Divorce: Grounds for Divorce

Section 13 of the Hindu Marriage Act, 1955

Section 13 of the Hindu Marriage Act, 1955 provides the grounds on which either the husband or the wife can present a petition for the dissolution of their marriage by a decree of divorce. The Act introduced the concept of divorce into Hindu Law, moving away from the traditional notion of the indissolubility of marriage. The grounds listed in Section 13 are primarily based on the "fault theory," where one party seeks divorce alleging a matrimonial misconduct or disability on the part of the other spouse.

Section 13(1) lists the grounds available to either party. Section 13(1A) lists additional grounds available after a decree of judicial separation or restitution of conjugal rights. Section 13(2) lists grounds available only to the wife.

Here, we will elaborate on the grounds listed in your prompt, which are primarily found in Section 13(1).

Adultery (Section 13(1)(i))

A marriage can be dissolved by a decree of divorce on the ground that the respondent (the spouse against whom the petition is filed) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. This constitutes adultery.

Historically, adultery was only a ground for judicial separation, and the standard of proof required was very high. The 1976 amendment to the Act liberalised this ground, making a single act of voluntary sexual intercourse outside marriage sufficient for divorce. Proof of adultery is often based on circumstantial evidence, as direct evidence is rarely available. The petitioner must prove that the respondent had sexual intercourse with a third party after the marriage.

Note: While adultery by a husband was a criminal offence under Section 497 of the Indian Penal Code, 1860 (punishing the man, not the woman), the Supreme Court in Joseph Shine v. Union of India (2018) 2 SCC 189 struck down Section 497 IPC and Section 498 IPC as unconstitutional, decriminalising adultery. However, adultery remains a valid ground for divorce under civil personal laws, including Section 13(1)(i) of the Hindu Marriage Act, 1955.

Cruelty (Mental and Physical) (Section 13(1)(ia))

The ground of cruelty was inserted by the 1976 amendment. It states that a marriage can be dissolved if the respondent has, after the solemnisation of the marriage, treated the petitioner with cruelty. Cruelty can be both physical and mental.

Physical Cruelty: Involves acts of physical violence, causing bodily harm, pain, or danger to life, limb, or health.
Mental Cruelty: Is more difficult to define and prove. It refers to conduct that causes such a state of mind in the petitioner that it becomes impossible to continue to live with the respondent. It is not a single isolated act but a course of conduct that is grave and weighty, of such a character that it causes injury to health or a reasonable apprehension of such injury. Mental cruelty can include humiliation, harassment, false accusations (e.g., of adultery or criminal conduct), persistent demands for dowry, abusive language, unreasonable denial of conjugal rights, continuous ridicule, or any behaviour that causes severe mental suffering or agony.

The standard for proving cruelty is not absolute but depends on the facts and circumstances of each case, the social status, education, and sensitivity of the parties. The conduct must be grave and serious enough for the court to conclude that the petitioner cannot reasonably be expected to live with the respondent.

Desertion (Section 13(1)(ib))

This ground, also inserted by the 1976 amendment, allows divorce if the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion means the withdrawal of one spouse from the society of the other without reasonable excuse and without the consent or against the wish of the other spouse, with the intention of bringing the cohabitation permanently to an end.

Elements of Desertion:

Factum of separation: Physical separation of the spouses.
Animus Deserendi: The intention to desert, i.e., the intention to bring cohabitation permanently to an end. This is the mental element.
Without reasonable excuse: The withdrawal must not be justified by the other spouse's conduct.
Without consent or against the wish of the other spouse: The other spouse must not have agreed to the separation.
Continuous period of two years: The separation with the necessary intention must have persisted for at least two years immediately before filing the petition.

Desertion can be active (one spouse leaving) or constructive (one spouse's conduct forcing the other to leave). The burden of proving desertion lies on the petitioner.

Conversion to another religion (Section 13(1)(ii))

A marriage can be dissolved if the respondent has ceased to be a Hindu by conversion to another religion. If one spouse converts to a non-Hindu religion (like Islam, Christianity, etc.), the other spouse who remains Hindu can seek a divorce on this ground. The conversion must be a bona fide change of faith, not merely a nominal conversion for the purpose of escaping marital obligations (e.g., converting to Islam to solemnise a second marriage, which was historically attempted to bypass monogamy under Hindu Law, before the HMA made bigamy illegal for Hindus).

This ground reflects that marriage under Hindu Law is rooted in religious identity, and conversion fundamentally alters that shared foundation.

Mental Disorder (Section 13(1)(iii))

A marriage can be dissolved if the respondent has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. This ground requires expert medical evidence to prove the nature and severity of the mental condition.

The mental disorder must be such that it makes it impossible or unreasonable for the other spouse to continue cohabitation. Mere eccentricity or difficulty in adjustment is not sufficient.

Leprosy (Section 13(1)(iv)) - Repealed

Historically, this ground allowed divorce if the respondent had been suffering from a virulent and incurable form of leprosy. However, with advancements in medical treatment for leprosy and changing social perceptions, this ground was repealed by the Personal Laws (Amendment) Act, 2019. Leprosy is no longer a ground for divorce under the Hindu Marriage Act, 1955.

Venereal Disease (Section 13(1)(v))

A marriage can be dissolved if the respondent has been suffering from a venereal disease in a communicable form. The disease must be communicable, but it does not need to be incurable, unlike the old leprosy ground. Proof of the disease and its communicable nature is required, usually through medical evidence.

It is generally not required to prove that the disease was contracted after the marriage or from whom. However, if the petitioner was aware of the disease at the time of marriage, it might affect the ability to seek divorce on this ground, although Section 12 (voidable marriages) deals more specifically with pre-marital conditions.

Renunciation of the world (Section 13(1)(vi))

A marriage can be dissolved if the respondent has renounced the world by entering any religious order. This involves a complete and formal abandonment of worldly affairs, family ties, and civil life by embracing a religious ascetic order (e.g., becoming a Sanyasi or a monk). Such renunciation must be absolute and complete according to the customs and practices of the religion.

Upon such renunciation, the respondent is considered civilly dead, allowing the other spouse to seek dissolution of the marriage.

Presumption of Death (Section 13(1)(vii))

A marriage can be dissolved if the respondent has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him or her if he or she had been alive. This ground is based on the legal presumption of death under Section 108 of the Indian Evidence Act, 1872.

If a person is missing and has not been heard of by close relatives or friends for seven years or more, the law presumes that they are dead. The spouse of such a person can seek a divorce on this ground. This allows the surviving spouse to move on and remarry if they wish, rather than being indefinitely tied to a marriage with a missing person.

Example 1. Mr. Sharma files for divorce against his wife, Mrs. Priya, alleging that she had a continuous extra-marital affair with a colleague for the past year.

Answer:

Mr. Sharma can seek divorce on the ground of Adultery under Section 13(1)(i) of the Hindu Marriage Act, 1955. He would need to provide evidence (which can be circumstantial) to prove that Mrs. Priya had voluntary sexual intercourse with a person other than him after their marriage. If the court is satisfied with the evidence, it can grant a decree of divorce.

Example 2. Mrs. Gupta files for divorce against her husband, Mr. Alok, alleging that he constantly abuses her physically and mentally, insults her in front of others, and prevents her from meeting her family.

Answer:

Mrs. Gupta can seek divorce on the ground of Cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955. She would need to provide evidence (testimonies, medical records if any physical injury) to demonstrate a pattern of physical and mental abuse that makes it unreasonable for her to continue living with Mr. Alok. The court will assess the gravity of the alleged conduct based on the specific facts and circumstances of their marriage.

Example 3. Mr. Kapoor left his wife, Ms. Nita, and their home three years ago. He did so without any reason, against her wishes, and with the clear intention of ending their marital relationship permanently. He has not contacted her since.

Answer:

Ms. Nita can file for divorce on the ground of Desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955. She needs to prove that Mr. Kapoor physically separated from her, intended to end cohabitation permanently, did so without her consent or reasonable excuse, and that this separation has been continuous for at least two years immediately before she files the petition. Since the separation has been for three years, this ground is available to her.

Divorce: Mutual Consent Divorce and Other Grounds

Section 13B: Divorce by Mutual Consent

Meaning and Purpose

Divorce by Mutual Consent, provided under Section 13B of the Hindu Marriage Act, 1955 (inserted by the Marriage Laws (Amendment) Act, 1976), offers a way for married couples to obtain a divorce amicably when they both agree that their marriage is beyond repair. Unlike the fault-based grounds under Section 13(1), mutual consent divorce does not require either party to prove any matrimonial misconduct by the other. It is based on the breakdown of the marriage, recognised by both spouses.

The purpose of Section 13B is to provide a dignified and less contentious route for the dissolution of marriage when both parties have genuinely decided to separate. It aims to avoid the acrimony and adversarial nature of traditional divorce proceedings, which can be emotionally taxing and time-consuming.

Procedure and Conditions

Section 13B lays down a specific procedure and conditions for obtaining a divorce by mutual consent:

1. Joint Petition (First Motion): A petition for divorce by mutual consent must be presented jointly by both the husband and the wife to the district court. This petition (often called the First Motion) must state that they have been living separately for a period of one year or more immediately preceding the presentation of the petition, that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved.

Condition 1: Parties must be living separately for at least one year immediately before filing the petition. "Living separately" does not necessarily mean living in different houses; it implies a cessation of marital cohabitation and duties, even if residing under the same roof.

Condition 2: The parties have not been able to live together. This signifies the breakdown of the marital relationship.

Condition 3: They have mutually agreed that the marriage should be dissolved. This mutual agreement must be free and voluntary, without any force, fraud, or undue influence.

2. Waiting Period: After the presentation of the joint petition (First Motion), the parties must wait for a period of not less than six months and not more than eighteen months from the date of presentation of the first petition. This is a mandatory cooling-off period provided by the Act to give the parties time to reconsider their decision and explore the possibility of reconciliation. The Supreme Court has held that this waiting period is not absolute and can be waived by the court in exceptional circumstances where the marriage is irretrievably broken down and forcing the parties to wait would cause undue hardship.

3. Second Motion: After the expiry of the six-month period and within the eighteen-month window, the parties must present a second joint motion (often called the Second Motion or final motion) to the court. In this motion, they must reaffirm their mutual consent to the dissolution of the marriage. If either party withdraws their consent during this period (i.e., before the Second Motion is presented and accepted by the court), the court cannot pass a decree of divorce.

4. Court's Satisfaction and Decree: Upon the presentation of the second motion, if the court is satisfied, after making such inquiry as it thinks fit, that the marriage has been solemnised and that the averments in the petition are true, it shall pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Issues relating to child custody, maintenance, and division of property should ideally be settled amicably between the parties before filing the petition or during the waiting period, and the terms of the settlement included in the petition or confirmed at the time of the second motion. While the court can record such settlements, its primary role under Section 13B is to ascertain the genuineness of mutual consent and confirm the conditions for divorce.

Example 1. Mr. and Mrs. Sharma have been living separately for 15 months. They both agree that their marriage is not working and they wish to get a divorce amicably. They have also agreed on the terms of child custody and division of their joint property.

Answer:

Mr. and Mrs. Sharma can file a joint petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. Their petition (First Motion) must state that they have been living separately for more than one year and have mutually agreed to divorce. After filing the First Motion, they would have to wait for at least six months. During the period between six and eighteen months from filing the First Motion, they can file the Second Motion, confirming their mutual consent. If the court is satisfied, it will pass a decree of divorce. Their agreement on child custody and property can be presented to the court as part of their settlement.

Additional Grounds for Divorce for Wife

While most grounds for divorce under Section 13(1) of the Hindu Marriage Act, 1955 are available to both husband and wife, the prompt lists certain grounds that are either available to both after specific circumstances (Section 13(1A)) or are indeed exclusively available to the wife (Section 13(2)). Let's detail the grounds mentioned in the prompt:

Presumption of Death (Seven years' absence of husband) (Section 13(1)(vii))

This ground is actually available to either husband or wife, not exclusively to the wife. It is covered under Section 13(1)(vii) of the Act (discussed in the previous section). It allows a party to seek divorce if the other spouse has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him or her if he or she had been alive. While often used by a wife whose husband is missing, the husband can also use this ground if his wife is missing for seven years.

Non-resumption of cohabitation after a decree for judicial separation (Section 13(1A)(i))

This ground is also available to either husband or wife. It is provided under Section 13(1A)(i) of the Act. It states that either party to a marriage may present a petition for the dissolution of the marriage by a decree of divorce if, since the passing of a decree for judicial separation in a proceeding to which they were parties, there has been no resumption of cohabitation as between the parties for a period of one year or upwards.

This means that if a court has previously granted a decree for judicial separation (which allows spouses to live separately while remaining legally married), and the spouses have not resumed living together as husband and wife for at least one year after that decree was passed, either spouse can then petition for divorce based on this non-resumption of cohabitation.

Husband's failure to comply with decree for restitution of conjugal rights (Section 13(1A)(ii))

This ground, like the previous one, is available to either husband or wife. It is provided under Section 13(1A)(ii) of the Act. It states that either party to a marriage may present a petition for the dissolution of the marriage by a decree of divorce if, since the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties, there has been no restitution of conjugal rights as between the parties for a period of one year or upwards.

As discussed earlier (under Restitution of Conjugal Rights), if a court has ordered a spouse to return to the society of the other spouse (decree of restitution), and the spouses fail to resume cohabitation and marital duties for at least one year after that decree was passed, either spouse (the one who obtained the decree or the one against whom it was passed) can use this failure to comply as a ground for seeking divorce.

Specific Grounds Available Only to the Wife (Section 13(2))

While the prompt's headings cover grounds available to both parties under Section 13(1)(vii) and 13(1A), for completeness under the general topic of "Other Grounds" and "Additional Grounds for Divorce for Wife," it is essential to mention the grounds exclusively available to the wife under Section 13(2):

1. Pre-Act Polygamous Marriage (Section 13(2)(i)): If the marriage was solemnised before the commencement of the Hindu Marriage Act, 1955, and the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: provided that in either case the other wife is alive at the time of the presentation of the petition.

This ground applies to marriages solemnised before 1955 (when polygamy was not prohibited for Hindus). A wife married before 1955 can seek divorce if her husband had another wife living at the time of her marriage or married another woman before 1955, and that other wife is still alive when she files the petition.

2. Rape, Sodomy, or Bestiality (Section 13(2)(ii)): If the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality.

These are grave offences. If the husband is proven to have committed any of these acts after the marriage, the wife can seek divorce on this ground.

3. Decree of Maintenance (Section 13(2)(iii)): If a decree or order has been passed against the husband awarding maintenance to the wife (either under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or Section 125 of the Code of Criminal Procedure, 1973 or under the provisions of the Protection of Women from Domestic Violence Act, 2005), and since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.

This ground allows a wife who has obtained a maintenance order and is living separately to seek divorce if cohabitation has not resumed for a year or more after the order.

4. Marriage before Attaining Puberty (Section 13(2)(iv)): If the wife's marriage was solemnised before she attained the age of fifteen years, and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

This ground allows a girl who was married as a child (before 15) to reject or repudiate the marriage between the ages of 15 and 18, and upon such repudiation, she can seek a divorce.

Example 1. Mrs. Lakshmi obtained a decree of judicial separation against her husband, Mr. Gopal, on the ground of cruelty two years ago. Since the decree was passed, they have continued to live separately and have not reconciled or resumed living together.

Answer:

Since a decree for judicial separation was passed and there has been no resumption of cohabitation for a period of one year or upwards thereafter, both Mrs. Lakshmi and Mr. Gopal have a ground for divorce under Section 13(1A)(i) of the Hindu Marriage Act, 1955. Either of them can file a petition for divorce based on this non-resumption of cohabitation for more than one year since the judicial separation decree.

Example 2. Mrs. Renuka's husband, Mr. Sameer, went missing five years ago. Despite efforts, his whereabouts are unknown, and no one who would normally hear from him has had any contact. It is now 8 years since he was last heard of.

Answer:

Since Mr. Sameer has not been heard of as being alive for a period of seven years or more by those who would naturally hear from him, there is a legal presumption that he is dead (Section 108, Indian Evidence Act, 1872). Mrs. Renuka can use this as a ground to file for divorce under Section 13(1)(vii) of the Hindu Marriage Act, 1955 (Presumption of Death). This ground is available to her as the spouse of the missing person.

Example 3. Mrs. Meena was married at the age of 14. She is now 16 years old and does not wish to continue in the marriage. She files a petition in court stating her intention to repudiate the child marriage.

Answer:

Mrs. Meena was married before attaining the age of fifteen years. She has now attained the age of fifteen but is still below eighteen years. She can use this period (between 15 and 18 years of age) to exercise her right to repudiate the child marriage. This repudiation is a valid ground for her to seek divorce under Section 13(2)(iv) of the Hindu Marriage Act, 1955, which is a ground exclusively available to the wife.

Judicial Separation and Annulment of Marriage

Judicial Separation (Section 10)

Meaning and Purpose

Judicial Separation is a matrimonial remedy provided under Section 10 of the Hindu Marriage Act, 1955. It allows spouses to live separately from each other while remaining legally married. It is not the dissolution of the marriage, but rather a suspension of marital cohabitation. It provides a legal basis for the spouses to live apart without committing the tort of desertion.

The purpose of judicial separation is to give spouses a cooling-off period or a chance to pause their marital life when living together has become difficult, without immediately breaking the marriage tie through divorce. It allows them to reflect on the relationship and potentially reconcile. If reconciliation does not occur, the period of separation after a decree for judicial separation can form the basis for seeking a divorce later.

Section 10(1) states: "Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) of section 13."

This means that the grounds for seeking judicial separation are the same as the grounds for seeking divorce under Section 13(1), and additionally, the grounds available exclusively to the wife under Section 13(2). The wife can also use Section 13(2) grounds for judicial separation.

Grounds and Effects

Grounds for Judicial Separation: As per Section 10(1), a petition for judicial separation can be filed on any of the fault-based grounds available for divorce under Section 13(1), such as:

Adultery (Section 13(1)(i))
Cruelty (Section 13(1)(ia))
Desertion (Section 13(1)(ib))
Conversion to another religion (Section 13(1)(ii))
Incurable unsoundness of mind or severe mental disorder (Section 13(1)(iii))
Venereal disease in a communicable form (Section 13(1)(v))
Renunciation of the world (Section 13(1)(vi))
Presumption of Death (Section 13(1)(vii))

Additionally, a wife can seek judicial separation on any of the grounds available exclusively to her under Section 13(2), such as the husband's pre-Act polygamous marriage, husband's guilt of rape, sodomy or bestiality, non-resumption of cohabitation after a maintenance decree, or repudiation of child marriage.

Effects of a Decree for Judicial Separation:

No Obligation to Cohabit: The most significant effect is that the petitioner is no longer bound to cohabit with the respondent. They are legally permitted to live separately.
Continuation of Marital Status: The parties remain legally married. They cannot remarry.
Inheritance Rights: The inheritance rights of the parties are generally not affected by a decree of judicial separation (unless they have specifically relinquished rights through an agreement).
Maintenance and Child Custody: The court can make orders regarding maintenance for the dependent spouse and custody, maintenance, and education of minor children, even while granting a decree for judicial separation (under Sections 24, 25, and 26 of the Act).
Ground for Divorce: As discussed earlier, if cohabitation is not resumed between the parties for a period of one year or upwards after a decree for judicial separation, either party can use this as a ground for divorce under Section 13(1A)(i).

Judicial separation provides a legal "pause button" for a troubled marriage, offering a potential path to reconciliation or, failing that, a step towards divorce.

Example 1. Mrs. Priya is facing physical and mental cruelty from her husband, Mr. Vivek. She finds it impossible to live with him but is hesitant to file for divorce immediately, hoping for a possibility of reconciliation in the future.

Answer:

Mrs. Priya can file a petition for judicial separation under Section 10 of the Hindu Marriage Act, 1955, using cruelty (Section 13(1)(ia)) as the ground. If the court finds that the ground of cruelty is proven, it can grant her a decree of judicial separation. This would legally allow her to live separately from Mr. Vivek without being considered in desertion. She would still be married to Mr. Vivek. This gives them both time and space. If they reconcile later, they can resume cohabitation. If they do not resume cohabitation for one year after the decree, either of them could then file for divorce.

Annulment of Marriage and Void Marriages (Section 11)

Void Marriages

A marriage is considered void under the Hindu Marriage Act, 1955, if it contravenes certain fundamental conditions laid down in Section 5. A void marriage is treated as if it never legally existed from the very beginning (ab initio). It does not create any legal marital relationship, rights, or obligations between the parties.

Section 11 states: "Any marriage solemnised 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) of section 5."

This means that a marriage is void if it violates the conditions regarding:

1. Monogamy (Section 5(i)): If either party has a spouse living at the time of the marriage.

2. Prohibited Degrees of Relationship (Section 5(iv)): If the parties are within the degrees of prohibited relationship, unless custom permits.

3. Sapinda Relationship (Section 5(v)): If the parties are Sapindas of each other, unless custom permits.

If a marriage is void, it is legally non-existent. However, parties might still seek a decree of nullity from the court under Section 11 to get a formal declaration of its nullity. This declaration prevents future disputes or doubts about the validity of the marriage.

Grounds for Annulment (of Void Marriages)

The "grounds for annulment" under Section 11 are precisely the contraventions of Section 5(i), (iv), and (v). A petition for a decree of nullity for a void marriage can be filed by either party to the purported marriage against the other party. The court, upon being satisfied that the marriage contravened any of these conditions, will issue a decree declaring the marriage to be null and void.

Consequences of a Void Marriage:

No legal status as husband and wife.
Children born out of a void marriage are considered legitimate under Section 16 of the Act if, at the time of the birth, the marriage was not void in law or had been declared void by a decree of nullity but was solemnised in contravention of Section 5(i), (iv), or (v). This provides legitimacy to children born from such unions, even if the marriage itself is void.
Parties generally cannot claim maintenance or inheritance rights from each other based on the void marriage (though Section 25 provides for maintenance during proceedings and Section 26 deals with custody etc. of children).

Annulment of a void marriage under Section 11 is merely a judicial declaration of an existing legal fact – that the marriage was invalid from the start. It differs from annulling a voidable marriage, where the marriage is treated as valid until annulled.

Example 1. Mr. Rahul marries Ms. Simran while his first wife, Ms. Pooja, is still alive and their marriage is subsisting. Later, Mr. Rahul wants to clarify his marital status.

Answer:

Mr. Rahul's marriage to Ms. Simran is a void marriage because it violates the condition of monogamy under Section 5(i) of the Hindu Marriage Act, 1955. Either Mr. Rahul or Ms. Simran (or even Ms. Pooja, the first wife) can file a petition for a decree of nullity under Section 11 of the Act to get a formal declaration from the court that the marriage between Mr. Rahul and Ms. Simran is null and void. This simply confirms its invalidity from the beginning.

Voidable Marriages (Section 12)

Meaning and Grounds

A marriage is considered voidable under the Hindu Marriage Act, 1955, if it suffers from certain defects that make it liable to be annulled by a court decree, but is treated as valid unless and until such a decree is passed. Unlike a void marriage which is invalid from the outset, a voidable marriage is valid until it is specifically annulled by a court on a petition presented by an aggrieved party.

Section 12(1) lists the grounds on which a marriage solemnised after the commencement of the Act is voidable and may be annulled by a decree of nullity:

1. Incapacity to Consent due to Mental Disorder (Section 12(1)(b)): That the marriage is in contravention of the condition specified in clause (ii) of Section 5. This refers to the conditions regarding the soundness of mind of the parties:

Incapacity of giving valid consent due to unsoundness of mind, or
Suffering from mental disorder making them unfit for marriage/procreation, or
Subject to recurrent attacks of insanity or epilepsy.

A petition on this ground can be filed by the other party (not the one suffering the incapacity). There are limitations on filing such a petition, such as the petitioner having knowledge of the ground at the time of marriage and their conduct since the solemnisation (Section 12(2)).

2. Force or Fraud (Section 12(1)(c)): That the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required, 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. (Note: The requirement of guardian's consent was relevant when minimum marriage age was lower, now effectively relates to consent of parties).

The force or fraud must be such that it vitiated the consent. Fraud must relate to the nature of the ceremony or a material fact/circumstance about the respondent (e.g., identity, serious illness, previous marriage, etc.). Simple misrepresentation or concealment unrelated to material facts usually doesn't suffice.

A petition on this ground must be filed within one year after the force ceased to operate or the fraud was discovered. The petitioner must not have lived with the respondent with their full consent after the force ceased or fraud was discovered (Section 12(2)).

3. Pregnancy by another Person (Section 12(1)(d)): That the respondent was at the time of the marriage pregnant by some person other than the petitioner.

This ground is available to the husband. He must prove that his wife was pregnant by another man at the time of marriage. There are limitations on filing this petition:

The petitioner was ignorant of the fact of pregnancy at the time of the marriage.
Proceedings are instituted within one year from the date of the marriage.
Marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the fact of pregnancy. (Section 12(2)).

4. Impotence (Section 12(1)(a)): That the marriage has not been consummated owing to the impotence of the respondent. Impotence refers to the inability to perform sexual intercourse. This must exist at the time of the marriage and continue till the institution of the proceedings. The inability can be physical or psychological. Non-consummation must be due to the respondent's impotence.

Grounds for Voidable Marriage

The grounds for a voidable marriage, leading to annulment, are thus:

Non-consummation due to respondent's impotence (Section 12(1)(a)).
Contravention of Section 5(ii) regarding mental capacity (Section 12(1)(b)).
Consent obtained by force or fraud (Section 12(1)(c)).
Wife pregnant by another person at the time of marriage (Section 12(1)(d)).

A decree of nullity for a voidable marriage retrospectively annuls the marriage from the date of the decree, or sometimes from the date of marriage depending on the ground and court's order, making it legally invalid. However, unlike a void marriage, it was considered valid until annulled. Section 16 treats children born from a voidable marriage that has been annulled as legitimate, provided the marriage was solemnised and registered under the Act.

Feature	Void Marriage (Section 11)	Voidable Marriage (Section 12)
Validity Status	Invalid from the beginning (ab initio). Legally non-existent.	Valid until annulled by a court decree.
Requirement of Court Decree	Decree is declaratory (declares existing invalidity). Can be sought, but marriage is void even without it.	Decree of nullity is essential to invalidate the marriage.
Grounds (HMA)	Sec 5(i) (Monogamy) Sec 5(iv) (Prohibited Degrees) Sec 5(v) (Sapinda)	Sec 12(1)(a) (Impotence/Non-consummation) Sec 12(1)(b) (Mental Incapacity - Sec 5(ii)) Sec 12(1)(c) (Force/Fraud) Sec 12(1)(d) (Wife's Pregnancy by another)
Who can petition for annulment?	Either party.	Only an 'aggrieved party' (usually the petitioner who suffered the wrong/defect, with limitations).
Effect of Annulment Decree	Declares the marriage null and void from the date of solemnisation.	Annuls the marriage from the date of the decree (usually), or sometimes retrospectively.
Children's Legitimacy (Sec 16)	Legitimate if marriage contravened Sec 5(i), (iv), or (v) and solemnised/registered.	Legitimate if marriage solemnised/registered.

Example 2. Mrs. Meena discovers shortly after her marriage that her husband, Mr. Arjun, was at the time of the marriage suffering from a mental disorder that made him completely unfit for marital life. She was unaware of this condition before the marriage.

Answer:

This scenario involves a potential contravention of Section 5(ii)(b) of the Hindu Marriage Act, 1955 (mental disorder making unfit for marriage). A marriage in contravention of Section 5(ii) is voidable under Section 12(1)(b). Mrs. Meena can file a petition for a decree of nullity to annul the marriage on this ground. Since she was unaware of the condition at the time of marriage and presumably has not lived with Mr. Arjun with full consent after discovering the truth, she is likely eligible to get the marriage annulled by the court.

Example 3. Mr. Karthik files a petition seeking annulment of his marriage to Ms. Suma, alleging that Ms. Suma was pregnant by another man at the time of their marriage. He discovered this three months after the marriage.

Answer:

Mr. Karthik can seek to have the marriage annulled on the ground specified in Section 12(1)(d) of the Hindu Marriage Act, 1955. This ground makes the marriage voidable. He must prove that Ms. Suma was pregnant by another person at the time of their marriage and that he was unaware of this fact when they married. Since he discovered this within one year of the marriage (three months), and assuming he has not had marital intercourse with Ms. Suma after discovering the pregnancy, he is within the limitations to file the petition. If he successfully proves the ground, the court can grant a decree of nullity, annulling the marriage.