The remedy is usually sought by the wife on the ground of the husband’s cruelty. But it is available to the husband also, on precisely the same grounds on which it may be sought by the wife (See s. 10). This remedy was available to the parties even before this Act was passed.
The grounds of cruelty and desertion were available even prior to this Act for obtaining this relief. Sexual intercourse outside the marriage is a new ground introduced by this Act. Judicial separation is available after 1976 on any ground that justifies divorce.
2. Declaration of Nullity of Marriage on the Ground that the Marriage is Void:
Under old law if a mandatory condition as to the qualifications for marriage or as to the religious ceremony to solemnize it was not complied with, the marriage could be declared void. Even intercaste marriage and Sagotra marriages could be declared to be void. Under old law whether or not the declaration was obtained from court, the marriage was a nullity and the issue would be illegitimate. This was the nature of the old remedy.
Ground of underage at the time of marriage is excluded from grounds specified in ss. 11, 12 and 13 of the Act and hence a marriage cannot be declared nullity by the Court. V. Mallikarjunaiah v. H.C. Goramma, AIR 1997 Karn. 77.
Under the new Act the remedy of nullity of marriages is granted on different grounds. One important change however has been effected. If instead of granting this remedy, suppose the marriage has been dissolved by divorce, a new remedy introduced by this Act.
If in such a case the children should be treated as legitimate issue, even though the decree of nullity of marriage has been granted, they would be treated similarly. But on the strength of this they cannot inherit property from anyone other than the parents themselves.
This means that children begotten during the continuance of the marriage would be enabled to inherit to both parents. After the 1976 Amendment the children of a void marriage, even without a decree of annulment, can inherit to both parents.
3. Declaration of Nullity of Marriage on the Ground that the Marriage is Voidable:
This is a new remedy. The distinction between void and voidable marriages has been introduced by this Act. Lunacy or impotency, for example, renders the marriage voidable. A decree for nullity of marriage may be granted on such grounds.
Avoidable marriage is valid until it is set aside and cannot be questioned by anyone other than the aggrieved party to the marriage (husband or wife as the case may be). The pre-existing law did not have a distinction of this kind. If a decree for nullity could be granted on any ground that ground was available for anyone who may be interested in invalidating the marriage for asserting his own rights and this could be done at any time when the validity of the marriage was called in question.
The present Act has made an improvement by differentiating between void and voidable marriages. Further, the children of this marriage are treated as legitimate even if a decree of nullity is granted provided they would have been treated as legitimate had the decree been a decree for divorce.
No doubt such children can claim heritable rights only to the parents themselves and not to others. If the marriage is not set aside by a decree of nullity, they can inherit from other relations also.
In Shamln Devi v. Surjit Singh, AIR 1998 HP 32, the Division Bench held that when the husband got himself medically examined and proved that he was potent, while the wife refused to get herself examined to prove her virginity or that marriage was not consummated the relief for annulment of marriage cannot be granted.
A woman who has not attained puberty need not be held to be impotent as long as it is not proved that she is physically or mentally not fit for consummation as consummation can always take place even without the woman attaining puberty and without her having uterus.
Where the circumstances of the case show that non-consummation was on account of the appellant-wife’s failure to co-operate for the same with the respondent-husband, the appellant-wife is an impotent. Marriage can be declared as voidable under Section 12 (1) (a) on the account of the impotency of wife. Maganti Kanakadurga v. Maganti Venkateszvarlu, AIR 2006 AP 259: 2006 (4) ALT 599 (DB).
In Manish Singh v. State of NCT, AIR 2006 Del 37, the Court is of the opinion that our judgment in these cases has been perceived in certain quarters as “reducing the age of marriage”, “reducing age of consent”, and “declining to nullify marriages of minors. We never did nor could have reduced statutory age of marriage.
Neither there was a prayer nor such marriage could have been nullified in view of existing factual and legal position. Reference to “age of discretion” was in the context of the girls having left of their own without inducement or enticement for the purpose of the charge of kidnapping and not to suggest any approval of the errant conduct.
In Sunder Lai Soni v. Namita Jain, AIR 2006 MP 51, the Court held that a cynic may propagate that in marriage the husband is the monarch or proclaim that a woman cries before the wedding and the man afterwards, but, the marriage is a socially sensible and respectable institution and has a great human purpose. In this case, the appellant- husband has created a concavity in the institutional paradigm by employing his skills in astrology and medicine.
In addition, he has suppressed the most material fact of his having five major children. Such a fraud may or may not invite criminal culpability but indubitably satisfies the requirement of Section 12(1) (c) of the Act. It is well settled that fraud vitiates all acts, be it ecclesiastical or mundane.
Thus, we have no doubt that the marriage between the appellant and the respondent has been founded on fraud from the very inception and hence, it is bound to founder and accordingly it is a nullity.
In the entire pleadings set out in the O.P or in the affidavit filed in lieu of chief-examination, nowhere it is alleged by the respondent that the marriage was not consummated due to the impotence of the petitioner, where the same has to be declared as a nullity.
Though the respondent filed the O.P. under Section 12 of the Act with the pleading requested the Court for a decree of divorce on the ground of nonconsummation. It is well settled that in a proceedings, even if the respondent is set ex parte, it is the duty of the Court, before granting an ex parte decree, to satisfy itself whether the requirement of law has been complied with or not, by the petitioner.
Having regard to the fact that the allegations levelled against the petitioner in the O.P. do not satisfy the requirement of Section 12 (1) (a) to annul the marriage by a decree of nullity, this Court is of opinion that the Court below ought not to have entertained the O.P. under Section 12 of the Act and it could not have granted a decree of divorce declaring the marriage as nullity without satisfying the ingredients of Section 12 of the Act. The Court below has committed incurable legal infirmities in passing the ex parte decree, which cannot be sustained under law. Uppu Govindu Lakshmi v. Uppu Narayana @ Narayana Rao, 2006 (1) ALD 24.
This is a new remedy introduced by the Act. A decree of divorce puts an end to the marriage. The conditions for obtaining a divorce are set forth in s. 13.