriage with one Mr.Kia Louis Boccagna, which was performed in the United States of America. It is submitted that this fact was duly admitted by the respondent in her written statement.

According to this petition, the petitioner had no knowledge that the marriage of Mr.Kia Louis Boccagna and the respondent was subsisting even at the time of filing of the divorce petition in the trial court. As per him, the fact regarding the actual marriage of the respondent with Mr.Kia Louis Boccagna came to the knowledge of the petitioner after he obtained the certified copy of the decree which was obtained by the respondent from the United States of America, which was received by the petitioner through a courier on 12.05.2007.

It was held that the marriage was void on account of the previous marriage between the appellant and the respondent ought to have obtained the necessary declaration from the competent court. It is only upon a declaration of nullity or annulment of the marriage between the parties by a competent court that any consideration of the question whether the parties had lived in a "relationship in the nature of marriage" would be justified. Hence, the petition was dismissed.

Samar Ghosh Vs Jaya Ghosh, 2007
The appellant and the respondent are senior officials of the Indian Administrative Service, 'IAS'. The appellant and the respondent were married on 13.12.1984 at Calcutta under the Special Marriage Act, 1954. The respondent was a divorcee and had a female child from her first marriage. The custody of the said child was given to her by the District Court of Patna where the respondent had obtained a decree of divorce against her first husband, Debashish Gupta, who was also an I.A.S. officer.

The appellant and the respondent knew each other since 1983. The respondent, when she was serving as the Deputy Secretary in the Department of Finance, Government of West Bengal, used to meet the appellant between November 1983 and June 1984. They cultivated close friendship which later developed into courtship.

The respondent's first husband, Debashish Gupta filed a belated appeal against the decree of divorce obtained by her from the District Court of Patna. Therefore, during the pendency of the appeal, she literally persuaded the appellant to agree to the marriage immediately so that the appeal of Debashish Gupta may become infructuous. The marriage between the parties was solemnized on 13.12.1984. According to the appellant, soon after the marriage, the respondent asked the appellant not to interfere with her career.

She had also unilaterally declared her decision not to give birth to a child for two years and the appellant should not be inquisitive about her child and he should try to keep himself aloof from her as far as possible. According to the appellant, there was imposition of rationing in emotions in the arena of love, affection, future planning and normal human relations though he tried hard to reconcile himself to the situation created by the respondent

Grounds For Annulment
The grounds for a marriage annulment may vary according to the different legal jurisdictions, but are generally limited to fraud, bigamy, blood relationship and mental incompetence including the following:

1. Either spouse was already married to someone else at the time of the marriage in question;
2. Either spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse's reaching marriageable age);
3. Either spouse was under the influence of drugs or alcohol at the time of the marriage;
4. Either spouse was mentally incompetent at the time of the marriage;
5. If the consent to the marriage was based on fraud or force;
6. Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;
7. The marriage is prohibited by law due to the relationship between the parties. This is the "prohibited degree of consanguinity", or blood relationship between the parties. The most common legal relationship is 2nd cousins; the legality of such relationship between 1st cousins varies around the world.
8. Prisoners sentenced to a term of life imprisonment may not marry.
9. Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease)

Section 12 of Hindu Marriage Act, 1955 / 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:
   
   1. That the marriage has not been consummated owing to the impotency of the respondent; or
   2. That the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
   3. 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
   4. 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:
   
   1. On the ground specified in clause (c) of sub-section (1) shall be entertained if:
      
      1. 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

Conclusion:
Annulment is a process in which the marriage is declared as null and void due to some reasonable causes and these causes include that the legal requirements were not met at the time of marriage. When certain legal requirements are not met at the time of the marriage then the marriage is not considered as a valid marriage.

A divorce is a legal procedure where a valid marriage is dissolved by the court. These two terms deal with two different legal concepts. In the case of divorce, the petitioner seeks only to break the bond. Petitioner does not challenge the marriage itself. While praying for the decree of annulment, the petitioner challenges the validity of the marriage.

Written By:

1. Gurmeet Singh, Advocate, For M/S Gurmeet Singh & Associates, Advocates and Legal Consultants,
   Website: www.gurmeetsinghandassociates.com /.in, Email: [email protected], Ph No:+91 8750002000
2. Ms. Priya Chawla
3. Adv.Vidushi Jain
4. Adv. Hritwik
5. Adv. Aman Sharma
6. Sh.Aman Karamvir,
7. Adv. Tripty Rajput,
8. Ms. Divya Kaushal,
9. Adv. Alpana Yadav