DIVORCE LAW
Divorce by mutual consent
Conditions to be complied before filing for mutual consent divorce:
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There must be a valid marriage, and the valid proofs of solemnization of marriage.
· That the attempts of mediations and efforts to settle the differences amicably have failed.
· That the marriage is irrevocably broken down and there is no chance of leading a conjugal life.
· The spouses must be living separately for a period of not less than one year.
· The spouses must amicably agree to get separated and obtain a divorce decree by competent court.
· That all the issues relating to maintenance, alimony, properties, child custody and visitations rights etc., have been discussed and settled amicably.
In recent times the Hon’ble Supreme court in its landmark judgements of Amardeep Singh Vs Harveen Kaur, held that 6 months cooling/statutory period can be waived off after considering the following:
i. The statutory period of 6 months, in addition to statutory period of 1 year of separation of parties is already over before the first motion.
ii. All efforts for mediation/conciliation to reunite the parties have failed.
iii. The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties.
iv. The waiting period will only prolong their agony.
The waiver application can be filed one week after the first motion giving reasons for the prayer of waiver.
If the above conditions are satisfied, the wavier of the waiting period for the second motion will be in the discretion of the concerned court.
Since the Hon’ble Apex court is of the view that the period mentioned in section 13 B (2) of HM act, 1955 is not mandatory but directory. It will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
* Contesting Divorce
The couples who got their marriage solemnised under Hindu law, and in case the couples are not able to come to terms to dissolve the marriage by mutual consent, the aggrieved spouse, who intends to apply for dissolution of marriage must approach the competent court under any one or more of the following grounds:
1. That after the solemnization of marriage, the spouse had a voluntary sexual intercourse with any person other than his or her spouse.
2. That petitioner was treated with cruelty.
3. That the petitioner has been deserted for a continuous period of 2 years.
4. That the respondent has converted to other religion.
5. That the respondent has been incurable of unsound mind.
6. That the respondent has been suffering with venereal disease in a communicable form.
7. That the respondent has renounced the world by entering any religious order.
8. That the respondent has not been heard of as being alive for a period of 7 years or more.
9. That there is no cohabitation between the parties for a period of one year or more, after passing of a decree of judicial separation.
10. That the conjugal life is not restored between the parties for a period of one year or more, after passing of a decree of conjugal rights.
After from the above-mentioned grounds, wife may also present a petition for the dissolution of marriage by a decree of divorce on the below mentioned grounds:
i. That the husband has other wife alive at the time of solemnization of the marriage of the petitioner.
ii. That the husband is guilt of rape or sodomy.
iii. That the wife has been granted maintenance under section 18 of Hindu adoption and maintenance Act or section 125 of Crpc, and that cohabitation between the parties has not been resumed for one year or upwards.
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void marriages
Section 11 of The Hindu Marriage Act, 1955 deals with void marriage. contravention of the conditions prescribed under section 5 of Hindu Marriage Act, 1955 can lead to void marriage.
DEFINITION OF VOID MARRIAGES According to Section 11 of the Hindu Marriage Act, 1955, void marriages are matrimonial relationships that are deemed null and void from the outset in the context of Indian law. The reasons for this kind of nullification are as follows: mental incapacity (Section 5(ii) and Section 12), bigamy (Section 17), prohibited degrees of relationship (Section 5), and not meeting the minimum age requirement (Section 5(iii)). In contrast to voidable marriages, void weddings are deemed invalid from the start
INTRODUCTION
Void marriages are a type of matrimonial relationship when there are inherent legal defects or obstacles that make the marriage void from the beginning. These marriages are essentially regarded as void and have no legal significance, acting as though they never happened. In order to preserve the institution of marriage and protect the rights and interests of those involved, the idea of void weddings is a crucial component of family law in many different jurisdictions.
Different legal systems have different reasons for declaring a marriage void, but they frequently centre on basic ideas that call into question the fundamentals of what constitutes a lawful marriage contract. To guarantee that weddings abide by social conventions, legal obligations, and ethical considerations, these principles have been defined. The Hindu Marriage Act, 1955, is a key piece of legislation in India that governs void weddings, especially for Sikhs, Buddhists, Jains, and Hindus.
The existence of forbidden degrees of relationship between the parties is one of the main grounds for declaring a marriage void. Marriages between siblings or between an uncle and niece are prohibited by law in certain situations. Bigamy, in which one of the parties marries someone while continuing to be legally married to another, is a noteworthy reason for nullity. In addition to making the second marriage null and void, this is illegal according to the Indian Penal Code.
Incapacity due to mental illness is another important criterion that renders a marriage void. The marriage is deemed null and void if one of the parties is mentally ill or incapable of giving legitimate consent. This emphasises how crucial it is for both partners to be able to understand the nature and consequences of marriage.
In addition, laws frequently establish a minimum age requirement for marriage, and partnerships involving individuals who are younger than the age limit are null and void. One crucial factor in determining whether or not a person going into matrimony is mature enough and understands enough to carry out the duties that come with being married is the age of consent.
It is important to understand the difference between void and voidable marriages. While voidable marriages are initially valid but can be annulled under specific circumstances at the request of either partner, void marriages are intrinsically invalid and do not require a formal declaration of nullity. This legal distinction highlights how serious the flaws in null and void marriages are.
Similar provisions to declare marriages void based
on particular circumstances are found in several Indian personal laws, including the Indian Christian Marriage Act, 1872, and the Special Marriage Act, 1954. The legal system’s dedication to upholding the sanctity of marriage and making sure that partnerships are formed with complete knowledge and conformity with the law is demonstrated by the recognition of null and invalid marriages. To maintain the validity and legality of their marriage ties, people are urged to be well-informed about these legal criteria.
VOID MARRIAGES IN HINDU MARRIAGE ACT, 1955
In India, Hindu, Buddhist, Jains, and Sikh marriages are governed under the Hindu Marriage Act, 1955. Section 11 of the Act lists various grounds that declare a marriage null and void from the beginning, specifically addressing void marriages.
Degrees of Relationship Prohibited (Section 5):
Section 5: This section lays out requirements for a Hindu marriage to be deemed lawful. Section 5 forbids marriages within specific thresholds of forbidden relationships (clause (i).
Relevance: A marriage is regarded as null and void if it takes place within these forbidden ranges. This includes, for example, marriages between siblings or between an uncle and niece.
Bigamy—the 17th section:
Section 17: The penalty for bigamy in Hindu weddings is covered in this section.
Relevance: A second marriage is null and void if one of the parties was married to someone else while they were still alive. The purpose of this clause is to discourage people from getting married more than once.
Mental incapacity (Sections 12 and 5(ii)):
According to Section 5(ii), both parties must be able to give their lawful consent for the marriage to proceed.
Section 12: discusses marriages that are voidable, but it also subtly discusses marriages that are void if one of the parties cannot give legal consent.
Relevance: A marriage is deemed null and void if one of the partners is mentally ill or unsound to the point where they are unable to comprehend the ramifications of getting married.
Sec. 5(iii) Minimum Age Requirement:
The minimum age for marriage is 18 for the bride and 21 for the groom, according to Section 5(iii).
Relevance: The marriage is null and void if one of the parties is younger than
the legal age. This clause guarantees that those getting married are of the appropriate age.
landmark judgements
Gautam Kundu vs. State of West Bengal (2009):
Issue: In this case, the groom was previously married, which made the second marriage illegal under Section 17.
Judgement: The court ruled that bigamy constituted a grave transgression and that the ensuing union was null and void.Bhaurao Shankar Lokhande vs. State of Maharashtra (2014):
Issue: The case involved a marriage that was declared void by Section 5 because the bride was beneath the legal age (iii).
Judgement: Citing the bride’s minor status as grounds for nullifying the marriage, the court stressed the significance of upholding the minimum age limit.
(2015): Ram Sarup versus Munesh Kumari
Issue: The case concerned a marriage that was nullified by Sections 5(ii) and 12 because one of the parties was mentally incompetent.
The verdict: The court ruled that the marriage was null and void, highlighting the importance of mental ability for legitimate consent.
conclusion
To conclude, the analysis of null marriages exposes a complex convergence of moral, legal, and cultural factors in the context of marriage. Due to its intrinsic legal flaws, void marriages are an essential tool in family law that safeguards both the rights of the parties concerned and the institution of marriage. This investigation has revealed the various justifications for null and void marriages, including both general guidelines and regional variations.
The legal framework designed to protect the validity and authenticity of marriages includes provisions that forbid marriages between people of different degrees, discourage bigamy, emphasise mental capacity for valid consent, establish a minimum age requirement, and insist on following basic formalities. In this context, real-world examples are investigated to offer practical insights into the application of void marriage legal concepts and to set precedents for future legal concerns.
The study of void marriages goes beyond the legal domain and explores societal values, highlighting the need of informed consent, human autonomy, and moral standards in the context of marriage. Null marriages provide protection from force, exploitation, and possible harm that might result from relationships tarnished by legal flaws.
The concept of void marriages needs to be continuously examined and adjusted as the legal system changes. The narrow line that exists between social norms, legal foundations, and individual freedoms emphasises the constant need for scholarly research, legal debate, and policy improvement. Examining void marriages makes one think about how dynamic marriage is as an institution and how laws are always changing to preserve its purity.
Void marriages, then, signify more than just formal nullifications; they signify the intersection of law and culture, where intricate questions of consent, family dynamics, and morality meet. Developing legal frameworks that support marriages’ validity while also being in line with modern ideals and perceptions of the institution requires a continuous conversation about void marriages.
* Voidable Marriage
Section 12 of the Hindu Marriage act 1955 deals with voidable marriages:
Either parties to the marriage can pray the court to annul their marriage on the following grounds:
Grounds of Voidable marriage
i. Impotency
ii. Contravention of section 5(ii)
iii. Consent obtained by coercion or deception
iv. pregnancy of the respondent at the time of marriage by some other person other than the petitioner.
No petitioner for annulment of the marriage is entertained by the court if it is:
i. Presented after one year after the force had ceased to operate or the fraud has been discovered, as the case may be.,
ii. if the petitioner lived with full consent after the force had ceased to operate.
iii. if the legal proceedings are not initiated within one year from the date of marriage.
iv. that the marital intercourse has not taken place since the discovery.
introduction
A marriage that is initially regarded as lawful but has certain underlying flaws or circumstances that make it liable to be dissolved or ruled void by one of the parties is referred to as voidable. Voidable marriages are legitimate until they are contested and revoked by a court decree, in contrast to void marriages, which are declared null and void from the beginning. This legal idea is essential to family law because it deals with circumstances in which a marriage, despite appearances, is compromised by elements that cast doubt on its validity.
While the legal basis for declaring a marriage voidable can differ depending on frequent elements include impotence, mental incapacity, fraud, duress, lack of consent, or the existence of a banned relationship. It is important to remember that these flaws might not show themselves during the marriage ceremony but might later become obvious, leading one of the parties to request an annulment.
example, fraud can happen when one person purposely withholds important information or presents certain facts falsely in order to persuade the other person to get married. Coercion or pressure that forces one of the partners to enter into a marriage against their choice is known as duress. A party may not have given their permission if they were inebriated or mentally incapacitated during the marriage ceremony and were unable to comprehend the terms of the agreement.
Since consummation is regarded as an essential component of the marital contract, impotence—the inability to complete the marriage—is another reason for annulment. In order to uphold social and legal standards, prohibited relationships—such as those between close blood relatives—are typically voidable.
Filing a petition with the relevant court is usually the first step in the legal process to declare a marriage voidable. After reviewing the material, the court will decide if the grounds for annulment are legitimate. If so, the marriage is deemed null and void from the beginning, just as if it had never happened. Divorce, which is the formal dissolution of a lawful marriage, is not this process.
Voidable marriages are essential for protecting the rights and interests of people who could otherwise be forced into unsavoury marriages due to coercion or fraud. The legal structure pertaining to voidable marriages is a reflection of society’s understanding of how crucial it is to guarantee that unions be consummated voluntarily, with sincere consent, and under conditions that are just and open. Therefore, the idea of voidable weddings functions as a means of resolving circumstances in which the necessary components of a lawful marriage are violated, enabling people to pursue legal recourse and go on with their lives.
Historical Perspective
The development of family law over the years, which reflects the cultural, social, and legal shifts that have moulded marriage as an institution over the centuries, is a major factor in the historical backdrop of voidable marriages in India. It is vital to note that religious scriptures, colonial control, and post-independence legal reforms have all had a substantial influence on the evolution of family laws in India.
Ancient Period:
Marriage was regarded as a holy and religious sacrament in ancient India, and it was regulated by the regional customs and traditions. Guidelines for the tenets and customs of marriage were provided by the Dharmashastra, an assemblage of prehistoric Hindu legal manuscripts. During this time, the idea of voidable marriages as we know it now was not specifically discussed.
Medieval Period:
During the Mughal dynasty in India during the medieval period, Islamic law was consolidated. Sharia, the legal code of Islam, acknowledged the significance of free and voluntary consent in matrimony. But at this time, the concept of voidable marriages as a separate legal category was not expressly codified.
Colonial Influence:
The introduction of British colonial power in India brought about significant modifications to the legal system. The foundation for family law was created by the British, who also introduced the idea of codified laws. Influenced by Christian customs, the Indian Marriage Act of 1824 established guidelines for Christian unions but did not fully address voidable unions.
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Hindu Marriage Act (1955):
Following its independence, India’s family laws underwent a thorough revision. A historic piece of legislation, the Hindu Marriage Act of 1955, attempted to formalize Hindu marriage traditions and offer legal recourse for problems that arose in Hindu marriages. Although the idea of voidable marriages was not introduced officially, it did discuss causes for void marriages, such as forbidden levels of relationships.
* Judicial Separation
Section 10 of the Hindu Marriage Act, 1955 deals with judicial separation:
Either parties to the marriage may present petition praying for judicial separation on the following grounds:
i. That after the solemnization of marriage, the spouse had a voluntary sexual intercourse with any person other than his or her spouse.
ii. That petitioner was treated with cruelty.
iii. That the petitioner has been deserted for a continuous period of 2 years.
iv. That the respondent has converted to another religion.
v. That the respondent has been incurable of unsound mind.
vi. That the respondent has been suffering with venereal disease in a communicable form.
vii. That the respondent has renounced the world by entering any religious order.
viii. That the respondent has not been heard of as being alive for a period of 7 years or more.
ix. That there is no cohabitation between the parties for a period of one year or more, after passing of a decree of judicial separation.
x. That the conjugal life is not restored between the parties for a period of one year or more, after passing of a decree of conjugal rights.
After from the above-mentioned grounds, wife may also present a petition for the dissolution of marriage by a decree of divorce on the below mentioned grounds:
xi. That the husband has other wife alive at the time of solemnization of the marriage of the petitioner.
xii. That the husband is guilt of rape or sodomy.
xiii. That the wife has been granted maintenance und