Unregistered Marriage Legal Rights India: Divorce vs Annulment Laws India (2025)

Discovering that your partner has been deceitful—whether through financial lies, concealed past relationships, or infidelity—is a devastating personal crisis. This crisis is often compounded by a pervasive legal myth: that if your marriage was not registered with the court, you have no legal standing to fight back. This article debunks that myth. We examine the legal validity of unregistered unions under the Hindu Marriage Act (HMA) and the Bharatiya Nyaya Sanhita (BNS), clarify the strategic distinction between annulment and divorce, and analyse landmark 2025 judgments regarding digital evidence and spousal liability.

Introduction: The Nightmare Scenario

Suppose you have recently entered into a marriage. The ceremonies were grand—the Saptapadi (seven steps) was performed, garlands were exchanged, and social blessings were received. However, in the hustle of post-wedding life, you never got around to visiting the Registrar of Marriages to obtain a formal certificate.

Months later, the veneer cracks. You discover that your spouse is not who they claimed to be. Perhaps they lied about their financial status, inflating their income to secure your consent. Maybe you find evidence of a past marriage they claimed never happened. Or worse, you realize the marriage remains unconsummated because your partner is maintaining an illicit relationship with a third party.

In this moment of betrayal, a terrifying thought often paralyses the victim: "My marriage isn't registered. Does the law even recognise me as a spouse? Can I take legal action, or am I helpless?"

The answer is that you are not helpless. In the eyes of Indian law, the absence of a marriage registration certificate is a procedural irregularity, not a fatal flaw. The Indian legal system, through recent statutes and progressive judicial precedents, provides robust remedies for spouses trapped in such deceitful unions.

1. No Registry, No Marriage?

The most common misconception in Indian society is that a marriage is legally non-existent without a government stamp. This belief often deters victims of matrimonial fraud from seeking justice.

The Statutory Reality (Section 8 HMA)

Under the Hindu Marriage Act, 1955, the validity of a marriage is derived from the performance of customary rituals, not the issuance of a certificate.

• Section 7 mandates that a marriage is complete and binding once customary rites (like Saptapadi) are performed.

• Section 8(5) explicitly states that the validity of a Hindu marriage shall in no way be affected by the omission to make an entry in the marriage register.

Judicial Precedents

Courts have consistently intervened to ensure that the lack of registration does not become a tool for exploitation.

• Supreme Court in Seema v. Ashwani Kumar (2006): While the Court directed that registration should be compulsory to prevent fraud, it clarified that non-registration attracts a small penalty but does not render the marriage void.

• Allahabad High Court (September 1, 2025): In a recent landmark ruling, the High Court held that a Family Court cannot mandate a registration certificate for divorce or other proceedings if the fact of marriage is admitted or proven by rituals. The Court emphasised that registration is merely evidence, not the marriage itself.

  
  

Takeaway: If you have photos of the wedding, witness testimony, or proof of cohabitation, you are legally married. The lack of a certificate cannot stop you from filing for annulment, divorce, or criminal action.

2. Annulment vs. Divorce

When dealing with a "cheating" partner who has employed deceit, filing for a standard divorce might not be your best option. Divorce implies dissolving a valid marriage, leaving you with the tag of a "divorcee." In cases of fraud, Annulment (Nullity of Marriage) is often the superior strategic route.

An annulment, governed by Section 12 of the HMA, declares the marriage "voidable." Once the decree is passed, the law treats the marriage as if it never legally existed.

Ground A: Fraud as to "Material Facts" (Section 12(1)(c))

You can seek annulment if your consent was obtained by fraud regarding any "material fact". Historically, courts viewed "fraud" narrowly. However, 2025 judgments have significantly expanded this definition:

1. Concealment of Past Marriage: In the case of Sameer Pareek v. Shweta Pareek (August 20, 2025), the Delhi High Court ruled that claiming to be "unmarried" when one is actually "divorced" is a suppression of a material fact. The Court annulled the marriage, stating that such deception strikes at the core of free consent.

2. Financial Deception: If your spouse inflated their income (e.g., claiming to earn huge sums in USD) or lied about their employment to get you to say "yes," this is now grounds for annulment. The Delhi High Court has recognised that financial security is a primary consideration in modern marriages, and deceit here vitiates consent.

3. Concealment of Children: Hiding the existence of a child from a previous relationship is considered "profoundly material" as it denies the spouse the choice regarding step-parenting.

4. Crucial Limitation: You must file the petition within one year of discovering the fraud. If you continue to live with your partner after discovering the truth, you may lose this right.

Ground B: Non-Consummation and Impotence (Section 12(1)(a))

If the marriage is unconsummated because your partner refuses intimacy, potentially due to an affair, this falls under Section 12(1)(a).

• Relative Impotence: Courts recognise that a person may be physically capable of intercourse but "psychologically impotent" toward their spouse due to an emotional attachment to a paramour.

• Refusal as Evidence: Persistent refusal to consummate is often interpreted as incapacity.

3. Addressing the "Cheating": Infidelity and Cruelty

If your partner is cheating, you might be wondering about the legal status of adultery. Since 2018, Adultery is no longer a crime in India (per Joseph Shine v. Union of India), meaning you cannot jail your spouse solely for having an affair. However, the law has evolved to punish the conduct surrounding infidelity.

Adultery as "Mental Cruelty" (BNS Sections 85 & 86)

Under the Bharatiya Nyaya Sanhita (BNS), 2023, cruelty is a criminal offence (replacing Section 498A IPC).

• The Law: Section 85/86 punishes wilful conduct that causes grave injury to mental health.

• Judicial View: While a secret affair might not always be "cruelty," flaunting an affair or humiliating the spouse constitutes mental cruelty.

  • The Kerala High Court (2025) held that unfounded suspicion and monitoring of a spouse constitutes cruelty.

  • Conversely, the Madhya Pradesh High Court held that a spouse maintaining intimate contact with former lovers constitutes mental cruelty against the partner.

The New Frontier: Suing the Paramour

In a groundbreaking development, Indian courts are opening avenues to sue the third party (the lover) for damages.

• Alienation of Affection: In Shelly Mahajan v. Ms. Bhanushree Bahl (September 2025), the Delhi High Court issued summons in a civil suit where a wife sought ₹4 Crore in damages from her husband's paramour.

• The Logic: The Court reasoned that while adultery is not a crime, it is a civil wrong. If a third party intentionally interferes with the marital consortium, they can be held liable for damages in a civil court. This bypasses the limitations of Family Courts.

4. Criminal Liabilities for Deception

Beyond ending the marriage, you can hold a deceitful partner criminally accountable.

1. Cheating (Section 318 BNS): If the marriage consent was obtained by showing false documents (salary slips, property papers), this constitutes Cheating. The act of "marrying" is the "doing of anything" the victim would not have done but for the deception. This is punishable by imprisonment up to 3 years (or 7 years depending on property delivery).

2. Stridhan Recovery (Section 316 BNS): Regardless of whether the marriage is registered or void, a wife is the absolute owner of her Stridhan (gifts/jewelry). If the husband or in-laws refuse to return it, they are liable for Criminal Breach of Trust.

   
   

A Note on False Promise to Marry (Section 69 BNS): While Section 69 criminalizes "sexual intercourse by employing deceitful means" (false promise of marriage), this usually applies when marriage is promised but not performed. Since a marriage ceremony actually took place (even if unregistered), Sections 318 (Cheating) and 85 (Cruelty) are the more appropriate legal tools.

5. Evidence: The Game Changer (Supreme Court 2025)

Proving what happened behind closed doors used to be the biggest hurdle. A landmark 2025 Supreme Court judgment has changed the landscape.

Admissibility of Secret Recordings

In Vibhor Garg v. Neha (July 14, 2025), the Supreme Court ruled that secretly recorded phone conversations between spouses are admissible as evidence in matrimonial disputes.

• Privacy vs. Justice: The Court held that the spousal privilege exception does not apply when the dispute is between the spouses. This means you can legally submit audio recordings where your partner admits to the affair, the fraud, or the past marriage.

Digital Evidence (WhatsApp/Emails)

Under Section 63 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, electronic records are admissible if accompanied by a certificate (formerly 65B). Do not just screenshot chats. You must preserve the original device or obtain a hash value certificate to prove the data hasn't been tampered with.

6. Rights Beyond Hindu Law

If you belong to a different faith, similar principles apply:

• Muslim Law: A wife can seek dissolution (Faskh) under the Dissolution of Muslim Marriages Act, 1939, if the husband treats her with cruelty (including associating with women of evil repute). The concept of Tadlees covers fraud/deception.

• Christian Law: Section 19 of the Indian Divorce Act, 1869, allows for a decree of nullity if consent was obtained by force or fraud.

7. Alimony in "Void" Marriages

A common fear is that if you annul the marriage (prove it was void due to fraud), you lose the right to alimony.

The General Rule: Annulment Does Not Automatically Bar Alimony

In a significant ruling in Sukhdev Singh v. Sukhbir Kaur (Supreme Court, 12 February 2025), the Court finally resolved the long-running uncertainty around maintenance after annulment. The Court held that:

A spouse whose marriage is declared void or voidable under the Hindu Marriage Act (HMA) is still legally entitled to seek maintenance.

This means that even if a marriage is annulled, the wife continues to be treated as a “spouse” for the limited purpose of permanent alimony under Section 25 HMA.

The Supreme Court interpreted the phrase “any decree” in Section 25 to include:

• decrees of divorce,

• judicial separation, and

• decrees of nullity (annulment).

The objective, the Court noted, is to prevent a situation where a woman is left financially vulnerable after the marital tie is severed, whether by divorce or annulment.

The "Conduct of Parties" (Section 25 HMA)

Importantly, the Court clarified that the right to apply for alimony is not the same as the right to receive it.

1. Maintenance Is Discretionary

A judge is not obligated to grant alimony merely because a wife files for it.Section 25 explicitly requires the court to evaluate the conduct of both spouses, along with:

• financial capacity,

• duration of marriage,

• circumstances leading to the dissolution.

2. Fraud by the Claimant Can Lead to Rejection

Courts and legal scholars have consistently held that if the marriage is annulled due to fraud committed by the claimant, her conduct becomes a decisive factor.

Examples of conduct courts may consider “wrongful”:

• Concealing a prior marriage,

• Suppressing material facts to induce the marriage,

• Cheating, manipulation, or financial fraud,

• Maintaining undisclosed relationships.

If the husband proves that the wife’s fraud led to the annulment, the court can appropriately deny maintenance on grounds that her conduct was “egregious or inequitable.”

Maintenance Under BNSS (Formerly CrPC 125)

Under Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) (previously Section 125 CrPC), a wife may attempt to seek monthly maintenance.

However, the Supreme Court’s long-standing principle in Yamunabai v. Anantrao still applies:

• A woman from a void marriage is not entitled to maintenance if she knew of the invalidity of the marriage.

How this applies to fraud cases

If the wife herself misled the husband, such as:

• concealing an existing marriage,

• falsifying her marital status,

• entering the marriage with deliberate fraud

Then she cannot claim to be an innocent spouse, which severely weakens her Section 144 BNSS claim as well.

Summary: The wife can ask, but if you prove she is the fraudster in the case, the court should legally deny her request based on her "conduct."

Conclusion

If you find yourself in an unregistered marriage with a deceitful partner, do not panic about the lack of a certificate. The law is heavily tilted in favour of the victim of matrimonial fraud.

Disclaimer: This article provides general legal information and does not constitute legal advice. Matrimonial laws are complex and fact-specific. Please consult with a qualified advocate to discuss your specific situation.