Section 18 Divorce Act 1869 - Petition for Decree of Nullity

Section 18 of the Divorce Act, 1869 is the enabling provision under which either spouse may approach the competent District Court and seek a declaration that the marriage is null and void. The substantive grounds on which such a decree may be granted are set out principally in Section 19.

Meaning and scope of Section 18

Section 18 provides the procedural right to institute a petition for nullity. A petition may be presented by either the husband or the wife. The relief sought is a judicial declaration that the marriage is null and void, rather than a decree dissolving a valid marriage prospectively.

Section 18 should therefore be read together with Section 19 of the Divorce Act, 1869, which states the grounds on which a decree of nullity may be made.

Which court has jurisdiction?

The present text of Section 18 refers to the District Court. Under Section 3(3) of the Divorce Act, 1869, "District Court" means, for a petition under the Act, the court of the District Judge within the relevant local jurisdiction specified by the Act, including jurisdiction connected with the place where the marriage was solemnized or where the husband and wife reside or last resided together.

Grounds relevant to a decree of nullity

Section 18 authorizes the petition, while Section 19 supplies the principal statutory grounds. In the current central text, those grounds include:

• the respondent was impotent at the time of the marriage and at the time the suit was instituted;
• the parties are within the prohibited degrees of consanguinity, whether natural or legal, or affinity;
• either party was, using the terminology appearing in the statute, a "lunatic or idiot" at the time of the marriage; or
• a former husband or wife of either party was living at the time of the marriage and that earlier marriage was then in force.

Section 19 also preserves the jurisdiction of the District Court to make a decree of nullity where the consent of either party was obtained by force or fraud. The precise ground pleaded, the facts supporting it and the evidence required will depend on the circumstances of the case.

Section 18 and Section 19: how they work together

A Section 18 petition should not be read as creating an independent ground of nullity. It is the provision permitting the husband or wife to seek the decree. The legal basis for granting the decree must be found in the applicable provisions governing nullity, particularly Section 19.

Nullity and dissolution are different remedies

A petition for nullity asks the court to declare the marriage null and void on a legally recognized ground. This is distinct from a petition for dissolution of marriage, which seeks termination of a marriage by a decree of divorce under the provisions governing dissolution. The correct remedy and pleading depend on the legal ground and the facts of the marriage.

Official text of the Divorce Act, 1869