This article has been written by Vishwajeet Singh Shekhawat, pursuing a Certificate Course in Advanced Civil Litigation from LawSikho.
Table of Contents
Introduction
India is a land of not only different religions but several personal laws- governing the same subject matter but in different ways and applicable to different sets of people. The provisions of marriage and divorce are mostly guided by personal laws in India. A marriage is a union between two people which can be in the nature of a sacrament or a contract. The marriage is solemnized in accordance with the rituals prescribed by the personal law followed by the individual. Divorce on the other hand, means the termination of marriage by legal formalities. Divorce puts the marriage to an end, and the parties revert to their unmarried status. The same is also recognized under the Personal laws which govern marriage, and these personal laws are in most cases codified under an act of the legislature.
In India, the law in relation to marriage and divorce for a Hindu, Sikh, Jain or Buddhist is codified and governed under the Hindu Marriage Act, 1955; in case of a Muslim by their Personal laws recognized under the Muslim Personal Law (Shariat) Application Act, 1937 as well as Muslim Dissolution of Marriage Act, 1939. For the Christians, the marriage and divorce are governed under the Indian Christian Marriage Act, 1872 and the Divorce Act, 1869 respectively. Apart from personal laws, the Special Marriage Act, 1954 which is a secular law and allows parties of different religion & castes to be married, governs these matters in relation to those parties.
This article will discuss the issue of divorce under the specific Personal laws & other special laws for marriage and divorce, concluding with the approach taken by courts and the way ahead.
Divorce under Hindu Personal Law
Divorce under the Hindu personal law is recognized under the Hindu Marriage Act, 1955 which applies as per Section 2 of the Act to any person who is a Hindu by religion in any of its forms or developments, to any person who is a Buddhist, Jain or Sikh by religion, to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion.
Section 13 of the Act provides for the dissolution of the marriage or divorce, for which either spouse can file an application before the appropriate court for granting a decree. The grounds which are available under the provision are:
- The spouse had voluntary sexual intercourse with any other person.
- The partner has treated the applicant with cruelty.
- Has deserted the partner for a continuous period of not less than two years.
- Has converted to another religion.
- Has been of incurable unsound mind or mental disorder making it unreasonable to live with him.
- Has been suffering from a communicable form of venereal disease.
- Has renounced the world by entering into a religious order.
- Has not been heard alive for a period of seven years or more.
There are two grounds that are based on the ‘break-down’ theory of divorce which either spouse may avail:
- That there is no resumption of cohabitation for a period of one year or upwards after the passing of decree of judicial separation.
- That there is no restitution of conjugal rights for a period of one year or upwards after the passing of the decree for restitution of conjugal rights.
There are then some specific grounds which are available to a wife who may seek a decree of divorce on the ground that:
- That the husband already married another woman, who was alive at the time the application for divorce, is filed.
- Divorce can also be sought by the wife if the husband is guilty of rape, bestiality or sodomy.
- Where a decree for maintenance was passed in favour of the wife and there is no cohabitation between them for a period of one year or more.
- Where the marriage of the wife took place when she was below the age of 15 years (consummated or not), and where she repudiated the marriage before attaining the age of 18 years.
Section 13-B provides for divorce by mutual consent where both the parties living separately for a period of one or more years, present a petition for divorce on the ground that they have not been able to live together and therefore agreed mutually to dissolve the marriage.
Divorce under Muslim Personal Law
The Muslim Personal Law (Shariat) Application Act, 1937, under Section 2 states that notwithstanding any custom or usages in matters of dissolution of marriage, where the parties are Muslims will be governed by the Shariat or the Muslim Personal Law. Further, the dissolution of marriage for a party that is a Muslim can be divided into the following:
Divorce by husband
A Muslim husband can seek dissolution of marriage by pronouncing talaq to the wife. It is a form of divorce only available to the husband by which he can sever ties with his wife without the intervention of any court or without seeking prior approval of the wife. Every husband who has attained puberty and is of sound mind can talaq his wife. There are no grounds or conditions for pronouncing talaq and is an arbitrary act based on the whims & fancies of the husband.
Under different schools of Muslim law, some additional conditions may or may not be applicable. Such as under Hanafi law the pronouncement of talaq under coercion, compulsion, fraud, and voluntary intoxication etc. is valid whereas under other schools, the same is not applicable and the consent of the husband at the time of pronouncing talaq must be free. The talaq operates from the day it was pronounced and the words used therein must be clear & not ambiguous. The Sunni sect does not prescribe any formalities for the talaq whereas the Shia sect insists that it be pronounced in front of two witnesses and in oral form.
Talaq further can be in a revocable form or irrevocable form also known as Talaq-ul-Sunnat and Talaq-ul-Biddat respectively. Talaq-ul-Sunnat is considered as a proper form of divorce which is further categorized into Talaq Ahsan and Talaq Hasan. Talaq-ul-Biddat in any form is considered improper and is not recognized by majority of the schools except Sunnis. It is also popularly known as triple talaq which was declared unconstitutional by the Supreme Court in the case of Shayara Bano v. Union of India. Soon after the judgment, the parliament enacted The Muslim Women (Protection of Rights on Marriage) Act, 2019 wherein any declaration of Talaq by the Muslim husband is supposed to be void and illegal. The Act also provides for stringent punishment in case of any violation of the said provision.
Lastly, a husband can also delegate the power of talaq to any person or even his wife to pronounce divorce and the same form of talaq is known as Talaq-i-Tafweez.
Divorce by wife
The divorce by a Muslim wife is recognized under the personal law by the Muslim Personal Law (Shariat) Application Act, 1937.
The first form of divorce available to the wife is called Khula which is a divorce purchased by the woman from her husband; where compensation is paid by the wife to the husband from her property in order to dissolve the marriage. When this form of divorce is affected all the rights of spouses are extinguished and only the right of maintenance during the period of iddat is available apart from any right expressly agreed between the parties.
The second form of divorce is ila which in literal terms means an oath. In law, it means that, when a husband takes an oath that he will not have sexual intercourse with his wife for four months or above on the expiry of four months after making ila, if the husband has abstained from sexual intercourse during this period, the marriage shall stand dissolved.
The third type of divorce available is in the form of Zihar. It is available when the husband compares the wife with his female relations who are in the prohibited degree of relationship such as his mother. The same is recognized under the Shariat Act and enables the wife to seek divorce in such a case.
Fourthly a divorce can be affected by the wife if the husband accuses her of adultery. If the accusation levelled by the husband against her is not proved, it gives her a right to file a divorce suit against the husband.
Divorce by mutual consent
The divorce by mutual consent is known as Mubaraat which means to release from each other mutually. It is a form of divorce where both the spouses agree to severe their marital ties mutually.
Judicial divorce
After the enactment of the Dissolution of Muslim Marriages Act, 1939, a Muslim woman has a right to get a divorce through the courts in India on the grounds mentioned in Section 2 of the act.
Judicial separation
In certain cases, a Muslim wife is entitled to seek judicial separation such as in case of impotency of the husband, cruelty by the husband rendering it unsafe for her to live in the dominion of the husband if the marriage was irregular and on the failure of the husband to perform marital obligations imposed upon him by the contract of marriage, etc.
Divorce under Christian Personal Law
A person professing Christian religion can get a divorce under the Divorce Act, 1869. The act is applicable if one of the parties to the marriage is a Christian and the marriage can be dissolved by bypassing a decree by the court under the Act.
The grounds provided by the Act for dissolution of a marriage under Section 10 are as follows:
- Where the spouse committed adultery.
- The respondent ceased to be Christian by conversion.
- Where the respondent is suffering from an incurable unsound mind for a continuous period of two years.
- Where the respondent is suffering from a virulent and incurable form of leprosy for a continuous period of two years.
- Where the respondent is suffering from venereal disease of a communicable form for a continuous period of two years.
- Where the respondent has not been heard alive for a period of seven years or more.
- Where the respondent has refused to willfully consummate the marriage.
- Where decree of restitution of conjugal rights was passed, the respondent failed to comply with such decree.
- The respondent deserted the respondent for a period of two years or more.
- Where it is harmful for the petitioner to live with the spouse on account of cruelty committed against him/her.
- A wife can seek divorce in case the husband is guilty of rape, sodomy or bestiality.
The parties to the marriage can also file a petition together for seeking divorce by mutual consent under Section 10-B on the ground that they have mutually agreed to divorce after living separately for a period of two years or more and have not been able to live together.
Under the other special laws
The Special Marriage Act, 1954 provides for the marriage of parties irrespective of the religion, faith or caste etc. followed by either of the parties. Similarly, the divorce by the parties who got married under the act is also governed by the same enactment. The grounds for divorce are mostly similar to those under the Hindu Marriage Act, 1955. Another enactment, the Foreign Marriage Act, 1969, is availed by parties between whom at least one person is a citizen of India and the marriage takes place in a foreign country while adhering to the conditions given by this Act. The divorce between such parties is governed by the provisions of the Special Marriage Act, 1954 subject to the provisions of the Foreign Marriage Act, 1969.
Comparing divorce under different enactments
The grounds for divorce under the statutory enactments of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 are similar. Under both the acts either spouse can file an application for divorce apart from some specific grounds especially available to the wife. Those specific grounds include bigamy, rape, sodomy or bestiality etc. They can also file an application mutually for a divorce under both Acts. They also recognize in some cases, the theory of irretrievable breakdown of marriage where even after a decree for restitution of conjugal rights or judicial separation is passed the couple are not able to live together and can file for divorce.
In the case of Muslims, apart from the Personal laws, the Dissolution of Muslim Marriage Act, 1939 provides for grounds of divorce. The same was enacted since the Personal law of Sharia is not uniform, unlike the Hindu Personal law which although didn’t provide for divorce since marriage was considered a sacrament, was largely codified after the independence through statutory enactments. The different schools under Muslim religion didn’t follow a uniform approach and some schools such as the Hanafi, didn’t allow a woman to divorce whereas others such as Maliki allowed women to divorce under certain circumstances. Therefore, Section 2 of the provided for grounds of divorce to the woman and only on those specified grounds they could seek divorce unlike men under Muslim Personal law. The grounds available to Muslim women under the act are conviction of husband for than seven years, failure or neglect to pay maintenance to wife, impotency, cruelty, insanity etc.
Both under Hindu Personal law or Muslim Personal law, the statutory enactments have overridden the effects of the customs and usages. The divorce under both religions is governed as per the statutory enactments which do not recognize any custom or usage. In case of Muslim Personal Law, the Shariat, as well as the Muslim Dissolution of Marriage Act, governs divorce.
The Indian Divorce Act also provides grounds similar to that under the Hindu Marriage Act, 1955 as well as Special Marriage Act, 1954. In the case of marriage under the Foreign Marriage Act, 1969 the divorce proceedings are governed as per the Special Marriage Act.
Conclusion
India is a pluralistic society where a large number of religions are freely practiced. The concept of marriage therefore also depends upon the personal law practised by an individual, where some religion recognizes it as a sacrament and come in the form of contract. The dissolution of such marriage is also governed by the same personal laws which in most cases are codified.
In most cases, the concept of divorce has also undergone several changes within the personal laws keeping in view the changes in society. The legislature after independence has more or less codified the personal laws in relation to marriage and divorce wherein they have tried to bring in some changes keeping in view the constitutional principles. Recently, the courts have also played a role in interpreting such laws keeping in view the constitutional principles of equality and privacy.
An example of the same is striking down the practice of triple talaq or the scrutiny of the statutory requirement of mandatory notice under Section 5 of the Special Marriage Act, 1954 as an infringement of privacy by the Delhi and Allahabad High Court. The Supreme Court under Hindu Marriage Act, 1955 also waived the statutory cooling of six months before granting of divorce in case there is no possibility of cohabitation between the estranged couple.
Inspite of the above-discussed view, there is a need for a Uniform Civil Code envisaged under Article 44 of the Constitution of India as the same would provide simplification to the laws in matters of marriage or divorce etc. apart from the same being in adherence to the constitutional principles.
References
- https://ca.practicallaw.thomsonreuters.com/6-581-5985?transitionType=Default&contextData=(sc.Default)&firstPage=true
- https://www.hzu.edu.in/uploads/2020/10/DIVORCE-UNDER-HINDU-MUSLIM-AND-CHRISTIAN.pdf
- https://districts.ecourts.gov.in/sites/default/files/2-Divorce%20Theory%20-%20by%20Sri%20Sikinder%20Basha.pdf
- http://www.meerutcollege.org/mcm_admin/upload/1587302563.pdf
- https://vakilsearch.com/advice/divorce-in-india/
- https://www.thehindu.com/news/national/kerala/muslim-women-can-get-divorce-under-personal-law-says-hc/article34305909.ece
- https://indianexpress.com/article/india/30-day-notice-period-not-mandatory-under-special-marriage-act-allahabad-high-court-7145476/
- Hindu Marriage Act, 1955
- Muslim Personal Law (Shariat) Application Act, 1937
- Muslim Dissolution of Marriage Act, 1939
- The Divorce Act, 1869
- Special Marriage Act, 1954
- Foreign Marriage Act, 1969
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