DIVORCE
Ghanshyam Adv.
(Querist) 27 May 2009
This query is : Resolved
My client's marriage was held according to Hindu Rites but was registered under Special Marriage Act. Now his wife does not allow him to have a physical relations with him.
My client wants to file a divorce.
Under which Act he should move for divorce.
Suhail suhail
(Expert) 28 May 2009
WEll i feel sorry about those couples who opt for divorce at the prime instance,it is a social concern to be in the whirlpool of separations of a very precious and un- matching relationship of husband and wife,i request to see if there is possibility of being united instead of separation,and thought we are humans and may be some kind of misunderstanding,or breach in faith or else being reason for divorce would have been dealt with open and clear understanding.However it appears from your query that you have made up your mind to get divorce;
You can file petition under both the acts i.e. hindu marriage act and special marraige act;but preferable is to file the petition under hindu marriage act as that is the legislation governing the relationships between hindu families. The ground seems cogent if it is true that your wife does not lets you to have the normal physical relationship for which whatever reasons she might be having is the duty of law and justice to decide.
File petition under "HINDU MARRiAGE" ACT.
SANJAY DIXIT
(Expert) 28 May 2009
Special Marriage Act, 1954
S. 15. Registration of marriages celebrated in other forms.
Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872, (3 of 1872) or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely –
(a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;
(b) neither party has at the time of registration more than one spouse living;
(c) neither party is an idiot or a lunatic at the time of registration;
(d) the parties have completed the age of twenty-one years at the time of registration;
(e) the parties are not within the degrees of prohibited relationship:
Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and
(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.
S. 18. Effect of registration of marriage under this Chapter.
Subject to the provisions contained in sub-section (2) of section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents:
Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.
Mere reading of S.18 of Special Marriage Act, 1954 the words "as from the date of such entry, be deemed to be a marriage solemnized under this Act" clearly shows that the marriage solemnized in any manner but registered under SMAct, will be dealt with SMAct.
So Your client should move divorce under Special Marriage Act.
adv. rajeev ( rajoo )
(Expert) 28 May 2009
It is not clear in your question whether husband and wife belongs to different castes. If their marriage is intercaste then under special marriage act divorce pettion will have to be filed.
Khaleel Ahmed Mohammed
(Expert) 28 May 2009
Dear Ghanshyam,
You are here by advised that, in your present circumstances, you should file a civil suit for resitution of conjugal rights against wife.
In your case there is no specific ground to prove for divorce as per Hindu Law.
RAKHI BUDHIRAJA ADVOCATE
(Expert) 29 May 2009
The wife does not allow the husband to have any physical realtions is a sufficient ground of divorce, but u will have to prove it in the court.
B.B.R.Goud.
(Expert) 01 June 2009
whether it is a marriage as per hindu custom or other, it was registered under special marriage act.
the divorce petition can be filed, stating refusal of sexual intercourse which comes under cruelty Sec 498A of IPC.
