We, like all other forms of life, are genetically coded to procreate, to want to procreate. Not only is it the joy of extending one’s lineage, but it can also be the sole purpose of one’s natural life. However, unlike several species of animals that mate with different partners throughout their lives, humans have evolved into forming a system for the same. This system is the institution of marriage, which sanctions interpersonal relations between a man and a woman. In most cultures, marriage is also considered to be like approval to all the sexual activities between couples that they may see appropriate, and also resolves the questions regarding the legitimacy of a child. The institution of marriage has evolved drastically over the centuries. In India, for instance, centuries ago Kings took in numerous wives to maintain good relations with other kingdoms. Nevertheless, in the contemporary world, polygamy and bigamy are condemned, and the law legitimizes the institution of marriage with only one partner. If a person still gets married, without the annulment of the first marriage, the second marriage is to be considered to be null and void in nature per section 11 of the Hindu Marriage Act, 1955 (with the exceptions of polygamous societies within India).
Just like there are provisions for getting married lawfully, similarly certain legal remedies have also been instituted to terminate the marriage in case of failure of marriage between couples due to numerous reasons. One way of dissolving a marriage is seeking a divorce. The other is seeking annulment of marriage. While a divorce refers to the dissolving of a marriage, an annulled marriage is considered to never have existed. There is a narrow line of difference between annulment and divorce. While a divorce can be filed on grounds like adultery, dissertation and physical/emotional abuse; annulment can be sought on the basis of fraudulent marriage, forced consent, mental illness, incapacity to consummate etc. Comparatively, divorce is a much more time consuming and a tricky process as it takes into consideration all legal provisions for division of property, custody of children etc. Contrary to this, once a marriage is annulled, it becomes completely non-existent after the final decree of the Court. Unlike a divorce, post which another marriage is considered to be a second marriage, remarrying after an annulment is getting married for the first time.
Now, specifically about the non-consummation post-marriage, one outcome that is expected out of every marriage is a healthy sexual relationship between the partners, and the extension of lineage through procreation, until the process is hindered by the mutual decision of the partners. Hence consummation has been considered to be obvious and very crucial for every marriage. But what if one of the partners denies the conjugal rights to the other without any consummation at all? What if the impotency of one partner is an obstacle in the process of consummation? What are the repercussions of non-consummation on the institution of marriage?
Unconsummated marriage is simply a marriage in which the partners have not/are unable to have a natural sexual relationship, due to various reasons like impotency of one of the partners, committal to celibacy etc. Under section 12(1)(a) of the Hindu Marriage Act, 1955, non-consummation of a solemnized marriage because of the impotency of the respondent is a ground of considering a marriage voidable, i.e. it shall be considered valid until annulled by the aggrieved party.
And if the marriage is declared annulled based on the impotency of the husband, he is liable to pay maintenance to his wife per Section 125 of the Code of Criminal Procedure, 1973, despite the declaration of nullity. Certain grounds for seeking maintenance should also be fulfilled at the same time. The wife cannot claim maintenance if she has a good source of income and can live independently. As are the patriarchal norms of our society, if the roles are reversed, the husband cannot claim maintenance post annulment after the non-consummation from the side of the wife. Till date, there is no legal provision for granting maintenance to the husband post-termination or annulment of marriage.
The wife, however, if aggrieved by non-fulfilment of her conjugal rights can seek annulment within a year of marriage as well. And the husband shall be liable to pay maintenance if the essentials of section 125, Criminal Procedure Code stand fulfilled.
In the case of Sahil Bansal v Vasudha the husband filed a petition for non-consummation of the marriage because of the impotency of the respondent, i.e. his wife. In her defence, she contended that she had converted into ‘Scientology’, a religious cult, before getting married and hence, she could not consummate. After this, she returned to her parents’ home and refused to return to her matrimonial home, and hence her husband was constrained to seek annulment of marriage due to these activities. It was also observed by the Punjab and Haryana High Court that the wife is entitled to ‘permanent alimony’ in annulment as well as divorce cases, under section 11 of the Hindu Marriage Act, 1955.
Hence, in accordance with the maxim ‘ubi jus ibi remedium’ meaning where there is a right, there is a remedy, annulment of marriage is a remedy for non-consummation of a marriage, for conjugal obligations of one partner towards the other are a matter of right in our country. And even though annulment of a marriage is granted by the Court in extremely rare cases, for it makes the marriage null and void, non-consummation of the marriage forms a very strong ground for seeking an annulment.
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