Answer 1: in Dr. Abdur Rahim Undre v. Padma Abdur Rahim Undre

ANSWER 1
The Triple Talaq pronounced to Aishwarya’s by Salman is Invalid. Aishwarya can be

granted divorce under the provisions of SMA on the grounds of cruelty and can also
be granted maintenance. This shall be substantiated by the following.
1. Is personal Law applicable when Marriage is solemnized under SMA?
The Nature of marriage under SMA is distinguished when compared to other
marriages. This marriage cannot be treated as a marriage under Muslim law as the
requisite essentials have not been fulfilled the foremost being Nikah therefore a
marriage under Muslim law shall have the affect and provisions of Muslim law but not
under SMA. When a marriage is solemnized under the special marriage Act then no
personal law can be applicable irrespective of the conversion status. Under Chapter 6
of the SMA which deals with Nullity and Divorce of marriage Section 27(1) states
that “Subject to the provisions of this Act and to the rules made thereunder, a petition
for divorce may be presented to the district court either by the husband or the wife on
the ground that the respondent” and this provision lays down the grounds for divorce,
since no mention of applicability of personal laws is mentioned it is deemed to be not
applicable and the act says that the solemnization of marriage under this act is subject
to the provisions laid down in this Act. Further-
In Salim Ahmed v Jhuma Bose (M v A) The Delhi High court laid down the law while
answering 2 fundamental questions Whether personal law has a standing when
marriage is under SMA and How is the jurisdiction of the court affected with the
same. Court held-
“Even assuming that the respondent had embraced Islam prior to 20th August, 1998,
it would not in any manner, effect the jurisdiction of the learned Family Court to
entertain and try the petition for divorce under the Special marriage Act.
When a person solemnizes marriage under this law then the marriage is not
governed by personal laws but by SMA. The rights and duties arising out of marriage
are governed by the SMA and the succession is governed by Indian Succession Act,
1925, and not by the personal laws.”
In Dr. Abdur Rahim Undre v. Padma Abdur Rahim Undre, AIR 1982 Bom 341, a
Muslim boy married a Hindu girl on 6th May, 1966 before the Registrar and the
marriage was duly registered under British Marriage Act, 1949. On 20th April, 1978,
the husband gave talaq which was challenged by his wife on the ground that the
marriage in England was performed according to the British Marriage Act, 1949; the
said marriage was a monogamous and secular in nature; the marriage performed under
the secular law of England cannot be dissolved under the personal law as the parties
are governed by Special Marriage Act, and therefore, the alleged talaq was invalid.
The Division Bench of Bombay High Court observed that Special Marriage
Act applies to all Indian Communities irrespective of caste, creed or religion.
In Minoti Anand v. Subhash Anand, 2011 (2) Mh.L.J. 812, the parties solemnized
their marriage under the HMA but subsequently registered the marriage under then
FMA. The divorce petition filed under the HMA was challenged on the ground that
the petition could be filed only under the SMA The Bombay High Court held that the
registration of a marriage under the FMA is conclusive and the provisions of the
SMA would apply. Relevant portion of the said judgment is as under:
“The essence of this very provision is that when one fact becomes or is statutorily
deemed to be conclusive evidence of another fact, any other evidence, which would
disprove such other fact cannot be led.”
In Suman Kundra v. Sanjeev Kundra, AIR 2015 Del 124, the parties were married as
per Hindu rites and ceremonies on 29th October, 1986. However, their love marriage
did not continue very long and the marriage dissolved by a decree of divorce on 02nd
June, 1988. The parties re-married for the second time before the Marriage Officer
under SMA on 03rd May, 1990. However, the parties could not reconcile their
inherent differences and the husband filed a petition for dissolution of marriage
under Section 13(1)(a) and (b) of HMA on 21st July, 2005. The wife challenged the
maintainability of the petition. This Court held that since the parties were married
under the SMA, their conduct with regard to the grant of divorce or relationship would
be covered under the SMA only.
Therefore, on the point of law I have established that when a marriage is solemnized
under SMA only the provisions under it will apply and not their respective personal
laws.
2. Whether Aishwarya can be granted divorce?

Aishwarya can be granted divorce under the special marriage Act on the ground of
cruelty. The position of Cruelty under SMA is the Same as HMA.
In N. Shankar v. Saraswathi the court granted a divorce on the ground of mental
cruelty where the wife used to abuse verbally and yell in public, the court held that
‘Denial of marital comforts to each other undoubtedly leads to mental cruelty’. In this
case also Salman yells outside her house which would be deemed as cruelty. It is well
settled that small petty arguments between husband and wife cannot be considered as
mental cruelty (Tapan Chakravarty v. Anjali Chakravarty). In this it should be
considered that it is no petty quarrel but a serious act of cruelty from the husband to
mis treat her in a drunk state and abuse and yell at her. Mental cruelty in Section 13(1)
(i-a) can broadly be defined as that conduct which inflicts upon the other party
such mental pain and suffering as would make it not possible for that party to live
with the other. In other words, mental cruelty must be of such a nature that the parties
cannot reasonably be expected to live together. There is no specific definition of
mental cruelty. However, Section 13 of the Hindu marriage Act lays a broad
definition. V. Bhagat vs D. Bhagat The court laid down that when there is a no chance
of the marriage being saved, divorce shall be granted in the interest of both parties. It
is very evident by the behaviour of Salman that he isn’t willing to stay in the marriage
therefore the divorce shall be granted, the court was of the opinion that when one
partner in the marriage is causing distress emotionally and mentally it should be
considered as Mental cruelty.
3. Whether Maintenance of 20000 can be granted to Aishwarya?
Maintenace section 37 of the SMA
Maintenance requires — (i) in all cases provisions relating to food, clothes,
housing, education and medical care and treatment; (ii) in the case of an
unmarried daughter also the appropriate expenses and incidents of her
marriage, Section 3(b), Hindu Adoption and Maintenance Act, 1956.
Maintenance should also include a residential provision. Maintenance is

provided to allow the lady to live the way she was accustomed to, more or
less. Therefore, the definition of maintenance must include food and clothing
provision and the like, taking into account the fundamental need of a roof
over the head, Mangat Mal v. Punni Devi, (1995) 6 SCC 88.
Only a woman who is legally married has a right to maintenance. A Hindu

woman who marries a Hindu male who has a living wife is not entitled to
maintenance because the marriage is void, Yamunabai Anantrao Adhav v.
Anantrao Shivram Adhav, (1988) 1 SCC 530.

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ANSWER 1

The Triple Talaq pronounced to Aishwarya’s by Salman is Invalid. Aishwarya can be

2. Whether Aishwarya can be granted divorce?

Maintenance should also include a residential provision. Maintenance is

Only a woman who is legally married has a right to maintenance. A Hindu

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