No Fault Theory Of Divorce

By Sumit Kumar Suman, CNLU

Introduction

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce on more than one grounds specifically enumerated in Section 13. Some of the grounds initially inserted were substituted and some more grounds came to be added. It was in the year 1964 that sub-section (1-A) was inserted by which either party to the marriage was also given a right to apply for dissolution of marriage by a decree of divorce either where there has been no resumption of cohabitation for the period specified therein, after the passing of the decree for judicial separation; or where there has been no restitution of conjugal rights for the period specified therein, after the passing of the decree for judicial separation; or where there has been no restitution of conjugal rights for the period specified therein after the passing of a decree for restitution of conjugal rights. Under Muslim law, divorce is known as Talaq and it is an Arabic word and it means ‘to set free’.

It is only in unavoidable circumstances that Talaq is permitted in Islam as a lawful method to bring marriage contract to end.

The Shariah takes a very reasonable and realistic view of such a sad situation where marriage becomes impossible to continue and all means fails to bring the couple together, by permitting divorce as a last resort.

Concept of divorce

The concept of divorce is one that has become increasingly pertinent to today’s society.  People are bombarded by statistics about its rise and facts about the decreasing stability of the nuclear family.  Rates of divorce have increased so greatly over the past few decades that people have come to fear the institution of marriage. Causes of divorce and how it has evolved over the past three decades are issues that must be addressed in order to understand this problem.

While being surrounded by marital separation, our society is left to ask many questions.  What are some factors that lead to divorce?  What consequences or negative effects on adults and children are created by this societal breakdown?  What changes is divorce causing in the family structure of society?  How have divorce and marriage rates changed over the past 30 years?  The dissolution of marriage is without a doubt a problem for today’s society.  It is probably one of the biggest problems.

Children of divorce are often left with scars that do not heal.  Often children from divorced families have a more difficult time establishing intimate relationships.  The stress has even been shown to cause difficulty in performing school work for kids.  These groups of children will form the future families of U.S. culture, and their trust in the age-old union between a man and a woman has changed in the past years to the point where divorce has become a commonplace element of society.  Recognizing the changing rates of marriage and divorce are necessary for analyzing today’s family structure.  One cannot deny that these divorce rates show a relevant problem that must be researched in order to understand elements of family life today.

Divorce was unknown to general Hindu law as marriage was regarded as an indissoluble union of the husband and wife. Manu has declared that a wife cannot be released from her husband either by sale or by abandonment, implying that the marital tie cannot be served in any way. It, therefore, follows that the textual Hindu law does not recognize divorce. Although Hindu law does not contemplate divorce yet it has been held that where it is recognized as an established custom it would have the force of law.

Under Muslim marriage:

Islam insists upon the subsistence of marriage and prescribes that breach of the marriage- contract should be avoided. Initially, no marriage contracts to be dissolved in the future, but in unfortunate cases, it takes place and the matrimonial contract is broken. A marriage may dissolve:

  • By act of God;
  • By act of parties.

Grounds of divorce

The Act originally recognized the fault grounds for obtaining the decree of divorce. For this purpose, nine fault grounds were mentioned in the Act. Sec. 13(1) lays down these fault grounds, on which either the husband or wife could sue for divorce. Two fault grounds have been dealt with in the sec. 13(2), on which wife alone could seek the decree of divorce. In 1976, the grounds for divorce by mutual consent have been recognized through the provision of the Section 13B of the Hindu Marriage Act,1955.

Divorce

(1) Any marriage solemnized, whether before or after the commencement of the 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-

There are 9 grounds for divorce available to husband and wife both:

  1. Adultery– Whether the other party has after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse;
  2. Cruelty– where the other party has after the solemnization of marriage, treated the petitioner with cruelty as per Section 13(1) (ia);

  3. Desertion: Where the party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition as per Section 13(1)(ib) ;
  4. Conversion– Where the party has ceased to be a Hindu by conversion to another religion as per Section 13(1)(ii);

  5. Unsound mind– As per Section 13(1)(iii), where the party has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation– In this clause:

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia:

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind(whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or insusceptible to medical treatment.

6. Leprosy– As per Section 13(1)(iv), where the party has been suffering from a virulent and incurable form of leprosy; in Swarajya Laxmi v. Padma Rao,[i] the Supreme court held lepromatous leprosy is virulent. This type of leprosy malignant and contiguous. It is also an incurable from of leprosy and entitles the other spouses to a decree of divorce. The petitioner brought the divorce petition against the respondent on the ground of lepromatous leprosy and is was decreed.

7. Venereal disease– As per Section 13(1)(v) where the other party has been suffering from venereal disease in a communicable form;

8. Renunciation of the world– As per Section 13(1)(vi) has renounced the world by entering any religious order; it means renounced the world regarded tantamount to civil death and therefore, it is given as a ground for a decree of divorce. It doesn’t mean that a person becomes a sanyasi merely by the declaring himself a sanyasi.

9. Presumed death– where the other party has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; it means this clause provides that the either party may seek divorce on this ground if the other party has not been heard of as being alive, for a period of seven years or more by those person who would naturally have heard of it, had that party been alive. Thus the aggrieved party may marry again and have legitimate children.[ii]

There are 4 additional grounds for divorce available to the only wife:

  1. Bigamy– As per Section 13(2)(1) a wife may also present a petition for dissolution of marriage on the basis of by a decree of divorce on the ground that in the case of any marriage solemnized before the commencement of this Act, 1955, the husband has married again before such commencement or that any other wife of the husband married before such commencement of alive at the time of solemnization of marriage.[iii]
  2. Rape, sodomy or bestiality.Under s. 13(2) (ii) of the Act a wife is entitled to petition for divorce on the ground of rape, sodomy or bestiality committed on her by the husband. Rape is also a criminal offence and defined in s. 375 of the Indian Penal Code. A man is said to commit rape who has sexual intercourse with a woman against her will, without her consent, with her consent which is obtained by putting her in fear of death or of hurt, with her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married, or with or without her consent when she is under sixteen years of age. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

There is however one exception. No rape is committed by the husband on the wife if she is over fifteen years of age.

Sodomy is committed by a person who has carnal copulation with a member of the same sex or with an animal, or has non-coital carnal copulation with a member of the opposite sex.

Bestiality means sexual union by a human being against the order of nature with an animal. The commission of these offences by the husband must be proved by the wife either by witnesses as to fact or by evidence of an admission made by the respondent, such as a plea of guilty of his trial. Though these are criminal offences, but mere evidence of conviction for these offences is not sufficient to obtain a decree for divorce. In divorce proceedings, these offences are required to be proved b the wife de novo. Where the wife is a consenting party to the commission of any of these offences, her evidence should not be accepted without corroboration.[iv]

3. Non-resumption of cohabitation after decree or order of maintenance

Where a decree for maintenance of wife under 18 of the Hindu Adoptions and Maintenance Act 1956, or order for maintenance of wife under Section 125 of Cr PC 1973, has been passed against the husband, the wife is entitled to present a petition for divorce provided two conditions are satisfied. First, she was living apart, and secondly, since the passing of such decree or order cohabitation between her and her husband has not been resumed for at least one year or upwards, a decree of divorce would be granted.

4. Option of puberty– Wife is entitled to present a petition for divorce if her marriage was solemnized before her attainment of the age of fifteen years provided she has repudiated the marriage after attaining the age of fifteen years but before attaining the age of eighteen years. But the petition may be presented after completing eighteen years of age 13. In absence of a school certificate, the parents are the best witnesses of the fact of the date of birth of their children. Entries in a horoscope can be used to prove the date of birth and also by examining the person who wrote it.

Theory regarding divorce

The provisions relating to divorce is contained in Sec 13 of the Hindu Marriage Act, 1955. The Act recognizes two theories of Divorce:

  • Fault theory:

1. Divorce by mutual consent

Under the fault theory, marriage can be dissolved only when either party to the marriage had committed a matrimonial offence. Under this theory, it is necessary to have a guilty and an innocent party and only innocent party can seek the remedy of divorce. However, the most striking feature and the drawback is that if both parties have been at fault, there is no remedy available. Another theory of divorce is that of mutual consent.

The underlying rational is that since two persons can marry by their free will, they should also be allowed to move out of their relationship of their own free will. However, critics of this theory say that this approach will promote immorality as it will lead to hasty divorces and parties would dissolve their marriage even if there were slight incompatibility of temperament. Some of the grounds available under the Hindu Marriage Act can be said to be under the theory of frustration by reason of specified circumstances. These include civil death renouncement of the world etc.

2. No fault theory of divorce

Prior to 1976, Divorce was granted only on the basis of fault theory. It means marriage can be dissolved only when either party to the marriage had committed a matrimonial offence. But now Divorce can also be obtained on the basis of no fault theory, it means divorce can obtain by the mutual consent of the parties to marriage under the marriage laws (Amendment) Act, 1976.

According to Section 13-B (1), such a petition is required to be moved jointly by the parties to a marriage on the ground that they have been living separately for a period of one year or more and they have not been to live together and also that they have agreed that marriage should be dissolved.

As per Section 13-B (II) of the Act lays down that on the motion of both the parties made no earlier than six months after the date of the presentation of the petition referred to in sub-section (I) given above and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that averments in the petition are true, then pass a decree of divorce, declaring the marriage to be dissolved with effect from the date of decree.

Essentials of divorce by mutual consent:

According to Section 13-B, there are three essentials of divorce by mutual consent-

  • That both the parties have been living separately for a period of one year or more;
  • That both the parties have not been able to live together;
  • That both the parties have mutually agreed that their marriage should be dissolved.

It is an important to note that the consent obtained for divorce means divorce by mutual consent not obtained by force, fraud, it means consent must be free as per Section 23(1) of this Act.

The Karnataka High court in Krishna Murti Rao v. Kamalashi,[v] has said that on filling a petition jointly by the wife and husband the following points are to be proved for getting a decree under this section:-

  • The parties to the marriage are living separately for a period of one year or more;
  • They could not live together;
  • They have reached a compromise that they would dissolved the marriage; and
  • That they have consented to divorce not under any force or fraud or undue influence.

A Court of competent jurisdiction there upon motion (application)  being made by both the parties at any time after six months , but before eighteen months from the date of presentation of the petition, will make proper enquiries as it may deem fit. It is incumbent upon the Court to verify that the statements made in the Petition are true. This requires the Court to verify, by examination on oath, whether they have consented to dissolve their marriage, as stated in Petition.

After making necessary enquiry into the facts that marriage was solemnized, that the parties have not withdrawn the joint petition in the meantime, and that their consent continues, as stated in the Petition, on the day of examining the parties on oath. The Court has to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence If the court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce.

Thereupon, the Court will declare by decree that the marriages solemnized between the parties are dissolved. After the presentation of the Petition for divorce by mutual consent, either of the parties may retract his or her consent at any time or at the time of examination on oath and thereupon the Petition shall be dismissed.

It therefore follows that the parties even when having stated in the Petition that they have decided to dissolve their marriage by mutual consent, have an opportunity to retract or withdraw the consent at the time of examination on oath by the Court. The period of consideration of the petition only after six months of the presentation, imply that the parties are having an opportunity to re think on the decision of divorce and law gives ample opportunity to save the marriage.

However, it is incumbent upon the parties to move before the Court before eighteen months from the date of presentation of the Petition for divorce. The Court is not bound to pass a decree of divorce by mutual consent after a period of eighteen months for the date of presentation of the Petition.

In Smt. Sureshta Devi v. Om Prakash, [vi]the Apex Court has held that `living separately’ for a period of one year should be immediately precede the presentation of the petition. It is necessary that immediately preceding the presentation of the petition, the parties must have been living separately. The expression `living separately’, connotes not living like husband and wife. It has no reference to the place of living.

The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The meaning of the words in the Act that they `have not been able to live together’   indicates the concept of broken down marriage and it would not be possible to reconcile themselves.

In Ashok Hurra v. Rupa Bipin Zaveri,[vii] the Supreme court held that Suresshta Devi’s decision that “consent can be withdrawn at any time before the decree is passed” are to wide and requires reconsideration. In this case, the petition for divorce by mutual consent was pending for a considerably long period and the wife had not withdrawn her consent within 18 months from the date of presentation of the petition.

Neither divorce decree could be passed nor reconciliation could be brought about between the spouses. Moreover, during the pendency of the divorce proceedings, the husband had contracted another marriage and begot a child. Civil and criminal proceedings were also filed by the spouses against each other during the pendency of the suit. In view of the above facts, the Supreme Court held:

The cumulative effect of the various aspect’s in the case indisputably point out that the marriage is dead, both emotionally and practically and there is long laps of years since the filling of the petition; existence of such a state of affairs of warrant the exercise of the jurisdiction of this court under Articles 142 of the Constitution and grant a decree of divorce by mutual consent and dissolve the marriage between the parties.

Divorce by mutual consent under Muslim marriage

Under Muslim marriage (Nikah), a divorce may take place also by mutual consent of the husband and wife.[viii] Existence of any prior agreement or delegation of authority by the husband is not necessary for a divorce by common consent. It may take place any time whenever the husband and wife feel that it is now impossible for them to live with mutual love and affection as is desired by the God. A divorce by mutual consent of the parties is a peculiar feature of Muslim law.

There are two forms of divorce by mutual consent:

  • Khula
  • Mubarat

Khula:

The term ‘Khula’ literal meaning is considered as ‘to take off the cloths’. In this law, it means divorce by the wife with the consent of her husband on payment of something to him. In Islam, the wife was no right to take any action for the dissolution of her marriage. But, when Islam came in to existence, she is permitted to ask her husband to release her after taking some compensation. Quran lays down about Kula in the following words:

“If you fear that they (husband and wife) may not be able to keep within the limits of Allah, in that case, it is on sin for either of them if the woman  release herself by giving something (to the husband)[ix]

In the leading case Munshee Buzle Raheem v. Luteefutoon nissa,[x] the privy  council describes a Khula form of divorce in the following words:

“A divorce by Khula is a divorce with the consent and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In the case the terms of the bargain are matter s of arrangement between the husband and wife may, as the consideration, release her dynmahr (due dowr) and other rights, or make any other agreement for the benefit of the husband.”

Essentials of a valid Khula:

There are four essentials of a valid khula-

Competence of the parties: The husband and wife must be of sound mind and have attained the age of puberty(fifteen years). A minor or insane husband or wife cannot lawfully effect Kula. The guardian of a minor husband may not validly effect on his behalf.[xi]

Free consent: The offer and acceptance of Khula must be made with the free consent of the parties. But, under Hanafi Law, a Khula under compulsion or in the state of intoxication is also valid.[xii] But, under all other schools including Shia law, without the free consent of the parties, Khula is not valid.

Formalities: There is an offer by the wife to release her from the matrimonial tie. The offer is made to the husband. The offer for Khula must also be accepted by the husband. Until the offer is accepted, the divorce is not complete and it may be revoked by the wife. But, the once the offer is accepted, the divorce is complete and becomes irrevocable. Offer or acceptance may in oral or writing. The offer and acceptance must be made at one sitting i.e. at one place of meeting. Under sunni law, there is no any witness necessary at the time of the dissolution of marriage. But, in the case of Shia law, there must be two competent witness available at the time of the dissolution of marriage.

Consideration:

For the release, the wife has to pay something to the husband as compensation. Any some of money or property may be settled as consideration for Khula. There is no maximum or minimum limits as in  the case of dower. But once this consideration has been settled, it cannot be increased.

Mubarat:

Mubarat is also a divorce by mutual consent of the husband and wife. In Khula the wife alone is desirous of separation and makes the offer, whereas in Mubarat  the offer both the parties are equally willing to dissolve the marriage. Therefore, in Mubarat the offer for separation may come either from the husband or from wife to be accepted by the other. The essential feature of a divorce by Mubarat is the willingness of both the parties to get rid of each other, therefore, it is not very relevant as to who takes the initives. Another significant point in the mubarat form of divorce is that both the parties are equally interested in the dissolution of marriage, no party is legally required to compensate the other by giving some consideration.

Legal consequences of Khula and mubarat:

  • The wife is required to observe Iddat;
  • The wife is also entitled to be maintained by the husband during the period of Iddat;
  • If the consideration in Khula is not the release of the wife’s dower, the wife is entitled to get her dowry.

Conclusion

The Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there was no provision for divorce. The concept of getting divorced was too radical for the Indian society then. The wives were the silent victims of such a rigid system. Now the law provides for a way to get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors of such a provision are women who no longer have to silently endure the harassment or injustice caused to them by their husbands.

However, to prevent hasty divorces, the law lays down certain restrictions and grounds for obtaining a divorce. Before obtaining a divorce, the parties may first obtain a decree for judicial separation after which divorce may be obtained.

Formatted on February 20th, 2019.

REFERENCES:

[i] AIR 1974 SC 165.

[ii] Nirmo v. Nikkaram, AIR 1968 Del. 260.

[iii] Gita bai v. Fattoo, AIR 1966 MP 130.

[iv] http://www.legalserviceindia.com/helpline/divorce_for_wife.htm.

[v] AIR 1983 Karnt.235.

[vi] AIR (1992) S.C. 1904.

[vii] AIR (1997) SC 1266.

[viii] Under Hindu law, divorce by mutual consent was not possible before 1976. By an amendment in 1976, section 13-B was included in the Hindu marriage act, 1955 which now provides an additional ground for divorce by mutual consent, this ground has already been provided under section 38 0f the special marriage act, 1954.

[ix] Quran : Sura II, Ayat 229.

[x] (1861) 8 Moore’s Indian Appeals379 cited in Tyabji : Muslim Law, Ed. IV p. 182.

[xi] Tyabji : Muslim Law, ed. IV, p. 182. However, under Hanafi Law , the guardian of a minor wife may validly enter Khula on her behalf.

[xii] Rasid Ahmad v. Anisa Khatun, (1931) 59 IA 2I (All).

 

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