Professional Documents
Culture Documents
INTRODUCTION
1.1 Introduction
In all systems of law marriage is the backbone of the society. The
opinion of Prof. Letourneau in the The Evolution of marriage and Family,
that the primary cause of the family is purely biological is not true any more.
So, the institution of marriage has its own importance in every civilized
society. Marriage, it has been said, is the usual fate of most of the adult
persons. According to Bentham:
Under whatever point of view the institution of marriage is
considered, nothing can be more striking than the utility of this
noble contract, the tie of society and the basis of civilization,
and that to perceive its benefits, it is only necessary to imagine
for a moment what men would be without that institution. 1
The institution of marriage is as old as the dawn of civilization. However, the
nature and concepts of marriage under different personal laws keep on
changing with the changes in society and social order. The general concepts of
marriage requires the subsistence of the social unit of Family, which is the
foundation of every society.2
The nature and concepts of marriage also differs from community to
community. But under most of the personal laws, marriage is considered to be
an exclusive union between a male and a female. It is not merely meant for
sexual enjoyment but also for a long and happy association of man and woman
to constitute an orderly Family which contributes to the progress of society.
1
H.R. Khanna in his Inaugural Address at the Seminar on The Hindu Marriage
Act, 1955, and The Special Marriage Act, 1954 convened by the Indian Law Institute at
Delhi in Feb. 1975, in Studies in the Hindu Marriage and the Special Marriage Acts
1954, (1978) p. 1.
Endre Nizsalovsky, order of the Family (1968), p. 15.
Mutual love, affection and understanding must build the bonds of matrimony
and bind them together for a happy, harmonious conjugal life. The happiness
in life to a great extent depends not only upon the state of their physical health
but also upon the health and well being of their martial relations. A happy
married life is undoubtedly a great boon and bliss. If we trace out the history
of some of the stalwarts we find that their domestic happiness, inner strength
and support extended by their life parents while facing turmoil and difficulties
of life, contributed a lot to their achievements. Mahatma Gandhi and Pt. J.L.
Nehru are examples of the same. Thus, from time immemorial, marriage has
been regarded as the basis of civilization and civilized society of sound morals
and domestic affection by different systems of Law.
Sick marital relations pose a problem not merely for the related
spouses, they have wider implications. As the family is basic unit of the
society, the disturbances and disharmony in this primary unit have their
repercussions and impact upon the society also Harmony in society is
inconceivable where there are dissatisfied spouses that make a home and a
family which is the most crucial unit in the hierarchy of social institutions. So,
stability of marriage is the sine-qua-non of every society. To stablise the
institution of marriage various pieces of legislations and Acts have been
passed under different personal laws in India and abroad. The emphasis of all
marital laws is to avoid hasty dissolution marital moralities.
1.2 Definition of Marriage
It is not possible to define Marriage in exact words, which constitutes a
family, the basic unit of society, as its nature varies from community to
community. However, some of the sociologists and jurists have tried to define
it in their own words.
Prof. Vinogradoff observed that :
3
4
5
13
14
Venkatarammaiyas, Law Lexicon and Legal Maxims, 2nd Ed. Quoted Shaw v.
Gounld, 1868 3 HL-55 at 83 per old Westbury.
Sir Gooroodas Bannerjee, The Hindu Law of Marriage and Stridhana, p. 29.
Sir T. Strange, Element of Hindu Law, vol. 1, p. 35.
Bentham, Theory of Legislation, p. 230.
Mackenzie, Spiritual Values and the Family, in, Court and Law (vol. 18).
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or sacrament confers a number of rights upon the parties. Like Hindu Law in
Muslim Law, A Quranic verse depicts the aim and object of Marriage as under:
And of his signs is this: He created for you helpmates from
yourselves that he might find rest in them and he ordained
between you love and Mercy. So, herein indeed are portents for
folk who reflect.24
The following are some of legal incidence of marriage
(a) Legal Status of Husband and Wife :- The marriage confers the legal
status of husband and wife upon the spouses. If a male is not legally wedded to
a female, the female will have only the status of a concubine. If some one calls
her a concubine, she has no right to sue for defamation. The legal status
confers some legal obligations on the spouses. The wife has a right to claim
maintenance from her husband under S. 125 of the criminal procedure code, if
she has no independent source of income sufficient to support her. The marital
status also entitles one to claim matrimonial remedies which are available
under the provisions of personal laws.
(b) Right of Consortium and Cohabitation :- After marriage the spouses get
the right of consortium and cohabitation. One spouse is entitled to the conjugal
company of the other spouse. If one spouse withdraws form the conjugal
company of the other spouse without a reasonable cause or excuse and without
the consent of the other spouse, the aggrieved spouse has a right to seek the
remedy for Restitution of conjugal rights by filling a petition in the court of
competent jurisdiction. If one spouse has deserted the other without a
sufficient cause, the aggrieved spouse can also seek divorce.
The sexual intercourse is also legalized after marriage. The physical
relations without marriage are considered to be adulterous. The spouses get
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legal right to procreate the children also. These incidences of marriage are
emphasized in the following words:
Besides the procreation and education of children, marriage has
for its object the mutual society, help and comfort, that, the one
ought to have of the other both in prosperity and adversity.
Marriage is the most solemn engagement which one human
being can contract with other. It is contract formed with a view
not only to the benefit of the parties themselves, but to the
benefit of third parties; to the benefit of their common offspring,
and to the moral order of civilized society.25
It is further emphasized in the Encyclopedia Britannica that:
Marriage is a physical, legal and moral union between man and
woman in complete community of life for the establishment of a
family.26
The physical union takes the first place. The procreation of children is
other essential element on which depends the creation of the family. The
welfare of nation depends on families. So it is right pointed out:
Marriage is rooted in the family rather than the family in the
marriage.
(c) Legitimate Status of Children :- The children of valid marriage are
conferred legitimate status. The illegitimacy is considered to be a sin and an
illegitimate child is looked down upon in the society. Efforts have been made
to confer legitimate status to children of void and voidable marriages under S.
16 of the Hindu Marriage Act, 1955. But the children of such marriages
though conferred legitimate status, still suffer from disability as far as the right
of inheritance in the ancestral property of the joint family is concerned.
25
26
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13
14
Narada, XII, 93; to the same effect is a text of Parashara, II, 27.
Manu, IX; 27.
15
(ii)
Although among them, some of those who had the impact of the western
education worked for the social reforms and advocated for introduction of
divorce in Hindu Law also. Their attempts did not succeed at All-India level
but these succeeded in an Indian state, Baroda and the Baroda Hindu
Lagnaviccheda Nibandha (Hindu Dissolution of Marriage Act) was passed in
1931.31 Similarly, some other piecemeal reforms took place in the provinces of
Bombay and Madras, namely. The Bombay prevention of the Hindu Bigamous
Marriage Act, 1946 which was followed by the Bombay Hindu Divorce Act,
1947. In the same way in 1949, the Madras Province and in 1952, the
Savrashtra state passed the similar statutes.
1.8 Hindu Marriage Act 1955
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30
31
16
The Hindu Marriage Act, 1955; The Hindu Succession Act, 1956; The Hindu
Minority and Guardianship Act, 1956; The Hindu Adoption and Maintenance Act, 1956.
17
The probe the magnitude of normal wear and tear in a matrimonial tie
that can amount to cruelty.
To explore and identify that how far economic independence of female
constitute in aggravating cruelty.
To assess the level of cruelty that prevails in society and its extent
leading to divorce.
To determine the efficiency of existing and emerging pattern of legal
devise to deter any of the spouse form resuming to the act of cruelty.
To undertake historical survey of society relating to the level of
tolerance in matrimonial setups.
To explore and identify the factors responsible for an act of cruelty in a
marriage.
To undertake an extensive study of cruelty under different personal
laws.
To analyze whether the laws relating to cruelty sufficient to deal with
the age old evil of cruelty.
Judicial interpretation of cruelty and its relevancy in the Indian
scenario.
To conduct a comparative study of transnational and international legal
normative structures and its potentiality to deal with the problem of
cruelty as a ground for divorce.
These are some of the objectives and issues are being countenanced by the
researcher in the conduct of the present study.
1.10 Research Methodology
1.10.1 Doctrinal Approach :- The central proposition of the proposed study
has been to undertake an in-depth study through doctrinal approach to find out
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the facts, problems, causes and their solutions. The doctrinal approach of the
study includes descriptive method, comparative method and analytical
methods of probing exploring and evaluating the subject matter. Keeping in
view the nature of the study we adopt interpretation technique to find out the
matter spread over the different branches of legal knowledge.
1.10.2 Legal Material :- In this study, legal reports, journals, text books on
the subject have been used extensively and statutes, case law reports are
scanned thoroughly. There is a vast legal literature relating to cruelty and the
other grounds of divorce in English Law, International Law and Indian Law.
Most of the people do not bother to enforce their substantive and remedial
rights in the area of domestic violence. With the changing socio-economic and
religious scenario NGOs, social activist and contemporarily even individuals
(especially women) avail the opportunity to take shelter of the judiciary.
Therefore there is abundant literature available in India on the subject of
investigation. The available literature in the form of judicial decisions, statutes,
and articles published in foreign countries have also been extensively used in
this work along with the notifications of and policy documents of the
government and its various agencies.
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