DISSOLUTION OF MARRIAGE

ABSTRACT

The study focused on revealing the different grounds for the dissolution of marriage under different religious institutions. The nature of marriage is viewed differently according to different personal laws. There was long sought confusion about the nature of marriage whether it was a sacrament or a contract. The reasoning has been provided to a convincing extent. The nature of it to be a sacrament has led to it being indissoluble and holy. By evolution of the society to accept all societal changes, the concept of divorce made its footmark. No fault theory represented the true form of dissolution of marriage with many other grounds accompanying its effect of separation of the couple only on their pursual and willingness. Marriage was at different postures in different civilizations and at different times. As the marriage evolved, so does its dissolution from separation by themselves, with the involvement of some other religious persons, to the creation of courts, and their procedures, to the creation and recognition of fault grounds of divorce. No fault theory of divorce, which includes the divorce by mutual consent is an easier process than that which involves one party accusing another of any fault of marital dissolution. The recognition of the grounds for divorce made the court proceedings easier to provide valuable justice without delay of time. This has also made it difficult by restricting the grounds to the limited to the legislation. The difference between dissolution and divorce has been provided and the reason for the dissolution being preferred over divorce proceedings. Different grounds for divorce and dissolution have been analyzed to seek the reasoning for each. The ultimate aim is to analyze the grounds prevalent for the dissolution of marriage and for divorce.

KEYWORDS

Dissolution, Divorce, Marriage, Religion, Society, Grounds

INTRODUCTION

Marriage is the social institution where men and women live together with specific values and behaviors[1]. The evolution of marriage over time projects the marriage’s aim to produce seeds of their life, to track down their life. Over time, it has led to the creation of responsibility and unity in the minds of those contributing to living together. Marriage upholds companionship and has become an indispensable part of every person’s life. Marriage is defined by law under various circumstances and by different authors. The distinct definitions result from different perspectives of the authors and scholars.

In the words of H.T. Mazumdar, “Marriage is a socially sanctioned union for a male and female to establish (a) household (b) sexual relation (c) procreation and (d) care of offspring.[2]

In the case of Shobha Rani v. Madhukar Reddy[3], the court has defined marriage. It observed marriage as a crucial process with legal implications. It was a protector of the child’s rights. Marriage was ascertained as a union that illustrated cultural values and ideologies and safeguarded these values.

For marriage to be a sacrament, the court observed three factors; it is a permanent union stating that the husband and wife would remain together even after their death, an eternal union which can’t be broken, and a holy union implying the necessity of ceremonies. The establishment of codified legislation has made marriage witness the origins of a contract. The various provisions of the legislation provide the essential conditions for a marriage to be the essentials of a contract, for example. According to Section 12 of the Hindu Marriage Act, of 1955, the absence of the consent of the parties to the marriage declares marriage void[4].

Under Muslim law, Marriage is referred to as Nikah which means the holy union of sexes. Marriage or Nikah among Muslims is a “solemn Pact” or “Mithaq-e-ghadid” between a man and a woman, soliciting each other life companionship which in law takes the form of a contract[5].

Parsi marriage is regarded as a contract but also involves the participation of religious ceremonies. Christian marriage is regarded as a contract solemnized by the Ministry of Religion according to the Christian Marriage Act, of 1872. Marriage is considered both a sacrament and a contract. Marriage to be considered a sacrament must be permanent and indissoluble[6].

Marriage was considered with the notion of indissolubility, where it was seen as continual which exists after death, it is eternal. This had now been broken down by the introduction of proceedings such as judicial separation, declaration of nullity of marriage, breakdown of marriage, divorce, etc., which ultimately resulted in the termination of the marital union. The dissolution of marriage is slightly differentiated from the divorce proceedings[7]. It can be equated to Divorce by Mutual consent, where the proceedings are a result of mutual agreement and joint petitioning. Though similar, dissolution being mutual, a hundred no-fault grounds largely is an easier process with the exclusion of unnecessary expenses. Particularly, the no-fault theory of divorce is based on the evolution of the concept of dissolution of marriage.

OBJECTIVES

To analyze the different theories under divorce to understand which would contribute towards the dissolution of marriage.
To understand the difference between divorce and dissolution of marriage.
To understand the grounds under which the dissolution of marriage and divorce are instigated.
To analyze the importance of dissolution of marriage over divorce and to find why it is prioritized.

THEORIES OF DIVORCE

Marriage was at different postures in different civilizations and at different times. At the first juncture, it was private and without any procedural aspect dedicated to marriage or divorce. Christianity introduced the concept of marriage as an indissoluble union. The marriage was dissolved by the Acts of Parliament before 1857[8]. Then, the Matrimonial Causes Act was introduced to involve divorce with recognition of adultery as the only ground for divorce. Marriage was protected by the law and its dissolution was approved only when any one of the parties to the marriage is found guilty in the relationship. The different circumstances for providing divorce resulted in the formation of theories about divorce.

FAULT THEORY OF DIVORCE

Divorce was seen as a method by which the punishment is provided to the guilty spouse who is not worthy to live together or to be part of the relationship. It was termed the guilt theory or the offense theory to punish the offender or the guilt. Matrimonial offenses were created, such that the person who is guilty of the offenses is incapable of getting a divorce. A divorce can be provided only when the innocent party seeks it. For this theory to operate, one party should be guilty and the other should be innocent. If both are guilty of the commission of any matrimonial offense, then the divorce would not be granted. For example, if one party is guilty of adultery and the other is a partner in it, then divorce would not be granted to them. This is referred to as the doctrine of recrimination,

The requirement of an innocent party to seek divorce led to the creation of bars to matrimonial relief; which could be discretionary bars or absolute bars. Absolute bars include connivance, collusion, condonation, and acquiescence[9]. Discretionary bars include the petitioner’s adultery, cruelty, and unreasonable delay. When insanity was introduced as a ground for divorce since an insane person could not be referred to as guilty, the guilty theory was renamed as the faulty theory.

Fault grounds, which were commonly recognized by law are adultery, cruelty, desertion, insanity, venereal disease, conversion, and renunciation of the world. However, different personal laws recognize different grounds. When a person is at a specified fault against him, the marriage can be dissolved. This fault theory was the only recognized theory by law in the earlier stages, but now this has included both divorce by consent and the irretrievable breakdown of marriage.

CONSENT THEORY OF DIVORCE

The consent theory of divorce is what results in the dissolution n of the marriage in most cases. The basic foundation of this theory is the view of marriage as a contract that is entered into by the parties to the marriage by their mutual consent. Just as the marriage is solemnized by the consent of the parties, according to this theory, it could also be dissolved by the consent of both parties. In these cases, the petition is moved forward with the cojoining consent of the parties. No one is at fault in this theory of divorce. The pioneers of this theory state that the freedom to dissolve the marriage reduces the number of unhappy couples to happy individuals. The main criticisms against the theory are such that, this makes getting a divorce too easy and too difficult. The easy availability of divorce leads to the creation of hasty families at the failure to recognize the true happiness of existing as families over the small fights and misunderstandings. Every marriage is an experiment, whose viability could be witnessed only at the prone of time. Every personal law recognizes the consent theory of divorce, but the procedures had been too stringent, to meet up with the criticisms.

It is recognized by the Hindu Marriage Act, of 1955 under Section 13-B, the Special Marriage Act of 1954 under Section 28, the Parsi Marriage and Divorce Act, of 1936 under 32-B, the Divorce Act of 1869 under Section 10-A, and by Muslim in forms of Khula and Mubbarat.

BREAKDOWN THEORY OF DIVORCE

In the case of Yousuf v. Soweamma[10], the learned judge held that “When there is no rose which has no thrones but if what you hold is all thorn and no rose, better throw it away.”

In the case of Masarati v. Masarati[11], both parties were guilty of adultery, and the Court of Appeal held that the key factor of the divorce petition was the breakdown of marriage. No social or public interest could serve to protect the marriage that has been irretrievably broken down to compel the spouses to live together. According to this theory of divorce, divorce is the result of the acceptance of the factual situation.

There have been three versions of the irretrievable breakdown of marriage, the marriage is broken down when it is declared to be dissolved according to the court, when the criterion laid down by any legislation for the breakdown of the marriage is satisfied, for example, according to the Divorce Law Reforms Act, 1973, parties who have lived separately for two years can instigate a divorce petition. This living separately would be considered as a factor for the irretrievable breakdown of marriage. The court has the utmost consideration for the reconciliation of the parties and this would be opposed when the dissolution would lead to financial scarcity for any one of the parties to the marriage. The third version is that the suit for divorce can be filed when there exists a non-resumption of cohabitation after a decree for judicial separation has been provided, or non-compliance with the decree of restitution of conjugal rights.[12] The third version has been made an inclusion in the Hindu Marriage Act of 1955 under Section 13(1-A) and in the Special Marriage Act of 1954 under Section 27(2).

GROUNDS FOR DISSOLUTION OF MARRIAGE

A marriage could be declared void by a decree of nullity. A void marriage is a marriage that was never in existence. The grounds for void marriage under the Hindu Marriage Act of 1955 are the existence of a living spouse, a sapinda relationship, or the existence of prohibited degrees of relationship between the parties unless there exists a custom to that effect. The provisions of the Special Marriage are similar but include the inconsistency in the age of the minor to be concerned for void marriage. Muslim marriage is void under the violation of the conditions of consanguinity, affinity, and fosterage. An irregular marriage in a Sunni school is void under the Shia school. Section 19 of the Divorce Act of 1869 provides the grounds for the nullity of marriage under Christian law. Violation of Section 3 of the Parsi Marriage and Divorce Act, of 1936, provides the grounds for the marriage to be declared void under Parsi Law.

A voidable marriage is a marriage that can declared void or valid by the challenge of any one of the parties to the marriage. The grounds for the passage of the decree of annulment are provided under Section 12 of the Hindu Marriage Act, of 1955, under Section 24 of the Special Marriage Act, of 1954, whereas the Parsi and Christian law doesn’t recognize the voidable marriage. Muslim recognizes voidable marriage in the form of irregular marriage, with different conditions for Sunni and Shia schools.

GROUNDS FOR DIVORCE PETITION AND THE DISSOLUTION OF MARRIAGE

According to Section 13(1) of the Hindu Marriage Act, of 1955, the recognized grounds for the marriage to be dissolved by a decree of divorce, where the husband or wife can present a petition are; adultery, cruelty, desertion, conversion to other religion, incurable unsoundness of mind, suffering from a venereal disease, renunciation, presumption of death for more than a period of seven years. As per Section 27 of the Special Marriage Act, of 1954, the grounds are similar, but exclude the ground of conversion and include the ground of imprisonment of the partner for seven years or more as under the Indian Penal Code. Additional grounds provided under the section include non-compliance with the order for restitution of conjugal rights and no resumption of cohabitation for one year or more.

As per Section 10 of the Divorce Act, of 1869, grounds for dissolution of marriage include adultery, conversion to another religion, incurable unsoundness of mind, suffering from a venereal disease, presumption of death for more than a period of seven years, wilful refusal for consummation of marriage, failure to comply with the petition of restitution of conjugal rights, desertion, cruelty. As per the Parsi Marriage and Divorce Act, of 1936, grounds for divorce include non-consummation of marriage for one year, defendant being unsound, defendant pregnant at the time of marriage by any other person, commission of adultery, bigamy, rape, cause of grievous hurt to the plaintiff, defendant undergoing imprisonment for seven years or more, desertion, conversion to other religion.

Special grounds for divorce have been provided to the wife for the dissolution of the marriage, such as bigamy by the husband, husband guilty of rape, sodomy, bestiality, repudiation of marriage by the wife which was solemnized when she was a minor according to the Hindu law. Similar grounds have also been recognized by the Special Marriage Act, of 1954 and the Divorce Act, of 1869.

Without the intervention of the court, there exists divorce deriving its validity from the customary laws. Muslim law has the form of a unilateral divorce called Talak which is pronounced by the husband for dissolution of marriage. There exist different types of divorce such as express talk, implied talk, and delegated talk. Customary law provides the wife with no right to divorce. By the Dissolution of Muslim Marriage Act, of 1939, the grounds for the wife for dissolution of marriage are provided, such as presumption of death for four years, non-maintenance of the wife, husband’s imprisonment for seven years or more, husband’s insanity and impotency, non-performance of marital obligations, repudiation of marriage by the husband and husband’s cruelty.

ADULTERY: Adultery refers to the sexual intercourse between a married person and any other person rather than their spouse with the consent to the act of the persons involved. In the case of Subramma v. Saraswati[13], the court held that when some person unrelated is found in bed after midnight with a young wife, without possible explanations would be expected to be committing adultery.

CRUELTY: Cruelty has no such definite list of acts to be named as cruel acts. It is a wide list that includes acts of such nature that vary according to the circumstances of the case. An act is termed to be Cruelty if the intention of the act is such that to cause suffering to the other person. In the case of Russel v. Russel[14], Cruelty has been defined as, “a conduct of such a character as to have caused danger to life or health, bodily or mental, gives rise to reasonable apprehension of such danger. In the case of Shakuntala v. Om Prakash[15], the wife threatened to kill herself by committing suicide, this was observed by the court to amount to cruelty towards the husband.

DESERTION: Wilful repudiation of the obligations to the marriage by any one party to the marriage is termed desertion. The essentials of desertion are such that, the act of desertion to do it, without the consent of the other party without a reasonable cause for a statutory period exceeding two years. Desertion is the withdrawal from a state of things. In the case of Indira v. Shellendra[16], the wife remained at her parents’ house to complete her studies, this was found to be a reasonable cause for living separately, and the husband wasn’t entitled to desertion on such grounds.

INSANITY: Insanity refers to the condition where the person is suffering from a continuous mental disorder that is noncurable. It should be of such a nature, where partner is unable to live with that person. This has been held in the case of Joginder v. Sutji[17].

LEPROSY & VENEREAL DISEASES: Leprosy, which refers to a disease transmitted by bacteria has been accepted to be a group for divorce under most personal laws. Venereal diseases are diseases mostly communicable from one person to another. In the case of Mr. X v. Hospital Z[18], the husband was affected by HIV+, and the wife was granted a divorce to that effect. Persons suffering from these diseases are eligible to be provided with an injunction against entering into marriage.

CONVERSION/APOSTASY: Conversion is grounded under Hindu law, Muslim law, and Parsi Law. The requirements are such the defendant ceases to be a Hindu or has converted to any other religion. As the definition of who a Hindu is involves, the Sikhs, Jainas, and Buddhists, conversion to this faith does not necessarily amount to be qualified as a ground for divorce.

Some other grounds of divorce are, when the partner is presumed to be dead, that is the existence of the person is unknown for more than seven years. The purpose of this ground is to allow the partner to remarry in the absence of the other, Imprisonment of one for more than seven years, renunciation for entering into religious order is considered as ground in Hindu law, and failure to oblige with the marital duties are also concerned as grounds for divorce. Certain other grounds for the invocation by specific groups are also provided by the legislation.

DIVORCE BY MUTUAL CONSENT

The prospective ground under the fault theory of divorce is the divorce by mutual consent. This has been recognized by all the personal laws. It is recognized under Section 13-B of the Hindu Marriage Act, 1955; Section 28 of the Special Marriage Act, 1954; Section 32-B of the Parsi Marriage and Divorce Act, 1988 and Section 10-A of the Divorce Act, 2001.

The provision mentioned the requirements to invoke divorce on the grounds of mutual consent are; they should have lived together for one year, there should be no possibility for them to live together again, and the petition should be moved mutually. The second motion refers to the movement of the petition before the courts of law after six months, with no change in the decision of separation.

In the case of Samistha v. Om Prakash[19], living together meant not living in the same house but as husband and wife. There should be an irretrievable breakdown of their marriage. A ground of divorce is eligible to be converted to be based on the ground of mutual consent. In the case of Akhil Kumar Jain v. Maya Jain[20], the court held that mutual consent for divorce should persist till the final decree for divorce is passed.

The Muslim law allows for divorce on the grounds of mutual consent, in the forms of their traditional Khul and Mubaraat, where Khul or Khula is the act of the wife releasing herself from the tie of marriage by surrendering her property. Mubaraat refers to the actual divorce by mutual consent as provided by the codified legislation.

CONCLUSION

The solemnization of marriage, although considered a holy union, has turned into an ultimate concern of the mutual consent of the parties to live. Rather than holding two unlike minds together and forcing them to live together without their willingness to do so, providing the dissolution of their marriage and enabling their separation on their consideration, will provide them with happy lives for both. The reasons for the dissolution of marriage might be provided by law or by the customs and traditions of the different religions. The essence of the dissolution of marriage is to maintain the mental peace and happiness of the individuals as they are without the influence of their respective partners. Although the grounds might have varied across the religious faith, their aim serves the same. The dissolution of marriage, although unaccepted at the beginning, now has been viewed as a reformative measure to secure the happiness of individuals.

REFERENCES

Parshav Gandhi, Grounds for Divorce, BLOG IPLEADERS (Feb. 23, 2024) https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/.
PARAS DIWAN, FAMILY LAW, (Allahabad Law Agency, 2018).
BLOG IPLEADERS, https://blog.ipleaders.in/what-are-the-grounds-for-dissolution-of-a-marriage/ (Feb. 23, 2024).
UGCMOOCS, https://ugcmoocs.inflibnet.ac.in/assets/uploads/1/4/60/et/P01_M15200217090902020101.pdf (Feb. 23, 2024).
LEGAL SERVICE INDIA, https://www.legalserviceindia.com/legal/article-6514-the-grounds-for-divorce-in-india.html (Feb. 22, 2024).
https://indiankanoon.org/doc/333661/

[1] Parshav Gandhi, Grounds for Divorce, BLOG IPLEADERS (Feb. 23, 2024) https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/.

[2] UGCMOOCS, https://ugcmoocs.inflibnet.ac.in/assets/uploads/1/4/60/et/P01_M15200217090902020101.pdf

(Feb. 23, 2024).

[3] (1988) 1 SCC 105.

[4] The Hindu Marriage Act, 1955, § 12, No. 25, Acts of Parliament, 1955(India).

[5] PARAS DIWAN, FAMILY LAW, (Allahabad Law Agency, 2018).

[6] BLOG IPLEADERS, https://blog.ipleaders.in/what-are-the-grounds-for-dissolution-of-a-marriage/ (Feb. 23, 2024).

[7] LEGAL SERVICE INDIA, https://www.legalserviceindia.com/legal/article-6514-the-grounds-for-divorce-in-india.html (Feb. 22, 2024).

[8] Id. at 5.

[9] Id at 5.

[10] AIR 1971 Ker 261.

[11] (1969) 1 WR 392.

[12] Id at 5.

[13] (1966) 2 MLJ 263.

[14] (1997) AC 303.

[15] AIR 1981 Del 53.

[16] AIR 1993 MP59.

[17] AIR 1925 P & H 128.

[18] AIR 1999 SC 495.

[19] AIR 1992 SC 1909.

[20] (2009) 10 see 415.

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