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Published : February 14, 2016 | Author : alrowaad
Category : Dubai laws | Total Views : 263 | Unrated

  
alrowaad
Hassan Mohsen Elhais After qualifying as a lawyer in his native Egypt within the fields of Criminal and Public Law, Mr. Mohsen Elhais has been practicing in Dubai for the past seven years. Working exclusively with Al Rowaad Advocates, Hassan is an effective leader of the company, the spokesperson and driving force. Hassan has a strong ethical stance with regards to the place of the law firm and its work on behalf of the client, from clarity on the legal process through to the fee system. Specialising in the drafting of all statement of claim, memos and consultation with regards to all kind of litigations, Hassan has worked his way through the ranks of Al Rowaad Advocates from joining as Legal Advisor to his current role as Managing Partner.
 

In a recent Supreme Court case decision, according to Article 13 of the personal status law, court of cassation applied foreign law in a divorce matter. As per Article 13, either party has a right to request to the court to apply foreign law (ie place where marriage was contracted) in their divorce matter. As per Article 16, all substantive matters relating to guardianship, trusteeship and maintenance or other systems laid down for the protection of persons requiring to be protected. In a landmark case, supreme court accepted un-attested legal translation of the Hindu Marriage Act at the request of one party prior to deciding on the matter.

In practice, recent trend has always shown that application of foreign laws, particularly in family matters is an uphill task. Generally, foreign laws are extremely applied successfully. As per Article 27 of the Civil Procedure laws, foreign laws may not be applied if they are contrary to Public order, morals or Islamic Sharia.

The sources of Hindu Marriage act are the Vedas and they state that one a couple is tied in this holy institute of marriage, they can’t separate. However in the act, there is a decree for divorce in its section 13. In here the grounds for divorce vary from adultery to cruelty and even renouncement from the world by entering into a religious order is one of them.

Under the Hindu Marriage act,1955 as enacted originally, though cruelty was one of the grounds for obtaining judicial separation, yet it was not a ground for obtaining divorce. After its amendment, cruelty was made a ground for both divorce and judicial separation.

In the clause 13(1)(a) of Hindu marriage act, only cruelty is mentioned and not specified whether it is mental or physical cruelty. The courts have interpreted it in a broader prospective and said that it includes both physical and mental and we are dealing with the latter here.

In strict Legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void, then it is automatically null, although a legal declaration of nullity is required to establish this.

Annulment is a legal procedure for declaring a marriage null and void. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.

It is important to note that annulment can lead to breach of criminal law in UAE; therefore it is unlikely that UAE court will follow the same interpretation as Indian courts.

The Hindu Marriage Act, allows for a divorce by mutual consent under section 13-B. A couple can be granted a divorce if, they end the marriage by presenting a joint petition stating that they have been living separately for at least a year and have mutually agreed to dissolve the marriage. The court then requires them to have a six-month cooling-off period before the family court disposes the final petition. This mandatory six-month period has been provided to allow couples time to reconsider their decision and to ensure that they mutually want to end their marriage.

Void Marriages

A marriage is automatically void and is automatically annulled when it is prohibited by law. Section 11 of Hindu Marriage Act, 1955 deals with:

Nullity of marriage and divorce- Void marriages - Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 mentioned above.

Bigamy - If either spouse was still legally married to another person at the time of the marriage then the marriage is void and no formal annulment is necessary.

Inter-family Marriage. A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption.

Marriage between Close Relatives. A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.

Voidable Marriages

A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud

Section 12 of Hindu Marriage Act, 1955 deals with Voidable Marriages- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:- (a) that the marriage has not been consummated owing to the impotency of the respondent; or (b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 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 by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

Impotency - If either spouse was physically incapable of entering the marriage at the time of the marriage, usually because of a lack of ability to have sexual intercourse, and if this inability appears incurable or if the spouse refuses to take any action to cure the inability, there are grounds for an annulment. The inability must continue and must exist at the time of suit.

Lack of Mental Capacity - If the court finds that either spouse did not have ability to understand the nature of the marriage contract or the duties and responsibilities of the marriage contract, then there may be grounds for an annulment. However, if the spouse who did not have the ability to understand the contract gains the capacity to understand it and freely lives with the other spouse, then this ground does not apply. This particular ground most often applies to someone who has been mentally ill or who has suffered from mental or emotional disorder.

A Party was Under the Age of Consent - If you were married while you are under the legal age, your marriage may be annulled. The legal age for boys is 21 years and for girls is 18 years. A marriage by an underage party may become legally binding and incapable of annulment if the cohabitation of the parties as husband and wife continues voluntarily after the person reached the age of consent.

Fraud or Force - If the consent to the marriage contract was obtained either by fraud or force, then there are grounds for an annulment. Fraud is simply not telling the truth in order to induce the other party to enter into the marriage contract. Whether the failure to tell the truth will be grounds for annulment depends of the facts of the case. Force implies the use of or threat of the use of physical violence to make a person get married. The person who has been threatened or deceived about the marriage contract continues to live with the spouse after the discovery of the fraud or the deception or after being forced into the marriage, it is possible that this ground will not apply.

Conclusion

An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased – legally, it declares that the marriage never technically existed and was never valid. Annulment of marriage is very important in the scheme of matrimonial laws as there is no point in carrying the burden of divorce in cases where marriage has been solemnized on the strength of fraud or where the marriage is solemnized despite the fact that the responding spouse was already married. In UAE annulment of marriage can potentially mean breach of criminal laws because if technically marriage was annulled or cancelled the relationship between man and woman would be illegitimate or in violation of Sharia principles.

Author: Mr. Hassan Elhais is a professional Lawyer who specialized in Litigation in Dubai, United Arab Emirates. 




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