Divorzio all'indiana

India being a cosmopolitan country tolerates personal laws of its citizen. As a result each citizen of India is entitled to have his own personal laws inter alia in the matter of marriage and divorce. Hindus are governed by Hindu Marriage Act, 1955 which provides for the conditions of a Hindu Marriage where under the bridegroom should be of 21 years and bride of 18 years, they both should be Hindus and should not be within the degree of prohibited relationship or sapindas, neither party should have a spouse living nor any party should be subject to recurrent attacks of insanity or epilepsy, either of them should not be suffering from mental disorders or should not be unfit for marriage and procreation of children and both should be of sound mind and capable of giving valuable consent.

Divorce under the Hindu Marriage Act 1955 can be obtained on the grounds of Adultery, Cruelty, Desertion for two years, Conversion in religion, Unsound mind, Suffering from venereal disease and/or Leprosy has renounced the world not heard for 7 years no resumption of co-habitation for one year after the decree of judicial separation, no restitution of conjugal rights for one year after decree for restitution of conjugal rights, Husband guilty of rape, sodomy or bestiality and if after an order of maintenance is passed under the Hindu Maintenance and

Adoptions Act or the Criminal Procedure Code there has been no cohabitation for one year.

As regards the maintenance and adoption of children, Hindus are governed by The Hindu Adoption and Maintenance Act.

Muslims are governed by their personal laws under which "Nikah" (i.e. marriage) is a contract and may be permanent or temporary and permits a man 4 wives if he treats all of them equally.

To have a valid "Nikah" under the Muslim Law, presence of a Qazi (Priest) is not necessary.

Merely a proposal in the presence and hearing of two sane males or one sane male and two sane female adults, all Muslims and acceptance of the said proposals at the same time constitute a valid Nikah under the Muslim Personal Law. A husband can divorce his wife without any reasons merely by pronouncing thrice the word "Talak". However for a Muslim woman to obtain divorce certain conditions are necessary. For Parsees there is a Parsee Marriage & Divorce Act, 1939 which governs the provisions of their marriage and law and for Indian Christian there is a Indian Christian Marriage Act 1889.

Persons of any religion who get married under the Special Marriage Act, 1954 are governed by the said act. There are certain penal provisions also in the Criminal Procedure Code providing for the maintenance of the wife and punishment for bigamy.

Recent Judgments:

1. In a recent case under the provisions of Hindu Succession Act, 1956 reported in JT (Judgment Today) 1999 (4) SC at page 589, the Supreme Court held that in view of the provisions of Section 15(2)(a) of the Hindu Succession Act, 1956, the property of a Hindu female who died intestate inherited by her daughters, in the case of one of the daughters dying later, would devolve upon the other surviving daughters i.e. sisters of that deceased daughter and not upon the heirs of the pre-deceased husband of the deceased daughter.

2. Supreme Court has now in a recently decided case reported in JT (Judgment Today) 1999(4) SC at page 496 held that the power of the Court is plenary i.e. absolute to summon or even re-call any witness at any stage of the case if the Court considers it necessary for a just reason. Their Lordships have observed to the effect that objections, to re-call a witness under Section 311 of the Criminal Procedure Code or Section 165 of the Evidence Act by saying that the Court could not feel a lacuna in a case, were common. A lacuna is not to be equated with the fallout of an oversight committed during trial either in producing relevant materials or in eliciting relevant answers from witnesses.

The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such mistakes or latches during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. No party in a trial can be forclosed for correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

by: http://www.sudhirlaw.com/