Nullity, Restitution, Judicial Separation, and Divorce

1. Void and Voidable Marriages

Under Section 11, marriages are void ab initio if:

• Bigamy exists (contravening Section 5(i));

• The parties are within prohibited degrees of relationship;

• They are sapindas of each other.

Under Section 12, marriages are voidable on grounds such as:

• Impotency;

• Lack of valid consent due to unsoundness of mind, intoxication, or coercion;

• Fraud or concealment of material facts.

2. Restitution of Conjugal Rights (Section 9)

If either spouse withdraws from the society of the other without reasonable cause, the aggrieved party may petition for restitution of conjugal rights.
This provision has been challenged under Article 21 of the Constitution but upheld by the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha (1984), which ruled that the provision aims to preserve the marital bond.

3. Judicial Separation (Section 10)

Either spouse can seek judicial separation on grounds similar to divorce. It provides an opportunity for reconciliation while suspending the obligation to cohabit.

4. Divorce (Sections 13, 13A & 13B)

The Act recognizes several grounds for divorce under Section 13, including:

• Adultery

• Cruelty

• Desertion (for at least two years)

• Conversion to another religion

• Unsoundness of mind

• Venereal disease or leprosy

• Renunciation of the world

• Not heard of as being alive for seven years

Mutual Consent Divorce (Section 13B) was inserted by the Marriage Laws (Amendment) Act, 1976. The spouses must live separately for at least one year before filing.
Recent judicial trend (e.g., Amardeep Singh v. Harveen Kaur, 2017) allows the Supreme Court or High Court to waive the six-month cooling-off period in appropriate cases.

5. Latest Amendment and Case Law Update

• The 2023 Amendment Bill (proposed) seeks to streamline mutual consent divorce timelines and recognize digital evidence for cruelty and desertion.

• The Supreme Court in Shilpa Sailesh v. Varun Sreenivasan (2023) reaffirmed that Article 142 empowers the Court to dissolve marriages directly to prevent unnecessary hardship.

Review Questions 

1. Differentiate between void and voidable marriages under Sections 11 and 12.

2. What are the grounds for divorce under Section 13?

3. Explain the significance of mutual consent divorce under Section 13B.

4. How did Saroj Rani v. Sudarshan Kumar Chadha uphold the constitutionality of Section 9?

5. What role does Article 142 play in divorce proceedings post-Shilpa Sailesh v. Varun Sreenivasan?