How Matrimonial Laws in India Are Different From Those in U.S and Canada?

CANADA

The civil and political rights of Canada are in the jurisdiction of the provinces, but the Constitution of Canada specifically made marriage and divorce the realm of the federal government. This means that the laws for Marriage and divorce are uniform throughout Canada, even in Quebec, which differs from the other provinces in its use of the civil laws as codified in the Civil Code of Quebec as opposed to the common law that is in force in the other provinces and generally interpreted in similar ways throughout the Anglo-Canadian provinces. In Canada, family law is primarily statute-based. The exclusive jurisdiction of the federal government handles marriage and divorce under section 91(26) of the Constitution Act, 1867 and is legislated under the Divorce Act.

Pursuant to the Divorce Act and relevant case law, the federal government has jurisdiction over custodial and access matters and spousal and child support during or after divorce. The provinces have exclusive jurisdiction over the solemnization of marriage under section 92(12) of the Constitution Act, 1867 and jurisdiction over spousal and child support, spousal (2 only conjugal partners) property division, custody and access, adoption, and child protection as part of the provincial government’s jurisdiction over property and civil rights under section 92(13) of the Constitution Act, 1867 and jurisdiction over matters of a private nature under section 92(16) of the Act. Each province has an Act that addresses the rules of property division

MARRIAGE UNDER CANADIAN LAW

Unlike under India, marriage under Canadian law is a legal agreement between two people and may or may not have a religious significance. Marriage laws apply to everyone who lives in Canada and each person in a marriage is viewed as an equal partner under law

The requirements for a valid marriage in Canada can be broken down into categories:

Essential Validity

Formal Validity.

Marriages that do not meet any of these requirements may be annulled by a court on the application of one of the parties to the marriage. Marriages that meet the requirements are deemed valid and can only be terminated by a divorce.

Essential Validity

Sexual Capacity: The parties to a marriage must have the capacity to consummate it. The capacity must exist at the time of marriage and the lack of the capacity may render the marriage voidable. Proof of insincerity of motive in using a lack of sexual capacity to annul a marriage can undermine the position of the applicant. That is, if an applicant had prior knowledge of their partner’s inability to perform sexually they will not be allowed to use the incapacity to get out of a situation they freely entered into. A voidable marriage can only be annulled by one of the parties within the marriage during their lifetimes.

Capacity to Consent: At the time of the ceremony the parties must possess the mental capacity to consent to marriage. Mental capacity may be affected by mental illness, developmental disability, age or intoxication [1] . However, the courts have not held marriage to require a high level of understanding and marriages entered into where capacity was inhibited can be taken as being affirmed by the parties in light of their subsequent actions. (i.e. A person who was extremely intoxicated on their wedding day cannot have the marriage annulled if their subsequent actions affirm their marriage status).

Freedom of Consent: Consent must be given freely at the time of the ceremony (ie. no duress/mistake). In assessing whether the consenting party exercised sufficient free will the court must consider the particular circumstances, character, and age of the party. The question is not whether a reasonable person would have entered freely into the marriage but rather whether the party in question freely entered into the marriage (subjective test).

For duress, the applicant must show that they genuinely believe that their life, health, or liberty was threatened. For mistake or fraud the applicant must show that there was a genuine misrepresentation as to the nature of the ceremony that they were participating in, or with regards to the legal identity of the other party. However no amount of mistake as to the qualities or attributes of a partner will affect the validity of a marriage.

Requisite Age: The federal age requirements for a valid marriage are 14 for males and 12 for females. There are however, provincial age restrictions on marriage that generally exceed the federal age requirements.

Genetic/Adoptive Relationship: A person may not marry someone with a direct genetic relationship or a person in the adoptive position that would lie within a direct genetic line. It is similar to the restricted degree relationship in Hindu Law. It would be considered as incest for having sexual intercourse with someone in the restricted degree of relationship.

Unmarried Status: As in India, in Canada also Bigamy is void and punishable in nature. A person must be unmarried at the time of the marriage ceremony. A bigamous marriage is void ab initio and is not cured by the subsequent death of the first spouse means if the first wife dies after the second marriage; even then the marriage is void.

Formal Validity

The formal requirements for a valid marriage depend on the provincial legislation governing marriage ceremonies in the relevant jurisdiction. Typical requirements include the licensing and registration of the religious representative performing the ceremony, the consent of guardians for any parties under 19 wishing to marry, and that the marriage certificate should be duly executed and registered with the provincial authority.

DIVORCE UNDER CANADA

Canada did not have a federal divorce law until 1968. Before that time, the process for getting a divorce varied from province to province. Canada’s divorce law was officially established in 1968. Prior to that, adultery was the only ground for divorce. The Divorce Act of 1968 introduced the concept of permanent marriage breakdown as a ground for divorce, while also retaining fault-based grounds for divorce, the most important of which were adultery, cruelty and desertion [2] .

The grounds for divorce set out in the 1968 Divorce Act were equally available to husbands and wives, thus removing the double standard that had existed under the U.K. Matrimonial Causes Act. The U.K Matrimonial Causes Act created a new Court of Divorce and Matrimonial Causes and gave it jurisdiction to hear and decide civil actions for divorce. Further, it gave rights of audience to both common law barristers and civil law advocates, which were earlier only to the “advocates” and “proctors” who practiced civil law from Doctors’ Commons.

The Grounds for divorce are available under Sections 3 and 4 of The Divorce act of 1968.This Act of 1968 govern divorce in Canada. Unlike the United States where divorce laws differ from state to state, federal laws govern divorces in Canada. All provinces follow the same laws and regulations. The act was revised in 1968 to establish grounds for divorce and guidelines for child support and spousal support.

Under the Canadian Law the grounds for divorce are classified into two categories i.e.

Fault Divorce

No fault Divorce

The Divorce Act of 1986 decides the grounds for divorce (both no-fault and fault), spousal and child support, and access to children after the divorce. The division of property between the spouses however falls under the jurisdiction of the provincial courts. Under the Canada Divorce Act of 1986, the sub grounds for divorce are recognizes under the only one ground i.e. the breakdown of the marriage. The breakdown of marriage constitutes:-

Spouses have lived separately for at least one year prior to determination of divorce and are living separately when the proceedings for divorce commenced.

Spouse against whom divorce is claimed committed adultery.

The respondent spouse has treated the other with Physical and mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

The first one falls under no-fault divorce and either spouse can file for a no-fault divorce. Both spouses can formally file for a divorce even before the one year period, but the divorce judgment is given only after the one-year period.

The last two (adultery and cruelty) fall under fault-based divorce and the one-year waiting period is waived. It is, however, only available to the spouse who isn’t at fault.

The Canada Divorce Act of 1986 encourages reconciliation if the court decides that it is appropriate to raise it with the spouses. Divorce proceedings can be stopped to give the husband and wife the time to think and work out a possible reconciliation but this adjournment or pause period is good for only 14 days.

SEPERATION FOR ONE YEAR

This is the most commonly used ground for divorce in Canada. This ground is used even when there is adultery and cruelty. It is so because getting divorce on this ground is much easier as it does not need any argument to substantiate the point.

According to Canadian Welfare Council, 1968 the desertion is defined a separation of spouse which is against the will of other spouse and which is accompanied by an intention on the part of other spouse to permanently to end their married life together. [3]

If the parties have lived separately for at least one year before applying for divorce, this has been a recognised ground for divorce under the Canadian Law.

ADULTRY

Adultery has been defined as “Voluntary Sexual Intercourse of a married man with one of opposite sex”. Now a voluntary surrender to some person of reproductive powers any submission of these powers to the service or enjoyment of any person and not the spouse [4] is construed as divorce.

The modern definition of adultery is beyond the ordinary heterosexual intercourse. The testimony of the respondent spouse confessing adultery is not an admission within the meaning of divorce act.

The law also states that the parties to the proceeding instituted under the adultery cannot be bounded to answer the question which can prove that he or she is guilty or not. This protection is available both at the pre trial and the trial stage. The protection is provided so as the unwilling parties cannot be compelled to admission needed in the proof of adultery.

So when an applicant seeks divorce on an unwilling respondent, he should have some independent evidence to prove the adultery.

CRUELTY

By the phrase “cruelty of such a kind as to render intolerable the continued cohabitation of the spouses” some people thought that referred to the standard or cruelty established in 1987 as applicable to be claimed by wife for alimony and some thought that it setup a new standard within the act itself.

The test of cruelty is subjective in nature as while determining the cruelty the questions like whether this conduct of this man to this woman is right or not.

Requisites For The Application Of Divorce

There are some basic prerequisites for filing an application for the divorce:

Person is legally married in Canada or abroad.

Applicant intends to separate from his/her spouse permanently or have already separated and believe the marriage is over.

Either one or both of the parties have lived in a Canadian province or territory for at least one year immediately before applying for a divorce.

MATRIMONIAL LAWS IN INIDA

VALID HINDU MARRIAGE:

Since in India various communities have different customs and ceremonies, the law says that a marriage can be performed or “solemnised” according to the customary rituals and ceremonies of the community to which either the bride or the groom belongs. It is very important to understand that the rituals and ceremonies carried out must be recognised and accepted by the community concerned as being the proper ones for formalising a marriage. For example, the law makes it very clear that in a Hindu marriage, where the ceremony includes the saptapadi, the ritual of circling the sacred fire seven times, the ceremony becomes complete and the marriage binding when the seventh round is completed.

In its nutshell following grounds can be called as the requisites for a valid marriage under the Hindu Marriage Act, 1955

Neither bride nor groom should already be married or have a living husband or wife. A divorced person, a widow or widower is free to remarry;

Both should have reached the minimum age for marriage: 18 years in case of the bride and 21 in case of the groom;

Apart from being able to give their voluntary consent to the marriage, both must also be free of any mental disorder which could make them unfit for marriage;

The bride and groom should not be within the “prohibited degrees of relationship” nor should they be “sapindas”1 of each other (these expressions are explained in detail in s.3 (f) and 3(g) of the Hindu Marriage Act). This rule does not apply if it can be established that a custom or usage is applicable to each permitting marriage between the two. Significantly, the rule does apply when the relationship is based on adoption

Two persons are said to be within the degrees of prohibited relationships:

If one is a lineal ascendant of the other. For example a Daughter cannot marry her father and grandfather. Similarly, a mother cannot marry her son or grandson.

If one was the wife or husband of a lineal ascendant or descendant of the other. For example, a son cannot marry his stepmother. Similarly, a person cannot marry his Daughter-in -Law or son -in-law.

If one was the wife of the brother or of the father’s or mother’s brother or the grandfather’s or grandmother’s brother of the other.

If the two are brother and sister; uncle and niece; Aunt and Nephew or children of brother and sister of two brothers or two sisters. It must have been noticed in some communities the marriage with the wife of the brother and mother’s brother and the first cousins are solemnized, those marriages; in the absence of a custom in the community are not valid marriages.

A person cannot marry upto his second cousin from the mother’s side and upto his fourth cousin from the side of the father. It is also necessary the parties should not be sapindas of each other from either side.

Out of the four necessary conditions, if the following three are not fulfilled, then it would be a void marriage i.e. an invalid marriage

If one of the parties to the marriage has a living husband or wife; or

If the parties are within the prohibited degrees of relationship; or

If they are sapindas of each other.

If the conditions regarding valid consent have not been fulfilled, the resulting marriage is void. That means that the party wishing to challenge it can approach the court for a decree of nullity. Once such a decree is passed, the marriage would have no legal force whatsoever. For example, if after the solemnization of the marriage it is found that the groom could not have given his valid consent because of the unsoundness of his mind, the woman can get the marriage nullified through the court.

A woman married off before she turned 18

A woman whose marriage was performed when she was under 15 years of age can reject the marriage, or “repudiate” it and get a divorce on that ground alone. She can only take the step after turning 15, but before turning 18. However, by doing so she loses the right to maintenance or alimony which a divorced woman can claim legally.

Divorce under Hindu Law

GROUNDS FOR DIVORCE

Adultery

Cruelty

Desertion

Conversion

Unsoundness of mind & other venereal diseases

Renunciation of the world

Not heard alive

No resumption of cohabitation

The Hindu Marriage Act, 1955 came into existence, eight years after the independence of the country. Divorce between two persons married under the Hindu Marriage Act is also governed by the same Act. Section 13 of the Hindu Marriage Act deals with the grounds on which the parties can seek a decree of divorce from a competent court having jurisdiction to entertain such petition.

The grounds for divorce are provided in the section 13 of Hindu Marriage Act, 1955.

ADULTRY

The first ground for divorce is Adultery. If any of the spouse indulges in sexual intercourse with any person other than his or her spouse, then it can be a solid ground for the divorce under Hindu law.

Earlier, this was a ground for the judicial separation but now this is the ground for both the divorce and the judicial separation.

In the matrimonial law Adultery is a consensual sexual intercourse between a married person and a person of opposite sex, but not the other spouse, during the subsistence of marriage [5] .

Adultery is also a criminal offence under the Indian law. Section 497 of the Indian Contract Act states that. Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.

Adultery under sec. 497

can be done by a male only,

must know that the woman he is having sex with is not his wife

Intercourse must be with the consent of the women.

CRUELTY

The definition of cruelty is not precisely available. There can be a number of acts and conducts which can constitute cruelty. Cruelty can be subtle or brutal. It can be physical or mental. It can be through words, gestures or by mere silence [6] .cruelty should not always be of such a nature as to cause danger to the life or health, but harm to or injury to health, reputation or mental pain will also amount to cruelty.

The cruelty has been classified in the two heads:

Physical Cruelty

Mental Cruelty

Physical Cruelty:

Acts of physical violence by one spouse to another resulting in injury to body, limb or health or causing reasonable apprehension of the same have been traditionally considered as cruelty. Even injuries on the person are considered not to be very serious so as to call for the medical treatment, but yet she is ill-treated, this amounts to cruelty [7] . Even one or two acts are sufficient to constitute cruelty but not an isolated instance. [8]

Mental Cruelty:

In Bahgat v. Bhagat [9] court defined mental cruelty as that conduct which inflicts upon other party such mental pain and suffering as would make it impossible for the party to live with the other party to judge the mental cruelty the court has to go through the “intensity, gravity and stigmatic impact “of cruel treatment, even if such cruel treatment is mated out once [10] .

Certain types of mental cruelty involves [11]

False accusation of unchastely or adultery

Demand for Dowry

Persistent refusal to have matrimonial intercourse

Wilful refusal to have sexual intercourse and impotency etc.

DESERTION

Desertion is also a ground available for divorce if the respondent has deserted the petitioner for a continuous period of not less than 2 years.

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 to the marriage.

But the most precise definition of Desertions is the permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of other. Desertion is actually a total repudiation of the marriage obligations .To constitute desertion previous cohabitation of spouses is must.

Desertion is of three types

Actual Desertion- the deserting spouse must have left the other party with intention to forsake or abandon him or her permanently.

Constructive Desertion- the desertion is not a withdrawal from the place the state of thing.

Wilful Desertion- it will amount to wilful neglect if a person consciously acts in a reprehensible manner in the discharge of his marital obligations

.

CONVERSION

For the application of this provision two pre conditions are there i.e.

He should be Hindu by religion

He converts to the other religion

A person does not cease to be Hindu just for the reason that he does not follow the practices of his religion or does not have faith in his religion or renounce his religion or even if he eats beef and abuses all the Hindu gods. If a husband was Hindu before the marriage and he converts to Sikhism, Jainism or Buddhism as the followers of both these religions are Hindu only.

This ground is available only when the respondent converts to non Hindu religion such as Christianity, Islam or Zoroastrianism.

UNSOUNDNESS OF MIND & OTHER VENERAL DISEASE

Unsoundness of mind and veneral disease has been recognised as a ground for divorce by the Indian Matrimonial Laws. Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together. Veneral Disease to be a ground for divorce must be in a communicable form [12] . If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.

RENUNCIATION OF THE WORLD

Spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order. If the spouse has selected to spend the life of a saint and have left his family and all the worldly things, the other partner gets the right to claim divorce.

NOT HEARD ALIVE

If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.

NO RESUMPTION OF CO-HABITATION

It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.

ADDITIONAL GROUNDS FOR DIVORCE BY A WIFE

In addition to the grounds stated above a wife may also present a petition for the dissolution of her marriage on the following grounds.

1. Where the marriage was solemnized before the commencement of this Act, and the husband had married again before such commencement or that any other wife of the husband whom he had married before such commencement was alive at the time of the marriage. (In such a case it’s necessary that the other wife is alive at the time of presentation of the petition).

2. That the husband has after the marriage been guilty of rape, sodomy or bestiality.

3. That her marriage whether consummated or not was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years.

Divorce by mutual consent

Where both the parties mutually agree that they want to divorce a petition may be presented 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 they have mutually agreed that the marriage should be dissolved.

Thereafter both the parties have to make a motion to the court not earlier than 6 months and not later than 18 months [13] from the date of presentation of the petition and the court after hearing the parties and on being satisfied will pass a decree of divorce.

MATRIMONIAL LAWS UNDER AMERICAN LAWS

MARRIAGE UNDER AMERICAN LAW

United States is comprised of 50 states with each state having its own laws regarding the marriage and divorce a summary of each state’s laws regarding premarital procedures, including blood tests, waiting periods before marriage, and the like. Because state laws in this area have been changing rapidly many states have recently eliminated blood tests and physical exams [14] .

The Marriage License Laws for a man and a woman to marry vary from state to state. Certain grounds necessary for marriage in one state are unnecessary for the other. Although there are differences between the requirements in the various states, but a marriage between a man and a woman performed in one state is recognized by every other state under the Full Faith and Credit Clause of the United States Constitution.

Although matrimonial laws in all the fifty states are different, but some of the laws for valid marriage under all the states are [15] :

A marriage license issued by the county clerk or clerk of the court.

Both man and woman are 18 or older, or have the consent of a parent or a judge if younger.

Proof of immunity or vaccination for certain diseases

Many states have done away with mandatory premarital physical exams or blood tests. Some states still require for venereal diseases, and a few also test for rubella (also known as German measles, a disease that is very dangerous to foetuses), tuberculosis, and sickle-cell anaemia.

Proof of the termination of any prior marriages by death, judgment of dissolution (divorce) or annulment.

Where there is a valid marriage, termination of marital status is obtained through a dissolution or divorce lawsuit, which results in a judgment that returns both the man and the woman to the status of unmarried (single) persons.

Sufficient mental capacity

Marriage requires two consenting people. If either person cannot or does not understand what it means to be married (due to mental illness, drugs, alcohol, or other factors affecting judgment), then that person does not have the capacity to consent and the marriage is not valid.

The couple are not close blood relatives.

Close blood relatives cannot marry, although in some states, first cousins can marry. Of the states that allow first cousins to marry, a few also require that one of the cousins no longer be able to conceive children.

Blood test for venereal disease.

Due to the rise in HIV and AIDS, many states now require that parties applying for a marital license must be offered an HIV test and/or must be provided with information on AIDS and tests available. Presently, no states require a mandatory premarital HIV/AIDS test.

Satisfaction of a waiting period from the time the marriage license is issued to the time the marriage ceremony is performed.

Most, but not all, states require a waiting period, generally one to five days, between the time the license is issued and the time of the marriage ceremony. The purpose of the waiting period is to give a short time to cool off during which the parties can change their minds if they wish. The waiting period can be waived for good reason. For example, if the groom is arriving in the bride’s town only one day before the wedding, but the state has a three-day waiting period, the waiting period probably can be waived by a judge or clerk of court.

Twenty states require couples to wait a few days after applying for a marriage license before they receive the license:

1-day Waiting Period: Illinois, New York, South Carolina, Delaware.

2-day Waiting Period: Maryland.

3-day Waiting Period: Alaska, Iowa, Kansas, Louisiana, Maine, Massachusetts, Michigan, Mississippi, New Hampshire, New Jersey, Oregon, Pennsylvania, Washington.

4-day Waiting Period: Delaware if both of you are non-residents.

5-day Waiting Period: District of Columbia, Minnesota.

6-day Waiting Period: Wisconsin.

Performance of a marriage ceremony with witnesses and a person recognized by the state to have the authority to perform marriage ceremony (such as a priest, rabbi or a judge).

A religious ceremony should be conducted under the customs of the religion, or, in the case of a Native American group, under the customs of the tribe. Religious ceremonies normally are conducted by religious officials, such as ministers, priests, or rabbis. Native American ceremonies may be presided over by a tribal chief or other designated official

Civil ceremonies usually are conducted by judges [16] . In some states, county clerks or other government officials may conduct civil ceremonies. Contrary to some popular legends, no state authorizes ship captains to perform marriages.

Most states require one or two witnesses to sign the marriage certificate.<