Historical Background of Divorce under Hindu, Muslim and English Law - a short comparison

1. Historical Background of Divorce Under the Provisions of Hindu Law

Before, 1955, except by custom divorce was not recognized in Hindu law. Local efforts at reforms of

matrimonial law were made. Matrimonial causes (i.e. legal action in respect of marriages) in their real

sense did not exist in Hindu law before 1955 although some reliefs in respect of marriage could be

obtained under general law. Thus a suit for a declaration that a marriage is null and void could be filed

under Section 9, Code of Civil Procedure read with the Specific Relief Act. Similarly a suit for restitution

of conjugal rights could also be filed. The Hindu married woman’s right to separate maintenance, 1946

laid down certain grounds on which wife could live separately and claim maintenance from her husband.

The Act has been repealed but its provisions have been re-enacted in Section 15(2) of Hindu Adoption

and Maintenance Act, 1956. This could hardly be called judicial separation. The Hindu Marriage Act,

1955 accords recognition to matrimonial cases and makes provision for them. Customary divorce and

divorce recognized under special enactments have been retained.

The four following matrimonial cases recognized by the Hindu Marriage Act, 1955:

(1)Nullity of marriage

(2)Judicial separation

(3)Dissolution of marriage

(4)Restitution of conjugal rights.

2. Historical Background of Divorce Under the Provisions of Muslim Law

Despite the precept of the prophet “with Allah” the most detestable of all permitted things is divorce in

Muslim law of modern India. Divorce in its uninhibited form is recognized. In Muslim law, divorce is

placed in the category of permissible things and divorce was considered to be the most despisable of the

permissible things. Today divorce is the largest aspect of Muslim matrimonial law.

In Muslim law, dissolution of marriage takes place either on the death of either party to the marriage or

at the instance of one of the parties or both the parties.

The Reforms of Mohammed

The reforms of Mohammed marked a new departure in the history of Eastern legislation. He restrained

the power of divorce possessed by the husbands, he gave to the women the right of obtaining a

separation on reasonable grounds; and towards the end of his life he went so far as practically to forbid

its exercise by the men without the intervention of arbiters or judge. He pronounced, “talak” to be the

most detestable before god of all permitted things for it evented conjugal happiness and interfered with

the proper bringing up of children.

The permission therefore in the Koran though it gave a certain countenance to the old customs has to

be read with the light of the lawgiver’s own words when it is borne in mind how intimately law and

religion are connected in the Islamic system, it will be easy to understand the bearing of the words on

the institution of divorce. Naturally, therefore, great divergence exists among the various schools

regarding the excessive of the power of divorce by the husband of his own motion and without the

intention of the judge. A large and influential body of jurists regard talak emanating from the husband as

really prohibited except for necessity, such as the adultery of the wife. Another Section consisting chiefly

of the matazalas, consider talak as not permissible without the sanction of the Hakim-ush-shaaran, viz.,

the judge administering the mussalman law. They consider that any such cause as may justify separation

and remove talak from the category of being forbidden should be tested by an unbiased judge; and in

support of their doctrine, they refer to the word of the prophet already cited, and his direction that in

case of dispute between the married parties, arbiters should be appointed for the settlement of their

differences.

3. Historical Background of Divorce Under the Provisions of English Law

Retrospective Effects

The Matrimonial Causes Act, 1937 brought into operation several fresh grounds for divorce. This statute

contained the following notable preamble:

Whereas it is expedient for the true support of marriage, the protection of children, the removal of

hardship, the reduction of illicit unions and unseemly litigation, the relief of conscience among the

clergy and the restoration of due respect for the law, that the Act relating to marriage and divorce be

amended.

The question of retrospective effect arose in connection with the interpretation of Section 1 of the

Matrimonial Causes Act, 1963. Condonation of adultery or cruelty was in most cases an absolute bar

against a decree of divorce. Before the Act of 1963 became law, a husband petitioned for divorce on the

ground of his wife’s adultery. At the trial which took place after the Act of 1963 came into force it was

held that the husband had condoned the wife’s adultery and that the husband’s evidence was not

admissible to negative the presumption that he intended to condone the wife’s adultery. The husband

appealed that this Section of the Act of 1963 could not be retrospective to negative the wife’s vested

rights and to render admissible the husband’s evidence of intention.

The Court of appeal held that the Section dealt with a procedural matter after the Act came into force.

The husband’s evidence was admissible but insufficient to satisfy the Court. The appeal was dismissed.

Beard v. Beard, (1946) p. 8 (C.A.)

Scarman Justice held that the effect of Section 3 was to change the substantive law so that it could not

be retrospectively applied to nullify the effect of revival, before the Act came into force, of previously

condoned adultery. He pointed out that Parliament had not, either expressly or by clear implication,

made the Section retrospective.

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