Divorce,
Nullity
And
Judicial
Separation
Durga Karki
Roll No. 45
[email protected]
Introduction
– Ecclesiastical courts of England
– Basis of jurisdiction : residence and mode of marriage.
– Matrimonial Causes Act, 1857
– Matrimonial Causes: Actions for nullity of marriage, divorce, judicial separation, restitution
of conjugal rights(now abolished) and jactitation of marriage. (Judicature Act, 1925)
In India,
– Indian Divorce Act, 1869
– Parsi Marriage and Divorce Act, 1865
– Dissolution of Muslim Marriages Act, 1939
– Special Marriage Act, 1954
– Hindu Marriage Act, 1955
Divorce
– Legal termination of a marriage.
– Legal validity- only after 19th century.
– Britain, France, Germany, etc.
– Matrimonial Causes Act, 1973 (Britain) : Grounds for Divorce
– Only one ground of divorce, i.e., the marriage has broken down irretrievably.
– Constituents of such breakdown: adultery, unreasonable behavior such that the
petitioner can not expect to live with, desertion/living apart for continuous period of 2
years, so on.
– Fair blending of traditional faulty theory as well as modern theories of consent and
breakdown of marriage.
Grounds for Divorce in Nepal
By husband (Chapter on Husband and Wife 1.1)
• Desertion for continuous period of 3 years or more.
• Cruelty
• Untreatable venereal disease
• Adultery
By wife (Chapter on Husband and Wife 1.2)
• Polygamy
• Abandonment
• Desertion for continuous period of 3 years or more.
• Cruelty
• Untreatable venereal disease
• Adultery
• Marital Rape
Cont’d
– Consent by both parties (1.3)
– Remarriage of wife (2)
Jurisdiction
English Law (Divorce and Matrimonial Proceedings Act, 1973)
– Domicile and Habitual residence
Indian Law
– Domicile or nationality of either party is not relevant for the purpose of
jurisdiction in any matrimonial cause.
– Residence is important.
– Additional requirement – Marriage has to be solemnized in India.
Nullity
– 3 kinds of marriage : Valid, Void and Voidable.
– Dissolution of valid marriage – Divorce.
– Impediments: Destructive and Obstructive
– Basis of development of void and voidable marriage.
– Violation of some of the obstructive impediments does not render a marriage
voidable or void. (India, Nepal). For e.g., Underage marriage.
Void Marriage
– Void ab initio.
– No legal consequences.
– Does not confer a status of husband and wife.
– No status of legitimacy of children too.
– Court decree not necessary to render it void.
– Can neither be approbated, nor ratified.
– Nepalese Provision : Incest.
Voidable Marriage
– Perfectly valid unless it is avoided.
– Can be avoided only be one of the parties.
– All legal consequences flow from it.
– But, once it is annulled, it is given retrospective effect, i.e., the marriage is
deemed to never have taken place.
– Based on the doctrine of indissolubility of marriage – either marriage exists
forever or never.
– Effect of decree of nullity almost equated with the effect of decree of divorce.
Conditions of Voidable
Marriage in Nepal
No. 4 of Chapter on Marriage
– Suffered form HIV or Hepatitis B or other acute diseases.
– Possesses no sexual organ, impotent, can not consummate marriage satisfactorily.
– Completely deaf, blind or dumb.
– Mentally unsound.
– Married.
– Pregnant at the time of marriage.
– Found guilty and punished on offences showing moral turpitude.
Judicial Separation
– Separation de Corps
– Separation from bed and board.
– Does not bring the tie of marriage to an end.
– Spouses can not marry another.
– If one of the parties die intestate, other succeeds the property.
– If they want to resume cohabitation, necessary to rescind the previous court
decree.
– Does not affect status. (Le Mesurier v. Le Mesurier)(Anghinelli v. Anghinelli)
Cont’d
– Differs from country to country.
– Roman Catholic Countries (Spain, Italy, etc.,) the divorce is still not recognized.
– Norway, Sweden – Separation may lead to a divorce.
– India, Nepal, France – If cohabitation is not resumed for a certain period of
time, one of the parties can claim for divorce.
– In British law, the grounds for breakdown of marriage are the grounds for
judicial separation too.
– Generally, considered as the preliminary stage for a divorce.
Restitution of Conjugal Rights
– Respondent is asked to live with the petitioner.
– Abolished in English Law, still exists in Indian law.
– Special Marriage Act, 1954 : “When either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the other, the aggrieved party
may apply by petition to the district court for restitution of conjugal rights, and the
court being satisfied of the truth of the statements made in such petition, and
that there is no legal ground why the application should not be granted, may
decree restitution of the conjugal rights accordingly.”
– If the decree not complied with for one year, either party can file petition for
divorce.
– Restrictions for remarriage for a certain period of time after the divorce: Postpone
the date of remarriage. (Restriction)
Thank You
Thank You
References
PRIVATE INTERNAITONAL LAW, 4TH REVISED AND UPDATED EDITION, PARAS
DIWAN
वैयक्तिक अन्तराष्ट्रिय कानुन, पैरवी प्रकाशन, डा.लोकेन्द्र
शर्मा
