SK LAW ASSOCIATES
Marriage and divorce
India is a secular country and a wide number of religions are freely practised. The major religions practised include Hinduism, Islam and Christianity. People solemnise marriages in accordance with religious rituals and ceremonies, which are mostly codified by statutory personal laws. Therefore, the matrimonial laws in India, including laws on marriage, divorce and other connected issues, are essentially governed by the personal laws of the parties depending on their religion, which are codified by statute in most cases:
Hindu: Hindu Marriage Act 1955.
Muslim: Muslim marriage is a contract under Muslim law.
Christian: Indian Christian Marriage Act 1872 and the Divorce Act 1869.
Parsi: Parsi Marriage and Divorce Act 1936.
In addition, the Special Marriage Act 1954 applies to all persons of all religions. This is a civil legislation and parties from all religions, caste or community can elect to marry under it. A divorce would then be governed by the Special Marriage Act 1954.
All these laws apply throughout India.
Welfare of children. Personal laws governing marriage contain provisions to ensure the welfare of children born in wedlock. There is a general law, the Guardian and Wards Act 1890, which applies to all communities.
The Guardian and Wards Act 1890 is a complete code defining the rights and liabilities of guardians and wards. It applies to minor children of any caste and creed. However, while approving and declaring a person as a minor's guardian, the court will also consider the minor's personal law. The Guardian and Wards Act 1890 aims to protect the minor child's person and property.
The Family Court Act 1984 provides for the establishment of Family Courts with a view to promote conciliation, and secure speedy redressal of disputes relating to marriage and family affairs, and for matters connected with them. The Family Courts hear matters relating to marriage, marital breakdown and the welfare of children. These courts are trial courts and are presided over by Additional District Judges who undertake trials and review evidence. The Family Courts follow the Civil Procedure Code. Family proceedings are generally public but can be conducted in private at the request of the parties or if circumstances require.
All Indian matrimonial statutes contain jurisdictional rules. Two matters are relevant regarding jurisdiction:
The place in which the petition or suit in a matrimonial cause is filed.
The court in which the petition or suit in a matrimonial cause should be filed.
Whether a court has jurisdiction depends on the:
Place of solemnisation of marriage.
Marital residence and the residence of the respondent (or, if the respondent resides outside India, where the petitioner resides).
Jurisdictional requirements are the same under the Hindu Marriage Act 1955 and the Special Marriage Act 1954. A divorce petition can be presented to the district court within the local limits of whose original civil jurisdiction the:
Marriage was solemnised.
Respondent, at the time of the presentation of the petition, resides.
Parties to the marriage last resided together.
Wife resides on the date of presentation of the petition (if she is the petitioner).
Petitioner resides at the time of the presentation of the petition, in a case where the respondent, at that time, either:
resides outside the territories to which the acts extend; or
has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him/her if he/she were alive.
The applicability of the Special Marriage Act is not restricted to Indians and foreign nationals can marry under the Act. The parties need not be domiciled in India to solemnise their marriage under the Special Marriage Act.
Under the Indian Divorce Act 1869, a petition in a matrimonial cause can be presented in the court of the district judge within the local limits of whose ordinary jurisdiction either the:
Husband and wife reside.
Husband and wife last resided together.
Where a number of courts have jurisdiction, a party can choose one of them. Where a court's jurisdiction is questioned, preference is generally given to factors that support its jurisdiction
In the landmark judgment in Y Narasimha Rao and others v Y Venkata Lakshmi and others (1991) 3 SCC 451, it was held that marriages that take place in India can only be dissolved under either the customary or statutory law in force in India. Therefore, the only law that can apply to matrimonial disputes is the one under which the parties are married.
However, confusion occurs in relation to parties who are domiciled abroad but came to India for the sole purpose of solemnisation of marriage. When these parties, who are domiciled abroad but were married in India under Indian laws, enter into matrimonial disputes, it is unclear whether the divorce petition is maintainable in India.
The Supreme Court of India has not adjudicated on this issue. The main view emerging from the views of the High Courts is that held by the Bombay High Court that domicile in India is held to be a necessary requirement for the application of Indian matrimonial statutes (Ms Kashmira Kale v Mr Kishore Kumar Mohan Kale Writ Petition No 1242 of 2010). However, this view does not bind other high courts. For the purposes of jurisdiction, Indian domicile of one of the parties is sufficient to confer jurisdiction on the Indian court.