Everything you need to know about Dissolution of Parsi Marriage

The act provides for divorce:

1. After the Order of Maintenance [Section 32(h)]

2. After the Decree of Judicial Separation [Section 32-A (i)

3. After the Decree of Restitution of Conjugal Right [Section 32-A (ii)].

The concept in granting Divorce on the above grounds is same as in the case of Desertion and non-consummation of marriage. It is well to remember that’ the basic concept of marriage, socially and legally, is the sanctioned union of a man and a woman, implying cohabitation of the two. The design and object of marriage is both, procreation and mutual enjoyment, and it is neither solely for procreation nor solely for satisfying the lust.

It is hoped and believed that judicial separation may lead to reunion between the parties. But if it fails in its well intended aim, the law prescribes the decree of Divorce.’ The Act has thus provided that if the spouse fails to resume sexual intercourse as before, inspite of an attempt of law not to grant divorce at first instance, the divorce must be granted to the couple. Similarly, if the couple fails to reunite after the order of the court for restitution (resumption) of conjugal (marital) rights, the law prescribes Divorce for such couple.

(b) Order of Maintenance

If the wife is living with the husband, it is a hard case to find that the wife will move the Court of maintenance. Surely, a wife will approach the Court only when she does not live with the husband and the husband refuses to give money for her sustenance and maintenance. Therefore, there is no question of a joint maintenance and it will always be a separate maintenance.

However, what is implicit is made explicit by the Parsi-Act in Section 32(h) stating that the Magistrate should grant the separate maintenance. When the husband fails and neglects to maintain his wife living separately, the aggrieved wife has two remedies available to her. One is Civil Remedy and the other is Criminal Remedy. The Civil remedy flows from the substantive right of wife to seek maintenance from her husband under her personal law and the criminal remedy flows from the provisions of Section 125 of the Code of Criminal Procedure 1973.

The Act severs civil remedy under Section 40 of the Act and refers to the criminal remedy inasmuch as it refers to the Order of the Magistrate because only under Section 125 of Cr. P.C., the Magistrates have powers to grant maintenance to wife unable to maintain herself and living separately from her husband. It should, therefore, now be crystal clear that Section 32(h) of the Act provides for Divorce, if –

i. Wife has approached the Magistrate for maintenance under Section 125 of Cr. P.C.

ii. The Magistrate has granted maintenance to the wife.

iii. Thereafter, a period of ‘One Year’ or more has elapsed.

iv. The couple has not come together and has not resumed coitus

(c) Judicial Separation

(Read it with paragraph of Dissolution of Christian Marriage)

A decree of judicial separation under Section 34 does not dissolve the marriage tie. It merely suspends marital rights and obligations during the period of subsistence of the decree. During the subsistence of the Decree of judicial separation, the spouses continue to be husband and wife and neither is free to remarry if one of the spouses dies, during the subsistence of the decree of judicial separation, the other will succeed to the property of the deceased. But once the decree of Divorce is passed, the marriage tie is put to end and all mutual rights and obligations of the spouses cease.

Judicially separated wife does not mean wife living apart from husband. Possibly, the wife and husband, both, may live together under one roof or perhaps on one bed – but like strangers and refuse to indulge into marital intercourse. The two may choose to live together factually but the law will treat them as living separately, not living together and in the company of one another, after the competent Court of law has passed the Order (Decree) of Judicial Separation. The terminology cannot be used to include a wife merely living separately from the husband without any decree of separation from any courts.

The Act in Section 34 provides for a decree for Judicial Separation. However, if the decree for Judicial Separation is not complied with, it entitles either party to sue for Divorce under Section 32-A(i) of the Parsi Act.

As for the grounds of judicial separation under Section 34 of the Act, it may be noted that the judicial separation can be granted on any ground on which Divorce can be obtained.

The Divorce Act of Christians with regard to Divorce for non-resumption of conjugal relationship after judicial separation, under its Section 22 creates a bar on husband/wife from seeking Divorce at first instance and requires them to obtain judicial separation. Therefore, it only means that when parties cannot resume conjugal rights, after reasonable time, after the Decree of judicial separation was passed, it is necessary to grant divorce, as otherwise, the remedy of Divorce will not be available to them.

(d) Restitution of Conjugal Rights

The expression ‘conjugal rights’ means the ‘right’ of husband and wife, which they have (i) of each other’s society and (ii) marital intercourse. It is also the mutual right of husband and wife for the ‘consortium’. The remedy of restitution of conjugal rights dates back to era when marriage was considered a property deal and the wife was a part of man’s possession, like other chattels. The wife was treated like a cow. If it ran away from master’s shed, she could be roped back. Despite several reforms, the remedy of restitution of conjugal rights has come to stay unabolished.

Although the ‘right’ of consortium or the conjugal right is also a statutorily recognized right, it is the right arising from the very institution of marriage The Parsi Act in Section 36 provides for a Decree for Restitution of Conjugal rights. However, if the decree for restitution of conjugal right is not complied with, it entitles either party to sue for Divorce under Section 32-A(ii).

Since, the consortium right arises only if there is a legal and valid marriage, it is but natural that in case, the marriage itself is in dispute, the ‘burden of proof’ is upon the party seeking the consortium or conjugal rights. The right of restitution of conjugal right under Section 9 of the Hindu Marriage Act was challenged. Being ultra virus, the apex Court, however, did not uphold the challenge. Section 32 of the Divorce Act of Christians invests a right in the married couple to seek restitution of the conjugal right. The requirements of Section 32 of the Divorce Act of Christians are as under:

i. Husband or wife can file the Petition.

ii. Either of the two has withdrawn from the society of the other.

iii. The withdrawal from the society of the other must be without reasonable excuse.

iv. The Petition has to be filed in the local District Court.

v. The Court should be satisfied of (a) the truth of the Statements made by the Petitioner in the Petition and (b) there is no legal ground why the application should not be granted.

In fact, under any matrimonial law, the following should be the conditions to be fulfilled.

1. The Respondent should have withdrawn from the company of the Petitioner.

2. That withdrawal is without any reasonable or sufficient cause.

3. The court should be satisfied about the truthfulness made in the petition.

4. That there is no legal ground to refuse to grant the relief of restitution of conjugal rights.

Section 10(vii) of the Divorce Act of Christians lies down that marriage can be dissolved if Respondent (husband or wife) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the Respondent.

It is needless to record that when two spouses cannot fulfill their mutual right and do not resume marital cohabitation, it is just, fair and proper that the spouses part with company of each other. One can only say that ‘you can bring the horse to the water but you cannot make it drink’. No doubt, if the guilty spouse attempts to frustrate the attempt of compliance of decree of restitution of conjugal rights and on the top of it, ventures to approach Court for divorce for non-compliance of the Decree of conjugal rights, such a guilty party cannot be granted divorce.

At the outset, it must be recorded that it must be shown that there is a bonafide desire for resumption of cohabitation. If the respondent proves that there is no sincere desire but there is incompatible ulterior object in seeking the relief, the relief must be rejected. It was held that restitution of conjugal rights can be obtained only for the marital obligation towards husband and not for keeping the wife as a domestic servant with the parents of the husband. It should also be noted that mere staying away from each other in itself would not entitle the other spouse in obtaining the Decree for restitution of conjugal right. The Court held that wife can stay away from the husband only if there is a just cause.

The just cause must be ‘grave’ and weighty’, which may fall short of legal .cruelty, nevertheless, the reasons to stay away must be grave and weighty. However, merely taking a ground of cruelty in the Written Statement would not deprive the other spouse from seeking the decree of restitution of conjugal rights. It has been held that mere admission that he or she is living away from the Petitioner would not entitle the petitioner to get the decree for restitution of conjugal rights.

The provision that the withdrawal of company must not be without reasonable excuse is an important and vital ingredient in the Petition for the restitution of conjugal right. The Gujarat High Court declined to grant the decree of restitution of rights when wife was living away from her husband because of her employment but the husband had at all times access to the wife and had even stayed with her and had a female child.

The Court held that it was clearly a case of forced separation necessitated by the service conditions of the wife and unavailability of service at the place where the husband was living. The Rajasthan High Court held that the compel the wife to resign her job. In a case before Himachal Pradesh High Court, the woman was married when she was a minor. Later on, the husband was granted a decree for restitution of conjugal right. However, the wife contracted another marriage and filed an appeal against the decree for restitution of conjugal right.

The appellate court confirmed the order of the trial court and held that the second marriage cannot be a legal ground for refusing the relief of restitution of conjugal rights. It is held that although the judicial satisfaction is one of the necessary requirements, nevertheless, it is not necessary to prove the matrimonial offences.

The matrimonial offences are different from the reasonable excuse to stay away from the other spouse and the reasonable excuse cannot be substituted for the ‘matrimonial offences’ and seek proof of matrimonial offences. Once the factum of withdrawal of society is proved, the other spouse has to show the ‘reasonable excuse. If the spouse is causing, not physical injury but mental agony, it is a sufficient ‘reasonable excuse’ to refuse the relief of restitution of conjugal right.

The Hon’ble Supreme Court of India has held that Decree Holder of the decree for restitution of conjugal rights, if does not allow the other spouse to cohabit, it would be ‘wrong’. Such a Decree Holder would not be entitled to the Divorce for non-compliance of decree of restitution of conjugal rights.

The spouse who has not obtained the decree of restitution is not the ‘Decree Holder’ – such spouse if does not allow restitution of conjugal right to the Decree Holder spouse, although guilty of non compliance of ‘decree of restitution of conjugal right’, can undoubtedly seek the divorce on the ground that there is no restitution of conjugal rights.

Thus, it may be noted that, as held by the apex court in the aforesaid case, if Decree Holder is guilty of not allowing the non-decree holder to resume conjugal rights, he cannot seek divorce. However, the other spouse, the non-decree holder suffering from the misconduct and wrong of the Decree Holder, cannot be deprived of invaluable statutory right of divorce for non performance of Decree of restitution of conjugal right. Before the Bombay High Court, the husband had obtained the decree for restitution of conjugal rights. However, he did not allow his wife to comply with the decree of restitution of conjugal rights. The wife was held to be entitled to the divorce on the ground of non compliance of decree of restitution of conjugal right.

(e) Restitution of Conjugal Rights and judicial Separation Distinguished.

When the aggrieved party considers it ideal for him/her that guilty spouse should be compelled to keep the marital relations with him/her, the aggrieved party can move the Court for restitution of conjugal rights. However, if the aggrieved spouse is disinclined or disinterested in living with the guilty party, he/she can move the Court for Judicial Separation.

Therefore, it is for the aggrieved spouse to decide whether to go for restitution of conjugal right or for the judicial separation. As such, the restitution of conjugal rights and the Judicial Separation are the two sides of one and the same coin, the matrimony. Obviously, therefore, nothing can be the defence for restitution of conjugal rights, which can be the defence in the suit for judicial separation. This is clear from the express provisions of Section 33 of the Divorce Act of Christians. Section 32 of Divorce Act of Christians has to be read with Section 33. Section 33 lies down that nothing can be the defence for restitution of conjugal rights, which cannot be the defence in the suit for judicial separation.

(f) Withdrawal from Society and Desertion

The expression “withdrawal from the society” means bringing an end to cohabitation by voluntary act of either spouse. It means withdrawal from conjugal or marital relationship. The withdrawal from totality of conjugal or marital relation, such as refusal to live together, refusal to have sexual intercourse and refusal to give company and comfort. It is total rupture of marital tie of two in ownership.

If parties stay away on account of certain difficulty, it would not constitute the withdrawal from the society. It is well established that while the spouses are living together, mere refusal for sexual intercourse, does not amount to withdrawal from the society. So is the case where there is a mere refusal to have sexual relationship although both spouses are living together.

There is a sharp difference of opinion amongst the different high courts, on the issue where both spouses live separately on account of their respective employment (but occasionally they do meet) but for some reason or the other, the husband insists that wife must resign her job and join him. The Punjab and M.P. High Courts have granted divorce on the ground of desertion. However, the Allahabad High Court refused to grant the decree.

The Gujarat, Madras and Rajasthan High Courts have also taken the contrary view that mere withdrawal from the society does not amount to legal ‘withdrawal from society’. Indeed in these days of equality, staying away in such circumstances should not amount to withdrawal from society.

The Divorce Act applicable to Christians deals with the divorce on the ground of Desertion in Section 10 (1) (ix). The peculiar provisions in respect of the desertion under the Divorce Act of Christian may be clearly noted. The Divorce Act of Christians, under Section 27, accords complete protection to a deserted wife. Section 27 cannot be read in isolation and has to be read with Sections 28, 29, 30 and 31.

It may, however, be noted even before discussing anything further, it clearly be noted that Section 27 (Divorce Act of Christians) would apply only if Section 4 of the Indian Succession Act does not apply. Section 4 of the Indian Succession Act refers to Domicile and states that Part II (Domicile) of the Indian Succession Act would not apply if the deceased were a Muslim, Hindu, Buddhist or Jain. It is difficult to comprehend any relevancy of Section 4 of the Indian Succession Act with regard to protection of a deserted wife under Section 27 of the Act. Be it, as it is, for our purposes, suffice it would be to notice that Sector 27 (of the Indian Divorce Act) comes into operation only if Section 4 of the Indian Succession Act does not apply.

Section 27 (Divorce Act of Christians) lays down that deserted wife can apply to the District Court for the Protection. Section 28 vests powers in the Courts to grant the Order of Protection of her earning and Protection of her Property. Section 27 makes it clear that the said property may be (i) any description, (ii) acquired before desertion or (iii) might acquire after desertion or (iv) the property which might be in her possession at the time of desertion or (v) which might have come in her possession after desertion.

The Deserted Wife can seek protection against (1) her husband or (2) any one claiming through or under her husband or (3) Creditors of her husband. Section 28 (Divorce Act of Christian) lays down that the Court should be satisfied (a) of the fact of such desertion, (b) such desertion was without reasonable excuse, (c) deserted wife is maintaining herself by her (i) own industry or (ii) own property.

Only if the District Court is satisfied of these that it may make and give the Order protecting the (1) earning of the wife and (2) her other property from the husband, his creditors and any one claiming through him. The use of terminology ‘may’ necessarily mean that it is at the judicious discretion of the Court to grant the Order or not to grant the Order and the deserted wife cannot seek it, as of right. Section 28 casts a duty upon the District Court to record the time when the husband had deserted his wife. Once such a ‘finding of fact’ is recorded by the competent Court of Law, any controversy with regard to ‘time of desertion’ will be at rest and non est.

Necessarily, therefore, Section 28 lays down that all persons dealing with the deserted wife relying on the ‘finding of fact of ‘time of desertion’ recorded by the District Court will treated as the conclusive (evidence) as to the ‘time of desertion’. While, under Section 27, wife is fully protected against her husband with regard to her (a) earning and (b) property, the Husband his Creditors and any one claiming through him are also protected under Section 29, if (1) desertion has ceased and/or (2) if there is any other reason. Section 29 lays down that if desertion has ceased or if there is any other reason, the Husband, his Creditors and any one claiming through him, can move the court for the variation and/or the discharge of the Order passed by it under Section 27.

However, under Section 29, a duty is also cast upon the Court to be satisfied about the reason on which such variation or discharge is sought. Further, Section 29 deploys a phrase ‘may discharge or vary the Order’ which means that it is at the sole discretion of the Court (undoubtedly the. judicious discretion) to vacate or vary the order or not to vacate or vary the order passed by it under Section 27 and a Husband, his Creditors or anyone claiming through him cannot seek the Order of variation or discharge, as of right. Secondly, the Court would not pass the Order, suo moto (on its own motion) but the husband, his creditors or any one claiming though him will have to move the Court for the variation or discharge of its earlier order.

Thirdly, although the sole reason, on which the Order passed under Section 27 can be varied or discharged, is the cessation of desertion but the Act is silent on the other reasons on which such variation or discharge can be granted under Section 29. Fourthly, the Act is also silent as to whether any Court Notice needs to be given to the husband, creditors or anyone claiming through him before passing any Order against them under Section 27. Indeed, as is clear from the provisions of Section 30, the husband, his creditors or any one claiming through him must be given Notice after the Order is passed. Section 30 lays down that if a Husband (his Creditors or any one claiming through him) has seized any property of the wife, after passing of the Order under Section 27, not only that he will have to return the property to the wife but also he will have to pay, a sum equal to double the value of the seized property.

What would happen if the Husband (this Creditors or anyone claiming through him) seizes (the Wife’s) property even before the Order is passed under Section 27? The expansion (used in Section 30) “continues to hold any property of the wife after notice of any such Order”, if interpreted properly, would mean that the Husband (his Creditors or anyone claiming through him) will also have to return such property. Therefore, a husband (his Creditors or anyone claiming through him) not only cannot seize the wife’s property but also cannot continue to keep in his possession the property of wife after the Order under Section 27 is passed undoubtedly, the initial burden of proof to show that the property in the possession of Husband (his Creditors or anyone claiming through him) is that of the wife and is upon the Wife only.

But once the Wife discharges her initial ‘burden of proof’, it then shifts to the Husband and he has to show as to how the property came in his possession. If the property has to be recovered from the Husband (his Creditors or anyone claiming through him) and if he (his Creditors or anyone claiming through him) is to be made liable to pay double the value of the seized property, then it is necessary that the Husband (his creditors and/ or any one claiming through him) must be informed of the Order passed by the District Court under Section 27. Thus, it is clear that, if not before, at least after the passing of the Order. Notice has to be given to the Husband (his Creditors and/or anyone claiming through him), if he (or anyone of him) is to be held liable for the seizure of wife’s property. Section 36 also lays down that in order to hold the Husband (his Creditors or alone claiming through him) liable for the breach of the Order passed under Section 27, the wife has to file a Petition for which she is invested with such powers in express terms.

Lastly, it may be noted that from Section 27, it is clear that the wife is protected in respect of her property, whereas, from Section 28, it is clear that not only the property but also the earning of the wife is fully protected. Section 31 takes a leap forward and protects the “legal status” of the wife. It may however be noted that for seeking protection to the legal status, the wife need not move the Court afresh, the Order passed under Section 27 will be enough to protect her legal status. Section 31 does not require the wife to move the Court for seeking such protection. Section 31 lays that ‘so long as any order of protection remains in force’; it will have the same effect as that of the Order of Judicial Separation. By way of clarification, Section 31 lays down that ‘so long as any order of protection remains in force’, the wife (i) can sue, (ii) can be sued and (iii) can enter into contract independently in her own name and capacity.