Insight: Can a person be married under Hindu Law in India and get Divorced in UAE?
The number of expatriate Indian couples in the UAE filing for divorce in the UAE rather than in India is rising. Many couples cite the effectiveness of the court system, knowledge of the rules, and legal counselling as reasons for their decision.
People who were married outside the UAE and current citizens of the UAE may typically apply for divorce using civil procedures or according to their own religious beliefs. Contrary to common opinion, many expats choose to have their divorces processed via the UAE court system because it is quicker and less costly in the long run. Divorces in the UAE can be completed in as little as one month if all parties agree.
It should be remembered that divorce decrees for Muslim marriages can be obtained under Sharia Law, while divorce proceedings for non-Muslim marriages can be obtained under Federal Law No. 28 of 2008, also known as the Personal Status Law. The non-Muslims are permitted to use personal laws of the country in which their marriage was solemnized under this policy, as long as they have legalized versions of their country's rules translated and authorized by a translator and the Ministry of Justice.
“Unless non-Muslims have special provisions applicable to their community or confession, the provisions of this law shall extend to people of the United Arab Emirates. Unless one of them requests the application of his rule, they shall apply equally to non-citizens,” the Personal Status Law of the UAE stated. In the meantime, those who have been bound by interfaith or government marriages will demand a divorce by presenting a legitimized version of India's Special Marriage Act of 1954. By sending a validated translation of India's Foreign Marriage Act of 1969, foreigners or Indians who were married in an Indian Embassy or Indian Consulate abroad may apply for a divorce.
Individuals must first present an application and a marriage document to the Family Guidance Section of the Personal Status Court. A counsellor will listen to the individuals' resentment and work to get both parties back together in order to save the marriage. When either or both parties do not wish to join forces, the attorney will ask both parties to bring settlement and divorce terms to the meeting.
Divorce laws for Muslim couples
Sharia law is the law that governs Islamic marriages. If both the husband and the wife are Muslims who live in the UAE, Sharia/UAE law will almost certainly rule their divorce. If the husband is a Muslim and the wife is not, the case is likely to be the same.
Divorce laws for Non-Muslim couples
In a recent case of Supreme Court, the court of cessation applied international law in a divorce case, citing Article 13 of the personal status law. According to Article 13, either party has the right to ask the court to apply international law (i.e., the law of the country where the marriage was contracted) to their divorce. Article 16 covers all substantive issues relating to guardianship, trusteeship, and preservation, as well as other mechanisms defined for the welfare of persons in need of protection. Prior to making a decision in a landmark case, the Supreme Court allowed an unattested legal translation that is in Arabic of the Hindu Marriage Act at the behest of one side.
In reality, the recent trend has consistently demonstrated that applying foreign laws, especially in family matters, is a difficult task. In general, international laws are effectively implemented. Foreign laws cannot be enforced if they are in violation of public order, morality, or Islamic Sharia, according to Article 27 of the Civil Procedure Laws. Though cruelty was one of the grounds for obtaining judicial separation under the Hindu Marriage Act of 1955 as originally enacted, it was not a ground for obtaining a divorce. Cruelty became a basis for divorce and judicial separation after the amendment.
Only cruelty is stated in clause 13(1)(a) of the Hindu Marriage Act, and it is not defined if it is mental or physical cruelty. The courts have interpreted it broadly, stating that it encompasses both physical and mental harm, and we are dealing with the latter in this case. An annulment is a legal concept that applies to the process of rendering a voidable marriage null; if the marriage is void, it is automatically null, but a legal declaration of nullity is necessary to prove this.
A civil process for making a marriage null and void is an annulment. It is rarely given, with the exception of bigamy and not meeting the minimum age requirement for marriage. If such legal conditions were not fulfilled at the time of the marriage, the marriage can be considered null and void. In the eyes of the law, if these legal provisions are not fulfilled, the marriage is deemed to have never happened. This is referred to as an annulment.
It differs from divorce in that an annulled marriage never existed in the first place, while a divorce dissolves a previously existing marriage. As a result, unlike divorce, it is retroactive: an annulled marriage is no longer considered valid. It is necessary to remember that annulment will result in a violation of UAE criminal law; as a result, UAE courts are unlikely to apply the same interpretation as Indian courts. Section 13B of the Hindu Marriage Act provides for a divorce by mutual consent. A couple will get a divorce if they file a joint petition claiming that they have been living apart from each other for at least a year and have mutually agreed to end their marriage. The court then gives them a six-month cooling-off period before the final petition is decided by the family court. This six-month waiting period is established to give couples time to rethink their decision to make sure they both want to end their marriage.
Marriages that are invalid
When a marriage is prohibited by statute, it becomes invalid and is immediately annulled. The Hindu Marriage Act of 1955, Section 11, deals with:
- Marriage between relatives who are close
Except for marriages allowed by existing customs, a marriage between an uncle and a niece, an aunt and a nephew, or a marriage between first cousins, whether the relationship is by half or whole blood, is considered void.
The marriage is invalid if either partner was legally married to another person at the time of the marriage, and no formal annulment is required.
- Divorce and nullity of marriage
Any marriage solemnized after the effective date of this Act is null and void and may be proclaimed as such by a declaration of nullity on a petition filed by either party against the other party if it violates any of the conditions set forth in Section 5 clauses (i), (iv), and (v).
- Inter-family Marriage
A union between a brother and a sister, or an ancestor and a descendant whether by half or whole blood or by adoption.
Marriages that are voidable
An annulment is not compulsory in a voidable union, and one of the parties must obtain it. In general, one of the parties to marriage could demand an annulment if the intent to enter into a civil contract of marriage was not present at the time of the marriage, whether due to mental illness, intoxication, duress, or fraud.
The Hindu Marriage Act of 1955, Section 12, deals with voidable marriages:
- Any marriage solemnized before or after the effective date of this Act is revokable and may be annulled by a decree of nullity on any of the grounds mentioned below;
- since the respondent's impotence prevented the marriage from being consummated; or
- that the marriage is in violation of the condition set out in Section 5 clause (ii); or
- that the petitioner's consent was obtained by force or fraud as to the nature of the ceremony or any material fact or circumstance concerning the respondent, or where the consent of the petitioner's guardian in marriage was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or fraud as to any material fact or circumstance concerning the respondent; or
- that the respondent was pregnant with someone other than the petitioner at the time of the marriage.
- Despite the provisions of subsection (1), no petition for the annulment of a marriage may be filed.
- If a claim is made based on clause (c) of sub-section (1), the claim will be considered if;
- The petition is filed more than a year after the force ceased to exist or, in some cases, after the fraud was discovered; or
- since the force had ceased to function or, as the case may be, the fraud had been detected, and the complainant has lived as husband or wife with the other party to the marriage with his or her full consent;
- unless the court is satisfied that the ground stated in clause (d) of sub-section (1) is true;
- that the petitioner was unaware of the evidence claimed at the time of the marriage;
- that, in the case of a marriage solemnized before the commencement of this Act, proceedings were instituted within one year of the commencement, and in the case of marriages solemnized after the commencement of this Act, proceedings were instituted within one year of the date of the marriage; and
- that no marital intercourse has taken place with the petitioner's consent since the petitioner discovered the presence of the said land.
Divorce eligibility criteria
Although divorce is legal in Islam, Sharia law makes it more difficult for squabbling spouses to end their union unless the judge is persuaded the marriage is doomed to fail. A civil process for making a marriage null and void is an annulment. It is rarely given, with the exception of bigamy and not meeting the minimum age requirement for marriage.
As previously mentioned, the conditions for Muslims and non-Muslims seeking a divorce in the UAE differ to some degree. As a result, in order for a non-Muslim to apply for divorce in the UAE, all parties must be UAE residents, and they must be able to file for divorce in their home country under their home country's laws. Another important factor for non-Muslim couples living in the UAE who want to divorce is that they can either file a divorce petition based on their home country law, as per Article 1 of Federal Law Number 28 of 2005 (Personal Status Law), or they can register the case under Shariah Law. If both or either party is a Muslim, however, the divorce case can only be filed under Sharia Law.
Divorce Procedures in the UAE
Divorce in the United Arab Emirates is reasonably straightforward. In fact, if the parties can reach an agreement quickly, the process can be completed in as little as a month. This is called as a mutual consent divorce, and it does not require either party to have legal reasons for the divorce because they have reached an agreement. The first step is to apply for a divorce with the Family Guidance Section of the relevant judicial department in one of the emirates where you live.
Conciliation is the first step in the divorce process. The couple will try to sort out their differences or, at the very least, find an agreement at this stage. Your marriage certificate and contracts, as well as passports for both spouses and any children, and birth certificates, will be required. Each text should also be translated into Arabic. This stage is limited to three months by statute. After that, there are two options for moving forward.
If the parties are unable to reach an agreement, the matter will be heard by the First Instance Judge. Following the filing, the defence will respond, and the initiating party will respond; this process will continue until the judge makes a decision on the case. Both parties may opt to have a lawyer represent them, but it is not required. Cases are also heard in Arabic, but an interpreter would be given by the court. After the judgment is rendered, either party has 28 days to file an appeal. The Appeals Court follows the same procedure as the First Instance Court, with the exception that the case is heard by three judges.
The case will be transferred to the Court of Cessation until the final judgment is rendered. To make sure that due process is followed, the court will review all records related to the case. At this point, you won't be able to present any new facts. After that, the matter will be heard by the Enforcement Court. The court then executes the decision and guarantees that both parties adhere to the judgment and settlement agreements. If the parties reach an agreement during the conciliation period, the case will be sent directly to the Enforcement Courts, bypassing the court system.