Written by Dr. Hassan Elhais In a recent Supreme Court case decision, according to Article 13 of the personal status law, the court of cassation applied foreign law in a divorce matter. As per Article 13, either party has a right to request the court to apply foreign law (i.e., the place where marriage was contracted) in their divorce matter. As per Article 16, all substantive matters relating to guardianship, trusteeship and maintenance or other systems laid down for the protection of persons required to be protected. In a landmark case, the Supreme Court accepted an unattested legal translation of the Hindu Marriage Act at the request of one party before deciding on the matter.
In practice, recent trends have always shown that the application of foreign laws, particularly in family matters, is an uphill task. Generally, foreign laws are extremely applied successfully. As per Article 27 of the Civil Procedure laws, foreign laws may not be applied if they are contrary to public order, morals or Islamic Sharia.
The sources of the Hindu Marriage Act are the Vedas and which state that once a couple is tied in this holy institution of marriage, they can't separate. However, in the act, there is a decree for divorce in section 13. Here the grounds for divorce vary from adultery to cruelty and even renouncement from the world by entering into a religious order is one of them.
Under the Hindu Marriage Act, 1955 as enacted originally, though cruelty was one of the grounds for obtaining a judicial separation, it was not a ground for obtaining a divorce. After its amendment, cruelty was made a ground for both divorce and judicial separation.
In clause 13(1)(a) of the Hindu Marriage Act, only cruelty is mentioned and not specified whether it is mental or physical cruelty. The courts have interpreted it from a broader perspective and said that it includes both physical and mental and we are dealing with the latter here.
In strict legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void, then it is automatically null, although a legal declaration of nullity is required to establish this.
Annulment is a legal procedure for declaring a marriage null and void. Except for 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.
It is important to note that annulment can lead to a breach of criminal law in the UAE; therefore, it is unlikely that UAE courts will follow the same interpretation as Indian courts.
The Hindu Marriage Act allows for a divorce by mutual consent under section 13-B. A couple can be granted a divorce if they end the marriage by presenting a joint petition stating that they have been living separately for at least a year and have mutually agreed to dissolve the marriage. The court then requires them to have a six-month cooling-off period before the family court disposes of the final petition. This mandatory six-month period has been provided to allow couples time to reconsider their decision and to ensure that they mutually want to end their marriage.
Void Marriages
A marriage is automatically void and is automatically annulled when it is prohibited by law. Section 11 of the Hindu Marriage Act, 1955 deals with:
Nullity of marriage and divorce- Void marriages - Any marriage solemnized after the commencement of 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 if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 mentioned above.
Bigamy - If either spouse was still legally married to another person at the time of the marriage, then the marriage is void and no formal annulment is necessary.
Inter-family Marriage. A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by half or whole blood or by adoption.
Marriage between Close Relatives. A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.
Voidable Marriages
A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud
Section 12 of the Hindu Marriage Act, 1955 deals with Voidable Marriages - (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:- (a) that the marriage has not been consummated owing to the impotency of the respondent; or (b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in the marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian 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; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
Impotence - If either spouse was physically incapable of entering the marriage at the time of the marriage, usually because of a lack of ability to have sexual intercourse, and if this inability appears incurable or if the spouse refuses to take any action to cure the inability, there are grounds for an annulment. The inability must continue and must exist at the time of suit.
Lack of Mental Capacity - If the court finds that either spouse could not understand the nature of the marriage contract or the duties and responsibilities of the marriage contract, then there may be grounds for an annulment. However, if the spouse who could not understand the contract gains the capacity to understand it and freely lives with the other spouse, then this ground does not apply. This particular ground most often applies to someone who has been mentally ill or who has suffered from a mental or emotional disorder.
A Party was Under the Age of Consent - If you were married while you are under the legal age, your marriage may be annulled. The legal age for boys is 21 years and for girls is 18 years. A marriage by an underage party may become legally binding and incapable of annulment if the cohabitation of the parties as husband and wife continues voluntarily after the person reached the age of consent.
Fraud or Force - If the consent to the marriage contract was obtained either by fraud or force, then there are grounds for an annulment. Fraud is simply not telling the truth to induce the other party to enter into the marriage contract. Whether the failure, to tell the truth, will be grounds for annulment depends on the facts of the case. Force implies the use of or threat of the use of physical violence to make a person get married. The person who has been threatened or deceived about the marriage contract continues to live with the spouse after the discovery of the fraud or the deception or after being forced into the marriage, it is possible that this ground will not apply.
Conclusion
An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased, legally, it declares that the marriage never technically existed and was never valid. Annulment of marriage is very important in the scheme of matrimonial laws as there is no point in carrying the burden of divorce in cases where marriage has been solemnized on the strength of fraud or where the marriage is solemnized even though the responding spouse was already married. In UAE annulment of marriage can potentially mean a breach of criminal laws because if technically marriage was annulled or cancelled the relationship between man and woman would be illegitimate or in violation of Sharia principles.
Legal Update:
The introduction of a new personal status law for the non-Muslims effective February 2023, the Federal Decree-Law No. 41 of 2022 on Civil Personal Status, brings with itself numerous changes in terms of marriage, divorce, custody, inheritance etc. Following the issuance of the Abu Dhabi Personal Status Law for non-Muslim Foreigners in 2021, the federal government came out with a Personal Status Law that would apply to the entire non-Muslim population of the UAE, whether citizens or expatriates.
This New Federal Law has introduced changes in personal status matters for non-Muslims in matters related to family guidance mediation, rights between the parties concerning testimony, inheritance, divorce, calculation of time-based on the Gregorian calendar, and joint custody of children. The New Federal Law has introduced civil marriage at a federal level and provided equal rights to parties in requesting the divorce. The New Federal Law covers matters related to alimony, custody, inheritance, and parentage and shall be applied between non-Muslim expatriate residents in case none of them wanted to apply his/her home country's law in the UAE. In case the parties are Indian and were married under the Hindu Marriage Act, and if they requested to apply the law of their nationality, then the aforesaid Hindu Marriage Act shall be applicable. To know more information about this law, please feel free to click this link.
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