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Voltaire quote that “Divorce is an institution only a few weeks later in origin than marriage.” All major religions have their own laws for divorce, which govern divorces within their own community, and there are regulations regarding divorce in interfaith 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. The inter-community marriages, civil marriages, and divorces are governed by the Special Marriage Act, 1954.
Under all the Indian Personal laws, the dissolution of marriage is based on the guilt or fault theory of divorce. Divorce is only under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, the Parsi Marriage and Divorce Act, 1936. Under the acts, the divorce by mutual consent and on the basis of irretrievable breakdown of the marriage is also recognized. Under Muslim community law, the husband as the right to unilateral divorce without giving any reason. In order, to make the law more unbiased 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 an endless field so we 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 looks 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 divorce.
What are the common fault grounds for divorce available under the various Indian personal laws? What are the points of difference between the various matrimonial statutes as far as fault grounds for divorce are concerned?
While there are some elements of similarity between the different personal laws, there also exist points of difference in their approach to divorce. For eg, under Hindu law, marriage is a sacrament, traditionally and divorce is not an acceptable practice. However, since the introduction of the Hindu Marriage Act, 1955, the 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 is recognized under section 13 (1-A) of the Act. Divorce by mutual consent is incorporated under section 13-B of the Act. Divorce by custom is recognized by section 29 (3) of the Act.
Now, in Muslim law, the husband is given the benefit of unilateral divorce without giving any reason, while fault grounds for the wife have to be statutorily defined. Also, 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 the difference between the various matrimonial statutes.
Under the Hindu Marriage Act, 1955, Special Marriage Act, 1954, Indian Divorce Act, 1869, the Parsi Marriage and Divorce Act, 1936 Adultery is considered as a ground of divorce. Whereas according to the dissolution of the 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 a disgraceful life is a ground for divorce, though it amounts to cruelty under the Act. In Parsi law, notably, 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 the ground of either party’s fault.
Under Section 13(1)(ib) of the Hindu Marriage Act, 1955, Section 27(1)(b) of the Special Marriage Act, 1954, and the Section 32(g) of the Parsi Marriage and Divorce Act, 1936 the desertion is given as a ground for the divorce as well as judicial dissolution. 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, without the consent of or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.” However, desertion should be at least two years’ span under the Hindu Marriage Act, 1955, Special Marriage Act, 1954, and the Indian Divorce Act, 1869. While desertion 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 the spouse.
But in the case of the wife’s petition for divorce, the 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 dissolution for either spouse. Under the Dissolution of Muslim Marriages Act, 1939, the wife can file for divorce on the ground that her husband has ignored her or has failed to provide for maintenance for a period of two years. The neglect may be willful 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.
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