Private International Law

Matrimonial Causes

Submitted to: Submitted by:

Ms. Kajori Sative Chauhan
Private International Law Roll no. 102/14
UILS Section-B
Panjab University 6th Semester
B.A. LL.B. (Hons)
 Acknowledgment

I would like to express my deepest appreciation to those who provided me the

possibility to complete this report.  A special gratitude I give to our professor and

mentor, Ms. Kajori, whose contribution in stimulating suggestions and

encouragement, helped me to coordinate my project especially in writing this report.

Ms. Kajori’s detailed knowledge of the syllabus and expertise in the content has

inspired me to put forth my greatest effort into this assignment.

Sative Chauhan
 Table of Contents

Acknowledgment 2

Introduction 4

Timeline of Recognition 4

Grounds of Divorce 5

Jurisdiction 6

Choice of Law 7

Nullity of Marriage 8

Judicial Separation 10

Restitution of Conjugal Rights 12

Polygamous Marriage 13

Bibliography 13
 Introduction

All over the civilized world, marriage is a very important social institution. It
can be considered as a sacrament or contract, which either way gives rise to a status
conferred upon the parties. It confers a status of husband and wife on the parties to
marriage and a status of legitimacy on the children of the marriage. The basic
difference between marriage and a commercial contract is that a commercial or
mercantile contract does not give rise to any status while marriage does. The
contract of marriage has no utility in respect of marriage or in regard to any rights
and liabilities arising under it.

Where there is the commencement of a contract, there arises the chances of a

breach of such contract which could ultimately result in termination of the same.
This is where the topic of matrimonial causes comes into action. In England, before
1857, the jurisdiction over matrimonial causes was exercised by the ecclesiastical
courts. Actions in matrimonial causes did not involve any problem of conflict of
laws as the jurisdiction of the ecclesiastical courts extended to all Christians. The
jurisdiction was available to those marriages alone which fell within the definition
of the Christian marriage.
 A Timeline of Legal Recognition

In 1857, the first Matrimonial Causes Act was passed which repudiated the doctrine
of indissolubility of marriage and transferred the entire jurisdiction in matrimonial
causes from ecclesiastical courts to civil courts1.

In 1865, the Parsi Marriage and Divorce Act was passed which recognized
matrimonial causes for Parsis. It was modelled on the Matrimonial Causes Act of
1857.

In 1869, the Indian Divorce Act was passed which introduced the matrimonial
actions of divorce, nullity, judicial separation and restitution of conjugal rights.
The Dissolution of Muslim Marriages Act, 1939 was passed to enable the Muslim
wife to obtain divorce on certain grounds as before 1939 there was hardly any
ground on which the Muslim wife could ask for divorce.

In India, the first four matrimonial causes were maintainable under the Specific
Relief Act, 1963 which was a civil suit for such a declaration.

Reforms were made to the existing provisions which were consolidated under The
Matrimonial Causes Act, 1973, had been supplemented by the Domicile and
Matrimonial Proceedings Act, 1973.

Just as in India there is no uniform law of marriage, there is no uniform law of

matrimonial causes; every community has its own persona law. The question of
conflict of inter-communal law hardly arises in India, though conflict of laws
situation in personal laws do arises at an international level.

1
The Act created a court of “divorce and matrimonial causes” which later became the divorce division of
the High Court, and is now the Family Division.
Matrimonial Causes

Grounds of Divorce

The Matrimonial Causes Act, 1973 recognizes the following facts which constitute
the breakdown of a marriage;2
a) The respondent committed adultery and the petitioner finds it intolerable to
live with the respondent
b) The respondent behaved in such a way that the petitioner cannot reasonably
be expected to live with the respondent
c) The respondent deserted the petitioner for a period of at least two years
d) The parties have lived apart for a continuous period of at least five years
preceding the presentation of the petition

Matrimonial causes are now generally taken to include petition for divorce, nullity
of marriage, judicial separation and presumption of death and dissolution of
marriage as well as similar foreign proceedings which may fall recognition here.
The rules relating to the jurisdiction of the courts and to the recognition of the
foreign divorces, annulments and judicial separations are, in essence, the same for
all three matrimonial causes, and therefore be examined together, identifying where
appropriate any rule which do not apply to all three. It will be seen that the one
major area of difference remaining concerns the determination of the law to be
applied by the English Court. It is also necessary to discuss a further preliminary
issue, namely whether an English court will assume jurisdiction to grant
matrimonial relief in the case of an actually or potential polygamous marriage.

Polygamous Marriages and Matrimonial Relief

A. At Common Law
Until 1972, the rule of English Law was that the parties to a polygamous
marriage were “not entitled to the remedies, the adjudication, or relief of the
matrimonial law of England.”3 It meant that, in the case of a polygamous
marriage, the court would grant a divorce, a decree of nullity even where the
petitioner claimed lack of capacity to enter a polygamous marriage,4 or a
decree of judicial separation. It can be realized, however, that fundamental
reform was called for a view of the number of immigrants from jurisdictional
where they had contracted valid marriages in polygamous form. A
2
Sub-section (2) of Section 1
3
Supra no. 5.
4
Risk v. Risk [1950] 2 All ER 973.
 substantial number of people, permanently residents through not domiciled
in England, were denied all matrimonial relief.

B. Matrimonial Causes Act, 1973

The entire above rule have been changed now and Section 47 5 of the
Matrimonial Causes Act, 1973 makes it available to the parties to an actually
polygamous marriage a wide range of matrimonial relief,6 namely decrees of
divorce, nullity, judicial separation, presumption of death and dissolution of
marriage, order for financial provisions in the cases of neglect to maintain,
variations of maintenance agreement, orders for financial relief or relating to
children which are ancillary to any of the preceding decree7 or order, order
made under Part I of the Domestic Proceedings and Magistrates’ Court Act
1978, order for financial relief after a foreign divorce, annulment or legal
separation8 and any declaration under Part III of the Family Law Act 1986
involving a determination as to validity of a marriage.9 Indeed it has been
said that the effect of section 47 of the 1973 Act is to abolish entirely the old
rule, so that all forms of relief which can be classed as matrimonial are now
available in the case of polygamous marriages.
C. Remaining Problems
Where the party to an actually polygamous marriage brings proceeding for
divorce alleged irretrievable breakdown of the marriage,10difficulties may
arise over adultery, unreasonable behavior or desertion as proof of
breakdown.11 If a wife alleges that her husband has committed adultery with
another wife, such a claim will usually fail because, “it is an essential
element of adultery that intercourse has taken place outside the marriage
relationship i.e. between persons not married to each other. This being so,
intercourse with a wife could not be adultery.”12 In terms of policy this
conclusion seems right if both the marriages were entered into in polygamous
form. It has been said13 that in such a case there has been no breach of the
obligation of fidelity imposed by the law governing the marriage, followed
by a valid polygamous one.
If a wife divorces petition is based on the husband’s unreasonable behavior,14
the court will have to examine all the circumstances of the marriage15 and it
5
A Court in England and Wales shall not be precluded from granting matrimonial relief or making a
declaration concerning the validity of a marriage by reason only that either party to the marriage is, or has
during the substance of the marriage been, married to more than one person.
6
Matrimonial Causes Act 1973, Section 47(2).
7
Chaudhary v. Chaudhary, [1985] Fam 148 at 151.
87
Matrimonial and Family Proceedings Act, 1984, Schedule 1 para 15.
98
Matrimonial Causes Act 1973, Section 47(3).
109
Ibid, Section 1.
11
Ibid, Section 1(2) (a), (b) and (c). These grounds for divorce will no longer be relevant if and when
Part II of the Family Law Act, 1996 is bought into force.
12
Onobrauche v. Onobrauche (1978) 8 Fam Law 107
13
Clive, The Law of Husband and Wife in Scotland, 4th edn. (1997), pp 109-110
14
Matrimonial Causes Act 1973 Section 1 (2) (b)
15
Gollins v. Gollins [1964] AC 644.
 been also held that the taking by the husband of a second wife is
unreasonable behavior towards the first.16 Similarly, if a husband’s petition is
based on desertion by the first wife, the fact that he was the validity married
a second wife has been held to give the first wife reasonable ground for
leaving him.17

Jurisdiction

• Divorce and Judicial Separation

It was held by the Privy Council in Le Mesurier v. Le Mesurier, that
‘according to international law, the domicile for the time being of the married
pair affords the only jurisdiction and only true test of jurisdiction to dissolve
their marriage.’ The essence of the rule in this case was that there should be
only one test of jurisdiction and only one court capable of dissolving a
particular marriage, the court of the parties domicile. The Matrimonial
Causes Act, 1973, provided that the Court should have jurisdiction to grant a
divorce, in proceeding by a wife, notwithstanding that the husband was not
domiciled in England, if she had been deserted by her husband, or the
husband had been deported from United Kingdom, and the husband was
immediately before the desertion or deportion domiciled in England.18 These
enactments were confined to proceeding by a wife. They did not extend to
cross-petition by a respondent husband.19 The exercise of the English Courts
jurisdiction in proceeding for divorce is subject to rules requiring or enabling
the court to stay those proceedings in certain circumstances.20

• Nullity of marriage

Before 1974 the jurisdiction of the British Court to entertain petitions for the
nullity of marriages was one of the most vexed and difficult question in the
whole of the English conflict of laws. An enormous simplification of the law
was effected by section 5(3) of the Domicile and Matrimonial Proceeding
Act 1973. This provides that the English Court have such jurisdiction to
entertain such petition if (and, subject to section 5(5), on if) either party to the
marriage:

16
15. Poon v Tan (1973) 4 Family Law 161.
17
16. Quoraishi v. Quoraishi [1985] FLR 780 CA
18
17. Section 13, but now repealed.
19
Levett v. Levett and Smith [1957] P. 156
20
Family Proceeding Rules, 1991
 (a) Is domiciled in England on the date when the proceedings are begun
(b) Was habitually resident in England throughout the period of one year
ending with the date, or
(c) Dies before that date and either was at death domiciled in England, had
been habitually resident in England throughout the period of one year
ending with the date of the death.

Without this insignificant exception, the bases for jurisdiction in nullity of marriage
are now the same as in divorce and judicial separation. A voidable marriage no
longer confers the husband’s domicile at the date of the marriage.21 The bases for
jurisdiction are now same whether the marriage is alleged to be void or voidable. It
is therefore no longer necessary to consult foreign law i.e. the law of the husband’s
domicile at the date of the marriage.22

Choice of Law
A. Divorce
The question of choice of law has never been prominent in the English rules of the
conflict of laws relating to divorce, which has always been treated as primarily a
jurisdictional question. English Court when deciding whether to recognize foreign
divorce have never examined the ground on which the decree was granted in order
to hand, when English Court have themselves assumed jurisdiction, they have never
applied any other law than that of England. In English law the only possible
alternative to the lex fori would be the law of the domicile. No difference between
them could exist before 1938, because English courts did not exercise jurisdiction
unless the parties were domiciled in England. The Court of Appeal determined the
question of divorce by the law which would be applicable thereto if both the parties
were domiciled in England at the time of the proceeding, i.e. English law.23
The rule may be justified on the ground that it would be highly inconvenient and
undesirable from the practical point of view to apply foreign law in English divorce
suit. Again, to require English Court to dissolve marriage an exotic foreign ground
would be distasteful to judge and unacceptable to public opinion.

21
Section 1 of Domicile and Matrimonial Proceedings Act, 1973.
22
De Reneville v. De Reneville, [1948] P. 100.
23
Zenelli v. Zenelli (1948) 64 T.L.R 556.
 B. Judicial Separation
Unlike divorce a vinculo matrimonii, judicial separation was a remedy
granted by the ecclesiastical court before 1858. There it was called divorce a
mensa et thoro( divorce from bed and board). The principle effect of a
decree was (and is) it entitled the petitioner to live apart from the respondent,
but not to dissolve their marriage nor enable either party to remarry. The
remedy is sought chiefly by person who have religious scruples about
divorce. It has never been doubted that the English court will apply English
domestic law and no other, even if the parties are domiciled abroad.

C. Nullity of Marriage24
A nullity decree is concern with the validity of the creation of a marriage,
unlike divorce which dissolves a marriage which is admittedly validly
created. This means that the choice of law issues in nullity is essentially the
same as those already examined in context of marriage. The reason why the
choice of law for nullity is more difficult area than divorce is that the effect
of annulment varies according to the particular ground in issue and they vary
in relation to the same ground even within United Kingdom. Some defect
avoids a marriage ab initio, i.e. render it void, whilst other merely renders it
voidable. If one party is below minimum age of marriage or is already
married, English Law regards the marriage as void.25 In Scotland, on the
other hand, lack of consent also renders the marriage void ab initio.26
There are further differences in relation to the effect of an annulment. The
annulment of a void marriage has retrospective effect; it declares the
marriage never to have existed. However the position is different in England
in case of a voidable marriage. It has been suggested that, as annulment of a
voidable marriage and divorce decree both only have prospective effect, the
law of the forum should be applied to the former as to the latter.

24
Ireland also has decided not to opt on to Rome III: Press Release 10 October 2006, available at
http://www.iustice.ie/en/JELR/Page/GovernmentreiectsEUdivorceproposals . last visited on 10th February,
2011.
25
26
Matrimonial Causes Act 1973, Section 11.
See, however, Family Law (Scotland) Act, 2006, Section 2 inserting section 20A into the Marriage
(Scotland) Act
1977.
Recognition of Foreign Divorces
The English law of recognition of and foreign divorces has been codified and
reformed by the Recognition of Divorce and Legal Separation Act, 1971. Under
this, the English Court would recognize a foreign decree of divorce if it is
recognized as valid by the court of the domicile of parties. Basically two grounds
were laid down for the recognition in 1971:

(a) At the time of institution of the proceeding either spouse was a habitually
resident in the country were divorce was obtained,
(b) At the time of institution of the proceedings either spouse was a national of
the country were divorce was obtained.

An extra-judicial divorce, if pronounced in England, will not be recognized by

English Courts. If, on the other hand, it was granted abroad, then it will be
recognized if it is effective under the law of the country where it was obtained and
at that date, each party was domiciled in that country and the other was domiciled in
a country which recognizes such decree, provided that neither party was habitual
resident in the UK for one year immediately preceding that date.

A foreign decree may be refused recognition on the policy grounds, such as want of
proper notice, want of opportunity to take part, the absence of an official document,
or contrary to public policy.
 12

Conclusion

A contract to marry fundamentally from a commercial contract, since creates a

status that affects both the parties themselves and the society to which they belong.
It is fulfilled on the solemnization of the marriage ceremony, and therefore there is
a change in the law that governed the relationship between the parties.

There are many different situations in which the existence of a marriage must be
established as a preliminary to legal proceedings. The matter may concern many
different parts of the law. Thus the institution of matrimonial causes, such as a
petitioner for divorce and judicial separation, implies that the parties are related to
each other as husband and wife. Each legal system must determine the attributes of
the consensual union between man and woman, the common factor, in eyes of the
English law, of every marriage, which are necessary to create the relationship of
husband and wife. The above project concludes that the case law just illustrates the
incidental question does not attract a mechanical rule. Therefore each case is
decided on its own facts and circumstances.

As far as jurisdiction of English Court is concerned, to entertain proceedings for

nullity, if either party was habitual resident for one year or domiciled in England,
or if either of the parties died before that date and either was at domiciled in
England or had been habitually resident foe one year ending with the date of the
death. A nullity decree may declare a marriage either void or voidable.
 13

INDIAN LAW
1.     Grounds for Divorce under the Hindu Marriage Act, 1955
The following are the grounds for divorce in India mentioned under the Hindu
Marriage Act, 1955.
Adultery – The act of indulging in any kind of sexual relationship including
intercourse outside marriage is termed as adultery. Adultery is counted as a
criminal offence and substantial proofs are required to establish it. An
amendment to the law in 1976 states that one single act of adultery is enough
for the petitioner to get a divorce.
Cruelty – A spouse can file a divorce case when he/she is subjected to any kind
of mental and physical injury that causes danger to life, limb and health. The
intangible acts of cruelty through mental torture are not judged upon one single
act but series of incidents. Certain instances like the food being denied,
continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are
included under cruelty.
Desertion – If one of the spouses voluntarily abandons his/her partner for at
least a period of two years, the abandoned spouse can file a divorce case on the
ground of desertion.
Conversion – Incase either of the two converts himself/herself into another
religion, the other spouse may file a divorce case based on this ground.
Mental Disorder – Mental disorder can become a ground for filing a divorce if
the spouse of the petitioner suffers from incurable mental disorder and insanity
and therefore cannot be expected from the couple to stay together.
Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can
be filed by the other spouse based on this ground.
Venereal Disease – If one of the spouses is suffering from a serious disease
that is easily communicable, a divorce can be filed by the other spouse. The
sexually transmitted diseases like AIDS are accounted to be venereal diseases.
Renunciation – A spouse is entitled to file for a divorce if the other renounces
all worldly affairs by embracing a religious order.
Not Heard Alive – If a person is not seen or heard alive by those who are
expected to be ‘naturally heard’ of the person for a continuous period of seven
years, the person is presumed to be dead. The other spouse should need to file a
divorce if he/she is interested in remarriage.
 14

No Resumption of Co-habitation – It becomes a ground for divorce if the

couple fails to resume their co-habitation after the court has passed a decree of
separation.
The following are the grounds for divorce in India on which a petition can be
filed only by the wife.
·         If the husband has indulged in rape, bestiality and sodomy.
·         If the marriage is solemnized before the Hindu Marriage Act and the
husband has again married another woman in spite of the first wife being
alive, the first wife can seek for a divorce.
·         A girl is entitled to file for a divorce if she was married before the age
of fifteen and renounces the marriage before she attains eighteen years of
age.
·         If there is no co-habitation for one year and the husband neglects the
judgment of maintenance awarded to the wife by the court, the wife can
contest for a divorce.
2.     Grounds for Divorce under the Dissolution of Muslim Marriage act, 1939
Based on the Dissolution of Muslim Marriage Act, 1939, a Muslim woman can
seek divorce on the following grounds for divorce in India.
1·         The husband’s whereabouts are unknown for a period of four years.
2·         The husband has failed to provide maintenance to the wife for at
least two years.
3·         The husband has been under imprisonment for seven or more years.
4·         The husband is unable to meet the marital obligations.
5·         If the girl is married before fifteen and decides to end the
relationship before she turns eighteen.
6·         The husband indulges in acts of cruelty.

3.     Grounds for Divorce under the Indian Divorce Act, 1869

The following are the grounds of divorce mentioned under the Indian Divorce
Act, 1869.
1·         Adultery
2·         Conversion to another religion
 15

3·         One of the couples suffering from an unsound mind, leprosy or

communicable venereal disease for at least two years before the filing of
the divorce.
4·         Not been seen or heard alive for a period of seven or more years.
5·         Failure in observing the restitution of conjugal rights for at least two
years.
6·         Inflicting cruelty and giving rise to mental anxiety that can be
injurious to health and life.
7·         Wife can file a divorce based on the grounds of rape, sodomy and
bestiality.

4.     Grounds for Divorce under the Parsi Marriage and Divorce Act, 1936
(Amendment 1988)
The following are the grounds for divorce in India included in the Parsi
Marriage and Divorce Act, 1936 and the amendment of the same in 1988.
1·         Continuous absence of seven years.
2·         Non-consummation of marriage within one year.
3·         Unsound mind provided the other spouse was unaware of the fact at
the time of marriage and the divorce must be filed within three years of
marriage.
4·         Pregnancy by some other man, provided the husband was unaware of
the incident during the time of marriage and that he must not have
undergone sexual intercourse after he came to know about the situation.
The divorce must be filed within two years of marriage.
5·         Adultery, bigamy, fornication, rape, or any other type of perverse
sexual act.
6·         Act of cruelty
7·         Suffering from venereal disease or forcing the wife into prostitution.
8·         Sentenced to prison for seven years or more
 16

DIVORCE UNDER MUSLIM LAW

1.) Extra judicial divorce, and

2.) Judicial divorce

The category of extra judicial divorce can be further subdivided into three types,
namely,
• By husband- talaaq, ila, and zihar.
• By wife- talaaq-i-tafweez, lian.
• By mutual agreement- khula and mubarat.

The second category is the right of the wife to give divorce under the Dissolution
of Muslim Marriages Act 1939

Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it
means “setting free”, “letting loose”, or taking off any “ties or restraint”. In
Muslim Law it means freedom from the bondage of marriage and not from any
other bondage. In legal sense it means dissolution of marriage by husband using
appropriate words. In other words talaaq is repudiation of marriage by the husband
in accordance with the procedure laid down by the law.

The following verse is in support of the husband’s authority to pronounce

unilateral divorce is often cited:
Men are maintainers of women, because Allah has made some of them to excel
others and because they spend out of their property (on their maintenance and
dower) . When the husband exercises his right to pronounce divorce, technically
this is known as talaaq. The most remarkable feature of Muslim law of talaaq is
that all the schools of the Sunnis and the Shias recognize it differing only in some
details. In Muslim world, so widespread has been the talaaq that even the Imams
practiced it . The absolute power of a Muslim husband of divorcing his wife
unilaterally, without assigning any reason, literally at his whim, even in a jest or in
a state of intoxication, and without recourse to the court, and even in the absence of
the wife, is recognized in modern India. All that is necessary is that the husband
should pronounce talaaq; how he does it, when he does it, or in what he does it is
not very essential.

In Hannefa v. Pathummal, Khalid, J., termed this as “monstrosity” . Among the

Sunnis, talaaq may be express, implied, contingent constructive or even delegated.
The Shias recognize only the express and the delegated forms of talaaq.
 17

Conditions for a valid talaaq:

1) Capacity: Every Muslim husband of sound mind, who has attained the age of
puberty, is competent to pronounce talaaq. It is not necessary for him to give any
reason for his pronouncement. A husband who is minor or of unsound mind cannot
pronounce it. Talaaq by a minor or of a person of unsound mind is void and
ineffective. However, if a husband is lunatic then talaaq pronounced by him during
“lucid interval” is valid. The guardian cannot pronounce talaaq on behalf of a
minor husband. When insane husband has no guardian, the Qazi or a judge has the
right to dissolve the marriage in the interest of such a husband.

2) Free Consent: Except under Hanafi law, the consent of the husband in

pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced
under compulsion, coercion, undue influence, fraud and voluntary intoxication etc.,
is valid and dissolves the marriage.

Shia law:
Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced
under compulsion, coercion, undue influence, fraud, or voluntary intoxication is
void and ineffective.

3) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may

be simply uttered by the husband or he may write a Talaaqnama. No specific
formula or use of any particular word is required to constitute a valid talaaq. Any
expression which clearly indicates the husband’s desire to break the marriage is
sufficient. It need not be made in the presence of the witnesses.

According to Shias, talaaq, must be pronounced orally, except where the husband
is unable to speak. If the husband can speak but gives it in writing, the talaaq, is
void under Shia law. Here talaaq must be pronounced in the presence of two
witnesses.

4) Express words: The words of talaaq must clearly indicate the husband’s

intention to dissolve the marriage. If the pronouncement is not express and is
ambiguous then it is absolutely necessary to prove that the husband clearly intends
to dissolve the marriage.
 18

Express Talaaq (by husband):

When clear and unequivocal words, such as “I have divorced thee” are uttered, the
divorce is express. The express talaaq, falls into two categories:
Talaaq-i-sunnat,
Talaaq-i-biddat.
Talaaq-i-sunnat is considered to be in accordance with the dictats of Prophet
Mohammad.
The ahasan talaaq: consists of a single pronouncement of divorce made in the
period of tuhr (purity, between two menstruations), or at any time, if the wife is
free from menstruation, followed by abstinence from sexual intercourse during the
period if iddat. The requirement that the pronouncement be made during a period
of tuhr applies only to oral divorce and does not apply to talaaq in writing.
Similarly, this requirement is not applicable when the wife has passed the age of
menstruation or the parties have been away from each other for a long time, or
when the marriage has not been consummated. The advantage of this form is that
divorce can revoked at any time before the completion of the period of iddat, thus
hasty, thoughtless divorce can be prevented.

The hasan talaaq:

In this the husband is required to pronounce the formula of talaaq three time during
three successive tuhrs. If the wife has crossed the age of menstruation, the
pronouncement of it may be made after the interval of a month or thirty days
between the successive pronouncements. When the last pronouncement is made,
the talaaq, becomes final and irrevocable. It is necessary that each of the three
pronouncements should be made at a time when no intercourse has taken place
during the period of tuhr. Example: W, a wife, is having her period of purity and
no sexual intercourse has taken place. At this time, her husband, H, pronounces
talaaq, on her. This is the first pronouncement by express words. Then again, when
she enters the next period of purity, and before he indulges in sexual intercourse,
he makes the second pronouncement. He again revokes it. Again when the wife
enters her third period of purity and before any intercourse takes place H
pronounces the third pronouncement
Talaaq-i-Biddat:
It came into vogue during the second century of Islam. It has two forms: (i) the
triple declaration of talaaq made in a period of purity, either in one sentence or in
three, (ii) the other form constitutes a single irrevocable pronouncement of divorce
 19

made in a period of tuhr or even otherwise. This type of talaaq is not recognized by
the Shias.
Ila:
Besides talaaq, a Muslim husband can repudiate his marriage by two other modes,
that are, Ila and Zihar. They are called constructive divorce. In Ila, the husband
takes an oath not to have sexual intercourse with his wife. Followed by this oath,
there is no consummation for a period of four months. After the expiry of the
fourth month, the marriage dissolves irrevocably. But if the husband resumes
cohabitation within four months, Ila is cancelled and the marriage does not
dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce
without order of the court of law. After the expiry of the fourth month, the wife is
simply entitled for a judicial divorce

Zihar:
In this mode the husband compares his wife with a woman within his prohibited
relationship e.g.,mother or sister etc. The husband would say that from today the
wife is like his mother or sister. After such a comparison the husband does not
cohabit with his wife for a period of four months
Divorce by mutual agreement:
Khula and Mubarat: They are two forms of divorce by mutual consent but in either
of them, the wife has to part with her dower or a part of some other property. A
verse in the Holy Quran runs as: “And it not lawful for you that ye take from
women out of that which ye have given them: except (in the case) when both fear
that they may not be able to keep within the limits (imposed by Allah), in that case
it is no sin for either of them if the woman ransom herself.” The word khula, in its
original sense means “to draw” or “dig up” or “to take off” such as taking off one’s
clothes or garments In law it is said is said to signify an agreement between the
spouses for dissolving a connubial union in lieu of compensation paid by the wife
to her husband out of her property. Although consideration for Khula is essential,
the actual release of the dower or delivery of property constituting the
consideration is not a condition precedent for the validity of the khula. Once the
husband gives his consent, it results in an irrevocable divorce. The husband has no
power of cancelling the ‘khul’ on the ground that the consideration has not been
paid. The consideration can be anything, usually it is mahr, the whole or part of it.
But it may be any property though not illusory. In mubarat, the outstanding feature
is that both the parties desire divorce. Thus, the proposal may emanate from either
side. In mubarat both, the husband and the wife, are happy to get rid of each other .
The Shia law is stringent though. It requires that both the parties must bona fide
 20

find the marital relationship to be irksome and cumbersome. Among the Sunnis no
specific form is laid down, but the Shias insist on a proper form. The Shias insist
that the word mubarat should be followed by the word talaaq, otherwise no divorce
would result. They also insist that the pronouncement must be in Arabic unless the
parties are incapable of pronouncing the Arabic words. Intention to dissolve the
marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is
irrevocable.
Divorce by wife:
Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the
Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce
to his wife or any other person. He may delegate the power absolutely or
conditionally, temporarily or permanently . A permanent delegation of power is
revocable but a temporary delegation of power is not. This delegation must be
made distinctly in favour of the person to whom the power is delegated, and the
purpose of delegation must be clearly stated. This form of delegated divorce is
usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai, under a
prenuptial agreement, a husband, who was a Khana Damad, undertook to pay
certain amount of marriage expenses incurred by the father-in-law in the event of
his leaving the house and conferred a power to pronounce divorce on his wife. The
husband left his father-in-law’s house without paying the amount. The wife
exercised the right and divorced herself. It was held that it was a valid divorce in
the exercise of the power delegated to her. Delegation of power may be made even
in the post marriage agreements. Thus where under an agreement it is stipulated
that in the event of the husband failing to pay her maintenance or taking a second
wife, the will have a right of pronouncing divorce on herself, such an agreement is
valid, and such conditions are reasonable and not against public policy . It should
be noted that even in the event of contingency, whether or not the power is to be
exercised, depend upon the wife she may choose to exercise it or she may not.

Lian:
If the husband levels false charges of unchastity or adultery against his wife then
this amounts to character assassination and the wife has got the right to ask for
divorce on these grounds. Such a mode of divorce is called Lian. However, it is
only a voluntary and aggressive charge of adultery made by the husband which, if
false, would entitle the wife to get the wife to get the decree of divorce on the
ground of Lian. Where a wife hurts the feelings of her husband with her behaviour
and the husband hits back an allegation of infidelity against her, then what the
husband says in response to the bad behaviour of the wife, cannot be used by the
 21

wife as a false charge of adultery and no divorce is to be granted under Lian. This
was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court.
 22

Jurisdiction

English Law

English courts can assume jurisdiction on two grounds: domicile and habitual
residence of the parties27. All other bases of jurisdiction have been abolished. The
Domicile and Proceedings Act, 1973 lays down that the court will have jurisdiction
if either of the parties to the marriage is domiciled in England on the date when
proceedings are begun. Subsequent change in domicile, after the petition was filed,
does not affect the petition but the court will retain jurisdiction to entertain any
cross petition that may be filed subsequently for a different form of relief.

Habitual residence as a basis of jurisdiction was first adopted by the Hague

Conventions and later by the Domicile and Matrimonial Proceedings Act, 1973; if
either party to the marriage was habitually resident in England throughout the
period if one year ending on the date when the proceedings are begun, the English
court has jurisdiction to entertain a petition for divorce.

Indian Law

Under Indian Divorce Act 1869, a petition in any matrimonial cause may be
presented 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 petition for nullity can be
presented only if the marriage was solemnized in India and the petitioner was a
resident of India at that time. In respect of a petition for judicial separation or
restitution of conjugal rights has an additional requirement is that at the time of the
presentation of the petition, the petitioner must be residing in India.

In Arthur Flowers v Minnie Flowers28, the parties were residing at Hyderabad,

where the husband also worked. He used to go to Meerut for official work, on
some of which the wife also accompanied. Subsequently, he filed for judicial
27
Section 5(2)
28
5 Ind Cas 871
 23

separation on the ground of adultery of his wife. The Allahabad High Court
declined jurisdiction saying “a mere casual visit to a place for temporary purpose
with no intention of remaining is not dwelling, an occasional visit within
jurisdiction will not suffice to confer jurisdiction by reason of residence”29.

Choice of Law

English Law

After the English Court decides it has jurisdiction in the case, it invariable applies
the English Domestic Law. In Zanelli v Zanelli, an Italian national domiciled in
England married an English woman. He was later deported after which he assumed
Italian domicile. The English court assumed jurisdiction on the basis of special
statutory provision and granted divorce to the wife. Although special statutory
jurisdiction has been abolished, the choice of law rule is that where the court has
jurisdiction, it will apply English domestic law. It is applied as not lex domicilii
but as lex fori.

Indian Law

When the Indian Court decides it has jurisdiction to entertain the petition of
divorce, then it will apply the personal law of the parties (the community to which
the parties belong). If the marriage has been performed abroad or has some foreign
element, the court will apply provisions of the Special Marriages Act, 1964.

Nullity of Marriage

29
32 All. 203.
 24

The law of nullity is concerned with the impediments to marriages. The notion of
void and voidable marriage was developed in the ecclesiastical law. This
distinction was carried over to common law even after the ecclesiastical courts
ceased to have jurisdiction in matrimonial matters. A void marriage is void ab
initio, from its inception; no legal consequences flow from it. On the other hand, a
voidable marriage is valid till it is avoided on the petition of one of the parties to
the marriage. A void marriage is called a marriage because two persons have
undergone the ceremony of marriage but since the marriage between the two was
impossible, the two persons would not become husband and wife just be
undergoing the ceremony. When a court passes a decree of nullity it merely
declares the marriage as void, it is a judicial declaration of an existing fact. A void
marriage cannot be approbated nor can it be ratified.

A voidable marriage, on the other hand, is a perfectly valid marriage so long as it is

avoided (and it can be avoided only be one parties to the marriage). All
consequences flow from a voidable marriage until it is voided.

The Divorce Act of 1869 and the Parsi Marriage Act of 1954 did not recognize the
difference between a void and voidable marriage as distinguished under English
Law. The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 adopt the
distinction between void and voidable marriages. Under both the statutes when a
voidable marriage is annulled or a void marriage is declared null and void, the
children remain legitimate though they can inherit to their parents alone.

The characterization of marriages into void or voidable marriages has lost all its
utility though it may still be of some importance to Indian Private International
Law. Where the parties had established a matrimonial home, the matter would be
determined by it; where they have not, but are residing at a place then the law of
that place would be applied. If the parties have established neither, then it may be
determined by the law of the individual domicile or by the law of the individual
residence. All formal defects should be determined by the lex loci celebrationis.

An attempt to apply foreign law was made in Robert v Robert30. This was a petition
for annulment of the marriage on the ground of wilful refusal to consummate the
30
(1947) page 164
 25

marriages. Parties at the material time were domiciled in Guernsey and the
marriage was also solemnized there. The court applied the law of domicile.

In De Reneville v De Reneville where a marriage was solemnized between a

domiciled Frenchman and a woman domiciled in England. After living with her
husband for some time in France. The wife returned to England and petitioned for
annulment of marriage on the ground of impotence and wilful refusal to
consummate the marriage. The husband appealed on the ground that the English
court has no jurisdiction. The court of appeal expressed the view that the English
court would only have jurisdiction if she was domiciled in England. The question
of if the marriage was void or voidable should be decided by French law. For the
basis of this decision, jurisdiction should be decided on the basis of the place of the
intended matrimonial home, which is referred to as the proper law of marriage.

No Indian decision is available on the choice of law in nullity cases. The Indian
courts exercise jurisdiction in nullity cases on the basis of domicile as well as
residence. However, this increases the chances of the same difficulties as English
law to arise, when the rule was that the wife took the domicile of the husband if the
marriage was voidable. It seems that Indian courts will determine formal validity
of marriage by the lex loci celebrationis and the material validity by the personal
law of the parties at the time of the marriage.

Recognition of Foreign Nullity Decrees

It is an established rule that English courts recognize decrees passed by the court of
the common domicile or residence of the parties. They will also recognize a
foreign nullity decree if it is recognized by the country of the common domicile of
common residence of the parties.

In V on Lorang v. Administrator of Austrian Property31 a British subject domiciled

in Scotland married an Austrian subject in Paris, they acquired German domicile
after having resided there for a long period of time. The English Administrator of
Austrian property had claimed movables of the wife on the ground that she had
become an Austrian after her marriage. To revoke Austrian citizenship, she filed
31
(1927) A.C. 641.
 26

proceedings in Germany for nullity of marriage on the plea that proper French
ceremonies of marriage were not performed. The court said that the common
domicile of the parties is internationally competent to determine the statutes of the
parties.

It was further explained in Corbett v Corbett32 that if the English courts recognize
the jurisdiction of the English court recognizes the jurisdiction of a foreign court to
annul a marriage, then the ground on which that marriage was annulled by a
foreign court is wholly immaterial33.

Judicial Separation

Judicial separation is a separation of bed and board but does not bring the marital
tie to an end. It merely leads to the suspension of martial obligations and parties
are no longer bound to cohabit with each other but remain husband and wife. If any
of them takes another spouse, he or she will be guilty of bigamy. If one of the
parties dies intestate, the other would succeed to his or her property. Laws of
judicial separation vary from country to country. In most Roman Catholic
countries, divorce is still not recognized and therefore in these countries nullity of
marriage and judicial separation alone are basic matrimonial remedies. In some
countries like Norway and Sweden, separation may lead to divorce. In France,
separation de corps may be converted into divorce after three years at the instance
of either party.

English Law

Ground of judicial separation are embodied in Section 17 of Matrimonial Causes

Act, 1973. Sub-section 1 lays down the facts that constitute breakdown of marriage
and the grounds on which judicial separation can be filed: the respondent
committed adultery and petitioner finds it intolerable to live with the respondent,
32
(1956) I W.L.R. 486.
33
Ibid at 490
 27

respondent behaved in such a way that petitioner cannot be reasonably expected to

live with them, respondent deserted the petitioner for a continuous period of 2
years, the parties to the marriage have lived apart for a continuous period of at least
2 years and the respondent consents to a decree being granted, they’ve been living
apart for 5 years preceding the presentation of the petition. In a petition for judicial
separation, the court is not concerned with whether or not the marriage has been
broken down.

Indian Law

The Divorce Act, 1869 lays grounds for judicial separation unde Section 22: “no
decree shall be made a divorce but the husband or wife may obtain a decree of
judicial separation on the ground of adultery, cruelty, desertion without reasonable
excuse for 2 years upwards and such a decree shall have effect of a divorce”. The
Parsi Marriage Act and Divorce Act contain a simple provision that a Parsi
husband or wife can obtain a decree of judicial separation on any one more more
grounds which he or she can obtain divorce.

The Special Marriage Act, 1954 lays down in Section 23 that either party to the
marriage may present a petition on any ground on which he may present a petition
for divorce.

Jurisdiction

Under English law, domicile of both parties in England was enough to confer
jurisdiction on the English court, it was immaterial whether one party was residing
abroad. Under the Domicile and Matrimonial Proceedings Act, 1973 the court will
 28

have jurisdiction if: at the date of institution of proceedings either party is domicile
in England or at the date of the institution of the proceedings either party was
habitually resident in England throughout the period of one year preceding the
presentation of the petition.

Under Indian law, for the petition of a divorce, Indian domicile of the parties is
essential, in all other matrimonial causes, the rules are the same as divorce and
nullity.

Restitution of Conjugal Rights

The remedy of restitution of conjugal rights is a much criticized remedy. In

essence, the decree means that the respondent is asked to live with the petitioner. It
has been said that it is the worst form tyranny, it is the worst form of slavery.

It has been abolished in English law but continues to exist in Indian law. The
Indian Divorce Act, 1869 the provisions are contained in Section 32 and 33. It
provides that when either parties have, without reasonable cause, withdrawn from
the society of the other, the other party may apply for restitution of conjugal rights.
Nothing shall be pleaded in answer to a petition for such which would not be
granted if the court has been satisfied of the truth of the statements made in such
petition.

The jurisdictional requirements in the matrimonial laws of every community are

practically the same in all the matrimonial causes, so are the rules of choice of law.

Polygamous Marriages

English law does not merely recognize polygamous marriages validity performed
overseas between parties who are not domiciled in the UK but also grants
 29

matrimonial relief to them. Section 47 Matrimonial Causes Act, 1973 declares that
a divorce may be obtained if declaration of that marriage is valid or invalid,
declaration that the application is legitimate child of his parents or that marriage of
parents or grandparents was valid, declaration that the applicant became or his
parents or ancestor became a legitimated person. A party to a polygamous marriage
may seek and obtain divorce, nullity of marriage or judicial separation. Section 37
of Matrimonial Causes Act, 1973 applies to a polygamous marriage which is
partially polygamous or in fact polygamous.

Bibliography
 30

Text References:

Paras and Peeyushi Diwan: Private International Law, Deep and Deep
Publications, 4th Ed, 1998.

Cheshire and NOrths, Private International Law, Oxford University Press, 13th Ed,
2006.

Passingham, Bernard. Matrimonial Causes 1973. London: Butterworths, 1974.

Print.

Web References:

https://www.lawctopus.com/academike/matrimonial-causes-under-special-
marriage-act/

https://www.researchgate.net/publication/269603307_Private_International_Law_a
nd_Matrimonial_Causes_in_India

https://www.researchgate.net/publication/228263419_Marriage_Matrimonial_Caus
es_in_Private_International_Law_Issues_in_Common_Law_Countries