The principle question is private international law i.e. whether a marriage which was solemnized in India can be dissolved by the court in the US. Seeing the various cases settled by the high courts and the Supreme Court of India, it looks the judges decided each case on its merit and special set of circumstances and requirements.
For instance, if you got married in India but got divorce in the US through mutual consent, it will be valid, legal and binding in Indian Courts by virtue of section 13 and 14 of Code of Civil Procedure and also on account of comity of Nations. The law for such a divorce is settled and does not even need validation in Indian Courts.
However, the trouble for divorces that have been given on the grounds that are not available in India under the law i.e. Hindu Marriage Act or Special Marriage Act, they can be challenged. Contested Divorce is not valid and binding; there are certain equations that must be correct in order to get enforced.
What Happens When Divorce is contested in India?
In case you did not contest the divorce in the US, you can contest it in India where the marriage took place as divorce granted by foreign Court will not be applicable. At the same time if you want your spouse not to file a divorce case in the US, you can file a case in India and prevent him from proceeding in the US Court.
Moreover, as Indian Courts have jurisdiction over its citizen, ex-parte decree of divorce granted by the court in the US won’t be valid. The Section 13 of Code of Civil Procedure talks about recognition of Foreign Judgments in India and reading this and various judgments from the Supreme Court it’s clear that any foreign judgment if opposed to natural justice, founded on breach of Indian law or obtained by fraud, would not be recognized in India.
Therefore, an ex-parte divorce won’t get recognition, particularly when the party was not contesting it. Thus, except for the divorce obtained through mutual consent and where the both parties contested for the divorce, there are no other options for you to get divorce in the US.
The simple law in India is that if you obtain a divorce decree in the US which is not recognized in the Indian Courts on the ground that the US court had no jurisdiction over the matter, the marriage is recognized in India but annulled in the US.
If you are married under the Hindu Marriage Act, 1955, you have several grounds for divorce provided by the law itself. Here we are discussing all the grounds mentioned in Section 13 of the Act that you can base you case for divorcing your partner.
You can file for divorce:
- If your husband has renounced the world by entering any religious order;
- If he has not been heard of as being alive for a period of seven years or more by persons who would have naturally heard of it, had that party been alive;
- If he has after the marriage had voluntary sexual intercourse with any other person;
- If he is treating you cruelly;
- If he has deserted you for a continuous period of not less than two years immediately preceding the presentation of the petition;
- If he has ceased to be a Hindu by conversion to another religion;
- If he is suffering from incurably of unsound mind or has been continuously or intermittently from a mental disorder that you cannot reasonably be expected to live with such a person;
- If your husband is suffering from a virulent and incurable form of leprosy;
- If he is suffering from venereal disease in a communicable form;
Some Additional Ground Available for you to file for Divorce
The above mentioned grounds are available for both husband and wife; however, there are some additional grounds that are available only for wife; For instance, if your husband has been found guilty of rape, sodomy or bestiality, you can ask for divorce. Similarly, if your marriage whether consummated or not was solemnized before you attained the age of 15 years, and you want to divorce, you can do so.
Alternate relief in divorce proceedings Under Section 13A
There is also a provision for an alternative relief for parties wherein a court can pass a decree for judicial separation on a petition for dissolution of marriage. The proviso is that it should not be on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13.
The government has also proposed a law under Irretrievable Breakdown of Marriage Bill which allows a wife to file a No-Fault Divorce. If the law is passed you can file a case for divorce if you realize the marriage is beyond any repair and there is enough ground to believe it.
India’s constitution guarantees its citizens fundamental rights including of freedom; however, this right is curtailed when the citizen, even non-citizen commits some crime that asks the law enforcement bodies to detain, arrest or take the person to custody. Also, thanks to a lot of incidence of violence and torture in custody, the violation of fundamental rights also visible.
The first landmark decision about the guidelines on arresting a person came from the Supreme Court of India in D.K. Basu vs. State case. Here the Apex court laid down some specific requirements to be followed by the police for arrest, detention and interrogation of any person, purportedly to obviate the possibility of torture in custody.
However, there were different circumstances for women in India which were going through a lot of issues when they were being arrested or detained. A lot of cases of sexual harassment cases forced the Apex court and consequently the legislators to come up with the arrest guidelines specific for women.
Following are The Guidelines to be followed by Cops While Arresting Women
First, the police officer is duty bond while making arrest to see that arrested females are segregated from men and kept in female lock-up in the police station. He/she must also make sure that if there is no separate lockup; women are kept in a separate room. Also, women police officers should be associated where females are being arrested.
Second, the cops arresting women must avoid the time between sunset and sunrise; this guideline was issued after several instances of sexual and physical exploitation in police stations by the cops themselves.
Third, according to the guideline women and girls should not be called to the police station or to any place other than their place of residence for questioning. Also, while the inquiry is being done, the time must be chosen the arrestee is not embarrassed.
Fourth, in cases where medical examination of the arrestee or any other women has to be done, it should be carried out only under the supervision of female medical practitioners. Also, arrestee should be given all necessary pre-natal and post-natal care.
Fifth, the cops must avoid arresting pregnant women and choose the option only if there is no other option as it’s not just the matter of the arrested woman but also the safety of the fetus which could get damaged in hustle-bustle. Also, laboring women must never be restrained.
Least but not the last, girls and women should be guarded by female constables/police officers and if any questioning is done, it must done in presence of female cops.
Recently, Women and Child Development Minister Maneka Gandhi showed her concern towards the protection of women who face abuse from their sons and daughter-in-law and sought an amendment to the Domestic Violence Act. However, it did not occur to her that thousands of men too have been framed and sent to jail by scheming wives abusing the DVA.
Though it’s true that a lot of abuse is done to women in homes that don’t fall in the category of wife and they must need a cover under the Domestic Violence Act and for that an amendment to the law is essential, the minster must have given her thought to those who are languishing in jail for the no wrong on their part.
When Maneka Gandhi said that many cases have been brought to the notice where elderly women have been misbehaved with or even tortured by their sons and daughters-in-law for property or other reasons, there must be law to provide them protection, she forgot to mention that a lot of women like mother-in-law also face arrest under IPC 498A.
In fact, 498A has been abused to the extent that many elderly women in their 80s have been sent to jail. Should she not also talk about amending 498A so that its abuse is stopped and the concern she is showing for mothers and elderly is addressed as well. Whereas she is talking about amending the DVA to help women, there is one law that is being used to harass them.
Domestic Violence Act does not Provide Protection to Men
According to Save Indian Family Foundation it’s not just women but men too face domestic violence; however, as it is not recognized by the law the cases don’t come to front. A major reason behind the legislators ignoring the men being made subject to domestic violence is the wrong perception in the patriarchal society that men cannot be victims.
Rather than focusing on the substantive abuse of the DVA, the Women and Child Development Minister is trying to amend the law and make it even better tool than 498A in the hands of women to abuse it for the malafide purposes.
Should not the men too should be given protection under the DVA as any cruelty or violence is wrong per se and giving protection only to one gender is against the natural justice at least from the number of cases where women used it to settle score have gone up, recently.
You can file a written complaint before the District Consumer Forum for pecuniary value of up to Rupees twenty lakh and to State Commission for value up to Rupees one crore and the National Commission for value above Rupees one crore in situations you feel the services or goods provider did not respect your consumer rights which may come in defective goods and deficient services.
It’s not that if you file consumer complaint in consumer court you waive your right to file civil suit. You can still look for the civil suit as that is the main remedy; consumer protection complaint is a quick remedy under the Consumer Protection Act wherein complaint/appeal/petition submitted under the Act does not ask for any court fees but only a nominal fee.
Moreover, as Consumer Forum proceedings are summary in nature, you can seek swift justice. You must check if any sub-rules have been passed in your state or union territory as the Act allows this freedom to respective governments i.e. State Forums and National Forums may have their own rules.
The Procedure for Filing Complaint before the District Forum
- This one is the most important, there is time limit to file the complaint to the consumer forum i.e. it must be filed within two years of the cause of action and if there are reasonable causes for delay in filing the complaint, you can always request the Consumer Forum to condone the delay.
- Though you can file a handwritten complaint, typed complaint will make things easy not just for the adjudicating officer but for you and the respondent. Ideally, it should be double spaced, with at least 1½ inches of margin space on the left, top and bottom like any standard document.
- Arrange the complaint in order and give page number all documents for convenience. For instance, if you are submitting application for condonation of delay in situation there is some delay, you should put it before all documents.
- You complain should have details of the grievance, put in the language that can be comprehended by the officer and the respondent. Preference should be to put in a narrative and chronological manner and must come with what the issue is and what relief you want from the complaint.
- Best part is, you can appear before the Consumer Forums in person and don’t need any lawyer to represent your case. Even your close relative can appear for you. However, if you wish to hire a lawyer to represent you, you must enclose a Vakalatnama, you may prefer this if you are busy and don’t want to do paperwork and attend the hearing.
- Place affidavit that the contents of the complaint are true and put the copies of all documents on which you rely upon in support of your Complaint. You also need to submit one original and two photocopies of the same. Also, you should submit as many more copies as there are parties.
- Being a complainant, you are also asked to send notice in writing to the supplier or service provider you are complaining against. Make sure the notice is simple, clearly pointing out your grievances, and requesting the supplier or service provider to rectify the faults, defects, etc. or replace the goods.
- You are also required to give ample time to the respondents to either address the issue you raised or come prepared in consumer forum. Make sure that the notice you sent reaches to the respondents/defendants and for that send it to the address where they are actually available.
What Happens Once You Have Fulfilled All Conditions
You are asked to be present on the said date at the Consumer Forum office. If you have asked a lawyer to represent you, he will do this for you. During the admission of the case, you or your lawyer records the presence, whereupon a date is assigned in future. The time is taken to allow the complaint copy to reach to the opposite party.
The next hearing takes place when both the parties are present and the adjudicating officer asks to submit affidavits, written arguments, etc. Verbal arguments are listened during this and subsequent hearings which generally take place in some 15 days apart.
What if You Missed the Hearing?
In situation you were unable to represent your case as you were engaged somewhere else you can call up the PRO and get the next hearing date by giving the complaint number and the date of the hearing you missed. However, make sure that if you are absent at two consecutive hearings, the Consumer Court reserves its right to struck out the case. Even then there is some hop in the form of a letter that you can write addressing the Forum within a month of closure.
What after Order/Ruling?
As consumer forum hearings are summary decisions, it does not take much time to decide and you can get your issues addressed within a couple of months. The adjudicating officer delivers the order after verbal arguments on or after 15 days. You must show your presence on the day of the passing of the order.
In situation you are not satisfied with the order passed by the Consumer Forum, you may appeal against it within one month of the date of the order, with the appellate authority. However, if there is no appeal, and not compliance, the court has right to issue an arrest warrant against the defaulter.
In an attempt to amend and codify the law relating to marriage among Hindus, the Hindu Marriage Act, as part of the Hindu Code Bill, was passed by the Parliament of India in 1955. The law brought in some new concept to Hindu marriage which was alien. For instance, it was for the first time that legal separation and divorce were introduced to Hindu marriage by this law.
Apart from bringing up uniformity of law for all sections of Hindus, the Hindu Marriage Act has been able to regulate the personal life among the Hindus, especially their institution of marriage, legitimacy of marriages and conditions for divorce and applicability, etc. amongst others. It recognizes all non-Abrahmic religions as Hindus.
Thus, the Hindu Marriage Act is applicable to Jains, Sikh, Buddhists, and Prarthana, Arya and Brahmo Samajas as well. The Act has balanced the matrimonial laws of Hindus and made them comparable with the ones available in the western democracies. The insertion of clauses for divorce gave the much needed respite to the failed marriages.
The Hindu Marriage Act Made Divorce Easy, Yet a Lot of Court Cases Pending
Now, under Section 13 of the Hindu Marriage Act and Section 27 of the Special Marriage Act, any party file a suit for divorce on the various grounds mentioned specifically. Similarly, Section 13-B of the Hindu Marriage Act and Section 28 of the Special Marriage Act provide for divorce by mutual consent.
A lot of efforts are being made to facilitate divorce in situations where the marriages have become living hell. However, a major concern even now is that a lot of divorce cases are pending with the courts. The Indian government has responded to a rise in marital breakups and a backlog in divorce cases and proposing an amendment to make it easier.
Is Registration of Marriage Essential Under the Hindu Marriage Act?
The Section 8 of the Hindu Marriage Act says that the state government may make rules for the registration of Hindu marriages that the parties to any of such marriages may have particulars relating to their marriages entered in such a manner and subject to such conditions as may be prescribed in the Hindu Marriage Register.
A lot of governments like Delhi NCR have the compulsory registration of the Hindu marriage. The section was added for facilitating the proof of Hindu marriages, particularly wherein the rituals are ambiguous and may create an impression that the marriage was never solemnized. In such situations the relief that is needed from marital disputes is not available for the parties.
Various celebrities in Bollywood and elsewhere have interfaith marriages and they never had any problems while getting married; however, there are a lot of troubles for ordinary people in India to get married if their faiths are different. A major reason behind the hurdles on interfaith marriage put by Hindus and Muslims is that it is looked down.
To avoid interfaith marriages, both the Hindu and Islamic Marriage Acts have labeled marriage to someone from the opposite religion as void. However, this does not mean that if two persons want to get married there is no solution provided by the constitution of India. The solution came in the form of Special Marriage Act, 1954.
When the parliament of India passed the Special Marriage Act of 1956 to provide some legal recognition to people in a Hindu-Muslim marriage, the legislators had thought that it would help in the national integrity and provide the much needed respite to the people who cannot get married the traditional way of their religions.
However, this Act does not override the separate clauses of the Hindu and Muslim laws as it says that the spouses continue to be bound by the laws of their respective religions, unless one of them gets converted.
If a Hindu does not convert, he/she does not lose the right to inherit the property by succession or the same applies to Hindu Coparcener’s right in an Ancestral Hindu Property.
Who is Eligible to Get Married under the Special Marriage Act?
The Special Marriage Act does not recognize every marriage; there must be some conditions fulfilled before a marriage is recognized by the Act e.g. the marriage is a civil contract, involving no form of rites or ceremonies, both parties must not be involved in any other existing valid marriage.
Similarly, the parties should not be mentally incapacitated, and must be capable of giving a valid consent for the union and the bride must be at least 18 years old, and the bridegroom must have attained 21 years. Every marriage officer must solemnize the intended marriage; however, if he refuses to do so, parties can appeal to the District Court within 30 days.
Advantages of Getting Married under the Special Marriage Act
It is sufficient to say that not just interfaith marriage, but Special Marriage Act also encourages swift procedure of marriage. If you have arranged all relevant and required documents beforehand, it hardly takes more than 10-20 minutes go get married under the Special Marriage Act.