MUST KNOW SOME LEGAL ASPECTS BEFORE GETTING MARRIED!

MAINTENANCE

1.                  As per  Section 18 (1) of  Hindu Adoption and Maintenance Act, 1956:-

“Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.”

2.                  Maintenance:  Definition and Scope.      The term “Maintenance” has been legally defined in Section 3 of the Hindu Adoption and Maintenance Act, 1956, as under:-

Section 3(b) of Hindu Adoption and Maintenance Act, 1956

3.         Definitions- In this Act unless the context otherwise requires-

(a)         xxx --- xxx.

(b)               “maintenance” includes:-

(i)                 In all cases, provision for food, clothing, residence, education and medical attendance and treatment;

(ii)               In the case of an unmarried daughter also the reasonable expenses of and incident to her marriage.

3.                  Under the provisions of Section 18(2) of Hindu Adoption And Maintenance Act, 1956:-

SECTION 18 OF HINDU ADOPTION AND MAINTENANCE ACT, 1956

CHAPTER III

MAINTENANCE

18.       Maintenance of wife-

(1)        Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2)        A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,-

(a)        if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her;

(b)        if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c)        if he is suffering from a virulent form of leprosy;

(d)        if he has any other wife living;

(e)        if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f)        if he has ceased to be a Hindu by conversion to another religion;

(g)        if there is any other cause justifying her living separately.

(3)        A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

 4.                  Provisions under Section 125 of CrPC.  

CHAPTER IX

ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

            125.     Order for maintenance of wives, children and parents.

(1)        If any person having sufficient means neglects or refuses to maintain-

(a)        his wife, unable to maintain herself, or

(b)        his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c)        his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d)        his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole (Note: Deleted as per Code of Criminal Procedure (Amendment) Act, 2001.) as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Explanation.-  For the purposes of this Chapter,-

(a)        "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875); is deemed not to have attained his majority;

(b)        "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2)        Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3)        If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.-   If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.

(4)        No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5)        On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

DIVORCE

5.                  Hindu Marriage Act 1955 lays down provisions for Divorce. 

13.       Divorce.

(1)        Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

1[(i)   has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse; or

(ia)     has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib)     has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii)        has ceased to be a Hindu by conversion to another religion; or

1[(iii)    has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.- In this clause,-

(a)        the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b)        the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it require or is susceptible to medical treatment; or]

(iv)       has 2* * * been suffering from a virulent and incurable from of leprosy; or

(v)        has 2* * * been suffering from venereal disease in a communicable from ; or

(vi)       has renounced the world by entering any religious order; or

(vii)      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 it, had that party been alive.

1[Explanation.-In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

3* * * * * * * *      *

4[(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-

(i)         that there has been no resumption of cohabitation as between the parties to the marriage for a period of 5[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii)        that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 5[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2)        A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-

(i)         in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the presentation of the petition ; or

(ii)        that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 6[bestiality; or]

7[(iii)    that in suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, (78 of 1956.) or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974.) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898), (5 of 1898.) a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;

(iv)       that her marriage (whether consummated or not) was Solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation.-This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.] (68 of 1976.)

1[13A. Alternate relief in divorce proceedings.    In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

13B.    Divorce by mutual consent. (1)  Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that thy have mutually agreed that the marriage should be dissolved.

(2)    On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

No petition for divorce to be presented within one year of marriage.

14.       No petition for divorce to be presented within one year of marriage.

            (1)   Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, 1[unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage:

Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented 1[before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 1[expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the 1[expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the 1[expiration of one year] from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the 1[said one year].

15.       Divorced persons when may marry again.

15. Divorced persons when may marry again. When a marriage has been dissolved by a decree of divorce an either there is no right of appeal against the decree or, if there is such right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed it shall be lawful for either party to the marriage to marry again.