• Annulment of marriage under Section 25(i) of Special Marriage Act

My brother got married about a month ago registered under the Special Marriage Act. It was an arranged marriage with the understanding that social marriage will be arranged later after which they will start their conjugal life. However, the girl has a change of heart and her family has filed for annulment of marriage under Section 25(i) on the ground of her own refusal to consummate the marriage. My brother does not want to contest it but at the same time we want the process to be as smooth as possible. My question is: (a) Can the girl file for annulment under 25(i)? (b) What should be the right course of action from my brother's part?
Asked 2 months ago in Family Law from Kolkata, West Bengal
Religion: Hindu
Hi 
1)  The best option for your brother would be to partially agree (to the extend of wife's refusal to consummate marriage) and also plead the case for divorce under special marriage act.
2) Since both the parties are agreeing for the divorce, the courts will be in  a position to grant divorce at the earliest unlike other laws where there is a waiting period of 1 year. 
3) It is also a  blessing in disguise for you that the girl has opted to file a divorce under special marriage act and your brother is well positioned to take advantage of the same and move out of this relationship at the very earliest.
Hope this helps.
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
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2) section 25 of SMA provides that . 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;


2) wife could have filed for annullment if husband refused th consummate the marriage 

3) wife cannot file for annullment on account of her refusal to consummate the marriage 

4) husband should not appear in court . Let court pass orders 
Ajay Sethi
Advocate, Mumbai
23377 Answers
1226 Consultations
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1. She can of course file annulment petition u/s25(i) of SMA,1954 alleging that the Respondent refused to consummate the marriage.

2. Your brother shall have to prove the allegation false siting evidence if he wants to contest the petition.

3. Let your brother not contest the petition to enable her to get the annulment decree provided your brother does not have any ego problem to see that the decree went in her favour.

4. If your brother does not wish the said annulment decree, he can contest the petition fittingly.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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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. 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. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.

 Annulment or Nullity of marriage means that the marriage has not happened at all. After getting the annulment or nullity decree, the status of the individual is UNMARRIED/SINGLE,


Conditions of the annulment of the marriage are:

a.     The marriage has not been consummated ( no sexual relationship has occurred between the husband and wife)
b.    It should not have been in the prohibitive relationships (Husband and wife cannot be as brother and sister, like first or second cousin, or through same father and different mother etc., unless accepted by the caste)
c.     This marriage should not have happened through fraud or force and without the consent of both the individuals to the marriage.
d.    The marriage should not have happened through the concealment of the facts. (like either parties were married before and later divorced, or have a child through previous relationship)
e.    The parties of the marriage should not have the contagious disease which cannot be cured within the specified period of 1 year.
f.      The parties of marriage should not be impotent or have the disease which can be unable to bear the family.


Bigamy – either party was already married to another person at the time of the marriage
Forced Consent – one of the spouses was forced or threatened into marriage and only entered into it under duress.
Fraud – one of the spouses agreed to the marriage based on the lies or misrepresentation of the other.
Mental Incapacity – either spouse was under the influence of alcohol or drugs at the time of the marriage and was unable to make informed consent.
Inability to Consummate Marriage – either spouse was physically incapable of having sexual relations or impotent during the marriage.


If your brother want the speedy disposal then your brother made ex party or ready for accepting the contentions and seek the decree of nullity from the court 

Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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1. No suit for annulment lies if the consummation of marriage occurs due to non cooperation of the petitioner. So this suit will fail.
2. The plaint is to be amended and if there is no material allegations raised against your brother then he may allow the suit to be decree uncontested.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
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The wife cannot have a cause of action due to her own act of not consummating the marriage. The petition is misconceived. This being said, petition is required to be perused to advise. So consult a lawyer with a copy of petition. 
Ashish Davessar
Advocate, Jaipur
18246 Answers
449 Consultations
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Dear Querist
as per section 25(i) of Special Marriage Act, the annulment petition can be filed if the respondent refused to consummate the marriage and can not file on refusal of the petitioner herself.

if your brother is also not willing to continue this marriage then it will be better to sit tight and in absence of his presance the court may pass an ex party order and annulled the marriage but if your brother is not ready for this then file a reply before the court where the matter is pending and fight the case on merit, the case will be dismissed.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1)your brother should inform wife lawyer that he would not contest annulment proceedings 

2) let wife take an exparte order of annulment 

3) however check whether petition filed is as per draft sent to you 

4) girl may claim compensation 

5) if you contest the proceedings it would take 5 years to be disposed of 

6) not advisable to make a counter claim 
Ajay Sethi
Advocate, Mumbai
23377 Answers
1226 Consultations
5.0 on 5.0
1. yes, they can claim compensation from your brother for his act which was accepted in form of unwilling to consummate the marriage.

2. yes, if your brother filed the annulment petitioner and she is agreed on that then your brother can claim expenses.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
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1. If the document in question that you are referring to is summons from the court then your act of signing it will not go against you, it will simple mean that you have been served the summons in accordance with the law.

2. You may claim compensation.
Ashish Davessar
Advocate, Jaipur
18246 Answers
449 Consultations
5.0 on 5.0
My brother does not want to contest it but at the same time we want the process to be as smooth as possible. My question is: (a) Can the girl file for annulment under 25(i)? (b) What should be the right course of action from my brother's part?

The petition filed by her seeking annulment on the grounds of her own refusal to consummate the marriage may not be maintainable in law. 
The law in this aspect is as follows:
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;
As per this the respondent, i.e., your brother should have refused to consummate the marriage then she has a point to file the proposed case, whereas she herself refused to consummate the marriage and she herself is seeking annulment, to which if your brother agrees or submits to the decree prayed for by her, then it may be considered as collusion and the court may dismiss the petition.   
She can alter the petition by throwing the blames on your brother and if your brother accepts or agrees to the decision taken by her then she can proceed with smoothly.
In that case, your brother after receiving notice from court may appear and file a memo  submitting to the decree as prayed for by her. 
The court may consider to dispose the case accordingly. 
T Kalaiselvan
Advocate, Vellore
14158 Answers
128 Consultations
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So my question is, (a) If my brother signs the document and their original petition is as I suspect puts the blame on my brother, can the girl's family demand compensation? (

There are possibilities for your suspicions to come true.  Hence instruct your brother to not to sign any paper without knowing the contents fully and if he does not understand any legal jargon or technical terms mentioned in it, he may consult your own lawyer on the subject, get clarified and then move ahead.



(b) If we contest it and also file for annulment with my brother as the petitioner, can we claim compensation for the advances paid for the wedding hall booking (for the planned social marriage later)  and other related expenses?

Your brother can choose to contest her petition and strongly oppose all her allegations.
As proposed by you, he can even file a separate petition seeking annulment of marriage on the same grounds what she has sought for and may describe the mental  agony he suffered due to her attitude and refusal to consummate the marriage.
He can decide to file a recovery suit to recover the expenses incurred due to the marriage but since it is already done, it may not be maintainable.  Instead he may seek compensation for the sufferings he experienced.
T Kalaiselvan
Advocate, Vellore
14158 Answers
128 Consultations
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1.  It is unbelievable that the girl has filed a petition for annulment of marriage u/s25(i) of SMA admitting and on the ground that she refused to consummate the marriage.

 2. if she has filed such a petition, it will be rejected on the ground of maintainability on the first day itself.

3. It is only expected that she has put the blame on your brother for non consummation of marriage.

4. She can not claim any compensation on this ground since it will be impossible for her to prove her allegation as your brother can easily stand for medical test to prove that he is potent.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0

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