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APPLICATION OF THE ACT:
Under the Hindu Marriage Act,
any person who is a Hindu by birth or by
religion (converts/reconverts) can file a
petition. Where a Hindu male marries a Christian
female,both are held to be Hindus. (AIR 1991
Ker 175; AIR 1951 All 525). Even where a Hindu
person changes his religion after solemnizations
of marriage, such person can file a petition
under this Act and likewise a petition can be
filed against him. Under the Act, if the father
is a Hindu, such of his off-springs are held to
be Hindus, irrespective of the caste/race to
which the mother belongs, if the marriage has
been performed according to the Hindu
form.
ILLEGITIMATE CHILDREN:
Illegitimate children, wherein
both parents are Hindus, and such children where
the mother is Hindu and the children are brought
up as Hindus, are also held to be Hindus, and
the Act would apply in such cases
DIVORCE:
Under the
Hindu Marriage Act, a party may file a petition
for divorce and the marriage may be dissolved by
a decree of divorce on the following grounds:
(a)
ADULTERY: i.e. voluntary sexual
intercourse with any person other than his/her
spouse. (Though initially a divorce could be
granted only if such spouse was living in
adultery, by the Marriage Laws Amendment Act,
1976, even a single voluntary sexual act, with
any other person other than the spouse is a
sufficient ground for divorce).
(b)
CRUELTY: Initially cruelty was a ground
only for judicial separation, but now forms a
ground for divorce under the Amendment Act of
1976.
(c)
DESERTION: This has been added as a ground
for divorce by the Amendment Act, though
previously it was a ground for judicial
separation.
(d)
CONVERSION: In order to obtain a divorce
on this ground it should be proved that such
other party has converted. Mere professing or
theoretical allegiance to any other religion
does not mean conversion. This ground has been
added to the act for obtaining divorce, as
according to the Hindu Law, a marriage is not
dissolved by conversion by one of the parties.
Therefore contrary to the belief that conversion
by itself resulted in divorce, a person now has
to obtain a decree of divorce under the Act.
(e)
UNSOUNDNESS OF MIND: Initially it was
essential for a party to prove that his/her
spouse was incurably of unsound mind for a
continuous period of three years. However now
this duration has been omitted. In order to
obtain a decree under this ground it has to be
proved that the spouse is affected to such an
extent that the party seeking divorce cannot be
reasonably expected to live with him/her.
(f)
VIRULENT AND INCURABLE LEPROSY.
(g) VENEREAL DISEASES IN
COMMUNICABLE FORM.
(h)
ENTERING NEW RELIGIOUS ORDER: i.e., by
renouncing the world, This requires the
performance of certain ceremonies and the
observance of certain formalities.
i)
PRESUMPTION OF DEATH: Under the Act, a
person is presumed to be dead, if he/she has not
been heard of as being alive for a period of at
least seven years.
PLACE OF FILING
PETITION: Under the Act, every
petition (either for divorce nor other wise for
e.g., maintenance, judicial separation, etc)
should be presented before the District Court
within the local jurisdiction of which the
marriage was solemnised, or where the other
party (spouse) resides, or where the parties
last resided together.
RESIDENCE:Residence
under the Act is used to mean some degree of
continuance if not permanence. Therefore if a
person intends to make such a place his abode
for an indefinite duration, such place could be
called residence. For e.g., if a Hindu marries
an American, and the couple decide to reside in
India, the American can file such petition
before the District Court within whose
jurisdiction they last resided together or
he/she resides in case the other party resides
outside the Country, irrespective of whether the
marriage was solemnised within the jurisdiction
of such Court or not.
RESIDENCE IF ABROAD:
In cases where the other party (spouse) resides
outside the country or is believed to be dead,
such petition may be filed in such District
Court within whose jurisdiction the party filing
such petition resides. This is an ideal
provision wherein Hindus/spouses of Hindus wish
to obtain a decree of divorce from their spouse
who resides outside the Country. However in such
cases there is bound to be some procedural
delay. |
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