Regarding divorce

Gender Researcher

 

Dear Ld. legal advisers,

A Hindu-Christian couple, with marriage registered with Church and no registration under special marriage act. I know this marriage is valid, but if one happens to seek divorce, under which act it would happen? Does Indian Christian  marriage act, allows for divorce to Hindu-Christian couple? Or is it applicable only when both are Christians? 

Please educate me on this. 

 

Regards

RG

 
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Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com

Dear Renuka,

First of all this marriage is not valid. but even then if you consider it valid then you have to get divorce under divorce act. plz contact any local lawyer.

Regards

adv.kamal.grover@gmail.com


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Medical Value Travel

1. Yes, it does.


2.The Indian Christian Marriage Act, 1872 does not validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into. The word personal law refer to the personal law of the religious community to which either of the parties belong. The ‘Personal Law’ contemplated by the Act is only that part of the personal law which relates to absolute impediments to any marriage, such as prohibited degrees of consanguinity or affinity which would render the marriage a nullity. Persons of Indian origin and domicile converted to Christianity of the Roman Catholic persuasion who choose to marry under the rules and rites of the Roman Catholic Church must be regarded as having adopted the law of marriage of that Church as part of their personal law.


3.The operation of this Act is not confined to a marriage to which both the parties are Christians. A marriage to which one party alone is a Christian is also regulated by the provisions of this Act. In other words, this Act does not stand in the way of a Christian marrying a non-Christian, but such a marriage will have to be solemnised under the provisions of this Act. For a valid marriage under the Christian Marriage Act, two requirements should be satisfied, viz.,

(a) the marriage should be solemnised under the Act and
(b) it should not offend the personal law of any of the parties to it.


Therefore in a marriage where one party to it is a Christian or both parties to it are Christians, it should be solemnised under this Act and if not so solemnised, it would be void. In short, in a marriage under this Act, if one party thereto alone is a Christian, such a marriage becomes valid only if the personal law of the non-Christian Party treats such marriage as valid. Where the wife is a Christian woman and the husband is a Hindu, there is no prohibition under Hindu law for such a marriage.


Rgds.


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Ld Kamal is right


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Gender Researcher

Dear Mr. Anand

Thanks for this detailed reply. Only one more clarification: If Wife is Hindu and Husband a Christian, and the marriage is registered with Church with a marriage certificate issued, does it hold validity? Hindu personal law forbids marriages between Hindu and Non Hindu under Hindu Marriage Act 1955, so that means a Hindu woman cannot get married to a Christian without converting? Does the Hindu Personal Law prohibit such marriage? 

There is lot of confusion even among the legal community at my home place on this issue, as the marriage is not registered under special marriage act, but is 18 years old marriage with a 16 year old girl child. 

Will appreciate if other ld. members too reply to this query pertaining to the main one. 

Regards

RG

 
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UNEMPLOYED

all the religious personal laws are for those who belongs to that religious community. marriage of other religious community not allowed.

hence the marriage is invalid, question of divorce on that personal law does not arise.

i think at the time of marriage / marriage registration; the non christian person by behave or by declaration express that he/she also a christian.

for christians, for the purpose of divorce, indian divorce act applicable.

what is your basic purpose - you or your party wants divorce; or just want to know the legal system.

the legal system not cleared by law; a supreme court rulling will be helpfull in this regard.

one may approach the sc for this purpose / specific relief act also may helpfull - and a lower court than the district court may attend the case.


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As per Indian Christian Marriage Act 1872

 

Sec 4. Marriages to be solemnized according to Act

Every marriage between persons, one or both of whom is [or are] a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.

Sec 5. Persons by whom marriages may be solemnized

Marriages may be solemnized in 12[India]-

(1) by any person who has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a Minister;

(2) by any Clergyman of the Church of Scotland, provided that such marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland;

(3) by any Minister of Religion licensed under this Act to solemnize marriages;

(4) by, or in the presence of, a Marriage Registrar appointed under this Act;

(5) by any person licensed under this Act to grant certificates of marriage between 13[Indian] Christians.

So in Your Case my opinion is The Marriage is valid and should be dissolved  by getting decree of Divorce


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Now Coming on your next Ques.

Hindu personal law forbids marriages between Hindu and Non Hindu under Hindu Marriage Act 1955, so that means a Hindu woman cannot get married to a Christian without converting? Does the Hindu Personal Law prohibit such marriage? 

Yes HMA does not apply where there either of the parties is not HINDU.

But it doesn't mean that a marriage of hindu girl with a Christian Guy is not valid. The only effect in your given case any proceeding of the marriage will not govern by HMA.

It means the women can not

1- Suit a petition for Divorce on the ground provided in HMA

2 - claim for Restitution of Conjugal Rights on the grounds provided in HMA

3- not go for Judicial separation

4- Claim for maintenance U/S 24 HMA (off course She can claim U/S 125 CRPC


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UNEMPLOYED

I AM SORRY.

MY ANSWER WAS WRONG.

MR PRAJAL ABSOLUTELY RIGHT. THANKS MR PRAJAL TO EDUCATE ME.

4. Marriages to be solemnized according to Act.-

Every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.

QUOTE ...But it doesn't mean that a marriage of hindu girl with a Christian Guy is not valid. The only effect in your given case any proceeding of the marriage will not govern by HMA...  UNQUOTE.

THE SOLVATION AND THE ATTRACTION CAPACITY BY HMA IS UNDER THE FOLLOWING ACT OF HMA, WHERE A HINDU AND NON HINDU MARRIED UNDER HMA.

2. Application of Act.

(1) This Act applies-

(a) to any person who is a Hindu by religion in any of its forms or developments, ….

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

(3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

 

 
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 MS. JORDAN DIENGDEH  Vs S.S. CHOPRA  AIR SC  is  good case to understand that HMA will not applicable in your case


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