Every religion considers marriage to be one of the most sacred relationships and this sacramental nature has made dissolution of marriage a sensitive subject. However, society has come a long way and marriage does not have the label of being an “eternal union” that it did once, so it is a lot easier for couples to open up about problems in their relationships and to seek relief as well. This shift from an everlasting and permanent union to one that can be dissolved based on certain circumstances, has led to legal provisions for dissolution of marriage like divorce, annulment and judicial separation. These dissolution mechanisms have similar procedures and grounds but each of them has very different consequences.
Meaning and grounds for an annulment
An annulment is a procedure used to make a voidable marriage (can be made null at the option of one party) null but if the marriage is void ab initio (void from the beginning), the marriage is already null but a legal decree, by way of an annulment, establishes this nullity. It is used rarely and even more rarely granted except in cases of bigamy or child marriage.
A couple can seek an annulment only on the grounds of fraud, pregnancy of the wife by a person other than the husband and impotency before and during the marriage. The status of the parties after an annulment is as though they have never been married before.[i]
However, bigamous marriages, inter-family marriages (marriage between blood relatives) and marriage between close relatives are considered to be void and automatically annulled according to the Hindu Marriage Act, 1955. Marriages that were entered into by duress, fraud, intoxication or unawareness of mental illness are voidable and can be annulled by one of the parties to that marriage.
Any child born out of a marriage that was null and void from the beginning would be a legitimate child but in the case of a voidable marriage, any child born after the decree of nullity is granted will be considered to be illegitimate, according to the Hindu Marriage Act, 1955.
Meaning and grounds for judicial separation
Judicial Separation can be a step towards divorce or a step towards reconciliation because the court gives the couple time to consider the choices available to them and the effects of their decision. The reason that judicial separation is provided for under the law is so that the courts can ensure that the normal strain and stress of everyday life are not the causes of a decision to end a marriage. Couples that are judicially separated are legally married but formally separated so the couple can file for judicial separation any time after the solemnization of a marriage if they feel like they cannot be in a legally recognized relationship anymore. The grounds for a judicial separation are:
5. mental disorder
6. communicable disease
7. renunciation of the world
8. presumption of death
However, if the person seeking judicial separation is a woman, the following grounds are also available to her[ii]:
1. remarriage of the husband
2. rape, sodomy or bestiality by the husband
3. child marriage
Even though the marriage has not formally or legally ended when the couple has judicially separated, the wife can still ask to be maintained if she cannot maintain herself, and this was decided in the case of Sohan Lal v. Kamlesh[iii]. Though the Hindu Marriage Act does not specify how long a judicial separation can last, Section 13 of the Act mentions that, if the separation has lasted for over a year, the couple can take the next step and seek divorce if they wish to not be married.
Difference between an annulment and judicial separation
An annulment is a legal decree of nullity by which an already null marriage is established to be null or a voidable marriage is sought to be declared null. In cases of annulment, the marriages, when solemnized, ignored certain legal requirements like the minimum age of the parties to the marriage or soundness of mind of both parties and because of this, the marriage never existed in the eyes of law.
However, in cases of judicial separation, the couple had fulfilled all legal requirements at the time of solemnization of the marriage and thereby the marriage was valid in the eyes of law so when the couple seeks to dissolve the marriage, the court cannot grant them an annulment. A marriage that was valid cannot be said to have not existed at all.
Recent trends of Adultery
Under Section 497 of the Indian Penal Code, adultery was criminalized thereby imposing culpability on a man who engages in sexual intercourse with another person’s wife. A man could be punished for adultery with a prison term of up to 5 years while women were exempted from punishment. Furthermore, a woman could not bring a complaint against her husband for engaging in an adulterous relationship with an unmarried woman.
However, in the case of Joseph Shine v Union of India[iv], a 5-judge bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as unconstitutional because it not only treated women as the property of their husbands by restricting extra-marital affairs by the women while not extending the same to their husbands but also because it infringed on the liberty and privacy of a woman by discriminating against married women and perpetrating gender stereotypes.[v] As of 2019, adultery is no longer a criminal offence but it is still a valid ground for annulment or judicial separation.
The consequence of an annulment is very different from that of a judicial separation. Couples who are granted Judicial Separation are still legally married but marriages between couples who were granted an annulment did not exist at all. Only some marriages can be annulled but all married couples can be granted a decree of judicial separation if they approach the court on valid grounds. Judicial Separation is the court’s way of attempting to preserve the sanctity of marriage by keeping the couple legally married while giving them time to think and consider their options of both dissolution and reconciliation.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i] Shubhi, Nullification of marriage – an annulled marriage, LegalServiceIndia, (August 15, 2019, 10:41 PM),http://www.legalserviceindia.com/article/l152-Nullification-of-Marriage—An-Annulled-Marriage.html.
[ii] Legal Views, Judicial Separation and Divorce in India, Vakilno1, (August 13, 2019, 8:02 PM), https://www.vakilno1.com/legalviews/judicial-separation-divorce-india.html.
[iii] Sohan Lal v. Kamlesh, AIR 1984 PH 332, (India).
[iv] Joseph Shine v. Union of India, (2017), Writ Petition (Cr.) 194 of 2017, (India).
[v]Disha Chaudhry, Joseph Shine vs. Union of India, Centre for Law and Policy Research, (August 14, 2019, 6:57 PM), https://clpr.org.in/litigation/decriminalisation-of-adultery-constitutional-challenge-to-section-497-of-the-ipc/.