• Divorce

Husband is a hindu and wife is a paris by religion. Got married by hindu customs and vedic rituals in 2012. The marriage is un-registered. Can a petition for divorce by mutual consent be filled? Under which law?
Asked 7 years ago in Family Law
Religion: Hindu

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5 Answers

1) for marriage to be solemnised under provisions of HMA it is necessary that both parties be Hindus

2) According to the Preamble to the Hindu Marriage Act, 1955: “An Act to amend and codify the law relating to marriage among Hindus. Section 5 of the Act makes it clear that a marriage may be solemnised between any two Hindus if the conditions contained in the said Section were fulfilled. In other words, in the event the conditions remain unfulfilled, a marriage between two Hindus could not be solemnised.”

3) the SC has held that marriage between hindu and person professing another faith solemnised under hindu customs was a nullity

4) if you had converted into Hinduism marriage would be valid and you can file for divorce by mutual consent

Ajay Sethi
Advocate, Mumbai
95208 Answers
7609 Consultations

5.0 on 5.0

Hi

I) Husband being a Hindu and Wife being a parsi, the mutual consent petition should be filed under "the Special Marriage Act".

II) Hindu marriage act will not apply to your case as your wife is a parsi by religion and only Special Marriage Act will be applicable in your case.

III) Section 28 of Special Marriage Act will be applicable to your case in case both the parties are applying for Mutual consent Divorce.

The Synopsis of relevant sections of Marriage Act(Hindu Marriage Act and Special Marriage Act) is produced here under for reference.

1) Hindu marriage act -

1a. Section 2(1) of Hindu Marriage act -This section therefore applies to Hindus by religion in any of its forms and Hindus within the extended meaning i.e. Buddhist, Jaina or Sikh and in fact, applies to all such persons domiciled in the country who are not Muslims, Christians, Parsi or Jew, unless it is proved that such persons are not governed by the Act under any custom or usage. The Act applies to Hindus outside the territory of India only if such a Hindu is domiciled in the territory of India

2) The Special Marriage Act, 1954 (the Act), was enacted to provide a special form of marriage, to persons in India, and Indian nationals abroad, irrespective of the faith which either party to the marriage may profess.

3) Under sec. 28 of the Act, which primarily deals with the provisions relating to obtaining a divorce by mutual consent in respect of a marriage solemnized and/or registered under the Act, a petition for divorce by mutual consent may be presented to the District Court.

4). A few key points to be considered while seeking a divorce by mutual consent are as follows:

4a) . A petition for divorce must be presented to the District Court by both parties together.

4b) The petition must be on the grounds,

i) that they have been living separately for a period of one year or more,

ii) that they have not been able to live together, and

iii) that they have mutually agreed that the marriage should be dissolved.

Hope this information is useful

Rajgopalan Sripathi
Advocate, Hyderabad
2173 Answers
394 Consultations

5.0 on 5.0

1. The marriage was performed by following Hindu rites and rituals.

2. So, you shall have to jointly file the MCD petition as per Hindu Marriage Act,

3. You shall have to attach evidence of your marriage being marriage photographs, wedding card etc.while filing the MCD petition.

4. MCD petition will be disposed of within 6 & 1/2 months from the date f its filing.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

Since the marriage was performed according to Hindu rites and customs, mutual consent divorce petition has to file under Section 13B of Hindu Marriage Act 1955 though wife is from other than Hindu. Registration of marriage is not compulsory for filing mutual consent divorce.

Lakshmi Kanth
Advocate, Hyderabad
446 Answers
15 Consultations

4.7 on 5.0

Though both belong to different religions, their marriage can be considered to have been solemnised as per Hindu Laws only.

Therefore they can file a joint petition seeking dissolution of their marriage by a decree of divorce on grounds of mutual consent through a court of law under Hindu Marriage Act section 13B

T Kalaiselvan
Advocate, Vellore
85409 Answers
2237 Consultations

5.0 on 5.0

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