Aakash Law FAQs on Family Law

FAQs on Family Law

What are the provisions regarding grant of interim maintenance?

Where it appears to Court that the wife or the husband, as the case may be, has no independent income sufficient for his/her support and the necessary expenses of the proceedings, it may grant interim maintenance to the applicant.

When can a person re-marry after passing of decree of divorce?

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal
against the decree or if there is such a right of appeal the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall belawful for either party to marry again.

What are the grounds on which divorce can be obtained under Hindu Marriage Act?

A petition for divorce may be filed after one year of the marriage. In case of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, a petition may be allowed to be presented before one year.

Marriage may be dissolve by a decree of divorce on the following grounds:

1. Respondent had voluntary sexual intercourse with any person other than the spouse after the marriage.
2. Respondent has treated the petitioner with cruelty.
3. Respondent has deserted the petitioner for a continuous period of not less than two years.
4. Respondent ceased to be a Hindu.
5. Respondent has been incurably of unsound mind.
6. Respondent has been suffering from virulent and incurable form of leprosy.
7. Respondent has been suffering from venereal disease in a communicable form.
8. Respondent has renounced the world by entering any religious order.
9. Respondent not heard of as being alive for a period of seven years or more. Either party may obtain divorce:
10. On the ground that there was no resumption of cohabitation for period of one year or more after decree of judicial separation
11. There has been no restitution of conjugal rights for a period of one year or more after decree for restitution of conjugal rights.
Wife may also seek divorce on the following ground:
12. In case of marriage before 1955 act, the husband had married again before such commencement or that any other wife of the husband was alive at the time of solemnization of marriage of petitioner.
13. The husband, after marriage, has been guilty of rape, sodomy or bestiality.
14. Co-habitation not resumed for one year or more since passing of decree/order for maintenance against husband under Section 125 Cr.P.C or under Hindu Adoptions & Maintenance Act, 1956.
15. Marriage was solemnized when petitioner was below 15 years of age and she has repudiated the marriage, after attaining the age of 15 years, and before attaining the age of 18 years. Divorce under customary law is recognized under Section 29 of Hindu Marriage Act. Such custom and usage should have been continuously observed for a long time, having obtained the force of law among Hindus in any local area, Tribe, Community, groups or family. Rule should be certain and not opposed to public policy.

What rights does a Hindu child, who is born to persons whose marriage is declared void or voidable have under the Hindu Marriage Act?

Such a child is considered legitimate regardless of the status of the parent’s marriage, if the marriage was performed according to Hindu rites under the Hindu Marriage Act, 1955 or was a civil marriage under the Special Marriage Act, 1954. Such a child may inherit the property of his parents. However, he/she does not acquire rights in relation to joint family or ancestral property.

If a Hindu wishes to marry a person who is not a Hindu, under what law can they do so?

If the couple wishes to have a religious marriage governed by Hindu law, then the non-Hindu partner must convert to Hinduism. If the non-Hindu partner is a Christian then it is also possible for the couple to marry according to Christian rites under the Indian Christian Marriage Act, 1872. Christian Personal Law then governs the marriage. The third option, in some ways the simplest, is to have a civil marriage under the Special Marriage Act which facilitates marriages between any two people, including members of any two religious communities. It does not involve conversion and also permits people to avoid various complications that arise from marriages under various religion-based personal laws.

Can a man marry another women during the life time of the first wife?

Marrying again during the lifetime of one’s wife or husband is known as bigamy. It is a criminal offence, punishable with imprisonment and fine. A bigamous marriage is void, a complete nullity If a woman has prima facie evidence that she is lawfully married to a man who is about to or has remarried, she can register a criminal complaint and the police are expected to stop him from getting remarried. If a wife learns that her husband is going to marry again she can get an injunction from the court forbidding the marriage before it occurs. After it has taken place, a wife can ask the court for a “declaration” that the second or bigamous marriage is null and void. Proving bigamy, however, is not easy. The complainant wife has to prove that both the marriages, her own as well as the second bigamous one, have been performed properly according to the appropriate ceremonies. Most prosecutions for bigamy fail because the complainant does not have the proof of the bigamous marriage. The accused husband can usually successfully claim against all efforts to prove the contrary that essential parts of the ceremony were never carried out and escape punishment.

Is registration of marriage compulsory in India ?

Should marriages be registered? How is it done?

Yes. Since 2014, it is mandatory to register your marriage under Hindu Marriage Act or Special Marriage Act as per govt. of India.

If a woman is being forced to marry against her will, what remedy does she have?

If a women is being forced to marry against her will she can seek the help of the police to help her stop her marriage . Alternatively, sympathetic teachers or respected social workers in the area could also be approached for help. However, these social interventions are outside the realm of legal rights and in extreme cases where social pressure does not work, police help may be sought.

If a woman has been forced into a marriage, is such a marriage void or voidable? What if a fraud has been played on her?

Such marriages are voidable. If the consent of the complaining party has been obtained by force or by fraud relating to the nature of the ceremony performed or to any significant fact or circumstance concerning the opposing party, the marriage can be voided. However, a petition for annulment in such a case must be presented within one year after the force ceased to operate or the fraud has been discovered. Most important of all, the petitioner or complaining party should not have lived willingly with the other after the end of the force or after discovering the fraud. A marriage is also voidable if it can be proven that the wife was pregnant at the time of marriage by another man. In this situation the husband must file his petition within one year of the date of the marriage.

What marriages are void and what marriages are voidable?

Void Marriages Voidable Marriages Where it contravenes any one of the following conditions:

a) Either party has a spouse living at the time of marriage.
b) Parties are within prohibited relationship.
c) Parties are sapindas of each other

Are customary marriages such as Kreva marriage valid?

The Hindu Marriage can be solemnized in accordance with customary rights and ceremonies of either party thereto. So, customary marriages such as Kreva marriages, where such customs are recognized can be a valid marriage if there is no violation of any other provision of the Act.

What is the result of a Hindu marriage solemnised without fulfillment of the necessary conditions?

In three situations a marriage is said to be void, which means that it is invalid, as if it never took place:

• If one of the parties to the marriage has a living husband or wife; or
• If the parties are within the prohibited degrees of relationship; or
• If they are sapindas of each other.

If the conditions regarding valid consent have not been fulfilled, the resulting marriage is void. That means that the party wishing to challenge it can approach the court for a decree of nullity. Once such a decree is passed, the marriage would have no legal force whatsoever. For example, if after the solemnization of the marriage it is found that the groom could not have given his valid consent because of the unsoundness of his mind, the woman can get the marriage nullified through the court. Naturally, the court must be satisfied with the proof of mental disorder and unsoundness of mind claim. If voidable marriages are not challenged in court, they remain valid for all legal purposes

What conditions do persons wishing to marry have to fulfill before a proper Hindu marriage can be solemnized?

• Neither bride nor groom should already be married or have a living husband or wife. A divorced person, a widow or widower is free to remarry;
• Both should have reached the minimum age for marriage: 18 years in case of the bride and 21 in case of the groom;
• Apart from being able to give their voluntary consent to the marriage, both must also be free of any mental disorder which could make them unfit for marriage;
• The bride and groom should not be within the “prohibited degrees of relationship” nor should they be “sapindas”1 of each other (these expressions are explained in detail in s.3 (f) and 3(g) of the Hindu Marriage Act). This rule does not apply if it can be established that a custom or usage is applicable to each permitting marriage between the two. Significantly, the rule does apply when the relationship is based on adoption.

Is it possible for Hindus to marry without undergoing Hindu marriage rituals and still remain Hindu for other aspects of the law?

Yes. Hindus can opt for a civil marriage, often incorrectly referred to as a “court marriage,” under the Special Marriage Act, 1954. Provisions in the Act govern civil marriages and require no religious ritual or ceremony of any kind. The necessary requirement is that the persons intending to marry inform the marriage officer of the district in which at least one of them lives. The marriage officer then posts the information on a public notice board and keeps it up for 30 days. During those 30 days, any person can object to the marriage on grounds such as the intended bride is under age or that she is too closely related to the bridegroom or that she has been married before. If no valid objections are received, the couple signs a declaration in the marriage office in the presence of three witnesses. The marriage officer then issues a certificate of marriage to the couple as proof of the marriage. The Special Marriage Act, in S.21-A clearly states that if a special or civil marriage takes place between two persons both of whom are Hindus, Buddhist, Sikh or Jain, such persons continue to be governed by other aspects of Hindu personal law, such as the law relating to succession.

What is a proper or valid Hindu marriage?

In India various communities have different customs and ceremonies. Hence, the law says that a marriage can be performed or “solemnised” according to the customary rituals and ceremonies of the community to which either the bride or the groom belongs. It is very important to understand that the rituals and ceremonies carried out must be recognised and accepted by the community concerned as being the proper ones for formalising a marriage. For example, the law makes it very clear that in a Hindu marriage, where the ceremony includes the saptpadi, the ritual of circling the sacred fire seven times, the ceremony becomes complete and the marriage binding when the seventh round is completed.

What should be minimum age of bride and bride-groom at the time of marriage?

Bride-18 years, Bride-groom-21 years.

What is meant when the law uses the term “Hindu”?

The term “Hindu” in post-independence Hindu law governing marriage, divorce, adoption, maintenance, guardianship and succession, describes not only persons who are Hindu by religion, but also those who are Sikh, Buddhist, and Jain. Roughly speaking, the term “Hindu” encompasses those Indians who are not Christian, Parsi, Muslim, or Jewish for the purposes of the law.