History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v2.c31.s1.7

v2.c31.s1.7

It is beyond the scope of this work to compare the law of divorce in other countries or under other religious systems. It may be stated, however, that according to the strict theory of the Roman Catholic Church the marriage tie is indissoluble,¹⁴⁶⁰ though decrees of nullity of marriage were sometimes granted by that Church to those who could pay for them. In England after the Restoration divorce could be secured through the Parliament by a private Bill where a divorce *a vinculo matrimonii* was desired. But this method could be resorted to only by the rich, as the passage of a private Bill for divorce cost at least 500 £. The Ecclesiastical courts in England granted divorces *a mensa et thoro* on the ground of adultery, cruelty or unnatural offences, though such a divorce did not dissolve the marriage. But this procedure also was costly, as even an undefended suit for divorce *a mensa et thoro* would ordinarily cost from 300 to 500 £. Then came the Matrimonial Causes Act of 1857 (20 and 21 Vic. chap. 85) by sec. 27 of which a wife could petition for divorce only if she proved that since the celebration of marriage the husband was guilty of incestuous adultery, or of bigamy with adultery, or of adultery coupled with such cruelty as, without adultery, would have entitled her to a divorce *a mensa et thoro* or of adultery coupled with desertion. The Matrimonial Causes Act of 1923 (13 and 14 Geo. 5 chap. 19) placed women on an equality with men by allowing them to apply for divorce merely on the ground of adultery by the husband without having to prove anything more. Then the Act of 1937 known as A. P. Herbert's Act (1 Edw. 8 and 1 Geo. 6 chap. 57) allows the husband or wife to petition for divorce on four grounds. It will be noticed from this that the absence of divorce and rigorous restrictions thereon are not a peculiarity of the Brahmanical religion or of the caste system, but existed even in so-called progressive, casteless and Christian countries up to very recent times. In modern times even in Roman Catholic countries divorce is allowed on various grounds; and in India too efforts are being made to enact legislation permitting divorce among Hindus for various reasons. And it may be admitted that some legal provision is necessary for securing divorce in hard cases even as to marriages celebrated under the ancient śāstric system on grounds similar to those in the English Act of 1937.