Law

Marriages are made in Heaven but Divorce happen on Earth

Marriage is defined in the Encyclopedia Britannica[1], as “a physical, legal and moral union between man and woman in complete community of life for the establishment of a family.” The physical union takes the first place. The procreation of children is an essential element. On it depends the creation of the family. On the family depends the welfare of the nation. “Marriage is rooted in the family rather than the family in the marriage.”[2] A marriage is not every casual commerce. A mere casual commerce, without the intention of cohabitation, and bringing up of children, would not constitute marriage. But when two parties agree to have that commerce for the procreation and bringing up of the children, and for such lasting cohabitation that would be a marriage in the sight of God and man. Cohabitation continues to the end of life. It is not mere temporary or casual commerce, but a contract of a permanent nature, in the intention of the parties. Marriage is a contract of the greatest importance in civil institutions, and it is charged with a vast variety of rights and obligations. Right. of property are attached to it. The essence of matrimony, is consent[3].

Marriage- is the very foundation of’ civil society. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution in. the maintenance of which the public is deeply interested, for it is the foundation of the family and of society without which there would be neither civilization nor progress[4].  Whether it is English law or the Indian Act, marriage is a voluntary union for life of one man and one woman to the exclusion of all others[5]. On marriage husband and wife became for many purposes one person in law, a doctrine of common law of great antiquity. Parties to a marriage tying nuptial knot are supposed to bring about the union of souls. It creates a new relationship of love, affection, care and concern between the husband and wife. According to Hindu Vedic philosophy it is sanskar – a sacrament; one of the sixteen important sacraments essential to be taken during one’s lifetime. There may be physical union as a result of marriage for procreation to perpetuate the lineal progeny for ensuring spiritual salvation and performance of religious rites, but what is essentially contemplated is union of two souls. Marriage is considered to be junction of three important duties i.e. social, religious and spiritual.

Marriage without Sex:

Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a man’s mind and body. The result being that if he does not get proper sexual satisfaction, it will lead to depression and frustration[6]. Impotency of a wife results in her inability to discharge her marital obligation which amounts to both legal and mental cruelty. Marriage under the Hindu Law is not a pure religious ceremony. A wife who is not fit to have sex or beget child would be unable to fulfil the main object of marriage and it would be a very just and reasonable ground on the part of a husband to refuse to live with wife on such ground either under the Hindu Law, Mohammedan Law or as a matter of fact any other law.

Dissolution of Marriage on ground of virulent venereal disease:

Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical union. When two souls thus unite, a new soul comes into existence. That is how, the life goes on and on on this planet.  Mental and physical health is of prime importance in a marriage, as one of the objects of the marriage is the procreation of equally health children. That is why, in every system of matrimonial law, it has been provided that if a person was found to be suffering from any, including venereal disease, in a communicable form, it will be open to the other partner in the marriage to seek divorce. Reference, for instance, may be made to Section 13(1)(v) of the Hindu Marriage Act, 1955 which provides as under :

“13(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party: (v) has been suffering from venereal disease in a communicable form.”

So also Section 2 of the Dissolution of Muslim Marriage Act, 1939 sets out that if the husband is suffering from a virulent venereal disease, a woman married under Muslim Law to such person shall be entitled to obtain a decree for dissolution of her marriage.

Under Section 27 of the Special Marriage Act, the party to a marriage has been given the right to obtain divorce if the other party to whom he or she was married was suffering from venereal disease in a communicable form.

The emphasis, therefore, in practically all systems of marriage is on a healthy body with moral ethics. Once the law provides the “venereal disease” as a ground for divorce to either husband or wife, such a person who was suffering from that disease, even prior to the marriage cannot be said to have any right to marry so long as he is not fully cured of the disease. If the disease, with which he was suffering, would constitute a valid ground for divorce, was concealed by him and he entered into marital ties with a woman who did not know that the person with whom she was being married was suffering from a virulent venereal disease, that person must be injuncted from entering into marital ties so as to prevent him from spoiling the health and, consequently, the life of an innocent woman.

Irretrievable Breakdown of Marriage:

Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce.  The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. In this Report, it is mentioned that during last 20 years or so, and now it would around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory.

In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not.  In the Report it is mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a fagade, when the emotional and other bounds which are of the essence of marriage have disappeared.

It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.

Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising there from.

Divorce and Maintenance:

When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of iddat. On the expiration of the period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim Law does not recognise any obligation on the part of a man to maintain a wife whom he had divorced[7]. Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself. One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent both, in quantum and in duration, of the husband’s liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dir-hams, which is equivalent to three or four rupees[8]. But, one must have regard to the realities of life Mahr is a mark of respect to the wife. The sum settled by way of Main is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to Section 125[9] of the Criminal Procedure Code, 1973.

Foundation of Sound Marriage:

The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court[10].

Justice Krishna Iyer observed that when the marriage breaks down completely and there is no possibility of any return the only remedy left is a divorce and nothing else. To quote his own words:

“While there is no rose but has a thorn, if what you hold, and no rose, better to throw it away”

About the Author

kushKush Kalra

Kush is a practicing lawyer at Delhi High Court. He graduated from Rajiv Gandhi National University of Law, Punjab, India in 2012 and has authored a book titled – Be Your Own Lawyer.

 

 

 

Endnotes

[1] 11th ed. vol. 17, p. 753

[2] (Westermark)

[3] Linda v. Belisario (1795) 1 Hag. Con. 216 (21) per Sir William Scott at pp 30 232.]

[4] Meganatha v. Smt. Susheela Air 1957 Mad. (426) (22)]

[5] [Hyde.v. Hyde (1866) L.R. 1 P & D 130 (23). 133 per Lord Penzance-].

[6] AIR 1981 SC 7972 Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan and Anr.

[7] (Muslim Law in Modern India, 1982 Edition, page 130)

[8] (Mulla’s Mahomedan Law, 18th Edition, para 286, page 308)

[9] Section 125, CrPc, 1973:

125. Order for maintenance of wives, children and parents

(1) If any person having sufficient means neglects or refuses to maintain—

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means

[10] See Dastane v. Dastane, [1975]3SCR967

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