• Can husband file for annulment on grounds of non consummation?

We got married in December 2007. My wife refused to have physical intimacy on first night giving tiredness as reason. Post that for next few days she refused it saying she is too scared about it. After pursuing for few days I gave up on it and we kept on living without consummation of marriage for few months, After few months differences start pouring in and one night all of a sudden she left home for her parents place saying she doesn't want to continue in this marriage.

To cut a long story short in last 7+ years she has lived with me only 50% of the time and has preferred to live with her parents or working younger sister. Since 2011 she comes to my place just once in a year for 3-4 days and leaves. She comes and go without informing.

In between there had been few meetings of the two families in which I expressed my desire to get legally separated in response to which they demanded Alimony of INR 50 lacs and then came down to 35 lacs. This happened in 2013.

Since last 6 months she and her parents are saying that they don't want separation and she wants to live with me but since I don't want she wont come back.

When she left our home in 2013 she took away all her belongings from my house. Again without informing me.

I also want to mention that same story in identical way has been played out by her elder sister and her CrPC is going on since last 3 yrs.

My problem is that she is the one who has driven me to this point of no return in our marriage and clearly her parents and siblings are also after easy money and I do not wish to live with her anymore.

I have not filed for divorce as I know that they want me to file for it and do have the plan to counter it.

I want to know that since marriage is never consummated can I file for divorce on those grounds?

My wife and her family has also accused me of being impotent but reality is that she is the one who never wanted to have relationship initially and now I am just not interested to take the relation forward by consummating it.

In 2009 her parents even took me to a physician to get me medically examined.

I need a frank and fair advice from learned lawyers here.

I stay in Bangalore. My wife's parents live in Mhow (Indore). My parents live in Raipur. My wife when not in Bangalore lives in Mhow and Pune.

Any advice and way to move forward would be highly appreciated.

Regards
Asked 2 years ago in Family Law from Bangalore, Karnataka
Religion: Sikh
1. Though non consummation of marriage is a ground for nullity of marriage but it is very difficult to prove , more so, if the other deny this.
2. Rather I would advise you to fie suit for divorce on the ground of mental cruelty wherein you can mention this incident of refusal to have sex with you.
3. I think since you do not want her back then without waiting for her action you proceed to file a suit for divorce.
4. After so many years if she files case u/s 498A IPC  that is unlikely to carry much wait and you should not get problem to get bail.
5. if you propose for mutual divorce then my reading is they would come up with hefty demand. So better avoid to make this proposal right now.
Devajyoti Barman
Advocate, Kolkata
5196 Answers
54 Consultations
4.9 on 5.0
1. You can apply for nullity on the ground that marriage has not been consummated. However, it will be a borderline case in as much as your wife will deny that marriage has not been consummated. 

2. You can file for divorce on the ground of cruelty as the marriage could not be consummated owing to your wife's refusal. This would be a more prudent approach. 

3. Your wife has walked out of the matrimonial home without any incident of cruelty on your part, so she does not qualify to get alimony. Do not give in to her demands. Let her initiate the required proceedings in the court and you can contest it on merits. 

4. As and when you file for divorce your wife can contest the divorce proceedings. 

5. She may also hit back by filing domestic violence and dowry harassment proceedings against you. If she does this you should seek bail whenever and wherever required so that you are not arrested and put behind bars.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
1) you should have applied for annulment in first year of marriage 

2) you cannot apply now and your only option is to apply for divorce on grounds of mental cruelty . 

3) refusal to have sex amounts to mental cruelty . 

4) in case you file for divorce your wife may file 498A/ DV cases against you . in such a case you should apply for AB in 498A case

5) please note that contested divorce cases take some years to be disposed of . mutual consent divorce would be ideal as it can be disposed of in 6 months
Ajay Sethi
Advocate, Mumbai
23234 Answers
1219 Consultations
5.0 on 5.0
Hi, you can file a petition for divorce on the ground of the cruelty and not consummated marriage as refusing to have sex is also amounts to cruelty you have a good ground to file a petition for divorce.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1, The ground for annulment should better be avoided.
2. Even if you do not file divorce , then also she can file those cases.
3.Even if you do not file divorce suit then also she can claim maintenance staying at her parental place.
Devajyoti Barman
Advocate, Kolkata
5196 Answers
54 Consultations
4.9 on 5.0
1. You have not mentioned whether you marriage has never been consumated or that she is just refusing to be physical with you,

2. It will be difficult for you to prove that your marriage has not been consumated due to her refusal when she is also alleginging your impotence,

3. You have not mentioned why did her parents taken you to doctor and if it is for testing your potency, what is the examination report furnished by the said doctor,

4. If the impotency factor is taken care of by you, then you can file a divorce suit on the ground of cruelty,

5. Be prepared for her filing DV case and complaint u/s498A against you which you shall have top contest fittingly.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
1) in my reply to your query it was clearly mentioned that contested divorce proceedings take some years to be disposed of . 
2) your wife has refused to have sex with you for 7 years . wilful refusal to have sex amounts to mental cruelty . 

3) if in response to divorce petition your wife agrees to stay with you it is not necessary that you should agree . you can very well argue that you have waited for 7 years and you have no intention to continue to pander to her whims and fancies . 

4)even if you dont file for divorce your wife can file 498A / DV cases against you . 

5)your wife can claim maintenance even if you dont file for divorce
Ajay Sethi
Advocate, Mumbai
23234 Answers
1219 Consultations
5.0 on 5.0
1. No consumation will be difficult to prove medically, so file  divorce suit on the ground of cruelty,

2. She can file DV & other cases/complaints even now and filing such cases after your filing divorce suit will be considered as retaliatory measure by the Court,

3. File the divorce suit as advised and counter DV and 498A complaint fittingly,

4. Now a days, it is easy to get AB for 498A complaint and once you get AB, 90% battle is over.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
Dear Querist
The annulment is very difficult because the main reason should be impotency of the respondent which can not be proved easily. so forget about the annulment.

refusal for sex comes under the cruelty and on this ground you may file a divorce petition against her before court u/s 13(1)(ia) of Hindu Marriage Act along with section 13(1A) of HMA.

after filing the divorce petition if she filed any case against you then it may be possible then her case's consider as counterblast cases and the court may think that her cases are fake and fabricated, to take revenge only.

as per my opinion if there is no return and there is no chance to save the marriage then immediately file divorce petition against her before family court and fight the case on merit.
Nadeem Qureshi
Advocate, New Delhi
3533 Answers
130 Consultations
4.9 on 5.0
Hi, even though you have not filed a petition for divorce on the ground of annulment of marriage she can file a petition for maintenance and also lodge a police complaint under section 498/A of the IPC.

2. You can file a petition for annulment of marriage on the ground that marriage has not consummated.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. The court will not obligate you to consummate the marriage with your wife if she states that she is willing to do it. This being said, for reasons mentioned in my previous reply, it will be better for you to seek divorce instead of annulment. You can state that you have been denied sex for 7 years and now you are not willing to stay with your wife anymore, whereupon the court will try the case on merits. 

2. She can file all the cases which she can file under the law of the land. You would be given an opportunity to contest them on merits.

3. You have to take the call on whether to file or not to file for divorce/nullity. For her to file for maintenance and 498A it is not necessary that divorce proceedings should have been initiated in prior by you. 

4. No case stretches to 4 years without a movement.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
You cannot seek annulment now after laps of more than one year of your marriage.

You have to file for divorce citing cruelty as ground and clearly narrate the factual back round with specific emphasis on how many days/months she lived with you.

As a counter attact she may also file criminal cases against you on her native place which you can't stop.

But filing divorce case in Bangalore gives you two fold advantage  (1 ) if she file 498a or DVcase against you, you can take defense of "revenge complaint" claiming that, as you have filed divorce case on the ground of  cruelty as counter attack she has filed case against you.
(2) she has to contest the divorce case here in bangalore or she has to approch supreme court for transfer of case to her place of residence.If she fails to contest your divorce case, you may get ex parte divorce decree.

During this process she may soften her stand and may agree for mutual consent divorce with lesser alimony.  All the best.
Sandeep Hegde
Advocate, Bangalore
361 Answers
97 Consultations
4.8 on 5.0

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