Confusion between divorce and nullity of marriage
We got decree for restitution of conjugal rights for my son, and even after passing one year of this decree my daughter in law has not come to live with my son, and specially, marriage is not consummated yet since last 2 years of my son's marriage. Hence, can we appeal in the court for null & void the marriage? Or Divorce is the only option? If there is any law to nullify the marriage please guide me.
Divorce is the way or you can go to Court as Decree for the Restitution of Conjugal Rights has been Passed and if she is not Ready to follow the Decree then it is a Contempt of Court.
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Section 5 of the Hindu Marriage Act, 1955 lays down the conditions of marriage. Sections 11 and 12 of the said Act provides for annulling or declaring a marriage void or null, if the conditions for valid marriage are not fulfilled. The rationale behind declaring a marriage void is that, if the act did not qualify as marriage as per the law at the very outset, it cannot be given the status of a marriage. Section 13 of the Act deals with divorce. When there is a valid marriage and then the parties decide to get out of the marriage due to various reasons, divorce is the only way out.
In your son’s situation, if the provisions of Section 5 have been fulfilled, it will be regarded as a valid marriage. Then, the only way out is by divorce. However, you have mentioned that the marriage has not been consummated. Section 12 provides for rendering a marriage void if it has not been consummated owing to the impotency of the respondent. If this situation applies to your son’s case, then it is a voidable marriage which can be rendered void by the discretion of the appellant.
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