Not every exit from a marriage is a divorce. The Hindu Marriage Act, 1955 recognises two other categories: marriages that are void — nullities from inception under Section 11 — and marriages that are voidable, standing valid until a court annuls them under Section 12. Clients use the word "annulment" for both; the law treats them very differently, and choosing the wrong petition can cost limitation, relief and strategic position. This explainer maps the two provisions as they apply in Delhi's family courts.
The conceptual divide
The marriage never came into legal existence. Either party may seek a declaration of nullity; the defect — bigamy, prohibited degrees, sapinda relationship — cannot be cured by consent, time or cohabitation.
The marriage is valid and produces all legal consequences unless and until the aggrieved party obtains an annulment decree. Only the aggrieved spouse can sue; delay, ratification or continued cohabitation after discovery can extinguish the right.
The divide does real work. A spouse in a void marriage can, in principle, treat it as a nullity; a spouse in a voidable marriage remains married for every purpose — succession, maintenance, matrimonial offences — until the decree. That is why the first task in any annulment brief is classification, not drafting.
The grounds, mapped
| Ground | Provision | Category | Key limits |
|---|---|---|---|
| Subsisting earlier marriage (bigamy) | S. 5(i) r/w S. 11 | Void | Also an offence under S. 82 BNS (formerly S. 494 IPC) |
| Prohibited degrees / sapinda relationship | S. 5(iv), 5(v) r/w S. 11 | Void | Saved where a valid custom permits |
| Impotence resulting in non-consummation | S. 12(1)(a) | Voidable | Focus is incapacity vis-à-vis the petitioner, proved on evidence |
| Incapacity to consent / mental disorder at marriage | S. 5(ii) r/w S. 12(1)(b) | Voidable | Condition must exist at the time of marriage |
| Consent by force or fraud | S. 12(1)(c) | Voidable | One-year bar after force ceases / fraud discovered; cohabitation after discovery defeats the plea |
| Pre-marriage pregnancy by another | S. 12(1)(d) | Voidable | Petition within one year of marriage; strict conditions in S. 12(2)(b) |
What counts as fraud — and what does not
Section 12(1)(c) reaches fraud “as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.” Concealment of a subsisting serious illness, of an earlier marriage or divorce, or of facts central to matrimonial consent has founded decrees; exaggerations about income, status or qualifications sit at the margin and succeed only when the misrepresentation is shown to be material to the consent itself. Two recurring failure points deserve emphasis: the one-year clock from discovery, which litigants overrun while attempting reconciliation, and continued cohabitation after discovery, which the statute treats as ratification. A spouse who learns of the fraud should take advice immediately — the right is perishable.
Consequences beyond the decree
Section 16 protects the legitimacy of children of void and annulled marriages. Custody and their maintenance are dealt with on ordinary principles; annulment litigation does not prejudice them.
Interim maintenance under Section 24 HMA is available in annulment proceedings, and courts have granted permanent alimony under Section 25 even where the marriage is annulled — financial relief does not automatically vanish with the marriage.
A void bigamous marriage supports prosecution under Section 82 BNS; conversely, a genuine and reasonable belief in a valid marriage matters in offences premised on marital status. Annulment findings can therefore echo in parallel criminal cases, including 498A-type proceedings.
A decree of nullity re-routes inheritance expectations; the spouse of a void marriage is not a “widow” or “widower” in succession law, though the children’s protected legitimacy carries defined property rights.
Choosing between annulment and divorce
Where both routes are arguably open — say, concealed mental illness that also makes cohabitation unreasonable — the choice is strategic. Annulment erases the marriage and may matter deeply to a client’s sense of the record, but its grounds are narrow and its clocks short. Divorce on cruelty or under Section 13(1)(iii) is broader and free of the one-year bars, at the cost of acknowledging the marriage. Pleading in the alternative is permissible and often prudent; what is not prudent is discovering the Section 12(2) bar after it has run.
Annulment petitions in Delhi are filed before the Family Courts, with appeals to the Delhi High Court. Each case turns on its evidence — medical records, correspondence, the timeline of discovery — and early, candid advice on classification saves months of misdirected litigation.
Frequently Asked Questions
What makes a marriage void under Section 11?
Contravention of three of the Section 5 conditions: a living spouse from a subsisting marriage (bigamy), parties within the degrees of prohibited relationship, or parties who are sapindas of each other — in the latter two cases unless custom permits the marriage. A void marriage is no marriage in law, though a declaratory decree is prudent for certainty.
What makes a marriage voidable under Section 12?
Four grounds: non-consummation owing to the respondent's impotence; incapacity to consent or qualifying mental disorder at the time of marriage (Section 5(ii)); consent of the petitioner — or of a required guardian — obtained by force or fraud as to the nature of the ceremony or a material fact concerning the respondent; and the respondent's pregnancy by another person at the time of marriage.
Are there time limits for annulment petitions?
For force or fraud, Section 12(2)(a) bars the petition if filed more than one year after the force ceased or the fraud was discovered, or if the petitioner lived with the spouse as husband or wife after that point. For pre-marriage pregnancy, the petition must be filed within one year of the marriage, with the petitioner ignorant of the fact at the time and no marital intercourse after discovery.
Are children of void or annulled marriages legitimate?
Yes. Section 16 HMA confers legitimacy on children of void marriages and of marriages annulled under Section 12, with their property rights as the law delineates. Annulment of the parents' marriage does not visit illegitimacy on the children.