This article is written by Sarthak Mittal. The article aims to explain what are the various procedures through which any married person can claim divorce in India, it includes a discussion regarding both secular and personal laws. It also delves into various customs that are legally recognised modes to entail severance of marital relations. The article also deals with the Indian perspective on the significance of marital ties and their effect on the laws relating to divorce.
This article has been published by Sneha Mahawar.
Table of Contents
The Hon’ble Justice Krishna Iyer very elegantly confined the significance of conjugal relations and the ideal situation for its severance in the following words “While there is no rose which has no thorn but what you hold is all thorn and no rose, better throw it away”, in the case of Yousuf Rawther v. Sowramma (1970).
In India, the procedure for obtaining divorce shall be governed by the statute under which the marriage of the couple was solemnised. If the marriage took place according to the personal law, the procedure for divorce shall be dealt with under the concerned Acts like the Hindu Marriage Act, 1955, the Muslim Personal Law (Shariat) Application Act, 1937, the Indian Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936 or the Indian Divorce Act, 1869. On the other hand, if the marriage took place according to secular law then the divorce shall be dealt with under Acts like the Special Marriage Act, 1954 or the Foreign Marriage Act, 1969. All the given Acts read with the Family Courts Act, 1984 will decide the jurisdiction of the courts to entertain the matters relating to divorce.
Procedure for divorce under the Hindu Marriage Act, 1955
Petition for divorce based on fault grounds
Any two persons who belong to the Hindu, Jain, Sikh or Buddhist religion can get married as per the Hindu Marriage Act, 1955 by solemnization of marriage as per Section 7 of the Act. On fulfilment of all the requirements provided under Section 5 a marriage is said to be a valid marriage. Divorce can only be sought in cases of a valid marriage. In the Hindu religion, marriage has a sacramental value and it is believed that the marital bond once made can never be undone, rather, it is believed to subsist even after the death of the parties. Therefore, the concept of divorce was non-existent in traditional Hindu law. The Hindu Marriage Act brought radical changes in traditional Hindu law as it for the first time provided for the remedy of divorce which could be sought only on the basis of succinct grounds provided under Section 13 of the Act. The following grounds which are based on conjugal guilt are available to both parties under Sections 13(1) and 13(1A)of the Act:-
- Where the respondent has committed adultery or,
- where the respondent has committed mental or physical cruelty or,
- where the respondent has deserted the petitioner for a continuous period of 2 years or,
- where the respondent is suffering from an unsound mind to such an extent that it will not be reasonable to expect the petitioner to live with the respondent or,
- where the respondent is suffering from any venereal disease which is communicable in nature or,
- where the respondent has renounced the world or,
- where the respondent has not been heard of for a period of 7 years or more by those people who naturally would have heard of him, had he been alive or,
- when there has been no cohabitation between the parties for a period of one year or upwards after the passing of a decree of judicial separation under Section 10 of the Act or,
- when there has been no cohabitation between the parties for a period of one year or upwards after passing of a decree of restitution of conjugal rights under Section 9 of the Act.
The Act also provides 4 grounds that are specifically available to women under Section 13(2), these grounds are as follows:-
- The husband entered into a polygamous marriage before the commencement of the Act and such wife is still living after the commencement of the Act or,
- the husband is guilty of rape, sodomy or bestiality after the solemnisation of marriage or,
- where a decree or an order of maintenance has been passed under Section 18 of the Hindu Adoption and Marriage Act, 1956 or Section 125 of the Code of Criminal Procedure, 1973 against the husband and the cohabitation has not resumed between the spouses from the date of such decree or order or,
- the woman can repudiate the marriage before attaining the age of 18 years when the marriage has been solemnised before she attained the age of 15 years.
Instead of filing a plaint like in a normal civil suit a petition is presented to the district court as per Section 13 read with Section 19 of the Hindu Marriage Act. In the petition, the petitioner alleges the facts to show that grounds of divorce exist hence, making the petitioner entitled to divorce, the burden of proving the existence of the ground of divorce lies on the petitioner. Preservation of the institution of marriage is the duty of the state and thereby, marital ties are always tried to be preserved wherever possible thence, they are not allowed to be easily severed.
Divorce based on mutual consent
Hindu Marriage Act, 1955 also allows the parties to seek divorce under section 13B based on the mutual consensus of both parties. The provision was added by the 1976 Amendment Act and the given provision applies both retrospectively and prospectively. The provision directs that parties have to file a joint motion on the grounds that they have been living separately for one year or more and that they have mutually agreed to seek divorce. The parties will then file a second motion within 6 to 18 months from the date of the first motion. This 6 to 18 months period is also recognized as a cooling-off period wherein, parties will try to solve their differences. The rationale behind the cooling-off period is to obviate any cases wherein, the motion of divorce is filed as an impulsive act, fad or a brain wave. If the motion is withdrawn by either of the parties within 6 to 18 months or wherein, the second motion has not been filed within the given period the petition will fail as a general rule. However, if the second motion is again made within the cooling-off period the court shall inquire into the truthfulness behind the matters averred in the petition and on being satisfied by the truth of such matters pass a decree of divorce.
Meaning of living separately
In the case of Sureshta Devi v. OM Prakash (1991), the words “living separately” in section 13B were interpreted by the Supreme Court to mean that the parties should not be living as husband and wife that is to say that they are not performing any of their marital obligations, the court clarified that the given words do not refer to the place of living thereby, parties may live under the same roof however, they should not be performing any of their conjugal duties for a period of one year or more immediately preceding presentation of the petition.
Withdrawal of consent
In the case of Hitesh Bhatnagar v. Deepa Bhatnagar (2011), the Supreme Court delved into the issue that till when can a party be allowed to withdraw its consent while filing a petition under section 13B of the Act. The court in the given case held that the consent can be withdrawn during the cooling-off period also and even after the expiry of such period however, it should be before the passing of the decree. The court observed that one of the jurisdictional facts which confer jurisdiction on the court to entertain the petition under section 13B is the mutual consensus of both parties. Thereby, if any withdraws its consent before the decree is passed the court will lose its jurisdiction to entertain the petition.
In the case of Rajat Gupta v. Rupali Gupta (2018), the Delhi High Court held that wherein parties to a settlement agreement agree to the fact of taking divorce through mutual consent and one of the party breaches the said agreement, the court can hold the defaulting party for civil contempt if the opposite party is able to prove that there has been a wilful breach and that the aggrieved party has been placed at a disadvantageous position because of such breach. The Court also held that in no case the court compels any party to give consent for divorce by mutual consent as it would go against the basic objective of section 13B. In the latest case of Anurag Goel v. Chhavi Agarwal (2023), the Delhi High Court has held the wife to be guilty of contempt on wilful breach of the settlement agreement filed in the family court. The wife in the given case was sentenced to a fine of Rs.2,000 and to simple imprisonment for a period of one month. The court gave the wife a period of two weeks to tender in the court an unconditional apology for her defiance and to undertake to perform all the conditions mentioned in the settlement agreement. The court held that if the wife is able to tender the apology and perform all the conditions agreed by her in the settlement agreement the order of imprisonment against her will be recalled.
Waiving off of cooling period
Another procedural ambiguity which used to persist during the adjudication of petitions under section 13B was whether the statutory period of 6 to 18 months to present the second motion, is a mere formality which can be waived off or whether it is substantial and mandatory. The Supreme Court in the case of Anil Kumar Jain v. Maya Jain (2009) held that the given period can be waived off only by the Supreme Court in the exercise of its inherent powers under Article 142 of the Constitution of India. In the later case of Amardeep v. Harveen Kaur (2017) the Supreme Court again laid down that the statutory period of 6 to 18 months can be waived off not only by the Supreme Court but also by any other court adjudicating the petition under section 13B and the same was reiterated by Supreme Court in the recent case of Shilpa Sailesh v. Varun Sreenivasan (2023) by a constitutional bench of the Supreme Court.
Presentation of divorce petition in Hindu Marriage Act
When can a divorce petition be presented
The petition for divorce under the Hindu Marriage Act can only be presented before the competent court after a period of one year has elapsed from the date of solemnization of marriage by virtue of section 14 of the Act. The proviso to section 14 allows the court to waive off the period of one year in exceptional cases. The leave to present the petition before the expiration of one year can be granted only when the petitioner is able to prove exceptional hardship being caused to him or when there is exceptional depravity on the part of the respondent. In the case of Bowman v. Bowman (1949), Lord Denning observed that the word “exceptional” is to be understood by holding an inquiry on a case-to-case basis into the degree of hardships suffered by the petitioner due to the conduct of the respondent.
Forum before which a divorce petition is to be presented
Apart from this requirement, it should be kept in mind that the petition is to be presented in front of a court of competent jurisdiction. As per the Hindu Marriage Act, section 19 provides that district courts within the limits of whose original civil jurisdiction the parties have solemnised their marriage, the respondent resides during the presentation of the petition, the parties last resided together, the wife resides or where the petitioner resides at the time of presentation of the petition in cases where the respondent is outside the territory of India or has not been heard of as being alive for last 7 years is the court of competent jurisdiction. It is also pertinent to note that the parties have to present a petition before a family court established as per Section 3 of the Family Courts Act, 1984 if the party falls within the jurisdiction of a family court. Section 7(1) clause (a) of the explanation confers jurisdiction over the family court to dissolve a marriage between the parties. Family court is the forum through which parties irrespective of their religion, seek the remedy of divorce.
Transfer of petitions
The parties generally file petitions under the Hindu Marriage Act at such places where it will be inconvenient for the respondent to attend the proceedings. Thereby, section 21A of the Act provides that where two separate petitions have been filed before two separate courts wherein, one petition is to seek the relief of judicial separation under section 10 and the other is to seek the relief of divorce under section 13, it is better that both the petitions are heard and disposed of together by the same court. Thereby, as per the procedure prescribed in the Civil Procedure Code, 1908 the appropriate court will transfer the petition from the court to which the petition was presented later in time to the court where the earlier petition was filed. In the case of Shruti Kaushal Bisht v. Kaushal R Bisht (2020), the Supreme Court held that only petitions filed under section 10 or 13 of the Act can be transferred under section 21A of the Act and all the other petitions and applications filed under the Hindu Marriage Act has to be transferred by filing an application under section 24 and 25 of the Civil Procedure Code, 1908.
The duty of courts to make all endeavours for reconciliation
It is the duty of the court to make all necessary efforts in the first instance to reconcile the differences between the parties in divorce petitions as preservation of marital ties is in the best interest of the society. Section 23(2) of the Act provides that courts should make every endeavour to reconcile the parties before granting any relief under the Act. Section 13A of the Act on the other hand provides that in a petition of divorce, the court can pass a decree for judicial separation instead of a decree of divorce, this is to allow parties to reconcile their differences by living apart. In the case of Jagraj Singh v. Birpal Kaur (2007), the Supreme Court read section 23(2) of the Act with various provisions of the Civil Procedure Code, 1908 and held that the court can issue non-bailable warrants to secure the attendance of a party in divorce cases so that the court can try to get the parties to reconcile with each other.
The court observed and highlighted the importance of the duty of courts to make efforts for reconciliation of parties in family disputes and also observed that personal attendance of the parties in such cases becomes mandatory. In the case of Santhini v. Vijaya Venkatesh (2018), the Supreme Court held that video conferencing generally cannot be allowed to be done in divorce proceedings as it becomes difficult to reconcile parties through such a mode. The court observed that the conduct, consent, sensitivity and emotional bond being portrayed by a person can not be sensed through video conferencing and due to this judge will not be able to communicate effectively with the parties and thus, the reconciliation between the parties will become difficult. The court also held that in cases wherein the court is of the opinion that it would be in the interest of justice to allow the proceedings to continue through the mode of video conferencing, it can allow the same.
Divorce through customary Hindu practices
In the case of Shakuntala Bai v. Kulkarni (1989), the Supreme Court on the conjoint reading of sections 29 and 4 of the Hindu Marriage Act held that ancient and unbroken customs of divorce are still valid given that they are not against the public policy and are moral in nature. The court also held that there is no need to file a separate divorce petition under Sections 13 or 13B of the Act for dissolution of marriage if the same has been done through a validly recognized customary practice. Recently, in the case of Duleshwar Deshmukh v. Kirtilata Deshmukh (2022), the Chhattisgarh High Court declared a divorce through the customary practice of “chod-chutti” valid, it is a customary practice wherein, divorce can be sought through a simple execution of document. The court held that customary divorce practices like “chod-chutti” can be resorted to but they can be effective only if it is proved that the given practice is in consonance with public policy.
Procedure to claim divorce based on irretrievable breakdown of marriage
Divorce is usually believed to be taken on the basis of guilty conduct of the spouse or on the basis of mutual consent. However, there can be a situation where there exists no guilty conduct on the part of any spouse nor exists a mutual consensus between the parties. Such marital tie is a mere empty shell which may exist de jure however, it fails to exist de facto. In cases where the consortium and comfort between the spouses exhausts and there remains nothing in the name of the marriage but just a mere empty shell, it is better to sever such a marital tie. It is pertinent to note that such unworkable and emotionally dead marriage is not in the interest of society as it may not have yielded due to the guilty conduct of any spouse but if it is forced to be continued due to lack of availability of remedies on the part of the state then it may have high chances to yield guilty conducts like adultery, cruelty or desertion by one of the spouse.
The concept of irretrievable breakdown of marriage was first introduced in the New Zealand Divorce and Matrimonial Causes Amendment Act, 1920 wherein, the main consideration to test the ground of irretrievable breakdown of marriage between the spouses was to see whether they have been living separately or not for the past 3 years. Later in the case of Lodder v. Lodder (1921), it was held by the court of New Zealand that it is neither in the interest of parties nor in the interest of the public that a man and a woman remain bonded together as husband and wife if such relation has actually ceased to exist in fact. It was also held that the purpose of marriage gets frustrated and its continuance becomes useless and mischievous.
The same points were discussed in the 71st law commission report and the concept of irretrievable breakdown of marriage was suggested in the given report. The report was not acted upon by the legislature however, the Supreme Court heavily relied upon the given report in the case of Samar Ghosh v. Jaya Ghosh (2007), while discussing the relation between the concept of the breakdown of the marriage. On the basis of the report a Bill was introduced in Lok Sabha however, it was not passed.
In India, the given ground was first recognized in the case of Yousuf Rawther v. Sowramma (1970), wherein, Hon’ble Justice V.R.Krishna Iyer held that there can be a situation wherein the ground of divorce is the breakdown of marriage and not conjugal guilt. Later, in the case of Naveen Kohli v. Neelu Kohli(2006), the court observed that the parties have been living separately for a considerable amount of time and where in such a case relief of divorce is sought, it is safe to presume that the marriage is broken down and that it is beyond repair and hence, the marriage between the parties can be dissolved. Finally, in the case of Anil Kumar Jain v. Maya Jain (2009), the division bench of the Supreme Court held that when courts are faced with such a situation wherein the marriage between the parties has become unworkable, emotionally dead and beyond salvage but there exist no statutory grounds to dissolve the marital tie, then the court can by the inherent powers which are recognized under Article 142 of the Constitution of India dissolve the marriage to do complete justice to the parties. The Marriage Law (Amendment) Bill, 2013 was also introduced which proposed to insert Section 13C in the Hindu Marriage Act, 1955. This particular provision provided irretrievable breakdown of marriage as a ground for divorce, However, the bill was never passed in the Lok Sabha.
In the recent case of Shree Rakesh Raman v. Smt. Kavita (2023), It was again held by the courts that were in the court’s opinion the marital relation between the parties has grown only more acrimonious and bitter and where cruelty is inflicted by both the spouses on each other, it will be an injustice to the parties to keep the facade of such marriage alive. The court observed various compelling circumstances before dissolving the marriage in the given case like the long separation between the parties without cohabitation, multiple pending court cases between the parties, breakdown of all relations with each other’s families and bitterness against each other. Again, in the latest judgement pronounced by the constitutional bench of the Supreme Court in the case of Shilpa Sailesh v. Varun Sreenivasan (2023), held while discussing the use of Article 142 in matrimonial cases that, it can not be used to derogate the principles of any statute or to contravene any fundamental right and hence clarified that such inherent powers of the court will only be invoked wherein, there is no remedy available in the statute and it becomes necessary for the courts to do complete justice. The court clarified that it is only the Supreme Court that can grant the relief of divorce on the ground of irretrievable breakdown of the marriage between the parties till the time legislature comes up with an expressed provision regarding the given ground.
The procedure of divorce under Muslim Law
|Legislation or Practice
|Judicial or extrajudicial forms of divorce
|Who can seek relief through given practices
|The Dissolution of Muslim Marriage Act, 1939
|Relief can be sought only by the wife only
|Muslim personal law
|Relief can be sought only by the wife only
|Muslim personal law
|Relief is sought by mutual consent
|Muslim personal law
|Relief is sought by mutual consent
|Talaq-ul-Sunnat which can be categorised as (Talaq-e-Ahasan and Talaq-e-Hasan)
|Muslim personal law
|Relief can be sought by the husband only
|Talaq-ul-Biddat which can be sought through single declaration or triple declaration
|Muslim personal law
|Relief can be sought by the husband only
|Muslim personal law
|Relief can be sought by the husband only
|Muslim personal law
|Relief can be sought by the husband only
|Muslim personal law
|Relief can be sought by the husband only
The Dissolution of Muslim Marriage Act, 1939
The Hanafi Code of Muslim law provides no remedy in favour of women seeking a divorce. However, the Hanafi Jurists clearly lays down that in the case of application of Hanafi law if hardship is caused then it will be permissible to apply provisions of Maliki, Shafi or Hambali Law. The Dissolution of Muslim Marriage Act, 1939 is based on the Maliki School of Law which safeguards the interest of Muslim women regarding their right to seek divorce. Before the implementation of this Act, it was Section 5 of the Muslim personal law (Shariat) Application Act, 1937 through which the women were able to dissolve the marriage in certain circumstances through a judicial remedy. This particular remedy was also known as “Faskh”. It was the only judicial remedy which existed before the Dissolution of Muslim Marriage Act, 1939. It was granted on the ground of cruelty, discretion, impotence and other grounds recognized under muslim law. The practice of “Faskh” was repealed by the Dissolution of Muslim Marriage Act, 1939. However, now judicial remedy for divorce is given under Section 2 of the Dissolution of Muslim Marriage Act, 1939 that provides a total of nine grounds for a Muslim woman to seek a decree of dissolution of marriage, these grounds are as follows:-
- The whereabouts of the husband have not been known for a period of 4 years immediately preceding the presentation of the plaint, Section 3 of the Act also requires serving of a notice on the legal heirs of the husband if the dissolution of marriage is sought on this ground. The notice should be served on the parental uncle and brother even if they are not legal heirs. As per Section 2(ix)(b), if the decree is passed on the given ground it shall not take effect till a period of 6 months within which the husband can appear in court and start performing his marital obligations. or,
- the husband when fails to maintain his wife for a period of 2 years or,
- the husband when sentenced to imprisonment for a period of 7 years or more, however, in this case, it is imperative that the sentence should have become final as declared in section 2(ix)(a). or,
- the husband has failed to perform his marital obligations for a period of 3 years without any reasonable cause or,
- the husband is impotent at the time of marriage and continues to remain so. On the application of husband under section 2(ix)(c), he will be given a period of one year to prove that he has ceased to be impotent or,
- the husband when is insane for a period of 2 years or when he is suffering from a virulent venereal disease or,
- the wife is entitled to repudiate her marriage before attaining the age of 18 years if she was given in marriage by her father or guardian before she attained the age of 15 years, this is also known as the “option of puberty”. The proviso to the provision provides that the marriage should not have been consummated or,
- the husband treats her with cruelty. The Provision also provides six specific illustrative circumstances which may constitute cruelty. These circumstances relates to assault, association or comparison with a woman who leads an immoral life or when the wife is forced to lead an immoral life, if the wife is not treated equally in comparison to other wives, if she is obstructed from exercising rights over her property and if she is obstructed from professing her religion. or,
- the Act also allows divorce on any other ground which is a valid ground for dissolution of marriage under Muslim law. This is a residuary clause.
Further, it is imperative to point out that section 4 of the Act provides that conversion of the wife into another religion or renunciation of the Muslim religion will not ipso facto dissolve the marriage. However, if she re-converts to her former faith then in such case marriage will be dissolved automatically. It is pertinent to note that if the husband renounces the Muslim religion or converts to another religion the marriage automatically stands dissolved.
To obtain relief of divorce under the 1939 Act a civil suit will be filed by way of presentation of plaint where the burden of proof will remain on the wife to prove the given grounds to obtain the relief of divorce. The court on being satisfied will pass a decree of dissolution of marriage in the given case. It is also pertinent to note that the wife can also seek relief through a family court where it falls within the jurisdiction of a family court.
Talaq-e-Tafweez is also known as delegated divorce. The given form of talaq is governed by Muslim Personal law which is applied to Muslims as per Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. In this form of talaq, there should be a pre-existing agreement between husband and wife made either before or after marriage, which provides the delegation of power of divorce to wife by husband where the wife will be at liberty to divorce herself from the husband in certain situations. It is pertinent to note that the given conditions in the agreement should be reasonable and in consonance with public policy, for example: wife can enter into an agreement with husband that she will be entitled to pronounce talaq in case he contracts a second marriage, or if he performs an act that is forbidden by Islam. Delegation of the right to divorce through contract is generally revocable but if such delegation is made for a temporary period of time then it is irrevocable. The husband will have equal and simultaneous right to divorce even after such delegation.
When the dissolution of marriage is sought through the given form of talaq the marriage gets dissolved on the date on which the talaq is sought even if there is no decree by the court. However, it is not mandatory but advisable to seek a decree of declaration from a civil court or a family court regarding the parties’ marital status. To seek a declaration that the marriage has been dissolved, the party has to present a plaint under section 34 of the Specific Relief Act, 1936 or under section 7(1) clause (b) of the explanation of the Family Courts Act, 1984.
Khula is again a form of divorce which is applied as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. The Holy Quran also gives recognition to Khula as a form of divorce in Chapter II Verses 228-229. In the given form of divorce, the dissolution of marriage takes place by the consent of the wife wherein she is also bound to give some kind of consideration to the husband so that he also severs the marital tie. The following are the essentials for a valid khula:-
- There should be an offer by the wife.
- The wife should agree to pay consideration to the husband. Generally, the wife foregoes her right to claim the unpaid dower as a consideration in the given case.
- The wife should not have retracted the offer before the husband accepts it.
- The husband should have accepted the offer of the wife. Acceptance can be both written and oral. The husband on acceptance will be bound to divorce the wife irrevocably.
- In the case of Shia Muslims, the offer and acceptance should be in the presence of a witness however, in the case of Sunni Muslims, the presence of a witness is not required.
- In the case of Shia Muslims, the wife can revoke the khula during the iddat period however, in the case of Sunni Muslims, revocation can be done only before the acceptance of the offer by the husband.
In the case of XXX v. XXX (2021), the Kerala High Court has held that husband’s acceptance is immaterial in the case of Khula and the husband will be bound to pronounce divorce irrevocably if the wife demands dissolution of marriage through Khula. The Court also held that Khula is a valid form of divorce and that the Holy Quran requires attempts of reconciliation as a prerequisite to a valid Khula. In the given form of divorce also it is not mandatory but advisable to seek a declaration from the courts regarding their marital status.
Mubarat is also a form of divorce applied as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. The word ‘Mubarat’ literally means ‘mutual release’. The given form of divorce requires mutual consensus by parties for divorce. In the case of Mrs Saba Adnan Sami Khan v. Adnan Sami Khan (2010), the Bombay High Court held that Mubarat acts as a single irrevocable divorce through which mutual rights and obligations come to an end between the parties. It is not mandatory but advisable to seek a declaration from the court regarding the parties’ marital status.
Ila or vow of continuance
Ila is a form of divorce applied as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Only a husband can seek divorce through this form of divorce if he has obtained the age of puberty and is of a sound mind. There is no need for the pronunciation of the word ‘Talaq’ in such a case but the husband has to swear and takes a vow to not maintain a physical relationship with the wife for a period of 4 months. In the case of Hanafi Sunni Muslims, such conduct will amount to a single irrevocable divorce whereas, in the case of Shia and Shafi Muslims, no dissolution of marriage takes place through this conduct rather wife gets the right to seek divorce under section 2(ix) of the Dissolution of Muslim Marriage Act, 1939. It is pertinent to note that Ila is not practised in India, the same has been observed in the case of Masroor Ahmed v. State (NCT of Delhi) (2013).
Zihar or inchoate divorce
Zihar is also a form of divorce that is applied as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Only a husband can seek divorce through this form of divorce if he has obtained the age of puberty and is of a sound mind. In such a form of divorce, dissolution is affected when the husband expresses his dissatisfaction towards his wife by comparing her to his mother, sister or any other female relative falling within the degree of prohibited relation. The husband can revoke the dissolution by doing penance like feeding sixty poor people or by fasting for two months. The given conduct will also entitle the wife to seek divorce under section 2(ix) of the Dissolution of Muslim Marriage Act, 1939. It is pertinent to note that this form of divorce is also not practised in India, the same has been observed in the case of Masroor Ahmed v. State (NCT of Delhi) (2013).
Lian is also a form of divorce that is applied as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Dissolution of marriage through Lian happens when the husband accuses his wife of a false charge of adultery. If the charges are levied in a court of law then the husband can withdraw the charges or prove adultery. The husband will take four oaths regarding the truthfulness of allegations and the wife will also take four oaths regarding her innocence. In such a case if the husband is unable to prove the charges the court can dissolve the marriage and subsequently, the wife also gets entitled under section 2(ix) of the Dissolution of Muslim Marriage Act, 1939 to seek divorce. The given force of divorce still exists in India and the same has been observed in the case of Masroor Ahmed v. State (NCT of Delhi) (2013). In the given form of divorce, a decree of court is necessary.
Talaq was best described in the case of Moonshee Buzloor Rahim v. Luteefutoon Nissa (1861), by the Calcutta High Court, where, it was held that talaq is a unilateral act of the husband by which he can dissolve the marriage. The right to pronounce talaq rests only with the husband and there is no specific reason needed for talaq thereby, it is always recognized as an unruly horse. Talaq can be classified as Talaq-ul-Sunnat and Talaq-ul-Biddat. Talaq-ul-Sunnat can be further classified as Talaq-e-Ahasan and Talaq-e-Hasan. Talaq-ul-Biddat on the other hand can be classified into Talaq by single declaration and talaq by triple declaration, which is also commonly known as triple talaq. All forms of talaq are applied as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. In case of dissolution of marriage by talaq it is not mandatory but advisable to seek declaration from the court regarding the parties’ marital status.
General rules of Talaq
Under Muslim law, the husband should have attained the age of puberty and should have a sound mind to seek divorce. In Shia Muslim law divorce should be done in the presence of a witness, however, the same requirement does not exist in Sunni Muslim law. In Shia Muslim law the talaq is generally done in oral form unless the husband is unable to communicate verbally and it is mandatory to pronounce certain words to effect talaq; however, in Sunni Muslim law no such requirement exists rather, it is only the intention to dissolve the marriage which is paramount. In the case of Masroor Ahmed v. State (NCT of Delhi) (2013), it was held that it is necessary to communicate talaq to the other party because various rights accrue on the dissolution of marriage which can only be exercised on effective communication of talaq. The court also held that talaq pronounced in extreme anger will not be valid. The court also held that, generally, in Shia and Shafi law, talaq pronounced under intoxication will be void whereas, in the case of Sunni and Hanafi law a talaq pronounced under compulsion, fraud, or intoxication will also be an effective talaq.
In the case of Lance Naik alias Tailor Mohammad Faroor v. Chief of Army Staff and Ors. (2016), the court referred to various passages of the Holy Quran and observed that there are four steps which are to be followed before taking a talaq which are as follows:-
- The Holy Quran suggests as a first step, that the husband talks to his wife to set aside their differences. It is also called ‘fa’izu hunna’.
- Further, it is suggested that if the differences between the parties continue to exist then they should physically distant themselves from each other temporarily. This step is taken with a view that physical separation will encourage the parties to work the differences out amongst themselves. It is also called ‘wahjuru hunna’.
- Furthermore, The husband as a third step is suggested to again talk to his wife and try to reconcile their differences, this is also called ‘wazribu hunna’.
- At last, on the failure of ‘wazribu hunna’ it is suggested that the matter is put before two arbitrators wherein one arbitrator is chosen from both the family of the husband and the family of the wife. It is only on the failure of the fourth step that the Holy Quran suggests the pronunciation of talaq.
Talaq-e-Ahasan is the most approved form of talaq. In this form of talaq, the husband has to pronounce the words ‘I talaq thee’ during the period of ‘tuhr’. Tuhr is considered as a period of purity as per the Muslim personal law which means the period during which the wife is not menstruating. The time of 3 lunar months or 3 menstrual cycles is followed after the given declaration which is called the ‘iddat’ period. If the parties are not able to reconcile during the iddat period, the marriage is considered as dissolved on the date of its expiration. The dissolution becomes irrevocable at the expiration of the iddat period. If the wife has passed the age of menstruating, then the requirement of pronouncement during the period of tuhr does not apply. The husband in Talaq-e-Ahasan has an opportunity to reconcile with the wife and revoke the talaq during the iddat period. It is a unique form of talaq as only in this form of talaq the marriage subsists during the iddat period whereas, in other forms of talaq, the iddat period begins after the dissolution of marriage.
In Talaq-e-Hasan the husband has to first pronounce talaq two times in two consecutive months during the period of tuhr and then has to make a third and final pronouncement during the successive period of tuhr. The marriage dissolves automatically on the third pronouncement and the period of iddat begins from the same date. The physical relationship between the spouses should come to an end after the first pronouncement itself. The husband is given an opportunity to revoke the talaq anytime before the third pronouncement. Where a single pronouncement of talaq is made by the husband during the period of tuhr, the wife has no way to determine whether it is the single pronouncement for Talaq-e-Ahasan or one of the three pronouncements of Talaq-e-Hasan.
In such a form of Talaq, the Husband has to make a single irrevocable pronouncement of talaq or has to make three consecutive pronouncements of talaq which will result in irrevocable dissolution of the marriage. In the case of Shayara Bano v. Union of India (2017), the constitutional bench of the Supreme Court of India put an end to the long-lasting controversy about the legality of triple talaq in India. The bench consists of Hon’ble Justice Kurian Joseph, U.U. Lalit, R.F. Nariman, J.S. Khehar and Abdul Nazeer. The majority opinion was given by Hon’ble Justice Kurian Joseph, U.U. Lalit, R.F. Nariman that the practice of triple talaq is illegal and void whereas, Hon’ble Justice J.S. Khehar and Abdul Nazeer gave a dissenting opinion. However, the opinions of judges were distinct from each other thereby it is important to understand the opinion of each judge, which are as follows:-
As per Justice Kurian Joseph, section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 applies to all forms of talaq due to which all such practices should be in line with Shariat. Shariat is the source of Muslim personal law which includes within it the Holy Quran, Hadis, Ijma and Qiyas and it is the Holy Quran which is the primary source of Islamic law. Any practice which goes against the teachings of the Holy Quran violates Shariat and hence, is not permissible. After discussing various passages from the Holy Quran, it was observed that the Holy Quran demands the requirement of reconciliation before the pronouncement of talaq, however, triple talaq does not give time for reconciliation. The Hon’ble Justice concluded by laying down that what is held to be bad in the Holy Quran is bad in Shariat and hence bad in theology and what is bad in theology is also bad in law.
Hon’ble Justice U.U. Lalit and R.F. Nariman opined that triple talaq is not a practice which forms an integral part of the religion thereby, the practice will not get the protection of Article 25(1) of the Constitution of India. Further, the judges tested the word ‘talaq’ used in section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 on the anvil of Article 14 and Article 21 and held that the practice of triple talaq is manifestly arbitrary, whimsical and capricious as it is a unilateral decision of the husband and it does not provide for any opportunity of reconciliation. On the basis of the given opinion, the Judges held the word ‘talaq’ in section 2 to be void and illegal to the extent to which it embodies triple talaq.
Hon’ble Justice Khehar and Hon’ble Justice Abdul Nazeer gave a dissenting opinion wherein, the judges discussed the history of triple talaq in great detail and opined that the practice forms an integral part of religion and is hence entitled to the protection of Article 25.
Further, the Muslim Women (Protection of Rights on Marriage) Act, 2019 was implemented which makes the act of pronouncement of instant and irrevocable talaq a punishable offence under section 3 of the Act. The practice of triple talaq has thus become a cognizable, non-bailable and compoundable offence which is punishable with imprisonment of up to 3 years and a fine.
Procedure for divorce in the Divorce Act, 1869
The Divorce Act, 1869 applies when any one of the spouses professes Christian religion. Generally, it is the district courts that have jurisdiction to entertain petitions regarding divorce by virtue of section 4 of the Act. Section 10 provides that either party can seek relief of divorce on the basis of various grounds provided by the presentation of a petition to the district court. The grounds given under section 10 are also based on the fault theory wherein, one party gets entitled to divorce due to the presence of conjugal guilt or due to the fault on the part of the other party. The following are the grounds provided under section 10:-
- The respondent has when committed adultery or,
- the respondent when ceases to be a Christian by converting to another religion or,
- the respondent is when suffering from unsoundness of mind for a continuous period of 2 years or more or,
- the respondent is when suffering from a venereal disease that is communicable in nature for a period of 2 years or more or,
- when the respondent has not been heard of for a period of seven years by those people who naturally would have heard of him had he been alive or,
- when the marriage has not been consummated due to wilful refusal by the respondent or,
- where a decree for restitution of conjugal rights has been passed but the same has not been complied with by the respondent for a period of 2 years or more or,
- the respondent has when deserted the petitioner for a period of 2 years or,
- the respondent has treated the petitioner with cruelty. Cruelty here can be both of physical and mental nature or,
Section 10(2) additionally provides that if the husband is found to be guilty of rape, sodomy or bestiality then the wife will be entitled to seek divorce. It is necessary to establish any one of the given grounds in the petition presented before the distinct court, it is the petitioner on whom the burden of proof to prove the existence of the ground lies. Section 10A of the Act provides for the dissolution of marriage on the basis of mutual consent, the given provision is pari materia to section 13B of the Hindu Marriage Act, 1955.
Procedure for divorce in the Special Marriage Act, 1954
The Special Marriage Act, 1954 is a secular law which was introduced to regulate inter-religious marriages and to devise a proper procedure for the registration of marriages under any other law. When parties from different religions get married under the Special Marriage Act, 1954 the divorce among the parties is governed by Chapter VI of the Act. It is pertinent to note that any marriage solemnised under the Foreign Marriage Act, 1969 is also dissolved as per The Special Marriage Act, 1954 by virtue of section 18 of the Foreign Marriage Act, 1969. The divorce under the Act is sought by the presentation of a petition to the district court on the basis of grounds given under section 27 of the Act. The following grounds are as follows:-
- Respondent has when committed adultery or,
- respondent has when deserted petitioner for a continuous period of 2 years or,
- when the respondent has been sentenced to the punishment of imprisonment for a period of 7 years or more or,
- respondent when has treated the petitioner with cruelty or,
- when the respondent has been suffering from an unsound mind to such an extent that the petitioner can not be reasonably expected to live with the respondent or,
- when the respondent has been suffering from a communicable venereal disease or,
- when the respondent has not been heard of for a period of seven years by those people who naturally would have heard of him had he been alive.
- section 27(2) provides that when the cohabitation between the spouses has not been resumed for a period of one year or upward after the decree of judicial separation or restitution of conjugal rights has been passed by the court.
The wife has been given the exclusive right to claim divorce under section 27(1A) on the following grounds:-
- The husband is guilty of rape, sodomy and bestiality after the solemnisation of marriage or,
- where a decree or an order of maintenance has been passed under section 18 of the Hindu Adoption and Marriage Act, 1956 or section 125 of the Code of Criminal Procedure, 1973 against the husband and the cohabitation has not resumed between the spouses from the date of such decree or order.
The Act provides for divorce by mutual consent under section 28 which is pari materia to section 13B of the Hindu Marriage Act, 1955 as explained above. Section 29 of the Act regarding the bar on presentation of the petition is pari materia to section 14 of the Hindu Marriage Act, 1955 as explained above. The jurisdictional facts regarding the presentation of the petition also remain to be the same as the Hindu Marriage Act, 1955.
Divorce procedure under Parsi Marriage and Divorce Act, 1936
The Parsi Marriage and Divorce Act, 1936 was implemented to regulate marriages and divorces among Parsis. The Act provides for the creation of special courts at the district level dealing exclusively with Parsi marriages however, after the creation of family courts there is no specific need for such forums. The relief of dissolution of marriage under this Act is claimed through the institution of a suit by the presentation of a plaint. In the given Act the courts must intimate the registrar under section 10 regarding the dissolution of marriage. The marriage can be dissolved on the basis of the fault grounds given under section 32 of the Act which are as follows:-
- When marriage is not consummated for a period of one year after its solemnization due to wilful refusal by the defendant or,
- when the defendant suffers from unsoundness of mind. Here, divorce can be sought if the defendant was of unsound mind at the time of marriage given that the plaintiff was unaware of the fact at the time of marriage and that he has presented the plaint within a period of three years from the date of solemnization of marriage. Divorce can also be sought on the ground of unsoundness if the condition of unsoundness is developed after the date of marriage and it continues to continue for a period of two years or more or,
- if the defendant was pregnant at the time of the marriage due to someone other than the plaintiff or,
- if the defendant commits adultery, unnatural offence, rape or bigamy. The provision also provides for a limitation period of two years for the presentation of the plaint on the given ground or,
- if the defendant treated the plaintiff on the grounds of cruelty or,
- if the defendant causes voluntary grievous hurt to the plaintiff or,
- if the defendant is sentenced to the punishment of imprisonment for a period of seven years or more or,
- if the defendant has deserted the plaintiff for a period of two years or,
- if there has been no cohabitation between the parties for a period of one year after an order of separate maintenance has been passed by the courts or,
- if the defendant ceases to be Parsi or converts to another religion.
Section 31 of the Act provides that, the marriage can also be dissolved on the grounds of the defendant not being heard of for a period of seven years or more by those people who would have heard of him naturally had he been alive. Section 32A of the Act provides that the marriage can be dissolved on the ground of non-resumption of cohabitation between the spouses for a period of one year or more after the decree of restitution of conjugal rights or judicial separation has been passed by the courts. Section 32B of the Act provides for divorce by way of mutual consent and it is pari materia to section 13B of the Hindu Marriage Act, 1955. The jurisdictional facts regarding the presentation of the petition also remain to be the same as the Hindu Marriage Act, 1955.
In India, strong belief is placed in the institution of marriage as it is a great source of harmony and confidence among people but irrespective of the given belief a very just system of divorce has been devised by the legislature. All the Acts related to divorce take into account the sentiments of the respective religious groups and mandates the efforts of reconciliation. On reading all the various legislations related to divorce, it can be concluded that divorce can prominently be sought in three ways that are, on the basis of fault grounds, on the basis of mutual consent and on the basis of well-recognized customs. It is also imperative to note that in contemporaneous times divorce can also be sought on equitable grounds wherein, parties inspire the confidence of the court that the continuation of marriage will be unjust for the parties and for the people related to them. At last, we can conclude that the law relating to marriage and divorce will keep on changing along with society’s changing conceptions regarding marriage and divorce.
Frequently Asked Questions (FAQs)
What are women’s rights after divorce in India?
Generally in India, women get the right to maintenance from their husband. Women can claim maintenance under Section 125 of the Code of Criminal Procedure, 1973. The women can also get maintenance and other reliefs like protection orders and residence orders under the Protection of Women from Domestic Violence Act, 2005.
In all the cases of divorce the divorcee has the right to her ‘streedhan’ which usually consists of all the properties and ornaments gifted to her at the time of her marriage.
Where the divorcee is a Hindu she can seek interim maintenance under Section 24 and permanent maintenance or alimony under Section 25 of the Hindu Marriage Act, 1955. Apart from this, a Hindu divorcee can also claim maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956.
Where the divorcee is a Christian, she can claim relief of maintenance under Sections 36 to 38 of the Divorce Act, 1869. Where the divorcee is a Parsi she can get relief of maintenance under Sections 39 to 41 of the Parsi Marriage and Divorce Act, 1936.
If the divorcee belongs to Muslim religion she is entitled to recover unpaid dower and also entitled to maintenance during and after the iddat period under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. If a Muslim woman has been divorced through an irrevocable form of talaq she can also prosecute the husband as it is a criminal offence under Section 3 of the Muslim Women (Protection of rights on Marriage) Act, 2019.
In the case of Badshah v. Urmila Badshah Godse (2013), it was held that the object of granting maintenance is to obviate the possibility of destitution. In the case of Bhuwan Mohan Singh v. Meena (2015), It was held that the maintenance is given for sustenance of the wife however, here in this context the word ‘sustenance’ will not mean mere animal existence rather, it would mean to accommodate the wife to the same status of living which the wife was enjoying while living with the husband.
Can reluctance to sexual intercourse be a ground for divorce ?
Where the other spouse denies to have sexual intercourse without any reasonable excuse and the pattern of behaviour continues for a long time, it comes under a valid ground for divorce. In such cases, the reluctance on part of the spouse can be seen as an act of cruelty, which can form a ground for divorce. Same was held by the Supreme Court in the case of Vidhya Vishwananth v. Kartik Balakrishnan (2015). It is pertinent to note that in all religions, one of the main objectives behind marriage is procreation thereby, total reluctance on part of the spouse can be considered as cruelty. It is also imperative to understand that it does not give any of the spouses an unfettered right over the body of the other as they are expected to respect each other’s wishes and bodily autonomy.
What are the documents required for divorce ?
- Generally, the parties are required to submit the proof of marriage like marriage certificate, photographs of marriage or documents like Nikah Nama.
- Apart from these, parties are required to submit their identification proofs to ascertain the identity of the party and relation to the other spouse as various identification proofs also mention the name of the wife or husband.
- The parties are also expected to file address proof through which the jurisdiction of the court will be adjudged.
- Parties also have to submit their passport size photographs for the purpose of record.
- In the case of Rajnesh v. Neha (2020), it was held by the Supreme Courts that it is mandatory for the parties to submit an affidavit disclosing their assets and income so that the court can decide the amount of maintenance to be granted.
- If the parties are seeking divorce through mutual consent they also have to present the agreement disclosing the arrangements regarding custody of child, maintenance and streedhan.
- If the parties seek divorce on any of the fault grounds then a petition or a plaint as the case may be should be filed. Such a petition or plaint should disclose the ground on which the divorce is being sought.
Can divorce be sought without the signature of the other spouse ?
In cases where divorce is being sought by mutual consent the signature of the other spouse is mandatory. However, in other cases where divorce is being sought on fault grounds the petitioner or plaintiff can present the petition or the plaint as the case may be and it is upon the court to secure the appearance of the respondent or the defendant. Thereby, if the aggrieved spouse has sought relief from the court and the other spouse is reluctant to take part in the proceedings and wilfully avoids the summons then in such case the court can pass an ex-parte decree after hearing the aggrieved spouse. In the case of Seema Devi v. Rajnit Kumar Bhagat (2023), it was held by the Delhi High Court that even an ex-parte divorce decree is as efficacious as a bi-parte divorce decree. It is imperative to note that the court will pass ex-parte decree as a last resort because it is mandatory for the court to make every endeavour for reconciliation of parties in divorce matters.In the case of Jagraj Singh v. Birpal Kaur (2007), it was held by the Apex Court, that the courts can even issue non-bailable warrants to secure the attendance of the parties to strike conciliation between them.
- Paras Diwan’s Law of Marriage and Divorce, VII edition, 2020
- Principles of Mahomedan Law by Sir Dinshaw Fardunji Mulla, XXIII edition, 2021
- Hindu Law by Sir Dinshaw Fardunji Mulla, XXI edition, 2013