Though married in goa, can i file divorce case where we have resided after marriage
Ali From Bangalore
(Querist) 04 January 2014
This query is : Resolved
Hello,
I am from Bangalore. I got married to Goa Girl in Goa on Sep-2011 (2 yr 3 months ago). After marriage we both stayed in bangalore for more than one year.
Now, we both decided to go for mutual divorce. We do NOT have any child.
My Question:
Can we get divorce decree in Bangalore family court? Is it come under Bangalore Jurisdiction?
I am asking this que because We have married in Goa and in Goa "Portuguese law" is applied.
I also got some reference which has positive answer for my que.
http://indiankanoon.org/doc/1984363/
Please guide me here.
Thank you very much in Advance.
Ali From Bangalore
(Querist) 04 January 2014
Thank you very much experts for the answer.
It means, I can go ahead with divorce in Bangalore and Divorce law of India is applied and NOT "Portuguese law" .. Correct ??
Also, once got Divorce Decree from Bangalore, I can use that Decree to CANCEL the marriage registration in Goa Civil registration office .. Correct ??
Shonee Kapoor
(Expert) 04 January 2014
I disagree with the experts here. The Hindu Marriage Act does not extend to Goa. Despite the amalgamation of Goa in Indian Union, the act has not been extended to Goa till date. The only law governing the marriages in Goa is the Portugese Civil Code.
The Citation that you are relying is not helping your cause, but going against your contention to file the same in Bangalore.
Regards,
Shonee Kapoor
www.shoneekapoor.com
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If you don't fight for what you want, don't cry for what you LOST.
Biswanath Roy
(Expert) 04 January 2014
I agree with the views of Mr. Shonee Kapoor.
Guest
(Expert) 04 January 2014
Dear Shonee,
In an article, titled, "Hindu Marriage Act applies to Goa too: Supreme Court" dated April 30, 2010, one Shri Rakesh Bhatnagar has stated as follows. I have not gone through that judgment of SC so far.
So, you may better like to analyse on the applicability of HMA in context with the said article vis-a-vis the judgment, if there is any.
Even otherwise also Sec.1(2)of the HMA does not make any mention of any other state, except the state of J&K, where the Act is not extended.
The extract of Article is given below for your reference please. The link of the article is is also given here:
http://www.dnaindia.com/india/report-hindu-marriage-act-applies-to-goa-too-supreme-court-1377171
EXTRACT of Article
"Hindu Marriage Act applies to Goa too: Supreme Court"
So, if a marriage between two Hindus is performed in Goa, Daman and Diu (GDD), parties can file a divorce suit in any other court outside GDD.
Since marriages solemnised or registered under personal laws in Goa are not regulated by the state’s civil code, matrimonial disputes can be decided by any court in India, the Supreme Court has said.
So, if a marriage between two Hindus is performed in Goa, Daman and Diu (GDD), parties can file a divorce suit in any other court outside GDD.
Setting at rest the long-drawn controversy over enforcement of a GDD law enacted in 1911 that says “marriage is a civil contract”, the Supreme Court said this provision was altered by a decree on January 22, 1946, restoring the validity of Catholic and Hindu marriages. “
Two Hindus, therefore, can contract a marriage according to Hindu religious rites or by way of a civil marriage,” a bench of justices Altamas Kabir and Cyriac Joseph held, while allowing the plea made by one Vinisha seeking transfer of divorce proceedings initiated by her husband Jitesh Tolani from Goa to a court in Delhi.
Rejecting Tolani’s plea that the case cannot be transferred out on the ground that local law prevails over customary law, the SC said section 2 of the Hindu Marriage Act is applicable to all of India except J&K, and it also applies to Hindus domiciled in all territories except that state.
In other words, even if civil laws in Goa prevail over personal laws, it cannot prevent the transfer of a matrimonial matter outside the state, the court said.
Shonee Kapoor
(Expert) 04 January 2014
Dear Mr. Dhingra,
AIR2010SC1915 Vinisha Tolani V/s Jitesh Tolani, this is the case referred by you.
Here the SC had transferred the case to Delhi from Goa. However, the point of difference is that here the marriage was solemnized between the parties as per Hindu Rites and Rituals in Goa. Here also, the parties were governed by Hindu Marriage Act because of Domicile issues as stated in the judgment:
""""Notwithstanding the fact that the marriage between the parties had been conducted in Goa, the same having been conducted under their personal laws and under Hindu rites and traditions, we are satisfied that the claim of the petitioner is justified and there can be no difficulty in allowing the prayer of the petitioner""""
Also, I had a word with this gentleman. He is anyways not governed by Hindu Marriage Act, rather he would be governed either by Special Marriage Act or Goan Pourtgese Civil Code.
Regards,
Shonee Kapoor
www.shoneekapoor.com
Handphone: +91-8010850498
Facebook: www.facebook.com/shoneekapoor
twitter.com/shoneekapoor
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If you don't fight for what you want, don't cry for what you LOST.
Biswanath Roy
(Expert) 04 January 2014
Author of this query is ALI (who appears is a muslim) he married a Goa girl (who might be a christian) so marriage might have been solemnized under Goa Civil Code. Under such circumstances decision of the Supreme Court is not applicable.
Shonee Kapoor
(Expert) 04 January 2014
I got confused because the judgment he referred was pretaining to Hindu Marriage Act.
Regards,
Shonee Kapoor
www.shoneekapoor.com
Handphone: +91-8010850498
Facebook: www.facebook.com/shoneekapoor
twitter.com/shoneekapoor
Yahoogroups: http://groups.yahoo.com/group/sahodar
If you don't fight for what you want, don't cry for what you LOST.
S.QAISAR ALI ADV.
(Expert) 04 January 2014
yes, you can file divorce case at banglore.
T. Kalaiselvan, Advocate
(Expert) 04 January 2014
so there is no opinion formed by anyone that whether a divorce can be filed outside Goa of marriage performed under Portuguese law. Except Syed Qaiser Ali, no expert has given any opinion, can we expect a confirmation from any one shortly(?)
Ali From Bangalore
(Querist) 05 January 2014
Dear All,
Thanks for healthy discussion over the query.
Sorry for not clarifying below points.
I am a Muslim .. that also Shia Muslim. My wife also is a Shia Muslim. We both belong to same sub-caste.
We first got married in Masjid with Nikah ceremony and after Three days we have done marriage registration in Goa Civil Registration Office.
Now, coming to the fundamental problem:
We are ready to get divorce either in Goa or in Bangalore (if possible). The problem to get divorce in Goa is that the mutual divorce takes long time. I have find out some info on mutual divorce under PCC.
http://ceflonline.net/wp-content/uploads/Portugal-Divorce.pdf
Relevant part from "Portugal-Divorce.pdf" Page No - 5: (Note: I am not sure that this document content as-it-is apply for Goa)
"de facto separation for three consecutive years; de facto separation for one year,
if the divorce is requested by one of the spouses without the opposition of the other spouse"
So overall it looks that mutual divorce under PCC taking long time when compared to other marriage act available in India.
Apart from Mutual divorce; we also have another option to get divorce in Goa. In this second option, My wife has to put some allegation on me then I will oppose it and the advocate from our both side will get some settlement done and get divorce decree. (I have got this info from some advocate in Goa).
The problem with second option is that though me and my wife mutually decided to end the marriage then why I should allow any allegation on me. The allegation can be of Adultery or Domestic violence or others (I have not much idea about other allegation).
In short, both of the option to get divorce in Goa not making sense to me .. when me and my wife ready for mutual divorce.
So, I thought to see if it's possible to get Divorce in Bangalore and then CANCEL the marriage registration in Goa using Divorce decree acquired in Bangalore.
In summary, I need some more input on my query:
Whether I can apply for divorce in Bangalore?
If yes then under which marriage law (Special marriage act, Muslim related marriage act)?
Once again, thanks all for your time and input.
Guest
(Expert) 05 January 2014
Dear Ali,
In fact, you created a great confusion, yourself while posting your query. The link (http://indiankanoon.org/doc/1984363/) you provided pertains to Hindu Marriage Act, you are a Muslim by religion, you have not stated whether your marriage was solemnised under Muslim Personal Law, Special marriage Act, or the Goa's Portugese laws, etc. So, Mr. Shonee Kapoor is right about confusion created by you.
Replies to confused query can lead to nowhere.
Even now, through your detailed description, you have still not stated, whether the Goa Civil Registration Office registered your marriage under Goa Civlil Code or has recognised your marriage under Muslim Personal Law, as solemnised in the Masjid, or independently under Goa's Civil Law. Better check your marriage certificate and clarify position.
Biswanath Roy
(Expert) 05 January 2014
When you signed NIKAHA NAMAH at the time of your marriage according to Shariati rules which falls under muslim personal law so at the time of dissolution of marriage you shall have to sign upon Talaknamah which will be countersigned by the Imam at Goa and taking that document you shall have to go to the Registrar of MARRIAGE AT GOA when he will advice you the procedure for cancellation of registration.
Ali From Bangalore
(Querist) 06 January 2014
Dear All,
I am really very sorry for the confusion created and I am thankful for all your help and time. Thank you all.
Now, coming to the clarification:
In my marriage certificate, nothing is mentioned about which law is applicable.
I found a Marriage certificate which is almost same as mine. Here is the link:
http://vilasbhosle.blogspot.in/2012/08/certificate-of-vilas-k-bhosle.html
There are two certificates in above link and I also have two certificate with me. It has almost same content as of mine and there is no detail on which law is applicable.
I am following up with goa lawyer to know which law will be applied in my case. May be by tomorrow I will give update on it.
One small point, while doing Marriage registration in Civil registration office, they have NOT asked us to show our NIKAH NAMAH.
Biswanath Roy
(Expert) 06 January 2014
I PROVIDE YOU WITH MY VALUABLE KNOWLEDGE SO FAR BUT AS YOU NEED FURTHER CLARIFICATION YOU SHALL HAVE TO PAY MY PROFESSIONAL CHARGES FOR FULL OPINION WHICH IS Rs.5000/-IF YOU AGREE LET ME KNOW BY RETURN MAIL.
Guest
(Expert) 06 January 2014
What is there in the backside of the certificate, as one of the certificate indicates "PTO" at its end?
Ali From Bangalore
(Querist) 06 January 2014
Re: PTO
The certificate having PTO is followed by on more image and that is the back side of the certificate.
R.V.RAO
(Expert) 01 February 2014
very interesting and enlightened opinions and discussions.many issues to pick up on spl.marriage.thanks
