ANALYSIS OF COMPARATIVE PERSONAL LAWS PERTAINING TO MARRIAGE AND DIVORCE

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Commentary :: The Danial Latifi Case and the Indian Supreme ...

by Mayank Tiwari      20 August 2020

In Muslim law, marriage is a contract having as its object, the procreation and legislation of children. Marriage contracts are often reduced to writing in the form of a kabinnama. But failure to prove the Kabinnama cannot possibly be held to disprove the marriage. In the case of the marriage under the Muslim law, it is to be noticed that neither writing nor any religious ceremony is essential. All that is necessary is that there should be a proposal and an acceptance in the presence of witness.

MUSLIM PERSONAL LAW: THE RESPONSE OF THE JUDICIARY

 The response of the judiciary on the status on women under the Muslim personal law has been ambivalent. Many of the cases give the impression that the role of our judiciary has been healthy and satisfactory. In many cases Supreme Court has tested personal laws on the touchstone of fundamental rights and to make them consistent with fundamental rights. Whereas in some of the case court held the validity of the personal laws cannot be challenged on the ground that they are in violation of fundamental rights because of the fact parties in personal law is not susceptible to fundamental rights.

Case- Mohd. Ahmad Khan v. Shah Bano Begum[1]

 In instant case issue was that, up to what extent of Muslim husband’s liability to maintain his divorced wife under Section 125 of the Cr.P.C 1973?

In instant case court went into the details of various authorities and translation of the verses of the holy Quran in support of the view that a Muslim Woman who has been divorced by her husband has all right to be maintained even after the period of Iddat. Further court upheld that provision of the maintenance under section 125 of the Cr.P.C is not dependent on the religion of the spouses. It is a secular law applicable to all irrespective of the religion. Therefore, the judgment evoked unprecedented debate and controversy on the Muslim woman’s rights to claim maintenance from the husband after divorce. It ultimately led to the enactment of the Muslim women (Protection of rights on Divorce) Act 1986.

Case – Danial Latifi v. Union of India[2]

In this case constitutional validity of the Muslim Women (protection of rights on Divorced) Act 1986 was challenged on the ground that it infringed article 14, 15 and 21 of the Indian constitution. The court remarked that the “legislature does not intend to enact unconstitutional laws” but that per se is no ground for upholding an Act as Constitutional, through its un convincing interpretation, Court imposed a seal of the constitutional validity of the statute.

MARRIAGE AND DIVORCE LAWS

Hindu Law: The Hindu Marriage Act, 1955 brought about sweeping changes in the ancient Hindu Law and changed the edifice of the Hindu Law on marriages and dissolution of marriage upside down. After the enactment of this Act merely the ceremonial aspect of Hindu law has been retained and the State took it upon itself to determine substantial marital obligations of the parties and the procedure governing its dissolution.

Section 5 (ii) of the Act prohibited bigamy. Polygamy was prevalent in the ancient Hindu Law up to 1955 and was prohibited only in the state of Bombay vide a statute of 1948. Now, bigamy became an offence for a Hindu husband under Section 494 of the IPC.

Another landmark change brought in the Hindu Law on marriages was the introduction of the concept of divorce. Before the introduction of this legislation Hindu marriage was seen as a sacrament which was indissoluble in nature. The Hindu law on marriage was as such alien to the concept of divorce whether consensual or unilateral. Section 13 introduced the concept of divorce for the first time whereby a party can present a petition for divorce and obtain a decree for divorce on default of specified marital obligations by the other party, e.g. acts of cruelty, adultery, etc. Some special rights have also been vested on women under Section 13 (2) of the Act. The Marriage Laws (Amendment) Act, 1976 further liberalized the law on dissolution of Hindu Marriage and introduced the concept of divorce by Mutual Consent under Section 13-B of the Act whereby a petition for divorce could be presented jointly by both the spouses. Therefore, the fault theory has been done away with and marriage which was an indissoluble bond under the ancient law can be dispensed with under the modern law even without default by any of the parties if the parties to the marriage feel that they cannot cohabitate.[3]

Muslim Law: The Muslim law has remained more or less stagnant as compared to Hindu Law. The Muslim husband can still marry up to four wives and the archaic law of polygamy has not been undone even after around 7 decades since the commencement of the Constitution of India.

As far as the law on divorce is concerned, the old law of Talaq including Talaq-ul-Sunnat and Talaq-ul-Biddat, i.e. arbitrary power of the husband to bring marriage to an end is still in vogue. It is different from divorce under Hindu Law in the sense that it is a unilateral power vested in the husband who can invoke it even if the wife is not at fault in accordance with the personal law. Talaq-ul-Biddat (Triple Talaq) is more barbarous and capricious being irrevocable in nature and becomes effective as soon as it is pronounced by the husband without any scope for reconciliation. It is this doctrine which has led to newspaper reports of Muslim husbands divorcing their wives for the most absurd of reasons. The Muslim wife was not given any rights to dissolve the marriage under the ancient law but some rights were vested in her vide the Dissolution of Muslim Marriage Act, 1939 but the rights vested under the Act are sparse and meagre as compared to the rights vested in the Hindu wife under the Hindu Marriage Act. Moreover, the invocation of most of such rights can be made only if the marriage has not been consummated[4].

[1] AIR 1985 SC 945

[2] (2001) 7 SCC 740

[3] “Hindu Law- B M Gandhi”, Revised by Sumeet Malik, 6th Edition, Eastern Book Company.

[4] “Textbook of Mohammedan Law” by Aqil Ahmad, Revised by Prof. Iqbal Ali Khan, 26th Edition, Central Law Agency