Saturday 29 June 2013
Divorce Laws
Divorce Laws a discussion on various questions related to Divorce laws in India
can Divorced person remarry immediately after divorce
How long after marriage can a person seek divorce as par Hindu Law?
How many times I have to attend the court hearing for mutual Divorce
Can I get divorce online in India
What are the different grounds for Divorce in India
What are the divorce laws in India
Refused to go for second motion in mutual divorce, how to get Divorce
right of husband over his child at the separation?
whats is the procedure of filling Divorce petition
remarriage with consent from wife is it legal
what is the Procedure for filing Mutual Divorce
What is streedhan?
what is the best defence from 498a?
what should one do, filling Divorce or RCR during pending of 498A
where to file a divorce petition?
What is Contested Divorce and procedure to file?
what is Judicial separation?
Suggetsion on Divorce Lawyer Vs Criminal Laywer
Child Custody Under Hindu Law
What is the procedure for Judicial separation
can Divorced person remarry immediately after divorce
How long after marriage can a person seek divorce as par Hindu Law?
How many times I have to attend the court hearing for mutual Divorce
Can I get divorce online in India
What are the different grounds for Divorce in India
What are the divorce laws in India
Refused to go for second motion in mutual divorce, how to get Divorce
right of husband over his child at the separation?
whats is the procedure of filling Divorce petition
remarriage with consent from wife is it legal
what is the Procedure for filing Mutual Divorce
What is streedhan?
what is the best defence from 498a?
what should one do, filling Divorce or RCR during pending of 498A
where to file a divorce petition?
What is Contested Divorce and procedure to file?
what is Judicial separation?
Suggetsion on Divorce Lawyer Vs Criminal Laywer
Child Custody Under Hindu Law
What is the procedure for Judicial separation
Wednesday 5 June 2013
The Special Marriage Act-1954 - Marriage lawyers in India
The Special Marriage Act-1954 - Marriage lawyers in India
Act No.43 of 1954)[9th October 1954]
An Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. Be it enacted by Parliament in the Fifth Year of the Republic of India as follows:
Act No.43 of 1954)[9th October 1954]
An Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. Be it enacted by Parliament in the Fifth Year of the Republic of India as follows:
Tuesday 4 June 2013
Power of court to order permanent alimony
Section 37. Power to order permanent alimony.-
The High Court may, if it think fit, on any decree absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife,
and the District Judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be dissolved,
or on any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court,
secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any),
to the ability of the husband, and to the conduct of the parties,
it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties.
Power to order monthly or weekly payments.--In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable:
Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same is to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part, as to the Court seems fit.
Section 38. Court may direct payment of alimony to wife or to her trustee.-In all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself,
or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to' the Court expedient so to do.
The High Court may, if it think fit, on any decree absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife,
and the District Judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be dissolved,
or on any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court,
secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any),
to the ability of the husband, and to the conduct of the parties,
it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties.
Power to order monthly or weekly payments.--In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable:
Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same is to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part, as to the Court seems fit.
Section 38. Court may direct payment of alimony to wife or to her trustee.-In all cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself,
or to any trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the Court seem expedient, and may from time to time appoint a new trustee, if it appears to' the Court expedient so to do.
Husband may claim damages from adulterer
Husband may claim damages from adulterer
Section 34.Husband may claim damages from adulterer.-Any husband may, either in a petition for dissolution of marriage or for judicial separation, or in a petition to the District Court or the High Court limited to such object only, claim damages from any person on the ground of his having committed adultery with the wife of such petitioner.
Such petition shall be served on the alleged adulterer and the wife, unless the Court dispenses with such service, or directs some other service to be substituted.
The damages to be recovered on any such petition shall be ascertained by the said Court, although the respondents or either of them may not appear.
After the decision has been given, the Court may direct in what manner such damages shall be paid or applied.
Petition for restitution of conjugal rights under Christian law
Section 32. Petition for restitution of conjugal rights
When either the husband or the wife has without reasonable excuse, withdrawn from the society of the other, either wife or husband may apply, by petition to the District Court or the High Court, for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in such petition, Hand that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
Section 33. Answer to petition.-Nothing shall be pleaded in answer to a petition for restitution of conjugal rights, which would not be ground for a suit for judicial separation or for a decree of nullity of marriage.
Deserted wife may apply to Court for protection
Section 27. Deserted wife may apply to Court for protection.-
Any wife to whom section 4 of the Indian Succession Act, 18651* (10 of 1865), does not apply, may, when deserted by her husband, present a petition to the District Court or the High Court, at any time after such desertion, for an order to protect any property which she may have acquired or may acquire, and any property of which she may have become possessed or may become possessed after such desertion, against her husband or his creditors, or any person claiming under him.
Section 28.Court may grant protection-order.-The Court, if satisfied of the fact of such desertion. and that the same was without reasonable excuse, and that the wife is maintaining herself by her
own industry or property, may make and give to the wife an order protecting her earnings and other property from her husband and all creditors and persons claiming under him. Every such order shall state the time at which the desertion commenced, and shall, as regards all persons dealing with the wife in reliance thereon, be conclusive as to such time.
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1. See now the Indian Succession Act, 1925 (39 of 1925).
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Decree of Separation obtained during absence of husband or wife may be reversed
Decree of Separation obtained during absence of husband or wife may be reversed
Decree of Separation obtained during absence of husband or wife may be reversed.-Any husband or wife, upon the application of whose wife or husband, as the case may be, a decree of judicial separation has been pronounced, may, at any time thereafter, present a petition to the Court by which the decree was pronounced, praying for a reversal of such decree, on the ground that it was obtained in his or her absence, and that there was reasonable excuse for the alleged desertion, where desertion was the ground of such decree.
The Court may, on being satisfied of the truth of the allegations of such petition, reverse the decree accordingly; but such reversal shall not prejudice or affect the rights or remedies which any other person would have had, in case it had not been decreed, in respect of any debts, contracts, or acts of the wife incurred, entered into, or done between the times of the sentence of separation and of the reversal thereof.
Decree of Separation obtained during absence of husband or wife may be reversed.-Any husband or wife, upon the application of whose wife or husband, as the case may be, a decree of judicial separation has been pronounced, may, at any time thereafter, present a petition to the Court by which the decree was pronounced, praying for a reversal of such decree, on the ground that it was obtained in his or her absence, and that there was reasonable excuse for the alleged desertion, where desertion was the ground of such decree.
The Court may, on being satisfied of the truth of the allegations of such petition, reverse the decree accordingly; but such reversal shall not prejudice or affect the rights or remedies which any other person would have had, in case it had not been decreed, in respect of any debts, contracts, or acts of the wife incurred, entered into, or done between the times of the sentence of separation and of the reversal thereof.
Separated wife deemed spinster for purposes of contract and suing
Separated wife deemed spinster for purposes of contract and suing
Separated wife deemed spinster for purposes of contract and suing.-In every case of a judicial separation under this Act, the wife shall, whilst so separated, be considered as an unmarried woman for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding; and her husband shall not be liable in respect of any contract, act or costs entered into, done, omitted or incurred by her during the separation:
Provided that where, upon any such judicial separation, alimony has been decreed or ordered to be paid to the wife, and the same is not duly paid by the husband, he shall be liable for necessaries supplied for her use:
Provided also that nothing shall prevent the wife from joining, at any time during such separation, in the exercise of any joint power given to herself and her husband.
Separated wife deemed spinster for purposes of contract and suing.-In every case of a judicial separation under this Act, the wife shall, whilst so separated, be considered as an unmarried woman for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding; and her husband shall not be liable in respect of any contract, act or costs entered into, done, omitted or incurred by her during the separation:
Provided that where, upon any such judicial separation, alimony has been decreed or ordered to be paid to the wife, and the same is not duly paid by the husband, he shall be liable for necessaries supplied for her use:
Provided also that nothing shall prevent the wife from joining, at any time during such separation, in the exercise of any joint power given to herself and her husband.
Separated wife deemed spinster with respect to after-acquired property
Separated wife deemed spinster with respect to after-acquired property
Separated wife deemed spinster with respect to after-acquired property.-In every case of a judicial separation under this Act, the wife shall, from the date of the sentence, and whilst the separation continues, be considered as unmarried with respect to property of every description which she may acquire, or which may come to or devolve upon her.
Such property may be disposed of by her in all respects as an unmarried woman, and on her decease the same shall, in case she dies intestate, go as the same would have gone if her husband had been then dead:
Provided that, if any such wife again cohabits with her husband, all such property as she may be entitled to when such cohabitation takes place shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband whilst
separate.
Separated wife deemed spinster with respect to after-acquired property.-In every case of a judicial separation under this Act, the wife shall, from the date of the sentence, and whilst the separation continues, be considered as unmarried with respect to property of every description which she may acquire, or which may come to or devolve upon her.
Such property may be disposed of by her in all respects as an unmarried woman, and on her decease the same shall, in case she dies intestate, go as the same would have gone if her husband had been then dead:
Provided that, if any such wife again cohabits with her husband, all such property as she may be entitled to when such cohabitation takes place shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband whilst
separate.
Children born out of annulled marriage
Children of annulled marriage
-Where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract.
Confirmation of decree for dissolution by District Judge
section 17. Confirmation of decree for dissolution by District Judge:
Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court.
Cases for confirmation of a decree 'for dissolution of marriage shall be heard (where the number of the Judges of the High Court is three or upwards) by a Court composed of three such Judges, and in case of difference the opinion of the majority shall prevail, or (where the number of the Judges of the High Court is two) by a Court composed of such two Judges, and in case of difference the opinion of
the Senior Judge shall prevail.
The High Court, if it thinks further enquiry or additional evidence to be necessary, may direct such enquiry to be made, or such evidence to be taken.
The result of such enquiry and the additional evidence shall be certified to the High Court by the District Judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage, or such other order as to the Court seems fit:
Provided that no decree shall be confirmed under this section till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court by general or special order from time to time directs.
During the progress of the suit in the Court of the District Judge, any person suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs. to apply to the High Court to remove the suit under section eight, and the High Court shall thereupon, if it thinks fit, remove such suit and try and determine the same as a Court of original jurisdiction, and the provisions contained in section sixteen shall apply to every suit so removed: or it may direct the District Judge to take such steps in respect of the alleged collusion as may be necessary to enable him to make a decree in accordance with the justice of the case
Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court.
Cases for confirmation of a decree 'for dissolution of marriage shall be heard (where the number of the Judges of the High Court is three or upwards) by a Court composed of three such Judges, and in case of difference the opinion of the majority shall prevail, or (where the number of the Judges of the High Court is two) by a Court composed of such two Judges, and in case of difference the opinion of
the Senior Judge shall prevail.
The High Court, if it thinks further enquiry or additional evidence to be necessary, may direct such enquiry to be made, or such evidence to be taken.
The result of such enquiry and the additional evidence shall be certified to the High Court by the District Judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage, or such other order as to the Court seems fit:
Provided that no decree shall be confirmed under this section till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court by general or special order from time to time directs.
During the progress of the suit in the Court of the District Judge, any person suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs. to apply to the High Court to remove the suit under section eight, and the High Court shall thereupon, if it thinks fit, remove such suit and try and determine the same as a Court of original jurisdiction, and the provisions contained in section sixteen shall apply to every suit so removed: or it may direct the District Judge to take such steps in respect of the alleged collusion as may be necessary to enable him to make a decree in accordance with the justice of the case
what are the Grounds of decree for nullity of marriage
Section 19. Grounds of decree for nullity of marriage
.-Such decree may be made on any of the following grounds:-
(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;
(2)that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.
Power of Court to Grant decree for dissolving marriage
Section 14. Power to Court to pronounce decree for dissolving marriage.-
In case the Court is satisfied on the evidence that the case of the petitioner has been proved, and does not find that the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of,or that the petition is presented or prosecuted in collusion with either of the respondents,
the Court shall pronounce a decree declaring such marriage to be dissolved in the manner and subject to all the provisions and limitations in sections sixteen and seventeen made and declared:
Provided that the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery,
or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition,
or of such wilful neglect or misconduct of or towards the other party as has conduced to the adultery.
Condonation.-No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal cohabitation has been resumed or continued.
When wife may petition for dissolution of marriage
When wife may petition for dissolution.-Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;
or has been guilty of incestuous adultery,
or of bigamy with adultery,
or of marriage with another woman with adultery, or of rape,sodomy or bestiality,
or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro,
or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
Contents of petition.
Contents of petition.--Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.
When husband may petition for dissolution
Section 10 Of the Indian Divorce Act states that:
When husband may petition for dissolution.-Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.* When husband may petition for dissolution
The Indian Divorce Act, 1869
The Indian Divorce Act, 1869ACT
No. 4 OF 1869 1*[26th February, 1869.]An Act to amend the law relating to Divorce and Matrimonial Causes 2***
Preamble.-WHEREAS it is expedient to amend the law relating to the divorce of persons professing the Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial; it is hereby enacted as follows:-
INDIA CODE, VOL-II, (1856-1879) I.-PRELIMINARY 1. Short title 1. Short title. Commencement of Act.-This Act may be called the Indian Divorce Act, and shall come into operation on the first day of April, 1869.
2. Extent of Act.-3*[This Act extends to 4*[the whole of India 5*[except the State of Jammu and Kashmir]].] Extent of power to rant relief generally, Extent of power to grant relief generally,-6*[Nothing hereinafter contained shall authorise any Court to grant any relief under this Act except where the petitioner 7*[or respondent] professes the Christian religion, and to make decrees of dissolution, and to make decrees of dissolution,-or to make decrees of dissolution of marriage except where the parties to the marriage are domiciled in India at the time when the petition is presented, or of nullity. or of nullity.-or to make decrees of nullity of marriage except where the marriage has been solemnized in India and the petitioner is resident in India at the time of presenting the petition, or to grant any relief under this Act, other than a decree of dissolution of marriage or of nullity of marriage, except where the petitioner resides in India at the time of presenting the petition.]
3. Interpretation-clause.-In this Act, unless there be Collected by the All India Christian Council,
- 8[(1) "High Court".- "High Court" means with reference to any area: (a) in a State, the High Court for that State; 9[(b) in Delhi, the High Court of Delhi; (bb) in Himachal Pradesh, the High Court of Punjab and Haryana up to and inclusive of the 30th April, 1967 and the High Court of Delhi thereafter;] (c) in Manipur and Tripura, the High Court of Assam; (d) in the Andaman and Nicobar Islands, the High Court at Calcutta; (e) in 10*[Lakshadweep], the High Court of Kerala; 11[(ee) in Chandigarh, the High Court of Punjab and Haryana;]
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