1

University of Yangon
Law Department
Chan Myae Khin
1ML- 32
 2

Divorce between Christians

Under the region of Christianity, divorce is prohibited for Christians because the
Christian marriage is considered as indissoluble union. Under Myanmar Divorce Act 1869, a
petition for dissolution of marriage and judicial separation may be presented to the Court under
Myanmar Divorce Act, 1869. The significant fact of the Myanmar Divorce Act which is the
applicable law for Christians is that marriage may not be dissolved without the decree of the
Court.

Dissolution of Marriage

The dissolution of marriage is the legal termination of a marriage and the obligations
created by it. A divorce action assumes the validity of marriage, but dissolves it1.

According to Myanmar Divorce Act, any husband may present a petition to the Court of
Self-administered Division or the Court of the Self-Administered Zone or The District Court or
to the High Court of the Region or the High Court of the State, praying that his marriage may be
dissolved on the ground that his wife has, since the solemnization thereof, been guilty of
adultery2. It can be said that the adultery of the wife alone is sufficient ground for the husband to
present a petition to obtain a decree for dissolution of marriage.

Under this Act, any wife may present a petition to the Court of the Self-administered
Division or the Court of the Self-administered Zone or the District Court or to the High Court of
the Region or the High Court of the State, praying that her marriage may be dissolved on the
ground that, since the solemnization thereof, her husband has exchanged his profession of
Christianity for the profession of some other religion, and gone through a form of marriage with
another woman; or has been guilty of incestuous adultery, or of bigamy with adultery, or of
marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery
coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et
toro, or of adultery coupled with desertion, without reasonable excuse, for two years or
upwards3. For the petition of dissolution of marriage from the part of the wife, the husband’s
adultery must be coupled with cruelty or desertion or it must be incestuous adultery to obtain a

1
D. Siegel, “Conflicts in a Nutshell”, 2nd edition, West Publishing Co., 1994, p- 376
2
Section 10 of the Myanmar Divorce Act, 1869.
3
ibid
 3

decree for dissolution of marriage. There is no provision for dissolution of marriage by mutual
consent in Myanmar Divorce Act. The marriage between the Christians could not be dissolved
without the decree of the Court4.

Upon any such petition presented by a husband, the petitioner shall make the alleged
adulterer a co-respondent to the said petition, unless he is excused from so doing on one of the
following grounds, to be allowed by the Court: -

1) That the respondent is leading the life of a prostitute, and that the petitioner knowns of no
person knows of no person with whom the adultery has been committed;
2) That the name of the alleged adulterer is unknown to the petitioner although he has made
due efforts to discover it;
3) That the alleged adulterer is dead5.

According to section 12 of the Myanmar Divorce Act, upon any such petition for the
dissolution of marriage, the Court shall satisfy itself, so far as reasonably can, not only as to the
facts alleged, but also whether or not the petitioner has been in any manner accessory to, or
conniving at, the going through of the said form of marriage, or the adultery, or has condoned the
same, and shall also inquire into any counter-charge which may be made against the petitioner.
The section states that there must be no collusion between the parties upon a petition made to the
Court. The court must be satisfied of the absence of connivance or collusion between the parties;
and in the absence of satisfactory proof of such acts required by law in support of a petition for
divorce; it would not be justified in granting a decree for divorce.

In the case of Mrs. M. Truictwein (a) Ma Aye Thwe v. Mr. D. Truictwein, 1955 B.L.R.
(H.C) 287, even though there be a statement that there is no collusion or connivance between the
parties, such statement will not absolve the Court from its duty of ascertaining whether in the
circumstances of a particular case, there was no collusion or connivance between them.

According to section 13 of the Myanmar Divorce Act, in case of the Court, on the evidence
in relation to any such petition, is satisfied that the petitioner’s case has not been proved, or is not
satisfied that the alleged adultery has been committed, or finds that the petitioner has, during the
marriage, been accessory to, or conniving at, the going through of the said form of marriage, or
4
Ba Maw, “Marriage Laws of Myanmar”, 1st edition, Win Sapay, Yangon, 1992, p-111
5
Section 11 of the Myanmar Divorce Act, 1869
 4

the adultery of the other party to the marriage, or has condoned the adultery complained of, or
that the petition is presented or prosecuted in collusion with either of the respondents, then and in
any of the said cases the Court shall dismiss the petition. When a petition is dismissed by a Court
of the Self-Administered Division or a Court of the Self-Administered Zone or a District Court
under this section, the petitioner may, nevertheless, present a similar petition to the High Court
of the Region or the High Court of the State.

In section 14 of the Myanmar Divorce Act, in case the Court, on the evidence that the case of
the petitioner has been proved, and does not find that the petitioner has been in any manner
accessory to , or conniving at, the going through of the said form of marriage, or the adultery of
the other party to the marriage, has condoned the adultery complained of, or that the petition is
presented or prosecuted in collusion with either of the respondents, the Court shall pronounce the
decree declaring such marriage to be dissolved.

According to section 16 of the Myanmar Divorce Act, 1869, every decree for a dissolution of
marriage made by the High Court of the Region or the High Court of the State, not being a
confirmation of a decree of a Court of the Self-administered Division or a Court of Self-
administered zone or a District Court, shall, in the first instance, be a decree nisi, not to be made
absolute till after the expiration of such time, not less than six months from the pronouncing
thereof, as the High Court of the Region or the High Court of the State by general or special
order from time to time directs. Therefore, the decree absolute shall be made after the expiration
of the time not less than 6 months from the pronouncing of the decree nisi.

Under the section 17 of the Myanmar Divorce Act, 1869, every decree for dissolution of
marriage made by a District Judge shall be subject to confirmation by the High Court of the
Region or the High Court of the State. The High Court of the Region or the High Court of the
State, if it thinks further enquiry or additional evidence to be necessary, may direct such enquiry
to be made or such evidence to be taken. The result of such enquiry and the additional evidence
shall be certified to the High Court of the Region or the High Court of the State by the District
Judge, and the High Court of the Region or the High Court of the State shall be thereupon make
an order confirming the decree for dissolution of marriage, or such other order as to the Court
seems fit. Provided that no decree shall be confirmed under this section till after the expiration of
such time, not less than 6 months from the pronouncing thereof, as the High Court of the Region
 5

or the High Court of the State by general or special order from time to time. Therefore, the
decree of the District Judge shall be confirmed by the High Court of the Region or the High
Court of the State. The decree shall be confirmed after the expiration of the time not less than 6
months from pronouncing.

(1) A petition for dissolution of marriage by the husband

A husband may present a petition for the dissolution of marriage on the ground of the wife’s
adultery under the Myanmar Divorce Act. In claiming the dissolution of marriage on the ground
of wife’s adultery under section 10 of the Myanmar Divorce Act, the petitioner has the burden of
prove adultery by the co respondent.

In the case of Walter Allen Medd v. Mrs. Dawn Medd and one 6, the petitioner had filed a
petition for divorce against the respondent for alleged adultery with the co-respondent. The
respondent did not appear in the case to defend herself, but the co-respondent appeared to deny
the charge. The evidence adduced establishes satisfactorily that the respondent has been guilty of
adultery. However, the identity of the adulterer has not been established. Links are wanting in the
chain of evidence to establish the adultery of the co-respondent. Normally, if the petitioner fails
to prove adultery by the co-respondent, the Court would be justified to dismiss the petition. Or he
may amend his petition or file a supplementary petition, so that he may prove that his wife also
committed adultery with a man or men unknown. If the respondent’s wife had appeared to
defend herself then the petitioner would be required to give her an opportunity to defend herself
against the new or supplementary allegations. However, in this case, a supplementary petition
would be a mere formality that is without helping substantial justice. a decree nisi is passed in
favor of the petitioner on the finding that his wife has committed adultery with an unidentified
man. Therefore, a husband may pray the decree for dissolution of his marriage on the ground of
adultery of his wife under Myanmar Divorce Act.

(2) A Petition for Dissolution of Marriage by the Wife

6
1964 B.L.R. (C.C) 137
 6

Where a petition is made by the wife, the grounds for dissolution of marriage can be
listed as follows

(a) The exchange of profession and marriage with another woman

The mere fact that the husband has exchanged his profession of Christianity for that of
some other form of religion is not sufficient ground for dissolution of the marriage. It is also
necessary that he should thereafter have gone through a form of marriage with another woman 7.
Where the parties were Christians at the time of marriage, the subsequent reversion of the
husband to Animism is not sufficient cause of divorce. Further, a mere change of religion
coupled with adultery is not sufficient cause of divorce. To constitute a ground for divorce, the
husband must have changed his religion and gone through a form of marriage with some other
woman8. Therefore, in order to claim a dissolution of marriage under this law, the exchange of
profession must be coupled with the marriage with other woman.

(b) Incestuous Adultery by the Husband

According to section 3(6) of the Myanmar Divorce Act, the incestuous adultery could be
taken as ground for dissolution of marriage. Therefore, although the wife could not claim the
order for dissolution of marriage by the adultery on the part of husband, the incestuous adultery
by the husband could be taken as a fact for the dissolution of marriage.

(c) Bigamy with Adultery and Marriage with another woman with Adultery

According to section 3 (7) of the Myanmar Divorce Act, bigamy with adultery means
adultery with the same woman with whom the bigamy was committed. It is not sufficient to
establish “bigamy with adultery” to prove that a ceremony of marriage has been gone through
with a certain third person; substantive proof that adultery has also been committed with that
person is absolutely necessary. Thus, where all that was proved was that the respondent had gone
through a form of marriage with another woman in America, and there was no evidence of any
subsequent cohabitation between the parties to the bigamous marriage, the Court held that the
mere proof of the ceremony of marriage was not sufficient to satisfy the words “bigamy with
adultery”. So, “Bigamy with adultery” is established by proof of subsequent marriage and
7
H.A.B. Rattigan “The Law of Divorce Applicable to Christians in India (Indian Divorce Act 1869)”, Pioneer Press,
1897, p- 39
8
Maung Mun v. Labra Naw, 2 Ran, 199
 7

cohabitation, although such subsequent marriage and cohabitation, although such subsequent
marriage is null and void on the ground of consanguinity9.

“Marriage with another woman” means marriage of any person, being married, to any
other person during the life of the former wife, whether the second marriage shall have taken
place within the Union of Myanmar or elsewhere 10. Under the Penal Code, section 494, a person
who contracts a marriage during the life of a former husband or wife” does not commit the
offence of bigamy if such husband or wife, at the time of the subsequent marriage, shall have
been continually absent from such person for the space of seven years, and shall not have been
heard of by such person as being alive within that time, providing that the person contracting
such subsequent marriage shall, before such marriage takes place, inform the person with whom
such marriage is contracted of the real state of the facts so far as the same are within his or her
knowledge. Under such circumstances, a man who, during the life of his wife, marries another
woman does not commit bigamy. However, if, after such second marriage, he cohabits with such
woman, or (apparently) commits adultery with any other woman, the woman is entitled, under
section 10 of the Act, to apply for the dissolution of marriage just as she would have been
entitled to apply had the husband been guilty of bigamy with adultery11.

(d) Rape or Sodomy or Bestiality

Rape is the act of physically forcing a woman to have sexual intercourse: an act of sexual
intercourse that is forced upon a woman against her will 12. In a suit for dissolution of marriage on
the ground that the husband has been guilty of rape, the rape must be duly proved, and a proof of
a conviction for rape in a criminal court is not sufficient. Although, as a general rule, a petition
who has been found guilty of adultery will not be entitled to a decree for a dissolution of
marriage, the Court, granted a wife, who had in previous suit been found guilty of adultery, a
decree nisi for dissolution on the ground that her husband had been found guilty of rape
subsequently to her own misconduct13. About the unnatural offences like sodomy or bestiality, it

9
H.A.B. Rattigan, “The Law of Divorce Applicable to Christians in India (The Indian Divorce Act, 1869)”, Pioneer
Press, 1897, p-24
10
Section 3(8) of the Myanmar Divorce Act, 1869
11
H.A.B. Rattigan, “The Law of Divorce Applicable to Christians in Indian (The Indian Divorce Act, 1869)”, Pioneer
Press, 1897, p- 24
12
Ratanlal and Dhirajlal, “Law of Crimes”, 25th edition, Bharat Law House, New Delhi, 2002, p- 1846
13
H.A.B. Rattigan, “The Law of Divorce Applicable to Christians in India (The Indian Divorce Act, 1869)”, Pioneer
Press, 1897, p- 40-41
 8

is provided in section 377 of the Penal Code. The offence consists in a carnal intercourse
committed against the order of nature by man with man, or in the same unnatural manner with
woman or by man or woman in any manner with beast. When a husband has canal intercourse
against the order of nature with his own wife, she not being a consenting party, he is guilty of
sodomy within the meaning of section 10 of the Indian Divorce Act, and the wife is entitled to a
decree of dissolution of marriage14. Therefore, rape, sodomy or bestiality is the ground for
dissolution of marriage under section 10 of the Myanmar Divorce Act.

(e) Adultery coupled with Cruelty

Under the Myanmar Divorce Act, for the wife to pray the petition for the dissolution of
marriage, adultery must be coupled with cruelty. Cruelty alone is not sufficient for divorce 15. It is
not necessary that such communication should be done knowingly, willfully or recklessly.
Communication of venereal disease be condoned by wife; but subsequent adultery has the effect
of reviving the former cruelty which has been condoned. The husband and wife were married in
1937, and according to the wife, the disease was communicated to her first four months after the
marriage. So, there may have been condonation. However, the wife has proved by the evidence
of the witness for her, that the husband had committed adultery with prostitutes again about 3
months before the hearing of her application. This subsequent adultery has the effect of reviving
the former cruelty which may have been condoned 16. Adultery alone was not sufficient ground
for a wife to frame a petition for asking for dissolution of marriage. The adultery must be
coupled with one of the other reasons given in section 10 of the Divorce Act. The evidence
showed that the parties quarreled whilst living together and that the respondent struck the
petitioner and the latter struck the former back in self-defense and left him and lived with her
brother. It was held that the petitioner had not proved sufficient cruelty to entitle her to a
divorce17.

It is open to Courts in Myanmar to pronounce a decree for divorce based on adultery

(coupled with previous cruelty) committed by the respondent after the presentation of a petition
for dissolution of marriage. However, in order to enable the Court to do so, it is essential that the
14
H.A.B. Rattigan, “The Law of Divorce Applicable to Christians in India (The Indian Divorce Act, 1869)”, Pioneer
Press, 1897, p-41
15
Mrs. Pearl Kyaw v. U Kyaw, 1967 B.L.R 249, Ma Saung Nan v. U L Bran Mai, 2010 M.L.R 28
16
Mrs. T. Joubert Bwa v. Mr. Joubert Bwa, 1948 B.L.R (H.C) 132
17
Gertrude Daniells v H. Stanley Daniells, 3 B.L.T 92
 9

petitioner should file a duly verified supplemental petition supported by an affidavit which
should set out the facts, testify to non-collusion and no connivance, and copies of the
supplemental petition should be duly served on the respondent and on all persons affected by it.
Upon the commission of a subsequent matrimonial offence, the forgiveness of a prior offence is
cancelled and the old cause of complaint is revived; furthermore, the subsequent offence need
not necessarily be as the original offence18. Cruelty once condoned may be so revived subsequent
adultery as to form coupled with the cruelty, a ground for sentence of dissolution of marriage19.

(f) Adultery Coupled with Desertion

According to section 10 of the Myanmar Divorce Act, adultery coupled with desertion by
a husband is one of the grounds to grant dissolution of marriage for a wife. Neither adultery
alone nor desertion alone can be ground for divorce. A period of desertion must be 2 years or
upwards without reasonable excuse. Where there was quarrel between the petitioner and the
respondent, the respondent married another woman, deserted the petitioner and the children for
five years without any support. A decree for dissolution may be made for the petitioner. In order
to make a decree for dissolution of marriage on the ground of the husband’s misconduct, the
husband’s desertion must be coupled with adultery.

However, at present days, under the Law Relating to the Monogamous System, the
husband or wife has a right to divorce for committing the matrimonial fault under this Law if the
husband or wife remarry another during the marriage is valid according to the existing law,
religion or custom20. Under this law, both the wife and the husband have the right to divorce if
the other party commits the matrimonial offence mentioned in the Law Relating to the
Monogamous System. Both the husband and the wife have equal rights to divorce if the other
party violates the matrimonial fault mentioned in the Law Relating to the Monogamous System.

Divorce of Christians when they are from ethnic groups

In the case of Nasiti v. Afuusi21, both of the parties are Christians. The wife, Nasiti,
claimed for divorce because her husband committed the violence against her. The husband,

18
Viola Duncan v. George Duncan, 1939 R.L.R 267
19
H.A.B. Rattigan, “The Law of Divorce Applicable to Christians in India (The Indian Divorce Act, 1869)”, Pioneer
Press, 1897, p-54
20
Section 14 of the Law relating to the Monogamous System, 2015
21
1969 BLR 155
 10

Afuusi, rebutted the wife’s allegations. Their marriage was constituted under the Christianity and
also celebrated the ceremony under the Lisu’s tradition. The question was whether their divorce
should be decided under the Christian Divorce Law or the Lisu Customs. The ethnicity of Lisu,
when issues relating to matrimonial matters, does not practice the law relating to Christianity but
they follow the rules according to their traditions. It was decided that the divorce of husband and
wife was a civil matter, it could be complete when both the parties agree to divorce. Therefore,
the Lisu custom is being the dominant law in this matter of divorce between Lisu husband and
Lisu wife and the District Governor could decide the matter of their divorce rather than the
Court. This case indicates that the matters relating to marriage, divorce and succession should be
decided according to their respective customs and religion when the parties are from the ethnic
groups.

Judicial separation

Under section 22 of the Myanmar Divorce Act, no decree shall hereafter be made for a
divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on
the ground of adultery, or cruelty, or desertion without reasonable excuse for 2 years or upwards,
and such decree shall have the effect of a divorce a mensa et toro under the existing law, and
such other legal effect as hereinafter mentioned, Application for judicial separation on any one of
the grounds aforesaid may be made by either husband or wife by petition to the Court of the Self-
administered Division or the Court of the Self-administered Zone or the District Court or the
High Court of the Region or the High Court of the State, and the Court, on being certified of the
truth of the statements made in such petition, and that there is no legal ground why the
application should not be granted, may decree of judicial separation accordingly 22. In every case
of a judicial separation under this Act, the wife shall, from the date of the sentence, and whilst
the separation continues, be considered as unmarried with respect to property of every
description which she may acquire, or which may come to or devolve upon her. Such property
may be disposed of by her in all respects as an unmarried woman, and on her decease the same
shall, in she dies intestate, go as the same would have gone if her husband had been then dead:
Provided that, if any such wife again cohabits with her husband, all such property as she may be
entitled to when such cohabitation takes place shall be held to her separate use, subject, however,

22
Section 23 of the Myanmar Divorce Act, 1869
 11

to any agreement in writing made between herself and her husband whilst separate. The grounds
of judicial separation are adultery, cruelty, and desertion without reasonable excuse for 2 years or
upwards.

(1) Judicial Separation on Adultery

A decree for judicial separation may be obtained on the ground of adultery. Although the
husband’s adultery alone is not sufficient ground to dissolve the marriage, it is sufficient ground
for judicial separation. The admission of a man and woman coupled with the evidence of
witnesses to the effect that the two lived together as a man and woman leads to the inevitable
presumption that acts of adultery must have been committed. Adultery needs not and generally
speaking cannot be proved by direct evidence. What is essential for the adultery is proof of
‘sexual intercourse’. It is also true that this could rarely be proved by direct evidence because
precautions are taken to screen it from the view of others. The fact of adultery has to be inferred
from the totality of circumstances that lead to it by fair inference and as a necessary conclusion 23.
Adultery was held sufficiently proved where the husband had contracted gonorrhea (venereal
disease) and did not allege that he had contracted the disease from his wife or any other source 24.
Therefore, adultery alone on part of the husband is sufficient ground for judicial separation.

(2) Judicial Separation on Cruelty

A decree for judicial separation may be obtained on the ground of cruelty. The cruelty
requisite to entitle a wife of a divorce a mensa et toro or judicial separation must be such as
endangers life, limb or health, bodily or mental or induces reasonable apprehension of such
danger25. Cruelty can take many forms and the law has recognized some king of mental cruelty
may be grievous than physical blows. Where physical violence is averred and proved the test
becomes simpler but there again, the measure of the physical violence, the circumstances in
which administered and the mental susceptibilities of the party on whom it is administered and
some factors become relevant to consider whether the physical violence proved amounts to
cruelty. Stabbing the wife and causing her injuries of a grievous nature including a fracture of
her hand was cruelty by any test. Striking pregnant wife surely was cruelty 26. Personal danger
23
Ratanlal and Dhirajlal, “Law of Crimes”, 25th edition, Bharat Law House, New Delhi, 2002, pp-2457-2458
24
Matilda Hindle v. Richard James Hindle, 7 B.L.T 294
25
Mrs. Than Tun alias Tereze v. U Than Tun, 1967 B.L.R 156
26
Mrs. Protima Ghosh v. Bimalendu Gosh, 1963 B.L.R (C.C) 526
 12

was not in all cases absolutely necessary, and that, although what fell short of such danger or
such apprehension of it was to be admitted with great caution, there might be exceptional cases
in which, without bodily injury or threat of it injury to the mental feelings might be sufficient to
constitute legal cruelty27. Where the acts of cruelty alleged are not of great violence, but evince a
lack of self-control and of indignity, they may amount to legal cruelty 28. Therefore, physical
cruelty as well as mental cruelty can be taken into consideration.

(3) Judicial Separation on Desertion

A decree for judicial separation may be obtained on the ground of desertion without
reasonable excuse for two years or upwards. Under section 3(9) of the Myanmar Divorce Act,
“desertion” implies an abandonment against the wish of the person charging it. In case where the
adultery was proved but the evidence of desertion fell short of required period by several months,
the hearing was adjourned; and 12 months afterwards- the respondent not having returned to
cohabitation the petitioner filed a supplemental petition charging desertion on proof of which the
Court granted a decree nisi. And in such a case if the wife proves the adultery, but fails to prove
desertion for 2 years, it is competent for the Court to decree judicial separation, although the
petition only prays for a dissolution29.

A wife, who seeks to prove desertion, must consequently give evidence of conduct on her
part showing unmistakably that such desertion was against her wishes actively expressed.
Absence, to constitute desertion, must be without the consent, direct or indirect, of the party
alleging desertion and against such party’s express wishes30.

Where a husband and a wife have voluntarily agreed to live separate, and have executed a
deed of separation, and have thereafter lived apart from each other, desertion becomes
impossible to either of them. In such a case each of the parties bargains away the right to claim
relief on the ground of desertion. However, if one of the parties has failed or refused to fulfill all
the terms of the bargain convert such separation into desertion31.

27
H.A.B. Rattigan, “The Law of Divorce Applicable to Christians in India (The Indian Divorce Act, 1869)”, Pioneer
Press, 1897, p-44
28
ibid p- 45
29
H.A.B. Rattigan, “The Law of Divorce Applicable to Christians in India (The Indian Divorce Act, 1869)”, Pioneer
Press, 1897, p-54
30
ibid-55
31
ibid-62
 13

Alimony

In case of dissolution of marriage, the wife shall apply alimony. Alimony is a court-
ordered allowance and support while they were separated, while they were involved in a
matrimonial lawsuit, or after they are divorced 32. Alimony under Myanmar Divorce Act is a
financial support made as a result of the order of the Court by the husband to his wife or former
wife upon separation or divorce. Under Myanmar Divorce Act, alimony is of two kinds.

(a) Alimony pendente lite

(b) Permanent alimony

(a) Alimony pendent lite

In any suit under this Act, whether it be instituted by husband or a wife and whether or
not she has obtained an order of protection, the wife may present a petition for alimony pending
the suit. Such petition shall be served on the husband, and the Court, on being satisfied of the
truth of the Statements therein contained, may make such order on the husband for payment of
the wife of alimony pending the suit as it may deem just; provided that alimony pending the suit
shall in no case exceed one fifth of the husband’s average net income for the three years next
preceding the date of order, and shall continue, in case of a decree for dissolution of marriage or
of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be 33. In
a suit for dissolution of marriage, as the status of a married woman is not altered by the decree
nisi, and as until the decree absolute the Court can make on permanent provision for the wife,
makes some temporary provision for her during the interval between the two decrees34.

As a general rule, every wife is entitled to receive alimony pending the suit, and she will
be considered, for the purpose of allotting such alimony, innocent of any charge or counter-
charge preferred against her by her husband, even though by not answering to such charge to
counter-charge, she may be impliedly admitted her guilt. If it is shown that the wife is at the time
when she applies for alimony pendent lite continuing to cohabit with the co-respondent and is
32
Bryan A. Garner, “Black Law Dictionary”, 3rd edition, West Publishing Co. 1996, p-30
33
Section 36 of the Myanmar Divorce Act, 1869
34
H.A.B. Rattigan, “The Law of Divorce Applicable to Christians in India (The Indian Divorce Act, 1869)”, Pioneer
Press, 1897, p- 175, 201
 14

being for by him, the Court will refuse to grant her alimony as long as such cohabitation and
maintenance continues. But the ground of this refusal is not the adultery on part of the wife, but
the fact that she has means of support independent of her husband 35. Even if the suit is instituted
on the ground of the wife’s adultery, she is still entitled the alimony pending the suit. An order
for payment of alimony shall be made to the wife against whom a decree nisi has been passed.

In Mrs. H. J. Hewitt v. H.J.Hewitt36, even when the husband applies for divorce on the
ground of his wife’s adultery, she has right to be put in funds in order to be able to make a full
and satisfactory defense to the charge. The wife under these circumstances is also entitled to
alimony pendente lite and the fact that the husband is suing for divorce on the ground that wife is
committed adultery or did not obey a decree for restitution of conjugal right does not make any
difference and such alimony can be granted even after a decree nisi has been pronounced.

(b) Permanent Alimony

The provision relating to permanent alimony is provided in section 37 of Myanmar

Divorce Act. The High Court of the Region or the High Court of the State may, if it thinks fir, on
any decree absolute declaring a marriage to be dissolved, or on any decree of judicial separation
obtained by the wife, and the District Judge may, if he thinks fit, on the confirmation of any
decree of his, declaring a marriage to be dissolved, or on any decree of judicial separation
obtained by the wife, order that the husband shall to the satisfaction of Court, secure to the wife
such gross sum of money, or such annual sum of money for any term not exceeding her own life,
as having regard to her fortune (if any), to the ability of the husband, and to the conduct of the
parties, it thinks reasonable, and for that purpose may cause a proper instrument to be executed
by all necessary parties. In every such case the Court may make an order on the husband for
payment to the wife of such monthly or weekly sums for her maintenance and support as the
Court may thing reasonable. Provided that if the husband afterwards from any cause becomes
unable to make such payments, it shall be lawful for the Court to discharge or modify the order,
or temporarily to suspend the same as to the whole or any part of the money so ordered to be
paid, and again to receive the same order wholly or in part, as to the Court seems fit. Permanent
alimony can only be obtained in a suit for judicial separation and dissolution of marriage under
35
H.A.B. Rattigan, “The Law of Divorce Applicable to Christians in India (The Indian Divorce Act, 1869)”, Pioneer
Press, 1897, p-204-205
36
1949 B.L.R (H.C) 241
 15

the Myanmar Divorce Act. The order for the permanent alimony shall be made when the decree
for dissolution of marriage obtained by the wife. In the dissolution of marriage, the parties are no
longer binding each other, they can remarry with another person. If the wife remarried with
another man afterwards and the husband becomes unable to pay alimony, he shall make an
application to the Court. The Court has the power to discharge or modify the payment of alimony
under Myanmar Divorce Act. The payment of alimony may end when the recipient’s remarriage.
The permanent alimony shall be made in gross sum, monthly or weekly. As alimony and
maintenance can be claimed under Myanmar Divorce Act, maintenance of wife and children can
also be claimed under section 488 of the Code of Criminal Procedure. Maintenance under section
488 of the Code of Criminal Procedure can be claimed during the marriage is subsisting.
Alimony can be claimed during the matrimonial suit or after the suit. It can also be claimed even
after the parties have dissolved their marriage.

Rights of Women under Myanmar Divorce Act

The Myanmar Divorce Act has several provisions that lay out what may happen to the
wife’s property throughout the separation process. When judicial separation is granted, the wife
should be treated as an unmarried woman with regard to her property 37. She is also treated as
unmarried woman for purpose of contract while separated 38. Women who have been deserted
have the right to petition the court for a protection order on any property she acquired after
desertion and to protect her assets against her husband’s creditors39. If following such an order,
one seizes or continues to hold any of her property, he will be able to return or deliver her
specific property and pay her a sum equal to double its value 40. If she again cohabits with her
husband, subject to any agreements signed by the parties whilst separated, her property from the
separation period shall be held to separate use41.

Conclusion

When it comes to the questions relating to divorce between Christians, the Myanmar
Divorce Act plays a crucial role to decide the matrimonial matters. Under the Myanmar Divorce

37
Section 24 of the Myanmar Divorce Act 1869
38
Section 25 of the Myanmar Divorce Act 1869
39
Section 27 of the Myanmar Divorce Act 1869
40
Section 30 of the Myanmar Divorce Act 1869
41
Section 24 of the Myanmar Divorce Act 1869
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Act, the divorce with mutual consent is prohibited. The both parties could not divorce without
matrimonial offence. The inequality could be found that the marriage could be dissolved when
there is only adultery on the part of the wife and the husband could prey for the dissolution of
marriage. When the wife has a desire to end the marriage, the sole reason of adultery on part of
the husband could not be sufficient for the dissolution of marriage under Myanmar Divorce Act.
When it comes to adultery of the husband for dissolution of marriage, the wife has the burden of
proof for the adultery coupled with cruelty, bigamy, rape and desertion. The Court has the duty
to examine the circumstances and inspect whether there is collusion since the divorce by mutual
consent is not allowed. However, at the present days, the husband and wife are equally entitled to
divorce if one of them committed the matrimonial offence like adultery according to the Law
relating to the Monogamous System. This law gives the equal opportunity to both the husband
and wife within the Union of Myanmar regardless of their religions.