Dissolution of Marriage

The modern English law accords recognition to both the consent theory and the breakdown theory,
though in its own way. The modern English law of matrimonial causes is contained in the
Matrimonial Causes Acts 1973 and the Domicile and the Matrimonial Proceedings Act, 1973.

Grounds of Divorce

The modern English law recognizes only one ground of divorce, viz, the marriage has broken down
irretrievably. What constitutes such breakdown is laid down in subsection (2) of Section 1,
Matrimonial Causes Act, 1973; the following facts will constitute such breakdown:

a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the
respondent,

b) that the respondent has behaved such a way that the petitioner cannot reasonably be expected
to live with the respondent;

c) that the respondent has deserted the petitioner for a continuous period of at least two years
immediately preceding the presentation of the petition;

d) that the parties to the marriage have lived apart for a continuous period of at least two years
immediately preceding the presentation of the petition and the respondent consent to a decree
being granted;

e) that the parties to the continuous period of at preceding the presentation marriage have lived
apart for a least five years of the petition.

These grounds appear to be a fair blending of the three traditional fault grounds viz, adultery,
cruelty, desertion, with the modern theories of consent and breakdown of marriage. In contrast to
English law, the Special Marriage Act, 1954 presents a spectacle where guilt grounds of divorce are
put side by side with divorce by mutual consent and divorce on the ground of breakdown of
marriage.

Under the Hindu Marriage Act, 1955 the nine fault grounds are adultery desertion, cruelty,
conversion to another religion incurable insanity or mental disorder, virulent leprosy, venereal
disease in a communicable form, renunciation of the world and presumption of death (i.e. seven
sears unheard absence). These are four additional grounds of divorce on which wife alone can sue
are: (a) another wife of the husband‟s pre-Act polygamous marriage being alive; (b) the husband has
been guilty of rape, sodomy or bestiality, (c) cohabitation between the parties has not taken place
for one year or upwards after the passing of an order awarding maintenance to the wife under
section 125, Criminal Procedure Code, 1973, or under section 18, Hindu Maintenance and Adoptions
Act, 1956; and (d) the marriage of the wife (whether consummated or not) was solemnized before
she attained the age of fifteen years and she had repudiated the marriage after attaining that age
but before attaining the age of eighteen years.

Divorce under Muslim law is largely non judicial. This may be divided under two heads:

(a) unilateral divorce by husband, and

(b) divorce at the instance of the wife but with the consent of the husband.

The former is called Talak. Muslim law also recognized talak in delegated form. It is called Taiak-i-
Tafweez. Muslim law also recognizes two other forms of divorce (talak), Ila and Zihar. Muslim
marriage may also be dissolved at the instance of the wife, provided the husband consents to it.
When wife alone is desirous of divorce it is called Khula, when aversion to marriage is mutual then it
is known as Mubaarat. Before the coming into force of the Dissolution of Muslim Marriages Act,
1939, apostasy from Islam of either party to a marriage operated as dissolution, of marriage
automatically. This has been altered by the Dissolution of Muslim Marriages Act, 1939. Now
apostasy of the wife does not automatically operate as divorce. Apostasy of the husband still does.
The right to obtain judicial divorce is available to the wife alone. A Muslim wife can obtain a decree
of divorce from a court of law by filing a suit on any of the following grounds:

the whereabouts of the husband had not been known to her for a period of four years; two years (or
more) neglect; or failure to provide maintenance for two years or more; sentence of imprisonment
for a period of seven years or more; failure to perform marital obligations without any reasonable
cause for a period of three years or more; impotence at the time of marriage; insanity for a period of
two years or more, or leprosy or virulent venereal disease; repudiation of marriage before the
attainment of the age of eighteen years; cruelty; or any other ground recognized under Muslim law.

Jurisdiction of English and Indian Court

In respect of jurisdiction of English courts, some fundamental changes have been effected by the
Domicile and Matrimonial Proceedings Act, 1973. Now English court can assume jurisdiction only on
two grounds: domicile, and habitual residence of the parties.

Domicile as a basis of jurisdiction has to be understood in the light of s.1, Domicile and Matrimonial
Proceedings Act, 1973 which abolishes wife‟s dependent domicile. Domicile: Since the Privy Council
decision in Le Mesurier v. Le Mesurier, which was confirmed by the House of Lords in Indyka v.
Indyka it has been the settled proposition of English law that the English court has jurisdiction to
entertain a petition for divorce if either of the parties are domiciled in England at the time of
commencement of the proceedings. Now that the wife can have her own separate domicile, the Act
effects a bask change inasmuch as it lays down that a petition can be filed for divorce if either the
petitioner or the respondent is domiciled in England at the date when proceedings are commenced.
Once the court has jurisdiction to entertain the petition its jurisdiction cannot be defeated by a
subsequent change of husband‟s domicile.

Habitual Residence: With The Hague Conventions adopting “habitual residence” as a basis of
jurisdiction, the English law is now giving it full reception. The Domicile and Matrimonial Proceedings
Act, 1973 adopts it as the second basis of jurisdiction if either party to the marriage was habitually
resident in England throughout the period of one year ending on the date when the proceedings are
begun, the English court has jurisdiction to entertain a petition for divorce. What is the meaning of
“habitual residence” has, however, not been defined either statutorily or judicially. “In determining
whether a residence is habitual, account is to be taken of the duration and the continuity of the
residence as well as other factors of a personal or professional nature which point to durable ties
between a person and his residence.”
Jurisdiction of Indian court

Although the matrimonial law in India differs from community to community, the jurisdictional rules
differ only slightly. The matrimonial laws of all communities, except the Muslim and the Jews, are
now statutory laws. The peculiar feature of all these statutes, except the Divorce Act, 1869, is that
the domicile or nationality of either party is not relevant for the purpose of jurisdiction in any
matrimonial cause.

Under the Indian Divorce Act, 1869 a petition in any matrimonial cause may be present to the
District Court or the High Court, on the basis of the residence of the parties within the jurisdiction or
that the parties last resided together within the jurisdiction of the court, or for dissolution of
marriage, the parties are domiciled in India at the time of the presentation of the petition.

A further jurisdictional requirement in a petition for nullity are that such a petition can be presented
only if the marriage was solemnized in India, and further that the petitioner was resident in India at
the time of the presentation of the petition. Thus, the main basis of jurisdiction is „residence‟ which
has been used in a broad sense.

The Hindu Marriage Act, 1955 applies to all Hindus. It is also not necessary that they should be
Indian nationals. The domicile has significance in respect of those Hindus who are outside India.
Hindu Marriage Act, 1955 too makes no distinction from the jurisdictional point of view between any
of the matrimonial causes. Under the Special Marriage Act, l954, domicile is important only in
respect of‟ those Indian citizens who are outside India. Under the Acts a petition for dissolution of
marriage, nullity of marriage, judicial separation or restitution of conjugal rights may be presented to
the District court within the local limits of whose jurisdiction-

(a) the marriage was solemnized,

(b) the parties last resided together,

(c) the respondent, at the time of presentation of petition resides, and

(d) the petitioner is residing at the time of presentation of petition, in a case where the respondent
is, at the time, residing outside the territories to which the Act extends has not been heard of being
alive for seven years.

Under Muslim law, as has been seen earlier, a legal action for divorce can be filed by the wife alone
on any one of the grounds laid down in the Dissolution of Muslim Marriages Act, 1939. The Act does
not contain any jurisdictional rule and the matter is therefore regulated by the general provisions of
the Civil Procedure Code. This means that the suit can be filed in a court within whose jurisdiction
the defendant is residing at the time of the filing of the suit, or the cause of action arose. Since a
Muslim marriage is a contract, the cause of action arises, it has been held, at the place where the
marriage was solemnized. It has also been held that a suit can be filed at a place where the parties
are residing or where the matrimonial misconduct was committed. In most of the cases the courts
have assumed jurisdiction on the basis of the residence of the defendant or on the basis of accrual of
the cause of action. Thus, it has been held that a suit for restitution of conjugal rights can be filed at
a place where their violation occurred, or at a place where the defendant is residing.
 Residence: Time and again courts have said that residence is a question of fact; whether or not a
person is residing at a particular place would depend upon the facts of each case. The word
„residence‟ is obviously capable of a narrow as well as a broad meaning. In the former sense it
usually means a permanent home or abode, in the latter sense it means any place where a person is
living, permanently or temporarily. In its narrow meaning (or natural meaning, as it is sometimes
said), the term means “the abiding or dwelling” in a place for some continuous time. It seems to be
obvious that if a person has a permanent abode or home and from here he goes out and lives at
another place temporarily, on account of business, pleasure, health, and education or for any other
reason, then the former would continue to be the place of residence and not the latter. Thus, in
Robey v. Robey, a case under the Divorce Act, 1869, a husband was living in Delhi with his wife for a
period of six years. Thereafter he went to Calcutta for launching criminal proceedings and stayed
there for some time with his brother. He was a government servant liable to transfer. Subsequently,
he filed matrimonial proceedings in a Calcutta court. It was held that since he resided at Delhi and
not Calcutta, the petition was not maintainable for want of jurisdiction. Similarly, when a person
goes abroad temporarily for some job or business, he continues to reside in India and. Indian courts
will have jurisdiction on the basis of his residence.

There may be situations where the parties have not been able to establish a matrimonial home at
all. It may be that during the period their marriage was going well, they were moving from place to
place, may be looking for a nice place to establish a matrimonial home, or may be looking for
nothing. A situation something of this nature came before the court in Murphy v. Murphy, a case
under the Divorce Act, 1869. After the marriage, parties lived together in a Bombay hotel for the
greater portion of a month; then the husband was on leave from the active service in Mesopotamia.
After that he left Bombay to join his service. Parties had not established a matrimonial home at any
place whatever, and the living at the Bombay hotel was all the living together that the parties had.
On these facts, the Bombay High Court said that since parties have no residence anywhere else, their
stay together in Bombay, howsoever temporary, was the place where they resided together.

Thus, it is submitted that the “residence” for the purpose of matrimonial jurisdiction of the Indian
courts means:

(i) The place where the parties have set up a matrimonial home or the place where parties already
have a permanent home or abode where they live (or lived together) is the place where they have
their residence.

(ii) In cases where the parties have not set up any matrimonial home, nor do they have any
permanent abode or home, it will be the place where they stay (or stayed together), however short
the - duration of stay might be (or might have been).

Choice of Law by English and Indian Court

Once English court decides that it has jurisdiction in the case, it has never felt any difficulty as to the
choice of law. They have invariably applied the English domestic law. Once English court has found
that the foreign court has jurisdiction, it has never bothered to look at the ground on which the,
foreign court pronounced the decree of divorce. Thus, it has been immaterial that the matrimonial
offence or fault, i.e. the ground on the basis of which divorce was granted, was committed abroad in
the country where the parties were domiciled or resident. It has been irrelevant that the
matrimonial misconduct complained of does not constitute a ground for divorce in the country
where it „was committed or in the country of domicile of parties. This may be justified on the ground
that since under common law, jurisdiction is assumed on the basis of domicile of the parties and
therefore the law that is applied is that of domicile. But what is remarkable is that even in those
cases where the jurisdiction was assumed on the basis of residence of parties (under the statutory
exceptions), the English private international law took the view that the English domestic law was
applicable. In Zanelli v. Zanelli an Italian national domiciled in England married an English woman.
Subsequently, he was deported from England. On deportation he assumed his Italian domicile. The
English court assumed jurisdiction on the basis of special statutory provision and granted divorce to
the wife, by applying, English domestic law—by the law of domicile divorce was not permitted then.
Thus, it seems clear that when an English court determines that it has jurisdiction to entertain the
petition for divorce, and applies English law, then English law is applied not as the lex domicilii but as
the lex fori.

Choice of Law by Indian Court

Although there is not much authority, it seems clear that once the Indian court decides that it has
jurisdiction to entertain the petition for divorce, then it will apply the personal law of the parties, i.e.
the law of the community to which parties belong. Thus, if parties are Christians the Indian Divorce
Act, 1869, if parties are Hindus the Hindu Marriage Act, 1955, or if parties are Muslims (when wife
had filed a suit for divorce), the Dissolution of Muslim Marriage Act, 1939, will apply, being the lex
fori. It seems that if marriage is performed abroad, or it has some foreign elements, the court will
apply the provisions of the Special Marriage Act, 1954, even if both the parties are Hindus, Christians
or Parsis. Thus in the submission of the present writer the Special Marriage Act, 1954 will apply not
merely to civil marriages per formed in India, but to all marriages which have some foreign element.
Some support for this view is derived from Christopher Neelkanram v. Annie Neelkantam, where
both the parties were Christians and the court could have easily applied the Christian law, i.e. the
Indian Divorce Act, 1.869, but it chose to apply the Special Marriage Act, 1954. If the courts would
not do so, then they would be involved in the insoluble problem of conflict of personal laws. An
Indian domiciled Hindu, Christian, Muslim, Parsi or Jew can perform a marriage abroad in
accordance with, the lex loci celebrations with any person who may not belong to the religious
community to which he or she belongs. If such people to India, and seek a matrimonial relief from an
Indian court, then the court would be faced with the difficult question as to which of the communal
it should apply, of the petitioner, or of the respondent? But if the court takes the view that to such
marriages law of the community of neither party is applicable and applies the provisions of the
Special Marriage Act, 1954, all difficulties .will be solved. The question is not of applying the lex
domicilii of the parties, but of lex fori.

English and Indian Law on Recognition of Foreign Divorces

The English law of recognition of foreign divorces has been codified and reformed by the
Recognition of Divorces and Legal Separations Act, 1971. Even before the codification of law, the
English law had travelled far and wide away from the doctrinal view that only the decrees of the
court of domicile would be recognized. The English courts would recognize a foreign decree of
divorce (even though not pronounced by the court of domicile) if it is recognized as valid by the
court of the domicile of parties. Then came the turning point Travers v. Holle laid down that if the
foreign court exercised jurisdiction on a basis on which English courts would exercise jurisdiction
then the English courts would recognize the foreign decree of divorce. Then came the most radical
decision of the House of Lords in Indyka v. Indyka.

The Indyka test may be formulated thus: if there is a real and substantial connection between the
party obtaining divorce and the country of the court which dissolved the marriage, then the foreign
decree of divorce would be recognized. In this case two persons domiciled in Czechoslovakia got
married in 1938. In 1946 the husband acquired a domicile of choice in England. In 1949 the wife,
who had remained in Czechoslovakia, and was resident there, obtained a decree of divorce from a
Czech court. In Mather v. Mahoney a further extension of this rule was made by laying down that if
the court of the place where one of the parties has a substantial connection recognizes a decree of
divorce passed by a foreign court, then the English courts too would recognize it.

Non-judicial divorces- In R. v. Hamrnersmith, Superintendent Registrar of Marriages the English

court said that the non-judicial divorce in the Muslim form of talak could not effectively dissolve an
English marriage. English law then veered round to the position that non-judicial divorces in any
form would be recognized in England if parties were domiciled in a country which recognized such
mode of dissolution of marriage.

The modern English law on recognition, of foreign divorces is contained in ss. 3 and 6 of the
Recognition of Divorces, and Legal Separations Act, 1971 and s. 16, Domicile and Matrimonial
Proceedings Act, 1973 and the Act of 1984.

Old grounds: (a) The English courts will recognize a foreign decree of divorce if it has been passed by
the court of the country where the parties were domiciled at the time of the „filing of the
proceedings. It would be immaterial if the parties changed their domicile after the date of the
institution of the petition.

(b) The English courts recognize a foreign divorce if it is recognized as valid by the domicile of the
parties.

New grounds: The two new grounds of divorce that have been added by the Act of 1971 are: A
foreign divorce will be recognized in England: if

(a) at the time of the institution of proceedings either spouse was habitually resident in the country
where divorce was obtained

(b) at the time of the institution of proceedings either spouse was a national of the country where
divorce was obtained.

In ground number (a) in respect of a country which uses the concept of domicile as a ground of
jurisdiction in the matter of divorce, the words “habitual residence” should be substituted with
“domicile”. This may be formulated thus: English courts will recognize a foreign divorce if obtained in
a country where either party was domiciled at the time of the institution of proceedings.

The term “habitual residence” has not been defined either in the Act or in the Convention; nor is
there any judicial definition of the term. “In determining whether a resident is habitual, account is to
be taken of the duration and the continuity of the residence as well as of other facts of a-personal or
professional nature which point to durable ties between a person and his residence.

In matters of status the continental countries have always adhered to nationality. Since the decision
of Indyka v. Indyka the English courts have emphasised nationality as an additional and important
factor in establishing real and substantial connection. “Nationality” has now been recognized as an
independent basis of jurisdiction. Now a Muslim of Indian or Pakistani nationality can divorce his
wife by Talak even though he was domiciled in England.

Non-Judicial Divorces- Section 2 of the Act of 1971 lays down that in case the aforesaid grounds of
divorce exist (i.e. under s. 3 and s. 6) then the foreign divorce will be recognized whether it is
obtained in “judicial proceedings or other proceedings”. This provision of s. 2 read with s. 6 of the
Act merely codified the existing law, i.e. the non judicial divorces will be recognized in England if
they were valid under the law of the country where they were granted; they would also be
recognized in England if they were recognized under the personal law of parties. In Qureshi v.
Qureshi it was held that a talak pronounced in England, even if pronounced in respect of a marriage
celebrated in England will be recognized if under the law of domicile of the parties this mode of
divorce was valid. Non-judicial divorce will also be recognized if they fall under the two new grounds
of recognition, viz. the habitual residence and nationality.

When Foreign Divorces need not be recognized

A foreign decree which was offensive to English notions of justice would not be recognized. In Indyka
v. Indyka Lord Pearce observed: “Our courts should reserve to themselves the right to refuse
recognition of the decrees which offend our notion of genuine divorce.

The Act of 1971 lays down that foreign divorces will be refused recognition on any one of the
following grounds

(a) When there is violation of Principles of natural justice, or

(b) When recognition would manifestly be contrary to public policy.

Natural Justice-This has been formulated by the Recognition of Divorces and Legal Separations Act,
1971 thus: an English court may refuse to recognize a foreign divorce if it was obtained by one
spouse

(i) without such steps having been taken for giving notice of the proceedings to the other
spouse as, having regard to the nature of the proceedings and all the circumstances should
reasonably have been taken; or
(ii) without the other spouse having been given (for any reason other than lack of notice) such
opportunity to take part in the Proceedings as, having regard to the matters aforesaid, he
should reasonably have been given.

It has been held that a foreign judgment cannot be refused recognition merely on the ground that it
was obtained by fraud of one of the parties. The rule seems to be this that if fraud affects the merit
of the, case it is not material, but if its affects jurisdiction it is. It would appear that mere want of
notice is no ground for refusing a foreign divorce decree; unless it is proved that the respondent had
no notice of the proceedings.

Public Policy- This has been .a general head of English law under which English courts have refused
to recognize foreign judgments. However, as Dicey and Morris observe: “There is no case in which
foreign divorce granted by a court of the parties domicile has been denied recognition in England on
the ground that to recognize it would be contrary to public policy.” This Statement is no longer true;
the English Courts have refused to recognize a foreign divorce on this basis. The English horse of
public policy has not been so unruly, but the Recognition of Divorces and Judicial Separations Act,
1971 none the less qualifies „public policy‟ with the word “manifestly” and the Solicitor-General
said that this word has been used to make the horse of public policy trifly less unruly. It is submitted
that this is not going to make much of a difference. Section 8 makes it evidently clear that foreign
divorces cannot be refused recognition in Great Britain on any other ground.

Indian Law

Apart from the general provisions contained in section 13, Civil Procedure Code, the Indian law of
recognition of foreign divorces is still not well developed. Whatever little case law that exists in India
there is a clear tendency to follow English law.

Only a few decisions are available on the subject. In Joao Gloria Fires v. Ana Joaquina Pires two
persons of Roman Catholic faith underwent a ceremony of marriage in Goa in the Church April 27,
1957. Parties were resident and evidently domiciled in Goa at the time of the marriage. The husband
obtained a decree of divorce from Uganda court, where he was residing. Subsequently, he made a
petition in a Goa court that the decree of divorce obtained by him from the Uganda court be
confirmed, Wife opposed the petition on the grounds, inter alia, that under Goan law a Roman
Catholic marriage is a sacrament and an indissoluble „union, and, therefore, the Ugandan decree of
divorce cannot be confirmed Clause (6) of s. 102 of the Civil code of Goa lays down that a foreign
decree or judgment which is against public policy cannot be recognized.

It is submitted that the Indian courts will still have ample opportunities to develop the law of
recognition of foreign divorces and, without the aid of any legislation; the Indian court can develop
the law on the modern lines. Already in the domestic Indian matrimonial law, residence is a basis of
jurisdiction. If the Indian courts assume jurisdiction on the basis of residence, there is no reason why
they should refuse to recognize foreign divorces based on the same jurisdictional rules Thus, it is sub
mitted that there is ample scope for our courts to develop law on the lines of the Hague Convention
on the Recognition of Divorces and Legal Separations.