1. Which law applies in my case?
Marriage,
Divorce, Custody and Maintenance are largely governed by the religion
practiced by the parties to the marriage. If both parties belong to the
same religion, one of these acts would apply:
a. If you are Christians, The Indian Divorce Act, 1869 and the Indian Christian Marriage Act, 1872;
b. If you are Parsis, the Parsi Marriage and Divorce Act, 1936;
c. If
you are Hindus, the Hindu code comprising the Hindu Marriage Act, 1955,
the Hindu Adoptions and Maintenance Act, 1956, the Hindu Minority and
Guardianship act, 1956 and the Hindu Succession Act, 1956. The term
‘Hindu’ in these acts applies to Buddhists, Sikhs and Jains, or in other
words, all those who are not Muslim, Christian, Parsi or Jew;
d. If
you are Muslims, the Muslim Personal law (Shariat) Application Act,
1937, the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women
(Protection of Rights on Divorce) Act, 1986.
Every
act specifies the particular procedures to be fulfilled before the
marriage can be considered solemnised, such as the saptapadi for the
Hindus, or ashirwad for Parsis.
If both of you do not follow the same religion, you would have two options:
1. One
of you could convert to the religion of the other so that you could be
married under the relevant law. To convert to Hinduism, you need to
approach an Arya Samaj temple, which is authorised to convert persons to
Hinduism, and also solemnise marriages. To convert to Islam, you need
to approach a Madrassa of the specific sect to receive instruction. To
convert to Christianity, you need to approach a church of the specific
sect to receive instruction or
2. You
could be married under the Special Marriage Act, 1954. This act is a
secular act, and you can choose to be married under this act even if you
can be validly married by any of the other acts. The Special Marriage
Act requires the filing of a 30-day notice of intended marriage before
the marriage officer.
2. Whom can I marry?
There are several considerations:
Age:
The Child Marriage Restraint Act, the Hindu Marriage act, and the
Special Marriage act fix the age of marriage for women at 18, and for
men at 21. Marriage in contravention of this requirement is punishable
by fine or imprisonment, but the marriage remains valid. If the party is
too young to be capable of giving valid consent, the marriage could be
annulled. The Shariat gives a party to the marriage the option to
repudiate a marriage contracted during minority on the attainment of
majority, though it requires that the person be competent to make a
valid contract. A vast difference of age is not a legal impediment. The
woman can be older than the man.
Marital status:
All matrimonial codes except the Shariat state expressly that the
parties have no surviving spouse at the time of marriage. Such a
marriage would be void from its inception. The party who is validly
married to another person may be liable to criminal prosecution for
bigamy filed by the spouse.
Relationship between parties: Every act specifies degrees of prohibited relationships. You cannot marry a close relative such as a cousin a nephew or a niece, unless such a marriage is customary in your community. You should ask the elders in your community. If such a marriage were customary, then and only then, would it be valid.
Health of parties:
The parties must be mentally and physically capable of marriage and
procreation of children. They must not be subject to recurrent attacks
of insanity. Epilepsy is no longer an impediment to marriage. If a party
does not disclose a significant physical deformity or illness at the
time when the other party consents to the marriage, the other party
could seek annulment of the marriage on ground of fraud,
misrepresentation or non-disclosure of material fact.
You
can marry any person, provided he or she fulfils these conditions. The
law does not prohibit inter-religious or inter-caste marriages. You can
also marry persons who are citizens of other countries.
3. What is registration of marriage?
Registration
of a marriage grants civil (government) recognition of a marriage
performed. Immigration and visa procedures require production of a civil
certificate of marriage. The registration of the marriage would entitle
you to such a certificate. Failure to register a marriage does not
invalidate the marriage. The marriage can be registered any time after
the marriage, but only with the presence of both parties to the
marriage.
In case of Hindu, Parsi or Special Marriage Act, the officer in charge is the Registrar of Marriages. In many districts in India,
this officer is also responsible for registration of such documents as
sale deeds. The Special Marriage Act requires that persons seeking to
register the marriage reside for a minimum of 30 days within the
jurisdiction of the particular registrar.
For
registration of Christian marriages, the parties would have to approach
the office of the Inspector General of Registration, whose office would
be in the Capital city of the State.
Persons married under Islamic law would have to approach the chief Qazi of the state for a civil certificate of marriage.
3. What rights do the parties get on marriage?
Generally, parties to a marriage have the following rights:
Cohabitation and Conjugal rights which
includes intercourse and companionship. If this right is not willingly
granted a petition for restitution of conjugal rights may be filed. The
court may declare in favour of the petitioner, but cannot force the
respondent to cohabit with the petitioner. Non-compliance with the
decree for one year shall form a ground for seeking divorce.
Financial security the spouse who is gainfully employed or receives an income, is required to maintain the spouse who is not so.
Matrimonial home which
grants the wife the right to reside in her husband’s residence, and
under Hindu law, also to be maintained by him, or his father.
Succession, according to which, a person can succeed to the property of the spouse under personal law, or under the Indian succession act.
Fidelity
Courtesy and decency including the right not to be harassed mentally or be subject to physical cruelty
Legitimacy of issue
Though
the above may be enumerated as rights they have to be deduced from the
reciprocal duty on the parties, the failure to fulfil which could be
grounds for seeking divorce.
4. How can marriages be dissolved?
The
same laws according to which the marriage was solemnised govern
dissolution of marriages, and the rights consequent to the dissolution.
The
Indian Divorce, Act Special Marriage Act, the Parsi Marriage and
Divorce Act and the Hindu Marriage Act, provide for annulment of the
marriage, since its very inception, on grounds such as the
non-fulfilment of mandatory conditions already mentioned in Question 2
above. The Indian Divorce act requires confirmation by the High Court to
come into effect.
The
acts also prescribe that marriages may be annulled by decree if a party
wilfully refuses to consummate the marriage, or if the wife was
pregnant by a person other than the husband at the time of marriage, or
if the consent of the parties was procured by coercion or fraud. I have
received queries whether this would cover situations of ‘pressure’ and
‘emotional blackmail’ from parents. It would depend on the
circumstances. But I doubt the court would accept such a ground if the
party was an educated, employed adult and who was otherwise socially
independent. Social and religious circumstances surrounding marriage in India do give rise to situations such as these where persons consider themselves bound by parental approval or decisions.
Marriages
may also be dissolved if the spouse has not been heard of as living for
a continuous period of 7 years. The spouse applying for dissolution
would have to prove that he or she took adequate steps to seek out the
other spouse.
All Indian personal laws have provided for grounds for divorce. Some common grounds of divorce are:
1. Adultery
2. Cruelty
3. Desertion and failure to maintain
4. Conversion to another religion
5. Incurable mental disorder
6. Incurable mental disorder which may result in abnormally aggressive or irresponsible behaviour
7. Virulent and incurable leprosy, or communicable venereal disease not contracted from the party filing the application
8. Renunciation of worldly life
The
parties may decide to seek divorce by mutual consent, having decided
that they do not want to live together. In such a petition, they need
not disclose their reasons for making such a decision.
Muslim
personal law also grants several options for the husband to seek
divorce without approaching the court. The wife would be entitled to
maintenance and dower and also to appeal the divorce in court.
5. Where should the application be filed?
An application for divorce may be filed in a court having jurisdiction. Such a court must be:
a. a court capable of entertaining matrimonial cases
b. a
court that has territorial jurisdiction over the place of marriage, the
place where the couple last resided together, and the place where the
respondent spouse currently resides. If the respondent resides abroad,
then the petition can also be filed in India the place of residence of the petitioner.
c. For the decree to be valid, the court must apply the law under which the marriage was solemnised.
An appeal against the decree has to be filed in the court having supervisory powers over the first court.
6. What are the rights on divorce?
The rights on divorce are also governed by the law under which the marriage was solemnised.
1. the couple is no longer required to cohabit.
2. the
spouse unable to take care of herself or himself in the standard to
which he or she was used to, while married, is entitled to be maintained
by the other spouse.
3. under Muslim law, the wife would be entitled to maintenance as per Shariat law.
4. the
children will be entitled to be maintained financially by the parent
who can bestlook after their interest. However, custody may be granted
to the parent in whose care, the child’s welfare shall be best served.
Indian courts are generally in favour of granting custody of minor
children to the mother.
5. Custody of children may be sought by the parties in the divorce proceedings.
7. How do I protect myself from dowry proceedings?
I
receive many queries from husbands claiming that their wives are taking
unfair advantage of the availability of channels for prosecution on
grounds of dowry harassment. The Dowry prohibition Act Rules, 1989,
provide for making a list of gifts given or received at the time of
marriage, to be signed by both parties. Once proceedings have commenced,
it would be necessary for the party to defend himself/herself by
providing evidence to prove that the allegations are false. After the
trial is over, if the party is acquitted, then proceedings for malicious
prosecution, defamation etc. may be initiated.
8. How do I protect myself from harassment by my spouse and his or her family members?
The
law provides for protection to both parties. If you find yourself,
threatened, assaulted or battered by your spouse, you may file a
complaint at the police station against your spouse.
The
recently enacted Domestic violence act is aimed at protecting women
from spousal abuse and domestic violence. They may approach the police
station to file a complaint.
Professional
marital counselling and mediation by professional mediators are freely available in society and
ought to be made use of even courts will also encourage parties to approach a
mediator or counsellor prior to passing the decree. For advice relating to your particular case, you would have to
approach a lawyer practising matrimonial law.
I appeal to everyone looking for a legal remedy that please have a frank and open discussion on issues
that are straining the marriage and to explore ways of making the
marriage work.
