Sande v. Sande

The petitioner sought a divorce from her husband under common law rather than Islamic rite. After several years of marriage, (i) the petitioner discovered that the respondent had lied about being divorced prior to their marriage, (ii) the respondent stopped supporting her financially, and (iii) the respondent neglected their relationship. After she started a business to provide for herself, the respondent employed his former wife’s relatives to “spy and scorn her to leave the house.” The matter was brought to their religious leader, who ordered the couple to three months’ separation to see whether reconciliation was possible. During that period, the respondent lived with his former wife, admitted to other extra-marital relationships, continued to harass the petitioner for conjugal relations, and declared that he did not want her as his wife, which he believed should have legally relieved him of their marriage. The petitioner subsequently applied for divorce in the High Court. The respondent contested adjudicating the matter before the High Court, arguing (i) that the divorce should have been adjudicated by religious leaders rather than a secular court and (ii) that he believed that the marriage was already dissolved given his declaration to his religious leader that he no longer wanted to be married (although no witnesses testified to hearing the respondent pronounce the “talaq” against his wife). The High Court emphasized that courts do not have a monopoly on divorce; for example, couples can divorce by mutual agreement at custom before village civic authorities or other tribunals. However, even in such situations, if one party is wronged or does not consent to the divorce, that party can seek resolution in a secular court. The High Court concluded that the respondent’s alleged “divorce” was not valid, as the respondent had violated the tenets of his faith with his extramarital affairs, harassment of his estranged wife, and lies to lure her into the marriage. Emphasizing the equal status of husband and wife under the Constitution, the Court held that the respondent’s summary declaration of a dissolved marriage in this case, especially as it was unjustified, did not conform to the principles of justice, equality, and morality, and granted the petitioner the divorce under law.