Matrimonial litigation is hardest thing to do when family gets apart. But while keeping in mind of our client’s wishes, we have done divorces, taken maintenance, child custody, abuses, domestic violence etc.
Usually, there are five broad sets of family laws in India – Hindu law, which governs all Hindus as also Buddhists, Jains and Sikhs; Muslim law for the Muslims; Christian law for the Christians; Parsi law for the Parsi’s and a secular law i.e. the Special Marriage Act. The religion-based laws are derived from religious texts. These laws have also been amended from time to time by parliamentary legislation.
Hindu law has been substantially altered on account of extensive legislation enacted post-independence. Christian and Parsee laws have been changed more recently in the last few decades through legislation. Muslim law has been the least modified and hence retains most of the text and interpretation of the times when its religious texts were written.
A Hindu marriage is treated as a sacrament and not a contract. For a Hindu marriage to have legal validity, it must mandatorily be registered under the Hindu Marriage Act. There are some other conditions that must be fulfilled for a Hindu marriage for being legally valid. If a marriage is not legally valid, or contravenes certain grave aspects of the law which are specified in the Act, the marriage is automatically null and void and annulment can be granted to it. There are also some marriages that are voidable at the option of either party to the marriage.
- The bridegroom must be at least 21 years of age, and the bride must have attained the age of 18 years. However, if the couple or either the boy or girl have not attained the minimum required age for marriage and yet get married, it is not void. The marriage is voidable at the option of either party.
- Another aspect of a valid marriage is that close family relations in the ‘uterine’ or consanguine lineage are said to be within degrees of prohibited relationship and the match should not fall within the prohibited degrees.
Under Hindu law, the ‘degrees of prohibited relationship’ refers to the proximity of the two individuals through their lineal ascendants and the law states that a match may not be made within those degrees.
Akash and Mira are consenting adults who decide to get married. They have a simple ceremony and get registered at the Marriage Registrar’s office. However, it is found that through a long-lost relative, Mira and Akash were previously related as 4th cousins. (They shared a set of great-great-great grandparents) Their marriage will not be valid under the Hindu Marriage Act.
- It is important that neither party has a spouse living at the time of marriage, as bigamy and polygamy are prohibited and are treated as offences under Indian criminal law.
- Also, it is necessary that both parties be of sound mind and capable of giving consent, and they should not be unfit for marriage and procreation of children. The law adds that neither party should be subject to recurrent attacks of insanity and epilepsy.
The law provides that any marriage that violates these conditions is voidable and may be nullified at the desire of the affected party.
Kishore and Neha were married in the summer of 1994. While they cohabited, Kishore observed that Neha displayed symptoms of mental illness, as sometime she spouted random words and also acquired a glazed look in her eyes. He realized that her insanity resulted in a voidable marriage and took another wife.
He has not committed bigamy. An annulment is a retroactive provision. A nullified marriage is considered never to have existed at all. It, unlike divorce, declares the marriage void ab initio.
There are two events that confirm the completion of the marriage, one is the solemnization of the marriage that takes place during the customary rites and ceremonies practiced by the parties and the other is the registration of the marriage.
Till recently it was not mandatory to register marriages, but the plight of deserted women seeking maintenance and custody of their children, without proof of a valid marriage, prompted the Supreme Court to direct the Centre and states to amend the legislations accordingly. Prevention of child marriage, bigamy and ease of litigation are other positive outcomes from the registration of marriage.
Where rituals include the Saptapadi (seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage is said to be solemnized once the seventh step is taken.
Laws Governing Matrimonial Disputes
The disputes that take place between the married couple, relating to issues that arise out of the practices and customs of marriage, are known as matrimonial disputes. These issues include withdrawal from the other’s society without reasonable cause, mental illness at the time of marriage, desertion of the spouse for a continuous period of 2 years etc., which result in different remedies, such as restitution of conjugal rights, annulment or divorce.
There are many types of reliefs available to couples suffering from matrimonial problems, which include restitution of conjugal rights, judicial separation etc.
Restitution of Conjugal Rights
If either spouse has, without reasonable cause, withdrawn from the society of the other, the aggrieved spouse can approach the court for restitution of conjugal rights. This enforces the rights that derive from the wedded state of the couple. The court would expect the explanation of the defence of ‘reasonable cause’ from the defendant.
When either spouse makes an application to nullify the marriage, certain grounds have to exist. It is a procedure by which a marriage is nullified in that it is declared to have never existed at all. It is usually difficult to prove and not many cases have granted annulment as a remedy. However, it covers a range of situations, such as:
- Either party was already married to someone at the time of marriage
- The parties are not Sapindas of each other
- The parties are not within the degrees of prohibited relationship
Before the codification of Hindu marriage laws, the position on dissolution of marriages was very rigid and did not allow dissolution except under certain specified grounds. However, after independence, the law provided for a few grounds on which a marriage could be legally dissolved. The procedure for doing so is known as a divorce.
A case for Judicial Separation would look into grounds of a similar nature to that of a case for divorce. But legal separation only entails physical separation for some time and does not change the married status of the parties. This is not the case with a divorce, where if a couple gets divorced, and intend to get back together, they must remarry.
Divorce is the procedure for dissolution of the marriage. If a couple or one of the parties feels that their marriage is over for reasons of desertion, adultery, bigamy or others as specified in the Act, they may approach the court to grant them a divorce.
A divorce is a momentous proceeding and it results in many upheavals in the married life of the parties. Consequent to a divorce, there are other issues such as custody of the children and maintenance to the dependents, such as the wife and children.
Maintenance in Hindu Law
Maintenance is an ancillary relief – in that it does not arise independently, but will be granted along with and as a consequence of relief such as divorce, custody, redressal of domestic violence.
Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses her right if she deviates from the path of chastity. Her right to maintenance is provided for in the Hindu Adoption and Maintenance Act, 1956.
In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. What is ‘justifiable’ is determined by reasons spelt out in the Act.
Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife, if the other spouse has no independent income for his or her support. The same principle will govern payment of permanent maintenance.
The Parsi Marriage and Divorce Act, 1936 recognizes the right of the wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband’s net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, own assets of wife and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance.
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