• Can a marriage be annulled if not consummated under Special Marriage Act 25(i)

Hi, I got my married in October 2020 and the marriage was not consummated as the girl never came to my house ever and refuses to continue the marriage. Can the marriage be annulled under special marriage act section 25 (i) even though both parties are Hindu. Also am living abroad and she refuses to come abroad. Can she claim alimony if I file for annulment of marriage. The girl is employed in India and files tax returns. We have audio and whatsapp chat where she disagrees to stay in the marriage any further. What should be process for annulment? Do we provide them a notice first or can we directly move to the court? Thanks in advance.
Asked 5 months ago in Family Law
Religion: Hindu

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20 Answers

Merely because wife refuses to stay with you is not ground for anullment of marriage 

 

2) better option is to file for divorce on grounds of mental cruelty on expiry of one year of marriage 

 

3) if wife is working and there is not much difference in your income she would not get alimony 

Ajay Sethi
Advocate, Mumbai
84381 Answers
5530 Consultations

5.0 on 5.0

1. Send a legal notice to the girl to join you in marital life. Also indicate that you would be applying for Annulment of Marriage, if she fails to join you.

2.  Based on the above, if she does not join you, file for Annulment of Marriage within one year of the marriage. 

Shashidhar S. Sastry
Advocate, Bangalore
3807 Answers
227 Consultations

5.0 on 5.0

-   Marriage was done as per Hindu rites or was a court marriage under special marriage act ?
If Court marriage under special marriage act then its applicable.
If done marriage with Hindu rites then Hindu Marriage Act will apply.
But both Acts have Annulment option.

-   If you have proof that marriage was not consummated as the girl never came to my house ever, then you can go for annulment. 

But she not went with you for honeymoon also ?

 

-   For Annulment, you dont have to pay Alimony but you will claim compensation. 

-    As she is earning, she might not get maintenance but still depends on salary of both of you.

 

Ankur Goel
Advocate, Bangalore
355 Answers

4.9 on 5.0

Annulment of marriage on the ground of one consummation of it is very difficult to prove,  more so, when the wife disputes it. 

Therefore take alternative ground of cruelty to dissolve the marriage. 

Devajyoti Barman
Advocate, Kolkata
22515 Answers
364 Consultations

5.0 on 5.0

If your marriage was solemnised under the provisions of special marriage act, 1954 and if the marriage was not consummated owing to the wilful refusal of the respondent to consummate the marriage; you can file a petition under section 25(i) of the act praying for annulment of marriage solemnised between you both.

Provided:  that proceedings are instituted within a year from the date of the marriage.

If the marriage is annulled then the court may not entertain her petition seeking alimony for the marriage which never existed. 

T Kalaiselvan
Advocate, Vellore
74484 Answers
1226 Consultations

5.0 on 5.0

If the marriage was solemnised under the Hindu marriage act then you may have to file a petition under Section 12 of the Hindu marriage act, 1955 oin the same grounds, but the proceedings should be  instituted within a year from the date of the marriage. 

As far as mutual consent, the marriage cannot be annulled but a petition under section 13B of HMA, 1955 can be filed after living separately away from each other for a period of one year or more.

If she is employed and drawing a handsome salary income to sustain her expenses, she may not be eligible for maintenance, but you may have to prove that by producing substantial documentary evidences.

T Kalaiselvan
Advocate, Vellore
74484 Answers
1226 Consultations

5.0 on 5.0

- You are governed by Hindu Marriage act, not special marriage act.

 

- Dont even go to the route of Impotency. If you say you are impotent then she will claim huge very huge compensation.
The Annulment is based on fraud.
The fraudster have to compensate other party.

 

- If she not spent even a single minute with you, she not came to your house after marriage that means the marriage happened against her wishes.
you can prove it that marriage is not consummated.

 

- If she not spent even a single minute with you, she not came to your house after marriage then you dont have to worry for maintenance.

 

- There have to a very strong reason that why she did marriage but dont want to have marriage.

Ankur Goel
Advocate, Bangalore
355 Answers

4.9 on 5.0

File for divorce by mutual consent on expiry of one year of marriage and after staying separate for one year 

 

2) consent terms can mention marriage is not consummated 

 

3) if you file for anullment you ha e to prove that wife is impotent 

 

4) you will have to pay alimony to wife 


File for divorce by mutual consent on expiry of one year of marriage and after staying separate for one year 

 

2) consent terms can mention marriage is not consummated 

 

3) if you file for anullment you have to prove that wife is impotent 

 

4) you will have to pay alimony to wife 

Ajay Sethi
Advocate, Mumbai
84381 Answers
5530 Consultations

5.0 on 5.0

1. Petition for dissolution/annulment of marriage under Special Marriage Act can be filed only if the marriage was solemnised under Special Marriage Act. If it was not solemnised under Special Marriage Act then remedies can be availed only under Hindu Marriage Act.

2. Filing of annulment/divorce does not preclude her from seeking maintenance. However, if marriage is annulled then she cannot get any maintenance,

3. Mere non-consummation of marriage is not a ground for annulment unless it is due to impotency of spouse.

4. No ground for annulment is made out in your case. You can opt for divorce.

Ashish Davessar
Advocate, Jaipur
30751 Answers
919 Consultations

5.0 on 5.0

There are two ways to legally end a marriage – annulment and divorce. Annulment is a legal procedure for declaring a marriage null and void. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. The marriage has not been consummated ( no sexual relationship has occurred between the husband and wife) is one of the ground for annulment.

Please do understand that your wife is staying away from you is not a ground for filing an annulment. The marriage implies an implicit right to conjugality or consortium or Sexual intercourse. Right of consortium implies the corresponding duty of each spouse to cohabit with the other. The mutual right to several intercourse continues throughout the entire period of marital life. However, if the very foundation of marriage, namely, the mutual right of consortium is absent, the very purpose of marriage is defeated. In such eventuality, Law prescribes (a) Divorce or (b) Decree of Nullity depending upon several factors. But whether it is Divorce or Decree of Nullity, result is same; marriage stands dissolved and conjugality or consortium or sexual intercourse becomes unlawful as parties remain no more husband and wife. A person may be disabled mentally or physically for some other activity of life will not mean the person is disabled for sexual activity.

Section 30 prescribes Decree of Nullity if marriage is not consummated because of natural causes or impotency.Section 32(a) prescribes Divorce for willful refusal to consummate the marriage. In Section 30 and Section 32(a) 'Non-Consummation of Marriage' is really the Ground and 'Separate Living' or 'Not-Living-Together' is only incidental. But in Section 32(h) and Section 32-A, the 'Not-Living-Together' or 'Separate Living' is really the ground and non- consummation is only incidental.

A wife is not entitled to any allowance if she, without sufficient cause, refuses to live with her husband. Marriage throws an obligation on the wife, to live and co-habit with her husband. Only on reasonable grounds she is justified to live separate from him. Neglect, cruelty, ill treatment, impotency, extra-marital relationship, remarriage are sufficient grounds to justly separate living by a wife. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles courts have to be kept in mind while determining maintenance or permanent alimony.

Looking at the burden on the husband to provide maintenance to his wife even in cases where the wife is well educated and capable enough to earn for her living, a bench of S.A. Morey J gave a landmark judgment in favour of husband to curb the misuse of the provision of maintenance, and held that a wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband. The Court relied on Mamta Jaiswal v. Rajesh Jaiswal where it was held that “well-qualified wife is not entitled to remain as an idle and claim maintenance from her husband”.

Immediately send a legal notice to your wife and ask her to join you in marital life. If she does not join with you then file for Annulment of Marriage.

Ajay N S
Advocate, Ernakulam
3941 Answers
83 Consultations

5.0 on 5.0

1.      Marriage can be annulled under Section 25 (1) of SMA provided the marriage is solemnized under the said Act. 2.      Refusal or have intercourse amount to cruelty but in your case it is not so, is her refusal to join you abroad. She can claim she is willing to perform matrimonial duty but not the leave India. 3.      You best option is to convince her for divorce by mutual consent.  4.      She is entitled to alimony, she may not be entitled to maintenance subject to proof of her income. 

  1. It is not medically possible to allege and property impotency in female.
  2. You cannot escape return of streedhan and payment of alimony which  will be heavy considering your income.  

 

Ravi Shinde
Advocate, Hyderabad
1494 Answers
18 Consultations

5.0 on 5.0

- As per Supreme Court judgment, wife is expected to move in with the relatives of their husbands, follow the rules and customs of their home, and ideally, blend in seamlessly as a new daughter. 

- Further, the court granted divorce to a man on the grounds of “cruelty” after his wife refused to share a home with her in-laws.

- Further, If wife is not supporting her husband for the enjoyment of life and denying relation, then the husband can get divorce after filing a divorce petition before the court on this ground.

Further, As per Delhi High Court, physical intimacy is an essential aspect of marriage and a wife's continuous refusal to have such relationship with her husband can be a ground for divorce,

- Further, under section 12(1)(a) of Hindu Marriage Act, non consummation of marriage is a ground of divorce and annulment of marriage . 

- Further , as per Section 25 of Special marriage Act, 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, 

- Hence, your marriage can be declared as null and void by the court on this ground , so file a petition directly in the court. 

- Since the marriage is not consummated , then she cannot claim maintenance from you 

Mohammed Shahzad
Advocate, Delhi
8182 Answers
86 Consultations

5.0 on 5.0

Hii greetings of day

 

The marriage canc be null and if certain legal requirements were not met at the time of the marriageIf these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment.marriage can be declared null and void if certain legal requirements were not met at the time of the marriageIf these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment.

You cannot anytime for further clarification

With regards

[deleted]

 

Rita Rajput
Advocate, Thane
189 Answers
2 Consultations

Not rated

An application for annulment of marriage can be moved under the Hindu marriage act immediately. The act contains grounds for annulment in case of non consummation.

You cannot move an application under the special marriage act unless you married under the act.

Rahul Mishra
Advocate, Lucknow
13117 Answers
46 Consultations

5.0 on 5.0

Non consummation is a ground. You don't have to go for impotency etc. An application must be moved in the district family court for annulment. Engage a lawyer. No maintenance or alimony has to be paid if she is at fault.

Rahul Mishra
Advocate, Lucknow
13117 Answers
46 Consultations

5.0 on 5.0

1. Following are the grounds for Annulment of Marriage:-

(a). Bigamy : Already married to another person at the time of marriage;

(b). Forced Consent: Threatened or under duress;

(c). Fraud: Lies or misrepresentation;

(d). Marriage prohibited by law: Incestuous family relationship;

(e). Mental illness, Mental incapacity;

(f).  Inability to consummate marriage: Impotent;

(g). Underage Marriage.

2.  Based on anyone of the grounds, the Court will order Annulment of Marriage, which will be treated as invalid marriage-Null & Void.

3. If Impotency is the ground, then Medical Certificate to that effect has to be obtained from the jurisdictional District Surgeon/competent Doctor.

4. Instead of opting for Annulment of Marriage, it's advisable to opt for Mutual Consent Divorce, which saves time, money and no questions asked.

5.  To escape from paying alimony/maintenance, etc., select a different route. For that send a legal notice to her to join you in your marital life and if there's no positive response from her, then file for Restitution of Conjugal Rights in the jurisdictional competent Court. After obtaining RCR in your favour and still if your wife does not reciprocate the RCR order by joining you in your marital life, without any genuine reason, then her refusal to join you intentionally in your marital life itself would be a strong ground for you to obtain divorce as also for not paying any alimony/maintenance amount to your wife, as she has voluntarily abandoned you in your marital life as wife, inspite of your best effort to take back her as your wife.

 

 

 

Shashidhar S. Sastry
Advocate, Bangalore
3807 Answers
227 Consultations

5.0 on 5.0

1. If you can prove that she has refused to have physical relationship with you  and has obtained your consent for the marriage with her by suppressing that fact that she never wanted to marry you, then you can file an annulment case within 1 year from the date of your coming to know about the said suppression of fact from you.

 

2. In case of annulment of marriage, she is not entitled to any maintenance from you.             

Krishna Kishore Ganguly
Advocate, Kolkata
26070 Answers
726 Consultations

5.0 on 5.0

1.You shall have to file the annulment case on the ground that  she has refused to have physical relationship with you  and has obtained your consent for the marriage with her by suppressing that fact that she never wanted to marry you.

 

2. Once the marriage is annulled, the question of paying maintenance does not arise.

Krishna Kishore Ganguly
Advocate, Kolkata
26070 Answers
726 Consultations

5.0 on 5.0

Dear Sir,

1) If your marriage was solemnized under Special marriage act, and was not consummated then the same can be used as ground to annual marriage under sec 25(1) SMA.

2) You will have to file the petition within a year from the date of the marriage, it is advised do do the same as soon as possible.

3) If marriage is annulled on this ground, then wife will not be able to claim any maintenance or alimony.

4) Try to get evidence that the marriage was no consummated, if you can get the evidence of the wife agreeing with the same it would be great to help your case.

Thank you

Anik Miu
Advocate, Bangalore
2729 Answers
27 Consultations

4.9 on 5.0

Dear Querist

as per information provided by you, the marriage was solemnized as per Hindu Law and rituals and I think the marriage was registered as per special marriage act-1954. if yes,

the marriage can not be annulled on this ground that the wife is not willing to come and live with you or the marriage was not consummated. if the marriage is not consummated due to impotency of the opposite party then only the marriage can be annulled and not otherwise. or on other grounds as per section 12 of Hindu Marriage Act-1955

section 25 of the special marriage act will not help in your case until the marriage was solemnized as per the special marriage act-1954.

 

she can claim alimony/maintenance from you if she is unable to maintain herself.

 

you cannot save yourself from alimony/maintenance or Istreedhan if she is entitled until and unless mutual consent divorce.

 

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6086 Answers
288 Consultations

4.9 on 5.0

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