Exclusive HOLI Discounts!
Get Courses and Combos at Upto 50% OFF!
Upgrad
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

donnis (consultant)     26 October 2014

Annulment of marriage

Can A Marriage conducted  between a Hindu girl and a Christian Boy at the Girls house without the presence of the Boys relatives or any witness from the boys end but only the relatives from the girls end be taken as a reason for Annulment.

The marriage here was not Registered as per court and was not done in a Temple or a Church ...and was done in a Clandestine manner  with the Girl and the Girls relatives claiming that documents of the same have been lost by them.

Does it stand in Court?? Please do advice



Learning

 8 Replies

Tajobsindia (Senior Partner )     26 October 2014

@ Author,

 

1. Certain conditions have been laid down for a Hindu marriage to be valid.{S. 5 and S. 7 of The Hindu Marriage Act, 1955}


2.
Certain conditions have been laid down for a Christian  marriage to be valid. {S. 3 and S. 5 of Indian Christian Marriage Act; As a general rule every marriage under this Act shall be solemnised between the hours of six in the morning and seven in the evening and the place of marriage is a Church. Exceptions are, however, made in case where a special licence permitting a clergyman of the Church is granted. The Act of a person who solemnises a marriage beyond these hours and outside the Church in the absence of the witnesses without any special licence, has been made punishable under S. 69 of the Act. The punishment provided is upto three years imprisonment}

 

3. From your brief all that is known is that a Hindu girl marries a Christian boy at her home in presence of girl's side witnesses / relatives and no hint of 'which religious marriage ceremony' parties followed at home of girl. For argument sake a Hindu marriage can also take place at once Home, but for so to happen he needs to be converted into Hinduism just before marriage !

 

4. Based on para 3 doubt I say this marriage can be annulled for sake of paper decree (but which Marriage Act party will file suit for annulment ?) so that either party can be then free to re-marry as per their religious customs, traditions or be it under Special Marriage Act as in future if marrying intra-religion without need for 'conversion' as then the facts may be.

 

5. To me this looks more a case of contemporary allegation of ‘love jihad’ ! * Be that as it may sound, well, facts do stand out in Court if properly detailed at the onset. Hence, place more details for better advice OR seek Chamber discussion with an local advocate found via reference with factual details of parties over and above what is mentioned as brief here.


* https://indianexpress.com/article/india/india-others/christian-boy-hindu-girl-marriage-ends-in-separation/ 

donnis (consultant)     26 October 2014

Sir. I appreciate your kindness in answering and let me assure  you this is no case of  Love Jihad and this so called marriage was done 11 years back and the Boy concerned is a Christian and not a Hindu...while the girl is a Hindu and the so called marriage was done at her place and under the supervision of the Girls Relatives and there was none from the Boys end as a witness.

The so called marriage was done without the knowledge of anyone from the Boys side not even as a witness.

Sir does this stand in court as a Marriage? and let me bring to your notice that it was not done under any Special Act of Marriage and now here the boy and girl stay separated for the past 2 years ,the boy wanted to go for divorce but was told that it is technicaly not possible.

Adv. Chandrasekhar (Advocate)     26 October 2014

 

 

If boy, after years of cohabitation, on one fine day wakes up and realizes that the marriage is void (not voidable) on the technical ground and wants to take advantage that a marriage between Hindu girl and Christian boy could not be solemnized without one of them being converted into other's religion and the marriage had not been registered under Special Marriage Act, and hence the marriage is not a marriage under Hindu Law nor Christian law and hence null and void ab-initio.  Then the girl has got a very good defence under Section 375 IPC (rape charge) fourth descripttttion -

"Fourth/y.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married."

Note that neither in Christian nor Hindu nor Special Marrige Act, the husband's parents' presence is mandatory.  What I suggest is that if there are real disputes between the spouses, try to solve them amicably.  If not possible, then the chiristian boy aver that the marriage had happened as per the custom and rights of Hindu Marriage Act and go divorce under Section 13 of that Act.

Tajobsindia (Senior Partner )     26 October 2014

1. I disagree completely to ld. brother Adv Chandrasekhar’s two sets of opinions.


2. S. 13 cannot be applied as boy is Christian not Hindu . S. 375 IPC also cannot be called as defense for Hindu girl and it is too much of faulty insight be it you have soft liking for women's facts (nothing wrong in choice of picking cases, let me add here for your lordship's clarity). 


3. Unless known which marriage ceremony both got married remedy is not available for seeking divorce by the boy is my firm view. 


4. The queriest has to speak more about the ceremony the girl family conducted in their home 11 years back (like was it Hindu rituals and/or was boy converted to Hinduism etc.?) and then he may hint what is status of parties matrimony from last two years instead of repeating his first query itself in shorter form as he has done above while replying. 

donnis (consultant)     26 October 2014

Thank You Sirs for being Candid on the Issue and for providing insights.

The Marriage which happened 11 years back happened at the Girls Residence .

The Parents of the Girl had told the boy that the marriage was just a face saving for them and after the Hindu Marriage they would get it done in the Church as well (Which unfortunately they backed OFF from)

The Marriage was done as they say under Arya Samaj Rites and they had a Hindu Priest doing it ..and it was done in the Girls house itself...after the ceremony the boy had no clue whether it was conversion or Marriage since the Boy concerned had no knowledge about Hindu Rites.

I would like to add that most people of different castes are a layman to the caste of others....and have not much knowledge about the rites involved but yes it was a Hindu marriage....

After the marriage when the Boys parents learned about the matter and confronted on the issue ...the girls parents refused to get their daughter married in the Church..so the bottomline is apart from what happened in the House nothing happened in Church or Court.

For the past 2 years the boy has been living away from the Girl and has sought Divorce but the Girl has outrightly refused saying that she needs Compensation...and yes they do have a 7 year old kid as well..the boy has been seeking help in this issue to get away from the disaster either through divorce or annulment...

Please do provide your Valuable insights...

Tajobsindia (Senior Partner )     26 October 2014

1. Arya Samaj is a valid marriage and they donot conduct marriage unless both parties are Hindus. Assuming conversion did took place (assuming bze your side now after 11 years are not in position to grill other side of all facts).


2. Against above backdrop divorce law is Hindu Law and now I agree to lord Chandrashekar where he said use S. 13 HMA. But  after your reply I could not find the 'ground' like cruelty or desertion or otherwise other than last 2 years they are living seperate with a rider from girl that she needs 'compensation' which I will admit in absence of any 'valid' grounds is rightly asked so by her r/w a 7 years child out of the wedlock. 


3. Now let us both be honest in what we are getting into; is it that the marriage didnot happen in the Church the only grudge that he is seeking divorce or there is something else brewing between them? 

 

Realise, sometimes free advise are lengthy so either you co-operate in explaining para 3 or Chambers of advocates are open for paid remedies ;-) 


I am asking para 3 just to give you exact Section under HMA Laws and not making a moral preaching out of question that you ask. Since I use morality then let me add; if 7 years old child out of 11 years old marriage r/w 2 years separation without any noticeable CAUSE spelled in an inquiry then someone ought to touch morality issue too. let me leave that for next time till I hear para 3 reply from you. 

donnis (consultant)     26 October 2014

Thank You Sir, As you said a Arya samaj Marriage stands Valid in any case and the Boy agrees to the fact that a 7 year old who has been fathered by him needs to be compensated and he is willing to do the same...Let me Highlight what happened after the marriage...

They had fights and Discords and 2 years back when the Boy found out that the only way for him to survive was to stay away from the Lady he deserted her..the girl wanted a house close to her parents house and there were many other issues that cropped up.

The boy took the advice of many Divorce lawyers and all said that since technically the marriage did not take place ..so there was no point in applying for divorce

The boy has been asking the girl and her parents to provide the Arya samaj Marriage certificate which the Girls Parents have refused to give him a copy saying that they had burnt it....

The Girls two uncles stood as a witness for the boy in the whole proceedings and both her Uncles are Lawyers.

Sir My question is why would people burn arya samaj documents and how do i get to know that it was registered as a Arya Samaj Marriage

Adv. Chandrasekhar (Advocate)     26 October 2014

1.  Engage a local  advocate.  File divorce case.  Marriage certificate is not necessary to file divorce case.  Affidavit is enough.  Say in the petition, that the certificate is lying with the wife.

2.  Your advocate has to find out a good and valid ground for divorce.  Seeking house near about parental home by the wife is not a ground on which divorce can be granted.

3. During the pendency of the petition, if wife is not working, maintenance and litigation expenses have to be paid to the wife and maintenance to the child also.

4.  After divorce decree, wife is entitled to permanent alimony, a lump sum amount.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register