INTRODUCTION
“Divorce is an institution only a few weeks later in origin than marriage.” – Voltaire.
All major religions have their own laws, which govern divorces within their own community, and there are regulations regarding divorce in inter-faith marriages. Hindus, including Buddhists, Sikhs and Jains, are governed by the Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939. Civil marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1954.
Under all the Indian Personal laws, dissolution of marriage is based on guilt or fault theory of divorce. It is only under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954 and the Parsi Marriage and Divorce Act, 1936 that divorce by mutual consent and on the basis of irretrievable breakdown of marriage are also recognized. Further, under Muslim law, the husband as the right to unilateral divorce. In order, to make the law more equitable the Dissolution of Muslim Marriages Act, 1939 provides a woman married under Muslim law with the option of seeking divorce on certain fault grounds.
As the field of Personal Law is a vast field so I have restricted the scope of this research paper to the fault ground theory of divorce under Indian personal law. The research paper analyzes the common aspects between the provisions of the various personal law statutes and further look at the legal implications of these.
This research paper will also look at the elements of difference between the various statutes, keeping in mind the feasibility of trying to resolve such differences in order to come up with a single, comprehensive law, at least as regards divorce.
CHAPTER 1 – COMMON FAULT GROUNDS IN ALL PERSONAL LAWS
Indian Family Law comprises of different personal laws which allows the religious and customary beliefs of people of different castes, classes and communities of India to be represented through the law. As regards divorce, each of these personal laws have their own provisions under the respective matrimonial statutes.
Adultery
Adultery may not be classified as a criminal offence in all countries but the matrimonial offence of adultery or the fault ground of adultery is recognized in most of the countries. Even under the Shastric Hindu law, where divorce had not been recognized, adultery was condemned in the most unequivocal terms.
There is no clear definition of the matrimonial offence of adultery. In adultery there must be voluntary or consensual sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex, not being the other’s spouse, during the subsistence of marriage. Thus, intercourse with the former or later wife of a polygamous marriage is not adultery. But if the second marriage is void, then sexual intercourse with the second wife will amount to adultery.
Adultery is an offence against marriage and thus it is necessary to establish that marriage was subsisting during the act of adultery. Also, it follows that unless one willingly consents to the act, there can be no adultery. If the wife can establish that the co-respondent raped her, then the husband would not be entitled to divorce. At present Indian matrimonial statutes recognize one act of adultery is enough to constitute a ground for divorce.
Extra-marital sexual intercourse is an essential element of adultery. However, the extent, to which the intercourse must have progressed, in order to classify as adultery, has not been defined. For example, in the case of Subbaramma v. Saraswathi , it was observed that in some places, particularly in village areas, the unwritten taboos are such as if a stranger is found alone with a young wife, after midnight, in her bedroom in an actual physical juxtaposition, then a court of law may most obviously interpret it as that the two must be committing act of adultery.
An interesting problem faced by the courts is whether the processes of artificial insemination amount to adultery or not. In this context, an important English decision was Maclennan v. Maclennan . In which the wife conceived a child through the process of AID (Artificial Insemination Donor), which she claimed that she had resorted to it with her husband’s consent. The husband’s on the other hand argued that he did not consented to AID and also that AID was adultery in the eyes of law. The Court rejecting the argument that AID amounted to the matrimonial offence of adultery also formulated the following propositions-
for adultery to be committed there must be two parties physically present and engaging in the sexual act at the same time;
to constitute the sexual act, there must be an act of union involving some degree of penetration of the female organ by the male organ;
it is not a necessary concomitant of adultery that the male seed should be deposited in the female ovum; and
The offence of adultery may be proved by:
1. Circumstantial evidence: In Dastane v. Dastane , it has been laid down that desertion, cruelty and adultery and other grounds for divorce need not be proved beyond reasonable doubts. They can be proved by balance of probabilities or the preponderance of probability.
2. Contracting venereal disease: In Jose v. Jose , the Lahore High observed that contracting venereal disease by either spouse from an outside source has always been regarded as a very strong, if not conclusive, evidence of adultery. The charge of communicating venereal disease must have to be specifically pleaded before the court.
3. by evidence of visits to brothels: If husband or wife is found visiting brothels, there is a strong presumption that adultery might have been committed.
4. Confessions and admissions of parties: The value of admissions and confessions vary in the criminal and matrimonial offences of adultery. In the criminal offence, the confession of the accused may be conclusive proof of adultery. But in the matrimonial offence of adultery, the court would be slow to grant divorce or judicial separation merely on the basis of confession or admission of the respondent or co-respondent. It may be that there is collusion between the parties, and the respondent admits his guilt on that account.
Desertion
Desertion refers to rejection by either of the spouse of all the obligations of marriage without any reasonable reason and also without the consent of the spouse. It means a total repudiation of marital obligation.
Desertion may be classified under the following heads :
a) Actual desertion
b) Constructive desertion
c) Wilful neglect: This expression is used under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 and is sometimes considered part of constructive desertion.
The main elements of desertion such as separation (factum deserdendi) and the intention to desert (animus deserdendi) apply to the spouse who is in desertion. To constitute desertion, these two facts must co-exist . As regards the deserted spouse, the elements that need to be considered are:
a) Without any reasonable cause
b) Without the consent of the other party or against his wishes.
Sometimes it becomes difficult to establish whether separation is attributable to the conduct of the respondent when the state of separation exists during the entire statutory period. The Delhi High Court faced this difficulty in Om Wati v. Kishan Chand . In this case, the parties married on 2nd February, 1976 and a female child was born to them which, however, died later. On 22nd May, 1981, the wife applied for divorce on the ground of desertion by the husband and gave the fact that they have been living separately since February 1979. But the Court held that animus deserdendi was not established. It was proved that when the husband was informed of his child’s death, he did not come even to perform the last rites of his child. This clarified that he had broken off all ties with his family.
In Asha Handa v. Baldev Raj Handa case the wife was forced to live separately by her husband’s persistent, harsh and cruel treatment, the court presumed that husband must have had the required animus deserdendi and constructive desertion on husband’s part is assumed to complete as soon as the separation began.
In Tara Chand v. Narain Devi case a petition for judicial separation on the ground of the wife’s separation was filed by the husband. But the arguements of the husband were found to be false. Whereas actually the wife was forced to leave the matrimonial home due to the husband’s misconduct and bad behavior towards her. Moreover, husband never tried to get his wife to return to the matrimonial home and also never tried to convince her father to send her back. Also, he did not send any maintenance allowance to her. The court held that in fact it was the husband who was guilty of matrimonial misconduct as his behavior constituted wilful neglect.
There may be situations where both the parties are in desertion independently of each other’s desertion. This is referred to as mutual desertion. This is a case where in fact both parties are guilty of the commission of the matrimonial offence of desertion, and if we employ “taking advantage of one’s wrong notion” then neither party is entitled to any relief.
In Guru Bachan Kaur v. Preetam Singh case the husband filed for divorce after seven years of alleged desertion and never made efforts to understand the problems of a wife who is also working, whereas on the other hand the wife was willing to live with her husband at her flat in the place of her service. The High Court was of the opinion that there is nothing like mutual desertion and one party has to be guilty.
In the case of Najiman Nissa Begum v. Serajuddin Ahmed Khan , it was established that the husband’s refusal to pay dower or maintenance for over a period of two years amounted to desertion.
But does a wife forfeit her right to maintenance if she has no justifiable reason to live apart from her husband?
In Badrunissa v. Md. Yusuf case the court backed the view that the words “neglect” implied wilful failure and “has failed to provide” imply an omission of duty, and thus if the wife by her own conduct impels the husband not to pay her maintenance, she is not entitled to divorce on the ground of her husband’s failure to maintain her.
When one spouse with the consent of the other leaves the matrimonial home, then the former is not in desertion. And whenever separation is with the other party’s consent, express or implied, free and voluntary, there is no desertion.
An observation that needs to be made about desertion is that until an action is brought, it remains an inchoate offence . It may come to end by any one of the following modes :
a) Resumption of cohabitation
b) Resumption of marital intercourse
c) Offer of reconciliation
d) Supervening agreement to separate
e) Supervening insanity
f) Supervening marital misconduct
Cruelty
Both mental and physical cruelties are included as cruelty in modern times. While physical cruelty is easy to determine, it is difficult to say what mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness, which inflicts pain of such a degree and duration that it adversely affects the health, mental or bodily, of the spouse on whom it is inflicted.
In Savitri Pandey v. Prem Chandra Pandey case it was held that physical cruelty comprises of the acts which endangers the physical health and includes the inflicting of bodily injury. Mental cruelty consists of conduct which causes mental or emotional sufferings. It was in the case of G. V. N. Kameswara Rao v. G. Jabili held that mental cruelty is to be assessed keeping in mind the social status of the parties, their customs and traditions, their educational level and their living environments. Mental cruelty can consist of neglectful and deliberate harassment, false accusation of adultery or unchastity, false charge of impotency, undue familiarity with third person, deprivation of property, drunkenness, false criminal charge by one spouse against the other, reprehensible conduct, refusal to have marital intercourse, refusal to consummate marriage, communication of disease, demand for dowry etc.
A Full Bench of the Bombay High Court in Dr. Kesho Rao v. Nisha , observed that the decisions rendered by the courts and the Supreme Court including that of Dastane v. Dastane, are no longer good law, after the amendment of 1976 of the Hindu Marriage Act, 1955. It further said that “cruelty as a ground for divorce under section 13(1)(ia) of the Hindu Marriage Act, 1955 is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent.”
The key things to be understood regarding cruelty are –
a) Whether the intention is an essential element?
In P.L. Sayal v. Sarla Rani Case the parties who married and had two children, but it turned out to be an unhappy marriage. The wife consulted a fakir who gave her some love-potion to be administered to the husband. She administered the same to the husband which made him seriously ill. The husband had to be admitted to the hospital. After discharging from the hospital, the husband petitioned for judicial separation on the ground of wife’s cruelty. The court granted the decree saying that the husband could not be expected to live in the constant fear that it may happen again and the intention of the wife was not important. The Court did not considered intention to be cruel as an essential element of cruelty as a ground for divorce.
b) Whether act or conduct constituting cruelty is aimed at the petitioner?
The courts are of the view that cruelty should be aimed at the petitioner. In Trimbak Narayan Bhagwat v. Kumudevi Trimbak Bhagwat , the husband lost his mental balance and had to be sent to a mental home. On his release from the home, he stayed at the matrimonial home though he had not regained his mental balance completely. One day, he attempted to strangulate the wife’s brother and the next day, one of his own children. The wife filed for judicial separation on the grounds of cruelty. It was held that in mental cruelty, it was not important whether the act or conduct was aimed at the petitioner or some near and dear ones of the petitioner.
c) Whether the act or conduct constituting cruelty emanates from the respondent?
In India, most couples live in joint families, and the in-laws subject many times wives to ill treatment. In Shyamsunder v. Santadevi , the wife, soon after the marriage was severely ill treated by her in-laws, while the husband stood idly, taking no steps to protect his wife. The court held that the intentional omission to protect his wife amounts to cruelty on the husband’s part.
Insanity
Insanity as a ground of divorce has the following two requirements –
i) The respondent has been incurably of unsound mind
ii) The respondent 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.
In Ajirai Shivprad Mehta v. Bai Vasumati , the Court observed that the test to be applied is whether by reason of his mental condition, the husband is capable of managing himself and the affairs and if not, whether he can hope to be restored to a stage in which he will be able to do, and the test of the capacity is that of a reasonable person. In Bipin Chandra v. Madhuriben , the Gujarat High court propounded the following three propositions:
i) It is for the petitioner to establish unsoundness of mind, i.e., burden of proof is on the petitioner,
ii) The unsoundness of mind should be incurable, and
iii) Respondent cannot be compelled to undergo medical examination though on account of his refusal, an adverse inference may be drawn.
Separate Grounds for Divorce Available to the Wife
There are some grounds for divorce, which are available to only the wife, in some of the Indian matrimonial statutes. Some of these which are common to the various matrimonial statutes are-
Rape: If a person rapes a woman who is not his wife, then he is guilty of rape and his wife can sue for divorce. Mere attempt to rape will not be sufficient and will not be covered under the matrimonial statutes. The burden of proof in such a case, however, is on the wife.
Unnatural offences: This includes offences like sodomy and bestiality. Whether a husband commits sodomy on another female or male, or whether he commits it on his own wife, the ground will be available to the wife. Bestiality is carnal intercourse with an animal. Once it is established, the wife is entitled to divorce.
CHAPTER 2 – ELEMENTS OF DIFFERENCE WITHIN THE PERSONAL LAWS
While there are some elements of similarity between the different personal laws, there also exist points of difference in their approach to divorce. For example, under Hindu law, marriage is a sacrament and traditionally, divorce is not an acceptable practice. However, since the introduction of the Hindu Marriage Act, 1955, divorce of four kinds has been made acceptable under Hindu law-
Divorce on fault grounds, as given in sections 13(1) and 13(2) of the Act.
Divorce on breakdown grounds, recognized under section 13(1-A) of the Act.
Divorce by mutual consent, incorporated under section 13-B of the Act.
Divorce by custom, as recognized by section 29(3) of the Act.
Now, in Muslim law, the husband is given the benefit of unilateral divorce, while fault grounds for the wife have to be statutorily defined. Additionally, Parsi law provides fault grounds for divorce that are available to both spouses.
Hence, in this chapter the research paper looks at the elements of difference between the various matrimonial statutes.
Adultery
Under Hindu Marriage Act, 1955 , Special Marriage Act, 1954, Indian Divorce Act, 1869 and the Parsi Marriage and Divorce Act, 1936 Adultery is considered as a ground of divorce.
Whereas as according to the Dissolution of Muslim Marriages Act, 1939 adultery as such is not a ground for divorce but if the husband is associated with women of evil repute or his leading an infamous life is a ground for divorce, though it amounts to cruelty under the Act. In Parsi law, surprisingly, divorce will not be granted on the ground if the suit for divorce has been filed more than two years after the plaintiff came to know of the fact.
Under Christian law, either husband or wife on a petition may seek for dissolution of marriage on ground of either party’s fault.
Desertion
Under Section 13(1)(ib) of the Hindu Marriage Act, 1955, Section 27(1)(b) of the Special Marriage Act, 1954 and Section 32(g) of the Parsi Marriage and Divorce Act, 1936 desertion is given as a ground for divorce as well as judicial separation. It lay down 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.” The explanation to this section reads – “In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.” However, desertion should be at least two years’ duration under the Hindu Marriage Act, 1955, Special Marriage Act, 1954 and the Indian Divorce Act, 1869 while it should be of at least three years under the Parsi Marriage and Divorce Act, 1936
Under the Indian Divorce Act, 1869 desertion as such is not a ground for divorce for either spouse. But in the case of wife’s petition for divorce, husband’s desertion for a continuous period of two years coupled with his adultery is a ground for divorce. However, two years’ desertion without reasonable cause is a ground for judicial separation for either spouse.
Under the Dissolution of Muslim Marriages Act, 1939, the wife can file for divorce on the ground that her husband has neglected her or has failed to provide for maintenance for a period of two years. The neglect may be wilful or otherwise. The failure to perform marital obligations, without any reasonable cause for a period of three years is also a ground for divorce under Muslim law. In fact, if the provisions are looked at in a wide sense, then a failure of the husband to perform his marital obligations for three years may be seen as amounting to desertion.
The basic marital obligations recognized under Muslim law are –
1. Equal treatment of the wife
2. Maintenance
3. Sexual intercourse
4. Right to separate apartment, or at least a separate room
5. Dower
6. Right to visit and be visited by relatives with no reasonable grounds
Cruelty
The Hindu Marriage Act, 1955 , the Special Marriage Act, 1954 and the Parsi Marriage and Divorce Act, 1936 provides Cruelty is a ground for divorce as well as judicial separation and under the latter, “voluntarily causing grievous hurt” is also a ground for divorce.
Under the Indian Divorce Act, 1869, wife can sue for divorce on the basis on the basis of the husband’s cruelty coupled with such cruelty as without adultery would have entitled her to a divorce under section 10 , while “cruelty” as such is ground for judicial separation under section 22 .
In Swapna Ghose v. Sadanand Ghose , a Special Bench of the Calcutta High Court said that for Christians, desertion and cruelty are not grounds for divorce, while these are for other communities and therefore, the provision is discriminatory. But still, the court declined to hold the provision unconstitutional.
Cruelty has been clearly defined, as a ground for divorce for women married under Muslim law, as when the husband –
a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct is 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 infamous life, or
d) Disposes of her property or prevents her exercising her legal right 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.
TABLE OF CASES
English:
- Gollins v. Gollins, (1963) 2 AllER 966.
- Maclennan v. Maclennan, (1958) SLT 12.
- Price v. Price, (1968) 3 AllER 543.
- Williams v. Williams, (1963) 2 AllER 994.
Indian:
- Ajirai Shivprad Mehta v. Bai Vasumati, AIR 1969 Guj 48.
- Akban Begum v. Zafar Hussain, AIR 1942 Lah 92.
- Asha Handa v. Baldev Raj Handa, AIR 1985 Del 76.
- Badrunissa v. Md. Yusuf, AIR 1944 All 23.
- Bipin Chandra v. Madhuriben, AIR 1963 Guj 250.
- Dastane v. Dastane, AIR 1975 SC 1534.
- Dharm Dev Malik v. Rajrani, AIR 1984 Del 389.
- Dr. Kesho Rao v. Nisha, AIR 1984 Bom 413.
- G. V. N. Kameswara Rao v. G. Jabili, (2002) 2 SCC 296.
- Guru Bachan Kaur v. Preetam Singh, AIR 1998 All 140.
- Jose v. Jose, AIR 1930 Lah 824.
- Md. Ibrahim v. Altafan, (1925) 47 All 243.
- Najiman Nissa Begum v. Serajuddin Ahmed Khan, AIR 1946 Pat 467.
- Om Wati v. Kishan Chand, AIR 1985 Del 43.
- P.L. Sayal v. Sarla Rani, AIR 1961 Punj 125.
- Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591.
- Shyamsunder v. Santadevi, AIR 1962 Ori 50.
- Subbaramma v. Saraswathi, (1966) 2 MLJ 263.
- Swapna Ghose v. Sadanand Ghose, AIR 1979 Cal 1.
- Swarajya Lakshmi v. G.C. Padma Raj, AIR 1974 SC 165.
- Tara Chand v. Narain Devi, AIR 1976 P&H 300.
- Trimbak Narayan Bhagwat v. Kumudevi Trimbak Bhagwat, AIR 1957 Bom 80.
- Venkatame v. Patil, AIR 1963 Mys 118.