DIVORCE & OTHER MATRIMONIAL RELIEFS-Vaibhav Sharma

The word ‘divorce’ had not been defined under any statutory provisions but it could be defined as a legal dissolution of judicial ties established at marriages. Thus a divorce is also a seven lettered word, which separates the united couple at their own wish with their own consent. Thus divorce can be considered a means to break marriage that happens not just between two individuals but also between two families.

If we see in  common law countries, divorce is easier to be granted because-

Grounds on which divorce is granted have been progressively liberalized.

With time, the rules as to when the court has jurisdiction to grant divorce has been made more extensive.

Whether a decree of divorce (or other matrimonial reliefs) passed, is recognized in other countries or not?

For this, we would look into the international convention for matrimonial matters, ie.,-The Hague Convention on the Recognition and enforcement of divorce & legal separation, 1970.

Position in INDIA-

  1. Divorce in India is a matter of personal law.
  2. Hindu Marriage Act, 1955- For Hindus
  3. Dissolution of Muslim marriages Act, 1939- For Muslims
  4. Divorce Act 1869- divorce granted if either party to marriage is Christian.
  5. Special Marriage Act 1954- Persons married under this act can get divorce as per this act.

Persons married outside India, under Foreign Marriage Act, 1969, can obtain divorce under Special marriage Act, 1954 (unless some other statute would be specifically applied).

Under Hindu Marriage Act, 1955

Section 10- Judicial Separation

Section 11, 12- Nullity of Marriage

Section 13- divorce

 

Under special Marriage Act,1954-

This act enables the Indians belonging to different religions to marry each other, which is otherwise not possible, since-

  • Hindu law- marriage between Hindus
  • Parsi law- marriage between Parsis
  • Though Christians can marry non- Christian but only after the marriage was solemnized in church in accordance with Christian rites.
  •  Muslims could marry only a Kitabiya & Muslim women couldn’t marry non- muslim

After the amendment to Divorce act, 1869, the divorce granted was only to the persons domiciled in India. Therefore, it became a hurdle for the Britishers residing in India obtaining for divorce.

 Hence, English parliament enacted the Indian & Colonial Divorce Jurisdiction act, 1926, which conferred on chartered High courts in India, the right to entertain the petition for divorce for people domiciled in England & Scotland as well. This act remained in force till 1947.

 Lastly in 2001, after the Indian Divorce (Amendment) Act 2001 came into force on 3rd Oct. 2001, it was held that the High courts of India can not grant divorce to British subjects.

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