SYNOPSIS FAMILY LAW

INSTITUTE OF LAW NIRMA UNIVERSITY

FAMILY LAW  –  I Synopsis On

Additional grounds of divorce for wife under Hindu, Muslim, Christian & Parsi Law

Submitted By Swapnil Jain 11BAL070

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Submitted To Ms. Sunita Sharma (Course coordinator)

Contents  

Introduction Research Methodology Statement of problem Aims and objective Hypothesis Style of writing Sources of Data Scope Tentative Chapters

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Review of Literature

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Bibliography

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INTRODUCTION “Divorce is an institution only a few weeks later in origin than marriage.” – Voltaire. All major religions have their own laws, which govern divorces within their own community, and separate regulations exist regarding divorce in interfaith marriages. Hindus, including Buddhists, Sikhs and Jains, are governed by the Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939. Civil marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1954. Under all the Indian Personal laws, dissolution of marriage is based on guilt or fault theory of  divorce. It is only under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954 and the Parsi Marriage and Divorce Act, 1936 that divorce by mutual consent and on the basis of  irretrievable breakdown of marriage are also recognized. Also, under Muslim law, the husband as the right to unilateral divorce. In order, to make the law more equitable the Dissolution of  Muslim Marriages Act, 1939 provides a woman married under Muslim law with the option of  seeking divorce on certain fault grounds. Additional Grounds for Divorce by a Wife

In addition to the grounds stated above a wife may also present a petition for the dissolution of  her marriage on the following grounds. Where the marriage was solemnized before the commencement of this Act, and the husband had married again before such commencement or that any other wife of the husband whom he had married before such commencement was alive at the time of the marriage. (In such a case its necessary that the other wife is alive at the time of presentation of the petition). That the husband has after the marriage been guilty of rape, sodomy or bestiality. That her marriage whether consummated or not was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of  18 years.

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RESEARCH METHODOLOGY Statement of Problem 

Is Indian society still a male dominated society? Do the women have the right of divorce?

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Is there a need of additional grounds in the laws relating to divorce? If yes, find out the best possible solutions.

Aims and Objectives The aim of this research paper is to study the various grounds for divorce available under the various Indian matrimonial statutes, looking at the similarities and differences between the personal laws. The objective of the paper is to find if it is possible to identify the commonalities and accommodate the differences in order to create a single, comprehensive law, at least regarding divorce.

Hypothesis 1) Indian society is still a male dominated society where women are considered as second class citizens .

2) Additional grounds are needed for protection of women. Women are misusing the grounds of  divorce

Style of Writing The descriptive and comparative styles of writing have been used in this project. The descriptive style has been used to describe the grounds for divorce available under Indian personal laws and the case law evolved under them. The comparative style has been used to compare the provisions regarding divorce under the various Indian matrimonial statutes.

Sources of Data Both primary and secondary sources have been used for the purposes of this research paper. Primary sources have been used in the form of case law, while secondary sources have been used in the form of books, articles and the Internet. 4|Page

Scope The researcher has decided to restrict the scope of this research paper to find the additional grounds on which a wife can file a divorce applicable to husbands only and not including in-laws family members under Indian personal law. The researcher plans to begin by examining the common aspects between the provisions of the various personal statutes and look at the legal implications of these. The researcher will also look at the elements of difference between the various statutes, keeping in mind the feasibility of trying to resolve such differences in order to come up with a single, comprehensive law, at least as regards divorce.

Tentative Chapters 1) Introduction 2) Hindu law; Hindu Marriage Act, 1955 3) Muslim law; Dissolution of Muslim Marriages Act, 1939 4) Parsi Law; Parsi Marriage and Divorce Act, 1936 5) Christian Law; Indian Divorce Act, 1869 6) Conclusion

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Review of literature The UPA government's decision to provide important legal safeguards for divorced women is welcome. The Marriage Laws (Amendment) Bill, approved by the cabinet, will give the woman, in case of divorce, half a share in her husband's residential property, regardless of whether the property was acquired before or during the marriage. This is the first time that the woman's share in marital property has been made part of the marriage legislation. And high time too. Activists have demanded for long that the woman be given the right to reside in her marital home, which would ensure a roof over her head, in case of matrimonial disputes, pending court  judgments. Mention can be made here of the Protection of Women from Domestic Violence Act, 2005 which has given the victim the right to reside in a shared household, besides providing for the payment of compensation to meet the expenses of the victim. There's no doubt that by changing old-fashioned marriage laws to empower women, the government has taken a step in the right direction. ADDITIONAL GROUNDS OF DIVORCE FOR WIFE (1) Husband having more than one wife living. If the husband has more than one wife living after the commencement of this Act, a wife may present a petition for divorce under cl. (i) of sub-sec. (2) of s. 13 of the Act. Only limitation on the right of a wife who applies for divorce under this provision is that the other wife should be alive at the time of presentation of the petition irrespective of findings that the petitioner was aware of existence of the other wife and that the husband was not guilty of cruelty. Delay as leading to an inference of condonation of or connivance or indifference to matrimonial wrong is not an appropriate consideration for cases under s. 13(2)(i) of the Act. The right of divorce given to the first wife by s.13(2)(i) does not depend on her conduct prior to the commencement of the Act. The existence of the first wife at the time of performance of the second marriage need not be established by direct evidence and that fact may be inferred from other facts proved in the case. (2) Rape, sodomy or bestiality. Under s. 13(2)(ii) of the Act a wife is entitled to petition for divorce on the ground of rape, sodomy or bestiality committed on her by the husband. Rape is also a criminal offence and defined in s. 375 of the Indian Penal Code. A man is said to commit 6|Page

rape who has sexual intercourse with a woman against her will, without her consent, with her consent which is obtained by putting her in fear of death or of hurt, with her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married, or with or without her consent when she is under sixteen years of age. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. There is however one exception. No rape is committed by the husband on the wife if she is over fifteen years of age. Sodomy is committed by a person who has carnal copulation with a member of the same sex or with an animal, or has non-coital carnal copulation with a member of the opposite sex. Bestiality means sexual union by a human being against the order of nature with an animal. The commission of these offence by the husband must be proved by the wife either by witnesses as to fact or by evidence of  admission made by the respondent, such as a plea of guilty of his trial. Though these are criminal offences, but mere evidence of conviction for these offences is not sufficient to obtain a decree for divorce. In divorce proceedings these offences are required to be proved b the wife de novo. Where the wife is a consenting party to the commission of any of these offences, her evidence should not be accepted without corroboration. (3) Decree or order of maintenance. Where a decree for maintenance of wife under s.18 of the Hindu Adoptions and Maintenance Act 1956, or an order for maintenance of wife under s. 125, Cr PC 1973, has been passed against the husband, the wife is entitled to present a petition for divorce provided two conditions are satisfied. First, she was living apart, and secondly, since the passing of such decree or order cohabitation between her and her husband has not been resumed for at least one year. (4) Marriage before attainment of the age of fifteen years. Wife is entitled to present a petition for divorce if her marriage was solemnized before her attainment of the age of fifteen years provided she has repudiated the marriage after attaining the age of fifteen years but before attaining the age of eighteen years. But the petition may be presented after completing eighteen years of age.13 In absence of a school certificate, the parents are the best witnesses of the fact of  the date of birth of their children. Entries in a horoscope can be used to prove the date of birth and also by examining the person who wrote it.

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(5) Consent obtained by force. Where divorce petition is filed by wife on the ground that her consent to the marriage was obtained by force and under threat but without making any complaint to that effect to the Registrar of Marriage at the time of registration, it cannot be inferred that her consent was involuntary.

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Bibliography BOOK:

Family Law by Subha Rao

WEBSITE: Vakil no 1 Muslim women ( IMWL) NEWSPAPER ARTICLES: Times now

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