Kevin Moses Paul
30 August 2021
As per your query, let me inform you that the absence of registration of marriage does not render the marriage illegal. Thus, a marriage without registration is perfectly legal, as you were married for all legal and practical purposes you can dissolve the marriage only through a decree of divorce passed by the competent court.
This is because a marriage done in a temple in accordance to all the Hindu rites and customs including the ritual exchange of garlands, taking 7 steps around holy fire is as good and valid as any Registered Marriage.
Henceforth, you can proceed for divorce with mutual consent if both of you have a positive agreement towards it. However, in case of non-agreement of your spouse, you will have to file a divorce petition on the basis of grounds for divorce as per the Hindu Marriage Act, 1955 in a court of law that has competent jurisdiction over the matter.
Any marriage solemnised, whether before or after the commencement of this Act (i.e. the Hindu Marriage Act - 1955), may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the following grounds :-
1.) that the other has, after the solemnization of the marriage, had voluntary s*xual intercourse with any person other than his or her spouse or
2.) has after the solemnization of the marriage, treated the petitioner with cruelty or
3.) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition, or
4.) has ceased to be a Hindu by conversion to another religion or has been incurably of unsound mind, or
5.) has been suffering continuously or intermittently from mental disorder of such a kind and therefore, the petitioner cannot reasonably be expected to live with the respondent.
The Hindu Marriage Act, 1955 originally, based divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) on which either the husband or wife could sue for divorce, and two fault grounds in Section 13(2) on which wife alone could seek the divorce.
The grounds for Divorce as per HMA, 1955 are as follows:-
⭕Adultery -
In adultery there must be voluntary or consensual s*xual intercourse between a married person and another, whether married or unmarried, of the opposite s*x, not being the other’s spouse, during the subsistence of marriage.
Thus, intercourse with the former or latter wife of a polygamous marriage is not adultery.
However, if the second marriage is void, then s*xual intercourse with the second wife will amount to adultery.
⭕Cruelty -
The modern concept of cruelty includes both mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore; each case has to be decided on the basis of its own set of facts.
⭕Desertion -
Desertion means the rejection by one party of all the obligations of marriage- the permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other. It means a total repudiation of marital obligation.
⭕Conversion -
When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam, Christianity, Judaism, Zoroastrianism, a divorce can be granted.
⭕Insanity -
Insanity as a ground of divorce has the following two requirements-
i) The respondent has been incurably of unsound mind
ii) The respondent 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.
⭕Leprosy -
Contagiousness of leprosy and repulsive outward manifestations are responsible for creating psychology where man not only shuns the company of lepers but looks at them scornfully. Thus, it is provided as a ground for divorce. The onus of proving this is on the petitioner.
⭕Venereal Disease -
At present, it is a ground for divorce if it is communicable by nature irrespective of the period for which the respondent has suffered from it. The ground is made out if it is shown that the disease is in communicable form & it is not necessary that it should have been communicated to the petitioner (even if done innocently).
⭕Presumption Of Death -
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at least seven years. The burden of proof that the whereabouts of the respondent is not known for the requisite period is on the petitioner under all the matrimonial laws. This is a presumption of universal acceptance as it aids proof in cases where it would be extremely difficult if not impossible to prove that fact.
Hope the relevant information provided above helps!
Regards,
Kevin M. Paul
