Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Renuka Gupta ( Gender Researcher )     13 July 2010

Regarding divorce

 

Dear Ld. legal advisers,

A Hindu-Christian couple, with marriage registered with Church and no registration under special marriage act. I know this marriage is valid, but if one happens to seek divorce, under which act it would happen? Does Indian Christian  marriage act, allows for divorce to Hindu-Christian couple? Or is it applicable only when both are Christians? 

Please educate me on this. 

 

Regards

RG



Learning

 11 Replies

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com)     13 July 2010

Dear Renuka,

First of all this marriage is not valid. but even then if you consider it valid then you have to get divorce under divorce act. plz contact any local lawyer.

Regards

adv.kamal.grover@gmail.com

2 Like

(Guest)

1. Yes, it does.


2.The Indian Christian Marriage Act, 1872 does not validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into. The word personal law refer to the personal law of the religious community to which either of the parties belong. The ‘Personal Law’ contemplated by the Act is only that part of the personal law which relates to absolute impediments to any marriage, such as prohibited degrees of consanguinity or affinity which would render the marriage a nullity. Persons of Indian origin and domicile converted to Christianity of the Roman Catholic persuasion who choose to marry under the rules and rites of the Roman Catholic Church must be regarded as having adopted the law of marriage of that Church as part of their personal law.


3.The operation of this Act is not confined to a marriage to which both the parties are Christians. A marriage to which one party alone is a Christian is also regulated by the provisions of this Act. In other words, this Act does not stand in the way of a Christian marrying a non-Christian, but such a marriage will have to be solemnised under the provisions of this Act. For a valid marriage under the Christian Marriage Act, two requirements should be satisfied, viz.,

(a) the marriage should be solemnised under the Act and
(b) it should not offend the personal law of any of the parties to it.


Therefore in a marriage where one party to it is a Christian or both parties to it are Christians, it should be solemnised under this Act and if not so solemnised, it would be void. In short, in a marriage under this Act, if one party thereto alone is a Christian, such a marriage becomes valid only if the personal law of the non-Christian Party treats such marriage as valid. Where the wife is a Christian woman and the husband is a Hindu, there is no prohibition under Hindu law for such a marriage.


Rgds.

1 Like

Mrs. Hetal Sunil Shah (Advocate)     13 July 2010

Ld Kamal is right

1 Like

Renuka Gupta ( Gender Researcher )     13 July 2010

Dear Mr. Anand

Thanks for this detailed reply. Only one more clarification: If Wife is Hindu and Husband a Christian, and the marriage is registered with Church with a marriage certificate issued, does it hold validity? Hindu personal law forbids marriages between Hindu and Non Hindu under Hindu Marriage Act 1955, so that means a Hindu woman cannot get married to a Christian without converting? Does the Hindu Personal Law prohibit such marriage? 

There is lot of confusion even among the legal community at my home place on this issue, as the marriage is not registered under special marriage act, but is 18 years old marriage with a 16 year old girl child. 

Will appreciate if other ld. members too reply to this query pertaining to the main one. 

Regards

RG

Arup (UNEMPLOYED)     13 July 2010

all the religious personal laws are for those who belongs to that religious community. marriage of other religious community not allowed.

hence the marriage is invalid, question of divorce on that personal law does not arise.

i think at the time of marriage / marriage registration; the non christian person by behave or by declaration express that he/she also a christian.

for christians, for the purpose of divorce, indian divorce act applicable.

what is your basic purpose - you or your party wants divorce; or just want to know the legal system.

the legal system not cleared by law; a supreme court rulling will be helpfull in this regard.

one may approach the sc for this purpose / specific relief act also may helpfull - and a lower court than the district court may attend the case.

1 Like

Pranjal Srivastava (Lawyer)     13 July 2010

 

As per Indian Christian Marriage Act 1872

 

Sec 4. Marriages to be solemnized according to Act

Every marriage between persons, one or both of whom is [or are] a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.

Sec 5. Persons by whom marriages may be solemnized

Marriages may be solemnized in 12[India]-

(1) by any person who has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a Minister;

(2) by any Clergyman of the Church of Scotland, provided that such marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland;

(3) by any Minister of Religion licensed under this Act to solemnize marriages;

(4) by, or in the presence of, a Marriage Registrar appointed under this Act;

(5) by any person licensed under this Act to grant certificates of marriage between 13[Indian] Christians.

So in Your Case my opinion is The Marriage is valid and should be dissolved  by getting decree of Divorce

1 Like

Pranjal Srivastava (Lawyer)     13 July 2010

Now Coming on your next Ques.

Hindu personal law forbids marriages between Hindu and Non Hindu under Hindu Marriage Act 1955, so that means a Hindu woman cannot get married to a Christian without converting? Does the Hindu Personal Law prohibit such marriage? 

Yes HMA does not apply where there either of the parties is not HINDU.

But it doesn't mean that a marriage of hindu girl with a Christian Guy is not valid. The only effect in your given case any proceeding of the marriage will not govern by HMA.

It means the women can not

1- Suit a petition for Divorce on the ground provided in HMA

2 - claim for Restitution of Conjugal Rights on the grounds provided in HMA

3- not go for Judicial separation

4- Claim for maintenance U/S 24 HMA (off course She can claim U/S 125 CRPC

2 Like

Arup (UNEMPLOYED)     13 July 2010

I AM SORRY.

MY ANSWER WAS WRONG.

MR PRAJAL ABSOLUTELY RIGHT. THANKS MR PRAJAL TO EDUCATE ME.

4. Marriages to be solemnized according to Act.-

Every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.

QUOTE ...But it doesn't mean that a marriage of hindu girl with a Christian Guy is not valid. The only effect in your given case any proceeding of the marriage will not govern by HMA...  UNQUOTE.

THE SOLVATION AND THE ATTRACTION CAPACITY BY HMA IS UNDER THE FOLLOWING ACT OF HMA, WHERE A HINDU AND NON HINDU MARRIED UNDER HMA.

2. Application of Act.

(1) This Act applies-

(a) to any person who is a Hindu by religion in any of its forms or developments, ….

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

(3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

 

Pranjal Srivastava (Lawyer)     13 July 2010

 MS. JORDAN DIENGDEH  Vs S.S. CHOPRA  AIR SC  is  good case to understand that HMA will not applicable in your case

1 Like

Pranjal Srivastava (Lawyer)     13 July 2010

The Only remedy available in your case is in INDIAN DIVORCE ACT 1869

Regards

1 Like

Pranjal Srivastava (Lawyer)     13 July 2010

 

JUDGEMENT-

PETITIONER:

MS. JORDAN DIENGDEH  

 

        Vs.

RESPONDENT:

S.S. CHOPRA

DATE OF JUDGMENT10/05/1985

BENCH:

REDDY, O. CHINNAPPA (J)

BENCH:

REDDY, O. CHINNAPPA (J)

MISRA, R.B. (J)

CITATION:

 1985 AIR  935                       1985 SCR  Supl. (1) 704

 1985 SCC  (3)     62             1985 SCALE  (1)952

ACT:

     Constitution of  India-Article 44-Uniform Civil  Code-Necessity of-Emphasised.    Indian Divorce, Act, 1869-Ss. 18, 19 and 22-Petition by wife-Allegation of  impotence of husband-Nullity of marriage or judicial  separation sought-High  Court rejecting  prayer for nullity,  but granting judicial separation on account of cruelty-Validity    of       order-Supreme    Court    holding irretrievable break-down of marriage.  

Hindu  Marriage   Act,  1955  ss.10  and  13B-Special Marriage Act,  1954-Ss. 23  to 28-Parsi Marriage and Divorce Act, 1936-Ss.  31 to  34-Dissolution of Muslim Marriage Act, 1939-S. 2-Grounds  for dissolution  of marriage not uniform-Necessity for uniform Civil Code-Stressed.

HEADNOTE-

     The  petitioner   belonged  to  the  'Khasi  Tribe'  of Maghalaya and  was born  and brought  up as  a     Presbytarian Christian. She is  now  a  member  of the  Indian  Foreign Service. The respondent-husband is a Sikh. They were married under the Indian Christian Marriage Act 1872. The petitioner filed a  petition in  1980, for  declaration of  nullity  of marriage or  judicial separation  under ss. 18, 19 and 22 of the Indian Divorce Act, 1869, on the ground of the impotence of her husband.

     A Single  Judge of  the High  Court rejected the prayer for declaration of nullity of marriage, but granted a decree for judicial  separation on  the ground of cruelty. Division Bench affirmed the decision of the Single Judge on appeal.

     In the special leave petition filed by wife, ^

     HELD: (1)        A comparison  of the  relevant provisions of the Christian  Marriage Act  1872, Hindu  Marriage Act 1955,Special Marriage  Act 1954,  Parsi Marriage  and Divorce Act 1936, Dissolution  of Muslim  Marriage Act,  1939, show that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. [717 B] 

     (2) Under the Hindu  Marriage Act,  a decree  for  the judicial separation  may be  followed by  a decree  for  the dissolution of marriage on the lapse of 705 one year or upwards from date of the passing of a decree for judicial  separation, if  meanwhile there  has  been  no resumption  of    cohabitation. There  is  no  corresponding provision  under   the         Indian   Divorce Act  and  a  person obtaining a  decree for           judicial separation  will  have  to remain content with that decree and cannot seek to follow it up with     a decree  of divorce, after the lapse of any period of time. [711 B-C]

 (3) In  the instant  case, the marriage appears to have broken down irretrievably. If the findings of the High Court stand, there  is no  way  out  for  the     couple.  They    will continue to  be tied  to each  other  since  neither  mutual consent nor irretrievably break-down of marriage is a ground for divorce, under the Indian Divorce Act. There is no point or purpose  to be  served by  the continuance  of a marriage which has  so  completely  and       signally  broken  down.  The parties are  bound together by a marital tie which is better untied. [717 B-C]

     (4) Time  has now come for  the  intervention  of  the legislature to provide for  a uniform code of marriage and divorce as envisaged by Article 44 and to provide by law for a way  out of  the unhappy  situations in which couples find themselves in. It is  necessary to  introduce irretrievably break-down of  marriage, and  mutual consent  as grounds  of divorce in all cases.  [717 C-D]

JUDGMENT:

     CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 2047 of 1985.  From the  Judgment and  Order dated  29.2.1984  of       the Delhi High Court in F.A.O. (O.S.) No. 28 of 1982.

     Mohinder Narian,  S.S. Jauhar  and Ms. Zubeda Begum for the Petitioner.  The Order of the Court was delivered by     CHINNAPPA REDDY,  J. It  was just the other day that a Constitution Bench  of    this  Court  had  to  emphasise  the urgency of  infusing life  into Art.  44 of the Constitution which provides that "The State shall endeavour to secure for the citizens a uniform civil code through out the territory of India."  The present           case is  yet another  which focuses attention on the immediate and compulsive need for a uniform civil code.  The totally unsatisfactory state  of  affairs consequent on the lack of a uniform civil code is exposed by the facts  of the  present case. Before mentioning the facts of the case, we  might as well refer to the observations of Chandrachud,  C.J.,  in  the  recent  case  decided  by  the Constitution Bench  (Mohd Ahmed  Khan v.  Shah Bano Begum & Ors.) 706

  "There is no evidence of any official activity for  framing a common civil  code for the country ... ... A      common Civil  Code  will  help  the  case          of  national  integration by  removing disparate  loyalties  to laws  which have  conflicting  ideologies.  No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty  of securing  a uniform  civil  code  for  the  citizens of the country and, unquestionably, it has the legislative competence  to do so. A counsel in the case whispered, somewhat    audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning.  Inevitably, the role of the reformer has to be assumed by the courts because; it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the           gap between personal  laws      cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice from case to case."

     The facts of the case are somewhat novel and peculiar. The wife, who is the petitioner before us claims to belong to the                'Khasi Tribe' of Meghalaya, who was born and brought up as  a Presbytarian  Christian at  Shilong. She is now a member of the Indian Foreign Service. The husband is a Sikh. They were married under the Indian Christen Marriage Act, 1872. The marriage was performed on October 14, 1975. The present petition for declaration of nullity of marriage or judicial separation was filed in 1980 under sections 18, 19 and 20 of the Indian Divorce    Act, 1869.  The   prayer  for declaration no nullity of marriage was rejected by a learned single judge of the High Court, but a decree for judicial separation was granted on the ground of cruelty. On appeal, a Division Bench of the High Court affirmed the judgment of the learned single judge.  The wife has filed this petition for special leave to appeal against the judgment of the High Court. She seeks a declaration of nullity of marriage. The ground on  which the  declaration was  sought in  the courts below and  the ground  on which  it is now  sought  is             the impotence of  the husband  in that  though the husband is of achieving 707 erection and penetration, he  ejaculates prematurely before the wife has an orgasm, leaving the wife totally unsatisfied and frustrated. At this stage, we are not concerned with the question how far the wife has been able to establish her case. The real problem now is that the marriage appears to have broken down irretrievably.  Yet if the findings of the High Court stand, there is no way out for the couple, they will continue to be tied to each other since neither mutual consent nor irretrievable break down of marriage is a ground for divorce, under the Indian Divorce Act. Section 10 the Indian Divorce Act prescribes the grounds on which a husband or wife may petition for dissolution of marriage. The ground on which  a husband  may obtain  a decree for dissolution of marriage is the adultery of the wife. The grounds on which a wife may  obtain a  decree for dissolution of               marriage are change of religion from Christianity to another religion and marriage with  another woman,  incestuous  adultery,  bigamy with adultery, marriage with  another woman  with adultery, rape, sodomy  or bestiality,  adultery coupled with cruelty, adultery coupled  with desertion for more than two years. It must be noted that the Indian  Divorce Act applies only to cases where the petitioner or respondent professes the Christian religion.  Section 19 provides that a marriage may be declared null and void on the ground-

 "(1) that  the respondent was impotent at the time  of the institution of the suit;

   (2) that  the parties  are within  the  prohibited degrees of  consanguinity (whether natural or legal) or      affinity;

  (3) that  either party  was a  lunatic or idiot at the time of the marriage;

  (4) that  the former husband or  wife  of  either party was living at  the time  of the marriage and the      marriage with  such former  husband or wife was then in force."

Section 22  provides for  judicial aspersion at the instance of either husband or wife on the ground of adultery, cruelty or desertions for two years or upwards.

     The provisions  of the  Divorce Act may now be compared with the  provisions of other enactments  and  laws  which provide for 708 decrees  of   nullity  of  marriage,  divorce  and  judicial separation. Under  the Hindu  Marriage Act, sec. 10 provides for judicial  separation.  It  enables either party  to  a marriage to  seek judicial  separation on any of the grounds specified in  sec. 13(1)  and in  the case of a wife also on any of the grounds  specified in  sub-sec. 2  of  sec.         13. Section 11  provides for  a declaration that a marriage is a nullity if  it contravene  as  any  one  of  the  conditions specified in clauses (i), (iv) and (v) of sec. 5.

 Sec. 5 (i) requires that  neither party has a spouse living at the time of the marriage.

Sec.5 (iv) requires that the parties are not within  the degrees  of prohibited relationship, unless the custom  or usage  governing each  of them  permits of  a marriage between  the  two. 

Sec.  5(v)  requires  that                the parties are not sapindas of each other, unless the custom or usage governing  each of  them permits of a marriage between the two.  Section 12  further provides that a marriage  is voidable and  may be annulled if

(a) a marriage has not been consummated owing to the impotence of the respondent; or

(b) a marriage  is in  contravention of the conditions specified in sec. 5(ii) (marriage  without valid consent); or

 (c) the consent of  the guardian,  where required,  under sec. 5 was obtained by  force or  fraud; or  (d) the respondent was, at the time  of the  marriage was pregnant by some person other than the petitioner.

Section  13(1) enumerates  the grounds for the dissolution of    a marriage  on the  petition  of  a husband  or  wife.  It provides  that a  marriage  may  be dissolved by a decree of divorce if the other party-

     "(i) has, after  the solemnization of the marriage, had                  voluntary s*xual intercourse with any person other   than his or her spouse, or

     (i-a)has, after  the  solemnization  of  the  marriage, treated the petitioner with cruelty, or

     (i-b)has  deserted  the  petitioner  for  a  continuous  period of  not less  than  two  years          immediately preceding the presentation of the petition, or

     (ii) has  ceased to  be Hindu  by conversion to another  religion, or

     (iii)has been  incurably of  unsound mind, or has been suffering  continuously   or intermittently from mental disorder  of such  a kind  and to  such  an extent that 709 the petitioner  cannot reasonably  be expected  to  live with the respondent.

      (EXPLANATION) omitted for the present purpose)

     (iv) has, been  suffering from a virulent end incurable form of leprosy, or

     (v)  has been  suffering from  venereal  disease  in  a communicable form, or

     (vi) has renounced the world by entering any religious order, or

     (vii)has not  been heard of as being alive for a period of seven  years or more by these persons who would naturally have  heard of  it, had  that party been  alive."

      (EXPLANATION omitted for the present purpose)

Section 13 (1-A) provides-

     "(i) that there  has been no resumption of cohabitation as between  the parties  to  the  marriage  for  a period of  one year  or upwards after passing of a decree for  judicial separation in a proceeding to          which they were parties, or

     (ii) that there  has been no restitution of  conjugal rights as  between the parties to the marriage for   a period  of one year or upwards after the passing of the  decree for  restitution of conjugal rights  in a proceeding to which they were parties."

Section 13 (2) provides-

     "(2) A  wife  may also  present  a  petition  for                the dissolution of her marriage by a decree of divorce     on the ground-710

     (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 petitioner,            or Provided that  in either case the other wife is alive  at       the  time  of  presentation  of  the              petition, or

     (ii) that the  husband has,  since the solemnization of the marriage, been  guilty  of  rape,  sodomy  or                  bestiality, or

     (iii)that in  a suit  under section  18  of  the  Hindu Adoptions and Maintenance  Act,  1956,  or  in  a         proceeding  under  section  125  of  the  Code  of Criminal   Procedure, 1973 (or under the      corresponding section 488 of the Code of Criminal Procedure, 1898),  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, or

     (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."

Section 13-A  provides that on a petition for dissolution of marriage by  a decree  of divorce,  except in  so far as the petition is  founded on the grounds mentioned in sec. 13 (i)(ii) (vi)  and (vii), the court may, if it considers it just so to  do, having  regard to  the circumstances of the case,pass a decree for judicial separation.

Section 13-B further provides that  a petition  for dissolution  of marriage by a decree of  divorce may be presented to the court by both the parties to  the marriage  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 agreed that the marriage 711 should be dissolved. If the provisions of the Hindu Marriage Act are        compared with                the provisions of the Indian Divorce Act, it  will be  seen that  apart from  the total  lack  of uniformity  of grounds  on  which  decrees  of nullity  of marriage, divorce  or judicial separation may be obtained under the  two Acts,  the  Hindu  Marriage  Act contains  a

Special provision for a joint application by the husband and wife for  the grant of a decree of divorce by mutual consent whereas  the   Indian  Divorce  Act  contains no similar provision. Another very important difference between the two Acts is  that under  the Hindu Marriage Act,  a decree for judicial separation  may be  followed by  a decree  for the dissolution of                marriage on the lapse of one year or upwards from the  date of  the passing       of a  decree for judicial if meanwhile there  has been  no  resumption  of  cohabitation.

There is no corresponding provision under the Indian Divorce Act and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period of time.  We may also notice that irretrievable break down  of marriage is yet no ground for dissolution of marriage under the Hindu  Marriage  Act  also,      though                the principle appears  to have  been recognised in sec. 13 (1-A) and sec. 13(B).

     We may now have a look at the provisions of the Special Marriage  Act,  1954  which   applies only   to  marriages solemnized under  that Act.  Sec. 23  of the Act enables the husband or  the wife  to present  a  petition  for  judicial separation-

(a) On any of the grounds specified in sub-section (1) and sub-section (1-A) of section 27 on which a

Petition for divorce might have been presented; or

(b) On the ground   of failure   to comply with a  decree for restitution of conjugal rights.  Section 24 declares that a marriage may    be declared nullity if 

          (i)  any  of  the conditions specified  in clauses  (a), (b),  (c) and  (d) of section 4 has not been fulfilled; or

          (ii) the respondent was impotent at  the time of the marriage and at the time of the institution of the suit.  We may notice here         that sec.  4 clauses (a),  (b), (c),  (d) and  (e) provide  that  neither

party has  been subject to recurrent attacks of insanity or epilepsy, that               the male  has completed              21 years of age and the female  18 years  of age  and that the parties  are not within the  degrees  of  prohibited  marriage.

 Section  25 declares that  a marriage shall voidable and may be annulled by a decree of nullity if,-

     "(i) the marriage has not been consummated owing to the 712  wilful refusal of the respondent to consummate the marriage; or

     (ii) the respondent  was at  the time  of the  marriage pregnant by some person other than the petitioner;  or

     (iii)the consent  of either  party to  the marriage was obtained by  coercion or  fraud, as defined in the   Indian Contract Act, 1872."

                  (The provisos   have been  omitted as  they are not  necessary for the purposes of this case)

Section 27  enables either the husband or the wife to seek a decree of divorce on the ground that the respondent-

     "(a) has, after  the solemnization of the marriage, had  voluntary s*xual intercourse with any person other  than his or her spouse; or

     (b)  has  since   the  solemnization  of  the  marriage treated the  petitioner with two years immediately  preceding the presentation of the petition; or

     (c)  is undergoing a sentence of imprisonment for seven  years or  more for  an offence  as defined  in the  Indian Penal Code;

     (d)  has  since   the  solemnization  of  the  marriage treated the petitioner with cruelty; or

     (e)  has been  incurably of  unsound mind, or has been  suffering  continuously   or     intermittently    from  mental disorder  of such  a kind  and to  such  an extent that  the petitioner  cannot reasonably  be expected to live with the respondent.    (Explanation omitted as it is not necessary.)

     (f)  has been  suffering from  venereal  disease  in  a  communicable form; or 713

     (g)  has been  suffering from  leprosy, the disease not  having been contracted from the petitioner; or

     (h)  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 has been alive."

                       (Explanation omitted as it is not necessary)

Section 27  (1A) enables  a wife  to present  a petition for divorce on  the              ground                that  her  husband  has  since  the marriage been  guilty of rape, sodomy or bestiality, or that an order  for maintenance  has been made against the husband and that  cohabitation has  not been resumed for one year or

upwards after  the making  of the order. Sec. 27 (2) further provides that  a decree for divorce may be presented on 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  judicial separation. Sec.  28 provides for the passing of a decree of divorce on  the presentation  of  a  petition  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 actually agreed that  the marriage  should be  dissolved. It will be seen that  the Special Marriage Act like the Hindu Marriage Act contains provisions for a decree for judicial separation being followed up by  a decree of divorce if there has been no resumption  of cohabitation for a  year or more and also for a  decree of  divorce by  mutual consent. Here again, it will be  seen that the principle of irretrievable break down of marriage  seems to  be accepted  on principle, but is not specifically made a ground of divorce.

     Under the Parsi Marriage and Divorce Act, 1936, section 30 provides  that a  marriage may be declared to be null and void if  consummation of  a marriage  is from natural causes impossible. Sec.  31  provides for  the  dissolution  of  a marriage if  a husband or wife has continuously been absent for a  period of  seven years  and has      not been heard of as being alive  within that  time. Sec.32 provides grounds for divorce:

     "(a) that the  marriage has not been consummated within  one year  after its  solemnization  owing  to              the wilful refusal of the defendant to consummate it; 714

     (b)  that the defendant at the time of the marriage was of unsound  mind and              has been habitually so up to the date of the suit; (Proviso has been omitted)

     (c)  that the  defendant was  at the  time of  marriage pregnant by  some person other than the plaintiff; (Proviso has been omitted)

     (d)  that  the   defendant has   since  the   marriage committed adultery  or fornication  or  bigamy  or   rape or an unnatural offence;  (Proviso has been omitted)

     (e)  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; (The proviso has been omitted)

     (f)  that the  defendant is  undergoing a sentence  of  imprisonment for  seven  years  or  more  for  an   offence as defined in the Indian Penal Code;  (The proviso has been omitted)

     (g)  that the  defendant the deserted the plaintiff for  at least three years;

     (h)  that a decree or order for judicial separation has  been passed against the defendant, or an order has  been passed  against the defendant by a Magistrate  awarding separate  maintenance to  the  plaintiff,  and the  parties have                not had marital intercourse  for three  years or  more  since  such  decree  or   order;

     (i)  that the  defendant has  failed to  comply with  a  decree for  restitution of  conjugal rights  for a      year or more; and 715

     (j)  that the defendant has ceased to be a Parsi."   (Proviso has been omitted)

Section 34  provides for  judicial separation  on any of the grounds on  which divorce  could be sought; or on the ground that the defendant has been guilty of such cruelty to him or her or to her      children or has used such personal violence, or has behaved in such a way as to render it in the judgment of the      court improper to compel him or her to live with the defendant. It  will be noticed here  that under  the  Parsi Marriage  and  Divorce Act   also,  mutual   consent  and irretrievable break  down of  marriage are  not   grounds  of divorce though a decree  for  judicial  separation  may  be followed by  a decree of divorce if the parties have not had marital intercourse  for three             years  or  more  since such decree or order.

     Under the Mohammedan Law, a Muslim husband may divorce his wife  by the  pronouncement of  talaq. A Muslim wife may after the  passing of  the dissolution of Muslim  Marriages Act, 1939,  obtain a  decree for a dissolution of a marriage on one of the following grounds:

     "(i) that the  whereabouts of the husband have not been  known for a period of four years;

      (ii) that the  husband has  neglected or  has failed to provide for  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;

     (iv) that the  husband has  failed to  perform, without  reasonable cause,  his martial  obligations for  a   period of three years;

     (v)  that the  husband was impotent at the time of the marriage and continues to be so;

     (vi) that the  husband has  been insane for a period of two years  or is  suffering from  leprosy  or  a      virulent venereal disease;

     (vii)that she,  having been  given in  marriage by  her father 716  or other  guardian before  she attained the age of fifteen  years,  repudiated  the  marriage  before  attaining the age of eighteen years

                  (Proviso has been omitted as it is not necessary)

     (viii)that the  husband treats her with cruelty that is  to say-

                  (a)  habitually assaults  her or  makes  her life miserable by  cruelty of conduct even if such                conduct does  not  amount  to  physical               ill-treatment, or

                  (b)  associates with women of evil repute or leads an infamous life, or

                (c)  attempts to  force her  to  lead  an  immoral   life, or

                  (d)  disposes of  her property  or  prevents  her exercising her legal rights over it, or

                  (e)  obstructs  her in  the observance  of her religious profession or practice, or

                  (f)  if he has more wives than one, does not treat her  equitably              in   accordance with the                       injunctions of the Quran;

     (ix) on any  other ground which is recognized as valid  for the  dissolution of  marriages  under  Muslim   Law." (The  proviso has  been omitted as it is not  necessary in the present case).

We may add that  under strict Hanafi Law,  there  was  no provision  enabling  a  Muslim women  to  obtain  a  decree dissolving her    marriage on  the failure  of the  husband to maintain her  or on his deserting her or maltreating her and it  was   the  absence  of  such   a  provision   entailing 'inspeakable misery  in innumerable  Muslim women'  that was responsible for  the dissolution  of the  Muslims  Marriages Act, 1939.  (See Statements  of Objects  and Reasons of that Act). If  the legislature  could so alter the Hanafi Law, we fail to understand the hullaballoo about the recent judgment of this court in the case of 717

Mohd. Ahmed  Khan v. Shah Bano Begum & Ors. Interpreting the provisions of  sec. 125               of the   Criminal Procedure Code and the Muslim  Law. it is also necessary to add that Mohammedan Law provides  for a  decree for  divorce known as Khula and mubara' at by agreement of parties.

     It is  thus seen  that the  law  relating to  judicial separation, divorce and nullity of marriage is far, far from uniform. Surely  the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people  irrespective of religion or caste. It appears to be  necessary  to  introduce  irretrievable  break  down  of marriage and  mutual consent  as grounds  of divorce  in all cases. The case before us is an illustration of a case where the parties  are bound together by  a marital tie which is better untied. There is no point or purpose to be served by the continuance    of a marriage which  has so completely and signally broken  down. We suggest that the time has come for the intervention  of the  legislature in  these                matters  to provide for  a uniform code of  marriage and divorce and to provide by  law for  a way  out of the unhappy situations in which couples  like the   present have find themselves in. We direct that  a copy  of this  order may  be forwarded to the Ministry of Law and Justice for such action as they may deem fit totake.  In the                meanwhile, let  notice  go to     the respondents.

A.P.J.

718

1 Like

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Start a New Discussion Unreplied Threads


Popular Discussion


view more »




Post a Suggestion for LCI Team
Post a Legal Query