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Family Law and its Sources: Concept of Marriage and Divorce

All over the world, marriage began as a sacrament (religious ceremony). Hindus took marriage as indissoluble (unable to be destroyed) even after death. Whereas, Muslims took marriage as a contract. Muslim marriage has been defined as a civil contract for the purpose of legalizing sexual intercourse and procreation of children.

Family Law and its Sources
Family law is the area of law that addresses family relationships. It includes creating family relationships and breaking them through divorce and termination of parental rights. This law addresses adoption, contested custody of children, etc. There are five broad sets of family laws in India, namely Hindu law, which governs all Hindus, Buddhists, Jains, and Sikhs, Muslim law for the Muslims; Christian law for the Christian; Parsi law for the Parsis and secular law, i.e. the Special Marriage Act. The religion-based laws are derived from religious texts. These laws have also been amended from time-to-time by Parliamentary legislation.

Sources and Schools
There are many sources and schools for the explanation of the concept of laws in different religions. Some of them are given below:
Sources of Hindu Law
Sources of Hindu law can be classified into two heads

Ancient Sources
According to Manu, there are four sources of Hindu law i.e.

Shruti
Shruti is believed to contain the precious words of God. The shruti mainly consists of four Vedas (namely the Rig Veda, the Yajur Veda, the Sama Veda and the Atharva Veda), six Vedangas and the eighteen Upanishads.

Smritis
It contains those portions of the shrutis which the saints forgot in their original form and then they wrote in their own way with the help of their memory. Thus, it is based on shrutis. The smritis are divided into two kind's viz. Dharamasutras and Dharamshastras

Commentaries and Digests
Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period from 600 AD to 1200 AD. The commentaries professing and purporting to rest on the smritis explained, modified and enlarged the traditions recorded therein to bring them into harmony and accord with prevalent practice which is suitable with the time.

Customs
It is regarded as the highest 'dharma'. It is explained by the judicial committee and signifies a rule in a particular family or in a class or district. Custom is a principle source and its position is next to the shrutis and smritis but usage of custom prevails over the smritis.

Customs are divided into several parts:
  1. Local customs
  2. Class customs
  3. Family customs
     
Characteristics of customs needed to declare them valid are:
  1. It must be ancient.
  2. It must be certain and free from ambiguity.
  3. It must be reasonable.
  4. It must be continuous.
  5. It must not be opposed to public policy.
  6. It must not be opposed to any law.

Modern Sources
The modern sources of Hindu law are given below:
Justice, Equity and Good Conscience
When any dispute comes before a court and which cannot be settled by the application of any rule from any available sources, then the principles of justice, equity and good conscience would be applied. For example, case of Gurunath V. Kamlabai (A.I.R. 1955 S.C. 206).

Precedent
The doctrine of precedent was based on the principle of treating like cases alike.
It is called to be a source of Hindu law in two senses, which are as follows:
  1. All the important principles and rules of Hindu law have now been embodied in case law.
  2. It is a source of law in the sense that by the process of judicial interpretation doctrines, principles and rules of law stand modified and altogether have been introduced in the body of Hindu law.
The decisions of Privy Council are binding on all the lower courts in India except where they have been modified or altered by Supreme Court, whose decisions are binding on all courts, except for itself.

Judicial Decisions
Judicial decisions on Hindu law are sometimes taken as a source of law. In the law reports, all important points of Hindu law are to be found. Sometimes, the decisions on Hindu law have superseded the commentaries.

For example:  case of Shri Krishna Singh V. Mathura Ahir, (1981) 3 S.C.C. 689.

Legislation
Legislative acts of Parliament play an important role in formation of Hindu Law. After independence, Hindu laws important aspects have been codified. For example, the Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, etc.

Schools of Hindu Law
The Vedas and Smritis are the most reliable source of laws in India, but they are not easy to understand. So many scholars in India wrote commentaries, which led to the development of these schools.

There are two main schools of Hindu Law:
Mitakshara School
It is named after the commentary called Mitakshara written by Vijnaneshwara on Yajnavalkya Smriti. It is applicable to whole India excluding the State of Assam. In case of Rohan V. Lakshman 1976, it was held that the effect of Mitakshara School is so strong that it also applies to even undescribed subjects in Bengal and Assam.

It is the orthodox school which is divided into four sub-schools:
  1. Banaras sub-school
  2. Mithila sub-school
  3. Maharashtra sub-school
  4. Dravida or Madras sub-school

Dayabhaga School
The Dayabhaga School is mainly found in Bengal and Assam. It is not a commentary on any particular code but is a digest of all the codes. It was written by Jimutavahana in 12th century. It is the reformist school of Hindu law. The succession of property in this school is based on spiritual principles. The person who earns maximum peace and religious profit for the soul of deceased by performing 'Pindadaan' is the successor of the property in this school. On the basis of succession, his property shall devolve among his heirs, in case of death of a Hindu person. The coparcenary evolves after the death of the father.

Sources of Muslim Law
The sources of Muslim law can be classified into following heads:

Ancient Sources
There are four ancient sources of Muslim law, namely:
Quran
The word Quran means 'to be recited'. It is the first important source of Islamic law. It is believed that these are direct words of God as revealed to Muhammad through angel Gabriel in Mecca and Medina. The society should be based on its moral, philosophical, social, political and economic aspect. Muslim jurists agree that the Quran is not totally a legal code, rather its purpose is to lay down a way of life which regulates man's relationship with others and God.

Sunnah
The term Sunnah literally means the trodden path, a procedure, and a way of action. It is the applied principles of Islam embodied in the holy Quran. Important source of Sunnah is Hadis. Both Sunnah and Hadis are used interchangeably in the law books whereas both are different. Sunnah is the rule of law deduced from the practice of the Prophet, his noble behaviour. The study of Hadis developed only after the formation of Sunnah through various schools of law (Madhab). Tradition cannot repeal the Quranic text but can explain it. No tradition can be received which is contrary to the Quran.

Ijma
Ijma means the view point of the learned. When persons know about the law and would agree on a point, such consensual opinion was referred to as Ijma. So, Ijma is the harmonious decision of jurists for a particular question with reference to that age or communal legislation. It is through the tradition of the Prophet that Ijma derives its validity and authority as a source of law. Whenever, law needed an amendment, the jurists used to give a common opinion to amend it and to find the new solution. To be a jurist or Mujtahid, it was mandatory that the person was a Muslim with adequate knowledge of law.

Types of Ijma are as follows:
  1. Ijma of the Companions
  2. Ijma of the Jurists
  3. Ijma of the People

Qiyas
Qiyas is an Arabic word which means 'analogy or measurement'. It is analogical deduction from the known to the unknown. It does not meant to create a new law but apply old established principles to new circumstances. It is generally the interpretation of law rather than a source of law. Ijthihad (means personal reasoning), Istihsan (means Jurists preference), Ikhtilaf (means disagreement) are the other principles of interpretation of Muslim law.

Custom: Urf or Taamul
It refers to the customs and practices of a given society which is formally included in Islamic law. Sharia law recognizes customs that prevailed at the time of Muhammad but were not abrogated by the Quran. It is not a formal source. When rule of law is not present in the text of the primary sources, the customary rules are treated as law. Most of the customs were abolished by the Shariat Act, 1937. Section 2 lists ten matters. For example, inheritance, marriage, divorce, wakf and maintenance wherein customs and usage cannot be applied anymore.

Modern Sources
During British rule, the Muslim law has undergone various modifications. So, the source of these modifications is
Equity, Justice and Good Conscience
Equity, justice and good conscience is the universal phenomenon and Muslim law is not exceptional to this. For instance, Istihsan of the Hanafi School and the doctrine of Maselihul Mursala of Malik.
Cases which have no specific directions, the court has to act according to equity, justice and good conscience. This was regulated by the regulations of 1781.

Precedent
The common law doctrine of precedent has never been part of Muslim law; the decisions of a Kazi never constituted a precedent in English law. Fatawa belongs to the approach of this doctrine in Muslim law, which has huge initiative force. The Fatawa not possess moral sanctions but has legal authority. During British period, the doctrine of precedent became part of Muslim law.

Legislation
In India, the Muslim law is not free from legislative and judicial intervention. In some matters, pure Muslim law was altered. e.g.,
  1. The Dissolution of Muslim Marriage Act, 1939.
  2. Muslim Women (Protection of Right on Divorce) Act, 1985.
  3. The Caste Disabilities Removal Act, 1850.
  4. The Child Marriage Restraint Act, 1924.

Schools of Muslim Law
After the death of the Prophet Muhammad in 632 BCE, people divided into two sects having different views regarding certain aspects of Islam. Thus, the School of Muslim law can be broadly divided into two categories:
Sunni Schools
In Sunni sect, there are four main schools of Muslim law, which are as follows:
Hanafi School
Earlier, it was known as Kufa School which was based on the name of the city of Kufa in Iraq. Later, on the name of its founder Abu Hanifa, it was renamed as Hanafi School. Hanafi school is based on customs and decisions of the Muslim community. The Prophet had not allowed his words and traditions to be pen down.

Maliki School
The school was named after Malik-bin-Anas, who were the Mufti of Madeena. During his period, the Kufa was considered as the capital of Muslim Khalifa, where Imam Abu Hanifa and his disciples flourished with Hanafi Schools. He discovered about 8,000 traditions of Prophet but compiled only about 2,000 of them.

Shaffie School
It was named after Muhammad-bin-Idris Shaffie. His period was between 767 AD to 820 AD. He was the student of Imam Malik of Madeena. It considered Ijma as the important source of the Muslim law and give validity to the customs of Islamic people and follows more methods of Hanafi school.

Hanbali School
This school was founded by the Ahmad-bin-Hanbal. He was the disciple of Imam Shafi and supports Hadis. He introduced the theory of tracing the root of Sunna and Hadis and try to find solutions of all his questions.

Shia Schools
In Shia sect, there are three main schools of Muslim law, which are given below:
Ithna-Ashari School
This school is mainly considered as the Shia Muslim dominant. The Jafari Fiqh of the Shias in most cases is inseparable from the four Sunni Madhahib, only exception is mutah as the lawful marriage. The follower of this school believe that the last Imam disappeared and to be returning as Mehdi (Messiah).

The Ismailis School
In India, this school is divided into two groups i.e. the Khojas or Western Ismailis and the Bohoras. The Bohoras and Khojas of Mumbai are the followers of this school and considered that they have special knowledge of religious doctrine.

Zaidi School
The followers of this school are not found in India. They mostly reside in Saudi Arabia. The followers of this school are considered as the political activists. They often rejected the twelve Shia school philosophies.

Other Schools
Other than Sunni and Shia sect schools, there are other schools of Muslim law, which are as follows:
  1. Ibadi School
  2. Ahmadiva School

Marriage and Dissolution of Marriage
All over the Hindu and Christian words, marriage began as a sacrament. Marriage, as a sacrament, necessarily implied a permanent and indissoluble union. Marriage is a conjugal union of a man and woman which arises only from the free consent of each spouse, but this freedom belongs to the question whether two persons really wish to enter into matrimony or not, it is totally independent from the free will of spouses. Once a contract of marriage is entered into, a marriage is considered as sacrament.

In Hyde V. Hyde Case, Lord Penzance gave the definition of marriage as I conceive that marriage as understood in Christendom may be defined as the voluntary union for life of one man and one woman to the exclusion of all others.

Under Hindu Law
Marriage is a mandatory sanskar among Hindus and every Hindu must marry. They considered it a sacramental union i.e. a Sacrosanct, permanent, indissoluble and eternal union. They did not regard it as a contract, but as a tie which once tied cannot be untied.

Hindu Marriage-A Sacrament or Contract
The Hindu Marriage Act, 1955 has abolished polygamy and introduced strict monogamy for all Hindus. Divorce also has been recognised. The Hindu Marriage Act does not lay down that a marriage without the consent of the parties is void, though it does lay down that if consent of a party to marriage is obtained by fraud or force, the marriage is voidable.

In same way, when one of them is of unsound mind, the marriage is voidable. It is laid down that the age of bride should not be less than 18 years and bridegroom should not be less than 21 years in age. A combined reading of Sections 5, 11 and 12 of the Hindu Marriage Act, leaves no doubt that consent is not an essential aspect of Hindu marriage. The Hindu marriage has no longer remained an indissoluble and eternal union. Widow marriages are allowed. Divorce is also permitted. It may still be called a holy or sacramental union, in the -sense that a sacramental ceremony is necessary. Thus, one may say that Hindu marriage has neither become a contract nor has remained a sacramental union, it has semblance of both.

Under Muslim Law
From the very initial time, Muslims have considered their marriage as a contract. Muslim marriage has been defined as a civil contract for the purpose of legalizing sexual intercourse and procreation of children. Muslim law does not prescribe any religious service essential for its solemnization. Muslim marriage is a contract which is evident from the nature of marriage and the mode by which it is performed. Thus, only a civil ceremony, i.e. an offer made by one party and accepted by another in one and the same meeting held in the presence of two witnesses (not among Shias) is sufficient for entering into the contract of marriage. Muslim marriage is a polygamous marriage limited to four wives. A Muslim male has capacity to keep four wives simultaneously. But, if a Sunni male takes five or more wives, his marriage with the fifth wife or subsequent wives is not void but irregular.

Parsi, Jew and Christian Marriages
The Parsi marriage is also considered as a contract but the religious ceremony of ashirvad is mandatory for its validity. Ashirvad means a prayer or exhortation to the parties to observe their marital obligations. The marriage is solemnised by a Parsi priest in the presence of two witnesses.

The Jew marriage is also considered as contract. A written contract called Katuba between the parties is essential for the validity of marriage. A religious ceremony is also required.
In India, Christian marriage is also a contract and is solemnized by a Minister of Religion licensed under the Christian Marriage Act, 1872 and also by the Marriage Registrar.
Marriage is mandatorily a civil contract under the Special Marriage Act, 1954.

Prohibition of Marriage on Account of Relationship by Blood or Affinity
Since ancient system, the law deals with the prohibitions on marriage on account of relationship of blood or affinity. The details of these prohibitions are as follows
Under Hindu Law
Sagotra and Inter-caste Marriages
Earlier Hindus were prohibited to marry within the same gotra and pravara. They were also prohibited for inter-caste and inter-religious marriages.
A Hindu cannot marry a non-Hindu under Hindu law. He/she can do so only under the Special Marriage Act, as a civil marriage.

In the modern Hindu law, marriages are prohibited on account of relationship which are recognised - on two grounds, which are as follows
Sapinda Relationship Section 3(f) (i) lays down:
in sapinda relationship with reference to any person extends as far as the third generation in the line of ascent through mother, and the fifth in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.

Then, Section 3(f) (ii) lays down, persons are said to be 'Sapindas' of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them.

Degrees of Prohibited Relationship: It is stated in Section 3(g) of the explanation. The couple is said to be within the degree of prohibited relationship:
  1. if one is a lineal ascendant of the other,
  2. if one was the wife or husband of lineal ascendant or descendant of the other,
  3. if one was the wife of the brother or the father's brother's wife or grandmother's brother's wife and
  4. if the two are brother and sister, uncle and niece, aunt and nephew, or children of a brother and sister or of two brothers or two sisters.

Under Muslim Law
Inter-sect and Inter-religious Marriages
There is no prohibition on inter-sect or inter-school marriage, but inter-religious marriages are restricted under Muslim law.

A Sunni male is allowed to marry a non-Muslim Kitabia (whose faith is based on same holy book containing revelations such as Christians and Jews, but not Sikhs), but not a fire-worshipper or idol-worshipper.

Under the Shia law, the marriage of a Muslim male or female with a non-Muslim is null and void.

Consanguinity
Prohibitory grounds on the basis of consanguinity restricts Muslim males to marry the following:
  1. his mother or grandmother, how high soever,
  2. his daughter or granddaughter, how low soever,
  3.  his sister, full, consanguine or uterine,
  4. his aunt (both on father's and mother's side), how high soever.
The expression how high soever and how low soever mean ascendants and descendants of any degree respectively.

Affinity
It is based on the relationship arising out of marriage, irrespective of the fact whether marriage is void or valid. On the basis of this, a Muslim male cannot marry his wife's mother or grandmother, how high soever, his father's wife or father's father's wife, how high soever, foster-mother's son's wife. A female child cannot marry her foster-mother's husband, Foster-mother's son, Foster-mother's daughter's husband.

Marriage between Cousins
In Muslim law, there is no prohibition on marriage between cousins including all the first cousins, parallel as well as cross.
Unlawful Conjugation
Under Muslim law, a male is not allowed to have at the same time two wives who are so related to each other by consanguinity, affinity or fosterage, that if either had been a male, they could not have lawfully married each other.

Marriage with a Woman Undergoing Iddah
If a Sunni male marry a woman during the period of iddah, so that marriage is irregular. But in case of Shia male, such marriage is void.

Prohibitions on Marriage under Parsi and Christian Laws
The Parsi law also lays down prohibitions on the ground of affinity and consanguinity.
The Christian Marriage Act does not specify the degree of prohibited relationship but lays down that a marriage which is forbidden by the personal law of the parties is not valid.

Special Marriage Act
This act provides the provisions for the performance of marriage by civil ceremony. All marriages can either be registered under the respective personal law or under the Special Marriage Act, 1954. It extends to all citizens of India irrespective of their religion. It provides for both solemnizations as well as legal registration.
Special Marriage Act has carved a simple means to legally register a marriage between two people from different religion, however even if both of the intending parties belong to the same religion, they can choose to register the marriage under this Act.

Registration of Marriage
It is a special provision of the Special Marriage Act that a marriage solemnized in any other form under any law, between any two persons, may be registered under the Act, and on registration, such a marriage for all intends and purposes is treated as performed under the Act.

Presumption of Marriage
Section 114 of The Indian Evidence Act lays down that where independent evidence of solemnization of a marriage is not available, it will be presumed to be a valid marriage by cohabitation between the parties unless the contrary is proved.

Nullity of Marriage
The jurisdiction to declare a marriage valid or invalid is vested in the courts. The courts can declare a marriage null and void if it is solemnized in violation of impediments on marriage which were considered absolute. So, no valid marriage could come into existence, if either spouse is already married to somebody else, who was alive at the time of marriage, or spouses were related to each other within prohibited degrees, or either party did not freely consent to the marriage.

Such a marriage could be formally annulled by a decree of an ecclesiastical court and even without such a degree, either party could contract another marriage.

Void Marriages
It is basically a misnomer (wrong term) and a void marriage, when two persons having no capacity to marry have, in fact, undergone the requisite rites and ceremonies of marriage. When court passes a decree of nullity in respect of a void marriage, it declares a marriage null and void. Under all the Indian matrimonial statutes, a petition for nullity can be filed only by either party to the marriage. Also, if one of the parties dies, the other cannot file such a petition.

For example, in Molly Joseph V. George Sebastian and Jose V. Allice case.

Grounds of Void Marriage
The grounds of void marriage under the Indian personal laws are:
Hindu Law
Under Hindu law, following are the grounds of void marriage:
  1. The second marriage will be void if the first marriage is valid.
  2. If the parties are sapinda (a person considered to be in relation to any of his or her three nearest lineal made ancestors or descendants) to each other.
  3. If the parties are under prohibited degrees of relationship.
  4. If the required ceremonies are not performed.
  5. Marriage between a Hindu and non-Hindu is void under this act.

Muslim Law
Under Muslim law, following are the grounds to declare a Muslim marriage void:
  1. consanguinity
  2. affinity
  3. fosterage
Under the Shia law, a marriage is void on the basis of above said grounds. It is also the base to declare Sunni marriage as irregular.

Voidable Marriages
It is a valid marriage till it is avoided. A voidable marriage can be avoided only on a petition by either party to the marriage. If any one of the party does not file petition for annulment of marriage, it will remain valid, and if one of the party dies, the validity of the marriage cannot be questioned in any court of law.

Grounds of Voidable Marriage
The grounds to declare a marriage voidable are given below:
Hindu Law
Under the Hindu Marriage Act, voidable marriage grounds:
  1. On the account of impotency.
  2. On the account of unsoundness of mind.
  3. Respondent's pregnancy at the time of marriage.
  4. Petitioner's consent was obtained by force or fraud as to the nature of ceremony.

Muslim Law
Under the Sunni law, the grounds of irregular marriage are:
  1. Marriage with a woman undergoing iddah.
  2. On the ground of different religion, violation of marriage.
  3. Marriage performed without witness.
  4. Marriage with fifth women.
  5. Marriage performed in violation of rule against unlawful conjugation.

Lack of Consent - Consent obtained by Fraud or Force
Matrimonial Causes Act, 1973 lays down the factors which are given below
  1. Fraud as to the nature of ceremony.
  2. Identity of a party.
  3. Concealment of disease or deformity.
  4. Concealment of religion or caste.
  5. Concealment of unchastity.
  6. Concealment of illegitimate birth.
  7. Concealment of age.
  8. Concealment of financial status and job and educational qualification.
  9. Non-disclosure of pre-marriage status.
  10. Wife being devoid of female organs.
  11. Fraud of third person.
  12. Physical or mental impotency.

Children of Void and Voidable Marriage
Under the Matrimonial Causes Act, children of voidable marriage continue to remain legitimate even after the passing of the decree of annulment of the marriage. The present position under the Hindu Marriage Act and the Special Marriage Act is as under:
  1. Children of unannulled (not declared invalid) voidable marriage are legitimate in the same way as children of an otherwise valid marriage.
  2. Children of annulled (declared invalid) voidable and void marriage (whether declared void or not) are legitimate but they will inherit the property of their parents alone and of none else.
  3. If the marriage is void or voidable under any provision of the law, except Sections 11 and 12, the children will be illegitimate.

Such children can inherit the separate property of their father under Section 8, Hindu Succession Act, but could not lay any claim on the coparcenary interest of the father. Child of such a marriage has no birth right in the Hindu Joint Family property.

Valid, Void and Irregular Marriages under Muslim Law
Muslim law does not differentiate void and voidable marriages. On the basis of validity, classification of marriage under Muslim law is as follows:
Valid or Sahih Marriage
This marriage is held between the parties having capacity to marry with all important formalities and follow all legal consequences of a valid marriage.

Void or Batil Marriage
This is performed in violation of perpetual impediments, under Sunni law, and of all impediments under Shia law. A Batil marriage is no-marriage, it means it is void-ab-initio. No legal consequences occur from it. So, such a marriage performed in violation of rules of consanguinity, fosterage or affinity is void marriage. No legal action is provided under Muslim law.

Irregular or Fasid Marriage
An irregular marriage has no effect before consummation. Either party may terminate it, at anytime, either before or after its consummation, by expressing an intention to do so.
The Shia law does not recognize irregular marriages, and marriages performed in violation of perpetual or temporary or remedial impediments are void.

Judicial Separation and Divorce
Judicial separation is viewed as a lesser evil than divorce, since it leaves open the door for reconciliation. A decree of judicial separation does not dissolve the marriage bond but suspends marital rights and obligation during the period of subsistence of the decree, however, parties continued to be husband and wife, neither party is free to remarry. In the event of one of the spouses dying during, the subsistence of the decree of judicial separation, the other will succeed to his/her property.

Judicial Separation and Separate Residence
Under Section 18(2), Hindu Adoptions and Maintenance Act, 1956, a Hindu wife may, on certain grounds, live separate and claim maintenance from her husband.

Decree of Judicial Separation in a Petition for Divorce
Since judicial separation is a lesser relief than divorce, in a petition for divorce, the court has power to pass a decree of judicial separation instead of divorce, evens though no such prayer is made in the petition. It may happens in the case the petitioner has failed to establish the ground of divorce alleged by him though a ground for judicial separations is wade out.

Matrimonial Remedies
Provisions of divorce, alimony and maintenance are provided as the matrimonial remedies. According to Corpus Juris, alimony is defined as the allowance, required by law to be made to a wife, out of her husband's estate for her support either during the matrimonial suit or on its termination where the fact of the marriage is established and she proves herself entitled to separate maintenance. Like maintenance, alimony connotes the existence of a duty on the part of a person to provide for the need of another person or persons who is or are, in one way or the others, related to, or dependent upon, him.

The law of maintenance and alimony may be classified under the following categories:
Interim Maintenance and Expenses of the Proceedings
Under the Hindu Marriage Act and the Parsi Marriage and Divorce Act (after the amendment of 1988), interim maintenance can be claimed by the wife or husband and it is called Alimony Pendente Lite. The Special Marriage Act, 1954 also provides for Alimony Pendente Lite for the wife alone.

On the dismissal of the petition, maintenance is provided. Either wife or husband can apply for maintenance. Even if marriage is void, either party can apply.

Permanent Alimony and Maintenance
The provision for permanent alimony and maintenance exists in all the Indian matrimonial statutes and it is susbstantially the same.
Section 7, Divorce Act, deals with Permanent Alimony. Section 37 of the Special Marriage Act, 1954 deals with Permanent Alimony and Maintenance.  Section 26, Hindu Marriage Act, 1955 and Section 40 of the Parsi and Divorce Act, 1935-88 are the same except that under that provision, an application for permanent maintenance and alimony can be made by either party, i.e. by husband or wife. Section 41 of the Parsi Marriage and Divorce Act stipulates for the payments of alimony of the wife or her guardian appointed by the court.

Divorce in Hindu Law
Customary divorce is recognised in Hindu Law.
Section 29(2), Hindu Marriage Act, runs as under Nothing contained in this act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized, before or after the commencement of this Act.
Before coming into force of the Hindu Marriage Act, 1955, Hindus could obtain divorce only if a custom governing them allowed it.

Some of the important provisions under law are as follows
Renunciation, Abandonment or Repudiation
Among several tribes and castes, particularly among the Jats, a husband has the power to repudiate the marriage. Immediately on repudiation, the wife is free to remarry.

Immorality, Unchastiy, Adultery or Conversion
Among some tribes and castes, husband has the power to divorce his wife on the ground of unchastity, immorality, adultery and conversion. If the wife converts to another religion, husband may divorce her.

Divorce by Mutual Consent
Customs among some castes and tribes recognized divorce by mutual consent. It may be oral or in writing.

Divorce under Special Enactment
In South India, particularly, in the Erstwhile States of Travancore and Cochin (Kerala), divorce among several castes or groups was recognised and regulated under certain statutes.

In Gurubasawa V. lrawwa case, judicial notice of custom was taken and proof of udiki marriage among lingayats was held to be a proof of dissolution of earlier marriage.

Divorce in Muslim Law
There is no judicial or non-judicial authority needed to effect the dissolution of marriage under Muslim law. Non-judicial divorce under Muslim law may described as Unilateral divorce by husband is called Talaq.

Several forms of Talaq are:
  1. Express talaq
  2. Implied and contingent talaq
  3. Delegated divorce, talaq-i-tafweez
  4. Divorce by mutual consent, i.e. when both the husband and wife agree to take divorce and declare the marriage null and void.

The Shias recognized only express talaq and delegated talaq.

There are following forms of talaq:
Express Divorce
The express divorce/talaq falls under two categories.

Talaq-i-Sunna
In this type, the pronouncement for divorce is revocable, that is why it is called approved divorce. It has two forms i.e. Ahasan talaq and Hasan talaq

Talaq-ul-biddat
This form of divorce has been struck down by the Supreme Court holding it to be unconstitutional after a protracted battle fought by Muslim women in Shayara Bano V. Union of India case. The observations made were:
  1. Triple pronouncement of divorce made in a period of tuhr, either in one sentence or in three sentences.
  2. A single irrevocable pronouncement of divorce made in a period of tuhr.
  3. A 'fatwa' has been pronounced that Indian Muslims should not take recourse to this form of divorce.
  4. Talaq-ul-biddat in any form is not recognised among the Shias.

Implied and Contingent Talaq
Sometimes, the words used in the pronouncement of talaq are not clear, such as when husband says to his wife, I give up all relations with you and shall have no connection of any sort with you, or I have released you from being my wife. In these cases, the divorce will be implied if intention to divorce is clearly expressed.
The Shias do not recognized implied and contingent divorce.

Delegated Talaq or Talaq-i-tafweez
It is recognised among both the Shias and the Sunnis. Muslim husband has the right to delegate his power of talaq on his wife or on any other person. When the power is delegated to the wife under a pre-marriage or post-marriage agreement, it is not revocable.

Constructive Divorce-Ila and Zihar
It has become obsolete in India. In Ila, husband swears that he will have nothing to do with his wife and abstains from her society for a period of four months.

In Zihar, husband expressing his dissatisfaction with his wife by comparing her with the back of her mother or any other woman within the degrees of prohibited relationship, the wife has right to refuse cohabitation with him.

Formalities of Talaq
No schools of Sunnis prescribe any formalities for talaq. But the Shias insist that divorce must be pronounced orally and in the presence of two competent witnesses, and the specific formula of divorce must be pronounced.

Theories of Divorce
In early Roman law, marriage and divorce were essentially private acts of the parties. Whenever two persons wanted to marry they could do so, and whenever they wanted to put their marriage as under, they were equally free to do so. No formalities or intervention of an agency was necessary for either party. With the lofty ideals of liberty and equality of the Industrial Revolution sweeping England and the Continent of Europe, it no longer remained possible to regard marriage as indissoluble. Later, with the emergence of the offence or guilt, theories of divorce emerged, which are described below:
Fault Theory of Divorce
Initially, adultery was the only ground for divorce. In adultery, a certain amount of criminality is considered to be involved. Later on, cruelty and desertion were added as ground for divorce. The Indian Divorce Act, 1869, which applies only to Christian marriages, was modeled on the Matrimonial Causes Act, 1857 that provides adultery as the only ground for divorce. The fault theory is also the basis for divorce under the Parsi Marriage and Divorce Acts, 1936-88, as many grounds for divorce are recognised, and practically all the matrimonial bars have been enacted. Divorce was based only on the fault theory under Hindu Marriage Act, 1955. The consent theory and breakdown theory were introduced Later on.

Consent Theory of Divorce
The free-violation concept of marriage, if taken to its logical end, implies that the parties should have the same freedom of divorce as they have of marriage. If marriage is a contract based on mutual consent of the parties, the marriage should also be dissoluble by mutual consent of the parties without showing any cause. Many a time, people enter into transactions and later on want to get out of them. Similarly, parties may enter into a marriage and may later on want to get out of it. This theory is recognised under the Hindu Marriage Act, the Special Marriage Act, Parsi Marriage and Divorce Act and Muslim Law and Divorce Act, 2001.

Under Muslim law, divorce by mutual consent is recognised in two forms
Khul: Khul means to put off. In law, it means laying down by a husband of his right and authority over his wife for an exchange.

Mubbaraat: In mubbaraat, aversion is mutual i.e. both parties desire dissolution of marriage. Mubbaraat denotes the act of freeing one another mutually, and the proposal for divorce may emanate from either spouse.

Breakdown Theory of Divorce
It is obvious that both the fault theory and consent theory failed to provide adequate solution to the problem of the deadlocked wedlocks. A search for new basis of divorce, was inevitable. In Gollins V. Gollins, and William V.William cases, the courts said that the purpose of divorce law was not to punish the guilty spouse but to protect the innocent spouse.

In the modern laws of the world, the irretrievable breakdown of marriage theory of divorce has three versions:
  1. The law lays down that if a marriage has broken down irretrievably, it should be dissolved. The fact of the breakdown of the marriage is left for the determination of the court.
  2. The legislature lays down the criterion of breakdown. Once the criterion is satisfied, the courts ordinarily have no option but to dissolve the marriage. The Divorce Law Reforms Act, 1973, lays down that if the parties have lived separate and apart for a period of five years is considered to be sufficient indication of irretrievable breakdown of marriage.
  3. The criterion is of non-resumption of cohabitation after a decree of judicial separation or non-compliance to a decree of restitution of conjugal rights for certain duration. In either case, either spouse may sue for divorce.
While introducing the breakdown principle in Hindu matrimonial law, Parliament overlooked the fact that the structure of divorce was based on fault theory, with the result that Section 23 came for interpretation, the courts could not get over the dichotomy of guilt and innocence, and held that the petitioner could get relief only if it was established that he was innocent.

Recognition of Foreign Decrees in India on Marriage and Divorce
Presently in India, foreign divorce decrees have become very common. If they get divorce, either one or both parties may approach authorities in India to make mandatory changes in the legal documents like passport etc. Recently in India, rules related to change or deletion of the name of a spouse have become very difficult. Now, the name of a spouse can be removed from the passport of the other spouse only if the foreign divorce decree has been first recognised by an Indian court.

Efficacy of Foreign Decree of Divorce
The Hindu couple residing in a foreign land who are governed by the matrimonial laws in force at that place, the decree of divorce granted by the foreign court should be valid when Section 1 of Hindu Marriage Act, 1955 reads together. According to Hindu rights in India, Hindu married couples who are settled in foreign are mainly required by law to process divorce proceedings only as per the act. The main grounds exclude the scope of granting divorce on any other ground.

The following grounds are mentioned in the Hindu Marriage Act, 1955:
  1. Petitioner has been treated with cruelty;
  2. Petitioner has been deserted;
  3. Respondent has ceased to be a Hindu;
  4. Respondent has been of an incurable unsound mind.
In India, the Supreme Court in Y. Narasimha Rao and Ors V.Y. Venkata Lakshmi and Anr, 1991 case, observed that if a foreign judgment has not been given on the merits of the case, the courts in India will not recognized such a judgment. A judgment is said to be on the merits, when taking all the relevant evidence, he checks all the related aspects and then implying his mind to find the truth or falsity of the case, the Judge decides the case one way or the other.

Section 13 of Civil Procedure Code deals with the foreign judgment when it is inconclusive in nature. It shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them litigating under the heads, except:
  1. It has not been pronounced by a court of competent jurisdiction;
  2. It is not given on the merits of the case;
  3. When it has been obtained by fraud;
  4. When it oppose the natural justice.
If the foreign judgment not complies with the mentioned conditions, then it is not legally effective and binding.

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