Annulment of Marriage: Void and Voidable Marriages Explained

What is annulment, and how is it different from divorce?

Divorce ends a valid marriage because of something that happened during it, such as cruelty or desertion. Annulment, or a decree of nullity, deals with a marriage that had a defect at the start. If the defect makes the marriage void, the decree simply declares that there was never a valid marriage. If the defect makes it voidable, the marriage is valid until the court annuls it, and the decree then sets it aside.

The practical differences matter. Section 14 of the Hindu Marriage Act bars a divorce petition within one year of marriage except in cases of exceptional hardship, but that bar does not apply to annulment, so a nullity petition can be filed the week after the wedding. No period of separation is needed, unlike mutual consent divorce. On the other hand, annulment cannot be granted simply because both spouses want it. The court must find the ground proved, and section 23(1)(c) forbids a decree where the petition is collusive.

A couple who both want out of a short marriage, with no real nullity ground, are usually better served by a mutual consent divorce once a year of separation has passed. Our post on mutual consent divorce in Delhi explains that route. Annulment is for cases where the defect is real and can be proved.

Void marriage, voidable marriage and divorce compared

Which marriages are void under the Hindu Marriage Act?

Section 11 makes a Hindu marriage void if it breaks any of three conditions in section 5. The first is that neither party has a spouse living at the time of the marriage. The second is that the parties are not within the degrees of prohibited relationship, such as a brother and sister or an uncle and niece, unless a custom governing each of them permits the marriage. The third is that they are not sapindas of each other, a defined group of relatives through a common ancestor within a set number of generations, again unless custom allows it.

Only the spouses can petition under section 11. The 1976 amendment added the words 'on a petition presented by either party thereto against the other party', so a parent, a first wife or an heir cannot file a nullity petition under the Act. A third party with a real interest, such as an heir disputing a claim to property, can instead file a civil suit for a declaration, and the court in that suit can find that the marriage was void.

A void marriage is void whether or not a decree is obtained. Even so, a decree is worth having. It removes doubt, it allows the parties to remarry without argument about their status, and it opens the door to a claim for alimony and to orders about the children. Courts in Delhi treat a section 11 petition much like any other matrimonial case: notice, mediation where appropriate, pleadings, evidence and a decree.

Bigamy: what if my spouse was already married?

This is the most common void marriage in practice. A husband hides an earlier marriage that was never dissolved, or a wife remarries believing a divorce was final when an appeal was still pending. In either case, the later marriage is void under section 11 read with section 5(i), and marrying again during the lifetime of a spouse is also an offence under section 82 of the BNS, which replaced section 494 of the IPC. A prosecution for that offence is ordinarily started by a complaint from the aggrieved spouse to the magistrate.

The petitioner must prove the earlier marriage was valid and still subsisting on the date of the second. That usually needs the first marriage certificate or proof of the ceremony, photographs, birth certificates of children from that marriage, and records showing the first spouse alive. Admissions in messages or in other litigation help. If the other side says the first marriage had ended, ask for the divorce decree and check its date and whether it had become final.

Changing religion does not get around this rule. The Supreme Court has held that a Hindu husband who converts only to marry again, without dissolving his first marriage, remains liable for bigamy and the second marriage does not become valid. A second wife who was deceived is not without remedies, as the sections on maintenance below explain.

Which marriages are voidable, and on what grounds?

Section 12 of the Hindu Marriage Act lists four grounds on which a marriage is voidable. The first is that the marriage has not been consummated owing to the impotence of the respondent. The second is that the marriage broke the condition in section 5(ii): at the time of the marriage, the respondent could not give valid consent because of unsoundness of mind, or was suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children, or had recurrent attacks of insanity.

The third ground is that the petitioner's consent 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. The fourth is that the respondent was, at the time of the marriage, pregnant by some person other than the petitioner.

A voidable marriage is valid for all purposes until a court annuls it. If neither spouse files, it continues as a valid marriage. That is why the time limits and bars in section 12(2) matter so much: they decide whether the right to annul has been lost.

Annulment for non-consummation and impotence

Impotence in section 12 means a physical or mental inability to consummate the marriage. It need not be permanent or total, and it can be relative, meaning an inability with this particular spouse. What the petitioner must show is that the marriage has not been consummated and that the reason is the respondent's impotence. The petitioner can be the spouse who is not impotent; a spouse cannot rely on his or her own impotence to annul.

Evidence in these cases is sensitive and usually indirect: the petitioner's own testimony, medical records, messages between the spouses, and sometimes a medical examination ordered by the family court. The Supreme Court has held that a matrimonial court can direct a medical examination, and that an adverse inference can be drawn if a party refuses. Proceedings can be held in camera, and family courts in Delhi are used to dealing with these petitions discreetly.

Wilful refusal to consummate is not, on its own, a ground for annulment under the Hindu Marriage Act; impotence is. Wilful refusal is a nullity ground under section 25 of the Special Marriage Act, and under the Hindu Marriage Act it is often pleaded as mental cruelty in a divorce petition. Where the facts could be read either way, careful petitions plead nullity and, in the alternative, divorce on cruelty, so that the case does not fail on a label. No fixed time limit applies to the impotence ground, but section 23(1)(d) requires that there be no unnecessary or improper delay in filing.

Fraud and force: what counts as a material fact?

Fraud under section 12(1)(c) has two forms: fraud as to the nature of the ceremony, for example where a person was made to believe that a marriage ceremony was something else, and fraud as to 'any material fact or circumstance concerning the respondent'. The second is where most cases sit. A material fact is one that goes to the root of the marriage, which a reasonable person would have wanted to know before agreeing to it.

Courts have treated as material, on the facts of particular cases, the concealment of a serious mental illness under treatment, an earlier marriage and divorce, impotence known to the respondent, a serious communicable disease, and in some cases the respondent's real identity or religion. Exaggerations that are common in arranged marriages, such as an inflated salary, an overstated job title or a few years shaved off the age, have usually not been enough on their own, though courts have differed and each case turns on its facts. The fraud must have been practised on the petitioner, and it must have induced the consent.

Force means consent obtained by coercion or threat, such as a marriage performed under threat of violence to the petitioner or the family. In both fraud and force cases, section 12(2)(a) sets two hard limits. The petition must be filed within one year after the force ceased or the fraud was discovered, and the petitioner must not have lived with the other spouse as husband or wife, with full consent, after that point. A spouse who discovers the truth and stays on for months to see if things improve may lose the nullity ground, though divorce on another ground may remain open.

Mental disorder and pregnancy by another man

Not every mental illness makes a marriage voidable. Section 5(ii) speaks of an inability to give valid consent, or a mental disorder of such a kind or extent as to make the person unfit for marriage and the procreation of children, or recurrent attacks of insanity. Conditions that are managed with treatment, or that do not affect the capacity for married life, usually do not meet that test. The petitioner must show the condition existed at the time of the marriage, usually through medical records and expert evidence, and courts look closely at whether the case is really about concealment, which is the fraud ground, rather than the illness itself.

The pregnancy ground under section 12(1)(d) requires that the respondent was pregnant by another man at the time of the marriage. Under section 12(2)(b), the court will not grant a decree unless the petitioner did not know of it at the time of the marriage, the petition is filed within one year of the date of marriage, and there has been no marital intercourse with the petitioner's consent since he discovered the fact. The one year here runs from the marriage, not from discovery. Medical evidence of the dates is usually decisive, and courts handle these petitions with care because a child's status is involved.

The provisions that decide an annulment case

How to file an annulment petition in a Delhi family court

A nullity petition follows the same broad path as a divorce case, but it lives or dies on the first two steps.

1. Identify the exact ground and check the time limit

   Decide whether the marriage is void under section 11 or voidable under section 12, and on which clause. For fraud, force and pregnancy, work out the dates carefully: the one-year limit and the cohabitation bar are strictly applied.

2. Collect the evidence before filing

   Nullity cases are won on proof of facts that existed at the time of the marriage. Gather the documents, medical records, messages and witness details first; a petition filed on suspicion alone tends to fail at evidence.

3. Choose the court and draft the petition

   File in the family court with jurisdiction under section 19 of the Hindu Marriage Act: where the marriage was solemnised, where the respondent lives, where the couple last lived together, or where the wife lives if she is filing. The petition states the ground precisely and, where appropriate, pleads divorce in the alternative.

4. Notice, appearance and mediation

   The court issues notice to the respondent. Family courts in Delhi often refer matrimonial cases to mediation, and even in a nullity case this can settle alimony, return of articles and other disputes, though the court must still be satisfied that the ground exists.

5. Evidence and medical examination

   If contested, both sides file affidavits of evidence and are cross-examined. In impotence and mental disorder cases the court may direct a medical examination. Interim maintenance under section 24 can be claimed during the case.

6. Decree and the appeal period

   If the ground is proved, the court passes a decree of nullity. An appeal from a family court lies to the High Court within 30 days, so wait until that period has passed, or any appeal is decided, before remarrying.

For how matrimonial cases are listed and heard in the Delhi district court complexes, see our page on divorce cases in Delhi family courts.

Evidence that usually decides a nullity case

The documents depend on the ground. Collect originals, and note the date you first came to know each fact.

What happens to children of a void or voidable marriage?

They are legitimate. Section 16 of the Hindu Marriage Act says that a child of a void marriage is legitimate whether or not a decree of nullity is passed, and a child of a voidable marriage that is annulled is treated as if the marriage had been dissolved rather than annulled. A child's status is not affected by the parents' mistakes or deception.

Property rights follow, with one limit. Under section 16(3), such a child has rights in the property of the parents, but not in the property of other relatives. In Revanasiddappa v Mallikarjun (2023), a Constitution Bench of the Supreme Court held that this includes the parent's share in Hindu coparcenary property, worked out as if a partition had taken place just before the parent's death, though the child does not become a coparcener by birth.

Custody, visitation and the child's maintenance are decided exactly as in any other separation, on the welfare of the child. Our post on child custody after divorce explains how courts approach those questions.

Can a wife in a void marriage claim maintenance or alimony?

Under the Hindu Marriage Act, yes, depending on the facts. In Sukhdev Singh v Sukhbir Kaur (2025), a Constitution Bench of the Supreme Court held that a spouse whose marriage is declared void under section 11 can claim permanent alimony under section 25, and that interim maintenance under section 24 can be granted while the case is pending even if the court finds the marriage prima facie void. Whether it is granted, and how much, depends on the conduct of the parties and the other circumstances. The Court also disapproved of describing a woman in such a marriage as an 'illegitimate wife'.

Maintenance under section 144 of the BNSS is more difficult, because the section speaks of a 'wife', which courts have read as a legally wedded wife. Courts have, however, been readier to grant maintenance to a woman whose husband concealed his earlier marriage, so that he does not benefit from his own deception. The Domestic Violence Act covers a 'relationship in the nature of marriage', so a woman in a void marriage can usually seek protection, residence and monetary orders there; see our post on orders under the Domestic Violence Act.

For how the amount is worked out, our post on permanent alimony and one-time settlement explains the factors courts use, which apply equally after a decree of nullity.

Child marriage and other personal laws

A marriage where the bride was under 18 or the groom under 21 is not void under the Hindu Marriage Act. Under section 3 of the Prohibition of Child Marriage Act 2006, it is voidable at the option of the party who was a child, by a petition filed before that party completes two years after reaching majority. The court can also order maintenance and residence for the girl until she remarries, and certain child marriages, such as those involving trafficking or enticement, are void outright.

Under the Special Marriage Act, the grounds differ slightly. Section 24 makes a marriage void if the conditions in section 4 were broken or if the respondent was impotent both at the marriage and when the suit was filed, so impotence is a void ground there, not a voidable one. Section 25 makes a marriage voidable for wilful refusal to consummate, pregnancy by another man, or consent obtained by coercion or fraud, with one-year limits similar to the Hindu Marriage Act. Muslim personal law distinguishes between void (batil) and irregular (fasid) marriages, and Christian marriages are annulled under the Divorce Act 1869. If your marriage was registered under one Act and solemnised under another, check which one governs before filing; our post on marriage registration in Delhi explains the difference.

Common mistakes in annulment cases

Most nullity petitions that fail do so for one of these reasons.

• Missing the one-year limit. For fraud and force, the clock runs from discovery or the end of the force; for pregnancy, from the date of marriage. A petition filed a month late cannot be saved.
• Staying on after discovery. Living together as husband and wife with full consent after discovering the fraud bars annulment on that ground, even within the year.
• Choosing nullity when divorce is stronger. A weak fraud claim can turn a straightforward cruelty case into a long fight. Plead in the alternative where the facts allow.
• Treating annulment as a shortcut. Both spouses agreeing to an annulment is not enough, and a collusive petition can be dismissed under section 23(1)(c).
• Filing on suspicion. A petition that alleges impotence or concealed illness without any supporting record is hard to prove and can itself be treated as cruelty by the other side.
• Remarrying too soon. Remarrying before the appeal period has passed, or while an appeal is pending, risks a second void marriage.

What to do this week if you think your marriage is void or voidable

Write down the dates: the marriage, when you learned the fact you are relying on, and where you have lived since. Those three dates decide most annulment cases. Then collect the evidence of the defect and of the discovery, and keep it safe. If the ground is fraud or force, do not wait to see if things settle down; the one-year limit and the cohabitation bar do not pause for reconciliation attempts.

Take advice before confronting the other side or announcing a decision to the families, because what is said in those first conversations is often quoted in court later. A point Advocate B.K. Singh often makes to clients is that the choice between nullity and divorce should be made on the evidence available on the day of filing, not on what feels most accurate, because a petition that is easier to prove usually reaches a decree sooner.

If you want an advocate to look at your dates and documents and tell you whether annulment, divorce or both should be pleaded, the team of Advocate B.K. Singh can read the papers. Send them through our online enquiry form.