Marriage is marriage. What distinguishes is the concept of marriage. The concept of marriage under Christian Law is that Marriage is a life-long tie whereas under Hindu System of Law it is a tie for Seven Lives.
As a necessary consequence marriages were ‘indissoluble’ and therefore, no provisions were available for dissolution of marriages under these two Systems of Law. Indeed, with the advent of time, both these two Systems of Law did introduce Reform to dissolve the ‘Happy Marriage’ if it turned out to be ‘Not- Happy Marriage.’ As against this, Muslim Law treats the Marriage as Contract. Necessarily, therefore, like any other Contract, marriage is treated as ‘Dissoluble’ and that being so, Dissolution of Marriage is provided for in the Muslim Law right from its inception.
The phraseology ‘Dissolution of Marriage’ requires explanation. The ‘Dissolution of Marriage’ is of very wide connotation. It includes (1) ‘Decree of Nullity’ and (2) ‘Decree of Divorce’.
While Decree of Divorce presupposes valid marriage, Decree of Nullity does not, on the footing that there being no marriage in the eyes of Law, the unholy alliance must end somewhere sometime! Further, grounds of Divorce and Decree of Nullity also differ – may not be entirely – for example, impotency is the ground of Decree of Nullity because marriage presupposes sexual intercourse and if that is absent, marriage has to be nullity and, if not, at least it must result in Divorce! Whether it is Divorce or a Decree of Nullity, the effect is same, marriage is dissolved and parties to marriage stand separated from each other.
Perhaps and in all probability, it is for this reason that, in common parlance, we take Decree of Nullity also as Divorce. But it is better that we bear in mind the fine distinction between the two. It is true that the Dissolution of Muslim Marriage Act, 1939 provides only for divorce and not for the Decree of Nullity but it turns to nothing because effect is same, Spouses stand separated – be it Decree of Nullity or Decree of Divorce.