In this case you can go for annulment on the basis of fraud done to you under section 11 or continue to be under section 12 for decree of nullity for the same. There is no harm both are almost same. You will not lose at the same is correct in your case. You can also file criminal case against her if you want
What is the right Section to be filed petition , confused b/w sec 11 or sec 12 of HMA
Respected Sir/Madam, I have gone through Regarding Sec 11 and 12 of HMA act 1955 I am in Severe Dilemma. I wanted to crosscheck once with you whether my Lawyer has filed petition under correct Section or not. -- My wife is already married once and got divorced mutually from her earlier Husband. -- Mine is 1st Marriage. She and her parents Hided this fact and she got married with me. recently came to know that she also had fake Degree certificate ( they bluffed she is Degree graduate before my marriage) -- After 6 months i came to know that she is already married once and got mutual divorce. --By the time was forced them to put this in elders meeting,she went and filed false 498a , DVC, maintenance cleverly admitting in it that it was her 2nd marriage and she married me by informing this to me. My lawyer filed petition asking that marriage is void from the beginning under PETITION FILED UNDER SECTION 11 r/w SEC. 5 OF HINDU MARRIAGE ACT. 1. Is this correct section that i have to fight? few people say it is correct and few people say it must be section 12 of HMA 2. Please help me with exact sec with subclause that i must file. 3. if later court says this is not correct sec in petition , will i loose the case or my time /efforts gets wasted ? or any simple way to modify the section and continue the case in court? fyi, i have not filed any criminal case in any police station under IPC 494 or 495
Asked 5 years ago in Family Law
Religion: Hindu
17 Answers
When you have filed case in the court at that time, the time frame is less than one year than it should by filed u/s 11.
If the marriage life is more than year at the time of filing case than u/s 12 it should be filed.
Wife has committed fraud by concealing her previous marriage and diovrce and forging education certificate, therefore marriage will annulled u/s 12 of HMC. This is not a void marriage but voidable.
Court will certainly dismiss your petition as filed under wrong provision of the act. Better amend the provision and prayer in petition.
No case u/s 494 or 495 IPC made out as she may marry you after valid diovrce granted by court.
the petition for declaring the marriage null and void is under Section 11 (1) of the Hindu Marriage Act, for short 'the Act', read with Section 5 (i) of the Act
2) Chain Singh Vs. Hardeep Kaur, 2016 (3) PLR 700 wherein it was observed that an error in quoting correct provisions of law can be condoned and the case be considered on merits.
Dear Sir,
You are suggested not to worry about the case section as it is filed in the correct section. You are further informed that the court has the power to take the correct the section as per the pleadings of the case.
The petition should be filed under s.12 of the HMA,1955. It may come to an end if you want otherwise the marriage is valid and legal. Since you say that certain facts important, were hidden from you before marriage and hence you seek divorce.
Amend the petition accordingly.
Complaint u/s 494 495 cannot be filed by you. Not maintainable.
1. The correct provision in your circumstances is Section 12(1)(c) of Hindu Marriage Act.
"Section 12: (1)Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(c) that the consent of the petitioner .... was obtained by force or by fraud as to .... any material fact or circumstance concerning the respondent."
2. Your Petition is filed under a wrong provision. Section 11 deals with marriages which are void (have no effect since inception) for eg. Marriage with one's sister, second marriage etc. If your wife's first marriage was existing at the time of of your wedding then Section 11 would have been the correct provision. But what I understand is that she married you after obtaining divorce from her first husband. In such case, the marriage is voidable. (Vaild but capable of being made void at the instance of other party)
3. Filing a petition under wrong section is a technical fault and should not go to the root of the matter. But please get the petition amended by filing an application under Order VI Rule 17 of CPC as soon as possible.
4. If your wife had obtained divorce before marrying you, then no case is made out against her under Section 494 or 495, IPC
Hope this helps.
As per the facts of your case your wife divorced her husband by mutual consent and therefore your marriage with her is valid.
Therefore there is no ground for you to move against her under 5,11 and 12 of HMA Act 1955.
1. First take note that mentioning a wrong section does not end the litigation. If the contents and prayer sought for is right then even if wrong provision of law is quoted this not damaging. So if your advocate has sought decree of nullity then there is nothing to worry further.
2. Your advocate has rightly mentioned the section 11 for declaring the marriage as null and vpid.
3. Does not apply.
Filing case of bigamy is optional which you can now explore .
1. It should be section 12.
2. And 3....file an application for amendments in section.
Also file the criminal complaint
The marriage with you is not void hence the petition under section 11 of HMA is not maintainable.
The marriage with your wife is very much valid if she had legally divorced her previous husband and the their marriage ws dissolved legally by a decree of divorce through a court of law.
A petition under section 12 of HMA can be filed seeking to annul the marriage for the acts of cheating or fraud played by the respondent suppressing the facts that are material to this marriage.
Your allegations that she deceived you by not informing you about her previous marriage which was duly dissolved by a court decree of divorce may not be a proper ground for annulling the marriage because the facts material to marriage was not suppressed, i.e., if at all her previous marriage had subsisted at the time of marrying you and she had suppressed that fact which is a material fact for contracting the marriage with you.
Therefore neither section 11 nor section 12 would be maintainable, you may file a divorce case under the provisions of section 13 seeking divorce on the grounds of cruelty citing the same reasons depicting the mental cruelty provided your marriage is over one year now from the date of marriage.
You can ask your lawyer to file an amendment petition to amend the provisions of law mentioned in the petition as well as the prayer that has been made in the petition suitably to maintain your pleadings of cruelty.
Please note that you cannot file a criminal case in the judicial magistrate court under section 494 or 495 IPC because her previous marriage was not subsisting at the time of the solemnization of this marriage with you.
1. You are seeking annulment on the ground that factum of her earlier marriage and its dissolution was concealed from you and your consent was thus obtained fraudulently. Hence it has to be under Section 12 HMA.
2. The petition should be suitably amended immediately.
Dear Querist
your petition should be filed under section 12(1)(c) of Hindu Marriage Act-1955 based on Fraud.
read the section 12 carefully specially the Bold letters.
12 Voidable marriages:
(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:
[(a) that the marriage has not been consummated owing to the impotence of the respondent; or]
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in a marriage of the petitioner [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
It will be better to withdraw that case and file fresh petition under section 12 of the Hindu Marriage Act-1955.
Feel free to Call
Your petition may not be legally maintainable. At the time of her marriage with you, your wife had divorced her first husband. That you were not aware of that fact is another matter altogether. But the marriage cannot be set aside on this ground. The petition has to be examined further to render you proper advice.
1. As per Section 11 & 12 of Hindu Marriage Act 1955 , Any marriage solemnised after the commencement of Hindu Marriage Act shall be null and void in case a petition is presented by either party against the other in a marriage, is declared so by a decree of nullity on a finding that it is in contravention of any one of the conditions specified in clauses (i), (iv) and (v) of section 5.
- Out of the conditions , the condition which applied here is , that the wife was at the time of the marriage pregnant by some person other than the husband.
- Further , the marriage with you was a valid marriage as per Hindu Marriage Act, as at the time of marriage ,she was legally divorced from her last husband.
2. on the concealment of the fact , you cannot file divorce petition under section 11 , and it should be filed under section 13 , if the marriage has already completed one year , otherwise can filed under section 12.
3. You can move an application for amendment before the court for changing the sections .
- Section 494 or 195 of IPC not applicable in your case.
If a marriage contravenes the the conditions specified in Section V clauses (i), (iv) and (v) of the Act, husband can file petition and obtain a decree and the marriage shall be null and void. Provision related to nullity of marriage and divorce are in Section 11 of this Act. The Provisions are.Section 11 of the Hindu Marriage Act, 1955. Nullity of marriage and divorce- Void marriages
1. The petition would have been filed under section 12 of Hindu Marriage act as it is a case of voidable marriage on ground of concealment and misrepresentation of facts by other party.
2. You should file an application for amendment of petition.
