What is the origin of divorce in Parsi marriage?

The Divorce is an institution only a few weeks later in origin than the institution of Marriage.

The dissolution of marriage is not permitted by the legal systems of Hindu, Parsi and Christian. They hold the view that marriage is indissoluble whereas the legal system of Mohammedan Law permits dissolution of marriage holding the view that marriage is a dissoluble contract.

The legal systems of Hindu, Christian and Parsi are therefore reformed so as to introduce the System of Dissolution of Marriage. The modern statutes no doubt gave recognition to the Dissolution of Marriage. However, it was permitted only if marriages are void or voidable. No difficulty would arise in cases where marriage is void or voidable because the concept of void and void ability is absolutely very clear.

But the difficulty arose in the cases where the marriage was valid, because the basic concept of Divorce was very much unclear. When one of the parties to the marriage is aggressive and on account of aggressive approach of that party, living with such aggressive party virtually becomes impossible, nevertheless, the aggressive party would insist that marriage tie should remain intact. The aggrieved party had no option but to submit to the will of the aggressive party. In order to come out of this difficulty, the Law has devised the Divorce and thus, the concept of Divorce has come on the statute books.

Scheme of dissolution of marriage under the act

The Act deploys three terminologies:

i. Divorce

ii. Nullity

iii. Dissolution

It is, therefore, very essential to demarcate the scope of each of the terminology. If marriage is valid as laid down in the Act and if parties to the marriage seek to break off from the marriage, they can do so by taking a “Divorce”. But if marriage is nullity or it is invalid then such a marriage can be put to an end by Order of Court, called as “Decree of Nullity”. In other words, ‘Divorce’ presupposes that the marriage was legal and valid and it did not suffer from any nullity or invalidity whereas ‘Decree of Nullity’ presupposes nullity or invalidity in the marriage.

Necessarily, therefore, the grounds for Divorce flow from the validity of marriage on “fault finding theory” i.e., either or both spouses are unhappy with the continuance of the marriage tie on account of the fault of the other spouse. The grounds of “Decree of Nullity” flow from the invalidity of the marriage. It may so happen that the spouses may not find any fault with the other. Possibly, neither party may be unhappy or possibly, both may long for the company of the other but the law declines them the company of each other and hence, they are compelled to part with the company of each other. Such a separation by the Order of Court, on application of the spouse or spouses, is called as the Decree of Nullity. The third terminology used in the Parsi Act is “Dissolution” – i.e., Dissolution of Marriage.

As a matter of fact, ‘Marriage’ can be dissolved either by Divorce or by Decree of Nullity. Take any mode of dissolving the marriage, result is the same i.e., the parties to the marriage are separated out on any of the listed grounds. However, the Parsi Act refers ‘Dissolution’ as a separate ground for dissolving the marriage, perhaps and in all probability, because (1) ‘Dissolution’ is not based on “fact finding theory” i.e., no fault as such can be found with the other spouse because the two have never come together and/or (2) Marriage although not void yet it is voidable. It brings to fore the new terminology, ‘voidable. Therefore, it would be appropriate to clearly and distinctly understand it (voidable) with reference to the term void.

Void and voidable marriages

The legal consequences of a valid marriage are: it confers a status of husband and wife on the parties. It confers a status of legitimacy on the children and it gives rise to mutual rights and obligations as well as rights against third person. No such consequences flow from a void marriage. Voidable marriage, on the other hand is a valid marriage till it is avoided and voidable marriage can be avoided only on petition by either party to the marriage.

If one of the parties does not seek annulment of marriage, it will remain valid and if one of the parties dies, the validity of marriage cannot be questioned. So long as voidable marriage is not avoided, all legal consequences of a valid marriage flow from it. But the Parsi Marriage and Divorce Act do not recognize the concept of voidable marriage, for some of the grounds of voidable marriage have been made grounds for the Divorce.