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Other Instances of Divorce Laws in
India
Divorce laws Points
discussed here are as follows:
Interference by Supreme Court under
Art. 142 of the Constitution Res judicata - Effect of second
marriage on appeal, Temporary injunction restraining husband from
remarrying during pendency of appeal, Effects of dissolution of marriage on
property of parties, Co-respondent in adultery, Ex parte decree &
consideration be aside, Right to name after dissolution of marriage,
Divorce among shudras and custom, Ex parte divorce decree passed in a
foreign court, effect thereof
Interference by Supreme Court under Art.
142 of the Constitution
The Supreme Court does not usually interfere with the findings of the lower
courts which are fully supported by evidence. It does not disturb the findings
of lower courts where charges of cruelty, adultery and desertion against the
wife by the husband in a petition for divorce had not been proved.
The Supreme Court in exercising the power under Art. 142 of the Constitution of
India has held that where the marriage is dead and there is no chance of its
being retrieved, it is better to bring it to an end.4 Following this test of
dead marriage or irretrievable breakdown of marriage the Supreme Court has held
in Romesh Chander v Savitri that the marriage in
that case is dead both emotionally and practically. Continuance of marital
alliance for name-sake is prolonging agony and affliction. Thus by exercising
power under Art. 142 of the Constitution the Supreme Court directed that the
said marriage between the parties stood dissolved. In Sneh
Prabha v Ravinder KumaI' the Supreme Court has held that the marriage of
the parties has irretrievably broken down and there were no chances of the
husband and the wife living together and as such the decree of divorce was
granted. The question remains in absence of legislative provision relating to
the ground of irretrievable breakdown of marriage for divorce can a court
exercise the inherent power under s. 151, CPC like the Supreme Court under Art.
142 of the Constitution which is exclusively meant for the Supreme Court.
Res judicata.
Difference in reliefs in previous and later proceedings in
matrimonial causes is immaterial for attracting the applicability of the
doctrine of res judicata. A husband first filed a suit for restitution of
conjugal rights which was dismissed on the findings that the wife was turned out
of the house and she was treated with cruelty. Subsequently the husband filed a
suit for divorce on the grounds inter alia for desertion. It was held that the
issue of desertion was barred by res judicata. Provisions under Or. 9, r. 9, CPC
is also applicable to proceedings under the Hindu Marriage Act.?
Effect of second marriage on appeal
Often a question arises as to whether the first marriage is
considered to be irretrievably broken down when a decree-holder in divorce
proceeding marries for the second time during the pendency of the appeal. This
questio has been answered by the Supreme Court in Lata v
Vilas,8 Tejinder Kaurv Gurmit Singh.that only because the second marriage
has taken place, the appeal does not become in fructuous. Thus the respondent in
the appeal who had married for the second time is not entitled to a decree for
divorce on the ground that the marriage has irretrievably broken down.
Temporary injunction restraining husband from
remarrying during pendency of appeal.
A wife prayed for temporary injunction restraining her husband from marrying
again during the pendency of the appeal preferred by her against the decree of
divorce. It has been held that though Or. 39, rr. I and 2, CPC would not apply
to restrain a spouse from marrying, yet in view of the decision of the Supreme
Court in Manohar Lal v Seth Hiralal, a temporary
injunction can be issued by the court in the interest of justice in exercise of
its inherent power if a proper case is made out therefor.
Effects of dissolution of marriage on property of
parties:
On dissolution of marriage the rights and interests in joint
property of husband and wife are to be determined by equitable approach in which
fifty-fifty has been the general guideline.I3 A policy effected by the husband
for the benefit of his wife and children is in the nature of a trust and falls
within the scope of s. 6 of the Married Women's Property Act 1874.14 Any
property, movable and immovable, acquired by a female before, during or after
dissolution of marriage, shall be held by her as full owner thereof.
Effects of 1976 amendment:
By new
amendment the grounds for divorce have been made easier. Prior to the new
amendment one of the grounds was 'living in adultery'. Now under the new
amendment a single act of voluntary sexual intercourse by either party with any
person other than his or her spouse shall afford a ground for divorce.
Previously, this was a ground for judicial separation. Under the new amendment
this provides a ground for both divorce and judicial separation and the sanctity
of marital life has been given the most important place and infidelity to the
marital partner may lead to end of it.
Cruelty and desertion for a continuous period of not less than two years will
constitute independent grounds for divorce. These are news insertions by the new
amendment resulting in equalising the grounds for both divorce and judicial
separation. |
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It may be hazardous and on facts of a particular case even unjustified to lay
down as a general principle of law the necessity or otherwise of the element of
intention as a requirement sine qua non for establishing or rejecting a case for
judicial separation or divorce on the basis of cruelty. But where the husband
makes a petition for judicial separation or divorce on the ground of cruelty
that the wife is suffering from incurable disease of nose emitting foul smell
which is injurious to the husband's health, the aspect of intention may become
'important and crucial' for determination of cruelty.
The requirement regarding the minimum period of incurableness of unsoundness of
mind of divorce has been dispensed with by the new amendment. This ground does
not seem to cover cases of mental disorder, continuous or intermittent under
which the petitioner is expected to live with the respondent as in the case of
mental disorder. This ground for divorce under the new amendment has been
enlarged.
Sub-section (lA) of s.13 has been amended to reduce the period of two years to
one year for obtaining a decree of divorce after the passing of a decree for
judicial separation or a decree for restitution of conjugal rights without
reconciliation having taken place in the meantime. Some new grounds for divorce
are inserted in s.13 of the Act under the new amendment. These are as follows:
(1) A wife is vested with a new legal right to seek divorce if a period of one
year has elapsed after the passing of an order or decree awarding maintenance to
her under the Hindu Adoptions and Maintenance Act 1956 or under s. 125 of the
Code of Criminal Procedure 1973 provided there is no reconciliation in the
meantime.
(2) A wife is also conferred with a legal right to repudiate a marriage,
provided two conditions are satisfied. First, she was married before attaining
the age of 15 years, and secondly, she has exercised the right of repudiation
before attaining the age of 18 years. Nothing will forbid her to exercise this
legal right even if her marriage is consummated. This right is conferred in
conformity with the law of restraint introduced in the Child Marriage Restraint
Act 1929. If the requirement of s. 13(2)(iv) as inserted by the Marriage Laws
(Amendment) Act 1976 are satisfied, at the instance of a bride a decree for
divorce can be granted.
(3) Both husband and wife have rights to obtain a decree of divorce by mutual
consent.18 Here consent means free and voluntary consent without being effected
by any extraneous force or influence. This ground is similar to that as provided
in s. 28 of the Special Marriage Act 1954.
The court will have the power while dealing with a petition for divorce to grant
or decree for judicial separation instead of a decree for divorce. 19 This power
will be exercised by the Court in determining certain discretionary questions of
facts.
The amendment of s. 13 by the 1976 Act is retrospective in operation and applies
to pending petition.
Co-respondent in adultery:
According to
r. 8 of the A.P. Hindu Marriage Rules a husband who alleges adultery on the part
of the respondent, the alleged adulterer shall be made a co-respondent in the
petition. But it has been held in G. Kondaiah v G. Ankamma
that r. 8 of the aforesaid Rules framed under the Hindu Marriage Act was made
prior to the amendment of s. 13 under the Act 68 of 1976 and it is no longer in
force now. Thus an alleged adulterer need not be impleaded as a co-respondent.
Rules 7(4) and 11 of the Kerala High Court Rules 1970 provide that a person 0r
persons alleged to have committed sexual intercourse with the respondent wife
must be made co-respondents.
Ex parte decree and consideration be setting aside:
Where the petitio. husband in a divorce proceeding has failed to
serve notice on the wife and her param co-respondent and the witnesses resided
beyond the limits of jurisdiction of the court.
as postulated under Or. 16, r. 19, CPC the sole deposition of the husband in
support of his petition is sufficient to grant decree of divorce.23 But where
the family court at Bombay, husband's place of residence, granted a meagre
amount of expenses to the wife who was required to travel long distance of 24
hours railway journey to defend herself, an ex parte divorce decree passed by
such court was
. liable to be set aside.
In a case an ex parte decree for divorce was passed in favour of the husband.
The wife was present in the court precincts on the date fixed for hearing. But
she did not move the court for adjournment on that date. Her suddenly failing
ill on that date was not borne out from the certificate given on examination on
that date. She was also present in the seat of the court on subsequent date of
hearing, but did not attend the court. It was held by the Supreme Court that the
wife allowed the proceedings to go ex parte against her in the family court
deliberately and as such there should not be any interference with the ex parte
decree of divorce.
Where an ex parte decree of divorce is passed in favour of the husband, and the
husband contacted the second marriage after expiry of four months, an
application for setting aside the ex parte decree was not maintainable.
Right to name after dissolution of marriage:
When a marriage is
dissolved or annulled on the petition of either husband or wife, the latter is
entitled to cal1 herself by her late husband's name or by her former maiden name
or by any other name she may obtain by reputation provided no one thereby
suffers any injuria or damnum of which the law can take notice. In Cowley v
Cowley,4 injunction was refused to stop a commoner from using name she had
acquired by a marriage with a peer which was dissolved at her instance and
thereafter she married a commoner. The ratio of the decision was that "no
question of honour can be tried by a court of law".
Jurisdiction of court:
Section 19 of the
Hindu Marriage Act deals with the jurisdiction of the court in which a petition
under this Act shall be presented. But a question arises as to whether an
aggrieved party to a Christian marriage who is a Hindu can initiate proceedings
under the Act for dissolution of marriage by a decree of divorce under s. 13 of
the Act. It is held that a petition for such relief is not maintainable under
this Act even if one of the parties to the marriage is a Hindu. The test to
attract the jurisdiction of the court under this Act is whether the marriage is
a Hindu marriage under s. 5 of the Act and both the parties to the marriage are
Hindus and the solemnization of the marriage is done in accordance with the
provisions of s.7 of the Act.
Divorce among "shudras" and custom:
In
M. Govindaraju v K. Munisami Gounder the Supreme
Court has laid down that where parties are "shudras" and the shudra wife is
turned out of the house by her husband or she willfully abandons him and is not
pursued to be brought back as wife, a divorce in fact has taken place, sometimes
regulated by customs, and then each spouse is entitled to re-arrange his her
life in marriage with other marrying partners. Thus, in the instant case walking
out of P from the house of her first husband K was irretrievable and
irreversible, for it is in evidence that neither of them took interest in each
other thereafter. The divorce was complete.
Divorce decree obtained against wife and death of
husband thereafter: effect on subsequent proceedings:
In Yallawwa v Shantavva the Supreme
Court has held that after a decree of divorce is obtained by the petitioning
husband against his wife, she has a right to file an appeal and such appeal does
not abate on account of the death of the respondent husband whether such death
takes place prior to the filing of pending appeal or pending the appeal.
Similarly, if an ex parte decree of divorce is obtained against the wife and
thereafter if the husband dies, the aggrieved wife can maintain an application
under Or. IX, r. 13, CPC even though the husband might have died prior to moving
of that application. In all such cases other legal heirs of the deceased husband
can be brought on record as opponents or respondents in such proceedings by the
aggrieved spouse who wants such decree to be set aside and when the other heirs
of the deceased husband would naturally be interested in getting such decree
confirmed either in appeal or under Or. IX, r. 13, CPC.
Ex parte divorce decree passed in a foreign court,
effect thereof.
The husband in a case8 filed a petition for divorce in a foreign
court. The wife had no means to contest the proceedings there. It was held that
non-contesting of proceedings by the wife would not mean that she conceded the
jurisdiction of the court. Thus an ex parte decree passed against her is
violative of the principles of natural justice and as such a nullity. Subsequent
petition for divorce by the wife in India on the ground of adultery cruelty and
desertion is not barred by the principles of estoppel or from res judicata
because she had accepted maintenance under the foreign judgment. |
Delhi -
New Delhi
Ghaziabad 
