Registration of Hindu marriages in India.

Registration of Hindu marriages. 

A marriage which has already been solemnised can be registered either under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. The Hindu Marriage Act is applicable in cases where both husband and wife are Hindus, Buddhists, Jains or Sikhs or where they have converted into any of these religions. Where either of the husband or wife or both are not Hindus, Buddhists, Jains or Sikhs the marriage is registered under the Special Marriage Act, 1954.

Further, marriage can be solemnised between any two persons under the provisions of the Special Marriage Act, 1954.

(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.

(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.

(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.

Registration of Marriage under Hindu Marriage Act 1955 in Delhi.

To the office of Sub-Divisional Magistrate in whose jurisdiction any of the husband or wife resides, during 9.30 a.m. to 1.00 p.m. on any working day to obtain the contact address of the SDM in whose jurisdiction in your colony lies.

Documents Required for registration of Marriage in Delhi.

  1. Application form duly signed by both husband and wife.
  2. Documentary evidence of date of birth of parties (Matriculation Certificate / Passport / Birth Certificate) Minimum age of both parties is 21 years at the time of registration under the Special Marriage Act.
  3. Ration card of husband or wife whose area SDM has been approached for the certificate.
  4. In case of Special Marriage Act, documentary evidence regarding stay in Delhi of the parties for more than 30 days (ration card or report from the concerned SHO).
  5. Affidavit by both the parties stating place and date of marriage, date of birth, marital status at the time of marriage and nationality.
  6. Two passport size photographs of both the parties and one marriage photograph.
  7. Marriage invitation card, if available.
  8. If marriage was solemnized in a religious place, a certificate from the priest is required who solemnized the marriage.
  9. Rs. 100/- in case of Hindu Marriage Act and Rs.150/- in case of Special Marriage Act to be deposited with the cashier of District and the receipt should be attached with the application form.
  10. Affirmation that the parties are not related to each other within the prohibited degree of relationship as per Hindu Marriage Act or Special Marriage Act as the case may be. For details of such relationships Click here.
  11. Attested copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower.
  12. In case one of the parties belong to other than Hindu, Budhist, Jain and Sikh religions, a conversion certificate from the priest who solemnized the marriage(in case of Hindu Marriage Act).

All documents excluding receipt should be attested by a Gazetted Officer

 Hindu Marriage Act

Verification of all the documents is carried out on the date of application and a day is fixed and communicated to the parties for registration. On the said day, both parties, alongwith a Gazetted Officer who attended their marriage, need to be present before the SDM. The Certificate is issued on the same day.

 Special Marriage Act

Both parties are required to be present after submission of documents for issuance of public notice inviting objections. One copy of notice is pasted on the notice board of the office and copy of the notice is sent by registered post to both parties as per address given by them. Registration is done 30 days after the date of notice after deciding any objection that may have been received during that period by the SDM. Both parties alongwith three witnesses are required to be present on the date of registration.

For More detail and latest procedure please visit Delhi govt. website.

Talaq/Divorce Under Muslim Law in India.

TALAQ

In the talaq divorce, the husband pronounces the phrase “I divorce you” (in Arabic, talaq) to his wife. A man may divorce his wife three times, taking her back after the first two (reconciling). After pronouncing Talaq either once or twice or thrice, the man has to wait for 3 menstrual periods before finally letting his wife leave. However, if the couple want to come together after the Talaq is completed, the Quran states that there is no harm in doing so after the wife has married another man and has divorced him (known as ‘Talaq Halala’). Some do a “triple ṭalāq”, in which the man says in one sitting “I divorce you” three times (or “I divorce you, three times”, “you’re triple divorced”

There are two categories of divorce under the Muslim law

1.) Extra judicial divorce, and

2.) Judicial divorce

The category of extra judicial divorce can be further subdivided into three types, namely,

  • By husband- talaaq, ila, and zihar.
  • By wife- talaaq-i-tafweez, lian.
  • By mutual agreement- khula and mubarat.

The second category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.

Grounds for decree for dissolution of marriage.-

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:—

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:

Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,—

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

(ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law:

Provided that—

(a) no decree shall be passed on ground (iii) until the sentence has become final;

(b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and

(c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.

 

 

Divorce under The Special Marriage Act 1954 in India.

 

Divorce under  The Special Marriage Act, 1954

images-123

(1) ] Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent— 2[(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); 3[***]

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or 4[(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or

(f) has been suffering from venereal disease in a communicable form]; or

(g) has 5[***] been suffering from leprosy, the disease not having been contacted from the petitioner; or

(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; 6[***] 7[Explanation.—In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;] 8[***] 9[***] 7[(1A) A wife may also present a petition for divorce to the district court on the ground,—

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.] 10[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

 

Grounds for Divorce under Special Marriage Act are as follows:

(1)Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent”

(a) has since the solemnization of the marriage committed adultery; or

(b) has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition; or

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (Act XLV of 1860): or

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or

(e) has been incurably of unsound mind for a continuous period of not less than three years immediately proceeding the presentation of the petition; or

(f) has for a period of not less than three years immediately preceding the presentation of the petition been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner; or

(g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or

(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or

 

and by the wife on the ground that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

 

 

 Divorce by mutual consent The Special Marriage Act, 1954

 

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court by both the parties together 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 they have mutually agreed that the marriage should be dissolved.

(2) 1[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 district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

Mutual Consent Divorce under sec.13-B of HMA can be withdraw any time.

. In the present case, no petition under Section 13-B of the Act has been filed. The petitioner wants for a decree in divorce suit under Section 13 of the Act, in view of compromise dated 10.10.2014, as this compromise would operate as estoppel against the respondents. Rule of estoppel is a rule of evidence. There can be no estoppel against statute. Supreme Court in State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545, held that it is now well known, the rule of estoppel has no application where contention as regards a constitutional provision or a statute is raised.. Section 13-B itself gives liberty for second thought to the parties. The consent must continue during the interregnum period and after this period the parties should again confirm their consent before the Court. As held by Supreme Court in various cases cited above, the parties can withdraw their consent during this period. As such Rule of estoppel has no application in a petition under Section 13-B of the Act.

The Hon’ble Supreme Court in case of  Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, held that the language employed in Section 13-B(2) of the Act is clear. The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.


 

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. – 58 Reserved

Case :- MATTERS UNDER ARTICLE 227 No. – 7414 of 2015
Petitioner :- Ashish Kumar Srivastava
Respondent :-Smt. Ankita Srivastava
Counsel for Petitioner :-Siddhartha Varma, Anup Kumar Srivastava, S.K. Varma
Counsel for Respondent:- Dhirendra Pratap Singh, H.M.B. Sinha

Hon’ble Ram Surat Ram (Maurya),J.
1. Heard Sri S.K. Varma, Senior Advocate, assisted by Sri Siddhartha Varma, for the petitioner and Sri H.M.B. Sinha along with Sri Dhirendra Pratap Singh, for the respondent.
2. This petition has been filed for setting aside the order of Principal Judge Family Court dated 08.10.2015, deferring disposal of application (28-C) filed by the petitioner and fixing a date for framing issues in Divorce Suit and to issue direction to Principal Judge Family Court, to decree Divorce Suit in view of compromise dated 10.10.2014, entered into between the parties.
3. Ashish Kumar Srivastava (the petitioner) married to Smt. Ankita Srivastava (the respondent) according to Hindu rites on 17.05.2011. The petitioner filed a suit on 26.05.2012 (registered as Divorce Suit No. 321 of 2012) under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for grant of decree of divorce. It is alleged that in retaliation to this suit, the respondent initiated following proceedings against the petitioner and his family members:-
(I) Criminal Case No. 721 of 2012, arising out of Case Crime No. 270 of 2012 under Section 498-A, 323, 504, 506 IPC and 3/4 of Dowry Prohibition Act, PS Shahpur, district Gorakhpur.
(II) Case No. 564 of 2012 under Section 125 Cr.P.C.
(III) Case No. 39 of 2013 under Prevention of Domestic Violence Act, 2005.
(IV) Case No. 116 of 2013 U/S. 406 IPC and 3/4 of Dowry Prohibition Act.
(V) Case No. 1393 of 2013 under Section 323, 504, 506, 379 IPC.
(VI) Case Crime No. 116 of 2013 under Section 504, 506 IPC
(VII) Matrimonial Suit No. 712 of 2013 under Section 9 of Hindu Marriage Act.
4. The petitioner filed an application under Section 482 Cr.P.C. (registered as Criminal Misc. Application U/S 482 Cr.P.C. No. 425 of 2013) for quashing, entire proceeding of Criminal Case No. 721 of 2012, under Section 498-A, 323, 504, 506 IPC and 3/4 of Dowry Prohibition Act, PS Shahpur, district Gorakhpur. This Court vide order dated 18.01.2013 referred the dispute to Mediation and Conciliation Center., Allahabad. The parties settled their dispute before Mediator, who submitted report dated 11.09.2013. Under the settlement the petitioner had to pay Rs. 18,00,000/- as one time permanent alimony to the respondent and permit her to take ornament from bank locker. After compliance of this condition, the respondents agreed to withdraw all the complaints and suit filed by her. Divorce Suit No. 321 of 2011 has to be decreed. When the case was listed before this Court on 09.09.2014, the petitioner took time for payment of aforesaid amount as such 09.10.2014 was fixed before this Court. On 09.10.2014, the petitioner gave two bank drafts of Rs. 18,00,000/- in favour of the respondents in Court. The case was adjourned for 10.10.2014 in order to enable the parties to file written compromise. On 10.10.2014, the parties filed joint affidavit in the shape of compromise, incorporating aforementioned terms. Both the parties appeared before the Court on 10.10.2004 and filed joint affidavit in shape of compromise. Two bank drafts of Rs. 18,00,000/- was handed over to the respondent by the Court. Criminal Misc. Application U/S 482 Cr.P.C. No. 425 of 2013 was allowed and Criminal Case No. 721 of 2012 was quashed by order dated 10.10.2014.
5. The petitioner filed an application (18-C) dated 22.10.2014, before Principal Judge Family Court, for decreeing Divorce Suit No. 321 of 2012 in view of the compromise dated 10.10.2014, the aforesaid. The respondent filed an application before this Court for recalling order dated 10.10.2014. When application (18-C) came for hearing before Principal Judge Family Court, the respondent raised an objection that as she had filed an application for recalling order dated 10.10.2014 as such disposal of application (18-C) be postponed. On which Principal Judge Family Court did hear the application (18-C) on 07.01.2015. This Court by order dated 24.07.2015 rejected the recall application filed by the respondent for recalling the order dated 10.10.2014.
6. Then the petitioner filed another application (28-C) dated 30.07.2015, before Principal Judge Family Court, for decreeing Divorce Suit No. 321 of 2012 in view of the compromise dated 10.10.2014, the aforesaid, stating therein that recall application filed by the respondent has been rejected. By the impugned order dated 08.10.2015, disposal of this application was deferred holding that divorce on compromise can only be granted according to provisions of Section 13-B and not in proceeding under Section 13 of the Act. The petitioner filed an appeal (registered as First Appeal No. 596 of 2015) under Section 19 of Family Court Act, 1984, against aforesaid order which was dismissed by order dated 18.11.2015 on the ground that the order dated 08.10.2015 was an interlocutory order and the appeal was not maintainable. Hence, this petition has been filed.
7. The counsel for the petitioner submitted that Section 28 of Special Marriage Act, 1954 provides for mutual divorce. Legislature thought it proper to provide more easy procedure of divorce to Hindus also. By Act No. 68 of 1976, Section 13-B was added under of the Act which provided divorce by mutual consent. Thereafter, Family Court Act, 1984 was enacted. Section 9 of Act, 1984 castes a statutory duty upon Family Courts to persuade the parties to settle their dispute in respect of the subject-matter of the suit. By virtue of Section 10 of the Act, 1984, entire provisions of Code of Civil Procedure, 1908 have been applied to the proceeding before Family Court. Thus provisions of Order 23 Rule 3 C.P.C. is applicable in the proceeding before Family Court. A combined reading of provisions of Section 9 and 10 of the Act, 1984 makes it clear that Family Court at first instance will persuade the parties to settle their dispute in respect of the subject-matter of the suit and if such settlement is arrived then they can file a compromise before Family Court in the suit and suit can be decided in terms of compromise. The suit for divorce under Section 13 of the Act, 1955 is not an exception to the application to Section 9 and 10 of the Act, 1984. As such suit for divorce can also be decided in terms of compromise. Phrase “Subject to the provisions of this Act” used under Section 13-B means in accordance with the provisions of Section 23 of the Act. The compromise operates as estoppel against the parties to it as held by Supreme Court in Nagubai Ammal Vs. B. Shama Rao, AIR 1956 SC 593. The compromise dated 10.10.2014 was duly signed by the parties and verified by this Court in presence of the parties. It is a lawful compromise and has been acted upon in part. The respondent took Rs. 18,00,000/- and ornaments from locker as agreed under this compromise. She had taken benefit of compromise. It is an estoppel by deed as well as estoppel by record. She is now estopped from raising objection that suit for divorce cannot be decreed in terms of compromise, as held by Supreme Court in S. Shanmugam Pillai Vs. K. Shanmugam Pillai, AIR 1972 SC 2059. This Court in Jodhey Vs. State AIR 1952 SC 788 held that High Court has unlimited judicial power. This compromise can be treated as “family settlement”. It acknowledges right and liability of the parties and can be enforced under the law as held by Supreme Court in Sahu Madho Das Vs. Mukund Ram, AIR 1955 SC 481. This Court in Jokhan Vs. Ram Deo, AIR 1967 All 212 has held that the compromise cannot be ignored only for the reason that compromise was entered before the Court which has no jurisdiction. Supreme Court in B.C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749, held that power conferred under Article 142 of the Constitution is also available to High Court for doing compete justice between the parties. Family Court placed reliance upon the judgment of Supreme Court in Sanjeeta Das Vs. Tapan Kumar Mohanti, (2010) 10 SCC 222. This judgment has not taken any notice of Section 9 and 10 of Family Court Act, 1984 as such it is per-incuriam and does not lay binding precedent as held by Supreme Court in State of U.P. Vs. Synthetins and Chemicals Ltd. (1991) 4 SCC 139. Otherwise also in this case, there was no clause for divorce in the compromise. This Court in Indrawal Vs. Radhey Ram, AIR 1981 All 151 and Supreme Court in Dr. (Mrs) Leena Roy Vs. Dr. Subrato Roy, AIR 1991 SC 92 and Raj Kumar Rana Vs. Rita Rathore, AIR 2015 SC 2668, decreed divorce petition under Section 13 of the Act, on compromise. Impugned order is illegal and liable to be set aside and Family Court is liable to be directed to decree the divorce suit in view of compromise dated 10.10.2014.
8. I have considered the arguments of counsel for the parties and examined the record. Old Hindu law did not allow divorce amongst Hindus of upper communities. In communities of lower strata of Hindus, custom relating to divorce was prevalent. After independence, Special Marriage Act, 1954 was enacted, which is applied to persons whose marriage was performed and registered under that Act for divorce. Section 27 provides for divorce and Section 28 provides for mutual divorce under this Act. Thereafter, Hindu Marriage Act, 1955 was enacted and provisions relating to divorce was provided under Section 13 for all the Hindus and its sub-sect. Thereafter, legislature thought to provide more easy procedure of divorce to Hindus. By Act No. 68 of 1976, Section 13-B was added under of the Act which provided divorce by mutual consent. Supreme Court in Gurbux Singh v. Harminder Kaur, (2010) 14 SCC 301, held that once the marriage has been solemnized among Hindus then it cannot be dissolved, except on the grounds enumerated in Section 13, of Hindu Marriage Act, 1955 or according to Section 13-B. Section 13-B of Hindu Marriage Act, 1955 is quoted below:-
13-B. Divorce by mutual consent.–(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, 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 they 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.]

9. Aim and object of enactment of Family Court Act, 1984 was to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. Under Section 7 of this Act, jurisdiction of Family Court was conferred to exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation to Section 7 of the Act. Thus Family Court has to exercise same jurisdiction, which is exercisable by the Court under the law. Thus it is clear that if a petition is filed under the provisions of Hindu Marriage Act, 1955, then Family Court will exercise jurisdiction that Act only. So far as application of Civil Procedure Code, 1908 is concerned, procedure provided under it has to be followed for exercising jurisdiction Hindu Marriage Act, 1955. In case of contradiction, provisions of Hindu Marriage Act, 1955 would have overriding effect. The counsel for the petitioner relied upon Section 9 and 10, of Family Court Act, 1984 which are quoted below:-
9. Duty of Family Court to make efforts for settlement.– (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit of proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings.
10. Procedure generally.–(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) (2 of 1974), before a Family Court and for the purposes of the said provisions of the Code, Family Court shall be deemed to be a civil court and shall have all the powers of such court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made there under, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one Party and denied by the other.
20. Act to have overriding effect.–The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

10. A bare reading of the aforesaid provisions shows that although Act, 1984 has an overriding effect but Section 7 of the Act provides for Family Court to exercise jurisdiction conferred under the Act, in which petitions enumerated in Explanation to Section 7 have been filed. For trial of suit for divorce under Section 13 of Hindu Marriage Act, 1955, Family Court has to follow the procedure of C.P.C. but decree of divorce can be granted only on the grounds enumerated under Section 13 of the Act. Hindu Marriage Act, 1955 provides two modes for divorce namely (i) on the grounds mentioned under Section 13 of the Act or (ii) on mutual consent for which a petition has to be presented by both the parties to the marriage and after interregnum period of six they again attorn their consent before the Court. It is well settled principle that when the statute provides a particular procedure for doing an act then the act has to be done according to that procedure and not at all. In this respect judgment of Supreme Court in K.S. Saini Vs. H.C. Delhi, (2012) 4 SCC 307 may be referred.
11. Issue as the whether consent given at the initial stage for divorce can be withdrawn at the later stage came for consideration before Supreme Court in Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, in which it has been held that from the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.
Sub-section (2) requires the court to hear the parties which means both the parties. If one of the parties at that stage says that “I have withdrawn my consent”, or “I am not a willing party to the divorce”, the court cannot pass a decree of divorce by mutual consent. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. “The consent must continue to decree nisi and must be valid subsisting consent when the case is heard”.

12. Again a Bench of three Hon’ble Judges of Supreme Court in Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338, held that we are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the said Act can be passed by the court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its fact situation, discussed above.
In our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. Same view has been taken in Sanjeeta Das v. Tapan Kumar Mohanty, (2010) 10 SCC 222, in which it has been held that more importantly, the consent of the parties is of no relevance in the matter. No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties dehors the grounds enumerated under Section 13 of the Act, unless of course the consenting parties proceed under Section 13-B of the Act.
13. Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, held that the language employed in Section 13-B(2) of the Act is clear. The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.
14 In Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, it has also been held that the power under Article 142 of the Constitution is plenipotentiary. However, it is an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore, extraordinary care and caution has to be observed while exercising this jurisdiction. Even if the chances are infinitesimal for the marriage to survive, it is not for this Court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably.
15. In the present case, no petition under Section 13-B of the Act has been filed. The petitioner wants for a decree in divorce suit under Section 13 of the Act, in view of compromise dated 10.10.2014, as this compromise would operate as estoppel against the respondents. Rule of estoppel is a rule of evidence. There can be no estoppel against statute. Supreme Court in State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545, held that it is now well known, the rule of estoppel has no application where contention as regards a constitutional provision or a statute is raised.. Section 13-B itself gives liberty for second thought to the parties. The consent must continue during the interregnum period and after this period the parties should again confirm their consent before the Court. As held by Supreme Court in various cases cited above, the parties can withdraw their consent during this period. As such Rule of estoppel has no application in a petition under Section 13-B of the Act.
16. In view of aforesaid discussions, this petition has no merit and is dismissed.
Order Date :- 8.4.2016
Jaideep/-

waived off waiting-cooling period of six months in mutual consent divorce by supreme court.

. The respondent is scheduled to leave the country by 29.04.2016 and it is not possible for her to return to India within six months or in the near future, it is submitted.

mutual divorce

Having regard to the educational background of the appellant as well as the respondent, and the entire facts and circumstances, we feel that it is a very peculiar situation where this Court should invoke its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties. We do so.

In the above circumstances, HMA No.272 of 2016 filed on 29.03.2016 before the Ld. Principal Judge, Family Courts, Tiz Hazari District Courts, Delhi under Section 13-B(1) of the Hindu Marriage Act, 1955 is allowed. The statutory period of six months is waived and the marriage between the parties is dissolved.


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 4490 OF 2016

(Arising out of SLP (c) No.12161 of 2016)

 

NIKHIL KUMAR                                       Appellant

VERSUS

RUPALI KUMAR                                          Respondent

J U D G M E N T

KURIAN,J.

 

  1. Leave granted.
  1. The appellant and respondent have filed the petition under Section 13- B(1) of the Hindu Marriage Act, 1955 before the Family Court (Principal Judge, Family Court, Tiz Hazari District Courts), Delhi. The parties were married on 07.02.2011 according to the customary rights. It is submitted that they have not been able to workout their marriage as husband and wife since day one. For the last around five years, most of the time they have been living separately and their marriage reached a breaking point more than a year back. Both the parties, after giving serious thought on the entire consequences of their decision, have taken a conscious decision to part and accordingly they have filed a petition before the Family Court for divorce on mutual consent on 29.03.2016. The Family Court granted the First Motion on 01.04.2016 and now, the matter is posted in the month of October, 2016.
  1. The respondent has made a travel plan to move to New York on 29.04.2016 seeking a job and resettlement in life, after a long period of traumatic experiences of her married life as stated in the affidavit.
  1. In the above circumstances, the appellant has filed the present appeal praying for waving the six months’ waiting period required under Section 13-B(2) of the Hindu Marriage Act, 1955, invoking our jurisdiction under Article 136 read with Article 142 of the Constitution of India.
  1. The respondent has appeared in person. She was directed to file an affidavit before this Court. The respondent in the affidavit has endorsed the submission that they were not happy ever since their marriage in 2011. It is stated that with the set-back of a broken marriage, the respondent needs a change in environment and thus, she has proposed to move to New York and it would be difficult for her to get back to India after six months or even in the near future. It is further stated that both of them have realized the consequences of their decision and they have taken the decision out of their free will and without any undue influence or coercion.
  2. Both the parties have appeared before the Court. The appellant was born in the year 1984, and is graduate in commerce. He is working as senior manager in a private firm. The respondent was born in the year 1982 and she also is a graduate.
  3. The respondent is scheduled to leave the country by 29.04.2016 and it is not possible for her to return to India within six months or in the near future, it is submitted.
  4. Having regard to the educational background of the appellant as well as the respondent, and the entire facts and circumstances, we feel that it is a very peculiar situation where this Court should invoke its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties. We do so.
  5. In the above circumstances, HMA No.272 of 2016 filed on 29.03.2016 before the Ld. Principal Judge, Family Courts, Tiz Hazari District Courts, Delhi under Section 13-B(1) of the Hindu Marriage Act, 1955 is allowed. The statutory period of six months is waived and the marriage between the parties is dissolved.
  6. The Registry to communicate a copy of this judgment to the Family Court forthwith.
  7. The appeal is allowed as above. No order as to costs.

…………………..J (KURIAN JOSEPH) …………………..J

(ROHINTON FALI NARIMAN)

NEW DELHI APRIL 27, 2016

HOW TO GET A DIVORCE IN INDIA

29_12_2013-divorce29_s

India has different divorce laws for different religions. Almost all the religions has their own divorce laws in India which are used among themselves. There are separate laws for inter-cast or inter-religion marriages. Divorce laws in India for Hindus is described in Hindu Marriage Act, 1955. Hindu Marriage Act is also used for Sikhs, Buddhists and Jains as they don’t have their own separate marriage and divorce laws. Here is the list of various divorce laws in India for various religions:

Hindu (including Sikhs, Jains and Buddists) : Hindu Marriage Act, 1955

Muslims : Dissolution of Muslim Marriages Act, 1939

Christians : Indian Divorce Act, 1869

Parsis : The Parsi Marriage and Divorce Act, 1936

Inter-Cast of Inter-Religion : Special Marriage Act, 1954

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-fulfillment of mandatory conditions.. The Indian Divorce act requires confirmation by the High Court to come into effect.

Grounds for Divorce in India

In India divorce is granted mainly on 4 different grounds.

  1. Adultery
  2. Desertion
  3. Cruelty
  4. Impotency
  5. Chronic Diseases

 

Contested Divorce under Hindu Marriage Act 1955

Divorce. —

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

16 [(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]

16 [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

16 [(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

17 [(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation .—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has 18 [***] been suffering from a virulent and incurable form of leprosy; or

(v) has 18 [***] been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 19 [***] 20 [ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

Mutual Consent Divorce under Hindu Marriage Act.

mutual divorce

Divorce by Mutual Consent

Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.

Sec.13-B of Hindu Marriage Act 1955- Divorce by mutual consent.-(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, 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 they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made 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 mean time, 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.

Procedure for Filing for Divorce

The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses.

ANNULMENT OF MARRIAGE UNDER HINDU MARRIAGE ACT:

marriage

There are two ways to legally end a marriage – annulment and divorce. An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased – legally, it declares that the marriage never technically existed and was never valid. A divorce, or legal dissolution of a marriage, is the ending of a valid marriage between a man and a woman returning both parties to single status with the ability to remarry. While each individual state has its own laws regarding the grounds for an annulment or for a divorce, certain requirements apply nationwide.

An annulment case can be initiated by either the husband or the wife in the marriage. The party initiating the annulment must prove that he or she has the grounds to do so and if it can be proven, the marriage will be considered null and void by the court. The following is a list of common grounds for annulment and a short explanation of each point:

Bigamy – either party was already married to another person at the time of the marriage
Forced Consent – one of the spouses was forced or threatened into marriage and only entered into it under duress.

Fraud – one of the spouses agreed to the marriage based on the lies or misrepresentation of the other.

Marriage Prohibited By Law – Marriage between parties that based on their familial relationship is considered incestuous.

Mental Illness – either spouse was mentally ill or emotionally disturbed at the time of the marriage.

Mental Incapacity – either spouse was under the influence of alcohol or drugs at the time of the marriage and was unable to make informed consent.

Inability to Consummate Marriage –
 either spouse was physically incapable of having sexual relations or impotent during the marriage.

Underage Marriage – either spouse was too young to enter into marriage without parental consent or court approval.

Depending on your state of residence, a divorce can be much more complicated than an annulment. Like annulment cases, each state has its own set of laws regarding divorce. In most divorce cases, marital assets are divided and debts are settled. If the marriage has produced children, a divorce proceeding determines custody of the children, visitation rights and spousal and child support issues.

Each state can have either a “no-fault” divorce or a “fault” divorce. A no-fault divorce allows the dissolution of a legal marriage with neither spouse being named the “guilty party” or the cause for the marital break-up.

Many states now offer the “no-fault” divorce option, a dissolution of a legal marriage in which neither party accepts blame for the marital break-up. In the absence of a “guilty party,” some states require a waiting period of a legal separation before a no-fault divorce can take place. For this reason, in addition to cases where one spouse wishes to assign blame, some parties seek to expedite the legal process by pursuing a traditional, “fault” divorce.

A “fault” divorce is only granted when one spouse can prove adequate grounds. Like an annulment, these grounds vary from state to state, however, there are some overarching commonalities. These guidelines often include addition to drugs, alcohol or gambling, incurable mental illness, and conviction of a crime. The major grounds for divorce that apply in every state are listed below:
Adultery – one or both spouses engages in extramarital relationships with others during the marriage.

Desertion – one spouse abandons the other, physically and emotionally, for a lengthy period of time.

Physical/Emotional Abuse – one spouse subjects the other to physical or violent attacks or emotional or psychological abuse such as abusive language, and threats of physical violence.

Your state law and particular situation will determine whether or not your annulment or divorce will be simple or complex. Familiarizing yourself with the laws for your particular state is the best way to learn what your rights are in the case of a marital dissolution.

Nullity of marriage and divorce:- Void marriages Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5. 12. Voidable.

Marriages.-(1) Any marriage solemnized, whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotency of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

 

Divorce-Family Law Lawyers in Gurgaon

Divorce Lawyers in Gurgaon,India

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