Marriage is the basic institution of society as it forms the family which in turn forms the whole society. Marriage as the important institution has been recognized in the personal laws of all the religion. This concept at first evolved as the problem solver and hence minimized the problem associated with inheritance. But as the concept widespread the complexity associated with marriage increased and this gives rise to matrimonial remedies like divorce, judicial separation, restitution of conjugal right,s etc.
“Divorce is the golden key to the legal cage of marriage”. The Latin word divortium is the genesis of the term divorce .divortium means to turn aside, to separate, and hence from the very genesis of the word divorce, we can conclude that it is the legal cessation of a matrimonial bond.
Some scholars regarding divorce remarked that it is an introduction to shield the helpless women whenever they were treated with disdain. It was never parliament’s intention to give husbands matrimonial variety at their option so long as they could retain a pleader.
Earlier marriage was considered a sacrament and indissoluble. Eventually, with the change of time, the concept of marriage has moved from indissolubility to a fault-based divorce to divorce on demand. The revolution on the concept of divorce was brought forth by the Hindu marriage act, 1955 as it provided several grounds for divorce.
With the day-to-day experience, we could analyze that the fault base divorce involves a long litigation process. That is why in 1976 the ground for divorce for mutual consent was added in the Hindu marriage act 1955 under section 13B. The process was still not working perfectly. Allegation, counter allegation, and long process were still part of the relief. This made an additional ground for divorce which is known to us as an irretrievable breakdown of the marriage. The 71st report of the law commission of India recommends this ground in the year 1978. If the parties are living separately for three years or above with no prospect of reconciliation would be indicative enough of a broken marriage. With regard to a broken marriage, the Supreme Court also made recommendations in their decision in various judgments pursuant to which the marriage law (amendment) bill, 2010 and the marriage law (amendment) bill 2013 were introduced. However, article 142 of the Indian constitution is already an endorser of this ground in providing relief.
RESTITUTION OF CONJUGAL RIGHT:
MEANING AND SCOPE:
THE Marriage which is solemnized between two individuals creates certain rights and obligations toward each other. These rights and obligations toward each other are the conjugal right. The word “conjugal” means relating to marriage or relating to the married person or their relationship.
CONJUGAL RIGHTS UNDER VARIOUS PERSONAL LAWS:
The Hindu marriage act, 1955 deals with restitution of conjugal right under section 9 and according to which:-
“when either husband or wife has without reasonable excuse, withdrawn from the society of other, the aggrieved party by petition may apply to the district court for restitution of conjugal right and the court on being satisfied with the truth of the statement made in such a petition and that there is no other legal ground why the application should not be granted, may decree the restitution of conjugal right immediately.”
The text of Hindu law also recognizes the principle of “let mutual fidelity continue until death” and hence this ground forms the positive remedy.
Muslim equates this concept by securing to the other spouse the enjoyment of his or her legal rights. The same is true for the personal right relating to the Christian and the Parsi.
BURDEN OF PROVE:
The burden of proof is on the person who has withdrawn from society. When one of the petitioners has proved his case, the burden of prove of defense of” a reasonable excuse or cause” arises.
WHAT” SOCIETY” AND “WITHDRAWAL” SIGNIFIES?
Here the word society means “cohabitation” and “withdrawal “signifies the cessation of that cohabitation and bringing an end to one of the aims of marriage.
WITHDRAWAL FROM THE SOCIETY MUST BE VOLUNTARY:
The withdrawal from the society of one of the spouses must be voluntary. In the case of Sushila bai v. prem Narayan it was held that if a husband dumped his wife and the wife filed the case of restitution of conjugal right, the same would be granted to the wife because the husband has voluntarily withdrawn himself from the society of his wife.
ENFORCEMENT OF RESTITUTION OF CONJUGAL RIGHT:
The order of restitution of conjugal right is passed for its breach rather than its abeyance. That means if the conjugal right is suspended for only a time period by one of the spouses then the order of restitution of conjugal right cannot be passed.
Unlike divorce, judicial separation is not an end to marriage but only a suspension of a legal right which is provided under the bond of marriage, although the legal relationship of husband and wife exists and the parties can’t remarry.
It is given under Section 10 of the Act; the spouse can file a petition for judicial separation on the basis of the following grounds:
It means where any of the spouses voluntarily had sexual intercourse with any other person except his/her spouse. Here, the aggrieved party can claim relief.
In this section, it is defined that if the spouse left the other spouse for any reason without informing him/her for a period not less than 2 years before filing the petition by another spouse, desertion gives a right to claim relief of judicial separation for the hurt party.
When the spouse treats his/her partner with cruelty or inflicts any mental or physical pain after the marriage. The sufferer can file a petition on the grounds of cruelty.
If any spouse gets converted into any religion other than Hindu, then the other spouse can file for judicial separation.
If any spouse suffering from any disease like leprosy, which cannot be recovered, then the other party can file a petition for judicial separation because he/she cannot waste their own time due to the sufferer.
If any spouse in a marriage is suffering from any mental disease which is difficult to live for the other spouse with the sufferer. The other spouse can claim relief from judicial separation.
If any party to a marriage or a spouse has any type of disease which is incurable and communicable and the spouse does not know about the fact at the time of marriage, then it could be a valid ground for the spouse to file a petition for judicial separation.
RENOUNCED THE WORLD
Renunciation from the world conveys that the person has given up the world and leading a holy life. He is considered a civil dead. If a spouse renounces the world to live a holy life, his/her partner can file for judicial separation.
PRESUMPTION OF DEATH
If a person is not found for 7 or more years and their relatives or any other person have not heard from him/her or it is believed that he/she may be dead. Here, the other spouse can file for judicial separation.
In the end, we can point out that even though marriage is a sacrament if it does not work, it can see an end, and the Hindu Marriage Act, 1955 is a savior for the people where they can seek relief from the marriage by filing a divorce.