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Home Area of Practice Indian Marriage Laws
BRIEF NOTES ON...........
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MARRIAGE AND DIVORCE
India being a cosmopolitan country tolerates personal laws of its citizen. As a result each citizen of India is entitled to have his own personal laws inter alias in the matter of marriage and Divorce. Hindus are governed by Hindu Marriage Act, 1955. Muslims are governed by their personal laws under which "Nikah" (i.e. marriage) is a contract and may be permanent or temporary and permits a man to have four wives if he treats all of them equally. To have a valid "Nikah" under the Muslim Law, presence of a Qazi (Priest) is not necessary. Merely a proposal in the presence and hearing of two sane males or one sane male and two sane female adults, all Muslims and acceptance of the said proposals at the same time constitute a valid “Nikah”. A husband can divorce his wife without any reasons merely by pronouncing three times the word "Talak". However for a Muslim woman to obtain divorce certain conditions are necessary.
- For Parsees there is a Parsee Marriage & Divorce Act, 1939 that governs the provisions of their marriage and law.
- For Indian Christian there is an Indian Christian Marriage Act 1889. Persons of any religion who get married under the Special Marriage Act, 1954 are governed by the said act.
There are certain penal provisions also in the Criminal Procedure Code providing for the maintenance of the wife and punishment for bigamy.
Marriage Divorce and Maintenance Laws of:
1.HINDUS
2.MUSLIMS
3.CHRISTIANS
4.PARSIS AND
5. FOREIGNERS
I. THE SPECIAL MARRIAGE ACT, 1954 (General Marriage Law): -
1.
It extends to the whole of India except the State of Jammu and Kashmir and is applicable also citizens of India domiciled in the terrorists to whom this Act extends.
2. The Special Marriage Act, 1954 provides for a special form of marriage in certain cases and for the registration of such and certain other marriages and also for divorce available to all citizens of India married under the Act. A marriage between any two persons may be solemnized after giving notice thereof under the Act. It may be solemnized in any form, which the parties may choose to adopt. After the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof and the parties to the marriage and three witnesses shall sign the certificate of marriage. There is also a provision for registration of marriage by Marriage Officer any marriage celebrated whether before or after the commencement of the Act. The effect of registration of Marriage is that all children born after the date of ceremony of marriage shall in all respects be deemed to be the legitimate children of their parents. The marriage of any member of an undivided family belonging to Hindu, Buddhist, Sikh or Jain religion, solemnized under this Act shall be deemed to affect his severance form the family. The Act provides for remedies like restitution of conjugal rights, judicial separation, nullity of marriage and divorce on the grounds specified to the respective sections 22 to 24. There is provision made in the Act for the grant of alimony pendente-lite and permanent alimony to the wife.
SOLEMINIZATION OF SPECIAL MARRIAGES
Conditions relating to solemnization of special marriages:
A marriage between any two persons may be solemnized under this act, if at the time of the marriage the following conditions are fulfilled, namely: -
- Neither party has a spouse living:
- Neither party -
- is capable of giving the valid consent to it in consequence of unsoundness of mind; or
- though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children: or
- has been subject to recurrent attacks of in sanity
- the mail has completed age of twenty one years and female the age of eighteen years;
- The parties are not within the degrees of prohibited relationship:
- Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degree of prohibited relationship; and
- Where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizen of India domiciled in the territories to which this Act extends}.
SECTIONS AND GROUNDS FOR MATRIMONIAL RELIEFS UNDER SPECIAL MARRIAGE ACT, 1954
NATAURE OF REMEDIES
| NATURE OF REMEDY |
RELEVANT PROVISIONS UNDER THE SPECIAL MARRIAGE ACT, 1954 |
| 1. Restitution of Conjugal rights |
Section 22
Withdrawal from the Society of other spouse without reasonable excuse |
2. Judicial Separation |
Section 23
On all the grounds of divorce U/s 27 (1) and 27 (1-A) (See the grounds under the divorce column bellow) |
3. Nullity & Annulment |
Section 24 and 25
- Has a spouse living at the time of marriage.
- Unsoundness of mind.
- Mental disorder.
- Insanity.
- Male not completed the age of 21 years. Female not completed the age of 18 years.
- Parties are within the degrees of prohibited relationship.
- Non consummation of marriage.
- Pregnant at the time of the marriage by some other person other than husband.
- Consent was obtained by coercion or fraud.
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4. Divorce by Mutual consent |
Section 28
Parties living separately for one year and upwards and they have not been able to the together and they mutually agreed to dissolve the marriage. |
5. Divorce |
Section 27
- Adultery (S 27(1) (a)
- Desertion for a period of 2 years (S27 (1)(b) without reasonable cause
- Undergoing a sentence of imprisonment for 7 years or more (S27 (1)(c)
- Cruelty (S27 (1)(d)
- Unsound mind and mental disorder (S 27(1) (e)
- Suffering from venereal disease (S 27(1) (f)
- Suffering from leprosy (S 27(1) (g)
- Not heard of being living for 7 years (S 27(1) (h)
Petition by wife only
- Husband being guilty of rape, sodomy or bestiality (S 27 (1-A) (i)
- Wife receiving maintenance when cohabitation not resumed for one year or upwards (S 27(1-A) (ii)
- No resumption of cohabitation for one year or upwards after the decree of judicial separations (S 27(2) (i)
- No restitution of conjugal rights for one year or more after the decree of restitution of conjugal rights (S 27(2) (ii)
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