• Divorce in the case of inter-religious marriage

I am currenly living in Singapore, having been seperated from my husband since October 2013. I am Christian and my husband is Hindu. We were married at a temple in Kochi, Kerala in September 2003. Our marriage was not registered. I did not convert to Hinduism before or after the marriage. We have decided we do not want to live together and we want to get a divorce. After being separate for more than one and a half year, we are sure we want to live seperately. Please let me know how to get a divorce, because i have been told that my marriage is not legal. However, my passport lists my ex's name as name of spouse. I would like to delete it. I greatly appreciate advice on how to get a formal document stating that i am no longer married. Thank you.
Asked 3 years ago in Family Law from Singapore
Religion: Christian

1) By virtue of section 5 of the Hindu Marriage Act 1955, a marriage will be valid only if both the parties to the marriage are Hindus. If one of the parties to the marriage is a Christian or Muslim, the marriage will not be a valid Hindu marriage 

2)since you did not convert your marriage is null and void 

3) you cannot file petition before family court for divorce as provisions of HIndu marriage are applicable when both parties are hindus . 

4) family court would have no jurisdiction to entertain your application for declaration  t hat marriage is a nullity or for grant of divorce 
Ajay Sethi
Advocate, Mumbai
46645 Answers
2759 Consultations

5.0 on 5.0

 BOMBAY HIGH COURT  in case of Smt. Neeta Kirti Desai vs. Bino Samuel George, 1998 (1) Bom. C.R. 263, has
laid down that when both the spouses are Hindus, they are regulated
under the Hindu Marriage Act. If one of the party to such marriage is not Hindu the provisions of Hindu Marriage Act, 1955 cannot be invoked to seek the remedy under the said Act. The Family Court Act creates a forum. 
as not settled the rights and obligations between the parties viz. restitution of conjugal rights,
judicial separation, nullity of marriage and divorce.When both the spouses are Hindus, they are regulated
under the Hindu Marriage Act, 1955. Undisputedly,petition was presented on the ground that at the time of
marriage, petitioner's husband was a Christian. If that be so, having regard to the provisions of section 2, the
Hindu Marriage Act, 1955 has no application for seekingany of the reliefs including the nullity of the marriage
Ajay Sethi
Advocate, Mumbai
46645 Answers
2759 Consultations

5.0 on 5.0

Dear Querist
you may file an annulment petition before family court or area under section 12 of Hindu Marriage Act-1955 and pray for annulment of this marriage and declare this marriage as Null & Void ab-initio.

12 Voidable marriages .?
(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:?
12 [(a) that the marriage has not been consummated owing to the impotence of the respondent; or]
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 13 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force 14 [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage?
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if?
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied?
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 15 [the said ground].
(i) Non-disclosure of age and factum of having major children by husband at the time of marriage amounts to fraud and suppression of material facts having bearing on marriage. Marriage founded on fraud from very inception is a nullity; Sunder Lal Soni v. Smt. Namita Jain, AIR 2006 MP 51.
(ii) Misrepresentation as to the age of the bridegroom made to the mother who acted as an agent and the daughter consented for the marriage believing the statement to be true. It was held that the consent was vitiated by fraud; Babui Panmate v. Ram Agya Singh, AIR 1968 Pat 190.

5 Conditions for a Hindu marriage. ?A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:?
(i) neither party has a spouse living at the time of the marriage;
2 [(ii) at the time of the marriage, neither party?
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity 3 [***];]
(iii) the bridegroom has completed the age of 4 [twenty-one years] and the bride, the age of 5 [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(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;
6 [***]
(i) A marriage between a Hindu man who converted as Christian and a Christian lady in a Hindu form is not a valid marriage. According to section 5 of the Act marriage can be solemnised between two Hindus; M. Vijayakumari v. K. Devabalan, AIR 2003 Ker 363.
(ii) To draw an inference merely from the fact that the spouses had no co-habitation for a short period of about a month, is neither reasonable nor permissible. To brand the wife as unfit for marriage and procreation of children on account of the mental disorder, it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a normal married life; R. Lakshmi Narayan v. Santhi, AIR 2001 SC 2110.
Nadeem Qureshi
Advocate, New Delhi
4875 Answers
224 Consultations

4.9 on 5.0

1. You could not have married in the temple unless both of you were Hindus. 

2. Since both of you are ready to end your marriage the best bet for you is to file for mutual divorce without touching the issue of the marriage being illegal. 

3. If either of you back out of the mutual divorce proceedings the only legal recourse available to end the marriage will be to file for annulment which may or many not succeed.

4. Subsequent to the judgment of the court you will be at liberty to apply to the passport authorities to delete your husband's name from the passport.

5. You cannot execute a document to the effect that you are no longer married. It will have no legal force. 
Ashish Davessar
Advocate, Jaipur
23092 Answers
639 Consultations

5.0 on 5.0

Your husband's  name as spouse cannot be included in the passport without a valid documentary evidence to prove that he is your husband, so here, the marriage certificate is the legally valid document or an affidavit executed and affirmed by both jointly to confirm your marriage.  
Thus, though your marriage was not solemnised properly or legally, the proof for marriage has already been established vide the said document  i.e., passport. Therefore dissolution  of marriage by   a decree of divorce is the legal solution to your problem.  
You can file a divorce case  under the provisions of special marriage act though it has not been  registered.The reasons for having not registered the marriage should be specifically stated in the divorce suit or else you will be required to produce the marriage certificate.
If your spouse is not willing to continue the married life with you anymore, you may ask him to give his consent for mutual consent divorce under the same act.
But it is pertinent to obtain divorce by the order of a court of law without which it cannot be held legally valid.
T Kalaiselvan
Advocate, Vellore
36776 Answers
403 Consultations

5.0 on 5.0

1. The temple authority certainly hqs issued a certificate about your temple marriage,

2. Negotiate with your husband and file a mutual consent divorce petition whivch will be decided within 6 and 1/2 months from the date od its filing,

3. MCD will be the best since both of you want to be seperated from each other.
Krishna Kishore Ganguly
Advocate, Kolkata
18741 Answers
452 Consultations

5.0 on 5.0

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