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Aishwarya (Teacher)     17 January 2012

MCD & SS

If a person gets separated by "Samajik Samjhauta" wherein elders of both sides sign and agree,

that since the day they sign this "SS" both husband and wife may separate and are free to marry anywhere and no one shall interfere in the same.

 
Hence as per Samajik Samjhauta, both the boy and girl are free to marry again. 
 
Now with along with this "SS" one also file for an MCD as in need of a legal sanction too.
But as per MCD, Remarriage is not allowed till the expiry of the six months period.
 
In this situation, will the "Samajik Samjhauta" be applicable if a boy or girl goes to marry before the MCD is complete but free as they signed the SS.
Or does it attract further legal hassles .
 
Please throw some light...
 
Regards
Aishwarya


Learning

 11 Replies

Sanjeev (Lawyer)     17 January 2012

SS has no relevance in law a divorce degree is needed to remarry.

So until the second motion of MCD happens the marriage is not possible and if any of them marry that is invalid.

2 Like

Sameer12345 (SSE)     17 January 2012

Rightly Answered by Sanjeev...

 

Further more, Re-Marriege before MCD in Above Situation, attracts bigamy and other charges.

1 Like

**Vikram** (Managing Partner)     17 January 2012

What do people do in the villages..there Samajik samjhuta is final...

As suppose, one does not apply for MCD at all...and only does samajik samjhauta

 

Vikram

Aishwarya (Teacher)     17 January 2012

means the "ss"  has no value , but people use it , dunno why ?

Sameer12345 (SSE)     17 January 2012

Even Panchayat fesla is not final.... 

 

https://www.indianexpress.com/news/marriage-dissolved-by-panchayats-not-legal-d/672618/ (Supreme Court)

 

https://hindu.com/2002/02/02/stories/2002020203451000.htm (Supreme Court)

 

A Person may become aggrieved at any time, and files the case. It is better get Divorce from court only.

 

More over, a person may get opportunity to settle at abroad, At that time, so called "Samajik Samjota" and "Divorce Deed" obtained without going to court has no value. 

1 Like

(Guest)

 

@Aishwarya

Custom and law  both allowed but best route is take divorce from court so here i finally agree with Sameer advise.A Person may become aggrieved at any time and it will create problem .

Divorced persons when may marry again ?

Under THE HINDU MARRIAGE ACT, 1955   ,

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has dismissed, it shall be lawful for either party to-the marriage to marry again.

 

cm jain sir (ccc)     17 January 2012

now a days also in many plces people dont like to go to court and take divorce in samajik baithak, pay alimony and go ahead in life. Wat is the fate of this system? if somebody wants to trap a person then its a big trouble for him!


(Guest)

On this SS both family members are signing also thus it is not so easy to disobey.

Aishwarya (Teacher)     17 January 2012

I concur with the opinions given by all above, but still i dont understand that....

A legal procedure has its own value,  agreed 

but here the question lies moreover a doubt...

that if people are readily practising  SS in small towns and villages and even where respect and prestige issues are a major concern , then how to decide upon the value of this deed where people do sign it in good number in presence of people in authority at times..

then its no point following the whole process where it doesnt have a value base...

Shantanu Wavhal (Worker)     18 January 2012

divorce deed has no legal value (neither registered nor notarized nor any other) - it is not binding on either of the parties - any one party if challenges the said deed in court, then it becomes invalid.

 

only competent court can grant divorce.

 

out of court alimony settlement is not final legally

 

this is practised in rural & even urban areas as so many others are doing the same.

 

if SOMETHING is done & there is no problem, this does not mean that the said SOMETHING is legally valid

this is a point of legality & not acceptability


3 Like

(Guest)

 

@Aishwarya

Asked;

"how to decide upon the value of this deed where people do sign it in good number in presence of people in authority at times.."

Now what the judge said in this judgment;"We make it clear that we have otherwise not gone into the question as to whether there existed really any custom in the community to which the parties belong for divorce by mutual consent without intervention of the Court and it is for the Court to decide such fact on the basis of evidence that will be adduced by the parties."

Shilpa vs Jaydeepkumar on 28 November, 2011

From;https://indiankanoon.in/doc/1815846688/

This appeal is at the instance of a wife/plaintiff under Section 7 of the Family Courts Act, 1984 and is directed against the order dated 2nd August 2011 thereby rejecting the plaint under Order 7 Rule 11(a) of the Code of Civil Procedure.

 

 

Being dissatisfied the plaintiff has come up with the present appeal.

 

After hearing the learned counsel for the parties and after going through the material on record, we find that the appellant before us filed a suit for declaration that she is a divorcee on the basis of a settlement arrived at by the parties in terms of the custom prevailing in the community to which the parties belong. It appears that in the said suit, it was specifically averred that the factum of such divorce will be evident from deeds executed by the parties and it is also supported by affidavits by the senior members of the said community.

 

 

 

As indicated earlier, the learned Judge, Family Court instead of entering into merit, has by taking recourse to Order 7 Rule 11(a) of the Code rejected the plaint.

 

 

In our view, if we accept all the averments made in the plaint to be true, there is no escape from the conclusion that the plaintiff has made out cause of action for filing the proceeding and, thus, the learned Court below illegally held that there was no cause of action for filing the suit. As pointed out by a Division Bench of this Court in the case of Dipika Amrutbhai Patel vs. Vishwam Parmanand Patel reported in 2011 (1) GLH 457 Sections 7 and 8 of the Family Courts Act enables the Family Court to entertain suit for declaration and dissolution of marriage by customs of the parties and, thus, it was not a fit case for rejection of the plaint without entering into merit. We, therefore, set aside the order impugned and direct the Family Court to decide the suit on merit.

 

 

We make it clear that we have otherwise not gone into the question as to whether there existed really any custom in the community to which the parties belong for divorce by mutual consent without intervention of the Court and it is for the Court to decide such fact on the basis of evidence that will be adduced by the parties.

 

 

With the above observations, the appeal is allowed. No order as to costs.

 

 

In the facts of the present case, we are also convinced that the proceeding requires expeditious disposal and as such we direct the Family Court to positively dispose of the proceeding within three months from the date of communication of this judgment and no unnecessary adjournments should be granted to either of the parties.

 

 

(BHASKAR

BHATTACHARYA, ACTING CJ.)

 

 

 

 

(J.B.

PARDIWALA, J.)

1 Like

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