The Jews in India are not governed by statutory law but by their customary law. Originally, the gliet was the only form of divorce. In India, however, dissolution of the marriage can be done through the court on grounds of adultery or cruelty.
The marriages are generally monogamous excepting in certain specific cases. Because they are a small minority, no effort has been made to codify or reform this law. We feel that this should be undertaken now and the principle of monogamy as well as the normal grounds for divorce as provided in the Special Marriage Act should be adopted for the community also.
Special Marriage Act, 1954:
This Act provides for a secular form of marriage which can be taken advantage of by all persons in India irrespective of their religious faith. Persons who marry under this Act will be governed by the provisions of the Act and not by their own personal law, with respect to their matrimonial rights and remedies.
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The grounds on which divorce can be obtained by either party to marriage are adultery, desertion for a period of three years, cruelty, unsound mind for 3 years, leprosy, venereal disease, continuous absence for 7 years without information to those persons who would naturally have heard of him or her, non-resumption of co-habitation for 1 year following a decree of judicial separation or restitution of conjugal rights. In addition to these, the wife can obtain divorce on the ground of rape, sodomy or bestiality.
A special feature of this act is that the parties can also dissolve the marriage by mutual consent. All that the parties need do in order to obtain divorce under this provision is to present a petition to the court that they have been living separately for a period of one year or more and that they have not been able to live together and that they have mutually agreed to dissolve the marriage.
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Conversion as a ground for divorce: In the field of personal law and particularly in divorce, the existence of various legal systems creates a peculiar situation. The Constitution recognises the right freely to profess, practise and propagate religion.
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Conversion, therefore, from one faith to another is an individual’s right and the motive for the conversion is or should be beyond judicial scrutiny. But when such conversion impinges on the right of another person, the question poses a problem.
In India today as a legacy of the multiple systems, a person by his or her conversion also acquires the right to be governed by a different set of laws. Even after the Constitution, the codified Hindu Marriage Act has mentioned conversion as a ground for divorce.
Is conversion then to be treated as a matrimonial wrong? Under statutory Muslim Law a woman converted to a faith other than Islam or renouncing Islam has only the right to divorce if the husband has committed a matrimonial wrong—conversion per se does not affect the validity of the marriage and is in no way a bar to its continuance.
On the other hand, a man converted to Islam from another religion has the right to be governed by his new personal law, including the right to marry more than once. This is so even when his first marriage was a monogamous marriage. He is also entitled to claim that his new faith does not permit him to remain married to a Hindu and he can, therefore, proceed to divorce her by uttering talaq three times.
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The Indian Divorce Act does not recognise conversion as affecting the validity of the marriage unless it is followed by the marriage of the husband to another woman. The Converts’ Dissolution Act permits the convert to Christianity to dissolve the marriage provided the marriage has in-effect broken down as a result of the conversion.
It requires to be proved clearly that cohabitation has been discontinued because of the conversion. Under the Parsee Law, conversion is a ground for divorce provided the suit is brought within 2 years. This thorny question is dealt with in many ways, but the problem remains of reconciling the right to freedom of religion with the possible impact of conversion on marriages.
It has been suggested that the question of marital rights on conversion should be governed by principles of equality, justice and good conscience. The other is that no converted person can, for a period of two years at least, be able to affect any marital rights by resorting to the new religion.
While the second suggestion has the merit of deterring people from easy conversion to solve their matrimonial problems, in our opinion conversion should not be a ground for divorce as it offers an easy way of evading matrimonial obligations.
Divorce by mutual consent:
Our review of the different laws governing divorce indicates that both customary laws and the secular law, i.e. the Special Marriage Act, 1954 recognise mutual consent as a ground for divorce, but this conspicuous by its absence in any of the statutory laws governing different communities.
On the other hand, the religious laws and judicial interpretations of them have generally tended to emphasise the fault theory, being particular to prevent the party guilty of a matrimonial wrong from obtaining dissolution of the marriage.
This leads often to the use of perjured evidence. As there is even today an indirect way of getting divorce by mutual consent, by registering one’s marriage under the Special Marriage Act, after celebration according to religious rites, we recommend that this ground should be recognised in all the personal laws so that two adults whose marriage has, in fact, broken down can get it dissolved honorably.
Prostitution as a ground for divorce: The provision in the Parsee Marriage and Divorce Act, 1936 which enables a wife to obtain a divorce if her husband has compelled her to prostitution, in our view, is a very desirable protection. We recommend inclusion of this provision in all other Personal laws.
As a general principle, we recommend parity of rights regarding grounds for both husband and wife: This already exists in some of the personal laws, and in our view is essential to guarantee equality of status for both partners.
It may be noted that the findings of our survey on this question shows an overwhelming opinion in favor of parity. 74 per cent of the respondents (72.9 per cent males and 74.37 per cent females) have stated that’ the grounds for divorce should be the same for both husband and wife.