This article is written by Vaishali Jeswani, a student from Hidayatullah National Law University. In this article, she discusses the divorce and maintenance laws in India as per various legislations.
Table of Contents
Introduction
In ancient times, Marriage in India was considered a sacrament; so pure a bond that it couldn’t be broken for 7 life-times. At present, Marriage has lost its sacramental nature somewhere among the modern Hindu laws and ever-growing society. Concept of most laws in India is brought from English laws; without noticing the nature and vulnerability of the Indian culture. However, the current situation across the country requires the provision of divorce. When one is provided with the Right to life as a fundamental right, he/she gets the right to decide to live or not to live with somebody and the same cannot be denied.
Divorce takes place when the dissolution of a marriage is approved by a court or any other competent body. The parties.i.e. Husband and wife are afterwards not bound to perform the duties inside a marriage, the bond of marriage breaks the moment divorce is approved.
Maintenance is when a marriage is dissolved, certain rights come into existence. The wife is allowed to ask for maintenance from the husband, to preserve herself and her child in some cases. It is provided to provide the wife with general expenses and to put her in comfort by minimising the loss. Certain laws in India. i.e. The Hindu marriage Act,1955 provide both the husband and wife, right to claim maintenance; Some additional benefits are given to the woman under the Hindu Adoption and maintenance act, this act applies only to Hindus.
The law relating to divorce and maintenance differs from religion to religion. The amount is not fixed, but varies as per the condition of living of the couple, the income of husband and wife, no. of people dependent on the husband for their survival. It is either upon the couple to agree on an amount or do it as per the order of Court. It can either be paid in lump-sum or on monthly basis. There are certain grounds based on which maintenance can be denied.
Laws Relating to Divorce in India
There are 2 categories of Divorce petitions in India, through which the couple can be judicially separated; they are:
Divorce under Hindus in India
Through Mutual Consent
The Husband and wife mutually agree to get divorced. They have to prove that they are living separately from past 1-2 years, Section 10A of Divorce Act, 1869 requires separation from 2 years and as per Section 13B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the parties should not be living together for at least 1 year before the divorce proceedings begin. Maintenance, child custody and property rights are more easily settled in this case. The couple goes through less trauma and expenses in case of mutually agreed divorce.
In this case, the petition needs to be filed in the court by the respective lawyers of the parties and court after going through the documents proceeds further. The waiting period of 6 months is given to the parties in the hope that there would be reconciliation, but after six months if the parties still want a divorce; they need to move the court within 18 months from the filing of such petition.
Without Mutual Consent
One party goes to the court asking for a divorce. The party needs to state a valid reason for doing so, and no party can get a decree without proving a reasonable ground for the same. Under Section 13 of Hindu Marriage Act, 1955 the grounds can be:
Cruelty: Cruelty means injury to body or mind, due to the conduct of another; whether intentional or not. It can be mental or physical. If one party apprehends injury due to the conduct of another, it is a reasonable ground.
Adultery: when the husband cheats on wife by maintaining relation outside the marriage the man can be charged with a criminal offence, But if the wife commits the same she cannot be charged with a criminal offence. It is a valid ground for divorce for both the parties.
Desertion: When one spouse deserts another without stating a valid reason.
Conversion: When a party converts from one religion to another.
Mental disorder: If the spouse is unable to perform the normal duties and responsibilities inside a marriage due to reason of mental disorder.
Presumption of Death: When one spouse is missing from over 7 years and the other spouse has not heard from him/her then the presumption of death can be taken and a petition for divorce can be filed.
Communicable Disease: In case a spouse has a disease which can be communicated to another, the other spouse can approach the court for a decree of divorce.
Renunciation of the world: One spouse becomes sanyasi and gives away the worldly pleasures.
These are certain grounds based on which both the husband and wife can approach the court for a decree of divorce. Some grounds are provided solely to the wife, that are:
- If the husband has committed the crime of bestiality, rape or sodomy.
- If the wife was married before she attended 15 years of age.
- A decree of divorce has been given to the wife after maintenance and they are living separately from over one year.
In such cases, the petition needs to be filed in the court along with all the necessary documents, if the court after going through the petition is satisfied they move towards further proceedings. At first, Mediation is suggested to resolve the dispute; if it fails then the court invites both the parties to appear before the court on a fixed date. After hearing both the sides, the court decides the issue. An aggrieved party can approach the court within 3 months after the passing of such an order.
Divorce under Muslims in India
There are 2 processes through which a Muslim in India can seek a divorce:
Judicial Process by The Dissolution of Muslim Marriages Act, 1939
Section 2 of the Act specifies the following grounds on which the Muslim women can seek a divorce in India:
- Nobody has heard about the husband or from the husband for over four years.
- The husband failed to maintain his wife for at least 2 years or more.
- If the husband has been sent to jail for at least 7 years.
- The husband did not perform his marital duties for at least 3 years without any reasonable cause.
- The husband was suffering from venereal disease or was impotent or of unsound mind at the time of marriage.
- The husband was married before he was 15 or treated his wife with cruelty.
Extra-Judicial Process
Divorce by Husband
- Talaq-e-Sunnat
- Talaq-i-ahasan: Under this type of divorce the husband needs to pronounce talaq once during the period of tuhr (the period between 2 mensuration cycles). It can, however, be revoked during the period of iddat. Talaq-i-hasan: In this type of talaq, the husband needs to pronounce talaq thrice during the period of three successive tuhrs. There should be no sexual intercourse during this period.
- Ila: An oath is taken by the husband to not have intercourse for 4 months and then at the end of this period marriage is dissolved.
- Zihar: The wife is compared to her sister, mother or anybody in the prohibited degree by the husband.
Divorce by Wife
- Talaq-i-Tafweez: This is also called delegated divorce because here the husband delegates his power to give divorce to his wife either temporarily or permanently.
- Lian: If the wife is accused of false adultery, she is entitled to get a divorce.
Divorce by Mutual Consent
- Khula: Wife agrees to giver her husband the consideration free her from the marriage, it is considered as mutual divorce.
- Mubarat: Here, both the parties wish to end the marriage, and one of the parties puts forth the proposal to dissolve the marriage. If the other party accepts the proposal, the marriage is dissolved and divorce becomes irrevocable.
- Triple Talaq or Talaq-e-biddat: Another form of Divorce known as Talaq-e-biddat or tripal talaq whereby husband used to pronounce talaq thrice in one sitting to the wife which resulted in the dissolution of marriage was struck down by the Supreme Court of India in the case of Shayara Bano v. Union of India. Thus, it is no more a valid form of divorce.
Divorce under Christians in India
Section 10A of the Indian Divorce Act 1869, provides for 2 ways in which a Christian can obtain a decree for divorce:
- Mutual Divorce: When both the husband and wife agree for a divorce and decide that they have not been able to live together for 2 years or more they can proceed to the court for getting the marriage dissolved.
- Contested Divorce: Either the husband or wife can approach the court for getting a Decree of Divorce. On the ground of Adultery, Desertion without reasonable cause, one spouse not heard for 7 years or more/ presumption of death, renounced the world, ceased to be a Christian, wilfully denies consummation of the marriage, Unsound mind, suffering from the incurable disease for more than 2 years, cruelty or when the husband is guilty of sodomy, cruelty or bestiality.
Divorce under Parsis in India
Divorce under Parsi’s in India is governed by the Parsi Marriage and Divorce Act, 1936:
- Section 30 of the act says that, if such circumstances arise where the parties can’t consummate the marriage, either party can request for nullity of marriage.
- Section 31 of the act says that, if one spouse is missing or not heard of for 7 years or more either by him/herself or spouse’s relatives, then the dissolution of marriage can take place.
- Section 32 of the Act lays down certain grounds for obtaining a decree for nullity of marriage:
- Wilful refusal to consummate the marriage.
- The spouse was of unsound mind at the time of marriage and the other spouse was unaware about it.
- The wife was pregnant at the time of marriage, the husband was unaware. Divorce can take place within 2 years of marriage and no intercourse between the couple should have taken place.
- Cruelty, adultery, forced for prostitution, rape, unnatural sex, venereal disease, willful hurt, bigamy; in all such cases divorce can be obtained within 2 years.
- One spouse has deserted the world or changed his religion.
- If he/she is imprisoned for 7 years and 1 year has already passed.
- Section 32B provides for mutual divorce, provided the consent for same is not obtained with force or fraud.
Maintenance Laws in India
To protect the interests of wife after the dissolution of marriage, the courts provide for maintenance so that the wife can be brought back to the same position as she would have been in if the divorce was not granted.
Maintenance under Hindu Law
According to the Hindu Adoption and Maintenance Act, 1956 and Hindu Marriage Act, 1955 a woman has the right to claim maintenance. During the proceedings, if the court concludes that either the husband or wife does not have any source of income, the court allows maintenance to the petitioner from the respondent.
Maintenance under Muslim Law
Under the Muslim Law, Maintenance (nafaqa) is provided to the wife during the period of iddat, if the wife is pregnant during the period iddat she can claim maintenance for 2 years from the date of birth of a child or if they had a child at the time of divorce the wife can claim maintenance till the time she remarries or the child becomes dependent. If a provision for special allowances was there in the contract of marriage that needs to be provided to the wife. Muslim Women (Protection of rights on divorce) Act, 1986 governs the provision of maintenance under Muslims.
Maintenance under Christian Law
The Indian Divorce Act governs the law relating to maintenance in Christians. It says that a woman can be allowed maintenance but it should not be more than one-fifth of the husband’s income also there is a precondition that says the wife should remain unmarried and chaste. The amount depends on the wife’s income, husband’s property and his income and various other factors.
Maintenance under Parsi Law
The Law in case of Parsi’s is similar to Christians in this case. The difference is that the husband can also claim maintenance and it is not provided after the death of the person paying it.
Maintenance under Special Marriage Act, 1954
This Act allows the wife to raise a claim for maintenance from the husband depending on his income and property, her income, their behaviour and various other circumstances. The court which passed the decree can modify the decree if it feels there are changes in the circumstances of the case.
Conclusion
India is a Secular Country. People from different religions reside here, the personal laws of the Parties are given an upper hand while dealing with the personal issues of the party. But, at the same time violation of Constitutional Rights is not tolerated as it happened in the case of triple talaq, where the man was given utmost power to divorce his wife without acknowledging her wishes; the court struck down triple talaq as it was treating a woman unequally. Maintenance is often seen as a biased favour granted to woman, but looking at the vulnerable nature of a woman her dignity and needs are to be protected in the best way possible. Further, the amounts vary as per the condition of both the husband and wife and in certain cases the court may reduce the amount taking into consideration the condition of wife. Some Laws in India provide maintenance to the husband in certain cases. Whereas Mutual Divorce is generally less traumatic for the parties and their families, contested divorce brings more problems which relate to child custody, maintenance and other things.
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