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CHAPTER-IV GROUNDS OF DIVORCE UNDER DIFFERETN PERSONA LAWS 4.1 Divorce uner Hinu L!"
The significance of the Hindu Code at its revolutionary character lies in that by passing the four Acts pertaining to the personal laws governing the Hindus. Parliament has emphasized that personal law is a social and secular matter and not a part of religion property so called. These four Acts thus consti constitut tutee the first first decisi decisive ve step step in implem implement enting ing the import important ant practi practice ce principles enshrined in Article 44 44 of the Constitution. This is how, the Hindu arriage Act, !"## came into e$istence, eight years after the independence of the country. %ection !& of the Hindu arriage Act deals with the grounds on which the parties parties can see' a decree decree of divorce divorce from a competent court having (urisdiction to entertain such petition. %ub) sect sectio ions ns *!+ *!+ and and *! A+ of sect sectio ion n !& of the the Hind Hindu u arr arria iage ge Act, ct, !"## !"## prescribes the grounds on which either of the parties can see' a decree of divorce from a court of aw. -nder sub)section *!A+ of section / of the %pecial arriage Act, there are ten fault grounds on which wife alone can see' divorce. %ection of The 0issolution of uslim arriages Act, !"&" contains nine fault grounds on which wife alone can see' dissolution of marriage. There are ten fault grounds under the Parsi arriage and 0ivorce Act, !"&1, on which the parties can see' a decree of divorce from a competent court. -nder section & of this Act, either of the spouses can move the court for divorce under Christian aw, we will notice that it contains only one fault ground on which it is the husband alone who could see' dissolution of marriage.
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4.# Groun$ %or Divorce
2ollowing are the grounds under which either of the parties are entitled to see' a decree d ecree of divorce under section !& of the Hindu arriage Act, !"##3 *a+ *a+ Adul Adulte tery ry *b+ *b+ Crue Cruelt lty y (c) Adultery and Cruelty
*d+ 0esert 0esertion ion *e+ Conversion Conversion or Change Change of eligio eligion n *f+ *f+ 5nsa 5nsani nity ty *g+ *g+ epr epros osy y *h+ 6enereal nereal 0isease 0isease *i+ enunci enunciati ation on of 7o 7orld *(+ Presum Presumpti ption on of 0eath 0eath *'+ 8on)re 8on)resum sumpti ption on of Cohabi Cohabitat tation ion after after Passin Passing g a decree decree for 9udici 9udicial al %eparation. *l+ *l+ 8on) 8on)re resu sump mpti tion on of Coha Cohabi bita tati tion on afte afterr Pass Passin ing g of a decr decree ee for for estitution of Con(ugal ights. &!' Au()er* +- According to H.. encheh, adultery means an application of
democracy to love:. ;Adult ;Adultery ery:: means means the offenc offencee of incont incontine inence nce by marrie married d person personss *%troud
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An attempt at general intercourse is not enough. %ome penetration, however however brief, must be proved. 5n Rxford v. v. Rxford ,& it was held that a wife allowing herself to be artificially inseminated with semen of a person other than her husband, cannot be said to have committed adultery. 5n Subbaramma Reddiar v. v. Saraswathi Ammal ,4 an unrelated person was found alone with the wife after midnight, midnight, in her bedroom bedroom in actual actual physical (u$taposition. adras High Court held that this would lead to an irresistible conclusion that they were committing an act of adultery. 4., uren o% Proo%
5t is very difficult to produce direct evidence to prove an act of adultery. The act of adultery, therefore, has to be inferred by the tending circumstances, i.e., the inclination of the spouse and the opportunities available. Adultery is a matrimonial offence as well as criminal offence. The re@uirement of proof in a criminal case more strict than in a matrimonial case. 5n the former case the act to be proved beyond reasonable doubt, whereas in the latter the evidence is based on the inferences and probabilities. probabilities. &' Crue()* +- -nder clause *ia+ of sub)section *!+ of section !& and under
sub)section *!+ of section !> of the Hindu arriage Act !"##, cruelty is a ground for divorce and (udicial separation respectively whether the act or conduct complained of is covered under the grounds of cruelty or not, will always be decided on facts and circumstances in each case. 4.4 C(!$$i%ic!)ion o% Crue()*
Cruelty is usually classified under the following two heads3 *a+ physical physical cruelty cruelty and *b+ mental mental cruelty cruelty..
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&!' P/*$ic!( Crue()* +- 5t is a settled law that physical violence is not a
necessary ingredient of cruelty. -nending accusations and imputations can cause more pain and misery than a physical beating. Therefore, it goes without saying that the act of cruelty consists of mental torture or physical violence. 5f it is a physical violence, there will be no problem for a court to arrive at a decision while determining a case presented before it but in case of mental tortur torturee or harass harassme ment, nt, the courts courts find find it compar comparati ativel vely y more more diffic difficult ult to conclude. 2inally the inference has to be drawn by ta'ing into account the nature of the conduct and its effect on the complaining spouse. 5n Sudarshan Bagra v. Captain v. Captain Subhash Bagra Bagra,,# the High Court of 0elhi held that though the mental cruelty is the state of mind which is created by acts and omissions of other party, yet the door of cruelty cannot be opened too wide, for we may soon find ourselves granting divorce on the ground of mild diseases and even for the incompatibility of the temperaments. &' 0en)! 0en)!(( Crue() Crue()* * +- An act of mental cruelty is far more severe and
dangerous than an act of physical violence. 7hat constitutes mental cruelty has been outlined in following cases3 ental cruelty can be inflicted by many ways. A false criminal case to hara harass ss the the husba husband nd woul would d be an act act of crue cruelt lty y. efu efusa sall to have have mari marita tall intercourse, false complaints to the employees by the wife, an act of nagging, false, false, scanda scandalou lous, s, malic maliciou iouss and basele baseless ss charg charges, es, etc., etc., come come wider wider the purview of mental cruelty. cruelty. 5n N. 5n N. reepuhar v. !asantha v. !asantha,,1 the Hon
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sub(ected him to humiliation and shame before public, made him a laughing stoc' in the public and made him fad very miserable. 5n P. Abirami v. D.". #amilarasan,/ grant of validity of decree of divorce in favour of husband by trial court on account of mental cruelty. However, no specific acts which amounted to mental cruelty, have been pleaded with material particulars. Bnly general allegations made in petition for divorce, allegation that wife did not behave as a dutiful wife also not substantiated. oreover, allegations that husband was not informed about pregnancy of wife also proved to be false ac@uittal of mother and sister. Thus, mental cruelty not established. 0ecree of 0ivorce granted on ground of mental cruelty, set aside. 4. Au()er* !n Crue()*
Adultery and cruelty are two areas where possibility for reconciliation is to be e$plored under the Hindu arriage Act. The @uestion is, in view of title e$clusion of endeavour for reconciliation under the Hindu arriage Act in respect of the grounds available under clauses *ii+ to *vii+ of section & of said Act i.e., conversion to another religion, renunciation of world, mental d isorder, venereal diseases or leprosy, should there be endeavours for reconciliation of settlement by the family courts it was decided in Bini v. Sundaran $.! .% 4..1 De$er)ion +- Clause *ib+ of sub)section *!+ of section !& of the Hindu
arriage Act, !"## provides desertion as a ground for obtaining a decree of divorce from the court. This ground is available to both the spouses under the Act. -nder this provision a decree of divorce can be obtained form the court on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. 7 8
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5n the year !"/1, some amendments were made in the Hindu arriage Act, !"##. After clause *vii+ of sub)section *!+ of section !&, an ?$planation was inserted by the Amending Act 1= of !"/1, which says that ;in this sub) section the e$pression Ddesertion< means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate e$pression shall be construed accordingly.: Almost all the ma(or points of law pertaining to desertion were settled by the %upreme Court in the cases of Bipin Chandra v. Prabhavati" &o'hmon (tam'hand $irpalani v. Meena alias Mota.!> 7as the first ma(or case on the issue. 5n this case while the husband was abroad the wife had allegedly developed amorous relationship with a friend of the family. A letter from the wife to the alleged paramour was intercepted by the father of the husband, which was placed before the husband on his return. The husband confronted the wife with the letter, who first denied having written the letter but later admitted. Though she denied having any se$ual relationship outside marriage but failed utterly to e$plain the amorous language of the letter to the husband and also to the court the wife left for her parents< house after a couple of days on the prete$t of her cousin
Hindu arriage Act, !"##, if one of the spouses adopts another religion, he or 9 10
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she ceases to be a Hindu. Eut by embracing another religion the marriage does not stand dissolved. -nder this provision, only the spouse who has not changed hisFher religion is entitled to file a petition for a decree of divorce on the ground that the other spouse has ceased to be a Hindu and has embraced another religion. The husband therefore, can file a petition against the wife only on the ground that she got herself converted from Hinduism to any other religion and it is not open to husband to invo'e the provision of the Act and see' a decree of divorce on the ground of his won conversion from Hinduism to any other religion. There is a dear bar for the husband to file a petition for divorce on the ground of his changing religion. Bbservations made in !entipilli Nedaveni v. !entipalli !eri)ateshwam Rao,!! by the Andhra Pradesh High Court are @uite informative and instructive. 5n the case of &il* #homas v. (nion of +ndia,! the %upreme Court ruled that conversion (ust to circumvent the obligations imposed by one
decree of divorce if it is established that dottier spouse has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a 'ind and to such an e$tent that the petitioner cannot reasonably be e$pected to live with him. Guite interestingly, under the Parsi arriage Act and the 5ndian 0ivorce Act, the ground of insanity is not available either for a decree of divorce or for (udicial separation. The 0issolution of uslim arriage Act, !"&" * of !"&"+, under section *vi+, ma'es a two)year long insanity of the husband a ground for the wife to obtain 11 12
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a decree for dissolution of marriage. -nder section !&*!+*iii+ of Hindu arriage Act, unsoundness of mind or mental disorder is a ground for divorce. The Act goes< on to specify as to what is meant by ;mental disorder: under an e$planation to the section, which appears as under3 E3(!n!)ion + 5n this clause, *a+ the e$pression ;ental disorder: means
mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia *b+ The e$pression ;psychopathic disorder: means persistent disorder or disability of mind *whether or not including sub)normality, aggressive or seriously irresponsible conduct on the part of the either party and whether or not it re@uires or is susceptible to medical treatment. Proof of 5nsanity − The onus of providing that the respondent is of incurably unsound mid or that he is suffering from mental disorder is on the petitioner. The petitioner
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7ith the e$ception of the Parsi arriage and 0ivorce Act, !"&1 as per the 5ndian 0ivorce *Amendment+ Act of >>! *#! of >>!+, leprosy is a ground of divorce under all other 5ndian personal aws. -nder the Hindu arriage Act, !"## and the %pecial arriage Act, !"#4 it is both a ground of divorce and (udicial separation. -nder the uslim law it is only wife
a ground for obtaining a decree of divorce under section !&*!+*v+ of the Hindu arriage Act. Thus, not only the respondent must be suffering form a venereal disease, li'e syphilis, gonorrhea, or soft chancre, but the disease should also be such as to infect others who come in contact with the in(ected. 7here wife failed to show that the disease was in communicable form or that she contracted any such disease from the respondent husband, she was not entitled to the relief prayed for. 5t will be @uite useful to read the observation of Pun(ab Haryana High Court in ,aipal v. Ram Devi.!& Tuberculosis too being a curable disease cannot entitle the aggrieved party to the relief observed the Calcutta High Court in Anath Nath v. &a--abati Devi.!4 4.. Renunci!)ion o% Wor( +- %ection !&*!+*vi+ ma'es the ;renouncement
of world by entering any religious order:, a ground for divorce. However, this ground cannot be availed by the spouse renouncing the world but only by the other spouse. According to the %upreme Court in Sital Das v. Sant Ram,!# the renunciation must be complete and final and must be effected with the ceremonies and rites prescribed b the order which he enters. Thus, a mere declaration by a person that he is a san*asi is not sufficient. 13 14 15
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4..5 Pre$u6)ion o% De!)/ +- 5f a person ;has not been heard of as being
alive for a period of seven years or more by those persons who would n aturally have heard of it, had that party been alive:, the other spouse, may, see' divorce under section !&*!+*vii+ of the Act. 5n view of section !>=, ?vidence Act, !=/, the burden to prove, that a person who has not been heard of for more than seven years, is still alive is on the person who affirms it, as section !>= of that Act raises a presumption of death where the person concerned has not been heard of for the said p eriod. The Dpersons who would naturally have heard< are, the petitioner and other near relatives of his close friends. However, only on the presumption of death, after the re@uired period, it is not open to a spouse to Dtreat herself<, or himself as widow or widower. The marriage has to be dissolved by a decree of the court but, if the second marriage has been performed on the basis of the presumption without getting a decree of divorce, no person other than the missing spouse can @uestion the validity of the second marriage Nirmoo v. Ni))aram.!1 4.5 Groun$ o% Divorce %or Hinu Wi%e
%ection !&*+ under which wife aloen can see' divorce runs3 A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground3 *i+ in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner3 Provided that in either case the other wife is alive at the time of the presentation of the petition or
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*ii+ that the husband, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality or *iii+ that in a suit under section != of the Hindu Adoptions and aintenance Act, !"#1 */= of !"#1+, or in a proceeding under section !# of the Code of Criminal Procedure, !"/& * of !"/4+ Ior under the corresponding section 4== of the Code of Criminal Procedure, !="= *# of !="=+J, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards *iv+ that her marriage *whether consummated or not+ was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. 4.5.1 Unvio(!)e 7uici!( Se!r!)ion +- %ection !&*!A+ *i+ provides that
either of the parties to a marriage may see' dissolution of marriage on the ground that ;there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards after the passing of a decree for (udicial separation in a proceeding to which they were the parties.: However, while availing the ground of divorce provided under this clause, provisions of section &*!+*a+ have also to be 'ept in mind, which re@uires that ;the petitioner should not in any way ta'e advantage of his or her own wrong or disability for the purpose of such relief<. Thus, to (ustify a decree for divorce under the provisions of sub)sections *!+ and *!A+ of section !& and sub)section *!+ of section & the essentials are3 *i+
a 0ecree for (udicial separation between the petitioner and respondent, whosoever might be the decree)holder
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*ii+
8 on)resumption of cohabitation between the parties for a period of one year or upwards
*iii+
the petitioner should not be in any way ta'ing advantage of his or her wrong or disability and
*iv+
non)e$istence of any other legal ground warranting refusal of the relief prayed.
Non-re$u6)ion o% co/!i)!)ion !%)er !$$in2 o% ! ecree %or re$)i)u)ion o% con8u2!( ri2/)$ +- i'e section !&*!+, *!A+, non)restitution of con(ugal rights
between the parties for a period of one year or upwards after the passing of a decree for restitution of con(ugal rights, is also a ground for divorce under section !&*!A+ *ii+ of the Act under this clause also, the court would have to consider under sub)section *!+ of section & whether the petitioner is ta'ing advantage of his or her wrong in pleading that there has been no restitution of con(ugal rights after passing of a decree for that an therefore, the provisions of section !&*!A+*ii+ are to section &*!+*a+. Bnce right to obtain divorce under section !&*!A+*ii+ has accrued to the spouse who has come to the court to see' divorce on ground of the non) compliance of the decree for restitution of con(ugal rights for the re@uisite period, the spouse can insist on a decree of divorce and can refuse to yield to the efforts for reconciliation and such refusal would not come within the ambit of the word Dmisconduct<. %ection !&*!A+*ii+ of the Act lays down in unambiguous terms that the period of one year is to be computed from the date of passing of the decree for restitution of con(ugal rights. 5f the intention of the legislature really was that the period of one year be counted from the date of 'nowledge of the decree, nothing prevented it to ma'e appropriate provision in this regard by using suitable language, but, instead, the legislature in its wisdom had specifically
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provided the date of passing of the decree for restitution of con(ugal rights as the starting point for counting the period of one year. 4.9 Divorce * 0u)u!( Con$en)
5n Hindu aw, this provision was introduced by the arriage aw *Amendment+ Act, !"/1, in Parsi arriage and 0ivorce act in !"==, !/ in 0ivorce Act it was introduced by the 5ndian 0ivorce *Amendment+ Act, >>!,!= while in the %pecial arriage Act this provision has e$isted from the beginning.!" The re@uirements for the presentation of the petition by mutual consent are the following3 > *!+ That spouses have been living separately for a period of one year, *+ That they have not been able to live together, and *&+ That they have mutually agreed that their marriage should be dissolved. ! Livin2 Se!r!)e +- The e$pression ;living separate: means that parties are not
living as husband and wife, irrespective of the fact that they are living in the same house or in different houses. No) !(e )o (ive )o2e)/er +- The e$pression ;not able to live together: means
that marriage had bro'en down irretrievably.& After the presentation of the petition, the parties are re@uired to wait for a period of si$ months but not for eighteen months or more. After the e$piry of the period of si$ months, the parties should move a motion in the court that a decree of divorce dissolving their marriage be passed. The parties are also free to withdraw their petition. 5f the parties get a second thought and feel li'e continuing their marriage, they are given ade@uate opportunity to do so. 5n 17 18 19 20 21 22 23
%ection &)E. %ection !>)A. %ection =. Samistha v. m Pra)ash, A5 !"" %C !">". iri-a v. !i-a*a/ A5 !""# er !#". Samistha v. m Pra)ash, A5 !"" %C !">". 5bid.
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case no motion is made within the period of eighteen months after the presentation of petition for divorce, the petition shall stand dismissed. 5n Roopa v. Prabha)ar ,4 the re@uirement of filing petition after si$ months and not beyond eighteen months is not mandatory. Bn the motion being moved by the parties that their marriage be dissolved, the court shall, on being satisfied after hearing the parties and after ma'ing such in@uiry as it thin's fir that a marriage has been solemnized and that the averments in the petition are true, pass a decree. The court must in every case be satisfied that consent of neither party has not been obtained by force, fraud or undue influence. # 8ow the trend is to waive the waiting period of 1 months considering the facts and circumstances of the cases. 1 Eut Pun(ab and Haryana High Court has held that this period cannot be waived. / The bars to matrimonial relief also apply to a petition for divorce by mutual consent, so far as they are applicable. 2or instance, delay cannot be a bar to divorce on this ground. 5n a petition for divorce by mutual consent, no other ground for divorce can be ta'en.= 4.: Divorce uner 0u$(i6 L!"
5slam with its realistic and practical outloo' on all human recognizes divorce, but only as a necessary evil, inevitable in certain circumstances. 7ho can deny the fact the there do arise certain situations in which it is not humanly possible for the couple to lead a happy and useful life by continuing 24 25 26
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!""4 ant. !. %ection &*!+ *aa+, Hindu arriage Act. Dr. Subhra- 0oti Das v. (ttama Das/ A5 >> Kau. !!/ Malvinder $aur v. Divinder Pal Singh, A5 >>& P H !/" Chander $anta v. Mohinder Pratap Dogra, A5 >>& P H ## Prabhat She)har v. Poonam $umari, A5 >>4 Pat. ! Dinesh $umar Shu)la v. Neeta/ A5 >># .P. !>1 Anita Sharma v. Nil/ A5 >># 0el. &1#. Charan-eet Singh Mann v. Neelam Mann, A5 >>1 P H >!. Ravi v. Sharda, A5 !"/= P 44.
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as husband and wifeL 5nstead of dragging or with a bitter and miserable e$istence in forced partnership, would it not be more conductive to the welfare of the parties to part with grace and good willL The analysis of marriage and divorce laws recognized by 5slam clearly shows that the marital ties is to be respected and continued as far as possible. The mutual ad(ustment and tolerance are emphasized beyond proportions (ust for the sa'e of 'eeping intact the marital tie. The parties also lose, some social respect on separation. The parties, their well)wishers and courts are re@uired not to leave any stone unturned for the subsistence of martial tie in case of dispute and disagreement between the parties. The dissolution is provided as a last resort in such circumstances. The marriage under such e$treme circumstances may be dissolved by the parties or by the court. 4.; Conce)u!( Uner$)!nin2
To understand the nature and concept of divorce in 5slamic aw, the 'nowledge of historical bac'ground of divorce institution is mandatory. Among all the nations of anti@uity the power of divorcer was e$clusively rested in the husband and the wife was under no circumstances entitled to claim a divorce. " The progress of civilization and the advancement of ideas led to a partial amelioration in the condition of women. They too ac@uired a @ualified right of divorce. 7hich they were never bac'ward in e$ercising freely, until the facility with which marriages were contracted and dissolved under the oman emperors passed into a by word. &> -nder the ancient Herbew law, a husband could divorce his wife for any cause, which made her disagreeable to him, and thee were few or no chec's to his arbitrary and capricious use of this power. &! 29 30
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Ammer Ali ohammadan aw, vol. 55*!="+, p. 4/!. 5bid. 5bid.
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Among the early omans, as well as the Athenians, divorce was easy and fre@uent A husband was free to divorce his wife without any reason. & 5t was only with advent of Christianity that marriage came to be regarded as an indissoluble union && but e$perience has proved that it was not a rational and scientific attitudes. 5n pre)5slamic Arabia, divorce was used as an instrument of torture. en divorced their wives out of a sudden caprice or whim. &4 Among the pre)5slamic Arabs, the power of divorce possessed by the husband was unlimited. They could divorce their wives at any time, for any reason or without any reason. They could also revo'e their divorce, and divorce again as many times as they preferred. They could, moreover, if they where show inclined, swear that they could have no intercourse with their wives though still living with them. They could arbitrarily accuse there dismiss them, and leave them with such notoriety as would deter other suitors, while they themselves would go e$empt from any formal responsibility of maintenance or legal punishment. &# These social and moral ideals and in(ustices engaged the attention of the Prophet of 5slam. 2ully conscious of the evils flowing form divorce, he framed the laws of marriage and divorce in order to remove these evils. These laws ensured permanence of marriage, without impairing individual freedom. They display a wrongful insight into human nature, in as much as they never loose sight of e$ceptional circumstances, re@uiring special treatment. 4.1< Re%or6$ In)rouce * I$(!6
Te reforms of ohammad mar'ed a new departure in the history of ?astern legislation. The Dussalman< law of divorce is the logical se@uence of 32 33 34 35
ilton, A Treatise on Christian 0octrine, /1. 5d, at p. //. Kalwash, The eligion of 5slam, !>/. 5brahim Abdul Hamid, ;0issolution of arriage: in 5slam Guarterly, &*!"#1+ !11)!/# !#)&.
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the status of marriage. As it regards marriage as purely civil contract, it confers on both the parties to the contract the power of dissolving the tie or relationship under certain specified circumstances. The 5slamic law did not ta'e away the prevalent customary right of the husband to divorce his wife unilaterally but imposed numerous restrictions, on the e$ercise of this right. A uslim husband cannot divorce his wife and ta'e her bac' as he pleases. %imilarly, the uslim aw prescribes definite procedure and proper time for divorce. The law further imposes certain obligations on the husband to pay dower and maintenance to the wife in case of divorce. 5n practice all these acts are sufficient and reasonable chec's on the husband
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vested in man is based on some natural and physical differences between the two se$es as briefly illustrated below. Psychologically, woman is more sentimental and less capable of cool and dispassionate (udgment in comparison with man. 7oman is easily e$citable as well as irritable and can easily choose the wrong path. %uppose she were given the right to divorce her husband, then it is not difficult to imagine the position of women in the ?ast li'e those in the 7est, where women en(oy much more freedom in matters of divorce. 7omen in the so)called developed countries of the 7est are misusing and irrationally e$ercising the power of divorce, which have made the divorce much easier for them. 0ivorce is now claimed on the funny facts li'e, Dmy husband does not li'e modern fashion< or Dmy husband is not loo'ing smart< or Dhe is not a good player of Eadminton< etc. if such power of divorce is given in uslim law to the women of ?astern countries also, where such power of divorce are not available to them the position will be of those of 7estern countries, resulting in the increase of the rate of divorce. Bn the one hand the uslim law vests the right of the divorce in husband, whereas, on the other hand, it forcefully restrains the e$ercise of such right e$ception in some e$treme cases of necessity. The above discussion is a clear evidence that 5slam does not allow the husband to sue divorce as moc'ery and ta'e e$tra precaution for the welfare of wives. Eut, in the face of such provision of law and religion of a person due to his misconduct and lac' of 'nowledge does not act according to the tenets of 5slam, it is he who is to be blamed and not the system itself, The behest of the Guran regarding separation is 3
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;And if you fear, a breach between husband and wife, refer the mater to, two arbitrators one chosen from the family of each party, if they recommend reconciliation between them: &/ The prophet also discouraged and disapproved divorce e$cept in e$tremely intolerable circumstances. &= The prophet warned his followers3 ;Curse of Kod rests on him who repudiates his wife capriciously: &" ;0ivorce sha'es the throne of Kod:. Cadi 8uman records an instance where Ali refused to divorce one of his four wives in older to marry another,, and he told the people of ufa not to give their daughters in marriage to 5mam Hasan *his own son+, for he was in the habit of marrying and divorcing a large number of women, a course of action which Ali disapproved. 4> 0ivorce is permissible is 5slam only in cases of e$treme emergency when all efforts of reconciliation have failed. 5n 5slam marriage is basically a social contract between members of the two se$es. Contrary to the concept of older religions that marriages are made in heaven and the matrimonial bond cannot be bro'en by man, 5slam for the first time presents a rational outloo' of this most basic issue of human society. 5slam in general teaches us to be tolerant to other and to forgive is rated better than to avenge. Guran en(oins upon the uslims the same spirit of tolerance in matrimonial relationships. However, it is but natural that in some cases it becomes rather impossible to carry on with the other partner. To meet such e$igencies, 5slam allows separation by dissolution of marriage as a last resort.
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Guran 43&#. Guran &&3&" most e$pressly recites that Prophet prohibited Naid from divorcing his wife, admonishing him to fear Kod and to 'eep her to herself. 5brahim Halabi, @uoted by Ameer Ali, the Personal aw of ohammedan *!==>+ ?d. &&. Cadi 8uman 0alm 3 55, ="/", 2at aw)=>>. @uoted by A 2aizee, Butlines of ohammadan aw, p. !41.
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As to the social aspect of divorce it must be borne in mind that the present day society of 5ndian uslims has for the most part become foreign to 5slamic values and 5slamic teachings. ?ven an educated uslim graduate 'nows almost nothing about toe four Caliphs and the Prophet himself much less does he 'now of such matters as the 5slamic way of divorcing. 5gnorance of this law is responsible for many a hardship in the society. Eut it is famous legal ma$im. ;5gnorance of law is no e$cuse.: The whole edifice of law would crumble down if ignorance of law is accepted as a legal e$cuse. The Prophet has also said ;5t is the duty of every uslim man or woman to ac@uire 'nowledge of the religion.: 4! The rule 5slamic philosophy of tala@ as enunciated in the Guran reveals that there is no scope of arbitrary of whimsical divorce in 5slam. 0iscipline, limitation and restriction are imposed in e$ercising the power of divorce and virtually 5slam tried hard to maintain the married state as far as possible. The boo' of Allah, en(oys a condition precedent to effect divorce3 5f ye fear a breach Eetween them twain Appoint two arbiters Bne from his family And the other from hers 5f they wish for peace Kod will cause Their reconciliation *Guran 43&#+ The procedure to effect divorce as laid down in the above verse is very e$plicit. Two arbitrators representing wife and husband try their level best for reconciliation and if all hopes of reconciliation fall, divorce is allowed as last 41
Al)hatib Tabraizi, 7ali al)0in)ohammed, ish'at Al)asabin, itab)al) aim, %ection)55.
="
resort. Hence the impression that uslim male may brea' the marriage tie at his mere caprice is a grave distortion of the 5slamic law of divorce. T/e ru(e$ 2overnin2 ivorce !re enunci!)e )/u$ +- B ProphetO 7hen you
divorce women, divorce them for their prescribed time, and calculate the number of days prescribed, and be careful of *your duty to+ Allah, your ord. 0o not drive them out of their houses, nor should they themselves go forth, unless they commit an open indecency and these are the limits of Allah, and whoever goes beyond the limits of Allah, he indeed does in(ustice to his own soul. ou do not 'now that Allah may after that bring about reunion. *Guran 1#3!+ The above verse is @uite e$plicit about the conditions under which divorce is permitted. 2irst, divorce cannot be given without a valid reason. %econd, divorce will ta'e effect not immediately on pronouncement but after the e$piry of the prescribed period of time. Third, after the divorce, the wife would stay with her husband, for the full period of 5ddat, provided the reason for the divorce is not adultery on her part, in which case she can certainly be evicted out of his home. 2ourth, before giving divorce, the husband must carefully ponder over the contemplated move and ma'e sure that the is not transgressing the limits prescribed by Allah and that he is not e$ceeding his rights and thus committing a sin. The Guran says that divorce should not be given without a good cause, but the good cause is not clearly specified, as it is not possible to ta'e into account all possible circumstances. The only thing clearly mentioned is that divorce can be given for bad conduct. The cause of the divorce between Nainab and Naid bin %abit was temperamental incompatibility. Another case was that of %abit bin Gais. 9amila, his wife, when she applied for divorce, said 3 ;Bh ProphetO 5 am not annoyed with my husband *Gais+ nor do 5 see
">
anything ob(ectionable in his conduct, but 5 do not love him:. The Prophet granted her re@uest for divorce. %o it is clear that temperamental incompatibility between the husband and wife is itself a valid cause for divorce. 5f their viewpoints are so divergent that they cannot agree with one another, then the very purpose of marriage is defeated. %uch being the case, its bad effect on the morale of the children is obvious. Though the Guran refers to several cause, which may propel a men or woman to divorce, it does not enumerate all the possibilities nor does it specifically limit them to particular cases. This is because the causes, which generally lead to divorce, are so varied that they would differ with each individual case. However, the Guran does not permit any outsider to separate any couple who want to live with each other in spite of the fact that one of them has a certain defect3 though this could be a legitimate cause or divorce in other cases. 4.11 Di$)or)ion in Ini! !n i)$ C!u$e$
The evidence and everyday observation of the happenings in the uslim community leads to a firm conclusion that the aw of 5slam is being terribly misunderstood in this country by the non)uslims for the simple reason that it is being misused, e@ually terribly, by the uslims themselves. And the 5rony is that the uslim misrepresents and misapplies his law in the sincere belief that what he believes to be the law is actually the 5slamic law on the sub(ect. 5n respect of divorce by husband, for instance, from ashmir to anaya'umari, in all sections of the uslims fraternity of 5ndia, it is generally believed that the only legal process of dissolving a marriage is to say the wor' tala@< thrice or to ma'e the so)called triple pronouncement of divorce< in a single breath. The (urisprudential controversy regarding the validity and effect
"!
of the triple tala@ formula apart, it remains a fact the predominant ma(ority of uslims, in this country have 'nown it as the only 5slamic< process of divorce. 5n 5ndia were the Eritish have practiced political and intellectual imperialism for nearly three hundred and fifty years, their influence on the ideas, thoughts and conceptions was inevitable. Today almost all non)uslims in 5ndia loo' at 5slam through the lenses fi$ed up in their eyes by the Eritish legacy of antiQ5slamic feelings. The Eritish, having established political control over 5ndia, moved to displacing the prevailing laws. They undertoo' a two)pronged attac'3 *!+ To turn the 5ndian away from their traditional law by convincing them that it was un)human and uncivilized. *+ Ey re)interpreting the prevailing uslim personal law. To accelerate this process they too' to rewriting uslim personal law and thereby distorting it as they changed its very rationale and sprit. 5n !">1 a profolic parsi lawyer 0.2. uila artificially codified uslim Personal aw in an erroneously titled Eoo', Principles of ohammadan aw. ulla announces3 Any ohammadan of sound mind, who has attained puberty, may divorce his wife whenever he so desires without assigning any cause. 4 4.1# 0i$conce)ion$ Re2!rin2 L!" o% Divorce in Ini!
The uslim law relating to divorce raises two @uestions for consideration3 one relates to the method of divorce, i.e., Dtriple pronouncement of divorce<, and the other to the problem of ine@uality of two se$es in respect of the right to divorce. These two @uestions are controversial and misunderstood not only by laymen but even by lawmen in our country. 42
0.2. ulla, Principles of ohammadan aw &# *!" th ed. !"">+, %ection &> E, also p. &&1 %ection &!"*!+ where he defines tala@ as an arbitrary act of husband.
"
Combining the three permissible divorces into one single divorce, popularly 'nown as the Dtriple divorce< is, its enforceability at law apart, unfortunately 'nown to the 5ndian uslim society as Dthe only method of dissolving the marriage. %yed aududi pointed it out and e$pressed his deep disgust about it nearly half a century ago in these words 3 ;The masterpiece of ignorance among the uslims in respect of their personal law is indeed that generally the uslims are aware of only one method of pronouncing a divorce R and that is R what is called ;triple divorce< R all this despite the fact that the practice of triple divorce is a great sin in 5slam and leads to serious social and legal complications.: 4& Today, the uslims remain as terribly unaware of the true 5slamic law on divorce as they were during the days of %yed aududi. 7riting a little earlier, another great (urist of the community undoubtedly the greatest alim of his time, Ha'im al -mmat, aulana %hraf Ali Thanavi had come out with a clear verdict that3 ;7here a husband thrice says tala@, tala@, three divorces becomes effective also if he uses thrice some words implying a tala@, three divorces will become effective. Eut, if he tends only one tala@ has said it twice only to assert, only tala@ will be effective.:44 4.1, For6$ o% Di$$o(u)ion o% 0!rri!2e
Tala@ *epudiation+ or divorce is an Arabic word which means ;undoing of or release from a 'not:. 5t is used by uslim (urists to denote the release of a woman from the marriage tie, and means a divorce. 4# The word 43 44 45
%yed aududi, Hu@u@ al)Naw(ayn 4=)/" *"th ed, !"14+. aulana Ashraf Ali Thanvi, Eehishti Newar, vol. 56, rule !&. 5bn Gadamah Almughni. Cairo !&/1 A.. vol. 655. P. "1.
"&
DTala@< is usually rendered, as repudiation. 41 5t comes from a root *Tala@a+ which means ;to release *an animal+ from together.: 7hence, to repudiate the wife, or free her from the bondage of marriage. 5n law, it signifies the absolute power, which the husband possesses of divorcing his wife of all times, 4/ for, ;the matrimonial law of the ohammedans, li'e that of every ancient community, favours the stronger se$.: 4= The marriage under uslim aw may be dissolved in any one of the following ways3 *!+ by he husband at his will, without the intervention of a court *+ by mutual consent of the husband and wife, without the intervention of a court *&+ by a (udicial decree at the suit of the wife. 4.14 7uici!( Divorce !) )/e Sui) o% Wi%e &F!$=/' 4.14.1 !c=2roun o% Di$$o(u)ion o% 0u$(i6 0!rri!2e$ Ac)> 1;,; +- The
Act constitutes the most important enactment among legislative measures relating to uslim personal law in 5ndia. 5nitially passed by the central legislature of Eritish 5ndia, the Ac is now applicable in various parts of all the three countries of 5ndian %ub)continent *with certain changes in Pa'istan and Eangladesh+. The legislative method 'nown as ;Ta'hyur: *?clectic Choice+ by means of which this law was originally prepared to be enacted was the same as adopted for the reform of uslim family laws in a large number of 7est Asian countries afterwards.
46 47
48
2ayzee A.A., Butlines of ohammadan aw, !"/4, p. !#>, 0elhi. ?ncyclopedia of 5slam, 555 !1&1)4> @uoted by A. A. 2ayzee DButlines of ohammadan aw< !"/4, p. !#>, 0elhi. %ir 9ames Colville in Mooonshee Ba1loor2Raheem v. Shamsunnisa Begun *!1/1+ !! oons 5ndian Appeals ##! Cases, =!, "1 @uoted by A. A. 2ayzee. Butlines of ohammadan aw *!"/4+ p. !#>, 0elhi.
"4
The Guran e$pressly sanctioned dissolution of a woman 5n such cases, the mere happening of the contingency is not sufficient, the wife must clearly establish first that events entitling her to e$ercise her option have occurred, and secondly, that she actually e$ercised her option. #! 5t is noteworthy that in case of tal@)e)tafweez, the wife does not divorce her husband R and this she cannot do under uslim law R but divorces herself on behalf of her husband under his power delegated to her by h im. Ameer Ali gives three 'inds of tafweez, # they are 3 5'htiar)giving her the authority to tala@ herself Amr)bayed)leaving the matter in her own hands and ashiat R giving her the option to do what she li'es. 4.1 T!(!?-e-T!%"ee@
*Tala@ by the wife under the husband
51 52
Mohd $han v. Mst. Shahmali, A5 !"/ 9 =. 5bid. Mir-an Ali v. Maimuha Bibi, A5 !"4" Assam !4. Ammer Ali, the %plitof 5slam.
"#
power of repudiating her to a third party, or even to his wife. %uch a power of delegation is called Dtafweez<. An agreement made either before or after the marriage providing that the wife would be at liberty to divorce herself from her husband under certain specified conditions such as Din case the husband marries a second wife or fails to maintain hr for a specified period, is valid, provided first, that the option is not absolute and unconditional and secondly that the conditions are reasonable and not opposed to public policy. ;5f a woman be pre(udiced by a marriage, let it be bro'en off:. #& There happened many cases in which he woman only for the purpose of getting their marriage dissolved, renounced their faith. There upon some uslim organizations and scholars in 5ndia became alive to the situation and began thin'ing of ways and means to chec' the tendency among uslim women to renounce 5slam (ust because their religious law did not allow them to get rid of their husbands. The 9amiat)ul)-lama devoted itself to the tas'. 5t was found that there was no way out but to secure legislation empowering 9udges in 5ndia to dissolve uslim woman
a law. %ide by side with -lamas other uslim leaders and
organizations also too' part and interest in the matter. 5n !"&! Princely %tate of Ehopal promulgated a decree called DNabita Tahaffuz)e)Hu@u@)e)Nawa((yn< which was applicable to Hanafi uslims and authorized the local courts to dissolve a uslim woman
53
Guran 56 3 &4, &# Trans by usuf Ali.
"1
5n !"&# prominent leaders of 9amiat)ul)-lama drafted several drafts bills based on a boo', Al)Hilat at 8a(izah *A awful 0evice+ compiled by aulana Ashraf Ali Thanvi. The wor' on this complication was begun aulana in !"1 with the help of ufti ifayatulla and aulana Hussain Ahmad adni. He came to the conclusion that the only solution to the problem under consideration lay in the adoption of ali'i law on the sub(ect in super)session of the corresponding provision of Hanafi school. After a long deliberation a bill was introduced in he central legislature by ohd. Ahmad azmi in !"&1. 4.15 F!$=/ &7uici!( Reci$$ion'
The word fas)h means annulment or abrogation. 5t comes from a root, which means to Dannual *a deed+< or to rescind *a bargain+<. Hence it refers to the power of the uslim @adi to annul a marriage on the application of wife. 5t may be defined as the dissolution or recession of the contract of marriage by (udicial decree.#4 This is 'nown as tah'eem in 2atmid law.## 4.19 Di$$o(u)ion o% 0u$(i6 0!rri!2e$ Ac)> 1;,;
The 0issolution of uslim arriages Act, !"&", constitutes the most important enactment among various legislative measures sealing with uslim personal law in 5ndia. 5nitially passed by the Central legislature of Eritish 5ndia, the Act is now applicable in various part the 5ndian subcontinent *with certain changes in Pa'istan and Eangladesh+. 4.1: Groun$ o% Decree %or Di$$o(u)ion o% 0!rri!2e
%ection of the Act lays down that a woman married under uslim law shall be entitled to obtain decree for the dissolution of her marriage on any one or more of the following grounds namely3 54 55
Tyab(i, uslim aw, s. !! *!"1=+. 2yzee A.AA, A Comperesum of 2atmid aw. %. != *!"1"+
"/
*i+ That the whereabouts of the husband have not been 'nown for a period of four years provided that a decree passed on this ground shall not ta'e effect for a period of si$ months from the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfied his con(ugal duties, the court shall set aside the decree. *ii+ That the husband has neglected or has failed to provide her maintenance for a period of two years. *iii+ That the husband has been sentenced to imprisonment for a period of seven years or upwards, provided that no decree, shall, however, be passed on this ground until the sentence has become final. *iv+ That the husband has failed to perform, without reasonable cause his marital obligations for a period of three years. *v+ That the husband was impotent at the time of marriage and continues to be so provided that before passing a decree on this ground, the court shall, on application by the husband, ma'e an order re@uiring the husband to satisfy the court within a period of one year from the date of such order that he ceased to be impotent, and if the husband so satisfied the court within such period, no decree shall be passed on tots ground. *vi+ That toe husband has been insane for a period of two years or is suffering from leprosy or a virulent disease. *vii+ That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiation toe marriage before attaining toe age of eighteen years, provided that toe marriage has not been consummated *option of puberty+. *viii+ That the husband beats her with cruelty. *i$+ Any other ground, which is recognized by as valid for dissolution of marriages in uslim aw.
"=
4.1; I(!! &Vo" o% Con)inu!nce'
Though this form of divorce is also mentioned in toe %hariat Act, !"&/, it is very rare in 5ndia and of no practical importance. 5n ilaa the husband swears not to have intercourse with the wife and abstains for four months or more. The husband may revo'e the oath by resumption of marital life. After the e$piry of the period of four months, in Hanafee law toe marriage is dissolved without legal process but aliter in 5thanaa Asharee and %hafai law where legal proceedings are necessary. This form is obsolete in 5ndia. A case of ilaa was unsuccessfully raised before Allahabad High Court long ago. #1 4.#< i/!!r &&n8uriou$ A$$i6i(!)ion'
The %hariat Act, !"&/, also recognizes the right of wife to obtain divorce on the ground of Nihaar. 5t is a for of inchoate divorce. 5t literally means Da divorce by unlawful compensation<. 5n Nihaar the husband swears that to him the wife is li'e the bac' of his mother. 5f he intends to revo'e his declaration, he has to pay money by way of e$piation or fast for a certain period. After the oath has been ta'en, the wife has the right to go to court and obtain divorce or restitution of con(ugal rights on e$piation. This is an archaic form of oath and dates from pre)5slamic Arabia. Nihaar has hardly any significance so far as the law courts in 5ndia are concerned li'e ilaa. The words do not come naturally to 5ndian uslims. The Hedaya says, D5f the husband declares that in ma'ing comparison his intention was only to show respect to his wife, e$plication would be necessary. #/ A person, wishing deliberately to give his wife a cause of action for restitution of con(ugal rights in 5ndia, would probably adopt an easier more usual, and better)understood mode of doing so. #= 4.#1 Li!!n &0u)u!( I6rec!)ion' 56
57 58
Bibi Rebana v. +3h Sdaruddin/ !"4& All "# 2or detail see .8. Ahmad, uslim aw of 0ivorce on 5laa. Al. arghinaanee, Ali bin Abu Ea'r, 55 Al)Haioayah, &"> *0elhi n.d.+. Tayab(i, 2.E. uslim aw, !=4 *!"1=+.
""
5n uslim law the right of the wife to get a divorce on the husband imputing false un)chastity to her fell under a doctrine is 'nown as liaan. The 4uran#" and 5adith both guarantee dissolution of marriage by way of liaan. Bne of the important ingredients of 5slam is that it loo's adultery with great disfavour and a husband may be punished for ma'ing false charge of adultery against his wife. 5t is reported that man fro Ansaar accused his wife of adultery. The Prophet thereupon as'ed them both to ta'e an oath, then he ordered them to be separated from each other. 1> The procedure of liaan may be described briefly as follows3 A husband accuses his wife of adultery but is unable to prove the allegation. The wife in such cases is entitled to file a suit for dissolution of marriage. 5t is to be observed that a mere allegation on oath, in the form of anathema, does not dissolve the marriages. A @adi must intervene in 5ndian law, a regular suit has to be filed. At the hearing of the suit, the husband has two alternatives3 *a+ he may formally retract the charge *b+ he may however, not retract and, if he persists in his attitude, he is called upon to ma'e oaths This was followed by similar oaths of innocence made by the wife. The four oaths are tantamount to the evidence of four eye witnesses re@uired for the proof of adultery in 5slam.1! After these mutual imprecations the (udge pronounces that the marriage dissolved. 5t may be noted that the ancient oaths are pictures@ue and may be of interest both to students and to lawyers. According to the 2ataawaa Alamgeeree, the (udge begins with the husband who swears four times s follows 5 attest, by Kod that 5 was a spea'er of truth when 5 cast at her the 59 60 61
Guran SS563 1)". uhammad AE, anual, "> 8o. !! *Eu'haaree+. 2yzee AAA., A Compendium of 2atmld aw, =s. &#, &/.
!>>
charge of adultery and the fifth time he says3 The curse of Kod be upon him *i.e. refers to himself+ if he was a liar when he cast at her the charge of adultery. Then follows the wife and she swears four times 5 attest, by Kod, that he is a liar in the charge of adultery that he cast upon me<, and says on the fifth occasion3 The wrath of Kod be upon me if he be a spea'er in the charge of adultery, which he has caste upon me. The High Court of Eombay has laid down that, three conditions are necessary for a valid retraction3 *a+ the husband must admit that he has made a charge of adultery against wife *b+ he must admit that he was false, and *c+ he must ma'e the retraction before the end of the trial 1 5t is observed that even after passing of 0issolution of uslim arriages Act, !"&", the husband 1;,5 4.##.1 !c=2roun o% Le2i$(!)ion +- The arriage and 0ivorce Act, !=1# *!#
of !=1#+ came into e$istence after the wor'out of thirty years. The Act was, generally based on the atrimonial Causes Act, !=#/ of ?ngland and therefore, suffered from certain infirmities. 5n the beginning decree of divorce 62 63 64
Mohammadali Mahomed 4ureshi v. 5a1arabl , !"## Eom. 1#. #ufail Ahmad v. ,amila $hatoon, A5 !"1 All. #/>. A)lima $hatoon v. Mahibur Rahman, P0 *!"1&+ 0acca 1>.
!>!
could be obtained only on the ground of adultery or adultery coupled with some other offences. And wife alone could file a petition for (udicial separation on the ground of cruelty or in a case where the husband had brought a prostitute in the house. emedy of (udicial separation was not available to the husband under the Parsi arriage and 0ivorce Act, !=1#. 5n order to meet the social re@uirements of the Parsi community, the old Act of !=1# was replaced by the new Act 'nown as the Parsi arriage and 0ivorce Act, !"&1. 5n order to cope with the changing circumstances, the much)needed changes were brought by Parsi arriage and 0ivorce *Amendment+ Act, !"== *# of !"==+. The assent of the President to the said Amendment Act of !"== was received on #)&)!"==. And it came into force on !#)4)!"== by notification of ! th April, !"== published in the Kazette of 5ndia. Presently, the Parsis in 5ndia are governed by the Parsi arriage and 0ivorce Act, !"&1, as amended by the Parsi arriage and 0ivorce *Amendment+ Act, !"==, in respect of their matrimonial matters. 4.#, Groun$ %or Divorce
-nder the said Act, following grounds have been enumerated for see'ing the dissolution of marriage 3 4.#,.1 Con)inuou$ A$ence %or Seven Be!r$ +- %ection &! of the Act provides
that ;5f a husband or wife shall have been continually absent from his or her wife or husband for the span of seven years, and shall not have been heard of as being alive within that time by those persons who would have naturally heard of him or her, had he or she been alive, the marriage of such husband or wife may, at the instance of either party thereto, be dissolved.:
!>
The presumption under this section is with reference to the filing of the proceeding for dissolution of marriage and not with reference to any particular date. 4.#,.# Non-Con$u66!)ion o% 0!rri!2e +- -nder clause *a+ of section & it
is provided that any married person may sue for divorce on the ground that the marriage has not been consummated within one year after its solemnization owing to the willful refusal of the defendant to consummate it. Thus two conditions are to be satisfied under the provision. There should be non)consummation of marriage within one year after the marriage, and that such non)consummation should be due to willful refusal of the defendant. 4.#,., Un$ounne$$ o% 0in +- Clause *b+ of section & ma'es unsoundness
of mind of the defendant at the time of marriage, a ground of divorce, if heFshe remains suffering up to the date of the suit. However, to avail this ground two more conditions are also to be satisfied, *i+ that the plaintiff was ignorant of the fact at the time of marriage, and *ii+ that the suit is filed within three years from the date of the marriage. 5n respect of the unsoundness of mind occurring after solemnization of marriage, clause *bb+ of section & provides that a plaintiff is entitled to see' divorce on the ground ;that the defendant has been incurably of unsound mind for a period of two years or upwards immediately preceding the filing of the suit or has been suffering continuously or intermittently from mental disorder of such 'ind and to such an e$tent that the plaintiff cannot reasonably be e$pected to live with the defendant.: 4.#,.4 Pre2n!nc* * ! Per$on o)/er )/!n P(!in)i%% +- 5f at the time of
marriage the defendant was pregnant by some person other than the plaintiff, it is a ground for see'ing divorce under clause *c+ of section &.
!>&
However, for availing this ground it has to be shown, *i+ that the plaintiff was ignorant of the said fact at the time or arriage, *ii+ that the suit has been filed within two years from the date of arriage, and *iii+ that marital intercourse has not ta'en place after the plaintiff came to 'now of the said fact. 5f the pregnancy was caused by the plaintiff himself, who later on married the girl, same would not entitle him to see' divorce under this clause. 4.#,. Au()er*> Fornic!)ion> i2!6*> R!e or Unn!)ur!( O%%ence +- 5f a
defendant is guilty of committing adultery or fornication or bigamy or rape or an unnatural offence, the divorce may be granted to the petitioner under clause *d+ of section &. However, a suit see'ing divorce under this clause must be filed within two years of plaintiffs coming to 'now of the fact. 5n a suit on the ground of adultery, the alleged adulterer has to be made a co)defendant unless otherwise ordered by the court. 4.#,.5 Crue()* +- -nder clause *dd+ of section &, cruelty is a ground for
divorce. 4.#,.9 Grievou$ Hur)> Venere!( Di$e!$e> Co6e((in2 )o Pro$)i)u)ion +-
Clause *e+ of section & provides that the plaintiff may file for divorce on the ground ;that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to submit herself to prostitution:. However, a decree of divorce on this ground cannot be granted if the suit has been filed after ore than two years *i+ after the infliction of the grievous hurt, or *ii+ after the plaintiff came to 'now of the infection, or *iii+ after the last act of forced prostitution. As to what is Krievous Hurt has been defined in sub)section *4+ of section of the Act as 3
!>4
*i+
emasculation
*ii+
permanent privation on the sight of either eye
*iii+
permanent privation of the hearing of either ear
*iv+
privation of any member or (oint
*v+
destruction or permanent impairing of the powers of any member or (oint
*vi+
permanent disfiguration of the head or face or
(vii)
any hurt which endanger life.
4.#,.: Sen)ence %or Seven Be!r$ +- 5f the defendant is undergoing a sentence
of imprisonment for seven years or more for an offence under the 5ndian Penal Code, !=1>, the plaintiff may file for divorce under clause *f+ of section &. However, to avail this ground, the defendant must have undergone at least one year
ground for divorce under clause *g+ of section &. 4.#,.1< Non-re$u6)ion o% Co/!i)!)ion !%)er P!$$in2 o% 0!in)en!nce orer+- -nder clause *h+ of section &, if an order has been passed against the
defendant by a agistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for one year or more, a decree for divorce may be sought. 4.#,.11 Conver$ion +- Clause *(+ of section & provides that if the defendant
has ceased to be a Parsi by conversion to another religion, the plaintiff may file for divorce.
!>#
However, such a suit must be filed within two years fro the date of plaintiffs coming to 'now about the defendant
of the Act provides that either party to a marriage may also sue for divorce an the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for (udicial separation or for restitution of con(ugal rights, in a proceeding to which they were parties. This ground is pari material with sub)section *!A+ of section !& of the Hindu arriage Act, !"##. esumption of cohabitation after passing of the decree means cohabitation by volition of both the parties and not a unilateral act. However, this ground for see'ing divorce cannot be availed by a plaintiff who has failed or neglected to comply with an order for maintenance passed against him under section 4> of this Apt or section !# of the Code of Criminal Procedure, !"/&. 4.#,.1, Divorce * 0u)u!( Con$en) +- -nder the Parsi arriage and 0ivorce
Act, !"&1, the proviso for divorce by mutual consent has been introduced by inserting section &E for the first time by the Parsi arriage and 0ivorce *Amendment+ Act, !"==. A suit for divorce under this proviso may be filed by both the parties to a marriage on the ground3 *i+ that they have been living separately for a period of one year or more *ii+ that they have not been able to live together and *iii+ that they have mutually agreed that the marriage should be dissolved. However, no suit under this proviso can be filed, unless one year has lapsed since the date of the arriage, at the time of filing of the suit.
!>1
2urther, before passing a decree under this provision the Court)fias to be satisfied on the following matters *i+ that the marriage has been solemnized tinder this Act *ii+ that the averments in the plaint are true and *iii+ that the consent of either party to the suit was not obtained by force or fraud. 5n case of a plaint see'ing divorce on any of the grounds e$cept divorce by mutual consent provided in the Act, the Court has to be satisfied 3 *i+
that the act of omission set forth in the plaint has not been condoned
*ii+
that the husband and wife are not colluding together
*iii+
that the plaintiff has not connived at or been accessory to the said act or an omission
*iv+
that there has been no unnecessary or improper delay in instituting the suit and
*v+
that there is no other legal ground impeding the relief as'ed for.
4.#4 Cour) in "/ic/ Sui) )o e Fi(e
5n this respect section " of the Act provides3 *!+ All suits instituted under this Act shall be brought in the Court within the limits of whose (urisdiction the defendant resides at the time of the institution of the suit, or where the marriage under this Act was solemnized. *+ 7hen the defendant shall at such a time has left the territories to which this Act e$tends such suit shall be brought in the Court at the place where the plaintiff and defendant last resided together. *&+ 5n any case, whether the defendant resides in the territories to which this Act e$tends or not, such suit may be brought in the Court at the place where the plaintiff resides or at the place where the plaintiff and
!>/
the defendant last resided together, if such court, after recording its reasons in writing, grants leave so to do. 4.# Divorce uner )/e Seci!( 0!rri!2e Ac)> 1;4 4.#.1 !c=2roun o% Le2i$(!)ion +- The %pecial arriage Act, !"#4 *& of
!"#4+, came into e$istence wide notification no. %..B. &1>1, dated !/ th 0ecember, !"#4. The act could be availed of by any person in 5ndia irrespective of the religious faith of parties to the marriage. Eesides, the spouses who had solemnized their marriage in any other form, could register their marriage under the %pecial arriage Act, !"#4, if the conditions prescribed for a valid marriage under this Act were fulfilled. To ma'e the Act of !"#4, more practical and meaningful, some amendments were introduced in this Act, in the year !"/1 by the arriage aws *Amendment+ Act, !"/1 *1= of !"/1+, giving more teeth tot eh Act of !"#4. 5t made changes to the grounds for divorce, (udicial separation and nullity. %ection &" of the Act of !"/1 provides that even the pending proceedings shall be dealt with and decided, as far as possible, as if they had been originally instituted under the %pecial arriage Act, !"#4 as amended b the arriage *aws+ Amendment Act, !"/1. 4.#5 A(ic!i(i)* o% )/e Ac)
The %pecial arriage Act, !"#4, which applies to all citizens irrespective of caste, creed or religion, can safely be called a national matrimonial law for its uniformity and lac' of discrimination. The marriage conceived under the act is monogamous, and the dissolution is (udicial. -nder the said law all modern matrimonial relief, in the event of the brea'down of marriage, are available to both the spouses. 4.#9 Groun$ %or Divorce
!>=
%ections / and = of the Act are the provisions dealing with grounds for divorce available under the Act. These are as follows3 4.#9.1 Au()er* +- Clause *a+ of sub)section / states that either party may
see' divorce on the ground that the respondent ;has, after the solemnization of the marriage, had voluntary se$ual intercourse with any person other than his or her spouse:. This clause is in similar terms as clause *i+ of sub)section *!+ of section !& of the Hindu arriage Act. 4.#9.# De$er)ion +- -nder clause *b+ of sub)section *!+ of section / of the
Act, if the respondent ;has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition:, it is a ground for see'ing divorce. As to the meaning of Ddesertion<, ?$planation to sub)section *!+ of section / states that ;the e$pression Ddesertion< means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of the petitioner by the other party to the marriage. And its grammatical variations and cognate e$pression shall be construed accordingly.: 5t is well)settled that to constitute desertion there must b e3 (i)
the factum of separation
(ii)
the intention to bring cohabitation to a permanent end
*iii+
the element of permanence, which is the prime condition, re@uires that both these essential ingredients should continue during the entire period mentioned under the statute.
4.#9., Sen)ence o% I6ri$on6en) %or Seven Be!r$ +- 5n view of clause *c+ of
sub)section *!+ of section /, the petitioner may file for divorce on the ground
!>"
that the respondent ;is undergoing a sentence of imprisonment for seven years or more for an offence defined in the 5ndian Penal Code.: 4.#9.4 Crue()* +- Treating the petitioner with cruelty also affords a valid
ground for divorce under clause *d+ of sub)section *!+ of section /, as under clause *ia+ of sub)section *!+ of section !& of the Hindu arriage Act, !"##. The ground of cruelty is available both under section !& of the Hindu arriage Act and section / of the %pecial arriage Act. The 0irect Court has (urisdiction to entertain divorce petition under both Acts. The divorce petition was wrongly labeled as one under section !& of the Hindu arriage Act and does not oust (urisdiction of 0istrict Court to entertain divorce petition as if it were petition under Hindu arriage Act. The wife who is lady person cannot be penalized for defects in pleadings made by counsel. 4.#9. In$!ni)* +- Clause *e+ of sub)section *!+ of section / states that the
petitioner may sue for divorce if the respondent ;has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a 'ind and to such an e$tent that the petitioner cannot reasonably be e$pected to live with the respondent. ?$planations to that clause say D5n this clause3 *i+
the e$pression ;mental disorder: means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia
*ii+
the e$pression ;psychopathic disorder: means a persistent disorder or disability of mind *whether or not including sub)normality of intelligence+ which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it re@uires or is susceptible to medical treatment.:
!!>
4.#9.5 Venere!( Di$e!$e +- -nder clause *f+ of sub)section *!+ of section /, if
the respondent suffering form venereal disease is in a communicable form entitles the petitioner to divorce. 4.#9.9 Lero$* +- Clause *g+ of sub)section *!+ of section / provides that if
the respondent has been suffering from leprosy, the disease not having been contracted from the petitioner, the petitioner may see' divorce. 4.#9.: Pre$u6)ion o% De!)/ +- -nder clause *h+ of sub)section *!+ section /
the petitioner may see' divorce on the ground that the respondent has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive. 4.#9.; R!e> Soo6*> e$)i!(i)* +- -nder clause *i+ of sub)section *!A+ of
section /, a wife may see' divorce on the ground that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality. 4.#9.1< Non-re$u6)ion o% Co/!i)!)ion !%)er P!$$in2 o% ! Decree %or 0!in)en!nce +- A wife may also sue for divorce under clause *ii+ of sub)
section *!A+ of section / on the ground that in a suit under section != of the Hindu Adoptions and aintenance Act, !"#1, or in a proceeding under section !# of the Code of Criminal Procedure, !"/& *or under the corresponding section 4== of the Code of Criminal Procedure, !="=+ a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards. 4.#9.11 Non-re$u6)ion o% Co/!i)!)ion !%)er P!$$in2 o% ! Decree %or 7uici!( Se!r!)ion or Re$)i)u)ion o% Con8u2!( Ri2/)$ +- %ub)section *+ of
section / provides that either party to a marriage may see' divorce on the
!!!
ground that there has been no. resumption of cohabitation between the parties to the marriage for a period of one year or upwards after the passing of a decree of (udicial separation on a decree for restitution of con(ugal rights in proceeding to which they were the parties. 4.#9.1# Divorce * 0u)u!( Con$en) +- -nder section = of the Act, divorce
by mutual consent may be sought by the parties to the marriage by presenting a (oint petition on the ground that they have not been able to live together and they have mutually agreed to dissolve the marriage. Bn the motion of both the parties made not earlier than si$ months after the date of the presentation of such petition and not later than eighteen months after the said date, if the petition is not withdrawn in the meanwhile, the district court shall on being satisfied, after hearing the parties and after ma'ing such in@uiry as it thin's fit, that a marriage has been solemnized under this Act and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree. ?ven if the dissolution of marriage is sought by a (oint petition of the parties under section =, still it is incumbent on the Court to comply with the mandatory provisions of sub)section *+ of section &4 of the Act and the Court has to endeavour to bring reconciliation between the parties 4.#: Divorce uner )/e Divorce Ac)> 1:5; 4.#:.1 !c=2roun o% )/e Ac) +- The 5ndian 0ivorce Act, !=1" *4 of !=1"+,
came into operation on the ! st day of April, !=1" and e$tends to the whole of 5ndia e$cept the %tate of 9ammu and ashmir. Eut for long there had been a vociferous demand for an amendment in the act, as the legislation was found wanting on many fronts. After years of protest the Kovernment of 5ndia too' note of the problems that Christians of 5ndia were facing on account of their outdated personal law. And by the arriage aws *Amendment+ Act, >>! *4"
!!
of >>!+ and the 5ndian 0ivorce *Amendment+ Act >>! *#! of >>!+ some groundbrea'ing changes were made in the 5ndian 0ivorce Act while the first amendment *4" of >>!+ amended section &1 and section 4!, the second brought far)reaching changes in a number of provisions of the Act besides changing the title of the Act. 4.#:.# Groun$ o% Divorce +- %ection !> of the act enumerates the grounds of
obtaining a divorce under the Act. However, it is only when a valid marriage subsists, that the remedy under section !> can be availed. Eefore 5ndian 0ivorce act, !=1" was amended by Act #! of >>! there were separate grounds available to husband and wife for divorce under section !> of the act. 7hile husband could see' divorce on grounds of adultery alone, wife had a number of grounds available. %ection !> then read thus3 7hen husband may petition for dissolution 3 Any husband may present a petition to the 0istrict Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery. 7hen wife may petition for dissolution 3 Any wife may present a petition to the 0istrict Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has e$changed his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality,
!!&
or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro, or of adultery coupled with desertion, without reasonable e$cuse, for two years of upwards:. Eut now, after the >>! amendment there are !> common grounds available to both husband and wife and three additional grounds to wife, viz., rape, sodomy and bestiality. The amended section !> now reads as follows3 ;!>. Krounds for dissolution of marriage 3 *!+ Any marriage solemnized, whether before or after the commencement of the 5ndian 0ivorce *Amendment+ Act, >>!, may, on a petition presented to the 0istrict Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent 3 *i+
has committed adultery or
*ii+
has ceased to be Christian by conversion to another religion or
*iii+
has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition or
*iv+
has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy or
*v+
has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form or
*vi+
has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive or
!!4
*vii+
has willfully refused to consummate the marriage and the marriage has not therefore been consummated or
*viii+ has failed to comply with a decree for restitution of con(ugal rights for a period of two years or upwards after the passing of the decree against the respondent or *i$+
has deserted the petitioner for at least two years immediately preceding the presentation of the petition or
*$+
has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or in(urious for the petitioner to live with the respondent. A wife may also present a petition for the dissolution of her marriage
on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality. 0issolution of arriage by mutual consent 3 *!+ %ub(ect to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the 0istrict Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the 5ndian 0ivorce *Amendment+ Act, >>!, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved. Bn the motion of both the parties made not earlier than si$ months after the date of presentation of the petition referred to in sub)section *!+ and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and ma'ing such in@uiry, as it thin's fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.:
!!#
The word ;adultery: has been defined in section 4"/ of the 5ndian Penal Code. According to that definition, in order to constitute an offence of adultery three ingredients are necessary *a+ the woman with whom se$ual intercourse is committed must be or must be 'nown to be or must be reasonably believed to be the wife of another man, *b+ the act of se$ual intercourse must be committed without the consent of that man, and *c+ the act of se$ual intercourse must not amount to an offence of rape. According to this definition, a man who commits an act of se$ual intercourse with a prostitute or with an unmarried woman or with a widow or with the consent or connivance of the husband of title woman with whom se$ual intercourse is committed is not guilty of adultery. However, this relatively narrow definition of the word ;adultery: as given in section 4"/ of the 5ndian Penal Code has no application to a proceeding for divorce under section !> of the 5ndian 0ivorce Act. The definition of adultery in section 4"/ of the 5ndian Penal Code applies only to male offenders and under the 5ndian Penal Code a woman cannot be held guilty of adultery but the very first paragraph of section !> of the 5ndian 0ivorce Act, !=1" authorizes a husband to present a petition for dissolution of marriage on the ground of adultery by his wife. 4.#; Divorce uner Forei2n 0!rri!2e Ac)> 1;5; 4.#;.1 !c=2roun o% )/e Ac) +- The 2oreign arriage Act, !"1" *&& of
!"1"+, came into e$istence on August &!, !"1", published in the Kazette of 5ndia, ?$tra., Part 55, section 5, dated &!)=)!"1" at page &&". This Act was brought into e$istence to ma'e provisions relating to marriages of citizens of 5ndia outside 5ndia. %ection &> of the 2oreign arriage Act, !"1", repeals the 5ndia 2oreign arriage Act, !">& *!4 of !">&+. 4.#;.# So(e6ni@!)ion o% Forei2n 0!rri!2e$ +- %ection 4, which lays down
conditions relating to solemnization of foreign marriage, re@uires a marriage to be valid under the Act, that at the time of marriage3
!!1
*a+ neither party should have a spouse living *b+ neither party should be idiot or lunatic *c+ the bridegroom should have completed the age of twenty one years and the bride should be over eighteen years of age and *d+ the parties should not be within the degrees of prohibited relationship. Provided that where the personal law or a custom governing altleast one of the parties, permits a marriage between them, such marriage may be solemnized irrespective of their being within the degrees of prohibited relationship. 4.#;., A(ic!i(i)* o% )/e Ac) +- The 2oreign arriage Act, !"1" therefore,
deals with the marriages between the parties at least one of whom is a citizen of 5ndia and such a marriage is solemnized in a foreign country but registered under the provisions of tire 2oreign arriage Act. 4.#;.4 Reco2ni)ion o% 0!rri!2e So(e6ni@e uner )/e L!"$ o% o)/er Coun)rie$ +- %ection & of the 2oreign arriages Act provides that if the
Central Kovernment is satisfied that the flaw imposed in any foreign country for the solemnization of marriage customs provision similar to those contained in this Act, it may, by notification in the Bfficial Kazette, declare that marriage solemnized under the law in force in such foreign country shall be recognized by Courts in 5ndia as valid. 4.#;. Groun$ %or Divorce +- All the grounds for see'ing divorce as
provided for in the %pecial arriage Act, !"#4 have been recognized as grounds for divorce under the 2oreign arriage Act, !"1" too. 5n this respect section !=*!+ of the Act states ;sub(ect to the other provisions contained in this section, the provisions of chapter 65 *8ullity of arriage and 0ivorce+, of the %pecial arriage Act, !"#4 shall apply in relation to marriages solemnized in a foreign country between the parties of whom at least one is a citizen of 5ndia as they apply in relation to the marriages solemnized under that Act.:
