11 – 02 – 2019

VOID:

(1) Non Hindu

(2) Living Spouse
(3) Sapinda
(4) Prohibited degrees of relationships

Presumption that the person was never married – at all. If a child was begotten out of that marriage
– the child will be called illegitimate child but will always have the right to property of the parents
but not to the joint-property.

VOIDABLE: Annulment:

The basic grounds on which voidable marriages have been annulled - §12

(1) Non consummation of marriage owing to impotency

(2) The concept of age is compromised with – §5 (2) – bride to be 18 years & groom to be 21.
 Consent of the guardian was done away with through an amendment.
(3) Consent taken by Fraud.
 Concealment of a material fact
(4) Pregnant by some other person
 Petitioner was ignorant of the facts alleged
 Proceedings have been instituted in the case of a marriage solemnised BEFORE the
commencement of the Act – within 1 year of such commencement and ---.
 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.

13 – 02 – 2019

Legal implication of voidable marriages: A void marriage is void irrespective of a court decree,
however, a voidable marriage is valid till declared void by court.

§10 OF THE HMA: JUDICIAL SEPARATION

(1) Either party to a marriage, whether solemnized before or after the commencement of this Act,
may present a petition praying for a decree for judicial separation on any of the grounds specified in
sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-
section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the
petitioner to cohabit with the respondent, but the court may, on the application by petition of either
party and on being satisfied of the truth of the statements made in such petition, rescind the decree
if it considers it just and reasonable to do so.

Grounds for Divorce under the Hindu Marriage Act, 1955

The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.
Adultery – The act of indulging in any kind of sexual relationship including intercourse outside
marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are
required to establish it. An amendment to the law in 1976 states that one single act of adultery is
enough for the petitioner to get a divorce.

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and
physical injury that causes danger to life, limb and health. The intangible acts of cruelty through
mental torture are not judged upon one single act but series of incidents. Certain instances like the
food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are
included under cruelty.

Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two
years, the abandoned spouse can file a divorce case on the ground of desertion.

Conversion – Incase either of the two converts himself/herself into another religion, the other
spouse may file a divorce case based on this ground.

Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the
petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected
from the couple to stay together.

Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other
spouse based on this ground.

Venereal Disease – If one of the spouses is suffering from a serious disease that is easily
communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like
AIDS are accounted to be venereal diseases.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by
embracing a religious order.

Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally
heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The
other spouse should need to file a divorce if he/she is interested in remarriage.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume
their co-habitation after the court has passed a decree of separation.

The following are the grounds for divorce in India on which a petition can be filed only by the wife.

 If the husband has indulged in rape, bestiality and sodomy.

 If the marriage is solemnized before the Hindu Marriage Act and the husband has again married
another woman in spite of the first wife being alive, the first wife can seek for a divorce.

 A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces
the marriage before she attains eighteen years of age.

 If there is no co-habitation for one year and the husband neglects the judgment of maintenance
awarded to the wife by the court, the wife can contest for a divorce.