Remedies Available To The Parties To An Unhappy Marriage

ABSTRACT:

People who are unhappy in their marriages often speak of feeling trapped. They yearn to be free from the tension, loneliness, constant arguments or deafening silence but worry that divorce may not be the right decision. After all, they took their marital vows seriously. They don’t want to hurt their spouses. They don’t want to hurt their children. They panic at the thought of being alone. They worry about finances. Often people recognize that friends and family can be biased and, for that reason, decide to seek professional help for their marriage. An unhappy marriage hardly needs defining. We are talking about when you are stuck with spending the rest of your life with someone with whom you are not happy. It is a thorn in the flesh; it is painful. Today’s wife is not ready to merely live at the mercy of her husband and the members of his family. A sense of confidence and self-respect has come to be instilled in the wife in view of advanced socio-economic conditions. Unfortunately, going to a therapist when you are having marital problems doesn’t guarantee you will leave with your marriage intact. Some therapists believe that when a marriage stops being fulfilling or nurturing, it’s time to move on. They see divorce as a challenging, yet viable solution to marriage’s many problems. They appreciate the impact of divorce on children, but they prefer to focus on children’s resiliency and their ability to adjust. Although they might initially try to help couples beyond their differences, if the path to solution is rocky, they are quick to suggest calling it quits. They see divorce as a rite of passage. Some marriages do end in divorce, but my positive attitude has served my clients well. Most couples stay together and find renewed happiness with each other. Marriage is a personal contract between a man and a woman; nothing is sacred, sanctified, religious or divine in the union of man and woman. A contract may be withdrawn by either party or mutually. If marriage is contractual, devoid of religious sanctity, it ceases to be a necessary condition of social life. The male or female has the choice to marry, break away, or not marry at all. In a self-respect marriage, a contract upholds equality of sex, by implication it means that chastity is not a unisexual virtue, but is common to both sexes. Since a contract is breakable, once it is broken, the man and woman may have any other partner by remarriage. Periyar also advises the couple to wait for five years before deciding on pregnancy, and to confine themselves to one or two children, irrespective of its sex and to forget about children if they do not conceive. The woman is not a childbearing machine, says Periyar. Pregnancy is a biological burden, which is an obstacle to a woman’s freedom.

INTRODUCTION:

The wives are ready to face challenges in life. They are keen to become self-dependent. The spirit of forced tolerance of yesteryears is waning away. They are prepared to live separately rather than to stay united while unhappy.Sometimes anxious couples needing separation cannot avail of the remedy of divorce by mutual consent, merely because one of the parties tries to bargain in the matter or put conditions which may even be against public policy. It has been noticed that where a wife is keen to seek divorce her husband tries to harass her or dictate terms compelling her at times even to surrender her right to maintenance – a paramount right under the law. This unhappy situation could be avoided if the law is changed in tune with the changed values of our society.To begin with, you need to know that, first and foremost, therapists are people. No matter how well trained they may be, what you get when you seek therapy is the person behind the therapist. All people have life experiences that help shape who they are, their beliefs, their values, their morals, and their interests, and therapists are no exception. It’s literally impossible for therapists to check their values and perspectives at the door at the start of a therapy session.

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce on more than one grounds specifically enumerated in Section 13. Some of the grounds initially inserted were substituted and some more grounds came to be added. It was in the year 1964 that sub-section (1-A) was inserted by which either party to the marriage was also given a right to apply for dissolution of marriage by a decree of divorce either where there has been no resumption of cohabitation for the period specified therein, after the passing of the decree for judicial separation; or where there has been no restitution of conjugal rights for the period specified therein, after the passing of the decree for judicial separation; or where there has been no restitution of conjugal rights for the period specified therein after the passing of a decree for restitution of conjugal rights.

This apart, the wife has been given a right to apply for dissolution of marriage by a decree for divorce on certain further grounds stated in sub-section (2) of Section 13.The legislature in 1976 inserted Section 13-B in the Act making provision for divorce by mutual consent on the ground that both the parties to the marriage have been living separately for a period of one year or more and they have not been able to live together and they have now mutually agreed for the dissolution of the marriage, and to apply accordingly to the District Court.It is thus seen that the legislature has been conscious of the social developments and the need for making available the remedy of divorce in more and more situations.However, it is to be noted that none of the grounds made available for seeking divorce by either the husband or the wife, speak of irretrievable breakdown of a marriage as a ground of divorce.Due to various reasons in this country it is becoming more and more difficult for disgruntled couples to live together, on the ground of incompatibility. The need for separation, where the parties to the marriage cannot live together, has been recognised to a certain extent in Section 13-B whereby the right to apply for divorce by mutual consent has been conferred by the Act. Mutual consent is not always forthcoming and in many a case, there is much of dilly-dallying by one or the other party. Sometimes anxious couples needing separation cannot avail of the remedy of divorce by mutual consent, merely because one of the parties tries to bargain in the matter or put conditions which may even be against public policy. It has been noticed that where a wife is keen to seek divorce her husband tries to harass her or dictate terms compelling her at times even to surrender her right to maintenance – a paramount right under the law. This unhappy situation could be avoided if the law is changed in tune with the changed values of our society.

Today’s wife is not ready to merely live at the mercy of her husband and the members of his family. A sense of confidence and self-respect has come to be instilled in the wife in view of advanced socio-economic conditions. The wives are ready to face challenges in life. They are keen to become self-dependent. The spirit of forced tolerance of yesteryears is waning away. They are prepared to live separately rather than to stay united while unhappy.

HISTORY:

Marriage, variously defined as an institution, the bedrock of procreation and family life, a gamble, a life sentence or a heaven-programmed union between two people, is an ideal medium to gauge value shifts in society. Arranged marriages, not surprisingly, remain the most preferred option for most couples, but not arranged in the traditional sense. They are becoming flexible, adaptable, open-minded affairs, based on contemporary, practical and realistic factors. Match-making has come a long way from being the emotionally and socially loaded event ‘fixed’ by the aunt or the family pundit. It is now a modern industry chalked out on a bigger canvas with small middlemen playing a key role. Many marriages are fixed via matrimonial columns and matrimonial.

REFORMS IN HINDU MARRIAGE CUSTOMS

The British succeeded in passing regulation XVII in 1829, which declared sati illegal and punishable by courts. The position of women in the nineteenth century was changing, thanks to the endeavours of social reformers like Raja Ram Mohun Roy and Ishwar Chandra Vidyasagar, and later in the twentieth century, in South India by social reformers such as E.V. RamasamyPeriyar. In fact, one of the distinguishing characteristics of modern society is the heavy reliance on law to bring about social change. In India, the first movement for women’s marital rights centred on the three major problems of child marriage, enforced widowhood and property rights for women. The traditional concept of marriage has greatly changed now and Hindu marriage today has assumed more or less the nature of a contract for the mutual benefit of the parties concerned, duly aided by various legal provisions and reforms.

THE CONFLICT PERSPECTIVE OF MARRIAGE (WITH A SPECIAL EMPHASIS ON DIVORCE)

The increasing acceptance of divorce has dramatically altered the marriage situation. While couples still marry at the same constant rate, more than half of all couples married in the USA are now divorced. In India, even though the rate of divorce is not alarming, it is rapidly increasing—presently it is 5%–7%. The vast majority of those divorced remarry, and the second marriage tends to last for the remainder of their lives. There are many in our society who believe that easy marriage and divorce cheapen the institution of marriage and threaten the structure of the family. This may or may not be true, but either way, laws in reality have very little impact on the rates of marriage and divorce. Laws are a reflection of people’s needs, they make it easier for people to live with each other and try to ensure that everyone gets fair treatment. Society cannot dictate social and moral behaviour through its laws. If laws do not fit, people will tend to disregard them. This is why so many people choose to live together in the West instead of marrying, as marriage does not fit their situation. Perhaps we would do better to make marriage fit the people, rather than trying to make people fit the institution.

Divorce

Is it a personal tragedy, a family embarrassment, or a social problem? Or, is it a new lease of life, a chance to start all over again, a chance to make something positive out of something that has turned negative? This is a matter of perspective, depending on how deeply one believes in the ‘till death do us part’ clause of the marriage contract. After months and even years of living with many differences and experiencing fights, frustrations, hurt and anger, a couple may seek divorce as the only viable alternative. At this point, marriage or relationship counselling may provide the couple with new skills in communicating and understanding each other.

Divorce is the emphasis on choice carried to its final limits as far as relationships go. People marry to prove their sense of commitment and to find security. In marriage, however, many find that commitment is situational and security is a figment of the imagination. The concept of divorce prevention revolves around making a mature choice of partner in the first place, making supreme efforts to grow at a parallel pace and continuing to foster the love relationship with care, respect and, above all, good communication.

Family disorganization occurs when statuses are not occupied or roles are not performed. Divorce, death and violence—themselves caused by social and ecological factors—are major causes of family disorganization. The greatest havoc wrought by divorce is the disruption of family life. Divorce in some cultures is no longer viewed as a last resort, but rather as an everyday occurrence. But where marriage is accepted as a sacrament, divorce is bound to be a sacrilege. There are many factors that are responsible for divorce. One of the most important causes has been found to be social change. The process of social change sets into motion a series of changes—in values, in customs, in ways of living, in roles of different people. Technological changes have led to urbanization. Urban society is highly heterogeneous as well as individualistic. The urban attitude is one of non-interference in the affairs of other people. Thus, the social life of urban people also exposes them to a variety of situations that can retract from the bond of attachment to the family. These situations therefore make divorce much easier.

The status of women in the family and society is another factor to be considered. The modern woman, because of her opportunities for education, training and employment, and creative activity, has developed into a self-dependent and self-confident individual. This can lead to difficulties in adjustment in marriages, especially for women who have lived an independent and creative life before marriage. The scope for material prosperity has shifted social values from the spiritual and moral to the material. This change in values has encroached into the realm of marriage too. The wave of progressive liberalism and individualism has made insipid and outmoded the feelings of faithfulness and loyalty. The mass media has played an important role in changing such values. The influence of cinema, television and other media on the younger generation indirectly affects divorce rates. Besides social and cultural differences between the partners, infertility, and the social stigma attached to it, is also a cause for divorce.

Hindu Marriage Act, 1955

This is an Act to amend and codify the law relating to marriage among Hindus. This enactment of 1955 has been subsequently amended eight times from 1956 to 2003. The Marriage Laws (Amendment) Act, 1976 has brought about considerable changes in the original Act. The Hindu Marriage Act applies to Hindus, Buddhists, Jains and Sikhs. The Act of 1955 provided for four types of matrimonial relief: (i) restitution of conjugal rights, (ii) judicial separation, (iii) declaration of nullity and annulment, and (iv) divorce. Divorce was the most radical social reform. The dharmasashtras did not recognize divorce. By 1955, marriage came to be accepted as essentially a contract. The issue of divorce then comes as a natural consequence.

Adultery, desertion and cruelty were looked upon as ‘matrimonial offences’ which needed to be punished and divorce was used as an instrument for punishing people guilty of such offence. This was initially called the ‘offence theory’ of divorce. Later, insanity was added as a ground for divorce and came to be regarded as a ‘matrimonial offence’, though insanity or unsoundness of mind is a misfortune, not a cause for guilt. Since diseases like insanity could not be categorized as an offence, the ‘offence theory’ was renamed as the ‘fault theory’. That is, if the respondent had ‘some fault’, which made continuance of cohabitation at most impossible, the petitioner was entitled to divorce.

Condition for a Hindu Marriage

Section 5: A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled: (i) neither party has a spouse living at the time of marriage; (ii) at the time of marriage neither party (a) is incapable of giving valid consent in consequence of unsoundness of mind, or (b) though capable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children, or (c) has been subject to recurrent attacks of insanity (the words ‘or epilepsy’ were omitted by Act 39 of 1999, Section 2); (iii) the bridegroom has completed 21 years and the bride has completed 18 years at the time of marriage; (iv) the parties are not within the degree of prohibited relationships; (v) the parties are not sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two.

Section 5, Clause (ii): Mental health

This clause requires that neither party to the marriage must be incapable of giving valid consent because of unsoundness of mind. The expression ‘unsoundness of mind’ has to be understood as lack of a state of mind or capacity to understand one’s affairs or marital obligations.

Original provision

This clause has been amended by the Marriage Laws (Amendment) Act, 1976. The original provision was, ‘neither party is an idiot or lunatic at the time of marriage’.

The term ‘unsoundness of mind’ in the present provision is more comprehensive. Idiocy and lunacy are types of unsoundness of mind. Idiocy is manifested by indecency of behaviour, dirtiness in habits or by vacancy of aspect or by inability to understand the commonest rules of arithmetic. Unsoundness of mind is depravity or ‘mania’. A person of dull or feeble intellect may not understand the nature of a marital relationship.

Unsoundness of mind is not the same thing as ‘feeble mindedness’ or ‘dullness of intellect’. It is not a disquali-fication for marriage because a person of dull or feeble intellect may understand the nature of a marital relationship. In addition, neither party should be suffering from mental disorder of a type and to an extent as to render the party unfit for marriage and the procreation of children. A party could be said to be unfit for marriage if the party is not able to understand the nature and implication of a marital relationship. A party would be unfit for procreation if the party would not be able to look after or maintain the children from the marriage, or the children would be likely to be suffering from the same mental disorder or defect. The word ‘and’ between the expression ‘unfit for marriage’ and ‘procreation of children’ should be read as ‘and/or’. The court can nullify the marriage if either condition or both the conditions contemplated exist. The word ‘procreation’ includes the capacity to rear children besides the capacity to beget them.

CHANGES:

REASON FOR UNHAPPY MARRIAGE

Marriage and depression

There has been considerable interest in the role of marital status as a risk factor for depression. For men, it appears clear that those married have the lowest rate of depression, while separated or divorced men have the highest rate of major depression. In women, the association is slightly less clear, but in the Epidemiologic Catchment Area (ECA) study, the same findings applied to women as well as men.5 Under-standing the nature of the association between marital status and rates of depression is more problematic. If personality is a risk factor for depression, then the same traits can interfere with the ability to marry or to stay married. There is little doubt that depression sometimes contributes to marital maladjustments and separation or divorce. Finally, the stress associated with divorce or separation can increase the likelihood of occurrence of an episode of depression.

In the context of marital relationship, previous research has indicated that for men, marriage confers protection against illness, while it appears to be associated with higher rates of depression for women. There has been some evidence that within marriage, the traditional role of the female is limiting, restricting and even boring, which may lead to depression.

Major depressive disorder occurs most often in persons without close interpersonal relationships or in those who are divorced or separated. Bipolar I disorder is more common in divorced and single persons than among married persons. However, this difference may reflect the early onset and the resulting marital discord characteristic of the disorder. Various social and interpersonal problems may also contribute to depressive relapse. Unhappy marriages seem to be important and a particularly relevant feature of marriage is criticism of the patient by the spouse. Women experiencing marital disharmony suffer from feelings of betrayal, humiliation and shame, which may pave way for developing a depressive disorder.

Children separated from their parents as a result of marital problems and divorce do subsequently have increased rates of depression. Children of divorced parents have more psychological problems than children of parents who are not divorced. It is not certain how far these problems precede the divorce and are related to disharmony between the parents or to the behaviour of one or both parents that contributed to the decision of divorce.

Alcohol and marriage

Excessive drinking is liable to cause profound social disruption, particularly in the family. Marital and family tension is virtually inevitable. The divorce rate among heavy drinkers is high and the wives of such men are likely to be anxious, depressed and socially isolated. The husbands of battered wives frequently drink excessively, and some women admitted to the hospitals because of self-poisoning blame the drinking habit of their husbands. The home atmosphere is often detrimental to the children because of quarrelling and violence. A drunken parent provides a poor role model. Children of heavy drinkers are at risk of developing emotional and behavioural disorders, and of having poor academic performance at school.

Western studies have shown that almost 80% of domestic violence is due to alcoholism. Indian studies also corroborate this. Addiction seems to be the predominant cause in 50%–60% of cases of domestic violence that have been reported. Marital relationships suffer most harshly from the ravages of addiction. It destroys all that is dear to the spouse, including family life, sexual relationship, economic resources, well-being of the children and status within the community. The wife witnesses the husband’s addictive behaviour with increasing abhorrence; often she is also subjected to violence. Women affected by addicted husbands suffer from common difficulties and seem to develop similar behavioural patterns. Never married adults are at the most risk for alcohol and drug dependence.

Marriage and suicide

Compared with the general population, people who have died of suicide are more likely to have been divorced, unemployed or living alone. Social isolation is a common factor among these associations.

Marriages reinforced by children seem to lessen the risk of suicide significantly. The suicide rate is 11 per 100,000 for married persons, double this rate is registered for those never married/single. Previously married persons, however, showed sharply higher rates than those never married, i.e. 24 per 100,000 among widowed and 40 per 100,000 among those who are divorced, with divorced men registering 69 suicides per 100,000 compared to 18 per 100,000 among divorced women.

Suicide research in India shows that one-fourth of the persons committing suicide are unmarried and the suicide rate is highest in the first year of marriage. Marital and family problems, which constitute around 50%, are more important than mere cruelty. The higher rate of married women committing suicide may probably be due to marital disharmony, dowry or ill-treatment by the in-laws.

Antisocial behaviour and marital disharmony

Two types of behaviours point indirectly to the importance of parents’ behaviour and of enduring family relationships as a cause of antisocial personality disorder. First, there is evidence that parental separation usually follows a long period of tension and arguments that could themselves affect the child’s development. Second, the behaviour of parents is an important cause of childhood behavioural disorders. For example, the association between separation and antisocial disorder in sons is determined by disharmony in marriage.

Anxiety disorder and marriage

Batra and Gautam6 found a high prevalence of neurotic disorders among divorce-seeking couples. The neurotic problems are encountered either as antecedents or con-sequences of marital disharmony.

A study comparing marital status in obsessive–compulsive disorder (OCD) patients with that in a matched group of patients with major depression found no significant differences between the two groups. A prospective study of 107 subjects with OCD found that being married significantly increased the probability of partial remission, with married persons being more than twice as likely to remit as unmarried ones.

Patients with schizophrenia are more likely to remain single and unmarried than patients in other diagnostic groups. This is particularly true of male patients and can probably be explained by the fact that women tend to be younger than men when first married and are less likely to have experienced an initial psychotic episode. From a cultural perspective, women are less active in initiating relationships, which may account for some differences.

Some researchers found low rates of fertility and reproduction among patients with schizophrenia. This finding can probably be explained by several factors including lack of interest in social relations, general apathy, loss of sex drive, and lack of opportunity for a sexual relationship due to hospitalization and institutionalization. Rates of reproduction in schizophrenic patients have probably increased since deinstitutionalization, although they are likely to remain lower than those found in the general population.

Some couples ask for help with sexual problems, which are the result and not the cause of marital conflicts. The sexual dysfunction may most probably be due to psychological disturbances such as anxiety and depression, or due to abuse of alcohol and drugs apart from other physical illness.Marriage and depression

There has been considerable interest in the role of marital status as a risk factor for depression. For men, it appears clear that those married have the lowest rate of depression, while separated or divorced men have the highest rate of major depression. In women, the association is slightly less clear, but in the Epidemiologic Catchment Area (ECA) study, the same findings applied to women as well as men.Under-standing the nature of the association between marital status and rates of depression is more problematic. If personality is a risk factor for depression, then the same traits can interfere with the ability to marry or to stay married. There is little doubt that depression sometimes contributes to marital maladjustments and separation or divorce. Finally, the stress associated with divorce or separation can increase the likelihood of occurrence of an episode of depression.

UNHAPPY MARIAGE DUE TO THESE REASONS

Alcohol and marriage

Marriage and suicide

Compared with the general population, people who have died of suicide are more likely to have been divorced, unemployed or living alone. Social isolation is a common factor among these associations.

Antisocial behaviour and marital disharmony

Anxiety disorder and marriage

Batra and Gautam6 found a high prevalence of neurotic disorders among divorce-seeking couples. The neurotic problems are encountered either as antecedents or con-sequences of marital disharmony.

In the further alternative neither party should have been subject to recurrent attacks of insanity meaning ‘subject to an increase of the acuteness or severity of unsoundness of mind recurring periodically in its course’.

A marriage in contravention of this condition is not void but voidable under Section 12, sub-Section (2), Clause (b).

Grounds for judicial separation

On reading Section 10 and Section 13 together, relief of judicial separation would be available on the following grounds:

That the respondent has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the Respondent. See Section 13(1)(iii).

MARRIAGE, MENTAL ILLNESS AND THE INDIAN LEGISLATION

Every country and every religion has its own personal law. In India, under Article 44 of the Constitution, the state is bound by a constitutional mandate to secularize and homogenize family laws. The enactment of a uniform civil code was a goal to be achieved through a gradual process. The admixture of religion and ethics with legal precepts was naturally congruent. The practice of applying matrimonial law according to religious faith and beliefs has led to the prevalence of diverse matrimonial laws, besides one statutory law. As per Rule no. 3 of Order 32A of the Civil Procedure Code, it is the duty of the court to make efforts for settlement in matters concerning the family. As per Rule no. 4 of the same Order, a person, preferably a woman, who may or may not be related to the parties including a person professionally engaged in promoting the welfare of the family, may be utilized for the purpose of the settlement mentioned above. According to the Family Court Act, 1984, the Family Court was established with the view to promote conciliation in disputes concerning marriage and related matters. The Family Court may utilize the services of medical and welfare experts for conciliation. This Act reads that persons committed to the need to protect and preserve the institution of marriage shall be selected for appointment as judges and that women shall be preferred for such appointments. It is clear that the intention of law-makers is to prevent the fracture of a family. If a hard decision is inevitable it will be on a specific ground.

The following Acts7 have a bearing on the legal aspects of marriage:

The Special Marriage Act, 1954, The Hindu Marriage Act, 1955 with amendment in 1976, The Dissolution of Muslim Marriage Act, 1939; The Muslim Women Protection of Rights on Divorce, 1986, The Parsi Marriage and Divorce Act, 1936, The Christian Marriage Act, 1872, The Indian Divorce Act, 1869, The Family Courts Act, 1984.

A family arises out of marriage. The single most important factor that influences the quality of family life is the quality of the marriage that supports it. Various socioeconomic changes and developments taking place in the society as a result of industrialization and urbanization have shaken the religious and moral foundations of the institution of marriage. Marriage, according to Hindus and Christians, is a sacred, indissoluble permanent union. Law-makers consider family to be a ‘private sphere’ and recognize the need to respect the privacy by minimizing interference with this institution. Till 1955, matrimonial relief was not available to Hindus and scarcely available to Christians.

The matrimonial relief that one can seek includes:

Decree for nullity
Restitution of conjugal rights
Judicial separation
Divorce

Divorce or nullity is granted in cases where a socially accepted marriage is not legally accepted as a marriage, e.g. bigamy. There are two questions with reference to the marriage. Is the marriage a valid one? Is it possible for the relationship to continue? The conditions prevailing at the time of marriage decide its validity. An individual who is not capable of comprehending what is happening to him or her cannot give consent for marriage. The individual may not have the capacity for procreation. The relationship between the parties may be one that prohibited by religious codes. Such situations lay open to question the validity of marriage. Nullity of marriage means that the marriage is held null or void. In other words, a valid marriage does not take place at all. Conditions prevailing in the course of marital life determine the continuation of the relationship between the partners. For example, desertion, cruelty, adultery and mental illness may interfere with marital life and it may not be possible for the relationship to continue. Divorce means that the marriage was a valid one, but the relationship cannot be continued. Following the decree of divorce, the individual becomes eligible for remarriage.

Muslim law of marriage and divorce

Under this section two Acts need to be taken into account:

The Dissolution of Muslim Marriage Act VIII of 1839

The Muslim Women (Protection of Rights on Divorce) Act, 1986.

A Muslim who is of sound mind and has attained puberty (presumed to have been attained on completion of 13 years, unless the contrary is proved) is qualified to marry. Under the Muslim marriage law, lunatics or persons of unsound mind and minors who have not attained puberty may be validly contracted into marriage by their respective guardians.

According to Muslim law, marriages are of three kinds: (i) sahih or valid; (ii) batil or void; and (iii) fasil or irregular. The Muslim law, unlike the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, does not classify any marriage as voidable marriage. A sahih or valid marriage is one that is contracted by observing all the conditions of marriage. If some of those conditions are violated, the marriage is batil or void. Those conditions are: consanguinity, affinity, forterage, marriage by a Muslim woman without divorce by a living husband. If some other conditions are violated the marriage is declared fasil or irregular.

Irregular (fasil) marriages are: (i) marriage contracted without witnesses; (ii) marriage with a fifth wife when four wives are present; (iii) marriage during the iddat period; (iv) marriage prohibited on the grounds of a different religion; (v) marriage prohibited as an unlawful conjunction.

Mutah marriage (nikah-i-mutah): A mutah marriage is recognized among the Muslims of the Shia sect as a temporary marriage. Its duration can be fixed by an agreement between the two parties. The Sunni sect does not recognize this kind of marriage.

The All India Muslim Personal Law Board (AIMPLB) has urged Muslims to avoid the practice of tripletalaq, while its executive committee approved the draft of a model ‘nikah-nama’ which contains guidelines for married couples. The AIMPLB said that Muslim couples should hesitate in giving talaq, particularly the triple talaq, which is considered to be a sin.

Dissolution of marriage as per the Muslim Law

A Muslim marriage can be dissolved by divorce by the parties without recourse to the court and on certain grounds by recourse to the court.

The law as ordained by the Holy Quran is that talaq must be for a reasonable cause and that it must be preceded by an attempt at reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his family. If their attempts fail then talaq may be effective.

Dissolution of marriage without recourse to court

Talaq: When divorce proceeds from a husband to his wife it is known as divorce by talaq. A Muslim husband of sound mind who has attained the age of puberty may divorce his wife whenever he desires without assigning any cause. The dictionary meaning of talaq in the language of law is ‘taking off of the marriage tie by appropriate words’.

There are two kinds of talaq on the basis of effect:

Revocable (rujaee)

Irrevocable (bain)

There are three kinds of talaq based on the forms: Talaqabsun: This is done by a single pronouncement of divorce. If the marriage is not consummated, talaq can be pronounced in this manner.Talaqhasun: This consists of three pronouncements made after an interval of a month. On the third pronouncement talaq becomes irrevocable.Talaq-ul-bidat: Three pronouncements made at shorter intervals or even in quick succession. This mode is considered sinful.Talaq may be through spoken words (oral) or by a written document (talaq-nama).

Divorce by recourse to court (judicial divorce)

According to the Muslim Marriage Act, 1939, a woman married under the Muslim law shall be entitled to obtain a decree for the dissolution of her marriage (based on mental health issues) on the following grounds:

That the husband has been insane for a period of 2 years. That the husband was impotent at the time of marriage and continues to be so. Inability of the husband to consummate the marriage is one pattern of impotence.Parsi Law: Parsi Marriage and Divorce Act, 1936, amended in 1988. A Parsi means a Zoroastrian and the Act is meant for this community. The Parsi Law does not prescribe any specific form of marriage; however, one essential ceremony must be performed in all Parsi marriages. This is the Ashirvad ceremony. No Parsi marriage shall be valid unless it is solemnized by the Ashirvad ceremony. Under the Parsi Marriage and Divorce Act, unsoundness of mind is not a ground for annulment of marriage.

Grounds for divorce in the Parsi Marriage Act

Section 32: Any married person may seek divorce on the following grounds: That the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit; provided that divorce shall not be granted on this ground, unless the plaintiff (i) was ignorant of the fact at the time of the marriage, and (ii) has filed the suit within three years from the date of the marriage.

Section 32 (b) (Amendment Act, 1988): That the defendant has been incurably of unsound mind for a period of two years or upwards immediately preceding the filing of the suit or has been suffering continuously or intermittently from mental disorder of such kind and to such an extent that the plaintiff cannot reasonably be expected to live with the defendant.

‘Mental disorder’ explained in this section is similar to that in the Special Marriage Act and the Hindu Marriage Act.

Christian law of marriage and divorce and the Indian Divorce Act (The Divorce Act, 1869)

Dissolution of marriage: The Indian Divorce Act, 1869; amended in 2001.

On the demand of several Christian organizations, Section X of the IDA was amended by Act No. 51 of 2001. As per this amendment, the grounds for divorce are very much similar to those under the Special Marriage Act and the Hindu Marriage Act.

Section X (I) (II): Unsoundness of mind. This is a ground for divorce on two conditions: (i) The unsoundness of mind must be ‘incurable’ and medical evidence is required to prove it. (ii) It must be present for at least two years immediately before the filing of the petition. It is submitted that both the conditions must run together. If the respondent’s unsoundness of mind was curable in the beginning, but later on became incurable, the period of two years will be counted from the date when the disease became incurable.

The Christian wife has some exclusive grounds for divorce: Section X (II): The three exclusive grounds for divorce that a wife can file are (i) rape, (ii) sodomy, and (iii) bestiality. Dissolution of marriage by mutual consent in now possible for Christians under Section X A of the IDA (Amendment Act), 2001.

Nullity of marriage: The grounds for nullity of marriage as per the IDA Section 19: Impotence, lunacy or idiocy are among the five causes for nullity. Under Section 19 (3), it must be established that the respondent was a lunatic or idiot at the time of marriage.

The Special Marriage Act, 1954

The Special Marriage Act is meant for any person in India and Indian nationals abroad, irrespective of the faith that the individual may profess. A marriage solemnized in any other form can be registered under this Act. The enactment of 1954 has been subsequently amended. The Marriage Laws (Amendment) Act, 1976 has brought about considerable changes in the grounds for divorce, judicial separation and nullity.

Conditions of special marriages

The section lays down five conditions of marriage:

Monogamy

Mental soundness (Clause b)

Marital age

Relationship (Clause d)

Conditions of marriage in J&K (Clause e)

Mental soundness: Marriage is tagged with lifelong responsibilities. The Special Marriage Act, therefore, provides that neither party:

is incapable of giving a valid consent to it as a consequence of unsoundness of mind; or

though capable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children, or has been subject to recurrent attacks of insanity.

The condition of mental soundness for marriage does not mean that the person to be married must possess a high intelligence quotient. It only requires that he should understand the special nature of the relationship that marriage creates.

The present provisions of Section 4(b) are substituted by the Marriage Laws Amendment Act, 1976. The original provision was ‘neither party is an idiot or a lunatic’.

According to the Marriage Laws (Amendment) Act, 1976, recurrent epilepsy was also a disqualification for marriage. Now that has been removed by the Marriage Laws (Amendment) Act (No. 39 of 1999) with effect from December 1999. Marriage in violation of this condition is void u/s 24(I)(1).

CASE:

S. Mehta VsVasumathi (A.I.R. 1969) Guj–48; Parvathi Mishra VsJagadhanantha Mishra (1994) 78 CLT 561.

When there was sufficient evidence for the court to conclude that the slight mental disorder of the wife was not of such a kind and to such an extent that the husband could not reasonably be expected to live with her, divorce could not be granted.

Rita Roy VsSitesh Chandra, A.I.R. 1982) CAL 138; 86 CWL 167.

Each case of schizophrenia has to be considered on its own merits. The medical evidence regarding the requisite degree of mental disorder is relevant, though not conclusive.

SharadaVsDharmapaul (2003) 4 SCC 493).

In so far as granting the relief of divorce under Section 13(1)(iii) of the Act is concerned, the nature and degree of mental disorder which meets the requirements has been clearly discussed and spelt out in one of the important cases.

Ramnarayan Gupta VsSreemathiRajeshwari Gupta, Justice Venkatachaliah [Supreme Court 1998]).

‘Each case of mental illness or schizophrenia has to be considered on its own merits.’ Schizophrenia is what schizophrenia does. The judgment is significant because it gives importance to the effects and the impact rather that to the mere labelling of mental illness.A Division Bench of the Andhra Pradesh High Court held in Hema Reddy versus Rakesh Reddy (2003) that psychological depression by itself is no ground for divorce under the Hindu Law.

Naveen Kohli v. NeeluKohli

Has recommended an amendment to the Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage as a reason to seek divorce. Expressing the concern that divorce could not be granted in number of cases where marriages were virtually dead due to the absence of the provision of irretrievable breakdown, the court strongly advocated incorporating this concept in the law in view of the change of circumstances.

Venkatame v. Patil

Where a man had two wives, one of whom sued for divorce, and while the petition was pending, he divorced the second wife. He then averred that since he was left only with one wife, and the petition should be dismissed. The Court rejected the plea. Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife) should be present at the time of filing of the petition. However, today this ground is no more of practical importance.

Pravin Mehta v. Inderjeet Mehta

The court has defined mental cruelty as ‘the state of mind.’

SwarajGarg v. K.M. Garg, AIR 1978 Del 296Return to Text
13(1-A) lays down: “Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.”

CONCLUSION:

Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there was no provision for divorce. The concept of getting divorced was too radical for the Indian society then. The wives were the silent victims of such a rigid system. However, time has changed; situations have changed; social ladder has turned. Now the law provides for a way to get out of an unpleasant marriage by seeking divorce in a court of law. The actual benefactors of such a provision are women who no longer have to silently endure the harassment or injustice caused to them by their husbands. But the manner in which the judiciary is dealing with the subject of irretrievable break down of marriage, it is feared that it will completely pause the system of marriages. Every theory has its negative and positive traits. There applicability differs from situation to situation. Therefore it is very essential that the lawmakers of our country should deal with the subject in a very cautious manner after considering in detail its future implications.

REFERENCES:-

Remedies available to the Parties of an Unhappy Marriage under the Hindu Law

http://www.ebc-india.com/lawyer/articles/97v8a2.htm

http://www.scientologyhandbook.org/marriage/sh13_1b.htm

http://divorcebusting.com/sb_the_divorce_remedy.htm

http://www.divorce.usu.edu/files/uploads/lesson2.pdf

The Indirect Signs of a Loveless Unhappy Marriage & How It All Begins

http://www.todayschristianwoman.com/articles/2008/september/how-to-be-happy-in-unhappy-marriage.html?start=4

http://www.mindbodygreen.com/0-15653/how-i-found-the-clarity-to-leave-my-unhappy-marriage.html

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2918313/

http://www.gotquestions.org/unhappy-marriage.html

http://www.marriagesavers.org/sitems/Divorce/

DR.NASREENTAJ, PROFESSOR OF LAW, SAVEETHA UNIVERSITY