Can I marry a married lady whom I loved she has a baby

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When we think of Indian weddings, a colourful, lively picture comes to mind. Lush ambiance, joyful celebrations, music, delicious food, colourful clothing and intricate jewellery, a plethora of rituals and customs — these things are synonymous with most marriage celebrations around the world, but arguably more intense and “amplified” in Indian weddings.

Consider this scenario: A shy young woman in a beautiful sari welcomes a suitor and his family to her home. She serves them tea and sweets while the parents talk about their accomplishments, dreams and aspirations. If things go well, a match is made, and an auspicious date is set for their engagement and subsequent wedding. The day arrives much too soon, with a flurry of activity around the girl’s house. The women get their hands adorned with henna, while the place is colourfully decorated with flowers, lamps and rangoli. Food and sweets are bought, and poojas are held. The bride wears a gorgeous outfit designed with intricate brocade and golden zari. The groom arrives on a horse along with his loud baraat, and soon the wedding rituals are underway. They marry, fall in love, and live happily ever after.

The above could be a scene from an 80’s Bollywood movie, but it is also reality, up until the last part at least. Whether or not there is a “happily ever after”, most Indian arranged marriages are conducted in this manner. To say that these are major family affairs is an understatement. The marriage isn’t just between the bride and groom; entire families are joined in matrimony. It isn’t unusual for an Indian family to save up for their daughter’s wedding from the time she is born.

A Match Made in Heaven?

Marriage is one of the most significant events in a person’s life. By society’s norms, if one is lucky, it happens just once and remains strong for a lifetime. Increasingly though, more marriages are ending in dissolution than ever before. However, unlike countries like the United States, where the divorce rate is over 50% (i.e., more than half of all marriages are terminated), the divorce rate in India remains amongst the lowest in the world — as low as 1%, according to some estimates. The reason may not be that marriages are stronger in India, but rather that the Indian way of life is not conducive to dissolution of marriages. It is still considered a social stigma, especially in rural areas, and women are still, for the most part, dependent on their husbands for economical support. With the advent of more women in the workplace, this dependence is on a slow decline, but our society is far from the concept of “equal pay for equitable work” between men and women. This makes it more difficult for women to be completely independent, especially when children are involved.

Despite being a constitutionally secular country, most marriages in India are governed by laws formulated on the participants’ religions. Hindu family laws are enacted under the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Minority and Guardianship act, 1956 and the Hindu Succession Act, 1956 (which also cover persons of all non-Muslim, non-Christian, non-Parsi and non-Jewish religions such as Sikhs, Jains, and Buddhists). Muslims go by Sharia law under the Muslim Personal Law (Shariat) Application Act, 1937, the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986. Christians are governed under the Indian Divorce Act, 1869 and the Indian Christian Marriage Act, 1872; and Parsis follow the Parsi Marriage and Divorce Act, 1936. Couples of separate religions (and who otherwise wish to marry in a non-religious way) may be married under the secular Special Marriage Act, 1954, provided they file an application to do so 30 days before the intended date of marriage.

The legal age to marry in India is set at 18 for women and 21 for men. Child marriages are prohibited by the government and may be punished by imprisonment and/or a fine under the Child Marriage Restraint Act. Except for Sharia laws applicable only to Muslims, either party in a marriage may not have another living spouse. Both parties must be mentally capable, and failure to disclose a physical or mental condition to the other party can be grounds for an annulment. The marriage must be registered to be granted civil recognition by the government, but failure to do so does not make the marriage invalid.

Marriage comes with certain rights and duties that are applicable to both parties, the most basic of which are cohabitation and conjugal rights. Women are entitled to live in their matrimonial home with their husbands, and under Hindu law, the home must be maintained by the husband or his father. The spouse that is gainfully employed, or whoever earns more, must support his partner financially. Both spouses have the right to be treated with courtesy and decency by the other. Both have a right not to be mentally or physically harassed, and the lack of infidelity can be grounds for divorce. Adultery is punishable for men. Marriage also guarantees spouses succession rights to property under the Indian Succession Act, and children born within a marriage are deemed “legitimate”. Muslim men may have up to four wives, provided that each wife is treated equally. Failure to partake in any of the duties may provide grounds for dissolution of the marriage.

All’s Well That Doesn’t Always End Well

A sad fact of life is that no marriage is truly made in heaven. As many can attest, marriage requires a joint effort, cooperation, and compromise. It is an agreement of sorts and according to the law, it is a contract; and as contracts go, not all are successfully maintained. India still has a relatively low divorce rate as compared to the rest of the world, however.

Marriages may be ended either by annulment or by divorce. An annulment is a procedure that declares a marriage completely null and void, as if it never happened in the first place. The criteria for seeking an annulment are quite specific. They include the non-commitment of either spouse’s marital duties (such as wilfully not consummating the marriage), committing fraud by not disclosing a major pre-existing physical or mental health condition to the other spouse before marriage, coercing the marriage, etc. Annulling a marriage takes away the label of “divorcee,” but it is more common for couples to seek a divorce.

Some divorces are amicable and mutually agreed upon. Those do not require a reason to be filed. However, most are not. Most divorces are granted, upon the petition of either spouse, for various reasons (and as applicable under the Hindu Marriage Act), such as:

● Adultery (wherein the spouse has had an illicit affair with a person other than his/her spouse)
● Cruelty towards the other spouse, usually a series of acts that endanger life and limb or health
● Desertion for a period of 2 years or more
● Conversion to another religion
● Unsound mind, i.e., the spouse has a serious mental disorder
● Venereal diseases such as AIDS that are communicable
● Virulent and incurable leprosy
● If the husband is guilty of rape, sodomy or bestiality
● If the spouse has not been heard from or seen for a period of 7 years
● If the spouse has renounced the worldly life
● After a judicial separation (or an order of maintenance passed by the court), the couple has not resumed co-habitation for a period of 1 year
● After a decree for restitution of conjugal rights, no restitution for a period of 1 year
(Criteria for granting divorces to Muslims, Parsis and Christians under the Acts applicable to their respective religions are similar.)

Although a couple is no longer required to cohabitate, a divorce does not mean that you are free of your spouse for good. Many divorces involve a division of wealth and restitution of some sort (i.e. alimony). The spouse that is financially better-off is usually required to maintain the other. Under Muslim law, the wife is entitled to alimony until she remarries. If there are children involved, there are custody issues, and the parent that can best look after the child’s interest is granted custody.

Marriage is the chief cause of divorce.
-GROUCHO MARX

With the popularity of a more westernized culture, there seems to be a slow shift in our society’s way of thinking: ‘Marriage’ is more of a “bad” word than ‘divorce’, at least among the younger generation — the opposite of which was true just a couple decades ago. Internet sites that cater exclusively to divorcees are more famous than ever. Despite having a low divorce rate compared to the rest of the world, the rate has been rising sharply every year, especially in urban areas. Being single is an asset, synonymous to being free, glamorized by movies. Whether this is a good thing or not is a judgment call, depending on whom you ask. It’s good to know, however, that more people are aware of the rights that are available to them, in case they need to make use of them.

So the next time you catch a modern Bollywood film, don’t be surprised to see the shy, sari-clad woman replaced by a liberalized young divorcee who rules the roost at her independent best. It’s the 21st Century — marriages are no longer made in heaven!

Advocate Srinivasa Kudva LawRato