Mutual divorce
& divorce /
NRI divorce
Expertise
Void Triple / Instant Talaq
Muslim Womens’ Divorce
& Maintenance Rights
Expertise
Maintenance Rights
Under Various
Laws
Expertise
Does
Marriage
Counseling
work?
Court Marriage
Registration
India / Overseas
Expertise
Domestic Violence Act &
Child Custody
Expertise
Criminal Law / Bail Anticipatory Bail Cheque Bounce
Expertise
Divorce Proceeding Under The Hindu Marriage Act, 1955
What is Mutual Divorce?
Divorce by Mutual Consent or Mutual Divorce is when both husband and wife mutually agree that they cannot live together anymore and that the best solution being Divorce, they would present a Mutual Divorce petition jointly before the honorable court, without putting forth any allegations against each other.
Advantages of Mutual Divorce
Taking a mutual consent divorce removes unnecessary quarrels and saves a lot of time and monetary resources. With the ever-rising number of applications being filed for divorce, mutual consent divorce is one of the best-given options. It is the quickest form of Divorce and thus saves on a lot of money and even mental stress. Not only this, the parties have it in their own hands to decide sensitive issues such as child custody, maintenance and any other important issue. Thus, it is the easiest form of divorce and certainly less expensive and time taking as compared to contested divorce.
Divorce Proceeding Under The Hindu Marriage Act, 1955
Section 13B in The Hindu Marriage Act, 1955
[ 13B 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 solemnised 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 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised 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.]
(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.
Contested divorce
Contested divorces mean that one of several issues are required to be heard by a judge at trial level—this is more expensive, and the parties will have to pay for a lawyer’s time and preparation. In such a divorce the spouses are not able to agree on issues for instance child custody and division of marital assets. In such situations, the litigation process takes longer to conclude.[32] The judge controls the outcome of the case. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce settlement, which negotiate mutually acceptable resolution to conflicts. This principle in the United States is called ‘Alternative Dispute Resolution’ and has gained popularity.
Divorce
(also known as dissolution of marriage) is the process of terminating a marriage or marital union.[1] Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. Divorce laws vary considerably around the world,[1] but in most countries, divorce requires the sanction of a court or other authority in a legal process, which may involve issues of distribution of property,[2] child custody,[2] alimony (spousal support), child visitation / access, parenting time, child support, and division of debt. In most countries, monogamy is required by law, so divorce allows each former partner to marry another person.
Divorce is different from annulment, which declares the marriage null and void, with legal separation or de jure separation (a legal process by which a married couple may formalize a de facto separation while remaining legally married) or with de facto separation (a process where the spouses informally stop cohabiting). Reasons for divorce vary, from sexual incompatibility or lack of independence for one or both spouses to a personality clash to infidelity.[3]
In some jurisdictions, the courts will seldom apply principles of fault, but might willingly hold a party liable for a breach of a fiduciary duty to his or her spouse (for example, see Family Code Sections 720 and 1100 of the California Family Code). Grounds for divorce differs from state to state in the U.S. Some states have no-fault divorce; some states require a declaration of fault on the part of one partner or both; some states allow either method.[31]
In most jurisdictions, a divorce must be certified (or ordered by a Judge) by a court of law to come into effect. The terms of the divorce are usually determined by the courts, though they may take into account prenuptial agreements or post-nuptial agreements, or ratify terms that the spouses may have agreed to privately (this is not true in the United States, where agreements related to the marriage typically have to be rendered in writing to be enforceable). In the absence of agreement, a contested divorce may be stressful to the spouses.
In some other countries,[where?] when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non-judiciary administrative entity. The effect of a divorce is that both parties are free to marry again if a filing in an appellate court does not overturn the decision.
Divorce Proceeding Under The Hindu Marriage Act, 1955
Divorce
(1) Any marriage solemnized, 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–
1[(I) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(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
2[(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 subnormality 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]
3* * * * *
(v) has 3* * * been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) 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; 4***
5*** *
6[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.]
7[(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8[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 8[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,–
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, sincethe solemnization of the marriage, been guilty of rape, sodomy or 9[bestiality; or]
10[(iii) 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;
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation.This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]
STATE AMENDMENT
Uttar Pradesh.–
Amendment of section 13 of Act XXV of 1955.–In sub-section (1) of section 13 of the Hindu Marriage Act, 1955,–
(a) after clause (i) the following new cause shall be inserted and shall be deemed always to have been inserted;
“(i-a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party ;or”, and
(b) for clause (vii), the following clause shall be substituted and shall be deemed always to have been substituted;
“(viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and–
(a) a period of two years has elapsed since the passing of such decree, or
(b) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party; or”.
[Vide Uttar Pradesh Act XIII of 1962, s. 2]
Section 13A.
Alternate relief in divorce proceedings.
1[13A. Alternate relief in divorce proceedings.—In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.
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;]
Divorce Proceeding Under The Special Marriage Act, 1954
Divorce/Divorce by Mutual Consent Section
Section 27 Contested Divorce.―2
[(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―
3
[(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]
1. Subs. by Act 68 of 1976, s. 26, for section 26 (w.e.f. 27-5-1976).
2. Section 27 renumbered as sub-section (1) thereof by Act 29 of 1970, s. 3 (w.e.f. 12-8-1970).
3. Subs. by Act 68 of 1976, s. 27, for clauses (a) and (b).
(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);
1
* * * * *
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or
2
[(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]
3
* * * * *
(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; 4
* * *
5
[
6
* * * * *
7
* * * * *
8
[(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.]
1. The Proviso omitted by Act 68 of 1976, s. 27 (w.e.f. 27-5-1976).
2. Subs. by s. 27, ibid., for clauses (e) and (f) (w.e.f. 27-5-1976).
3. Clause (g) omitted by Act 6 of 2019, s. 4 (w.e.f. 1-3-2019).
4. The word “or” omitted by Act 29 of 1970, s. 3 (w.e.f. 12-8-1970).
5. Ins. by Act 68 of 1976, s. 27 (w.e.f. 27-5-1976).
6. The words “and by the wife on the ground that her husband has, since the solemnization of the marriage, been guilty of rape,
sodomy or bestiality” omitted by s. 27, ibid. (w.e.f. 27-5-1976).
7. Omitted by Act 29 of 1970), s. 3 (w.e.f. 12-8-1970).
8. Ins. by Act 68 of 1976, s. 27 (w.e.f. 27-5-1976).
1
[(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.]
2
[27A. Alternative relief in divorce proceedings.―In any proceeding under this Act, on a petition
for dissolution of marriage by a decree of divorce, except insofar as the petition is founded on the ground
mentioned in clause (h) of sub-section (1) of section 27, the court may, if it considers it just so to do
having regard to the circumstances of the case, pass instead a decree for judicial separation.]
Section 28 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)
3 [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.
Void Triple Talaq / Instant Talaq
Muslim Womens’ Divorce
& Maintenance Rights
What is Triple Talaq?
- [Talaq-e-Biddat or Triple Talaq is a form of divorce that was practiced in Islam, whereby a Muslim man
could divorce his wife by pronouncing talaq three times. The man need not cite any reason for the
divorce and the wife need not be present at the time of pronouncement of talaq.
The Muslim Women (Protection of Rights on Marriage) Act, 2019
Section 1. Short title, extent and commencement.
(1) This Act may be called the Muslim Women (Protection of Rights on Marriage) Act, 2019.
(2) It shall extend to the whole of India except the State of Jammu and Kashmir*.
(3) It shall be deemed to have come into force on the 19th day of September, 2018.
Section 2. Definitions.
In this Act, unless the context otherwise requires,–
(a) “electronic form” shall have the same meaning as assigned to it in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);
(b) “Magistrate” means a Judicial Magistrate of the first class exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974), in the area where the married Muslim woman resides;
and (c) “talaq” means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.
Section 3. Talaq to be void and illegal.
Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.
Section 4. Punishment for pronouncing talaq.
Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine
Demand for Banning Triple Talaq:
• To ban the evil practice of Triple Talaq was a demand from Muslim women for a very long time.
• ShayaraBano a woman from Uttarakhand, who suffered mental and physical torture by her husband
and his family for not fulfilling their demand for dowry, was granted instant Triple Talaq by her
husband through a letter, ending their 14-year marriage. Her husband also denied her the custody of
her two children.
• ShayaraBano challenged this practice before the Supreme Court on the ground that the said practice
is discriminatory and against dignity of women.
Instant Talaq Judgment Upload PDF FORM
Supreme Court Verdict:
• Supreme Court found that the said practice of divorce to be manifestly arbitrary, in the sense that, the marital tie can be broken capriciously and whimsically by a Muslim husband withoutany attempt to reconcile to save the marriage.
• Supreme Court, in a majority judgment rendered on 22nd August, 2017, set aside the practice of divorce by pronouncing instant Triple Talaq as violative of Article 14 of the Constitution.
• Supreme Court judgment vindicated the position taken by the Government that talaq-e-biddat is against constitutional morality, dignity of women and the principles of gender equality and also against gender equity guaranteed under the Constitution of India. [Act & Provision for Imprisonment:
• The Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the instant divorce granted by pronouncement of talaq three times as void and illegal. It provides for imprisonment for a term up to 3 years and fine to the husband who practiced instant Triple Talaq.
• Muslim woman, upon whom Talaq was pronounced also granted custody of children and subsistence allowance to be paid by the husband.
• Muslim women now have a legal protectionagainst the whimsical and irrationalpronouncement of Triple Talaq.
• The Act also works as deterrence for husbands whointend to divorce their wives in this manner.
Qualitative Changes:
• The Act will improvethe existing conditions of Muslim women and will help them to come out of
domestic violence and discrimination they are facing in the society.
Achievements:
• Abolishment of Triple Talaq has contributed to woman empowerment and has given them dignity in
the society.
• The government has strengthened “self-reliance, self-respect and self-confidence” of the Muslim
women of the country and protected their constitutional, fundamental and democratic rights by
bringing the law against the Triple Talaq.
• Triple Talaq cases have dropped by 82%within one year of passing of the Act.
• “Muslim Women Rights Day” was observed across the country on 1st August 2021to celebrate the
enactment of the law against Triple Talaq.
Maintenance Under Section 125 Cr.P.c
to Divorce / Maintenance
through court of law
The objective to enforce the social duty to prevent Vagrancy and Destitution, leading to crimes.
• Maintenance granted irrespective of personal laws.
• It is a tentative remedy, the proceedings being summary.
• An economic umbrella to the weaker, having no sufficient means to maintain themselves.
• The Wives, Children and Parents being the Beneficiaries.
Maintenance Under Section 125 Cr.P.c
• The objective to enforce the social duty to prevent Vagrancy and Destitution, leading to crimes.
• Maintenance granted irrespective of personal laws.
• It is a tentative remedy, the proceedings being summary.
• An economic umbrella to the weaker, having no sufficient means to maintain themselves.
• The Wives, Children and Parents being the Beneficiaries.
The Inclusive Definition of Wife
• Wife includes a woman who has not remarried after divorce.
• The object is to frustrate the unscrupulous husbands from making easy divorces under personal law.
• The Shah Bano Case.
• Consequently the retrograde legislation–The Muslim Women (Protection of Rights on Divorce) Act, 1986
• S.C. resolving the controversy in Daniel Latifi V. UoI, 2001 determining the rights of Muslim women.
Definition
Section 125 in The Code Of Criminal Procedure, 1973
125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
1. Subs. by Act 45 of 1978, s. 12, for” Chief Judicial Magistrate” (w. e. f, 18- 12- 1978 ).
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-
(a) ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b) ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’ s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’ s refusal to live with him.
(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to…
Procedure: Maintenance Order
• The amount to be modestly consistent with the status of the family.
• The removal of ceiling of Rs 500/- per month and the fixing of time-frame through Amendment Act, 2001
• Warrant is issued on every breach of the order for levying the amount.
• The imprisonment of one month is a last resort when recourse to attachment and sale fail
• The imprisonment is to pressurize enforcement and not a mode to satisfy the liability.
Procedure: Cancellation of Order:
• The wife is living in adultery.
• Without sufficient reasons she refuses to live with the husband.
• They are living separately by mutual consent.
• On a decision of a competent civil court.
• She remarries after divorce, the order is cancelled w.e.f. the date of remarriage.
• On complete compliance with the order.
Order for maintenance of wives and children (Section 125 of CrPc)
Legal provisions regarding order for maintenance of wives and children under section 125 of the Code of Criminal Procedure, 1973.
The maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy leading to the commission of crime and starvation by compelling those who can do so to support those who are unable to support themselves and who have a moral claim to support. The provisions of maintenance of the Code of Criminal Procedure are applicable to persons belonging to all religions and have no relationship with the personal laws of the parties.
Persons entitled to claim maintenance: According to Section 125(1) of the Code, the following persons are entitled to claim maintenance under certain circumstances:
Wife:
As per Section 125(l) (a) of the Code, if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.
Here ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
The wife may be of any age-minor or major. ‘Wife’ for the purposes of Section 125 means a legally married woman. The legality of the marriage would be governed by the personal laws applicable to the parties. If the fact of legally valid marriage is disputed, the applicant will have to prove marriage. A marriage solemnized by exchange of garlands was held invalid.
Under Section 125(l)(a) of the Code, maintenance allowance cannot be granted to every wife who is neglected by husband or whose husband refuses to maintain her, but can only be granted to a wife who is unable to maintain herself but not a wife who is maintaining herself with some difficulty.
By the phrase ‘unable to maintain herself’, it is not meant that she should be absolutely destitute and should be first on the street, should beg and be in tattered clothes and then only she will be entitled to move an application under Section 125 of the Code.
If a person is willing to maintain his wife in accordance with his civil obligation, there is neither neglect or refusal. Where the husband is making payment of some amount to the wife but the amount is not sufficient to meet her basic necessaries of life, it is clearly ‘neglect’ or refusal to maintain the wife within the meaning of Section 125 of the Code.
In Savitaben Somabhai Bhatiya v. State of Gujarat, it was held that Section 125 of the Code has been enacted in the interest of a wife and one who wants to take the benefit under sub-section (l)(a) of Section 125 has to establish that she is the wife of the person concerned.
The issue can be decided only by a reference to the law applicable to the parties. It is only when such a relationship with reference to personal law is established that the application for maintenance can be maintained. The issue whether Section 125 is attracted or not, cannot be answered except by a reference to the appropriate law governing the parties.
Marriage of a woman, even if it is in accordance with the Hindu rites with a man, having a spouse living at the time of the marriage, is a nullity in the eye of law. The lady will not get the status of a legally wedded wife and accordingly not entitled to the benefit of Section 125 of the Code of Criminal Procedure.
Maintenance Rights Under
Various Personal Laws
Domestic Violence Act
Interim maintenance under the Domestic Violence Act
Legal Custody
Guardians and Wards Act, 1890
Parsi Law Act 1936
Christian Marriage ACT, 1872
The Special Marriage ACT 1954
Would you like to Register your
marriage without partner being physically Present ?
Would you like to Register your marriage
solemnized at other states ?
How to register court Marriage in mumbai?
Procedure for Court Marriage Registration of Indians, Foreigners & NRIs (For Marriage in India) Documents Required For Hindu / Muslim Marriage Registration
Application
Age proof
Matriculation
certificate/birth
certificate/
Valid Passport
Residential proof in
the form of ration
card/aadhar
card/voter ID/
electricity bill
2 passpost
size
photographs
of each
party
1 marriage photograph
marriage invitation card.
Documents Required For Special Marriage Registration
Application
2 passpost size photographs of each party
Age proof Matriculation certificate/birth certificate/ Valid Passport
Residential proof in the form of ration card/aadhar card/voter ID/ electricity bill
Documents required to marry a Foreigner/ NRI in India
Application
2 passpost size photographs of each party
Foreign Residential proof in the form of Water Bill / Work ID/Energy bill/ Tenancy Agreement PIO Card /OCI Card
Residential proof in the form of ration card/aadhar card/voter ID/ electricity bill
Procedure of Court Marriage Registration
Adequate documentary evidence of 30-day residence in India
A ‘no-objection’ letter – For instance, if an American citizen wishes to wed in a civil marriage ceremony he may be required to present to the marriage officer a ‘no objection letter’ from the US Embassy or Consulate, as well as proof of termination of any previous marriage if any. Similarly, a citizen of any other foreign country is required to present the no objection letter from the Embassy or Consulate of his/her country. The parties also have to wait at least 30 days from the date of initial application to formalize the marriage so that the marriage officer can publish a notice, which might even include a newspaper publication for giving an opportunity for any objections to the marriage to be voiced.
Is performance of rituals and ceremonies enough?
While we may associate a marriage in India with extensive rituals like walking around the fire, a lot of music and exchanging garlands, the Court has clarified that any couple, whether Indian, NRI, or a foreigner who wants to marry in India has to either perform a religious marriage ceremony or the civil marriage ceremony. Even if the marriage is celebrated under Hindu Marriage Act, Muslim Marriage Act, Christian Marriage Act and for the Parsee Marriage and Divorce Act.
Such Religious Marriage Ceremony in India is a legally valid marriage but it needs to be registered compulsorily. For VISA and immigration purposes a Marriage Certificate from Registrar of Marriages is a requirement. Getting your marriage registered may not be enough and you are often required to furnish a registration certificate which acts as adequate proof of valid registration of a marriage. There is no period of expiry for this certificate and a registered marriage, like any other form of marriage is valid until a divorce is obtained.
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