Restriction on Petition for Divorce during first One Year after Marriage [Case Law] | First Law

Special Marriage Act, 1954 - Ss. 24, 25 & 29 - Annulment of a Marriage by a Decree of Nullity - Restriction on petition for divorce during first one year after marriage - the restraint under Section 29 of the Act on entertaining a petition for divorce within a period of one year from the date of marriage, does not apply to a petition for  declaration of nullity of marriage under Section 24 of the Act or a petition seeking annulment of marriage by a decree of nullity under Section 25 of the Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

V. CHITAMBARESH & SATHISH NINAN, JJ.

Mat. Appeal No.230 of 2018

Dated this the 23rd day of February, 2018

AGAINST THE JUDGMENT DATED 14.02.2018 IN O.P. NO.2438 OF 2017 OF FAMILY COURT, ERNAKULAM 

APPELLANT/PETITIONER

RIYA K.R.

BY ADVOCATES SRI.T.M.RAMAN KARTHA SMT.M.S.SOUJATH SRI.I.SREEHARI SMT.K.BINUMOLE THOMAS SMT.MANJU R. KARTHA 

RESPONDENT/RESPONDENT

ALBIN VARGHESE V.

BY ADVOCATE SHRI M.K.FAISAL 

J U D G M E N T

SATHISH NINAN, J.

An Original Petition seeking annulment of a marriage by a decree of nullity, under Section 25(1) of the Special Marriage Act (for short, “the Act”), was dismissed by the Family Court as not entertainable, since one year has not elapsed from the date of marriage.

2. The parties are Indian Christians. Their marriage was solemnized on 28.06.2017 under the provisions of the Act. At the time of marriage the petitioner and the respondent were aged 20 and 25 years, respectively. The marriage was without the consent of their parents. After marriage they continued to reside in their respective parental houses. The parents did not approve their alliance. The respondent abstained from having relationship with the petitioner-appellant and there was willful refusal to consummate the marriage. Accordingly the Original Petition was filed to annul the marriage. The respondent entered appearance and filed an affidavit accepting the averments in the Original Petition.

3. The Family Court, relying on Section 29 of the Act, dismissed the petition holding that, since the petition is filed within one year from the date of marriage, the petition is not maintainable. We are unable to agree with the court below.

4. Section 29 of the Act reads thus: 

“29. Restriction on petition for divorce during first one year after marriage.-(1) No petition for divorce shall be presented to the District Court unless at the date of the presentation of the petition one year has passed since the date of entering the certificate of marriage in the Marriage Certificate Book.

PROVIDED THAT the District Court may, upon application being made to it allow a petition to be presented before one year has passed on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the District Court at  the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the District Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same fact, as those proved in support of the petition so dismissed”.

As is evident from a plain reading of the Section, the restriction of one year period applies only to the institution of a proceeding seeking divorce. There is an ocean of difference between a petition seeking divorce and a petition seeking annulment of a marriage by a decree of nullity under Section 25 of the Act. Section 25 of the Act reads thus: 

“25. Voidable marriage.-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 willful 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 (IX 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 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 of 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”.

In terms of Clause (i) of Section 25, if the marriage was not consummated owing to the willful refusal of the respondent, the marriage is deemed  voidable and is liable to be annulled by a decree of nullity. A reading of the proviso to Section 25 further indicate that in cases where sub-clause (ii) applies, the proceedings are to be initiated within a period of one year from the date of marriage. Therefore, apparently, the reasoning given by the Family Court, is not correct. The restriction under Section 29 prohibiting institution of a petition for divorce within one year of the marriage, apply only to cases where a marriage is sought to be dissolved by a decree for divorce on any of the grounds specified in Section 27. An Original Petition for divorce presupposes a marriage which is neither void nor voidable. Section 25 of the Act deals with marriages which are voidable. Incidentally, it is relevant to refer to Section 24 of the Act, which refers to void marriages.

“24. Void marriages.- (1) Any marriage solemnized under this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared, by a decree of nullity ifMat.

(i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled.

(ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.

(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of Section 15: 

Provided that no such declaration shall be made in any case where an appeal has been preferred under Section 17 and the decision of the district court has become final”.

In such cases a petition for declaration for nullity of marriage could be filed. This also does not fall within the rigour of Section 29 of the Act since it is also not a case where a divorce is sought for under any of the grounds under Section 27 of the Act.

5. To sum up, the restraint under Section 29 of the Act on entertaining a petition for divorce within a period of one year from the date of marriage, does not apply to a petition for  declaration of nullity of marriage under Section 24 of the Act or a petition seeking annulment of marriage by a decree of nullity under Section 25 of the Act.

6. Now coming to the factual matrix, the averments in the Original Petition that there was non-consummation of marriage consequent to the willful refusal on the part of the respondent, apart from being uncontroverted, remains accepted. On the date of marriage, the petitioner was only 20 years and the respondent 25 years of age. The marriage was solemnized without the consent of the parents. There is no reason to disbelieve the version of the petitioner that consequent to the refusal on the part of the parents to approve the relationship, there was willful refusal on the part of the respondent to consummate the marriage. The respondent has accepted the petition averments by way of an affidavit. We find no reason to refuse the relief as prayed for in the Original Petition.

In the result, the appeal is allowed. The  impugned judgment is set aside and O.P. No.2438 of 2017 is allowed. The marriage between the petitioner and the respondent solemnized on 28.06.2017 is annulled by a decree of nullity.

No costs.