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CHAPTER-III DIVORCE AND ITS VARIOUS THEORIES THEOR IES 3.1 Divorce under Different Statute
In our our cont contem empor porar ary y soci societ ety y, divo divorc rcee is a larg largee aspe aspect ct of Indi Indian an personal laws of every community. Probably our use of divorce Jurisdiction is not as large as it is in many western countries, including the United States, yet it is an ever-increasing source of litigation and our family courts have more than usual share of matrimonial litigation. 1 Stabil Stability ity of marri marriage age is there there sine qua non non of every society, yet we should not confuse stability with indissolubility. marriage which has bro!en down irretrievably is not a stable marriage, and stability of marriage re"uires that it should be dissolved with ma#imum fairness and minimum bitterness, distress and humiliation. $ %he &indus &indus and 'hrist 'hristian ianss always always consid considere ered d their their marri marriage age as a sacram sacrament ent,, while while the (omans (omans,, before before the advent advent of 'hrist 'hristian ianit ity, y, and the )uslims considered their marriage as a contract without any semblance of sacrament. (oman marriage were dissoluble by mutual consent of the parties. In fact, in (oman *aw marriage and divorce were in the realm of private law and marriages were dissoluble as easily as they could be entered into. + mong the )uslims marriage re"uires formalities but once it is entered into, the man is given dominant role because of the )uslim belief that man is physically and intell intellect ectual ually ly superi superior or to women. women. )an is given given power power to promon promonce ce talak divorce unilaterally on his wife without any cause, at his whim or fancy, and even in her absence. %he )uslim wife has no similar freedom In Khula and Mubaarat forms, forms, she can get divorce with the consent of her husband but then 1 2
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Paras iwan, %he law of )arriage and ivorce, /d. p. 11. Ibid. Ibid.
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she had to forgo her claim to dower or give him some money or property in consideration of his agreeing to dissolve the marriage. or &indus and 'hristians divorce was unthin!able, a sacrilege, a sin. In &indu religion wife is not considered 2ust patni, s he i s dharampatni, Sahadhrmini. In th ideali3ed, form she is samarajyi, patrani, bharya, sachiva, sakhi, Grihalakshmi, Hirdeyaswamini. In the most ideali3ed form wife is considered to the source dharma, artha, kama and moksha.4 %he case with which a )uslim husband can pronounce divorce on his wife and the pad-loc! on the wedloc! that sacraamentality has put on &indu )arriage did not imply that marriages, were as a rule unstable among the )uslims and stable among the &indus. %he sacraamentality and sacrosanctity of marriages did sanctity the marriage but it did not necessarily lead to stability, the contractuality of )uslim )arriage did provide unilateral freedom to husband but did not lead to stability of marriage either. %he fact of the matter is that in both systems wives were oppressed and bonded, and the agony, the anguish and the robs of the woman were muffled either under the sacraamentality or contractuality of marriage under the sway of man5s sovereignty.0 &owever, if marriage has to be a marriage it must confirm to its minimum re"uirement of being an e#clusive union. 6ut this bond when proved to be noose the escape door was adultery. 6oth the 'hristianity and &induism, condemned adultery as a sin and crime of the highest order. %he "uestion was 7 should an adulterous woman continue to be bonded in the holy bond8 fter all from an adulterous wife the basic ob2ective of marriage, vi3., the determination of paternity, cannot be achieved. %he &indus allowed the husband to abandon her but an abandoned wife remained bonded 4 5
Id. at p. 1$. Ibid.
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and, since the &indus permitted polygamy, the man could ta!e another wife. mong the 'hristians it became a sore point, man could ta!e separation from bed and board but marriage bond remained, he could not ta!e another wife as the 'hristianity was wedded to monogamy. %he rich and wealthy found a way out by getting the marriage dissolved by an ct of Parliament. 6ut the problem of a bro!en marriage was a common man5s problem, too. %he social need of dissolution of marriage did e#ist but the law stood firm. It seems that the Industrial (evolution5s lofty ideals of e"uality and liberty did compel the western world though the (oman 'atholics stood firmly by the indissolubility of marriage to recogni3e divorce. %he importance of the /nglish statutes, %he )atrimonial 'auses ct, 1:0;, lies in the fact that for the first time, the dissolubility of marriage was recogni3ed, though the ground of dissolution was only one, namely adultery, and if wife sought divorce it has to be adultery plus. 6ut once dissolubility of marriage was recogni3ed, the march was on. If marriage can be dissolved on account of adultery, it can as well as be dissolved for other causes. Soon desertion and cruelty were recogni3ed as grounds of divorce, since these as much undermined the stability of marriage as adultery. In India people belonging to different faiths, are free to marry according to their traditions, customs, conventions, and their faith in a particular sect or religion. %he laws of divorce are also regulated and dealt with in accordance with the provisions made under the following personal laws7 1. %he &indu )arriage ct, 1<00, 2.
%he Indian ivorce ct, 1:9<,
+. %he issolution of )uslim )arriage ct, 1<+<, 4. %he Parsi )arriage and ivorce ct, 1<+9, 0. %he Special )arriage ct, 1<04, and
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9. %he oreign )arriage ct, 1<9<. 3.! T"eorie of Divorce 3.!.1 Offence or #ui$t T"eor% of Divorce &- ccording to this theory, a
marriage can be dissolved only if one of the parties to marriage has, after the solemni3ation of the marriage, committed some matrimonial offence. %he offence must be one that is recogni3ed as a ground of divorce. %his theory was considered to be the most of the commonwealth countries and in most states of the U.S.. %hus offence of guilt theory implies 1 a guilty party and $ an innocent party. 6y the term guilty part is ment a party which has committed matrimonial offence and by innocent party is meant a party which has tolerated the matrimonial offence of the other party but has not committed any matrimonial offence. =riginally, &indu )arriage ct, 1<00 incorporated the guilt or fault theory and laid down that there must be a guilty party and an innocent party. ll the three traditional faulty grounds, adultery, cruelty and desertion were made ground of 2udicial separation and not of divorce under Section 1+, nine grounds of divorce were recogni3ed both for husband and wife, and two additional grounds were recogni3ed on which the wife alone could see! divorce. %hese grounds were7 living in adultery, change of religion, insanity, leprosy, venereal diseases, presumption of death, renunciation of world, nonresumption of con2ugal rights. %he wife5s additional two grounds, vi3., rape, sodomy or bestiality of the husband and the e#istence of another spouse of the polygamous pre-1<00 marriage of the husband, were also based on the same theory. It is laid down that the petitioner will not be allowed to ta!e advantages of his or her own wrong or disability. In case the ground for see!ing matrimonial relief divorce or 2udicial separation is adultery or cruelty the
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petitioner had to show that there is no collusion between him and the respondent. %he petitioner is also re"uired to show that he or she did not condone the offence. %he petitioner is every matrimonial cause is re"uired to prove that there is no improper delay in the presentation of the petition. /ven after the amendments of 1<94 and of <;9 faults grounds of divorce are still part of &indu *aw of divorce. %he amending ct of 1<;9 has made adultery, cruelty, and desertion as fault grounds of divorce, and has added two more fault grounds of divorce for wife. 3.3 Conent T"eor% of Divorce
s against the guild theory, there has been advocated the theory of free divorce or the consent theory of divorce. %he protagonists of this theory hold the view that parties to marriage are as free to dissolve a marriage as they are to enter it. If marriage is a contract based on the free volition of parties, the parties should have e"ual freedom to dissolve it. Just as an individual may err in entering into some other transaction, so also he or she may err in entering into a marriage. %he argument may be summed up thus7 it may happen that two parties who have entered into a marriage with free consent, may, later on, reali3e that they made a mista!e and, for one reason or another, are finding it difficult to pull on together smoothly and to live together harmoniously. It is not because they are wic!ed, bad or malicious people. %hey are 2ust ordinary average human beings, but it has 2ust happened that their marriage has turned out to be a bad bargain, and they find it impossible to continue to live together. Should they have no right to correct their error, to cast off a burden which has become onerous, intolerable and which is sapping the vital fluid of life and eating into its very vitals8 It is not merely their physical life, it is also their entire family life, including moral life, which is affected. It from this situation they have a way out, they are li!ely to go astray, may be willy-nilly, one is
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forced to commit a matrimonial offence, may be one, out of sheer frustration, murders the other. Such an unhappy family is a breading ground for delin"uent children. In short, continuance of such a marriage is neither in the individual nor in the social interest, then and then only can mutual fidelity continue, can real monogamy e#ist. /ngles observed7 It only marriages that are based on love are moral, then only those are moral in which love continued> definite cessation of affection, or its displacement by a new passionate love, ma!es separation a blessing for both parties as well as for society. People will only be spared the e#perience of wading through the useless mire of divorce proceedings. 9 %he very basis of marriage is mutual fidelity, and if for any reason the parties feel that mutual fidelity cannot continue, they should have freedom to dissolve the marriage, as only by dissolution, fidelity can be preserved. ivorce by mutual consent means that the law recogni3es the situation that has e#isted for some time and in effect says to the unhappy couple 7 ?If you thin! that your marriage cannot continue and if you both are convinced that it should be dissolved, the marriage will be dissolved.@ %he main criticism of the consent theory is that will bring about chaos and will lead to hasty divorce. %he protagonists of consent theory deny this. In the words of *enin7 s a matter of fact, freedom of divorce will not brea! down the relationship in the home, but on the contrary it will consolidate it on the basis of democracy, the only possible solid basis of a civili3ed society. %hus, it is maintained that freedom of divorce will not lead to chaos. It will neither lead to immorality. In the words of %illet7
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=rigin of amily, Private Property and State, 11;-1:.
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Bo deductions about the standard of morality in any country can be drawn from the fact that they recogni3e divorce by mutual consent, e#cept perhaps, to refute the charge that divorce by mutual agreement necessarily means widespread licence or immorality. ; %he advocates of this theory hold that the freedom of divorce will bring about more happy marriages, and reduce the number of unhappy ones. It will help both the husband and the wife to live in harmony and consolidate the unity of the family, so that they may full engage in their career. Since there is freedom of divorce, both man and woman are forced to ta!e a very serious and sincere attitude towards marriage. =ne will be very careful before marriage, lest one should repent and will also be fran! and honest, so that one is not regretful later. Soon after the (evolution !, the Soviet Union introduced this theory in the family law. In the people5s (epublic of 'hina, in most of /astern C /uropean countries, 6elgium, Borway, Sweden, Japan, Portugal and in some *atin merican States divorce by mutual consent is recogni3ed in one form or the other. t home, the Special )arriage ct, 1<04, and the &indu )arriage ct, 1<00 after the amendment of 1<;9 recogni3e divorce b mutual consent. %he main criticism of the consent theory is two-fold7 i it ma!es divorce very easy, and ii it ma!es divorce very difficult. It has been said that divorce by mutual consent offers a great temptation to hasty and ill-considered divorces. )ore often than not, parties unnecessarily magnify their differences, discomforts and other difficulties, which are nothing but problems of mutual ad2ustments, and rush to divorce court leading to irrevocable conse"uences to the whole family. %his criticism has been met by the law of many countries which recogni3e divorce by mutual consent, by providing several safeguards. Under the modern /nglish law, the )atrimonial 'auses ct, 1<;+, the consent theory has been accorded recognition by laying down that if the parties have 7
*aw and the people, 10;.
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lived apart for a continuous period of at least two years, immediately preceding the presentation of the petition, divorce may be granted by the mutual consent of the parties, of the parties. Under the Special )arriage ct, and the &indu )arriage ct 1<00, no petition for divorce can be ordinarily presented before a period of one year has elapsed since the solemni3ation of marriage. Section $: of the former and S. 1+ 6 of the latter provides that a petition for divorce by mutual consent may be presented to the istrict 'ourt by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agree that the marriage should be dissolved. further safeguard to the hasty step is provided by laying down7 ?=ne the motion of both the parties made not earlier than si# months and not later than eighteen months after the presentation of petition@ Din case the petition has not already been withdrawnE ?the district court shall, on being satisfied, after hearing the parties and after ma!ing such en"uiry as it thin!s fit, that a marriage has been solemni3ed under the ct and that the averments in the petition are true, pas a decree dissolving the marriage.@ %he other criticism of the theory is that it ma!es divorce very difficulty. Since divorce by mutual consent re"uires the consent of both the parties and if one of the parties withholds his or her consent, divorce can never be obtained. It may happen that one of the parties to marriage may not give his or her consent for divorce on account of a belief in the indissolubility of marriage, or on account of sheer malice, bigotry or avarice, then divorce can never be obtained. 3.' Irretrieva($e )rea*do+n T"eor% of Divorce
%he guilt theory of divorce has been found deficient as it recogni3es divorce only on certain specified grounds. %he consent theory has been found
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wanting as it either ma!es divorce too easy or too difficult. %he problem that the modern law faces is that if a marriage has in fact bro!en down irretrievably, may be on account of fault of either party or both parties, or on account of fault of neither, then, is there any sense in continuing such a union8 Fould it not be in the interest of both the individual and the society that the marriage is dissolved8 rom such a marriage substance has disappeared, only form has remained. %here is no use in retaining the empty shell. In other words, the law recogni3es a situation and in effect says to the unhappy coupleG ?if you can satisfy the court that your marriage has bro!en down, and that your desire to terminate a situation that has become intolerable then your marriage shall be dissolved, whatever, may be the cause.@ %he brea!down theory of divorce represents the modern view of divorce. (ecently, the *aw 'ommission on (eform of the Hrounds of ivorce said in its (eport that ob2ectives of any good divorce law are two7 ?=ne, to buttress, rather than undermine, the stability of marriage, and two when regrettably, a marriage has irretrievably bro!en down, to enable the empty shell to be destroyed with the ma#imum fairness, and the minimum bitterness, distress and humiliation.@ : If a marriage has bro!en down beyond all possibilities of repair, then it should be brought to an end, without loo!ing into the cause of brea!down and without fi#ing any responsibility on either party. In our contemporary society the irretrievable brea!down of marriage theory is recogni3ed by the laws of many countries. In or about nineteen fifties, a trend towards this theory became discernible in those countries also which were deeply entrenched in the fault theory. %wo methods were used. irst, by enlarging the number of grounds. Such grounds as incompatibility of temperament were added. %he Swedish )arriage *aw of 1<$A provides a very good illustration of this trend. It was laid down that both the spouses could 8
(eport, para 10.
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present a 2oining petition for separation decree on the ground of ?profound and lasting disruption.@ Such an application could be presently by one of the spouses to the marriage also. In the case of 2oint application, the court be granted if the court, after an en"uiry, came to the finding of profound and lasting disruption of marriage. %he second method that was used was to give widest possible interpretation to the traditional fault grounds. 'ruelty proved to be the most fertile ground. In Gollins v. Gollins,
1<9+ ll /.(. <99. 1<9+$ ll /.(. <<4. 1<9<1 F.*.(. +<+.
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in fact a marriage has bro!en down or not is left to the courts. In other words, the legislature does not lay down any criterion on which a marriage may be deemed to have bro!en down. It leaves to the court to find out whether a marriage had in fact bro!en down or not in each individual case. %he Soviet Union in its family law since 1<44 has adopted this mode. So did Fest Hermany in its family law of 1<49. )ost of the /ast /uropean States also adopt this for of brea!down theory. %he law if these countries imposes an obligation on the court to try to effect a reconciliation between parties before proceeding to dissolve a marriage. ii In its second mode, the legislature lays down the criterion of brea!down of a marriage and if that is established, the courts have no option but to dissolve the marriage. or instance, the petitioner must show that before the presentation of the petition he has been living separate from the respondent for a specified period. %his goes to establish that marriage has bro!en down beyond all possibilities of repair. In this form, the brea!down theory received early recognition in some countries. %he Swedish law lays down that divorce could be obtained if one year has elapsed after the passing of a decree for 2udicial separation provided the parties have in fact lived separate from each other during the period. %he law of Bew ealand and about eighteen States of the U.S.. also contains a similar ground. %he two States of the commonwealth of ustralia also recogni3ed such grounds. %he law of South Fales laid down that if a decree for restitution of con2ugal rights was not complied with, then divorce could be obtained forthwith. Bo period of waiting was provided. =n the other hand, the lay of South ustralia provided that divorce could be obtained if a decree for restitution of con2ugal rights was not complied with for a period of three years of more. similar grounds has been
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provided by the 'ommonwealth of ustralia )atrimonial 'auses ct, 1<0< where under the minimum waiting period is one year. nother version of this form of brea!down theory is the one which re"uires that before a petition is presented the parties must have lived apart from each other for some specified period. %he (oyal 'ommission on )arriage and ivorce recommended that either spouse may be able to obtain divorce on the ground that they had lived separate from each other for a period of seven years, but if one of the parties ob2ected to divorce, divorce could not be granted. In its yet another version, two periods of separation have been suggested, one longer and the other party consents to it. In the former divorce can be obtained even if the other party withholds its consent. ollowing the recommendations of the *aw 'ommission of /ngland, the ivorce (eform ct, 1<9< which has been replaced by the )atrimonial 'auses ct, 1<;+ laid down that if parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, and the respondent consented to the decree being granted, decree dissolving the marriage could be passed. 1$ It also recogni3ed separation for a period of 0 years or more as a ground for divorce, irrespective of the fact whether the other party consented or did not consent to divorce. 1+ In this manner the modern /nglish law recogni3es consent theory as well as the brea!down theory. In the former case the criticism of consent theory that it leads to hasty divorces has been met by laying down that before the presentation of the petition parties must have lived separate from each other for a period of two years. Under the second ground the /nglish law incorporates the irretrievable brea!down of marriage theory by laying down that five years5 separation is a sufficient evidence of the brea!down of marriage. %his is also the form in 12 13
Section $1 d. Section $1 b.
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which the brea!down theory is recogni3ed at ustralia 14 and 'anada10 under the law of the latter the period of separation is three years. In that event, the consent or dissent of the other party is immaterial. %hese ground have been hedged with sufficient safeguards for the parties to the marriage and for the children of the parties. 19 In &indu *aw, the brea!down theory, has its own version. Under the &indu )arriage ct, 1<00-;9 divorce can be obtained by either party a if it is shown that a decree for restitution of con2ugal rights has not been complied with for a period of one year or more, or b if it is shown that cohabitation has not been resumed for a period of one year of more after passing of the decree for 2udicial separation.1; In this very form the brea!down grounds are recogni3ed under the Special )arriage ct, 1<04 ;9. 1: %hus the brea!down theory was introduced into the Indian law by allowing divorce both to the socalled innocent and the guilty party. 6ut the provision of the matrimonial bars under both statutes was over-loo!ed. In the framewor! of guilty theory the brea!down theory was buttressed. %he letter of law still re"uires that the petitioner must prove that he is not ta!ing advantage of his or her own wrong or disability, though the brea!down theory does not admit of any such provision. nd it may be interesting to note that most of our &igh 'ourts have struc! to the letter of law and have held, despite the amendment, that the party who is not innocent cannot get a decree of divorce under section 1+I. 1< %he *aw 'ommission in its ;1st report has recommended that irretrievable brea!down of marriage should be a ground of divorce for &indus. It suggests the period of three years5 separation as a criterion of brea!down. 14 15 16 17 18 19
See Section $$ +G Section4 and 9 of the ct. )atrimonial 'auses ct, 1<09 ustralia, S. $:m. ivorce ct, 1<9:'anada S. 4. 1 e. Section 1+I. Section $;$, special )arriage ct, 1<04. See 'hapter II of this wor! under the ?6rea!down Hround@ where the entire case law has been discussed.
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=n the basis of the (eport, the )arriage *aw mendment 6ill 1<:1 6ill Bo.$ + of 1<:1 was introduced in Parliament but was allowed to lapse.
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