Category Archives: Hindu Marriage Divorce

Marriage and Divorce in India.

 

Meaning of Marriage in Indian Culture

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Marriage as a social institution is an affirmance of civilized social order where two individuals, capable of entering into wedlock, have pledged themselves to the institutional norms and values and promised to each other a cemented bond to sustain and maintain the marital obligation. It stands as an embodiment for continuance of the human race.

The marriage tied their nuptial knot to bring about the union of souls. The marriage creates a new relationship of love, affection, care and concern between the husband and wife. According to Hindu Vedic philosophy, it is sanskar- sacrament, one of the sixteen important sacraments essential to be taken during one’s lifetime. As a result of marriage there may be physical union between the parties of the marriage for procreation of lineal progeny and for ensuring spiritual salvation and performance of religious rites but what is essentially contemplated is the union of two souls. Marriage is considered to be a junction of three important duties i.e. social, religious and spiritual.

Mode of Dissolution of Marriage.

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According to the Indian divorce laws there are mainly two ways to obtain you divorce, the mutual divorce and the contested divorce. In case of a mutual divorce, you can have a talk with your estranged spouse to come to a settlement and get a “no-fault divorce”. If you are seeking a contested divorce, you can file your divorce on the grounds that are specified under the particular Indian marriage act that you are entitled to. There are separate divorce laws for Hindus, Christians, Parsis and Muslims. Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act, 1955 for filing for divorce in India. Laws are even laid down for Inter-cast marriages under the Special Marriage Act, 1956.

  1. Contested Divorce
  2. Annulment or Nullity
  3. Divorce by Mutual Consent.

DISSOLUTION OF MARRIAGE:

The same laws according to which the marriage was solemnized govern dissolution of marriages, and the rights consequent to the dissolution.

Governing Laws

Hindus – The Hindu Marriage Act, 1955

Christians – The Divorce Act,1869, The Indian Christian Marriage Act,1872

Parsis – The Parsi Marriage and Divorce Act,1936

Muslims – Shariat Law, The Dissolution of Muslim Marriage Act,1939

Inter-cast/Secular – Special Marriage Act, 1954,

The Foreign Marriage Act,1969

 For annulment of the marriage, since its very inception, on grounds such as the non-fulfilment of mandatory conditions.. The Indian Divorce act requires confirmation by the High Court to come into effect.

All Indian personal laws have provided for grounds for divorce. Some common grounds of divorce are:

Divorce by mutual Consent under Hindu Marriage Act.

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws Amendment Act, 1976 , (68 of 1976 .) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that thy have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Contested Divorce – The spouse seeking divorce can file under the appropriate faith based law under which they got married or in case of civil marriage under the appropriate law under which they married or their marriage was registered.

GROUND ON WHICH MARRIAGE CAN BE DISSOLVED IN CONTESTED DIVORCE.

  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.

JURISDICTION FOR FILLING OF PETITION FOR DIVORCE

An application for divorce may be filed in a court having jurisdiction. Such a court must be:

  1. a court capable of entertaining matrimonial cases.
  2. 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.
  3. For the decree to be valid, the court must apply the law under which the marriage was solemnised.
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