• Marriage annulment over not revealing the condition of PCOD/PCOS

I have been married for 4 months. My wife has PCOS/PCOD and this information was not revealed to me at the time of marriage. Right after marriage, she has expressed about this, and we went to learn more about the problem. She was a little bit hesitant to take proper medication, and the doctor explained us the details of her condition. Now this problem lead to a cold war between families as my family and myself consider this marriage as cheating. But, as I understand, if I file for a divorce, I may subjected towards a long legal procedure, and possibly financial damage on my side. Is there a possibility of nullity, since the consent of the marriage was fraudulent? I'm a christian, from Kerala, we married at a local church, and the marriage is not yet registered with the government.
Asked 5 years ago in Family Law
Religion: Christian

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16 Answers

PCOD is not incurable disease nor it is a hindrance to conceive a child.

hence suppression of this disease may not be considered as material soa s to enable you to seek declaration of the marriage null and void.

If this disease alone is a bone of contention between you two then don't think in terms of dissolving the marriage.

There is no guarantee that a lady without these diseases would be able to beget a child or shower your life with all love and affection.

hence work this marriage out.This is your best bet.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
407 Consultations

5.0 on 5.0

Respected sir.

Pre existing / post marriage medical situations are not grounds for divorce/nullity unless they are of such nature that normal marital life is not possible at all - insanity, leprosy, venereal disease and for a minimum period of 3 years before the divorce petition. If U want to get rid of her U can file a case for suppression of material facts regarding her health condition,before marriage.

Thanku

Dinesh Sharawat
Advocate, Delhi
1259 Answers
12 Consultations

4.9 on 5.0

you can file petition for anullment of marriage as your wife has suppressed material facts about her health condition before marriage

2)enclose medical reports in your possession that wife was suffering from PCOD before marriage

3) you have to prove allegations made in the petition

4) if your wife contests the legal proceedings it would be a long drawn affair

Ajay Sethi
Advocate, Mumbai
89022 Answers
6344 Consultations

5.0 on 5.0

1. The time consumed in nullity proceedings will not be less than in divorce. Be that as it may, if you have evidence to prove that she has PCOS/PCOD then you are free to file a petition for annulment of marriage in the competent court. This is certainly a material fact which should not have been suppressed.

2. Be prepared also to face 498A and other cases in return.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

Hello,

The aforementioned is not a ground for nullity of marriage as per the Indian Marriage Act.

A decree of nullity under the Indian Divorce Act, can only be made on the grounds specified under Section 19 thereof. The grounds being:-

“(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;

(2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;

(3) that either party was a lunatic or idiot at the time of the marriage;

(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.”

You will have to file a divorce case.

Contact a local lawyer.

Regards

Anilesh Tewari
Advocate, New Delhi
17943 Answers
377 Consultations

5.0 on 5.0

Dear Querist

you may file a petition for annulment before the High Court under section 18/19 of Indian Divorce Act.

18.Petition for decree of nullity

.- Any husband or wife may present a petition to the District Court; praying that his or her marriage may be declared null and void.

19.Grounds of decree

.- Such decree may be made on any of the following grounds:—

(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit ;

(2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity ;

(3) that either party was a lunatic or idiot at the time of the marriage;

(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.

Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

PCOD/PCOS is not life serious and dangerous medical condition on which you can file for annulment of marriage.

Rajashekar
Advocate, Bangalore
584 Answers
4 Consultations

4.8 on 5.0

OPTIONS:

Section 25 in The Special Marriage Act, 1954

25. Voidable marriages.—Any marriage solemnized under this 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 the marriage; 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 to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872): Provided that, in the case specified in clause (ii), the court shall not grant a decree unless it is satisfied,—

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(b) that proceedings were instituted within a year from the date of the marriage; and

(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree: Provided further that in the case specified in clause (iii), the court shall not grant a decree if,—

(a) proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or

(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.

Nullity of Marriage

The concept of a marriage being a nullity from the very beginning or being annulled subsequent to the marriage is a concept of English origin from the times of the ecclesiastical courts which exercised jurisdiction over every aspect of marriage. The ecclesiastical doctrine laid down that marriage was not regarded as consummated if parties have not become one flesh by sexual intercourse, and consequently if one of the parties was impotent and therefore unable to consummate the marriage, he or she lacked the capacity to marry. Further, annulling a voidable marriage was given retrospective effect. According to ecclesiastical law, a marriage was either valid forever or never, in cases similar to the above, the marriage was declared void ab initio. Such uncontrolled and unrestrained power in the hands of the religious leaders to declare marriages void and bastardize the issue was a cause of great concern to the royal courts.

It was situations like this that lead to the question, whether laws which in spite of their ecclesiastical authority character should force such arbitrary rules upon the common man. It was as an answer to this question that laws were divided into (a) civil and (b) canonical. It was further decided that a marriage in violation of the former would be void and latter would voidable. It was also understood as a general principle that the validity could be questioned only by the parties to a marriage and further that if one of the spouses died, such a question could never arise.

Void Marriage

A marriage which arises on account of the fact that the parties have no capacity to marry, have in fact married undergoing the requisite rites and ceremonies of marriage. Such a marriage is a misnomer, a contradiction and is void ab initio. The essential feature of such a marriage is that no legal consequences arise from it, i.e. no rights and obligation arise from it. Further since a void marriage is no marriage at all, a decree of nullity is not necessary, as a decree merely makes a judicial declaration of an existing fact.[i]

Grounds of void marriage

A marriage performed in violation of absolute impediments is void. Under the SMA, a marriage is void on the following grounds:[ii]

Either party has a spouse living at the time of marriage.

Either party was at the time of marriage incapable of giving a valid consent in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children or has been subject to recurrent attacks of insanity.

The bride was below 18 years in age and bridegroom was below age of 21 years at the time of marriage

Parties were within the degree of prohibited relationship.

The respondent was impotent t the time of institution of the suit.

These grounds do not apply to marriages registered under the Act. The registration however maybe cancelled on the following grounds:

Marriage was bigamous

Either party was an idiot or lunatic at the time of marriage

No valid ceremony of marriage was performed between the parties

One of the parties or both were under the age of 21 years at the time registration

Parties are within the degrees of prohibited relationship

Voidable Marriage

A voidable marriage is one which is valid until it is avoided. It can be avoided by a petition by either party to a marriage if it violates conditions requisite to make a marriage valid. If, however none of the parties petition for an annulment, it will remain valid. If one of the parties dies, the validity cannot be questioned. The marriage will give rise to rights and obligations as long as it is valid.

Grounds of voidable marriage:-

Under SMA, a marriage is voidable on the following grounds:

Non consummation of marriage on account of wilful refusal of the respondent to do so

Pre-marriage pregnancy of the respondent of which the petitioner was not the cause and of which the petitioner was at the time of marriage ignorant, and marital inter course had not take place with the consent of the petitioner after the knowledge of pregnancy and further that the petition is presented within a year from the date of marriage

Petitioners consent was obtained by fraud or force, provided that the petitioner did not live with the respondent as husband or wife after the discovery of fraud or cessation of force and provided further that the petition was presented within one year of the discovery of fraud or cessation of force.

Pre-Marriage Pregnancy

Pre-marriage pregnancy is a ground for voidable marriage under the SMA[iii]. This ground has its origin in English and if often called a special kind of fraud. It has to be noted that this ground talks about pre-marriage pregnancy lone and not pre-marriage unchastity. Even if the woman is unchaste before the marriage and she had delivered an illegitimate child, the marriage could not be avoided, since unchastity is not a ground of annulment of marriage[iv]. The conditions to be roved here are,

Respondent was pregnant at the time of marriage

She was pregnant from a person other than the petitioner

Petitioner was not aware of respondent’s pregnancy at the time of marriage

Petition must be presented within one year of the marriage under the SMA

No marital intercourse should take place with the consent of the petitioner after he had known of wife’s pregnancy

It is essential that all these conditions must be fulfilled before a petition can be filed. In case of this particular ground the burden of proof is on the petitioner who must establish all the aforesaid requirements. Also if the petition is not presented within the time limit specified under the Act, it will become time-barred and the petitioner will be left with no remedy.

Fraud or Force

Broadly the ground uses the terms fraud and force. The SMA, 1954 uses the words coercion and fraud. The requirements are:

Consent of the petitioner was obtained by fraud or coercion

Petition must be presented within one year of the discovery of fraud or cessation or coercion

Petitioner must not have lived with the respondent, as husband or wife, as the case maybe, after the discovery of fraud or coercion.

Force

Force i99n this context does not mean merely physical force it also includes mental agony and torture. English authorities lay down that whatever owing to some natural weakness of mind or on account of some fear, whether entertained reasonably or unreasonably, but nonetheless entertained really, or when a party is in such a mental state that he finds it almost impossible to resist the pressure, it will amount to duress as in such a case there is no real consent. This is what coercion means under the SMA[v].

Strong advice and persuasion does not come within this definition. This is primarily because in most cases of arranged marriage some element of persuasion is present and it would be absurd to include all such cases as forceful and inclusive of coercion. Further it is also to be noted that for the purpose of personal laws in India, the terms force, coercion, duress etc mean the same.

Fraud

It basically means situation sand circumstances as to show want of real consent to marriage. The main element here is deceit. Unlike the Law of Contracts, misrepresentation either innocent or fraudulent will not terminate the marriage. The important aspect here is respect to the fact that has been fraudulently represented. If it a crucial element in the marital relation then it will affect the marital relation. For example if there is a misrepresentation with respect to the ceremonies or identity of the party. Under the Act the following are classified as fraudulent:

Fraud as to the nature of the ceremony

Shiram v. Taylor[vi] is a case where the parties went through with a ceremony of marriage though the husband had no intention to regard it as a real marriage.

As to the identity of the person

C v. C[vii] is a case where W married H in the erroneous belief that he was well known boxer called Miller.

Concealment of disease

Amarnath v. Layyabati[viii] is a case where concealment of venereal disease lead to nullification of the marriage. It was also held that some cases like syphilis will not be sufficient ground.

Concealment of religion or caste unchastity

Leelamma v. Dilip Kumar[ix] is an example where thewife married H under the impression that he was a Christian belonging to an ancient family, when in fact he turned out to be an Ezhava.

Concealment of unchastity or illegitimate birth.

Harbhajan v. Brij[x] is a case where H married W under the assurance that she was still a virgin. It was however revealed that she had earlier given birth to an illegitimate child. The court refused to grant the petition saying that this will be valid only if it can be proved that the husband attaches great importance to her chastity

Several other factors, like concealment of age, financial status etc. Have aso been considered as fraud in several other instances. The above list though not a comprehensive one deal with the most important items.

Kishan Dutt Kalaskar
Advocate, Bangalore
6069 Answers
392 Consultations

4.8 on 5.0

1. You can file a petition for annulment of your marriage on the ground that your wife and her family members have taken your consent for the marriage by suppressing the vital fact that she is having PCOS and had the said fact been made known to you, then you would not have agreed to marry her.

2. The said annulment petition shall have to be filed by you within 1 year from the date of your coming to know about the fact of the said concealment.

3. In case your marriage is annulled, you won't have to pay any maintenance or alimony to your wife.

4. However, PCOS may not be considered by the Court as a vital fact suppression of which can be considered as suppression of vital fact for annulling your marriage since she can conceive after reasonable treatment and exercise.

Krishna Kishore Ganguly
Advocate, Kolkata
26791 Answers
726 Consultations

5.0 on 5.0

If the marriage has been consummated then you cannot get the marriage annulled. Marriage has not been registered in public records does not question the legality of marriage.

Even if PCOS/PCOD was not told to you does not involve cheating or fraudulent consent. Does it in any way hamper your marriage life then perhaps you will be able to get divorce legally. Then it would be upon both the partners to dissolve marriage through amicable settlement via mutual consent. Divorce through Court would involve contesting by your wife and her lawyer, whether she wants to take a divorce or not. It would also involve some lump sum settlement, giving her back her stridhan (jewellery or anything given to her) at the time of marriage. It is a lengthy procedure too.

You can reach me on my contact details regarding any further consultation.

Richa Bharadwaja
Advocate, Delhi
25 Answers

4.8 on 5.0

Since the marriage has been solemnised properly through a church, the marriage is legally valid.

Annulment is a legal procedure for declaring a marriage null and void. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted.

The PCOS/PCOD are not mental illness which is incurable.

You can apply to the court for annulling your marriage in the following circumstances:

If either spouse is impotent at the time of filing the suit.

If the spouses are close relatives (the technical term is ‘within prohibited degrees of consanguinity’).

If either spouse is already married to someone who is still alive.

If either spouse was suffering from a mental illness at the time of marriage.

If your consent for the marriage was obtained through force or fraud.

In addition, you can annul a child marriage (where the husband was under 21 and the wife was under 18) under the Prohibition of Child Marriages Act, 2006.

Under the given circumstances annulment of marriage may not be possible hence you may file a divorce case on the grounds of mental cruelty alone.

T Kalaiselvan
Advocate, Vellore
79182 Answers
1611 Consultations

5.0 on 5.0

Audio recordings are admissible in evidence

2) prepare transcripts of the conversations

3) messages are admissible in evidence

Ajay Sethi
Advocate, Mumbai
89022 Answers
6344 Consultations

5.0 on 5.0

Dear Sir,

In the above scenario, you are advised to go for MCD instead of divorce by giving some amount to her. It is very difficult to follow up the cases which may result out of your differences, you may not even imagine the same. At the fag end of say 4-5 years you may get justice. If you are ready then go for contest divorce. She will file cases like 498A DV case etc. Think wise before taking any decision since situations not at worsened.

Kishan Dutt Kalaskar
Advocate, Bangalore
6069 Answers
392 Consultations

4.8 on 5.0

1. Two months ago you were advised to file a petition praying for annulment of your marriage on grounds detailed in my earlier post which you probably have not done but have threatened her stating that you are going to file a divorce suit against her.

2. Generally, all false complaints are lodged while filing police complaint of harassment u/s498A of IPC which the alleging party shall have tp prove with evidence.

3. Notifying verbally that you are going to file a divorce suit against her for her suppressing the vital fact of having PCOS/PCOD before marriage can not be considered as harassment to her.

4. Lodge a police complaint beforehand alleging that she has threatened to lodge a false police complaint against you on understanding that you are planning to file a annulment/divorce petition before the Court.

5. Contest the case fittingly if any led by her.

Krishna Kishore Ganguly
Advocate, Kolkata
26791 Answers
726 Consultations

5.0 on 5.0

The voice recordings and the whats-app messages are not considered to be primary evidence, hence you cannot rely upon them.

What will you do if she lodges a complaint in a different place.

T Kalaiselvan
Advocate, Vellore
79182 Answers
1611 Consultations

5.0 on 5.0

These, the recorded conversations and whats app messages qualify as valid evidences.

Since, there is no automatic arrest in 498a cases anymore, there's nothing to panic.

You have option to either file a divorce petition or a petition for restitution of conjugal rights.

Vibhanshu Srivastava
Advocate, New Delhi
9441 Answers
251 Consultations

5.0 on 5.0

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