• Unclear on Sapinda for our MCD petition

Hi,

My wife and I of five years are separated and are in the process of filing for a divorce. However, we only recently found out that our marriage was registered under Hindu Marriage Act and since we are related there could be a problem filing for divorce under HMA. We had eloped against the wishes of my ex wife's family and the marriage was arranged by a family friend of my father. Not sure if he made a clerical error but now it seems like our marriage was never legal. Unfortunately, we have received mixed opinions from various lawyers: some say it is a Sapinda marriage while other say it is not. The following is the family tree

Great grand father
Father----------------------Father
Father---------------------- Mother
Me-------------------------- ex wife

Do we fall under Sapinda or we can file for divorce under HMA? Deeply appreciate a response as we would like to finalize the divorce at the earliest and move on with our lives.

Regards,
KapoorS
Asked 2 years ago in Family Law from Mumbai, Maharashtra
Religion: Hindu
1.Forget about the relationship. Since the marriage is registered it is prudent to get a decree of divorce from court of law.
2. While applying for mutual divorce no need of your parentage to be mentioned in your mutual petition.
3. Since both of you have decided to dissolve the marriage, do so and move on in life with the help of decree of divorce burying the past for good.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1. Firstly, I question the rationale on the basis of which you have referred to your wife as ''ex wife''. The marriage is subsisting to this date, so she is your "wife" and not ''ex wife''. The separation between you is a mere domestic arrangement. 

2. As pr the family tree provided by you, you are second cousins. Without a shadow of doubt you are in sapinda relationship.

3. Sapinda relationship should not be an impediment in getting divorce. If both of you have decided to amicably part ways then you may file for mutual divorce wherein there need not be any mention of your line of ascent.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
I first thought you had two wives when you mentioned ex-wife.   If you need divorce and if you are husband and wife only court can grant divorce.

If the court comes to the conclusion that your marriage is not legal then it is well and good there is no marriage at all.

The order of court is important.
Bhaskaran
Advocate, Bangalore
21 Answers
0 Consultations
Not rated
Dear Querist
No need to worry, file a mutual consent divorce petition before family court of your area where both of you were residing together and get the divorce decree from the court after cooling period of 6 month to 18 months as per law.

the court will not raise any question regarding the spanida or any other prohibitory relationship at the time of granting divorce.

you may file an application u/s 151 of CPC for waived off the cooling period before family court if there is any urgency for getting divorce.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
131 Consultations
4.9 on 5.0
1) since your marriage has already been registered and there are no prospects of saving your marriage file for divorce by mutual consent . 

2) no need to mention i n your divorce petition that you are second cousins and that marriage is within prohibited degree of relationships 

3) contact a local lawyer and file for divorce
Ajay Sethi
Advocate, Mumbai
23392 Answers
1229 Consultations
5.0 on 5.0
Hello,
1) By virtue of the family tree you provided your marriage was a sapinda marriage and such a marriage is not permissible under law.
2) However it shouldn't stop you from filing for a divorce. While you are filling for divorce you need not make any mention about your individual lineage.
3) Engage a lawyer locally and file for a mutually consented divorce. You will be able to get divorce pronounced by court on six months.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1. Your query is "Do we fall under Sapinda or we can file for divorce under HMA?",

2.The answer is Yes your marriage is illegal but is legal till it is declared by the Court as illregal/invalid  against application filed before the said Court praying for declaration that the said marriage of your is illegal on account of being a Sapinda marriage,

3. Since your marriage has not yet been so declared as illegal/invalid it is a legal and valid marriage,

4. However, without complicating the matter, file a MCD if you two have decide to part ways,

5. The will be no requirement for mentioning your Sapinda relationship in your MCD petition. So, you need not bother for the same.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
Hi,
 sec. 3(f) Hindu Marriage act says what is a sapinda relationship and  the marriage between sapinda is void. 
The act specifies that  if  customs  permits to sapindas to marry .in sec.5 (v)
sec.5 .V.The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
 If your custom permits you to marry your marriage is legal, for example in some part of Andrapradesh, Tamilnadu and in among hindus in Kerala sapinda marriage is accepted as a customary right.
 So if your local caste customs allows a marriage within the cousins it is legal and not void.

However  whatever the legality of the relationship , there was a marriage an d i t is registered , so it is necessary to get a court decree of divorce. Therefore it is necessary to file for divorce on mutual or individually under any other ground .
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
It easy to Obtain divorce by mutual consent compared to getting the declaration from the court about the invalidity of the marriage.

So go for divorce under HMA.
Sandeep Hegde
Advocate, Bangalore
361 Answers
97 Consultations
4.8 on 5.0
1. MCD is more proceed with than to obtain then the decree of nullity.
2. The petition for annulment of marriage is to be filed in civil court/court of district judge not in High Court.
3. If the other spouse admits the fact then the court may pass decree of annulment on admission for which around 6 months time is required.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1) the reason why all experts are recommending MCD is because you can get divorce decree by mutual consent in 6 months 

2) you had stated that we want divorce at the earliest and move on  at the earliest . hence  MCD is your best option .

3)if you dont want divorce by mutual consent   it is always better to get a marriage formally declared null and void by a Court of competent jurisdiction so that the fact of solemnisation of marriage (though void ab initio) is countermanded by the subsequent act of getting that marriage annulled.
Ajay Sethi
Advocate, Mumbai
23392 Answers
1229 Consultations
5.0 on 5.0
1. As per your first post, you wanted to have divorce,

2. So, you were advised to file MCD which is the quikest and most hassle free,

3. You can file a petition for annulment of marriage before your local Civil Court which will may take more than 6 months,

4. However, if your wife wants to file the said application for annulment of your marriage then you can opt for it sincer yours is a Sapinda relationship.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
Dear Querist

you or your wife may file an annulment petition before family court u/s 12 of the Hindu Marriage Act but this procedure will be take more then six moths.

do as you think fit but MCD will be better.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
131 Consultations
4.9 on 5.0

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