Cruelty as a Ground for Divorce at Burmese Buddhist Law

Extract

Having regard to its importance in human affairs, one might expect a reasonable degree of unanimity among mankind on the nature of the institution of marriage, and the circumstances in which it can be dissolved, but, comparing the views on these matters found in different systems of law, one cannot but recall the words of G. B. Shaw in the Preface to Androcles:—

“ We pass our lives among people who … have robust consciences, and hunger and thirst, not for righteousness but … for love and money. To these people one morality is as good as another, provided they are used to it and can put up with its restrictions without unhappiness; and in the maintenance of this morality they will fight and punish and coerce without scruple. They may not be the salt of the earth … but they are the substance of civilization.”

Initially, a people or its lawgiver has to decide whether marriage is to be regarded, as in the Canon Law and Hindu Law, as a sacrament, or, as in Mahommedan Law and Burmese Buddhist Law (to give the official name of what might more aptly be described as Burmese Common Law), as a contract.

In the former case it follows that a valid marriage is indissoluble, but when there is an impediment, or a fraud has been committed upon the sacrament, it is possible to dissolve a union on the ground that there has been no valid marriage. A Hindu marriage can be annulled, if at all, only because it has been effected by force or fraud, but, as the wife has not the liberty allowed the husband of taking subsequent spouses, she is in a less happy position than that allowed her by the Canon Law, which treats both spouses alike and will permit a declaration of nullity when there is a legal bar to the marriage, or when the petitioning spouse did not freely consent to the marriage.