LEGAL RIGHTS OF WOMEN IN MARRIAGE

Every woman has the right to lead her life (married or otherwise) with dignity, freedom, care and support from her spouse without the fear of violence (emotional, mental or physical), neglect, fear or humiliation of any kind. In India, due to years of patriarchy, women have been subjected to painful situations of forced abortions, marital rape, cruelty at the hands of their spouse and in-laws. Laws were made to protect women and elevate their social and economical position in society. In the current scenario, the law is present, but due to its complexities, many women do not know how to make use of them to their benefit.

The Indian law system is complex, we agree. But below, we will try to do our best to break down concepts and help you understand the workings of the legal rights of the Indian woman, including but not limited to her rights in a divorce, domestic violence, child custody, rape laws, and cases where the in-laws are pressuring her for dowry.

DISSOLUTION OF MARRIAGE

Marriage endows certain legal rights and obligations on both the wife and the husband. For a wife/husband to exit the marriage, she/he has to initiate legal proceedings to obtain a divorce or an annulment. The common misconception is that the breakdown of marriage results in divorce. Divorce is caused by the breakdown of marriage, but it is not the only way. A marriage can be dissolved in different ways:

Annulment
Divorce

ANNULMENT:

While a divorce dissolves a marriage, an annulment renders the marriage null and void, i.e. as if the marriage did not take place at all. Annulments are rarer than divorces and have very different grounds.

Which marriages are qualified to be annulled? Void and voidable marriages can be annulled. While void marriages are automatically annulled, in a voidable marriage, one party needs to seek annulment.

Once annulment is granted by the Court, the status of the parties goes back to what it was prior to the marriage. Annulment can be granted when a marriage is either void or voidable.

https://blog.ipleaders.in/nri-mutual-consent-divorce/

	Void Marriage	Voidable Marriage
Meaning	A marriage is automatically void and is automatically annulled when it is prohibited by law	A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties.
Grounds	Bigamy Degree of prohibited relations (unless custom or usage permits otherwise) Sapindas (unless custom or usage permits otherwise)	Impotency Lack of mental capacity Under age of consent Fraud or force
Who can seek annulment	The parties can approach a court for a legal declaration of nullity. This is just a formality to be brought on record and is done as a precaution to ensure that in the future, the void marriage is not called in question.	The parties have to approach the court for nullifying the marriage. If the petitioner consents and lives with the respondent for more than one year after force ceased to operate or fraud was discovered. If at the time of marriage, wife was pregnant by some person other than the husband, and he was unaware of it and after discovery has refused to maintain marital intercourse with the wife.
Consequences	Children born out of a Hindu void marriage are legitimate. A wife cannot claim maintenance from her husband unless it is a Hindu void marriage.	Children born are identified as legitimate children and are entitled to succeed to the estate of their parents.

Useful Links:

http://www.advocatekhoj.com/library/bareacts/indiandivorce/21.php?Title=Indian%20Divorce%20Act,%201869&STitle=Children%20of%20annulled%20marriage

https://sites.google.com/site/divorcelawsinindia/nullity-of-marriage-in-india http://www.vakilno1.com/legalviews/void-marriage-nullity-of-marriage.html

DIVORCE:

Divorce is caused by the breakdown of the institution of marriage, for whatever reason. For legal purposes however, you need to file for divorce under valid grounds for your divorce petition to be successful. The societal pressures of filing for divorce in India are quite challenging. One requires tremendous mental strength to fight against various social stigmas and economical threats which may arise while proceedings of divorce are underway.

FEW THINGS DISSATISFIED SPOUSES SHOULD LOOK AT BEFORE OPTING FOR A DIVORCE:

Can there be a solution which does not lead to a divorce?

Not every small fight or dispute warrants a divorce discussion. Before taking any step, try talking it out with your trusted friends and advisors. Or you could even try talking to your husband or wife (please proceed with caution if you are a victim of domestic violence or cruelty).

If you do not have anyone to confide in and if you need help, there are many women help centres, NGOs and counsellors dealing with family and divorce cases. They will guide you to a clearer path. Also read <Link: Planning my future, mental health pages>

Why do I want the divorce?

Ask yourself this question before you take the step. The answer must be clear and reasonable. Why? Always remember, if you feel that you aren’t in the right marriage, you should leave. Divorce is full of ups and downs. If your reasoning for opting out of the marriage is clear and well-thought out, you will be less susceptible to psychological issues and ‘cold feet’. A woman opting for divorce can face stigma and harassment because of the Indian patriarchal society which does not respect a woman’s autonomy. However, this does not mean you are making a wrong decision by opting for a divorce if you feel that the marriage is not working.

Try to talk to your partner about the divorce

Chances are, if you are feeling the discord in the marriage, so is your spouse. The talk with your partner can go three ways:

You talk to your partner and decide on a way to keep the marriage alive. You both decide to compromise, either for your children or for each other.
If you both cannot work past the differences in the marriage and agree on getting a divorce, then you can file for a mutual consent divorce.
Chances are that your partner is not on the same page as you are, or if you are trapped in an abusive relationship, then you should consult someone on filing a contested divorce petition.

[Details on both forms of divorce are given extensively below.]

With the advancement of time and social awareness, several acts have been passed by the government to make the present day divorce procedure in India more progressive with respect to gender-related equality.

Below we have listed the laws which are currently existing pan-India for marriages under different religions. India is a secular country which promotes religious freedom to all, therefore marriages fall under personal laws of each religion.

HOW TO IDENTIFY WHICH MARRIAGE AND DIVORCE LAW APPLIES TO YOU:

Hindu marriages (which includes Sikhs, Jains and Buddhists) are governed by Hindu Marriage Act,1955.
Muslim marriages are governed by Muslim Personal Laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986.
Christian marriages are governed by The Indian Christian Marriage Act,1872 and Indian Divorce Act-1869.
Parsi marriages are governed by The Parsi Marriage & Divorce Act-1936, with amendments in 1988.
For all inter-religion marriages and marriages which choose to be registered under it, the Special Marriage Act,1954 applies.
The NRI Marriage Act applies for the marriages of Non-Resident Indians(NRIs).

HOW DO I GET A DIVORCE?

A cursory reading of the entire gamut of Indian Laws regarding Divorce makes it clear that the Divorce can be obtained by two ways:

Mutual Consent Divorce (MCD)

Mutual Consent Divorce means dissolving a marriage legally by the consent of both the spouses. In a Mutual consent divorce, both spouses agree to getting a divorce and ending their married life owing to irreconcilable differences.

COURTS WHERE CAN ONE FILE FOR DIVORCE UNDER MUTUAL CONSENT?

Like we have mentioned above, divorces are granted under the religious law that one follows. <Link: Look at HOW TO IDENTIFY WHICH MARRIAGE AND DIVORCE LAW APPLIES TO YOU> Below are the name of the courts where you can legally file for mutual consent divorce. The place where one can file for divorce is mentioned in “Jurisdiction” in <link: “How does the Indian Court system work”>.

Under Hindu law:

Law: Section 13B of the Hindu Marriage Act, 1955.

Court: The married couple must make a petition to the district court together.

Requirements to file a Mutual Consent Divorce: The married couple must be living apart for a period of one year or more, they have not been able to live together and they mutually agree to get the marriage dissolved.

Under Muslim Law: Mutual consent divorce procedure under Muslim law is different than that under other laws. We deal with the procedure of Mubara’at (Mutual Consent Divorce) under this heading completely

Law: Mubara’at under Shariat Law and Dissolution of Muslim Marriages Act, 1939

Court Procedure:

The couple must give the Chairman a Notice in writing.
The “Chairman” means the Chairman of the Union Council or a person appointed by the Government or by an Officer authorised by the Government to discharge the functions of chairman.
Within 30 days of such notice, the chairman must constitute an Arbitration Council to try to bring about reconciliation between the parties.
Talaq is not effective until the expiration of 90 days from day on which the notice is delivered to the Chairman.

Under Christian law:

Law: Section 10-A of the Divorce Act, 1869

Court: The married couple must make a petition to the district court together.

Requirements to file a Mutual Consent Divorce: The married couple must be living apart for a period of two years or more, they have not been able to live together and they mutually agree to get the marriage dissolved.

Under Parsi Law:

Law: Section 32-B of the Parsi Marriage and Divorce Act, 1936

Court: A suit for divorce must be filed by both parties of the marriage together.

Under Special Marriage Act, 1954

Law: Section 28 of Special Marriage Act, 1954

Court: The married couple must make a petition to the district court together.

PROCEDURE OF MUTUAL CONSENT DIVORCE IN INDIA AFTER FILING THE PETITION

The following procedure is only for Hindus, Christians, Parsis, and people who come under the Special Marriage Act. For Muslims, procedure is mentioned above.

Mutual Consent Divorce is to be filed by the couple only if the requirements to file a Mutual Consent Divorce are met. A petition for divorce, supported with affidavits, should be filed by both spouses. The husband and the wife should jointly state to the court that they are unable to live together and that they both want the marriage dissolved. The courts will receive a petition for mutual consent divorce and the statements of both individuals will be recorded.

For purposes of appearance in court proceedings, if one party is unable to come, a power of attorney can be accorded to any person. This person should preferably be a family member. Once the statements of the individuals filing for divorce are recorded, the first motion is granted.

After the first motion has been granted, a period of 6 months is allotted as an interim period for the individuals to rethink their consent for the divorce. In this intervening time, either party can withdraw their consent.

In case one of the sides withdraws his/her petition, the court initiates to make an enquiry. If the concerned side disagrees to give the consent, the court holds no right to pass the divorce judgment.

If neither party withdraws consent, then comes the second motion stage where the individuals have to be present to confirm their consent. The divorce is granted after this.

In the stage of second motion, both parties have to be present to confirm their consent by recording their statements in the court. Here, the physical presence of the parties is compulsory unlike in the first motion stage where a power of attorney could be granted.

The period of 6 months can be extended to 18 months from the date of first motion being granted within which both parties must come to the court physically and record their statements giving their consent to the divorce. The courts have allowed for some amount of flexibility to be granted in this regard. Thus, an NRI can assign his consent and his presence between a period of 6 months to 18 months to acquire the final decree for mutual consent divorce by the courts.

For a judgment of mutual consent divorce to be passed, the husband and the wife should also come to terms of settlement regarding all of their rights and obligations including but not limited to:

Custody of Child;
Lump Sum Maintenance Amount of Wife;
Litigation Expenses;
Property distribution, etc.

For a mutual consent divorce in India, Chayn would always suggest the married couple to consult an experienced lawyer together who will effectively guide and help draft the terms of settlement so that the divorce decree is granted by the courts at the earliest.

Useful Links:

https://mylegalwork.com/guides/mutual-consent-divorce

Contested Divorce

In a contested divorce, the other spouse either does not agree with getting a divorce and wants to remain married OR the other spouse agrees to a divorce but does not agree to the terms of the divorce such as division of property, child custody, maintenance, child support and other related issues.

Contested divorce is based on a fault-based approach. One spouse will accuse the other of some reason because of which the marriage cannot work out. The courts will then hold a trial and deem whether such a reason is enough grounds for granting a divorce decree to the aggrieved party. Here, of course, it is imperative that one spouse wants to remain married. So in one interesting case the wife filed for divorce on grounds of cruelty, and the husband contested the claim of cruelty, but stated that he had no qualms in divorcing his wife. The courts stated that both parties are agreed on getting the divorce and the contested divorce petition was dismissed.

The aggrieved spouse can file for contested divorce in the courts. Gender is no bias in contested divorce cases.

Aggrieved party has to take one of the grounds of divorce as discussed in the section below and will have to file the case in the Court of appropriate jurisdiction.

The party which files the case has to prove the case with support of evidence and documents. On successfully proving the case, divorce will be granted and divorce decree will be drawn up accordingly.

COURTS WHERE CAN ONE FILE FOR DIVORCE UNDER CONTESTED DIVORCE

Like we have mentioned above, divorces are granted under the religious law that one follows. <Link: Look at HOW TO IDENTIFY WHICH MARRIAGE AND DIVORCE LAW APPLIES TO YOU> Below are the name of the courts where you can legally file for contested divorce. The place where one can file for divorce is mentioned in “Jurisdiction” in <link: “How does the Indian Court system work”>.

Under Hindu law:

Law: Section 13 of the Hindu Marriage Act, 1955.

Court: The aggrieved spouse must make a petition to the appropriate court.