Divorce or dissolution of marriage is the ending of a marriage before the death of either spouse. It can be contrasted with an annulment, which is a declaration that a marriage is void, though the effects of marriage may be recognized in such unions, such as spousal support or alimony, child custody, child support, and distribution of property.
In some jurisdictions, a divorce must be certified by a court of law, as a legal action is needed to dissolve the prior legal act of marriage. The terms of the divorce are also determined by the court, though they may take into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that the spouses have agreed on privately. Often, however, the spouses disagree about the terms of the divorce, which can lead to stressful and expensive litigation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts. In some other countries, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non judiciary administrative entity.
The contract of marriage under the Mohammedan Law may be dissolved in any one of the following ways:
- By the husband at his will, without the intervention of a Court;
- By mutual consent of the husband and wife, without the intervention of a Court;
- By a judicial decree at the suit of the husband or wife
The wife cannot divorce herself from her husband without his consent, except under a contract whether made before or after marriage, but she may, in some cases, obtain a divorce by judicial decrees.
A. DIVORCE BY HUSBAND
Any Mohammedan of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause. A Talaq / Divorce may be effected (1) orally (by spoken words) or (2) by a written document called a Talaqnama / Divorce Deed.
No particular form of words is prescribed for effecting a Talaq. If the words are express are (saheeh) or well understood as implying divorce no proof of intention is required. If the words are ambiguous (kinayat), the intention must be proved. It is not necessary that the Talaq should be pronounced in the presence of the wife or even addressed to her.
Words of Divorce
The words of divorce must indicate an intention to dissolve the marriage. If they are express (saheeh), e.g., thou are divorced”, I have divorced thee”, or “I divorce my wife forever and render haram for me.”
A divorce must be pronounced orally in the presence of two competent witnesses and a talaq / divorce communicated in writing is not valid unless husband is incapable of pronouncing it orally. Presence of witnesses is a condition precedent of a valid talaq / divorce according to Fiqha Jafria. When both the spouses were governed by the Shia Law, divorce must be pronounced by the husband orally and in the presence of two competent witnesses. Divorce communicated in writing is not valid under Shia Law unless husband was incapable of pronouncing it orally.
According to Muslim Family Laws Ordinance, 1961, to give effect to talaq / divorce there are three requirements: (i) Pronouncement in accordance with Muslim Law; (ii) Service of Notice on Chairman; and (iii) Service of copy of Notice on wife. If any one of such conditions is not satisfied, the Talaq / divorce would not be effected even after 90 days. The procedure is given below:
Section 7 of Muslim Family Laws Ordinance, 1961
- Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq / divorce in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.
- Whoever contrivance the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand Rupees or with both.
- A Talaq / Divorce unless revoked earlier expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.
- Within thirty days of the receipt of notice under sub-section (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
- If the wife be pregnant at the time of talaq / divorce is pronounced, talaq / divorce shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.
- Nothing shall debar a wife whose marriage has been terminated by talaq / divorce effective under this section from remarrying the same husband, without an intervening marriage with a third person unless such termination is for third time so effective.
A divorce not routed through procedure contemplated by Section 7, does not become effective. Therefore talaq / divorce would be effective only after notice of talaq / divorce is given to Chairman and prescribed period of three months has expired. If no notice is given to the chairman, the talaq / divorce would not become effective because according to clause (3) the period is to be calculated from the date of notice to the Chairman and not from the date of the pronouncement of the talaq / divorce. But where the chairman does not constitute an Arbitration Council on receipt of notice or does not call upon the parties to nominate their representative or in any other manner fails to perform his statutory functions, the talaq / divorce will become effective on expiry of ninety days from the date of pronouncement notwithstanding such failure in performance of statutory duties.
Notice under Section 7(1) is to be given to the Chairman of the Union Council of the place where the wife to whom divorce has been pronounced was residing at the time to its pronouncement. The jurisdiction is given by the residence of the wife and not, as under the ordinary law, by the place where the marriage was contracted or where the couple last resided together. It is not even the permanent residence of the wife.
According to the Mohammedan Law a Civil marriage, solemnized at a Registrar’s office in London between a Mohammedan domiciled in Pakistan and an English woman domiciled in England, cannot be dissolved by the husband handing to the wife a Talaqnama / Divorce Deed, although that would be an appropriate mode of effecting the dissolution of Mohammedan marriage under Mohammedan Law.
The reason is that such a marriage is a Christian marriage by which is meant the voluntary union for life of man and one woman to the exclusion of all others; it is not a marriage in the Mohammedan sense which can be dissolved in Mohammedan manner. A Mohammedan marriage, being a polygamous marriage is not, for certain purposes of English Law, regarded as a marriage. But this reason ceases to apply when the wife becomes a convert to Islam.
Khula’ and Mubara’at
- A marriage may be dissolved not only by talak / Divorce, which is the arbitrary act of the husband, but also by agreement between the husband and the wife. A dissolution of marriage by agreement may take the form Khula or mubara’at.
- “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 such a case the terms of the bargain are maters of arrangement between the husband and wife, and the wife may, as the consideration, release her dyn-mahr (dower) and other rights, or make any other agreement for the benefit of the husband. Failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce, though the husband may sue the wife for it.A khula divorce is effected by an offer from the wife to compensate the husband if he releases her from his marital rights; and operates as a single irrevocable divorce (talaq-i-bain), and its operation is not postponed until execution of the khulanama (deed of khula).
- A mubara’at divorce like khula’ is dissolution of marriage by agreement, but there is a difference between the origins of the two. When the aversion is mutual, and both the sides desire a separation, the transaction is called mubara’at. The offer in a mubara’at divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is complete, and it operates as a talaq-i-bain as in the case of khula.
- As in talak/ divorce, so in khula’ and mubara’at, the wife is bound to observe the iddat.
Effect of Khula’ and Mubara’at Divorce
Unless it is otherwise provided by the contract, a divorce effected by khula’ or Mubara’at operates as a release by the wife of her dower, but it does not affect the liability of the husband to maintain her during her iddat, or to maintain his children by her.
B. JUDICIAL DIVORCE AT SUIT OF WIFE
The Dissolution of Muslim Marriages Act, VIII of 1939
The Dissolution of Muslim Marriages Act was passed in order to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie. The Act came into force on the 17th March, 1939 and lays down the following grounds of divorce.
Section 2 of Dissolution of Marriages Act, 1939
A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
- That the whereabouts of the husband have not been known for a period of four year;
- That the husband has neglected or has failed to provide for her maintenance for a period of two years;
- That the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;
- That the husband has been sentenced to imprisonment for a period of seven years or upwards;
- That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
- That the husband was impotent at the time of the marriage and continues to be so;
- That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
- That she, having been given in marriage by her father or other guardian before she attained the age of sixteen years; repudiated the marriage before attaining the age of eighteen year provided that the marriage has not been consummated;
- That the husband treats her or makes her with cruelty, that is to say:
- Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment , or
- Associates with women of evil repute or leads an infamous life, or
- Attempts to force her to lead an immoral life, or
- Disposes of her property or prevents her exercising her legal rights over it, or
- Obstructs her in the observance of her religious profession or practice, or
- If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran,
- on any other ground which is recognized as valid for the dissolution of marriage under Muslim Law.
- A decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the Court that he is prepared to perform his conjugal duties the Court shall set aside the said decree; and
- Before passing a decree on ground (v) the court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.
Where a marriage is dissolved by a decree of the Family Court, the court shall send by registered post, within seven days of the passing of the decree, a certified copy of the same to the appropriate Chairman, and upon the receipt of such copy, the Chairman shall proceed as if he had received an intimation of talaq / divorce required to be given under this Ordinance and the talaq/ divorce will be effective after 90 days of such intimation and where the decree for dissolution has been obtained by the wife on her suit it is necessary for the wife to independently inform the Chairman, Union Council, about the decree and also to send a notice thereof to the husband in a formal manner.
Section 4: Effect of conversion to another faith
The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage:
Provided that after such renunciation, or conversion, to woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the ground mentioned in Section 2.
Provided further that the provisions of this section shall not apply to a woman converted to Isalm from some other faith who re-embraces her former faith.
OUR LEGAL OPINION AND OBJECTIONS REGARDING JURISDICTION OF UK COURTS IN RESPECT OF DIVORCE AND FINANCIAL CLAIMS OF ANY ONE OF THE PAKISTANI SPOUSE LIVING IN UK
The objections are as follows:
REGARDING JURISDICTION IN RESPECT OF DIVORCE PROCEEDINGS
It is respectfully stated that:
Such decree may be made on any of the following grounds:
- That, we observe that this Hon’ble Court has no jurisdiction to adjudicate upon the matter and to grant a Divorce Decree to any Pakistani Muslim spouse living in United Kingdom whether permanently or for a fixed time. As while holding and enjoying nationality of Pakistan by any of the spouse, the Muslim Family Law Ordinance, 1961 (MFLO) will be applicable. The parties have to, in all circumstances resolve their matter stated in Schedule given at the end of West Pakistan Family Courts Act, 1964 through Family Courts established under Section 3 of the said Act. In addition therewith a marriage which was either solemnized in Pakistan or abroad by Pakistani Citizens according to tenets of Islam, would in all cases be governed by the provisions of Muslim Family Law Ordinance 1961, Dissolution of Muslim Marriages Act, 1939 and West Pakistan Family Courts Act, 1964.
- Section 1 (2) of Muslim Family Law Ordinance, 1961, clearly states that it applies to all Muslim Citizens of Pakistan, wherever they may be. The relevant section is reproduced hereunder for the perusal of this Hon’ble Court:
“1. SHORT TITLE, EXTENT, APPLICATION AND COMMENCEMENT: This Ordinance may be called the Muslim Family Laws Ordinance, 1961.
It extends to whole of Pakistan and applies to all Muslim citizens of Pakistan, wherever they may be.
It shall come into force on such date as the [Federal Government] may, by notification in the official Gazette, appoint in this behalf.”
In pursuance of this said provision of law, there are various judgments held by superior Courts of Pakistan under which the Divorce obtained by the citizen of Pakistan abroad are declared as unlawful.
REFERRED JUDGMENTS: 2005 CLC 481- in absence of express relinquishment of Pakistani Citizenship, both the parties would continue to fall within the ambit of Section 1(2) of MFLO 1961. 2002 CLC 1744, 1998 MLD 85 and 2009 YLR 2341
- That, it is important to bring into the kind Notice of this Hon’ble Court that all the marriages solemnized in Pakistan or abroad by the Pakistani citizens under Muslims Law are mandatorily required under section 5 of the MFLO, 1961 to be registered with the relevant Union Council. The relevant clause of Section 5 is as under:“5. REGISTRATION OF MARRIAGES: Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance.”
- That, the Pakistani citizens are required by law to register their marriage with the relevant Union Council (Statutory Body). In the same way it is also mandatory for them to follow the specific provisions of MFLO 1961 and Family Court Act 1964 in respect of their matter regarding dissolution of marriage including Divorce and Khula. Under Muslim Personal Law, divorce is a right of husband and he has the sole authority to pronounce it without having recourse to any Court proceedings. While Khula is the right of wife, for which she can apply only to a Muslim Judge.
- Rule 6 of the West Pakistan Family Courts Rules, 1965 states that the Family Court constituted under Section 3 of the West Pakistan Family Courts Act 1964 shall have the exclusive jurisdiction to try the suit for Dissolution to Marriage. The same principle is held in the following judgment:Citation Name:2009 YLR 2341 LAHORE-HIGH-COURT, LAHORESide Appellant:Brigadier (R.) SAEED ISMAT CHAUDHRYSide Opponent:JUDGE FAMILY COURTS.5 Sched.—West Pakistan Family Courts Rules, 1965, Rr. 5 6—Dissolution of Muslim Marriages Act (VIII of 1939), S.2—Suit for dissolution of marriage and recovery of maintenance—Spouses were Muslim holding dual nationality of Pakistan and United Kingdom (U.K.)—Solemnization and registration of marriage of parties in U.K. and its subsequent registration in Pakistan—Application by husband for return of plaint to wife as Family Court at Lahore lacked jurisdiction to entertain such suit—Validity—Marriage of Muslim Pakistani spouses irrespective of place of its solemnization would be governed by provisions of Dissolution of Muslim Marriages Act, 1939, Muslim Family Laws Ordinance, 1961 and West Pakistan Family Courts Act, 1964—Husband had not specifically denied wife’s assertion in plaint about her residence in Pakistan—Husband in his suit pending against wife in Civil Court had stated that both parties were residing in Pakistan—Application of husband was dismissed in circumstances.
PROCEDURE OF DIVORCE TO FOLLOW BY A PAKSITANI MUSLIM CITIZEN LIVING IN FOREIGN COUNTRIES:
- Definition of Divorce as provided by the Islamic Shari’a Council of 34 Francis Road, Leyton, London E10 6PW: Divorce are of two forms
- Revocable: One or two Talaq (Divorce) after which the husband has still a right to take his wife back (known as ‘Ruju’) within her Iddat period. No certificate is required.
- Irrevocable: Dissolution of marriage by a Muslim Qadi (Muslim Judge) or a Shari’a Council after which the husband has no right to take his wife back. But the divorcee may remarry the same husband with a new contract and dowry.
- Under Section 7 of Muslim Family Law Ordinance 1961, after pronouncing of divorce in any form the husband has to give written notice of it to the relevant Union Council of which jurisdiction will be determined in accordance with Rule 3 of the WEST PAKISTAN RULES UNDER THE MUSLIM FAMILY LAW ORDINANCE, 1961
- In determining Jurisdiction of Union Council, the residential address of wife at the time of pronouncement is considered
- In case she is not present in any part of Pakistan, that Union Council has jurisdiction where such wife last resided with such person
- while in other cases, the Union Council is competent to entertain the case where the person pronouncing Divorce is permanently residing in Pakistan
And its notice will also be delivered to his wife. The Union Council will after a period of 90 days (which period will be calculated from the date of service of Notice to the Union Council and to wife) on completion of certain legal formalities will issue him a Divorce Certificate.
- Moreover, under Notification No. S.R.O. 1086(K)/61, dated 8-11-1961, the function of Chairman Arbitration Council under Muslim Family Laws Ordinance, 1961, were to be performed by an appointed officer of Pakistan Mission abroad. Thus UK courts have no any authority to proceed in the cases regarding Dissolution of Marriage of parties belonging to Pakistan. Ref: 2009 YLR 1141
PROCEDURE OF KHULA (DIVORCE) TO BE FOLLOWED BY WIFE:
- Definition of Khula as provided by the Islamic Shari’a Council of 34 Francis Road, Leyton, London E10 6PW:The removal of the husband’s right to matrimonial life in the context of a correct marriage in exchange for financial return with the agreement of woman concerned.While Faskh (Dissolution), according to it, isthe dissolution of a procedurally incorrect marriage or a marriage dissolved by a Qadi of an Islamic Court in a Muslim Country, or by a body of Islamic Scholars in a non-Muslim country.
- Section 8 of the Muslim Family law Ordinance, 1961 states that in case where wife sought dissolution of Marriage or Khula from the Family Court, she has to follow the procedure laid down in West Pakistan Family Courts Act, 1964 and Section 7 of the Muslim Family Law Ordinance 1961.
- In the light of Fatwa ( Religious Opinion) obtained from a well-recognized Religious Institution:The fatwa obtained from Darul Iftaa, Jamia Darul-Uloom, Karachi, is as follows: “According to Shari’ah, a non-Muslim judge can neither grant Khula to Muslim woman, nor can he annul her Nikah (Marriage)”.
APPLICABILITY OF ARTICLE 3 OF THE COUNCIL REGULATION EC2201/2003:
The objection generally raised by the UK lawyer is that Under Article 3 of the Council Regulation EC2201/2003, where a Petitioner is habitually resident in a country having resided there for at least one year immediately before the Application for Divorce was made, a court will have jurisdiction with respect to that Divorce. It is pertinent to mention here that Pakistan is not the member of European Union, so such Council Regulation is not applicable on its nationals.
OBJECTIONS IN RESPECT OF FINANCAIL CLAIMS OF WIFE IN CASE OF KHULA OR DIVORCE IN LIEU OF KHULA
The marriage in Islam being in nature of a contract, dower is the consideration agreed between the parties, which the husband has to pay the wife either promptly or subsequently, in accordance with the terms of agreement. However, in case where the wife seeks Khula or Divorce from her husband, she is not entitled to it.
1. JUSTIFICATION IN THE LIGHT OF MUSLIM PERSONAL LAW:
Under Muslim Personal Law Khula is the right of wife, through which she can relieve herself from the marital obligations. But she has to seek it by adopting a judicial procedure. In order to get Khula the wife has to forego her dower money written in the Marriage contract.
a. REFERENCE FROM HOLY QURAN: Allah (SWT) says: “…And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul’ (divorce)…” (Al-Baqarah 2:229)
b. REFERENCE FROM AHADITH:
Explaining this Hadith, Hafiz Ibn-e-Kathir writes: It is not lawful for you to tease your women so that you may take the dower back. However if the disagreement does not dissolve and the wife dislikes the husband and does not fulfill his rights, then she can obtain Khula by giving the dower back.
Narrated Ibn ‘Abbas (RA): The wife of Thabit bin Qais came to the Prophet and said, “O Allah’s Apostle! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner (if I remain with him).” On that Allah’s Apostle said (to her), “Will you give back the garden which your husband has given you (as Mahr)?” She said, “Yes.” Then the Prophet said to Thabit, “O Thabit! Accept your garden, and divorce her once.” (Sahih Al-Bukhari)
c. FATWAS( RELIGIOUS OPINIONS) OBTAINED FROM WELL-RECOGNIZED RELIGIOUS ORGANIZATIONS:
The wife is not entitled to claim anything from the assets of her husband after seeking Khula and any such acquisitions are termed ‘HARAM’ in Islam, which means un-Islamic, unlawful, prohibited and ill-gotten wealth. The fatwa obtained from Jamia Ashrafia, Lahore, which is a well-recognized and reputable religious organization is as follows:
“There is no claim of wife on the assets of husband except livelihood during the life of husband. Therefore in the case under reference to divide 50% of the assets of husband to give to a divorced wife or after KHULA has no legitimacy as per SHARIA which is done in UK. And it is wrong to claim any such share by wife as per SHARIA”.
The fatwa obtained from Darul Iftaa, Jamia Darul-Uloom, Karachi, is as follows: The British law of Divorce, where a wife typically gets half of her husband’s assets is against shari’ah. Rather in case of Divorce, according to shari’ah if the husband didn’t pay his wife the Meher(dower), as she has not willfully forgiven it she will only be entitled for the Meher.
It is really remarkable in Islam that as soon as two sui juirs persons enter into contract of marriage so many rights are created but as soon as the marriage is dissolved, those rights will continue according to injunctions of Holy Quran.
However, if there is written anything in the Marriage Contract or any other lawful Agreement entered between her and her husband consciously, with due consent she can claim that with the exception of Dower money. In addition therewith if Divorce is given by husband, then also she is entitled to claim her Dower money, maintenance till Iddat period and any amount or gift given to her either through Marriage Contract or by any other means.
2. JUSTIFICATION UNDER PAKISTANI LAW APPLICABLE TO EVERY MUSLIM PAKSITANI CITIZEN WHETHER LIVING ABROAD OR IN PAKISTAN:
a.UNDER MUSLIM FAMILY LAW ORDINANCE 1961:
The Exception laid down in Section 10 of West Pakistan Family Courts Act, 1964 also lays down that wife has to forgo her right of dower if not taken by her but in case she has already taken that Dower amount from her husband she is required in case of Khula to return the same. The relevant Exception of Said Section is reproduced for the convenience of this Hon’ble Court as follows: “Provided that notwithstanding any decision or judgment of any court or tribunal, the family court in a suit for dissolution of Marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and also restore the husband the Haq Mehr received by the wife in consideration of Marriage at the time of marriage”
b. UNDER DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939 APPLICABLE WITHIN THE TERRITORIAL JURISDICTION OF PAKISTAN:
However under Dissolution of Muslim Marriage Act 1939, if the wife seeks divorce on certain grounds specified in its Section 2, from a Pakistani Court, then under Section 5 of the said Act, on confirmation of such grounds she will be only entitled to get her Dower money and nothing extra.
While the relevant section 5 is reproduced as under: “Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage.”
Keeping in view the above contentions, we are of the view that a Pakistani Muslim can be divorced in accordance with the laws as mentioned above and not in accordance with the laws prevalent in UK.
UNDER THE CHRISTIAN LAWS
Divorce Act, 1869 is relating to the divorce of persons professing the Christian religion, and to confer upon certain Court jurisdiction in matters matrimonial. There are three modes described for seeking Divorce:
- Dissolution of Marriage
- Nullity of Marriage
- Judicial Separation
A. Dissolution of Marriage (Section 10 of the Divorce Act, 1869)
When husband may petition for dissolution:
Any husband may present a petition to the Court of Civil Judge, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.
When wife may petition for dissolution:
Any female may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband:
- has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;
- Or has been guilty of incestuous adultery;
- Or of bigamy with adultery;
- Or of marriage with another woman with adultery;
- Or rape, sodomy or bestiality;
- Or of adultery coupled with such cruelty as without adultery would have entitled her to divorce a mensa et toro;
- Or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
Contents of Petition:
Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.
Adulterer to be co-respondent
Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from so doing on one the following grounds, to be allowed by the Court:
- That the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed;
- That the name of the alleged adulterer is unknown to the petitioner although he has made due efforts to discover it;
- That the alleged adulterer is dead.
In case the Court is satisfied on the evidence that the case of the petitioner has been proved and does not find that the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of.
Or that the petition is presented or prosecuted in collusion with either of the respondents.
The Court shall pronounce a decree declaring such marriage to be dissolved.
Provided that the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery.
Or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition, from the other party before the adultery complained of and without reasonable excuse.
Or of such cruelty towards the other party to the marriage.
Or of having deserted or willfully separated himself or from the other party before the adultery complained of and without reasonable excuse.
Or of such willful neglect or misconduct of or towards the other party has conduced to the adultery.
Condonation: No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal cohabitation has been resumed or continued.
B. Nullity of Marriage (Section 18 Of the Divorce Deed, 1869)
According to the Section 18 of the Divorce Act, 1869, any husband or wife may present a petition to the Court of Civil Judge, praying that his or her marriage may be declared null and void.
Grounds of Decree
Such decree may be made on any of the following grounds:
- that the respondent was impotent at the time of the marriage and at the time of institution of the suit;
- that the parties are within the prohibited decrees of consanguinity (whether natural or legal) or affinity;
- that either party was a lunatic or idiot at the time of the marriage;
- that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
C. Judicial Separation
According to Section 22 of the Divorce Act, 1869, No decree shall hereafter be made for a divorce a mensa er toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of as divorce mensa et toro under the existing law, and such other legal effect as hereinafter mentioned.
Application for judicial separation on any one of the grounds aforesaid may be made by either husband or wife by petition to the Court of Civil Judge; and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.
In every case of a judicial separation under this Act, the wife shall, from the date whilst the separation continues, be considered as unmarried with respect to property of every description which she may acquire or which may come to or devolve upon her.
A decree of judicial separation is a court order similar to divorce, under which the couple remains legally married but their normal marital obligations cease and they no longer have to go on living together.
In judicial separation cases, the court has the same range of powers as in divorce cases to issue orders on dividing the matrimonial property and providing for the custody, support and maintenance of children. A judicial separation also negates any provision for the spouse in a will, unless a new will is made which reinstates them as a beneficiary. However, unlike a divorced spouse, one who is judicially separated may still be eligible for benefits under a pension scheme on the death of their partner.
The application procedure for a judicial separation starts with one of the parties presenting a “Judicial Separation Petition” to the Court. A divorce petition can be used for this purpose, as long as it is amended by deleting the references to the marriage having “broken down” and the intention to dissolve the marriage. The Courts also require the completion of a “Statement of Arrangements” form, including similar information to that needed for a divorce, and the original Marriage Certificate, or a certified copy of this. The court fees payable are at a similar level to those for a divorce petition.
The grounds for judicial separation are much the same as for divorce, except that there is no requirement to prove that the marriage has broken down irretrievably, and the couple does not have to have been married for any minimum length of time. As with divorce petitions, grounds for judicial separation are adultery, unreasonable behaviour, desertion for at least two years, separation with consent for two years or separation without consent for five years. There is also the additional ground for judicial separation of ‘being habitually drunk’. Unlike in the case of divorce, only one decree is issued, once the court is satisfied that the requirements for judicial separation have been met.
The main circumstances under which judicial separation takes place are when one or both of the parties are opposed to divorce, perhaps for religious reasons; when the couple have been married for less than a year, during which there is an absolute ban on divorce; or when it may be difficult to provide the evidence of irretrievable breakdown of the marriage which is necessary for divorce.
A couple who have obtained a judicial separation can still apply for a divorce later on, after they have been legally married for at least three years. If they do so, the information they originally submitted in the application for judicial separation can be used again by the courts in considering their application for divorce.
If a couple decides that they wish to become full marriage partners again, they can apply for their judicial separation to be rescinded by the courts.
Under the Parsi Laws:
The Parsi Marriage and Divorce Act (III of 1936)
Under the Parsi Marriage and Divorce Act, 1936 there are 2 modes of Divorce:
- Suit for nullity
- Suit for Dissolution
- Suit for Judicial Separation
Suit for Nullity: According to the Section 30 of the Parsi Marriage and Divorce Act, (III of 1936), in any case which consummation of the marriage is from natural causes impossible, such marriage may, at the instance of either party thereto, be declared to be null and void.
Suit for Dissolution: According to the Section 31, if a husband or wife shall have been continually absent from his or her wife or husband for the space of seven years, and shall not have been heard of as being alive within that time by those persons who would have naturally heard of him or her, had he or she been alive, the marriage of such husband or wife may, at the instance of either party thereto, be dissolved.
Grounds of Divorce:
Any married person may sue for divorce on any one or more of the following grounds:
- that the marriage has not been consummated within one year after its solemnization owing to the willful refusal of the defendant to consummate it;
- that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit:Provided that divorce shall not be granted on this ground, unless the plaintiff:
- was ignorant of the fact at the time of the marriage; and
- has filed the suit within three years from the date of marriage.
- That the defendant was at the time of marriage pregnant by some person other than the plaintiff:Provided that divorce shall not be granted on this ground, unless:
- The plaintiff was at the time of the marriage ignorant of the fact alleged.
- The suit has been filed within two years of the date of marriage; and
- Marital intercourse has not taken place after the plaintiff came to know of the fact.
- That the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence;Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know on the fact.
- That the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to submit herself to prostitution:Provided that divorce shall not be granted on this ground if the suit has been filed more than two years:
- after the infliction of the grievous hurt; or
- after the plaintiff came to know of the infection; or
- after the last act of compulsory prostitution.
- That the defendant is undergoing a sentence of imprisonment for seven year or more for an offence as defined in the Pakistan Penal Code.Provided that divorce shall not be granted on this ground, unless the defendant has prior to the filing of the undergone at least one year’s imprisonment out of the said period.
- That the defendant has deserted the plaintiff for at least three years;
- That a decree or order for judicial separation has been passed against the defendant, or an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for three years or more since such decree or order;
- That the defendant has failed to comply with a decree for restitution of conjugal rights for a year or more; and
- That the defendant has ceased to be a Parsi.Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know of the fact.
Suits for Judicial Separation
According to Section 34 of the Parsi Marriage and Divorce Act, 1936 any married person may sue for judicial separation on any of the ground for which such person could have filed a suit for divorce, or on ground that the defendant has been guilty of such cruelty to him or her or their children, or has used such personal violence, has behaved in such a way as to render it in the judgment of the Court improper to compel him or her to live with the defendant.
Constitution of Special Courts under the Act
For the purpose of hearing suits under this Act, a special Court shall be constituted under Section 18 in such places in the territories of Provincial Governments as such Government respectively shall think fit.
Every Court so constituted shall be entitled the Parsi District Matrimonial Court of the place at which it is constituted. Every Appeal filed against the order of the court shall lie to the High Court.
Divorce under the Hindu Laws as applicable in India
As per the ancient Hindu laws there was no place for Divorce and it was with the codification of Hindu law that the first grounds for the new age laws were laid down.
Divorce between two persons married under the Hindu Marriage Act is also governed by the same act.
The Hindu Marriage Act, 1955 applies not just to Hindus in the ordinary sense, but any person who is a Buddhist, Jaina or Sikh by religion, domiciled in India and who is not a “Muslim, Christian, Parsi or Jew by religion.” The Act expressively prohibits polygamy by stipulating that a Hindu marriage can be solemnized between two Hindus if neither party has a living spouse at the time of marriage and that if they are not of unsound mind or not suffering from severe bouts of epilepsy. It prohibits child marriages by stating that bridegroom should have “completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage.” Certain types of marriages are explicitly prohibited in the Act, under the definition of prohibited marriages. A marriage may be solemnized through customary rites and ceremonies or by taking seven steps around the sacred fire or through a simple process of registration. Registration of marriage is however not compulsory. According to the Act, both parties to marriage have the right to claim their conjugal rights or seek judicial separation based on certain conditions. The Act also defines when marriages are voidable, such as when there was no consent of the guardian, impotency, pregnancy by another person before marriage etc.
According to Hindu Marriage Act, 1955 (India), divorce can be sought on certain grounds, namely, adultery, cruelty, desertion for two years, religious conversion, mental abnormality, venereal disease, leprosy, renunciation of the world, physical separation and absence of communication for more than seven years and so on. Following is an extract from the Act regarding these stipulations.
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:
- has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
- has, after the solemnization of the marriage, treated the petitioner with cruelty; or
- has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
- has ceased to be a Hindu by conversion to another religion ; or
- 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.
Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground:
- that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
- that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.
A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground:
- in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:Provided that in either case the other wife is alive at the time of the presentation of the petition;
- that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
- that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
- that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
- that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
According to the Act, both parties to a marriage may seek legal separation by mutual consent on the ground that “they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.” Newly married couple cannot file a petition for divorce within one year of marriage. Divorced couple can remarry if the divorced proceedings are complete and there is no right of appeal against the court decree. Bigamy is a punishable offence under the Indian Penal Code. An aggrieved party in a divorce petition may seek permanent alimony and maintenance from the other party while filing a petition for divorce and if convinced, the court may grant gross sum on monthly or periodical basis for a term not exceeding the life of the applicant.
Hindu marriage as an institution of family and society has undergone quite a number of changes in recent times. The position of women changed and she is not as dependent or subservient as her ancestors were. Still for many Hindus, divorce is the last desperate resort. The stigma associated with divorce is the biggest deterrent. It not only affects the couple involved, but their families and children also. Divorced people find it difficult to be accepted among their friends and family and find new partners. The problem is more acute in case of divorced women. The families involved on either side also suffer, especially if there are children of marriageable age. Dowry and interference of in-laws are two important causes of divorce. Many put up with the injustices, but a few take actions. There are many couples, who live together, though they have serious issues of compatibility, for fear of public humiliation and social disapproval or the love of children. Some women turn to religion to cope with the pressures of a difficult marriage or a difficult husband. Some live apart, under the pretext of working abroad or in some far away place.
Despite the progress achieved in recent times and the freedom Hindu women enjoy making their own decisions; marriage is still a sacred relationship in Hinduism. The Hindu law books have now given way to the principles of democracy and belief in the equality of genders. Compared to the marriages in the western world, Hindu marriages have a greater stability. A great majority takes the responsibility of marriage seriously and does their part in promoting social and family values through their adherence to ancient traditions and commitment to their children’s welfare. The balancing act calls for great patience. For the Indian judiciary, dealing with the cases of divorce is a big challenge because of the social and economic issues involved and the need to render social justice through timely dispensation of court cases, so that people can return to normalcy and leave behind their past, in a country where usually nothing is so easily forgotten, especially if it is something as important as marriage.
While Hindus who live in India have recourse to the Marriage Act and similar legislation passed in the aftermath of India’s independence, those living in other parts of the world may have to deal with their divorce issues through local courts, according to the laws prevailing in their countries. So far, most of the social issues related to Hinduism are being studied and interpreted from the Indian perspective. Perhaps it is time we begin to look at them from a global perspective and understand how each Hindu community in various parts of the world are coping with their social and religious lives and how the institutions of family and marriage are evolving there. Because Hindus are now in every country of the world, we need to know how they have been living and practicing their religion in the context of the local challenges, traditions and prevailing laws.
The Hindu Married Women’s Right to Separate Residence and Maintenance Act (XIX of 1946) (Pakistan Law)
According to Section 2 of the above Act, notwithstanding any custom or law contrary a Hindi married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds namely:
- if he is suffering from any loathsome disease not contracted from her;
- if he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him;
- if he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish;
- if he is married again;
- if he ceases to be a Hindu by conversion to another religion;
- if he keeps a concubine in the house or habitually resides with a concubine;
- for any other justifiable cause;
Provided that a Hindu married woman shall not be entitled to separate residence and maintenance from her husband if she is unchaste or cease to be Hindu by change to another religion or fails without sufficient cause to comply with a decree of competent court for the restitution of conjugal rights.
The Court shall determine the amount of maintenance to be paid by the husband to the wife while allowing a separate residence and maintenance under Section 2.
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