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Marriage

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Draft 2 (Nikah nama)

Marriage 1

Prenuptial Agreement

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Frequent questions, quickly answered.

Marriage As Per Hindu View:

As per Hindu view, marriage is a sacred relationship in some Hindu system of marriage. There is no role of State as marriage is private affair with social realm in traditional reference marriage is undoubtedly. The most important transaction point in a Hindu life and most important of all Hindu “Sanskar”. The provision of divorce is considered anthema to the Hindu religion. The Hindu view of family where married daughters were regarded as belonging to the family of their husband not the family of their father.

Section 7 of the Hindu marriage Act:

Section 7 of the Hindu marriage Act, recognizes the ceremonies and customs of marriage. It is solemnized in accordance with the customary rites and ceremonies of either party. Such rituals includes “Saptapadi” taking of 7 steps by the bride and bride groom together before the holy fire the marriage becomes complete. It binding when the 7th step is taken in front of family of both bride and bride groom.

Court marriages

Court marriages unlike ordinary Indian wedding, are the marriages solemnized in accordance with the provision of special marriage Act, 1954. It can take place in the court itself in the presence of marriage officer and 3 witnesses. Any two person of opposite gender belonging to the same religion/caste or from different religion/caste can marry through the legal process followed by the Act in the court marriage.

Section 4 chapter 2 of the Act provides the following conditions for solemnization of a court marriage:-
  • No pre-existing marriage where parties must not have spouse living.
  • Valid consent where the parties must not be incapable of giving valid consent by reason for unsoundness of mind.
  • Age where the male must have completed the age of 21. The female must have completed the age of 18 before marriage.
  • Prohibited degree of relationship where the parties should not be within the degree of prohibited relationship provided that where a custom governing at least one of the parties to permit of a marriage between them. Such marriage may be solemnized irrespective of the relations falling within the degrees of prohibited relationships.
Procedure of a court marriage:
  1. Notice for the intended marriage.
  2. Publication of the notice
  3. Objection of marriage
  4. Declaration by parties and witnesses
  5. Place and form of solemnization
  6. Certificate of marriage
Divorce as per law:

A divorce is formal ending of a marriage. It is more permanent then a separation and involves a legal process. If you get a divorce that means the marriage is officially over/finished. Following are the grounds under which a divorce can be asked by either party to marriage. Cruel and inhuman treatment constitutes as grounds for divorce in a proper defence, acceptable differences enable the defendant to have the ability to arrange valid grounds for divorce:

    • Sexual harassment
    • Attendant circumstances
    • Adultery
    • Alcoholism
    • Disability
    • Desertion
    • Imprisonment
    • Domestic violence etc.
Maintenance

Maintenance is an essential factor that is taken into consideration by the court while deciding on divorce proceedings in India. As per Supreme Court the family courts must not delay the grants of maintenance to a wife estranged from her husband and that the husband cannot shy away from the responsibility of sustaining his wife irrespective of the status of their relationship. The court went on that a delay in such adjudication by courts is against human rights and also against the basic dignity of an individual.

Section 125 of Cr.P.C.

Section 125 of code of Criminal Procedure is an economic umbrella that makes provision of maintenance to be provided to divorced wives to help them to maintain and support themselves, in both during and at the conclusion of divorce proceedings. Section 125 of Cr.P.C. is a secular provision governing maintenance law across all personal laws. Supreme Court has held that the maintenance right of a wife cannot be limited by any personal law.

Section 24 of the Hindu Marriage Act:

Under section 24 of the Hindu Marriage Act, 1955 the wife may also claimed interim maintenance. So as to enable herself and have sufficient funds to continue with the litigation.

The factors that are taken into consideration by the courts for granting an interim maintenance have been reiterated by the Delhi High Court as follows:
    • The reasonable needs of the spouse claiming maintenance
    • status of the parties
    • independent income and property possessed by the spouse claiming maintenance.
    • number of persons the spouse providing maintenance has to maintain apart from claimant.
    • The lifestyle that a spouse claiming maintenance use to enjoy in her matrimonial home
    • liabilities of the spouse providing maintenance
    • payment capability of the spouse providing maintenance
    • provision of the basic necessity of the spouse claiming maintenance such as food, shelter, clothing, medical needs etc.
    • court may use its discretion when all specific sources of income of the spouse providing maintenance are undisclosed
    • The spouse paying maintenance must discharged the cost of litigation of the divorce proceedings.
The statutory law of marriage in India provides the following remedies to the parties to the marriage.
  1. Divorce
  2. Judicial separation
  3. Nullity of marriage
  4. Restitution of conjugal rights
  5. Mutual divorce

A Hindu wife is entitled to leave separately without forfeiting her claim as to the maintenance in case of desertion, cruelty, change of religion on the part of the husband and other good causes.

Momden law

Momden law recognizes marriage as a contract. The marriage in the momden law is governed by personal laws. Matrimonial causes with regard to muslim marriages are governed by the momden law and the desolution of muslim marriage Act, 1939. A momden husband has always the sanction of the queran to give his wife talak.

He desolution of  marriage is a creature of statute. The law of marriage divorce and other matrimonial causes is not uniform across the place and societies. Different Acts have been enacted to governed the law of marriage for different communities in India. 

Any husband can present a petition praying that his marriage may be dissolved on the ground of his wife being guilty of adultery.

A wife can also present a petition, when
  • The husband has gone through a marriage with another woman
  • Has been guilty of incestuous adultery.
  • Bigamy with adultery.
  • Marriage with another woman with adultery,
  • Rape
  • Sodomy or bestiality
  • Adultery couple with cruelty
  • Adultery couple with desertion
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