The Historical Development of the Concept of Post Divorce Law
Author: Dr.Shilpa Mishra
S.S.Jain Subodh Law College, Jaipur
Divorce is a popular concept is understood as dejure putting an end to the matrimonial tie with certain resultant consequences. Divorce legally dissolves the marriage tie. But it cannot erase the past. Nor can it create an unrelated future. In a sense, it adjusts the relationship by realigning bonds between the parties. It has, therefore, been rightly said that divorce may end marital tie, it cannot end all family relations. The present paper is divided into two parts for making the discussion in a formal and scientific manner respectively (A) The Historical as Global (B) Historical Perspective in India
Keywords: History of Divorce, International,National
(A) The historical as Global
England struggled with the matter of divorce. From 1669 to 1850, only 229 divorces were granted in that country. Marriage and divorce were controlled by the Anglican Church, which, like the Roman Catholic Church, strictly forbade divorce. The Anglican Church allowed separations, but neither spouse was allowed to remarry while the other was still living.
The law of divorce in the American colonies varied according to the religious and social mores of the founding colonists. England insisted that its American colonies refrain from enacting legislation that contradicted the restrictive English laws, and a colonial divorce was not considered final until it had been approved by the English monarch. Despite these deterrents, a few northern colonies adopted laws allowing divorce in the 1650s.
The most common traditional grounds for divorce were cruelty, desertion, and adultery. Other grounds included nonsupport or neglect, alcoholism, drug addiction, insanity, criminal conviction, and voluntary separation. Fault-based divorce laws proliferated, but not without protest. James Bryce as moved to remark that U.S. divorce laws were “the largest and the strangest, and perhaps the saddest, the body of legislative experiments in the sphere of Family Law which free, self-governing communities have ever tried.”
(B) The historical perspective in India
Records may be available in the form of palm leaf, bark, parchment, silk, leather and cloth manuscripts. Records created by the Indian local rulers, Hindu temples, Islamic shrines, gurdwaras, and waqf authorities (the Charitable Islamic Trust) may be kept at the local state libraries, museums and relevant State Archives.
These documents can give a certain degree of family history information on elite families and higher-ranking officials who served the local rulers.
In 1891 (during the British period), the National Archives of India was established as the Imperial Record Department in Calcutta. Since 1947, the National Archives of India has established four regional offices at Bhopal, Jaipur, Bhubaneswar, and Pondicherry.
The Indian Divorce Act, 1869 was indeed draconian legislation discriminating Christian women as against not only their husbands but also women belonging to other communities in India. The Christian women in India have been governed by the Act which was made for the purpose of European Christians domiciled in Colonial India and other foreigners. It has taken umpteen efforts of the Law Commission, the Courts and the Christian community in India to change this Act and mend it by eliminating the discriminatory provisions.
The Government of India declared the year 2001 as the Year of Women Empowerment and aptly so, in the context of three important Bills placed before the Parliament dealing with rights of women. The Bills are Marriage Laws (Amendment) Bill, 2001, Indian Divorce (Amendment) Bill, 2001 and Code of Criminal Procedure (Amendment) Bill, 2001. Presently we are concerned with the Indian Divorce (Amendment) Bill, which was an endeavor to bring about gender justice among the Christian community in India in matters of divorce and matrimonial causes. It was enacted into an Act on 24th September 2001 when it received the President’s assent and came into force on 3rd October 2001.
The Indian Divorce (Amendment) Act, 2001 is a very substantial amendment. The parent Act i.e. The Indian Divorce Act was legislated in the year 1869 and this was the exact replica of the English Matrimonial Causes Act, 1857. England itself repealed that Act in the year 1923 because it had several provisions that were discriminatory for women, but it is only after 132 years of its inception that amendment has been made to this particular law in India.
Indian Divorce Act, 1869
There are rights that emanate from the divorce law, like the rights of custody relating to a property, rights relating to marital status and rights relating to the amount of maintenance. An effort was made to make sure that the rights, as far as possible, are in consonance with the Constitutional guarantees of equality and human dignity. Therefore the Indian Divorce Act has now been so developed so as to be in consonance with the Constitutional guarantees of equality and dignity. A look at the impugned provisions of the Act would give a comprehensive outlook.
Efforts of the Law Commission
The religious hierarchy and also the Government of India realized the need for reforming the colonial laws relating to marriage and divorce of persons professing Christianity and, accordingly, took steps by making a reference to the Law Commission for revision of those laws in the year 1958.
The Commission prepared unified legislation to repeal the existing Acts governing the subject of marriage and divorce amongst Christian and a unified Bill, namely, the Christian Marriage and Matrimonial Causes Bill, 1961 was appended for introduction in Parliament. The Government, however, at that time wanted the Law Commission to elicit public opinion on the Bill. Subsequently, the Christian Marriage and Matrimonial Causes Bill, 1962 was introduced in the Lok Sabha but the Bill could not come up for discussion in Lok Sabha and lapse on the dissolution of Third Lok Sabha. The Government did not reintroduce the Bill due to strong opposition from certain quarters of the Christian community.
The Law Commission headed by Mr. Justice K.K. Mathew suo moto took up the issue and had pointed out that section 10 of the Act is violative of Articles 14 and 15 of the Constitution and held the view that amendment to section 10 was a constitutional imperative. It recommended that the Parliament may enact a comprehensive law governing marriage, divorce and other allied aspects of the Christians. The Commission, while relying upon observations/judgments of various High Courts, had also urged the Government to take immediate measures to amend sections 10, 17 and 20 of the Indian Divorce Act, 1869. The Committee on Status of Women in India in its Report submitted in 1974 had also suggested amending the Act on the lines suggested by the Law Commission.
However, the Government did not find a congenial atmosphere in view of the situation that arose in view of the judgment in Supreme Court in Shah Banu’s case and in view of its avowed policy not to interfere in the personal laws of the minority community unless the necessary initiative for the changes came from the communities concerned. Nevertheless, by the joint efforts of the Churches and the Joint Women’s Programme, draft-unified legislation called the Christian Marriage Bill, 2000 was prepared. No consensus was arrived at on some provisions of the Bill though there was no opposition for the amendments to sections 10, 17 and 20 of the Indian Divorce Act, 1869.
Some of the suggestions made by the Christian community regarding amendments to be made to the Act were:
- Section 7 of the Act to be amended. It provided that English Law constituted as precedents for the purpose of this law.
- Wanted Church courts as parallel courts to be empowered in relation to grant of dissolution of marriages. However, that has not been accepted as it is only the courts constituted under the Constitution and law, which have the legal authority, and the courts constituted by the religious organizations are not formally recognized as far as the Indian law is concerned.
- To create a provision for dissolution of marriage by mutual consent.
- The upper limit of Rs. 500 as maintenance provided under the Criminal Procedure Code be increased keeping in view the standard of living of the claimants.
- The period when the spouses should be living apart for judicial separation was felt to experiment as two years.
- The civil court can call for the records of the Church courts when parties approach them and verify them and decide on the merits of the case. This would reduce unnecessary delays. In George Sebastian v. Molly Joseph, the Court held that Christian marriage can be dissolved by the only decree of the Court passed under this Act and Ecclesiastical Tribunal has no jurisdiction to pass a decree of divorce.
The Law Commission of India in its Fifteenth, Twenty-second, Ninetieth and One Hundred and Sixty-fourth Reports vociferously voiced the opinion that the Indian Divorce Act has to be amended so as to live up to the Constitutional guarantees provided to its citizens.
2. Judicial Interpretation – March towards amendments
The most contentious issue of the Act was Section 10, which clouted of discrimination based merely on the ground of sex. The Act provided for adultery simpliciter to the male as a ground for dissolution of marriage whereas the Christian female was required to prove adultery along with additional grounds of cruelty or desertion etc. It took the concerted efforts of the Courts as well as the Christian community, apart from the active role of the Law Commission, over the years to bring about a change in this matter.
The Supreme Court and various High Courts especially Kerala, Andhra Pradesh, Madhya Pradesh, Bombay and Calcutta in their judicial pronouncements have held the view that the amendments to the sections 10, 17 and 20 of the Indian Divorce Act, 1869 are constitutionally imperative. The courts have held that these provisions, which gave different grounds to both the husband and wife, were discriminatory, smacked of gender bias and, therefore, they considered it necessary that the vacuum created by striking them out had to be filled up again.
There’s a lot of discussion among family lawyers at the moment about “no-fault divorce”, particularly Resolution’s campaign to enable people to divorce without delay and without alleging that the other person in the marriage has been at fault. We’ve alluded to this debate in a previous post and will return to it in more substance another time. To understand the current discussions we think it’s important to have an idea of the context for the changes now being demanded, and so we present CFLP’s “A Brief History of Divorce”.
It is time for the law of this country to treat people who have decided that their marriage is over with respect and compassion, in the knowledge that it is not a decision reached lightly and without consideration of the effect on any children. We believe that it is time for a streamlined process without the need for allegations or recriminations that enables people to move on with dignity and focus on their separate futures without the confines imposed by the laws of yesteryear.
List of Books:
1. Agarwala R.K. – “Hindu Law”, 21st edn. 2003, Central Law Agency, Allahabad.
2. Aqil Ahmad- “Mohammedan Law”, 21st edn. 2004, Central Law Agency, Allahabad.
3. B.M. Gandhi- “Hindu Law”, 3rd edn. 2008, Eastern Book Company, Lucknow.
4. Dr. Mohammad Nazmi- “Mohammadan Law”, 2nd edn. 2008, Central Law Publications, Allahabad.
List of Articles:
- Akhtar, S. : “Marriage Age in Hindu law”, Andhra weekly reporter, (1978)1 p.20-23.
- Bagga, V. : “Locus of Matrimonial Home and right to Consortium”, Journal of the Indian Law Institute, 1987, Vol. 29.1, p.110-114.
- Bakshi, P.M. : ”Divorce by Mutual Consent: some reflections”, Supreme Court Journal, (1986)2 p.27-30.
- Jaya & Harihar Rao. : ”How free is free consent”, Andhra Law Times, (1991) II, p. 15-18.
 Studies in history and jurisprudence,. [James Bryce Bryce, Viscount] 1901