Tuesday, November 21, 2006

LEGAL ADVICE - MARRIAGE

The High Level Committee on People of Indian Origin was told by large sections of the Diaspora about the need to prevent abuse of Indian women married to NRls/PIOs. The panel strongly recommend that a special cell should be created in the proposed new organisation to handle Diaspora issues with the mandate to assist in the provision of free legal counseling for the families of girls contemplating marriage to NRls/PIOs.
Such families should be advised to check the voter or alien registration card of such NRIs/PIOs, their social security number and tax returns for the preceding three years. The bridegroom should be asked to give them an affidavit stating his current marital status.
That document should be attached to the application for marriage registration. This should be a mandatory pre-requisite to the issuance of a marriage registration certificate. This procedure would considerably bring down cases of misinformation and fraudulent marriages.
The Committee has drawn strength from the Supreme Court decision in the case of Smt. Neeraja Saraph vs. Shri Jayant Saraph, where the court had suggested the need to consider legislation safeguarding the interests of women. It had suggested three specific provisions, namely,
(1) No marriage between an NRI and an Indian woman, which has taken place in India, may be annulled by a foreign court.
(2) Provision may be made for adequate alimony to the wife in the property of the husband both in India and abroad.
(3) The decree granted by Indian courts may be made executable in foreign courts both on the principle of comity and by entering into reciprocal agreements like section 4A of the Civil Procedure Code, which makes a foreign decree executable, as it would have been a decree passed by that court.
Check out this simplified version of Hindu Marriage Act.

THE HINDU MARRIAGE ACT, 1955
As Amended by [Act No. 2 of 1978] An Act to amend and codify the law relating to marriage among Hindus.
(1) Short title and extent- Sec.1
This Act may be called the Hindu Marriage Act, 1955.
It extends to whole of India except the state of Jammu and Kashmir, and applies also to Hindus who are residing abroad.

(2) Application of Act -Sec.2
This Act applies to those who are Hindus, Buddhist, Jaina or Sikh by religion, but not to Muslim, Chirstian, Parsi or Jew by religion. Their respective Acts governs them.
Explanation -The following persons are Hindu, Buddhists, Jainas or Sikhs by religion, as the case may be:
a. Any child, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion.
b. Where only one of the parents is Hindu, the child only then will be considered as Hindu.
c. Any person who is a convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion.

(3) Conditions for a Hindu Marriage- Sec.5
i. Neither party (husband or wife) has a spouse living at the time of marriage, otherwise he/she will be punished for bigamy;
ii. At the time of marriage, neither party:
a. Should be of unsound mind such that it incapacitates a person from giving a valid consent to marriage. It need not be continuous unsoundness of mind, it may exist just before the marriage.
b. Should be suffering from mental disorder which
i. Renders him/her unfit for marriage &
ii. Giving birth to child.
iii. Should be suffering from recurrent attacks of insanity or epilepsy even if curable.
iv. The bridegroom has completed the age of [twenty-one years] and the bride the age of [eighteen years] at the time of the marriage;
v. The parties to marriage should not be in a prohibited relationship for example brother/sister, aunt-nephew, uncle-niece, cousin etc, unless the custom allows. For example in Muslims, marriage between cousins is allowed.
vi. If any of the parties to the marriage is in direct degrees of ascent (upward relatives) within 5-generations to the other through the mother.

(4) Ceremonies for a Hindu marriage -Sec.7
(i) A Hindu marriage may be performed in accordance with the customary rites and ceremonies of one of the parties to marriage.
(ii) Where such rites and ceremonies include the saptapadi (that is, taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

(5) Registration of Hindu marriage -Sec.8
Non registration of marriage does not effect the validity of a marriage, however for the sake of a proof, the marriage maybe registered within 15 days of the date of marriage.

(6) Restoration of the respective rights possessed by husband and wife -Sec.9
Marriage imposes a duty on both spouses to live with each other, the difference it makes to the lives of individuals is that parties will live together, however if one party refuses to live with the other, the latter can compel the former to live with him/her, by a legal process.

(7) Judicial separation Sec.10
An application for judicial separation can be filed on the same grounds on which application for divorce can be filed. Ordinarily, judicial separation either leads to reconciliation or to divorce. Judicial separation leaves the doors open to reconcile again. In judicial separation it is no longer obligatory for husband or wife to live together or cohabit. By the mutual consent of husband or wife the decree of the court of judicial separation can come to an end.

(8) Invalid Marriages -Sec.11
Any marriage can come to an end if it is in contravention of the conditions of the Hindu marriage Act-1955.
Note - Decree of divorce - Decree of nullity - carries the same meaning i.e. the relationship of marriage has been brought to an end by process of court by decree. AIR 1989 SC 1477.

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