Hindu n.r.i wife's domicile of india and the hindu marriage act
Dipak
(Querist) 25 August 2015
This query is : Resolved
A marriage was solemnized and registered in India according to Hindu rites and ceremony in February 2011.The Hindu husband has a domicile of India and he is a citizen of India. Before marriage, the Hindu wife had not a domicile of India as she has been residing in foreign country since 2006 but she is a citizen of India. After one month of the marriage, the wife alone went back to foreign country in March 2011 and she has been still residing in foreign country. The husband is residing in India now. After that, Wife has filed a petition of divorce before the family court of India u/s. 13 (1) (i a) of the Hindu Marriage Act through power of attorney in the year 2013. Now, the husband has still domicile of India and he does not want divorce. The divorce case is on the stage of reply/written statement in the family court of India.
Note: Before marriage, during the marriage and after the marriage the husband has been residing throughout in India. Before marriage and after the marriage the wife has been residing throughout in foreign country since 2006. Wife came to marry in India in 2011 and resided only one month in India only.
Que 1: Can husband file an interim application in the family court questioning the maintainability of the petition itself as wife had not domicile of India before marriage and she has been still residing in foreign country since 2006?
Que 2: Does this type of marriage valid according to the Hindu Marriage Act?
SAINATH DEVALLA
(Expert) 25 August 2015
U didn't mention the name of the country she is residing? Well, she can file for divorce through a POA to someone in India,but it has to come through the Indian Embassy in that country duly attested.
Marriage is valid according to HMA.U said she resided in India for only month during marriage.But he should have filed for nullity of marriage due to desertion by wife since 2006.
Dipak
(Querist) 26 August 2015
Is it possible to file for nullity of marriage on the ground of desertion by wife as desertion is the ground for divorce or judicial separation under Hindu marriage act?
SAINATH DEVALLA
(Expert) 26 August 2015
U R case does not attract Judicial separation as both of U never lived together.
Judicial separation is an instrument devised under law to afford some time for introspection to both the parties to a troubled marriage.
Abandonment by a husband or wife often causes emotional, financial and legal stress. The abandoned spouse may want to know whether abandonment can result in an annulment of the marriage. Although abandonment generally does not serve as grounds for annulment, an annulment may be possible if the abandoned spouse can establish other grounds to invalidate the marriage. In addition, spousal abandonment or desertion may become grounds for divorce.
Dipak
(Querist) 28 August 2015
Can abandoned spouse present a petition annulling a marriage after 4 years and 6 months of marriage? If yes, How?
SAINATH DEVALLA
(Expert) 28 August 2015
How to file annulment-Nullity of Marriage :
Annulment or Nullity of marriage means that the marriage has not happened at all. After getting the annulment or nullity decree, the status of the individual is UNMARRIED/SINGLE,
Conditions of the annulment of the marriage are:
a. The marriage has not been consummated ( no sexual relationship has occurred between the husband and wife)
b. It should not have been in the prohibitive relationships (Husband and wife cannot be as brother and sister, like first or second cousin, or through same father and different mother etc., unless accepted by the caste)
c. This marriage should not have happened through fraud or force and without the consent of both the individuals to the marriage.
d. The marriage should not have happened through the concealment of the facts. (like either parties were married before and later divorced, or have a child through previous relationship)
e. The parties of the marriage should not have the contagious disease which cannot be cured within the specified period of 1 year.
f. The parties of marriage should not be impotent or have the disease which can be unable to bear the family.
g. The parties of the marriage should not be of unsound mind.
h. The parties of the marriage should not be in any marriage earlier, and if the marriage has happened, the divorce should have been happened (except for Muslims) before the second marriage.
3 it is mandatory to be filed within one year of the marriage or 1 year from the date when the fraud came into light.
4. The process of annulment is same as other case like divorce or RCR
5. The time taken depends on the co-operation from other party.
What the law Says about Annulment or Nullity of marriage under Hindu marriage Act,1955.
Section 12 of Hindu Marriage Act, 1955 deals with
Voidable Marriages- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotency of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
V R SHROFF
(Expert) 28 August 2015
Q1: Ans- yes but useless..
Q2: Ans- yes marriage valid according to the Hindu Marriage Act
Q: Can abandoned spouse present a petition annulling a marriage after 4 years and 6 months of marriage? ANS: yes
How?: BY FILING PETITION IN APPRO .COURT.
