This article is written by Jannat, a law student from Chandigarh University, Mohali. The article highlights the concept of divorce, laws on divorce in various personal laws, their development, and significant judgments on divorce, delivered by the courts in India.
Table of Contents
Introduction
Marriage is recognized as a Civil Contract and hence it can be dissolved. The legal process of dissolution of marriage is called divorce. It is different from separation. It gives an end to the legal obligations of spouses towards each other and they can remarry after getting a divorce. Marriage is considered to be a sacred bond, therefore it cannot be considered as an ordinary contract.
In India, marriages are solemnized according to religious ceremonies that are codified by statutory personal laws. Therefore marriages and divorce are governed by the personal laws of the parties. The Hindu Marriage Act, 1955 regulates divorces for Hindus, Jains, Buddhists, Sikhs. Divorces for Muslims are regulated by the Dissolution to Muslim marriage Act, 1939, Christians by the Indian Divorce Act, 1869, and for the Parsis, The Parsi Marriage and Divorce Act, 1936. The Special Marriage Act, 1954 applies to people from all religions to regulate interfaith marriages and was described as an attempt to lay down a uniform territorial law for the whole of India.
Theories of divorce
- Guilt theory
- Consent theory
- Irretrievable breakdown of marriage theory
Guilt theory
Guilt Theory implies a guilty party, which means the commission of a matrimonial offense by the respondent. Matrimonial offenses include: i) adultery ii) cruelty iii) desertion. For the implication of this theory, one party should be innocent and the other should be guilty, if both parties are guilty, divorce shall not be granted.
Consent theory
Free consent is one of the major prerequisites required to enter into a marriage and thus, the idea of this theory is that since the parties are free to enter into marriage, they should also be free to dissolve it. Both the parties have to make joint petitions to the court for a decree of divorce to pass between them.
Irretrievable breakdown of marriage theory
Breakdown of marriage can be defined as a failure in the matrimonial alliance that there is not a single chance left for the revival and there is no rationality for the spouses to live together. There should be a complete absence of emotional attachment between them, their relationship should be so bitter and strained that the best option for the couple is to take divorce.
Grounds of divorce
Adultery
Adultery means sexual intercourse with a person other than the spouse. Adultery is regarded as such a grave sin, that it was earlier seen as a punishable offense. The punishment of adultery may extend up to five years or a fine or both. The definition of adultery is given under Section 497 of Indian Penal Code, 1860. It stated that whoever knowingly indulges in sexual intercourse with a wife of another man without his consent shall be charged with the offense of adultery. The court declared in 2018 that Section 497 of the Indian Penal Code, the adultery law as unconstitutional. Adultery is no longer a crime in India, but it will continue to be a ground for divorce. The Hindu Marriage Act, 1955, Section 13(1) talks about adultery as a ground for divorce.
Cruelty
The Hindu Marriage Act-1955 has given the legal provision for divorce based on cruelty under Section 13(1)(i)(a). There is no exhaustive definition of cruelty. The magnitude of cruelty differs from case to case depending upon the circumstances of the parties and the discretion of the judge. Cruelty can be physical torture or mental torture or any other kind of harassment. The aggrieved person can approach the court with cruelty as reason and claim for divorce. And there are numerous instances where courts held that the intention to be cruel is not an essential element of cruelty as desired under this section.
Desertion
Section 13(1)(b) of the Hindu marriage act, 1955 provides desertion as a ground for divorce. Desertion means the abandonment of one spouse by the other without a meaningful reason and his or her consent and renouncement of marital duties and obligations by the respondent.
Conversion to another religion
Conversion to other religions can also be one of the grounds of divorce, as provided under the Hindu Marriage Act, 1955.
Unsoundness of mind
The unsoundness of mind or lunacy of the respondent is also a ground for the dissolution of marriage as provided under the Hindu Marriage Act, 1955, and the dissolution of Muslim Marriages Act, 1872.
Legislative framework in India
The Hindu Marriage Act, 1955
All India Women’s Conference (AIWC) and other women’s associations waged a sustained campaign in the 1930s to acquire a statutory right of divorce. The Hindu Marriage Act 1955 was a result of this struggle, Hindu women acquired an equal right to divorce as their husbands. It provided for the dissolution of marriage which did not meet the requirement of Section 5 and Section 7 and provided Section 13 to 25 to deal with divorce.
Section 13: Divorce
Section 13A: Alternate relief in divorce proceedings
Section 13B: Divorce by mutual consent
Section 14: No petition for divorce to be presented within one year of marriage
Section 15: Divorced persons when may marry again
The Dissolution of Muslim Marriage Act, 1939
In Islam marriage can be dissolved by:
- By the death of either spouse
- By divorce
Kinds of divorce in Islam
1. By husband
- Talaq
- Talaq-ul-Sunnat
It is a type of revocable talaq. There is a time for the couple to reconcile. The prophet always supported this talaq. It is of further two types:
1. Ahsan
It is considered to be the best kind of divorce, in which the husband makes a single pronouncement of talaq in each consecutive tuhr for three times. A tuhr is the time between 2 menstruation cycles of a woman. It is considered a state of purity. After the third time, the wife observes the period of iddat. If the couple reconciles during iddat the divorce will be revoked, but once the period of Iddat is passed the marriage dissolves
2. Hasan
The husband makes a single pronouncement of talaq in each consecutive tuhr three times. The marriage dissolves after the third pronouncement. There is time to reconcile in the duration between first and second pronouncements, second and third pronouncements. Then the wife has to observe the period of Iddat.
- Talaq-ul-Biddat
It is also known as talaq-ul-bain. This is an irrevocable talaq in which the husband pronounces the three divorces together at the same time. This type of talaq is not recognized by Shias, neither did the prophet support it. It should be given during the period of tuhr or could be given in the written form.
- Ila
If the husband takes a vow in god’s name that he will never touch his wife and follows it for four months, then the marriage dissolves.
- Zihar
If the husband says from now on his wife is like four sisters or mother or any other woman in his prohibited relationship and then doesn’t consummate the marriage for months, the marriage dissolves.
2. By wife
- Talaq-e-tafweez
It is also known as delegated talaq. In it, the wife is given the authority to divorce by her husband in a specific clause of talaqnama. The wife can dissolve the marriage without judicial intervention.
3. By mutual consent
- Khula
The literal means of khula is to untie. It allows a woman to initiate the process of divorce by returning the dower or any other property to her husband as decided by the spouses or the court.
- Mubarat
Both the parties are eager to get rid of each other, any of them can initiate the procedure.
An Act that contains the provisions of Muslim law relating to the dissolution of marriage by women, married under Muslim law.
4. By Judicial Process
- Lian
It is also known as Zina. If a husband accuses his wife of adultery and cannot prove the charges, the wife can approach the court to dissolve the marriage. But if the husband takes back his statement during the proceedings, the marriage would not dissolve.
- Faskh
It means judicial divorce. In India, a woman can file for divorce herein by exercising her right of option of puberty or Khyar-ul-bulugh that is a repudiation of marriage on the attainment of puberty, provided that the marriage has not been consummated under the Dissolution of Marriage Act, 1939.
Section 2 – Grounds for decree for dissolution of marriage
As per Section 2 of the Act, a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, which are:
(i) If the husband is missing for four years or more then the wife can seek divorce by filing a petition in the court but it is mandatory to mention the name and addresses of all such persons who have been the legal heirs of her husband upon his death. Even if the court issues the decree in the favour of the wife, she has to wait for another six months for the decree to become effective.
(ii) If the husband has failed to provide maintenance to his wife for two years or more, then the wife gets entitled to a divorce based on the failure of this ground. A husband must be able to provide the wife with the necessities of life.
(iii) If the husband is sentenced to imprisonment for seven years or more, the wife has the right to dissolve the marriage. But the decree for judicial divorce can be filed only if the sentence of her husband has attained its finality i.e. after the expiry of the date for appeal or dismissal of appeal by the final court.
(iv) That the husband has failed to perform, without reasonable cause, his marital obligations for three years then also divorce can be demanded by the wife. Marital obligations include the discharge of conjugal duties and providing consortium to the wife.
(v) Impotency of the husband. Impotency can be both mental and physical.
The wife has to prove that he was impotent at the time of marriage and continues to be impotent till the filing of the suit. However, the husband can challenge the suit by presenting an application before the court. The court then is bound to give one year to the husband to prove his potency. If the husband succeeds to prove his potency within the said period, then no divorce is passed by the court.
(vi) That the husband has been suffering from insanity for two years or is suffering from venereal disease or sexually transmitted disease in its virulent form.
(vii) She can demand divorce by exercising her right of option of puberty or Khayar-ul-bulugh on the attainment of puberty, on the basis that she has been given in marriage by her father or another guardian before she attained the age of fifteen years. The age for repudiation of marriage is between 15 to 18 years provided that the marriage has not been consummated.
(viii) That the husband has treated her with cruelty, by:
(a) habitually assaulting her or making her life miserable by treating her with cruelty, even if not physical,
(b) associating with women of evil reputation or leading an immoral life,
(c) attempts to force her to lead an immoral life,
(d) disposes of her property or prevents her from exercising her legal rights over it,
(e) obstructs her in the observance of her religious profession or practice, or
(f) treating his wives unequally i.e. favoring one over the other if he has more than one wives
(ix) on any other residual ground which is recognized as valid for the dissolution of marriages under Muslim law. For instance, lian, wherein the husband falsely accuses his wife of infidelity, was considered a sufficient ground for divorce under Muslim law. The same can be invoked under this provision.
The Indian Divorce Act, 1869
The act was introduced by the British to regulate the marriages of Christians in India. Primarily it was meant for British residents. It was based on the Matrimonial Causes Act, 1857. The parent Act kept evolving with the passage of time, cruelty, desertion, and insanity were added as the grounds for divorce, Marriage and adultery became the simpler ground. Later these grounds were adopted by other religions too.
Section 10 – Grounds for dissolution of marriage
Section 10 of the Act states that:
(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent:
(i) has committed adultery or infidelity;
(ii) has ceased to be Christian by conversion to another religion;
(iii) has been incurable of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition;
(iv) has, for not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy;
(v) has, for not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form;
(vi) has not been heard of as being alive for seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive;
(vii) has willfully refused to consummate the marriage and the marriage has not therefore been consummated;
(viii) has failed to comply with a decree for restitution of conjugal rights for two years or upwards after the passing of the decree against the respondent;
(ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or
(x) 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 injurious for the petitioner to live with the respondent.
(2) 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.
Section 10A – Dissolution of marriage by mutual consent
Section 10A of the Act states that:
(1) Subject to the provisions of this Act and the Rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) 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 making such inquiry, as it thinks 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 the decree.
The Parsi Marriage and Divorce Act, 1936
The Parsi Marriage and Divorce Act, 1936 is the first codified matrimonial law of India.
Section 31 to 33 deals with the dissolution of marriage.
The Special Marriage Act, 1954
This Act is a reenactment of a statute enacted during the colonial period, the Special Marriage Act, 1872. The statute was enacted in response to the demand raised by Brahmo Samajis, as a part of their campaign against brahminical rituals and idol worship within the Bengal presidency. They demanded a law enabling registration of a simple, non-ritualistic civil marriage, based on the consent of the parties. The Act was also referred to as their Native Marriage Act of 1872. The Act at a time when Hindu marriage was ritualistic and had unlimited polygamy made marriage contractual and monogamous. The Act also made the age of twelve minimum to get married.
After independence, the government reenacted this law and made it more relevant with time. Therefore it is called the Act of 1954.
There is a misconception about this statute that it could only be used for inter-religion or inter-caste marriages. In reality, this statute could also be used by people from the same religion or same caste. It provides for secular and uniform methods. Marriages performed under personal rituals can also be registered under this act.
Section 27 to 30 of the special marriage act deals with Divorce.
Jews
There is no codified matrimonial law for jews in India. It was suggested that jews should establish Beth Din (Jewish matrimonial council), like in Jerusalem and Baghdad, or codify their law as done by the Parsis. But none took place and legal discourse (judicial interpretation) is the main source for the community in India.
Jurisdiction
Jurisdiction applies to suit filed under Hindu Marriage Act, 1955, the Dissolution of Muslim Marriage Act, 1939, the Indian Divorce Act, 1869, the Parsi Marriage and Divorce Act,1936 and the Special Marriage Act, 1954.
- The suit can be filed at the place where marriage was solemnized,
- The spouses last resided,
- The respondent resides at the time suit is filed,
- If the wife is the petitioner, where she resides at the time suit is filed.
Important case laws
Hindus
N.G. Dastane v. S. Dastane
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Facts of the case
In this case, the appellant Dr. Narayan Ganesh Dastane & the Respondent Sucheta Dastane got married in April 1956. But before finalizing the marriage proposal, the Respondent’s father, B. R. Abhyankar, informed the Appellant that the Respondent had suffered from a ‘bad attack of sunstroke’ and ‘cerebral malaria’. This adversely affected her mental condition for a while from which she has recovered. He did not make any further inquiries. The couple had 2 daughters and lived together until February 1961, and on the day of parting, Respondent was three months pregnant. On February 19, 1962, proceedings were instituted in the Trial Court where the appellant alleged that Respondent is of unsound mind and has treated him with cruelty therefore she is a danger to his life.
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Issue
Whether the act of sexual intercourse amounts to condonation of cruelty.
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Judgment
Condonation means that when the accuser has forgiven or has chosen to ignore an act which they are now legally complaining about. In the above case, the SC held that the spouse led a normal sexual life despite the act of cruelty by the respondent. The purpose to restore and forgive the offending partner to the original status can be fairly inferred because the parties lead an existence of intimacy which represents a normal matrimonial relationship, uninfluenced by the respondent’s conduct. Therefore divorce was not granted to Mr. and Mrs. Dastane.
Naveen Kohli v. Neelu Kohli
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Facts of the case
In this case, the appellant Naveen Kohli & the respondent Neetu Kohli got married on November 20th, 1975 & had three sons. Soon, they started having altercations. The Family Court ordered the cancellation of marriage between both the parties under Section 13 of the Hindu Marriage Act, 1955, and directed the appellant to pay to the respondent Rupees 5 lakhs as her and children’s livelihood allowance. However, this order of the Family Court, of the Kanpur City was overruled by the Division Bench of the Allahabad High Court and the matter was appealed to the Supreme Court.
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Judgment
The Court held that the findings of the High Court were completely unsustainable. The Court agreed with the observations of the family court that the matrimonial bond between both the parties was beyond repair. There was so much hate between them that they used to altercate in the courtroom and make allegations at each other. Therefore it was held by the supreme court of India that the public interest and interest of all concerned lies in the recognition of this fact and to declare defunct de jure what is already defunct de facto meaning when the relationship is beyond restoration and its existence is nil, it is better to officially recognize the fact, for the benefit of all. It was recommended by the court to the government to incorporate an irretrievable breakdown of marriage as a ground for the grant of divorce.
Parveen Mehta v. Indrajit Mehta
What is the meaning and import of the expression ‘cruelty as a matrimonial offense is the core question on the determination of which depends on the result and the fate of this case.
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Facts of the case
In this case, the appellant and respondent got married on December 6, 1985. Respondent alleged that he was not able to consummate their marriage because of a lack of cooperation from the appellant. He also claimed that the appellant was suffering from a mental illness that was not disclosed to him before or even after their marriage. Once when Shri S.K. Jain, a senior officer of the Judicial Service, was discussing the matter with the parties to bring about a settlement between them, the appellant grappled the respondent’s collar and created an awkward situation for him. Again on 30th July 1986, the appellant with some accomplices searched for the respondent in the Court premises at Kaithal and after not finding him there, forcibly entered his house and threatened him. He filed A report about the incident and sent it to his superior officer. Alleging the aforementioned facts and circumstances, the respondent filed the petition in August 1996 seeking dissolution of the marriage on the grounds of cruelty and desertion.
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Judgment
Unlike the case of physical cruelty, it is difficult to ascertain mental cruelty by diametrical evidence. Mental cruelty can be interpreted by studying the facts and the circumstances of a particular case. A feeling of anguish, hatred, disappointment, and frustration in one spouse that is caused by the behavior of the other can be acknowledged by studying the facts and the environment in which the two partners have been living. Therefore it will not be a correct approach to take a particular instance of misbehavior in isolation and then pose the question of whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence of the case under trial and then draw a fair conclusion as to whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other or not. Therefore, the prayer of the respondent for dissolution of the marriage on the ground of cruelty under Section 13(1)(i)(a) of the Act was acceptable and the decree of divorce was passed.
Sureshta Devi v. Om Prakash
It was observed by the honorable Supreme Court, in this case, that the fact that a couple has together presented a petition by mutual consent for divorce suggests the fact that they are not able to live together. Therefore, the parties are not required to establish the fact that they have not been able to live together. In fact, the expression “not able to live together” indicates the concept of the breakdown of marriage, that is there is not a single hope left for any sort of reconciliation. Whereas, it is very important to determine, whether the consent given by both the parties is free and not obtained by the use of any kind of force, coercion, fraud, or undue influence. If one of the parties at any stage says that “I have withdrawn my consent”, or claims “I am not a willing party to the divorce”, the Court will not pass a decree for divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. If the parties have to avail a divorce then the mutual consent must continue till the decree of divorce has been passed.
Amardeep Singh v. Harveen Kaur
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Issue
The issue that arose for consideration in this appeal was whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955, in a suit for passing the decree of divorce based on mutual consent was mandatory or could be relaxed under any exceptional situation.
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Judgment
Courts can use their circumspection in determining the period according to the facts of the case and the situation between spouses, if there is no chance for a peaceful solution to restore cohabitation or any other alternative left, the court may go for an immediate solution, ignoring the provision of section 13B(2).
Muslims
Itwari v. Asghari and Ors
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Issue
The issue involved in this case was whether a second marriage by a husband amounts to cruelty.
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Judgment
Unlike in Hinduism, polygamy is allowed under Islam. A husband is allowed to marry more than one wife, but at a time he cannot have more than four wives and each wife should be given equal affection and respect. In India, polygamy is an institution that is tolerated but not encouraged. The husband does not have any right or power to compel the first wife to share his consortium with another woman under any condition. He may have the legal right to take a second wife even while the first marriage subsists, but if he does so, and then seeks the assistance of the Civil Court to compel the first wife to restore the conjugal relationship with him against her wishes, then she is entitled to raise the question whether the court, as a court of equity, should compel her to submit to cohabitation with such a husband?
In the above-mentioned case, it was held by the court of law that second marriage by the husband amounts to mental cruelty, and therefore conjugal rights shall not be granted to such husband against the will of the wife, and the husband is liable to pay maintenance to the wife.
Abdurahman v. Khairunnessa
How is the expression “does not treat her equitably following the injunctions of the Quran” in Sec. 2(viii)(f) of the Dissolution of Muslim Marriages Act, 1939 to be understood in law?
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Facts of the case
In this case, the first wife filed for divorce under cruelty because the husband did not treat her equitably following the injunctions of the Quran but did not provide substantial evidence for the same.
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Judgment
The court decided the case in favour of the wife by saying that Islamic law doesn’t force a spouse to live with someone without their full consent. Court decides that “It is for her to decide whether she is satisfied that her husband is treating her equitably following the injunctions of the Quran”.
The court also said that the wife has the right not to disclose or reveal the details of how her husband lost interest in her. This was because the husband has a similar right to unilaterally divorce the wife.
Yousuf Rawther v. Sowramma
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Facts of the case
In this case, the wife was 15 years old when she got married to her husband who was twice her age. After marriage, she moved to her husband’s home, where they consummated their marriage, soon the husband left the city for his work and after some time the wife returned to her paternal house. She filed for divorce and claimed that the husband was not able to maintain her for two years. The husband was willing to take her back, but she refused.
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Judgment
The divorce was filed under section 2(ii) and section 2(vii). The court rejected the latter saying that there is no proof that the wife was below 15 and for the fact marriage was consummated. But divorce was granted based on first that the husband was not able to maintain her for 2 years.
Marium v. Mohd. Shamsi Alam
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Facts of the case
In this case, the wife left husband’s place and came back to her parent’s house. The husband went to take her back but she refused, and then the infuriated husband uttered talaq three times in one breath. But later on, realizing his mistake, he revoked the talaq within the period of iddat.
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Judgment
It was held by the court that the word “talaq” was uttered thrice, but because they were said in a single breath they would be interpreted as one single pronouncement. Therefore the talaq was in the “Ahsan ” form which can be revoked during the Iddat . As the husband has expressly revoked the talaq before the iddat period, the marriage has not been dissolved and ergo, still valid and the wife was asked to accompany her husband.
Shamim Ara v. State Of U.P.
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Facts of the case
In this case, the husband (respondent) claimed that he has divorced his wife and the neighbors are the witnesses. The wife went to the court to claim maintenance for her and two sons who were minors at the time. She also raised the validity of divorce as it was pronounced in her absence.
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Issue
The issue in front of the court of law was if divorce is given in the absence of the wife and communicated to her later, and there is no proof to prove the fact that the husband has divorced his wife, would it be considered as a divorce.
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Judgment
The lower court held that divorce was valid, if the husband says so then no proof is required and as the wife was already divorced she was not entitled to maintenance. Although the husband was bound to pay allowance for one minor son as the other became major during the pendency of the suit.
The Supreme Court reversed the order and raised the question of why the woman should always suffer? The court held that as the husband doesn’t have any strong proof to support his claim, their marriage had not dissolved and he was bound to pay maintenance to his wife.
Christians
Lakshmi Sanyal v. Sachit Kumar Dhar
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Facts of the case
In this case, the appellant and the respondent are first cousins. They got sexually involved and the appellant got pregnant. They converted to Roman catholic in January 1960 and their first child was born in August 1960. A second child was born in 1961. The appellant left the home of the respondent in the year 1965 and the action out of which the appeal has arisen was filed in July 1966 on the original site of the High Court. It was alleged by the appellant that the sexual relationship and the conversion took place under duress and that her father had not consented to their marriage and both of them were in a prohibited relationship, therefore the marriage was void.
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Judgement
The High Court expressed the view that in the present case that the consent of the parents was not necessary as required under Section 19 of the Indian Christian Marriage Act, 1872, nor was there any provision in the Indian Divorce Act, 1869 which rendered a marriage null and void on the ground of minority of a party. On the question of the marriage being within the prohibited degree of consanguinity, it was found that since the consanguinity between the parties was of the second degree, it was certainly an impediment in the way of marriage under the Roman Catholic Law. But the impediment could be removed by dispensation which was granted by the competent authorities of the Church. For that reason, the marriage could not be held to be invalid or null and void.
Molly Joseph v. George Sebastian
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Facts of the case
In this case, Molly, after separating from her husband, took an annulment of marriage from the church. She later entered into a second marriage with the respondent, George Sebastian. Later, problems arose in her marriage with the respondent and she was denied her rights. The respondent claimed as she has not obtained a civil divorce from her first husband, her second marriage was invalid and she can’t claim any rights from the respondent.
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Judgment
The court upheld respondents’ plea and said that ecclesiastical tribunals (church courts) have no authority to grant the divorce.
Conclusion
In the pre-independence era, the death of an eleven-year-old girl Phulmoni Dasi as a result of a brutal rape by her 35-year-old husband Hari Mohan Maitee forced the Britishers to intervene in the traditional marriage regimes & pass the Age of Consent Act, 1891. Though spat by many of the conservatives and orthodox people as an evil practice, divorce is an essential element to free women and protect them from harassment & sexual slavery at the hands of oppressive husbands. According to some jurists, the Right to divorce is a part of Article 14, 15 21, 25, namely Equality before the law, Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth, Protection of life and personal liberty, and Freedom of conscience and free profession, practise, and propagation of religion. Divorce has helped women to get out of miserable and painful relationships, helped them to live with dignity and freedom, has raised their standard of living, and given them equal importance as given to men to start afresh.
‘Women’s constitutional claim of equality Liberty and freedom is beyond the formal and textual meanings of the constitution of India. The power of judicial review within the constitutional schemes and the role of the judiciary in testing constitutional aspirations against the real-life situations of women are important components of constitutionalism. It is in this context that some landmark rulings which served to break traditional barriers and secured the rights of women beyond the assurance of formal equality and protected women’s right to life, liberty, and dignity’ – Flavia Agnes, Women Rights Activist and Lawyer.
References
- https://indiankanoon.org/doc/590166/
- https://indiankanoon.org/doc/1458498/
- https://indiankanoon.org/doc/181765931/
- https://indiankanoon.org/doc/122564/
- https://indiankanoon.org/doc/4234/
- https://indiankanoon.org/doc/1833006/
- Law, Justice, and Gender: Family Law and Constitutional Provisions in India -Book by Flavia Agnes
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