Nullity and Divorce under the Special Marriage Act

Section 25: voidable marriages

Any marriage solemnized under the Act shall be voidable and may be annulled by a decree of nullity if:

(i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it; or

(ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or

(iii) the consent of either party was obtained by coercion or fraud, as defined in the Indian Contract Act 1872.

The bars

For clause (ii), pregnancy, no decree unless the court is satisfied that the petitioner was ignorant of the facts at the time of the marriage, that proceedings were instituted within a year of the marriage, and that marital intercourse with the petitioner's consent has not taken place since the discovery.

For clause (iii), coercion or fraud, no decree if proceedings were not instituted within one year after the coercion ceased or the fraud was discovered, or if the petitioner has with free consent lived with the other party as husband and wife after that.

Three differences from section 12 of the Hindu Marriage Act

Wilful refusal is a ground here and is not there. Section 12(1)(a) of the Hindu Marriage Act requires non-consummation owing to the impotence of the respondent. Section 25(i) here requires non-consummation owing to the wilful refusal of the respondent. They are different things: impotence is an incapacity, wilful refusal is a choice. Under this Act both are covered, impotence by section 24 and refusal by section 25. Under the Hindu Marriage Act, wilful refusal alone fits neither section.

"Coercion or fraud, as defined in the Indian Contract Act." The Hindu Marriage Act says "force" and defines fraud itself, as fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. This Act borrows the contract definitions wholesale. That is a secular statute behaving like a secular statute: it treats consent to marriage the way the law treats consent to a contract.

Mental capacity is not here at all, because breach of section 4(b) makes the marriage void under section 24.

Section 26: legitimacy

Section 26, substituted in 1976, reproduces section 16 of the Hindu Marriage Act almost word for word.

Sub-section (1). Notwithstanding that a marriage is null and void under section 24, any child of it who would have been legitimate if the marriage had been valid shall be legitimate, born before or after the 1976 amendment, whether or not a decree of nullity is granted, and whether or not the marriage is held void otherwise than on a petition under the Act.

Sub-section (2). Where a decree of nullity is granted for a voidable marriage under section 25, any child begotten or conceived before the decree who would have been legitimate had the marriage been dissolved rather than annulled is deemed to be their legitimate child notwithstanding the decree.

Sub-section (3). Nothing in the two preceding sub-sections confers on such a child any rights in or to the property of any person other than the parents, in a case where but for the Act the child would have been incapable of possessing or acquiring them by reason of illegitimacy.

Everything said about section 16 of the Hindu Marriage Act in [Void and Voidable Marriages, and the Legitimacy of Their Children] applies here, including the limit in sub-section (3).

Section 27: the grounds of divorce

Section 27(1) provides that a petition for divorce may be presented to the district court by either the husband or the wife on the ground that the respondent:

(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;

(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code;

(d) has since the solemnization of the marriage treated the petitioner with cruelty;

(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent, with an Explanation defining mental disorder and psychopathic disorder in the same words as the Hindu Marriage Act;

(f) has been suffering from venereal disease in a communicable form;

(h) has not been heard of as being alive for seven years or more by those who would naturally have heard of the respondent if the respondent had been alive.

Clause (g) was omitted by Act 6 of 2019 with effect from 1 March 2019, and the number is empty.

The Explanation to section 27(1) defines desertion in the same words as the Hindu Marriage Act: desertion without reasonable cause and without the consent or against the wish of the petitioner, including wilful neglect.

What is here that is not in section 13

Clause (c), a sentence of seven years or more. The Hindu Marriage Act has no such ground. A spouse serving a long sentence gives the other a ground of divorce under this Act and not under that one.

What is in section 13 and not here

Conversion. Section 13(1)(ii) of the Hindu Marriage Act gives a ground where the other party has ceased to be a Hindu by conversion. There is no such ground here, and there could not be: the Act is open to persons of every religion and none, so changing religion changes nothing about the marriage.

Renunciation of the world by entering a religious order. Section 13(1)(vi) there; nothing here, for the same reason.

That pair of absences is the clearest illustration of what a secular marriage law means in practice, and it is a good closing line for a comparative answer.

Section 27(1A): the wife's additional grounds

A wife may also petition on the ground:

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act 1956, or in a proceeding under section 125 of the Code of Criminal Procedure 1973 or the corresponding section 488 of the 1898 Code, a decree or order has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart, and that since then cohabitation has not been resumed for one year or upwards.

The wife has two additional grounds here, where under the Hindu Marriage Act she has four. The two missing are the pre-Act polygamous marriage, which has no application to a secular Act of 1954, and repudiation of a marriage contracted below fifteen, which cannot arise because section 24 makes an underage marriage void outright.

Section 27(2): the failed decree

Either party to a marriage, whether solemnized before or after the Special Marriage (Amendment) Act 1970, may petition for divorce on the ground:

(i) that there has been no resumption of cohabitation for one year or upwards after a decree of judicial separation; or

(ii) that there has been no restitution of conjugal rights for one year or upwards after a decree for restitution.

This mirrors section 13(1A) of the Hindu Marriage Act exactly.

Section 27A: alternative relief

In any proceeding on a petition for divorce, except insofar as the petition is founded on the ground in clause (h) of section 27(1), that is, seven years unheard of, the court may, if it considers it just having regard to the circumstances, pass instead a decree for judicial separation.

Compare section 13A of the Hindu Marriage Act, which excludes three grounds: conversion, renunciation and presumed death. Here only one is excluded, because the other two grounds do not exist in this Act.

Section 28: divorce by mutual consent

Section 28(1) provides that a petition for divorce may be presented to the district court by both parties together on the ground:

• that they have been living separately for a period of one year or more;
• that they have not been able to live together; and
• that they have mutually agreed that the marriage should be dissolved.

Section 28(2) provides that on the motion of both parties made not earlier than six months and not later than eighteen months after the date of presentation, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied after hearing the parties and after such inquiry as it thinks fit that a marriage has been solemnized under this Act and that the averments are true, pass a decree declaring the marriage dissolved with effect from the date of the decree.

This is section 13B of the Hindu Marriage Act in almost identical words, and everything in [Divorce by Mutual Consent, Alternate Relief and Remarriage] applies: the three limbs must all be pleaded, consent must survive to the second motion, and the court is not a rubber stamp.

One point of history is worth a line. Divorce by mutual consent was in this Act from the beginning, in 1954. It reached Hindus only in 1976, when section 13B was inserted. The secular Act was twenty-two years ahead of the personal law, which is a useful fact for an essay on the Uniform Civil Code.

A worked example

Rohit, twenty-two, and Nazia, seventeen, marry under the Special Marriage Act; the Marriage Officer is not told her age. In another case, Aslam and Priya marry under the Act; Aslam wilfully refuses to consummate the marriage. In a third, Mohan is sentenced to eight years' imprisonment and his wife wants a divorce.

Rohit and Nazia. Section 4(c) requires the male to have completed twenty-one and the female eighteen. Section 24(1)(i) makes the marriage void for breach of any of the conditions in clauses (a) to (d) of section 4, and that includes the age condition.

Would it have been void under the Hindu Marriage Act? No. Section 11 of that Act does not include section 5(iii), which is the contrast to draw.

Aslam and Priya. Section 25(i): the marriage has not been consummated owing to the wilful refusal of the respondent, which makes it voidable. Note that wilful refusal is not a ground under the Hindu Marriage Act at all, and that impotence under this Act makes the marriage void under section 24(1)(ii), not voidable.

Suppose Priya had been pregnant by another man at the marriage. Section 25(ii), voidable, subject to the bars: the petitioner must have been ignorant of the fact at the marriage, must institute proceedings within one year, and must have had no marital intercourse since the discovery.

Mohan's wife. Section 27(1)(c): the respondent is undergoing a sentence of imprisonment for seven years or more for an offence. The Hindu Marriage Act has no such ground.

Could she have relied on his conversion instead? There is no ground of conversion under this Act, and none of renunciation; a secular Act does not need them.

Would the court have to give divorce? Section 27A: it may grant judicial separation instead, except where the ground is presumed death.

Could they simply agree? Section 28: divorce by mutual consent, available under this Act since 1954, twenty-two years before it reached the Hindu Marriage Act.

What it does NOT mean

Section 24 is wider than section 11 of the Hindu Marriage Act. Breach of any of the four conditions in section 4 makes the marriage void, including the age condition, which under the Hindu Act does not.

Impotence appears in the wrong place for a Hindu lawyer. Under this Act, the respondent's impotence at the marriage and at the suit makes the marriage void under s.24; under the Hindu Act impotence makes it voidable.

Wilful refusal to consummate is not a ground under the Hindu Act. Here it makes the marriage voidable under s.25.

Coercion and fraud are not defined by this Act. They take the meanings in the Indian Contract Act 1872.

There is no ground of conversion and none of renunciation. A secular Act does not need them.

The wife has two extra grounds, not four. Rape, sodomy or bestiality; and a maintenance order followed by no cohabitation for a year.

Section 27A does not exclude the same grounds as section 13A. It excludes only presumed death.

Divorce by mutual consent is not a Hindu-law borrowing. Section 28 has been in this Act since 1954, twenty-two years before section 13B was inserted into the Hindu Marriage Act.

Quick revision

• s.24, void: breach of any of the four conditions in s.4, including age; and the respondent's impotence at the marriage and at the institution of the suit.
• s.25, voidable: wilful refusal to consummate; the respondent pregnant by another at the marriage; and consent obtained by coercion or fraud as defined in the Indian Contract Act 1872. Bars: for pregnancy, ignorance at the marriage, proceedings within one year, and no marital intercourse since discovery; for coercion or fraud, proceedings within one year and no cohabitation with full consent after it ceased or was discovered.
• s.26: children of a void or annulled marriage are legitimate, taking only from their parents.
• s.27, divorce: adultery; desertion for two years; the respondent undergoing a sentence of imprisonment for seven years or more; cruelty; mental disorder; venereal disease; and not heard of as alive for seven years. No ground of conversion and none of renunciation.
• s.27(1A), the wife's extra grounds: the husband guilty of rape, sodomy or bestiality; and a decree or order of maintenance followed by no cohabitation for one year.
• s.27A: alternative relief, judicial separation instead of divorce, except where the ground is presumed death.
• s.28: divorce by mutual consent, in the Act since 1954.

Test yourself

1. On what grounds is a marriage void under this Act? That any of the conditions in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled, and that the respondent was impotent at the time of the marriage and at the time of the institution of the suit.

2. On what grounds is it voidable? That the marriage has not been consummated owing to the wilful refusal of the respondent; that the respondent was at the time of the marriage pregnant by some person other than the petitioner; and that the consent of either party was obtained by coercion or fraud as defined in the Indian Contract Act 1872.

3. Name three grounds of divorce under section 27 that differ from the Hindu Marriage Act. That the respondent is undergoing a sentence of imprisonment for seven years or more for an offence, which the Hindu Marriage Act does not have; and, on the other side, this Act has no ground of conversion and no ground of renunciation of the world.

4. When did divorce by mutual consent become available under each Act? Under section 28 of the Special Marriage Act from 1954, and under section 13B of the Hindu Marriage Act only from the amendment of 1976.