Maintainability of a divorce petition
Querist :
Anonymous
(Querist) 04 July 2010
This query is : Resolved
Dear Sir/Madam,
I have received a divorce petition under Hindu Marriage act on the grounds of Cruelty.
The fact is that my husband is born a christian and never converted to Hinduism, though the marriage on his request was performed with Hindu rituals in the presence of both families. Both families did not know that a non hindu cant get married to a Hindu ( I am a Hindu). No certificate was issued on our marriage, though we have our wedding picture which he has attached in the petition. The marriage was never registered under special marriage act. Later, 6 years after our daughter was born at the time of her baptism, we got our marriage registered in Church without myself getting converted to Christianity. I have the marriage certificate with me issued by the Church. Interestingly, my husband has not mentioned this fact through his petition and said since his acquintance with me he was living the Hindu way. I do not even understand what is the Hindu way of living--we never went to any temples, or performed any Hindu rituals through out 20 years of our marriage.
I have been put under tremendous pressure by my in laws to get converted which I resisted through out.
1, Shall I challenge this petition on the grounds of maintainability?
2. Shall I proceed with the counter without challenging it?
3. Any possible motive as to why his legal adviser suggest to him to choose one over the other? Surely his legal adviser must have been aware of the non maintainability of the petition?
There are two views on it. According to one view its maintainability should be challenged, but according to the other view another one says that it is Ok to proceed with the Hindu marriage act without challenging it and we can take the pressure on me to convert issue later in the proceeding. I do need your expert view , so that I can arrive at an informed decision and take my stand in consultation with my legal adviser.
Uma parameswaran
(Expert) 04 July 2010
You challenge on the grounds of maintainability.
Querist :
Anonymous
(Querist) 04 July 2010
Thanks but I will appreciate if you are more explicit about why challenging maintainability would be better than proceeding without doing it? What advantage it would have over the other? In fact why at all my husband decided one over the other? Any possible limitation under Indian divorce act or any possible motive?
Legal Fighter
(Expert) 04 July 2010
First you have to decide as what do u want? Do you want to live with the guy who doesn't want to live with you?
Guest
(Expert) 04 July 2010
NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE
MOBILE.9271971251,9960223100,
e.mail.adv.nbsawant@yahoo.co.in
e.mail.nandkumarbs@sify.com
REGARDING YOUR DIVORCE PETITION KINDLY NOTE THAT.
1.YOUR HUSBAND IS CHRISTIAN AND YOU ARE HINDU BY BIRTH.
2.MARRIAGE WAS AS PER HINDU RELIGIOUS RITES.
3.MARRIAGE REGISTERED IN CHURCH.
4.KINDLY NOTE THAT IN CASE BRIDE AND HUSBAND ARE FOLLOWING DIFFERENT RELIGION THEN MARRIAGE SHOULD BE REGISTERED UNDER SPECIAL MARRIAGE ACT. IT IS NOT REGISTERED ACCORDINGLY.
5.YOU MAY KINDLY NOTE THAT YOUR HUSBAND HAS FILED DIVORCE PETITION UNDER PROVISIONS OF HINDU MARRIAGE ACT.
6 YOU MAY KINDLY SEND THE COPY OF SAID PETITION BY E.MAIL.WILL SEND YOU DETAILED REPLY.
7 IN BRIEF YOU HAVE TO DECIDE FIRST WHETHER YOU WISH TO STAY WITH YOUR HUSBAND AND DAUGHTER OR JUST WISH TO GET RID OF ALL PROBLEMS.
8 IN CASE YOU WISH TO RESIDE WITH HUSBAND THEN JUST TACTFULLY DELAY THE MATTER BY SUBMITING APPLICATION UNDER SECTION 24 OF HINDU MARRIAGE ACT AND CLAIM THE MAINTAINENCE AND PERMANENT ALILMONY (ONE TIME MAINTAINENCE),YOUR HUSBAND WILL WIDRAW THE DIVORCE PETITION IN CASE HE IS NOT WILLING TO GIVE DIVORCE AND NOT WILLING TO PAY MAINTAINENCE.
9 BUT IN CASE YOU WISH TO GIVE DIVORCE THEN YOU HAVE TO DEFEND YOUR MATTER STRONGLY BY MENTIONING ALL FACTS OF THE MATTER AND ALSO MENTION THAT RELIGIONS OF BOTH HUSBAND AND WIFE ARE DIFFERENT AND MAKE PRAYERS YOU WISH TO MAKE INCLUDING MAINTAINENCE AND PERMANENT ALIMONY AS ALREADY SUGGESTED.
WISH YOU GOOD LUCK.
IN CASE YOU NEED ANY FURTHER HELP YOU MAY KINDLY WRITE AND SEND DETAILS BY E.MAIL.WILL HELP YOU.
GOOD LUCK.
THANKS.
niranjan
(Expert) 04 July 2010
You have not given grounds of cruelty. Better clarify so that experts may have broad view of the matter.
Querist :
Anonymous
(Querist) 04 July 2010
@Legal Fighter and Niranjan
I have asked a very technical question with full details pertaining to the points I need experts' opinions on.
Guest
(Expert) 10 July 2010
See, head hunting why HE filed the said suit under HMA will not solve the main issue. You simply file "non maintainability grounds" application as well as S. 24 HMA bze he has filed under Family Court Act and even after dismissal of his divorce suit your S. 24 HMA will be treated as standalone IA and will continue challnged by him :-)
Now see the logic of my say;
--------------------------------------------------------------------------------
http://timesofindia.indiatimes.com/a...w/3802261.cms/
NEW DELHI: Marriage between a Hindu and a Christian is invalid under the Hindu Marriage Act, as the Act provides for only Hindu couples to enter into a wedlock, the Supreme Court has ruled.
A Bench of Justices Altamas Kabir and Aftab Alam upheld the judgment of the Andhra Pradesh High Court which nullified a marriage, after the wife, Bandaru Pavani, a Hindu, claimed that her husband, Gullipilli Sowria Raj a Christian, had misled her by pretending to be a Hindu and married her at a temple.
The husband had misinformed about his social status, the wife had complained while seeking divorce.
According to the couple, Raj, a Roman Catholic Christian married Pavani on October 24, 1996, in a temple by way of exchanging of 'Thali' (sacred thread) in the absence of any representative from either side.
Subsequently, the marriage was registered on November 2, 1996 under Section 8 of the Hindu Marriage Act, 1955.
The matrimonial court rejected her plea for divorce saying the marriage was valid under the Hindu Marriage Act 1955, even if one of the parties belonged to any other faith.
However, the High Court upheld her plea and said the marriage was void as the Act postulated marriage only between Hindus, following which the husband filed the SLP in the apex court.
Dismissing the Christian husband's appeal, the apex court said Section 5 of the Act makes it clear that a marriage may be solemnised between any two Hindus if the conditions contained in the said Section were fulfilled.
Rgds.
Guest
(Expert) 10 July 2010
Since you asked why and most probably wanted to know why then here some more thoughtst goes;
1. You should have married under the Special Marriage Act or here the non Hindu should have converted for the Hindu Marriage Act to be applicable. There is a simple ceremony conducted by any Arya Samaj priest who will convert you to be Hinduised, give a new name and a certificate saying that you are a Hindu after conversion weel after that there was practically no need to follow Hinduism but for paper work it would have been so. If the guy could have produced the Certificate then he could have had his marriage under the Hindu marriage act, otherwise he should have applied under the Special Marriage act that allows inter religion marriages to be registered but here the case is of non maintainability in toto.
2. The Courts stress that the Hindu Marriage Act applies (and to be invoked) when both the parties are Hindu is probably done with foresight. In this case the women (not an Hindu) here gets indirect monetary benefit in case of inheritance through her husband (from his fathers property) as per Hindu laws so why you worried now of conversion see what property he has and make sense to him indirectly now :-)
Rgds
Querist :
Anonymous
(Querist) 10 July 2010
Thank you Mr. Anand. Referring to the last para, in this case woman is a Hindu and the guy christian. And that's why I am trying to crack why in spite of the judgement which you have quoted above, and which his legal adviser would have in all probability known, he has applied under HMA.
Thanks
