The Marriage is 'forever or never'. If it is 'forever', it is the "Happy Wedding". If it is 'for never' it is "Not Happy Wedding". The marriage 'forever' is legal and valid, the marriage 'for never' is invalid or void. In between the valid and void, there is a third category of 'voidable' marriage.
In this third category, either spouse or both the spouses have an option to accept or reject the marriage if marriage is accepted (by the party), it becomes valid 'forever'. But if the marriage is rejected (by them), it becomes invalid. Therefore, we have:
A. Marriage for ever (valid marriage)
(i) Valid from inception.
(ii) Voidable marriage when it is ratified and accepted.
B. Marriage for never (invalid or void marriage)
(i) Void from inception.
(ii) Voidable marriage, when it is rejected.
The legal process to separate the spouses of "Happy Wedding" or 'marriage for ever' is called as the Divorce in the legal phraseology. Whereas the legal process to separate the spouses of "Not Happy Wedding" or 'marriage for never' is called as the 'Decree of Nullity' in the legal phraseology. Whether it is the (i) 'Divorce' or the (ii) 'Decree of Nullity', the result is the same; the two spouses are separated from each other inasmuch as it is the 'Dissolution of Marriage'.
Thus, we are now introduced with the third legal phraseology, the "Dissolution of Marriage". The 'Dissolution of Marriage' is of wider import and includes in it two species, viz. the "Divorce" and the "Decree of Nullity." Obviously, therefore, the legal terms, the 'Divorce' and the 'Decree of Nullity' are of narrower compass. As aforesaid, the term 'Divorce' precedes on the legal presumption that marriage is valid forever and so- also in the case of voidable marriage after the marriage is ratified.
On the other hand, the term 'Decree of Nullity' proceeds on the legal presumption that the marriage is void and so also in the case of voidable marriage but only after the marriage is not ratified. Once it is taken that the marriage is valid, the correct and appropriate remedy to dissolve the marriage 'forever' is 'Divorce.' But when the marriage is taken as void, the correct and appropriate remedy to dissolve the marriage is the 'Decree of Nullity'. It would be worthwhile to note that the grounds on which the Decree of Nullity can be obtained and those on which 'Divorce' can be obtained are different and distinct.
The 'Grounds' for Decree of Nullity flow from the invalidity of marriage and the 'Grounds' for Divorce flow not from invalidity of marriage but from the desire of the spouse/s to rescind, revoke or cancel the valid 'marriage contract' on the available grounds. No doubt, whether it is 'Dissolution', 'Divorce' or 'Decree of Nullity', the net result [of all the three legal phraseologies, i.e., Divorce, Decree of Nullity and Dissolution] is separation of spouses from each other. So far as the 'Decree of Nullity' is concerned, the separation is inevitable because there was no marriage at all in the eyes of law and hence, the correct and appropriate remedy to dissolve such invalid marriage is the 'Decree of Nullity'. But in case where the marriage is valid, a debatable question arises as to whether it can be revoked or dissolved like a Contract.
The answer depends upon as to how the personal law treats the marriage, whether it treats the marriage, sacrament or sacrosanct contract. If the personal law treats the marriage as sacrament, the marriage is taken as indissoluble and hence, there is no question of separation of spouses even by Divorce. But if the personal law treats the marriage either (i) purely as "Contract" or (ii) as 'Sacrosanct Contract', the marriage is taken as a dissoluble and hence, the parties are permitted to rescind, revoke or cancel the 'marriage contract' by 'Divorce.' Now concentrating on the personal law of Christians, it may be noted that initially, it treated the marriage as 'sacrament' and so, no divorce was permitted.
However, with the advent of time, it is reformed and now the marriage is taken as sacrosanct contract so that the aggrieved party can take divorce to dissolve the marriage contract. Before entering the thickets of the subject, it would be interesting as well necessary to bear in mind the fine and thin distinction between 'no marriage' and 'void marriage'. The issue takes the central core when it becomes necessary to determine the legitimacy of the child. If there is no marriage at all, all systems of law treat the child illegitimate but if there is a marriage, which is void, the tendency is to accord legitimacy to the child.
Therefore, it is in this context, it is necessary to bear in mind the fine and thin distinction between the two. Suffice it would be to notice that void marriage presupposes a marriage, valid or invalid. But if there were no marriage, no question of determining its validity or invalidity would arise because ~no marriage' is an admitted fact.
Origin of divorce
The Divorce is an institution only a few weeks later in origin than marriage.
But since the New Testament treats the marriage as 'sacrament' or 'indissoluble', a complete dissolution of marriage i.e. 'divortium an inculo matrimania' for Christians was impermissible.
The Church of Rome allowed only the 'divorce a mensa et thoro', i.e. divorce from bed and board, equivalent to 'judicial separation'. The English Law, following the Roman Law, accepted the doctrine of 'indissolubility of marriage' and therefore, the Ecclesiastical Courts in England, exercising exclusive jurisdiction over matrimonial disputes refused to grant complete divorce. However, the religious aspect began to decay and the reform began to take its grip during the reign of King Henry VIII.
In fact, reform in divorce law brought the King Henry VIII into conflict with the Church of Rome. In any event, the reform gradually took its firm grip and with the advent of time, several enactments have come to be passed in tune with the modern concept of matrimonial law.
History of Indian divorce act
(a) Original enactment of 1869
During the British Raj, India enacted the Indian Divorce Act of 1869. The Indian Law of 1869 was based on a British enactment of 1852, which was scrapped in 1923 it. So far as the Indian is concerned, the Indian Divorce Act was brought into force on 26th February, 1869. No doubt, thereafter, the Indian Divorce Act was amended several times but those amendments were not exhaustive.
In order to amend and codify the law on Christian Marriage and Divorce, a Bill was introduced in the Parliament in 1952. However, before it could be passed, the Parliament was dissolved. As a result, the Bill lapsed. Thus, the Divorce Law in India remained so pure, original and unaltered that it ultimately became hopelessly outdated and unsuitable to Christians in India. Finally a day came in 2001 when the Parliamentarians amended the 132 years old enactment, the Indian Divorce Act of 1869.
(b) Amendments of 2001
The Indian Divorce is amended by two amendments, (i) The Marriage Laws (Amendment) Act of 2001 (49 of 2001) and (ii) Indian Divorce (Amendment) Act (51 of 2001) but it is not free from criticism.
(i) Amendment Act 49 of 2001: The Amendment Act of 49 of 2001 only aims at curbing the adjournments. The Special Marriages Act of 1954 (Sections 36 and 38), the Parsi Marriage and Divorce Act of 1936 (Section 39 and 49) and the Hindu Marriage Act of 1955 did not have any time limit for disposal of applications for alimony pendente lite. By Amendment of 49, the period of limitation for disposing of the applications for alimony pendente lite is introduced. By this Amendment, all the matrimonial laws, irrespective of personal laws, are amended. Thus, the Divorce Act, the Special Marriages Act, the Hindu Marriage Act and the Parsi Marriage and Divorce Act stand amended in respect of disposal of applications for alimony pendente lite.
(ii) Amendment Act 51 of 2001: The provisions of Section 7, whereby principles of English Law were enforced are deleted. Several 'Grounds' for seeking divorce by Christian (husband or wife) are introduced for the first time (Section 10). The 'Consent Divorce' too is provided for in the Act (Section 10 A). Consequent upon the amendment of Sections 10, 11 and 22, Sections 13 and 14 are suitably amended in consonance with Sections 16 and 17 of the Act. Section 15 is amended whereby the words "her adultery and cruelty" are omitted. Sections 16 and 17 are suitably amended to omit the provisions of confirmation of decree of a District Court by High Court.
Sections 18 and 19 are suitably amended to include the grounds of Decree of Nullity. The provision of confirmation of High Court if divorce is granted by District Court is removed from the statute book (Section 20). Sections 23, 27 and 32 are amended to invest jurisdiction in the District Court instead of High Court. Section 34 and 35 are deleted. Section 36 with regard to alimony is suitably amended. The ceiling of one fifth of husband's earning as alimony is removed. Section 39 is omitted. Section 40 suitably amended in relation to confirmation of Decrees of the District Courts. Section 43 is amended with regard to the custody of children. Section 44 is amended to bring uniformity in jurisdiction of High Court and District Courts.
Section 45 is amended to make the provisions of Code of Civil Procedure applicable wherever possible. Section 47 is amended with regard to Court Fee. Section 52 is amended so as to omit the provision of divorce on the only ground of adultery. Section 55 is amended so as to make uniformity in the provisions of appeal. Section 57 is amended to omit the cumbersome provision of remarriage after divorce. Section 62 is amended and powers to make rules are regulated in consonance with the provisions of Code of Civil Procedure.
(iii) Criticism of Amendment Act 51: By this amendment, the Indian Divorce Act is rechristened as the "Divorce Act." There appears to be no convincing reason as to why the word "Indian' from the title of the Act was dropped because the Indian Divorce Act of 1869 was and is the Indian enactment. Then why drop the word "Indian" from the title of the Act? Secondly, title ""Divorce Act' still has the same misgiving that it is the enactment for all Indians whereas it is restricted to Christians only. The appropriate title, therefore, should have been the "Christian Divorce Act." Be it as it is.
Section 3 defines in its subsection (5) the term 'minor. In it, it refers to 'native' father. One is at loss to understand the meaning of 'native' after independence. Again, it is difficult to appreciate the two different ages of minority, one for native fathers and the other for all the rest! Then, who would fall in the second category of minors? Section 4 transfers the matrimonial jurisdiction of High Courts in respect of divorce a mensa et toro and all other causes to other Courts and District Courts except its jurisdiction of granting of marriage licenses. It is difficult to comprehend the exception. It appears to be wholly irrelevant and redundant. Similarly, provisions of Section 5 too are wholly redundant inasmuch as it pertains to Supreme Court of judicature at Calcutta, Madras or Bombay sitting on the ecclesiastical side.
(c) Domicile - Resident
Section 2 provides for the Decrees of dissolution of marriage in which case, the 'parties' must be domiciled in India at the time of filing the Petition for dissolution. Firstly, the expression 'parties' must be taken to mean the Husband because Wife will have the same domicile as that of the husband. Secondly, it must be noted that if one seeks the Decree of Nullity, it is not necessary that the parties must be domiciled in India and suffice it would be if the Petitioner (and not the Respondent) is the 'resident' of India. There appears to be no logic or justification for inconsistency. Then, again, the Act neither defines the term 'resident' nor does it clarify as to when a Petitioner can be said to be the 'resident' of India and how long one should have resided in India to be called as the 'resident' of India. Be it as it is.
(d) Scope and applicability of the Act
The Act, originally, was applicable to the territories of British India. But by reasons of the provisions of (1) Indian Independence (Adaptation of Indian Laws) Order of 1948 and Adaptation of Laws Order of 1950, the then Indian Divorce Act came to be applicable to all the territories of Independent India after independence except the States of Jammu and Kashmir. This position is retained even after Amendment of 200land thus, the Act continues to apply to the whole of India except the State of Jammu and Kashmir.
(e) Act is applicable to Christians only.
Section 2 of the Act lies down that nothing in the Act shall authorize the Court to grant any relief except where Petitioner or the Respondent professes the Christian religion. Thus, from express language of Section 2, it does not appear that marriage should have been solemnized in any particular manner or form, suffice it is if one of the parties is Christian and domiciled in India.
The Courts, as such, have dissolved the marriages even though marriages were not in the Christian form. Even when a Hindu couple after conversion to Christian religion filed the petition for dissolution, the courts have granted the same although, prior to amendment of 51, the Madras High Court had held that no relief can be claimed under Section 10 of the Indian Divorce Act, 1869 when the marriage was solemnized under 'Seethirtha' form of marriage between a Hindu and a Christian.
Dissolution of Christian marriage
The Act proceeds on the legal presumption that marriage is 'forever or never. As such, marriages, under the Act, are either valid or void and there is no third intervening
category of voidable marriage. Necessarily, therefore, the Act provides for (i) 'Divorce and (ii) 'Decree of Dissolution' on the legal presumption that if voidable marriage is ratified, the marriage becomes valid and if it is not ratified, it becomes a void marriage. No doubt, the expression 'Dissolution of Marriage', used in the Act, is in the restricted sense to mean the "Divorce". Despite the amendment of the Act, as late as in 2001, the incorrect use is continued. Be as it is. Suffice for the purpose to note that Chapter III in the Act refers to and relates to the Divorce and Divorce only.
Divorce act for Christian marriage
As discussed in Chapter 1 of this Book, the Act, prior to amendment, contained most outdated and gender bias provisions, with regard to divorce. The Full Bench of the Bombay High Court was, therefore, pleased to strike down the said provisions. In any case, finally, the Parliament amended the 132 years old enactment to bring it in tune with the modern matrimonial laws in India.
In any case, it may be said that the marriage is the union of man and woman and the law accords its sanction to such a union. However, if one spouse is not available for the company, the entire edifice of the marriages breaks down and falls to the ground. Thus, if the other spouse is not available for because (i) the other spouse is imprisoned, (ii) whereabouts is not known, (iii) marriage is not consummated, (iv) of non-resumption of conjugal rights, (v) of non resumption of cohabitation after the decree of judicial separation, (vi) of desertion, the very purpose of marriage is defeated. As such, it is usual for all matrimonial laws to provide for the divorce on, inter-alia, on these grounds.