• Divorce procedure for a couple from different religion who haven't registered under SMA 1954

Hi,
A friend of mine, who was raised as a Catholic married a man, who is a Hindu, five years ago. They got married in a temple infront of friends but didn't sign any registers there and haven't registered under special marriage act. They have been living together since but have no children. The husband has been abusive and she had to suffer multiple instances of domestic violence and now wants to get out of the marriage. Considering they haven't registered under SMA 1954, is this marriage valid? What's the procedure for getting out of this? Should she file for a divorce or annulment?
Asked 4 years ago in Family Law
Religion: Christian

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14 Answers

1. If the man was a Christian and the woman was a Hindu then the arriae without registration of marriage under SMA is not valid and it is a nullity.

2.Without registration also a marriage can be valid if performed beofre a temple as per Hindu rites and customs but both the aprties will have to be Hindus.in this case since the marriage was inter-religion without registration under SMA the marriage is null and void.

3.Now it is also well settled that if ariage is null and void ab initio then decree of court is not essential.

4.however to remove any doubt as regards the marital status of the parties it is essential that she files a suit for declaring the marriage a nullity.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Dear Sir

1. The couple living together is sufficient to say Husband and Wife.

2. Marriage Valid

3. She has to file the divorce before the court

Need some more information to give more clarity and opinion. Feel free to reach to us on the above points.

Shettar SS
Advocate, Bangalore
182 Answers
1 Consultation

4.4 on 5.0

As per S.42 of the SMA, even if the marriage is not solemnized as per the provisions of SMA, still it will not affect the validity of any mode of contracting the marriage.

Thus, a petition for dissolution can be filed under the provisions of this act.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

1)since girl did not convert into Hinduism marriage is a nullity

2) for valid marriage it is necessary that both parties be Hindus

3) wife should file petition for declaration that marriage is nullity as she did not convert into Hinduism

Ajay Sethi
Advocate, Mumbai
87895 Answers
6207 Consultations

5.0 on 5.0

Only marriage solemnised under special marriage Act can be dissolved through divorce under the said Act. The said marriage is under purview of Hindu marriage Act and the divorce will not be entertained in any other Act.

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

Dear Friend,

You may get issue a legal notice and then proceed to get divorce by filing a divorce petition as per following procedure:

23. Judicial separation.-(1) A Petition for judicial separation may be presented to the District Court either by the husband or the wife.-

(a) on any of the grounds specified in sub-section (1) and sub-section (1-A) of Sec. 27 on which a petition for divorce might have been presented;or

(b) on the grounds of failure to comply with a decree for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.

(2) Where the Court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition rescind the decree if it considers it just and reasonable to do so.

CHAPTER VI

Nullity of Marriage and Divorce

Section 24. Void marriages

(1) Any marriage solemnized under this Act shall be null and void (and may, on a petition presented by either party thereto against the other party, be so declared) by a decree of nullity if-

(i) any of the conditions specified in Cls.(a),(b), (c) and (d) of Sec. 4 has not been fulfilled : or

(ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.

(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under the Act within the meaning of Sec. 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in Cls.(a) to (e) of Sec. 15:

Provided that no such declaration shall be made in any case where an appeal has been preferred under Sec.17 and the decision of the District Court has become final.

Section 25. Voidable marriages

Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity, if-

(i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage ;or

(ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or

(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872):

Provided that in the case specified in Cl.(ii) the Court shall not grant a decree unless it is satisfied-

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(b) that proceedings were instituted within a year from the date of the marriage; and

(c) the marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of existence of the grounds a decree :

Provided further that in the case specified in Cl.(iii), the Court shall not grant a decree if,-

(a) proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or

(b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or as the case may be, the fraud had been discovered.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Hi,

Even if there is no registration but there must be other evidence to prove the marriage.

She needs to file a divorce petition under this act to get the divorce, maintenance and alimony that is her write.

I don't see any problem in this.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1) the marriage is not valid as per SMA, 1954, so you can get out of this by apply annulment.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Since that marriage is not registered and both parties belong to different religion the marriage is null and void. Better to file a suit declaring the marriage is a nullity.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Hello,

Since the marriage is not a valid marriage as per the Hindu Marriage Act, therefore the appropriate remedy will be to file a suit for annulment of the marriage.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Respected sir/mam...

There are number of Case's where a marriage is not registered under any of acts but it's does not mean that marriage have not been solemnized ...In your case if you want to take divorce then just file a divorce petition under section 27 of of special marriage act which states grounds for divorce..As Section 27. Divorce

(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-

(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 proceeding the presentation of the petition; or

(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); or

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or

(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

(g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or

(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;

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.

Wife will be entitled to get money a form of maintenance under section 125 of crpc though she have to file a petition...For it ...It is a duty of husband to maintain his wife and court will order him for giving maintenance...

Thank you

Dinesh Sharawat
Advocate, Delhi
1258 Answers
12 Consultations

4.9 on 5.0

Annulment petition under section 12 of the Hindu Marriage Act-1955 can be filed before the family court or district court.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

This marriage was illegal from day one and hence, it is void(bad) ab initio(since the very beginning).

To be valid, this marriage ought to have been registered under the Special Marriage Act.

Your friend can simply walk out of this, since this marriage is having no legitimacy at first place.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

She was raised as a catholic Christian but actually she do not belong to Christian religion, hence she can be considered as a Hindu, therefore there is no necessity to get her marriage registered under special marriage act nor it can be considered as inter religion marriage.

The marriage solemnized in a Hindu temple can very well be safely concluded that she married as per Hindu laws only.

With the proof of marriage, she can file a petition seeking dissolution of marriage under Hindu marriage act, before that she can ask him to agree for mutual consent divorce, if he his not responding then she may file a contested divorce on the grounds of cruelty.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

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