A valid divorce according to the Pakistani laws

Pakistani marriage is a contractual agreement between two people only in a legal sense. The agreement of marriage is not a spiritual or religious binding in the eyes of the law and court systems. The religious aspect of the marriage does contain spiritual and moral bindings in the church. This means that though the court system sees the marriage as a piece of paper, the church recognizes the marriage. If the marriage is salvageable, it is encouraged by the court to keep the spouses together. If resolution cannot be obtained, then an agreeable dissolution is allowed.

Difficulty of Divorce for Women

Though a woman is able to and entitled to obtain a divorce, she may not know this. In the Muslim culture, divorce is frowned upon, and girls may be brought up not to consider divorce or worry about their dowry. Due to this cultural distinction, a woman may find it extremely difficult to obtain a divorce or information about her rights according to the relevant laws.

Acts that Allow a Divorce for a Woman

If a Muslim woman is seeking a divorce from her husband in Pakistan, there are several ways in which she can attain such recourse.

Under the Dissolution of Muslim Marriages Act Section 2, various allowances provide for a divorce by the wife of a couple. If certain circumstances arise, divorce may be obtained. For example, if the husband has been absent for at least four years, the wife can request a divorce. Another ground for divorce in Pakistan is if the husband has not fulfilled his duty to financially support the household for at least two years.

If the husband marries another woman while married to his wife and his wife does not consent, the wife can request a divorce. Additionally, the man can be imprisoned for this particular act. Other grounds for divorce is if the husband was impotent before marriage and continues to be so, has a venereal disease or has not been physically intimate with his wife for at least three years.

Pakistan law recognizes the right for an adolescent’s father or other guardian to offer her hand in marriage. If she was married while under 15 years of age, the marriage was not consummated and the wife chooses to repudiate the marriage before she reaches 18 years of age, the marriage can be dissolved.

Another ground for a woman to be granted divorce is if the husband is considered to be “unduly severe.” This means that the husband has abused his wife physically, emotionally, or psychologically on a constant basis, he is consorting with other immoral females or is being disreputable, he endeavors to coerce his wife into leading his disreputable type of life, he stops her from recourse against his theft of possessions, he does not allow her freedom of religious exercise, or he does not treat her with equal measure as his other wives.

Dissolution of Marriage by the Husband

If the husband chooses to get a divorce, he must comply with specific requirements. The husband has to provide a written notice to chairman of the court, and a copy must be provided to his wife. If he fails to comply with these requirements, he can be fined or imprisoned. Additionally, the divorce itself will not be recognized until he provides a written notice to the chairman for up to 90 days. The chairman will attempt to mediate a resolution between the husband and wife. If the wife is pregnant at the time that the divorce action is pending, the divorce will be postponed.

Dowry

The wife is entitled to the return of her dowry if the husband initiates a divorce and in most cases if she is the one to initiate the divorce.

Remarriage

A wife may remarry the same man even after divorce. She does not have to marry another first to do so. If a man wants to marry a woman while still married to his wife, he must receive the consent of his current wife. If he marries another woman without his wife’s consent, he can be imprisoned for up to one year and fined.

Due to the complexity of legal issues involved in Pakistani marriages and divorces, individuals considering a divorce may choose to consult with a lawyer familiar with Pakistani law.

Registration of Marriage in India

A marriage in India is required to be registered in most of the cases. The state governments have or are planning to make the registration of marriage compulsory in all the cases. A marriage certificate is also required in most cases for visa purposes.

Moreover, the Indian Special Marriage Act, 1954, which applies to all citizens irrespective of their religion, requires the registration of marriages by a marriage officer.

The Indian Christian Marriage Act, 1872, makes the registration compulsory, as it provides for entry in a marriage register kept in the Church soon after the marriage ceremony along with the signatures of the bride and bridegroom.

The Hindu Marriage Act, 1955, certain provisions exist for the registration of the marriages, but it had been left to the discretion of the families of the bride and bridegroom to either solemnize the marriage before a registrar or register it after the ceremony in traditional way. The non-registration of a marriage does not invalidate it under the Hindu Marriage Act.

The Parsi Marriage and Divorce Act, 1936, makes the registration compulsory.

Marriage in India under the Special Marriage Act

The Indian Special Marriage Act 1954 permits marriages between persons who are not of the same community or who have different religions or nationalities. The scope of the Act includes the entire territory of India and extends to intending spouses who are both Indian nationals living abroad.
The groom must be at least 21 years old, while the bride must be at least 18 years of age. Both parties should have full mental capacity and not be currently married. Parties to the marriage must provide notice of their intention to solemnize the marriage before a marriage officer in the district where at least one of the parties has resided for at least 30 days prior to the notice. Notice of the intended marriage is entered into the Marriages Notice Book, which is open for public inspection with an inspection fee. The public has the right to object to the marriage for the following 30 days. Any objections must be investigated and resolved within an additional 30 days.

Prior to the solemnization of the marriage, the parties and three witnesses must sign a declaration in front of a marriage officer, who will also sign the document. The marriage may be solemnized in any form that the parties wish to adopt as long as the solemnization occurs at the marriage officer's office or any place that the marriage officer sanctions. The marriage must include the exchange of the following statement: "I (name of self) take you (name of partner) to be my lawful (wife or husband)." After the solemnization, the marriage officer will enter the certificate in the Marriage Certificate Book. The parties and the three witnesses must sign the certificate. The entry of the certificate in the book is deemed conclusive evidence of a lawful marriage.

Any marriage in India may be registered under this Act. The parties must jointly apply for the marriage registration. After 30 days of notice to the public, the marriage officer will enter the certificate into the Marriage Certificate Book. The spouses and three witnesses must sign the certificate.

Personal Laws of Marriage and Divorce in India

India is a land of many cultures and religions. Each citizen of India is entitled to have his own personal laws in the matter of marriage and divorce.
There are different rules and regulations for different religions. For example there are Hindu Marriage Act, Muslim Marriage Act, and Christian Marriage Act and for the Parsee there is Parsee Marriage and Divorce Act.
In case of the Hindus, Sikhs, Jains and Buddhists,  they are governed by the Hindu Marriage Act, 1955, which provides for the conditions of a marriage where under the bridegroom should be the age of 21 years and bride of 18 years, they both should not be within the degree of prohibited relationship.
Divorce under the Hindu Marriage Act 1955 can be obtained on the various grounds.
Muslims also have their own personal law, which states that Nikah or marriage is a contract and may be permanent or temporary and permits a man four wives if he treats all of them equally.
Similarly for the Parsees there is a Parsee Marriage & Divorce Act, 1939, which governs the provisions of their marriage and law.
For Indian Christian there is a Indian Christian Marriage Act 1889.

Civil Marriage Ceremonies in India

Parties who do not wish to marry in a religious ceremony can instead opt for a civil ceremony pursuant to the Indian Special Marriage Act of 1954.
In case a marriage between an Indian and a foreign national is to take place in India, generally its required to file a notice of intended marriage with a Marriage Registrar of your choice in India. That notice is required to be published for the stipulated 30 days. At the end of the 30 days the Marriage Registrar is free to perform the marriage.
The notice of intended marriage can only be given in India, if at least one partner is permanently and the other partner temporarily resident in India.

If one partner is residing in a foreign country then the partner who is resident in India will have to fill out the “Marriage Notice”  collected from the Marriage Registration Office of his/her choice in India and send it to his/her partner in the foreign country who will also have to fill it out. This “Notice” should then be sent back to the partner in India who will have to re-submit it at the Marriage Registration Office. After the stipulated waiting period of 30 days the marriage can take place in India. Under the Special Marriage Act, 1954 a certificate showing the signatures of the persons married, the registrar and the witnesses will be issued. This Certificate is required as proof of the marriage and when applying for a visa to for a foreign country.

The following documents are required for both the partners:

• a valid Passport
• original Birth Certificate showing parents' names
• if the person concerned is widowed, the original death certificate of the deceased spouse
• If divorced, copy of the final decree
• documentary evidence regarding stay in India of the parties for more than 30 days (ration card or report from the concerned SHO)

The American citizen who wishes to participate in a civil marriage ceremony may be required to present to the marriage officer a “no objection letter” from the U.S. Embassy or Consulate, as well as proof of termination of any previous marriages. Similarly, a citizen of another foreign country may be required to present to the marriage officer a “no objection letter” from the Embassy or Consulate of his country, as well as proof of termination of any previous marriages.
In a nutshell, under the Special Marriage Act, the parties generally are required to wait at least 30 days from the date of initial application to formalize the marriage so that the marriage officer can publish a newspaper ad allowing for the opportunity for any objections to the marriage to be voiced.

Religious Marriage Ceremonies in India

 An NRI, a PIO or a Foreigner (American, Canadians, British, and others) who wants to marry in India has a choice of  Religious Marriage Ceremony.

The Hindu Marriage Act of 1955 is applicable to Hindus, Jains, Sikhs and Buddhists. A religious marriage which has already been solemnized can be registered under the Hindu Marriage Act, 1955. The Hindu Marriage Act is applicable in cases where both husband and wife are Hindus, Buddhists, Jains or Sikhs or where they have converted into any of these religions. The Hindu Marriage Act provides for the conditions of a marriage where under the bridegroom should be the age of 21 years and bride of 18 years, they both should not be within the degree of prohibited relationship.

The documents required for registering a marriage under the Hindu Marriage Act are as follows:

• Application form duly signed by both husband and wife
• Documentary evidence of date of birth of parties (Matriculation Certificate / Passport / Birth Certificate) Minimum age of both parties is 21 years at the time of registration under the Special Marriage Act
• Ration card of husband or wife whose area SDM has been approached for the certificate
  Affidavit by both the parties stating place and date of marriage, date of birth, marital status at the time of marriage and nationality
• Two passport size photographs of both the parties and one marriage photograph
  Marriage invitation card, if available
• If marriage was solemnized in a religious place, a certificate from the priest is required who solemnized the marriage
• Affirmation that the parties are not related to each other within the prohibited degree of relationship as per Hindu Marriage Act or Special Marriage Act as the case may be
  Attested copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower
• In case one of the parties belong to other than Hindu, Buddhist, Jain and Sikh religions, a conversion certificate from the priest who solemnized the marriage
• All documents excluding receipt should be attested by a Gazetted Officer

Verification of all the documents is carried out on the date of application and a day is fixed and communicated to the parties for registration. On the said day, both parties, along with a Gazetted Officer who attended their marriage, need to be present before the SDM. The marriage certificate under the Hindu Marriage Act is issued on the same day or within a few days.

Marriage under the Hindu law is "sacrament" and "not a contract"

Marriage under the Hindu law is "sacrament" and "not a contract" which can be entered into by executing a deed, Delhi High Court has observed while dismissing a plea by a woman who had challenged an order refusing to declare her as the legally-wedded wife.

The woman had approached the court seeking her appointment for job on compassionate ground after the death of her alleged husband, a former sanitation staff in a city government hospital, and a direction to the medical superintendent to release consequential benefits and allow her to join duties.
The high court noted in its judgement that the petitioner had contended that she had married the man by way of execution of a marriage deed in June 1990 without disputing the fact that he was living with his earlier wife, who had died in May 1994.

"Since inception, the contention of the appellant (woman) had been that her marriage with the man on June 2, 1990 was performed by way of execution of a marriage deed and an affidavit. It is not disputed by her that the man had a living spouse on June 2, 1990 and she expired on May 11, 1994.

"Under Hindu Law, marriage is a 'sacrament' (solemn pledge) and not a contract which can be entered into by execution of a marriage deed. On June 2, 1990 the man was having a living spouse," Justice Pratibha Rani said.

The high court said the lower court had rightly held that the woman cannot claim the status of a legally wedded wife of the man on the strength of the alleged marriage and its order cannot be termed illegal.

The woman had claimed she was the man's widow and after his death, she had applied for appointment on compassionate ground after which she was offered appointment as 'safai karamchari' on temporary basis in the hospital.

Later, a show cause notice was served on her asking her to explain the legality and validity of her marriage with the man. She had replied that on the date of death of her husband in February 1997, she was his only wife.

The woman's plea before the trial court was contested by the Delhi government and medial superintendent of the hospital who said that she had misrepresented about being the legally wedded wife of the man.

The court, in its verdict, noted that the trial court in its judgement had referred to the earlier order passed by the high court in which it was held that issuance of succession certificate in favour of the petitioner without impleading the legal heirs of the man was of hardly any value.

"It is settled legal position that in second appeal, high court cannot set aside concurrent finding of fact given by the courts below. The second appeal can be entertained only if a substantial question of law is raised. The rationale behind is that appreciation and reappreciation of an evidence must come to an end with the first appeal," the court noted. "It has been consistent view that high court has no jurisdiction to entertain second appeal merely on the plea that another view is possible on appreciation of relevant evidence available on record," it said.