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WOMEN AND THE LAW

Fault and frustration

CHITRA NARAYAN

Here are two theories based on which a marriage can be dissolved

While marriage is a bond, which is closely associated with religion and its prescriptions, our matrimonial laws have accepted that marriage more resembles a contract, and that this relationship should be governed by more just and fair principles. It is this acceptance that brings issues of consent and defaults in obligations to the spouse, into the laws of marriage.

These also provide grounds for divorce or invalidation of the marriage. While the relationship cannot simply be reduced to being one of contract, given the intimacies and dependence involved, it is important that measures be available to the spouses to be able to address issues in their marriage and seek redress within and out of the relationship.

Marriage laws

Starting today, we look broadly at the contexts provided in the various matrimonial laws for divorce and invalidation of the marriage, and more particularly at the context of a breakdown of the marriage. To begin with, there are four theories of divorce — fault, frustration, consent and breakdown.

The laws of marriage and divorce are specific to the religions in India. We have therefore, the Christian Marriage Act, 1872, the Indian Divorce Act, 1869, the Parsi Marriage and Divorce Act, 1936, the Dissolution of Muslim Marriage Act, 1939, the Hindu Marriage Act, 1955, etc. These laws require either one or both parties to be of a particular religious denomination for its application. By way of exception, there is the Special Marriage Act, 1954, which gives an option to persons irrespective of religion to marry or register their marriages under this law.

All these laws provide contexts or grounds under which the marriage between parties could be dissolved through a decree of divorce, and grounds on which a marriage can be ruled to be void ab initio or voidable. Where a marriage is declared void ab initio, it means that the marriage is treated as not having existed at all. This covers situations where conditions perceived to be fundamental to the marriage relationship are absent or violated. (For example, a second marriage under Hindu law.)

The concept of a voidable marriage arises where a marriage is given up by a spouse in prescribed circumstances. (For example, where the other spouse is impotent, under Hindu law). The consequence of avoidance of the marriage and void marriages is the same, except that in the case of the former, it is only at the option of one of the parties to the marriage.

In the case of a void marriage, a third party could rely upon the fact that a marriage was void, to claim certain rights or deny them.

Grounds for divorce

Matrimonial laws provide certain grounds for dissolution of a marriage or for treating it as void or avoidable, under the `fault' and `frustration' theories of divorce. Broadly these are adultery, cruelty, desertion, disappearance for a continuous period of time, conversion to another religion, unsoundness of mind, imprisonment for commission of a serious offence, non-consummation of marriage, failure to maintain the wife, failure to perform marital obligations, impotency, pregnancy at the time of marriage, a spouse suffering from a communicable venereal disease, renunciation of material life (sanyasa), leprosy, husband being found guilty of rape, sodomy or bestiality, ages of the parties being below the prescribed minimum age, consent being obtained by force or fraud, either party having married prior to this marriage, essential ceremonies to the marriage not being performed, or the spouses being within prohibited degrees of relationship.

While some of these grounds are the basis for seeking divorce under some laws, these would be grounds for the marriage to be void or avoided under others. A few of these grounds are not common in all the matrimonial laws and vary depending on the religion. Some laws further provide recognition of customary or religious methods of divorce.

We will look at the `consent' and `breakdown' theories of divorce in the next column.

(chitra.narayan@gmail.com)

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