Shuaieb Anwar Khan (Human Resource Professional) 13 March 2014

Divorce if wife is not a hindu (hindu marriage act)

Hi Experts,

I have a friend who is currently seprated with her husband, She got married 10 years back according to hindu rituals in a temple with no documentations. She being a Roman Catholic and he being a Hindu. At the time of marriage she was 24 and her husband was 20 years (Underaged). No kind of regestiration were done even after her marriage. Both have a daughter of 8 years who stays with her. From past many years the wife been takin complete financial contol of her daughter and her house. Also the husband has fraud cases already regesterd with him. After 9 years both got partially seperated but were still in touch. Recently an act of Sexual assault and voilence made by the husband she decided to leave him completely (NC was also regesterd with the local police as he had done physical voilence ouside her office during her office timings, were she called the local police who took over the situation). Now as per a recent judgment by Bombay High Court "Divorce under Hindu Marriage Act applicable only if both parties Hindus – Bombay HC" {ref:// https://www.vakilno1.com/legalviews/divorce-hindu-marriage-act-applicable-parties-hindus-bombay-hc.html}, Now she has only her PAN and AADHAR card with the Husbands Last name and all other documents in her maiden name. Currently Were she is working the last name is in her Marriage name. Now she has decided to File a legal Divorce were she no longer wants to use her Marriage name only wants to use her MAiden name. So really would seek yours suggestion / help in filing a legal seperation and a case against his act and torcher that the female has incured recently and in her past.

Thanks |

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4 Replies

Joseph Wilfred (Voluntarily Retired from Indian Overseas Bank) 13 March 2014

DEAR QUERIST

DID SHE GIVE A GAZETTE NOTIFICATION WHILE CHANGING HER NAME THAT SHE HAD BEEN CONVERTED TO HINDUISM . BUT FOR CONVERTING FROM ONE RELIGION TO ANOTHER YOU MUST HAVE THE CONVERSION CERTIFICATE AND BASED ON THAT ONLY YOU CAN GIVE A GAZETTE NOTIFICATION . IF SHE HAD NOT GIVEN ANY GAZETTE NOTIFICATION FOR CONVERSION FROM ROMAN CATHOLIC TO HINDUISM , THEN SHE IS A ROMAN CATHOLIC ONLY . ALTHOUGH HER MARRIAGE IS PERFORMED AS PER HINDU RITES IT DOES NOT MEAN THAT SHE HAD BEEN CONVERTED TO THAT RELIGION . BUT NOW A DAYS THE PROCEDURE IS DIFFERENT . ONLY IF YOU GET CONVERTED TO HINDUISM , YOU CAN PERFORM YOUR MARRIAGE AS PER HINDU RIGHTS . BUT SINCE HER HUSBAND IS A HINDU SHE CANNOT CLAIM THAT HER MARRIAGE IS AS PER CHRISTIAN MARRIAGE ACT . BUT HER MARRIAGE IS AS PER HINDU CUSTOM ONLY .

SINCE BOTH BELONG TO DIFFERENT RELIGIONS , YOU GO AS PER THE DETAILS IN HER SCHOOL / COLLEGE CERTIFICATE . THERE IT WILL BE MENTIONED AS ROMAN CATHOLIC ONLY . IN ANY EVENT YOU DON'T GO FOR DIVORCE AS PER HINDU MARRIAGE ACT . BUT IF YOU OPT THAT , IN MAINTENANCE YOU HAVE SOME PRIVILEGES . BUT THERE ARE DRAWBACKS ALSO . THEREFORE YOU CHOOSE " SPECIAL MARRIAGE ACT SINCE BOTH BELONG TO DIFFERENT RELIGIONS ". FOR SPECIAL MARRIAGE ACT YOU HAVE TO FILE DIVORCE PETITION IN THE DISTRICT COURT OR IF YOU HAVE A FAMILY COURT IN YOUR AREA , YOU MUST FILE THE PETITION IN THE FAMILY COURT ONLY . THE PRESIDING OFFICERS OF THAT COURT ARE ALSO OF THE RANK OF DISTRICT JUDGES ONLY . FOR INFORMATION I AM PROVIDING THIS . IF THE MARRIAGE IS PERFORMED IN A ROMAN CATHOLIC CHURCH THEN YOU CAN PROCEED AS PER CHRISTIAN MARRIAGE ACT IN WHICH CASE YOU CAN DIRECTLY FILE THE PETITION IN TH HIGH COURT ITSELF. FROM MY EXPERIENCE I AM TELLING THIS . BUT MANY CHRISTIANS ARE FILING PETITIONS FOR DIVORCE AS PER HINDU MARRIAGE ACT ONLY AND ARE FIGHTING IN THE FAMILY COURTS . BUT IN 1998 I FILED A PETITION NOT FOR SEPARATION BUT FOR RESTITUTION OF CONJUGAL RIGHTS AS PER CHRISTIAN MARRIAGE ACT IN THE HIGH COURT AND THE FAMILY WAS JOINED - JOSEPH WILFRED - 13/03/2014 AT 16.05 HRS

Shuaieb Anwar Khan (Human Resource Professional) 13 March 2014

Hi Joseph,

Thanks for your reply.

on the below portal

https://www.lawyersclubindia.com/forum/Divorce-if-wife-is-not-a-hindu-hindu-marriage-act--99059.asp#.UyG5zqJHJc1

One of my friend suggested me to go for decree of nullity as a hindu marriage act only allows only two hindus to get married also her husband was at the age of 19-20years at the time of marriage.

Will the decree of nullity be a better option as the husband has fraud cases against him and has disappeared from last Three Months and wont be availabe further.

As She wants to move ahed in her life and the incomplete seperation is affecting her in the work and personal enviroment.

T. Kalaiselvan, Advocate (Advocate) 13 March 2014

Nullity at this stage is not maintainable. It is better she files a divorce petition under the provisions of Special Marriage act.

Joseph Wilfred (Voluntarily Retired from Indian Overseas Bank) 14 March 2014

DEAR MR. SHUAIEB

I HAVE ALREADY REPLIED TO YOUR PRIVATE MESSAGE . BUT YOU DID NOT MENTION IN THAT ONLY 3 MONTHS HAD PASSED FROM THE DAY OF THEIR SEPARATION. ONLY IN THIS I NOTICED THAT THE SEPARATION IS ONLY 3 MONTHS . SO YOU CANNOT WAIT TILL 2 YEARS . SO YOU FILE A PETITION FOR DIVORCE IN THE DISTRICT COURT OR IF THERE IS A FAMILY COURT IN YOUR AREA YOU FILE IT UNDER SPECIAL MARRIAGE ACT . BUT THE GROUND FOR DIVORCE IS " MENTAL CRUELTY " AND HER HUSBAND DID NOT LIVE AS PER THE DIGNITY OF A HUSBAND A WIFE WOULD EXPECT FROM HER HUSBAND AND THIS HAD CAUSED HER GREAT MENTAL AGONY AND SHE IS UNABLE TO LIVE IN THE THE SOCIETY KEEPING HIM AS HER HUSBAND. IF YOUR PETITION IS DISMISSED BY THE FAMILY COURT DON'T WORRY . YOU CAN WIN THE CASE IN THE HIGH COURT AS THERE ARE SUPREME COURT JUDGEMENT IN THIS MATTER . YOU COLLECT ALL THE EVIDENCE IN THIS MATTER - ALL POLICE COMPLAINTS LODGED BY DIFFERENT PERSONS , ALL CASES FIELD IN THE CRIMINAL COURTS AND PRODUCE THAT AS EVIDENCE . HE MAY COME AND SAY THAT , HE WILL AMEND HIS WAYS AND LIVE AS A GOOD HUSBAND . THE FAMILY COURT JUDGE MAY ASK YOU TO LIVE TOGETHER . YOU TELL THE JUDGE THAT YOU ARE HAVING A GIRL CHILD AND THE CASES THAT ARE ALREADY ON HIM WILL SPOIL THE CHILD'S FUTURE . IN SPITE OF THAT IF THE JUDGE DISMISSES YOUR DIVORCE PETITION , YOU GO ON APPEAL TO THE HIGH COURT ON THE BASIS OF THE SUPREME COURT JUDGEMENT. AS FAR AS POSSIBLE SUCH QUESTIONS, YOU SEND AS PRIVATE MESSAGE . BECAUSE THESE SUGGESTIONS MAY BE MISUSED BY SOME READERS TO TAKE ADVANTAGE OVER THEIR HUSBAND'S / WIFE'S - JOSEPH WILFRED - 14/03/2014 AT 14.00 HRS