The article is written by Subodh Asthana, a second Year Law Student of Hidayatullah National Law University, Raipur. The author has discussed the essentials and concepts of marriage and divorce as per Hindu and Muslim Laws.
Marriages in India are one of the most important social institutions that bind a family. In India before the enactment of any act or code, marriages were usually governed by social traditions, customs which have been prevalent in that particular community or tribe from time immemorial. Although, even after the enactments of such acts and codes, the customs and traditions of a community holds a good value in society and the courts have readily accepted them if it could be proved by one community that a particular custom has been practiced by that community from time immemorial or from the inception of such community. The reason as to why the acts and statutes were drafted was to give a uniform framework and skeleton as to how a particular community would be governed if it doesn’t have any customs and traditions as such. It also aimed to prevent any anomaly which existed in a particular community. Therefore Marriage and Divorce provisions have been separately drafted in the act.
Divorce means to legally dissolve one’s marriage with (someone) because there has been an irretrievable breakdown of marriage and both the parties don’t want to continue their marital ties with each other. Divorce was said to be recognized only in the Islamic Jurisprudence but in later times it became a part of all religions and communities.
This article specifically deals with the essentials and process of marriage and divorce in Hindus and Muslims.
Applicability of Laws
In Cases Of Hindus
Marriages in case of Hindus are generally governed by Hindu Marriage Act 1955, which is said to be the result of teachings given by Mitakshara and Dayabhaga Schools of law operating in India when there were no such codes and acts to govern Hindus.
Section 2 of Hindu Marriage Act aptly discusses the applicability of the act which are as follows:
- The act applies to any person who is Hindu by religion and by birth, it even applies to people belonging to Virashaiva, a Lingayat tribes and communities a follower of the Brahmo, Prarthana or Arya Samaj
- The act even applies to people following Buddhism, Jainism, and Sikhism.
- This condition is also known as the negative interpretation of act because it states the religion and community on which Hindu Marriage Act, is not at all applicable like it is not applicable on people belonging to Muslim, Jews, Parsis religion. The act cannot be imposed arbitrarily on a person who has their definite rules of customs and thus on those communities, Hindu Marriage Act won’t be applicable.
This section so applies to Hindus by faith in any of its forms and Hindus at intervals the extended that means i.e. Buddhist, Jains or Sikh and, in fact, applies to any or all such persons domiciled within the country who don’t seem to be Muslims, Christians, religious person or Jew, unless it’s proven that such persons don’t seem to be ruled by the Act beneath any custom or usage. The Act applies to Hindus outside the territory of India as long as such Hindu is domiciled within the territory of India.
However, if a particular community proves that there is any prevalent custom in their community then that custom will prevail over the Hindu Marriage Act. E.g. Sikhs Marriage is usually governed by Ananda Marriage Act.
Also the scope of the Act is very large because it included each and every person as Hindus who are not in exception clause of the section which was also ruled by the Supreme Court in its judicial pronouncement of Shastri v. Muldas in which court also said that it is extremely difficult, though not impossible, to define the Hindu religion in the way the other religions are defined. It embraces numerous views and ways of life and thus it enhanced the scope as to who will be a Hindu.
In Cases Of Muslims
Marriages in the cases of Muslims are solemnized as per the Muslim Personal Law (Shariat) Application Act, 1937 which deals with the marriages, divorce, the law of inheritance and succession. Basically, Muslims recognize the Quran as the most important source because Muslims believe that it consists of words and actions of the Prophet Mohammed. Shariat Law was a result of interpretations given by different scholars and schools of Muslim Law. There are four important schools of law among Sunni. They are Hanafi, Maliki, Shaffie, and Hanbali. The three important schools of law among Shia are Isna ashari, Ismaili and Zaidy.
The marriages among Muslims are valid, only if both parties are Muslims. However, the conditions are slightly different in cases of Shias and Sunnis. Shias are free to marry a Jew, Parsi, Christian or a person from Kitabia religion in a Muta form of marriage. Muta form of marriage basically means a marriage solemnized for a specific period of time because in cases of Muslims, marriage is a form of contract, but the marriage other than this is a void form of marriage in Shias. Sunnis, on the other hand, are free to marry a person from Kitabia religion but the marriage will be of an irregular nature. An irregular marriage has no legal effect before consummation but when consummation gives rise to several rights & obligations. Prophet Mohammed has explicitly declared that among the practises which have been permitted by Islamic law, divorce has been stated as worst practise by some scholars. Divorce is considered evil, it should be avoided as much as possible. However at some occasions, this evil becomes a necessity, when it’s not possible for the parties to the wedding to hold on their union with sympathy and love then it is higher to permit them to urge separation than compel them to measure along in an environment of emotion and disaffection. the premise of divorce in Islamic law is that the inability of the spouses to measure along instead of any specific cause (or guilt of a party) on account of that the parties cannot live together. A divorce is either by the act of the husband or by the act of the married person. If marriages are solemnized with validity below Muslim law, then a husband and woman each are liberated to offer divorce to every different.
Essentials Of Valid Marriage
In Cases of Hindus
According to section 5 of the Hindu Marriage Act, a valid marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
- Marriage should be of monogamous nature, bigamy is strictly prohibited
- Also, at the time of marriage, neither party must be:
- Suffering from unsoundness of mind so that valid consent criterion has not been vitiated.
- Suffering from any epileptic, insurgent attacks, fits or any mental disorder so that it defeats the purpose of marriage and thus acts as a bar in the procreation of children.
- has been subjected to any mental disorder including mental unsoundness, which debars a spouse from fulfilling marital obligations.
- Age cap must be fulfilled according to the Majority Act wherein the age of Male must be 21 years and that of females must be 18 years.
- the parties don’t fall within the ambit of the degree of prohibited relationship which has been specified as follows.
- The parties are not sapindas (one is a lineal ascendant of the other) of each other, it means that parties are related to each other in a way that they have any common ancestor to which they perform or do “Pinda daan”
|This section lays down five conditions for a valid marriage. They are:|
Monogamy (Sec. 5(1) )
Hindu law specifically prohibits polygamy. A person should not be married to any other women before getting married or he/she must seek a valid divorce from the court before contracting any marriage. If a man or woman is found in contracting a bigamous marriage then he/she shall be punishable under section 494 of Indian Penal Code and that new marriage will be of void nature.
Mental Capacity (Sec 5(2))
The parties to the marriage should not suffer from unsoundness of mind, mental disorder or insanity. If parties are aware of that before marriage then the marriage will be valid but if they discover it later then it shall be of voidable nature at the instance of one party and he/she may validly annul the marriage. Unsoundness of mind should be of permanent nature to claim this defense as a ground.
Age of the parties (Sec 5(3))
It has to be proved that at the time of marriage the bridegroom has completed the age of 21 years and the bride has completed the age of 18 years. If a marriage is solemnized in contravention of this condition, it is neither void nor voidable. It is also said to be a flaw in Hindu Marriage Act because in this parties have a right to approach the court before the age of 18 years to get their marriage annulled but what will happen if a boy contracts a marriage at the age of 20 years, he is not given the option to get his marriage rescinded.
Degrees of Prohibited relationship (Sec 5(4))
The parties to the wedding shouldn’t come back among the degrees of prohibited relationship. 2 persons are said to be among the degrees of prohibited relationship
i) if one could be a lineal ascendant of the other; or
ii) if one was the spouse or husband of lineal ascendant or descendant of the other; or
iii) if one was the spouse of the brother or of the fathers or mothers brother or of the grandfathers or grandmothers brother of the other; or
iv) if the 2 are brother and sister, uncle and kinswoman, auntie and kinsman, or kids of brother and sister or of 2 brothers or of two sisters.
A marriage between 2 persons who come back among the degrees of prohibited relationship shall be void. However, if there’s a legitimate custom or usage governing each the parties permits they will marry although they are available among the degrees of prohibited relationship. Everywhere in India, there is such custom that validates wedding between persons who come back among the degrees of prohibited relationship.
The parties to the marriage should not be related to each other as Sapindas. A marriage between sapindas is void.
Under Section Sapinda relationship with reference to any person which extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.
No such marriage would be permitted if it has been proved that the same is allowed by a particular custom and traditions of one party.
In the above diagram X is a boy and “F” represents the father’s side and “M” represents Mother’s side. Considering X as first he is barred from marrying any relation till FFFF on the paternal side and MF on the maternal side as per the rules of Sapinda in section 5(5) of Hindu Marriage Act.1955.
In Cases Of Muslims
For a valid Islamic marriage, the following conditions must be satisfied:
1. The parties must have the capacity to solemnize their marriage
2. There must be a clear proposal and acceptance as a prerequisite
3. Free consent of both parties
4. There must be No Legal disability and discourse
Capacity To Marry
Every Muslim of sound mind who has attained the age of puberty is free to enter into a contract of marriage. Puberty means an age where the adult becomes capable of procreation of a child. The age of puberty in Muslim law is normally presumed to be 15 years but if it is proved that a male or female is capable of procreation of child then marriage could be legally solemnized in cases of Muslim marriages. However the Child Marriage restraint act specifically states the age of marriage as 21 years in cases of male and 18 years in cases of female, then also the provisions of Muslim Marriage act would overrule the Child restraint Act 1929 and thus Muslims, in this case, are not liable to be punished.
Proposal and Acceptance
Since Marriages in Muslim law are of contractual nature. So, there must be a proposal and acceptance at the same meeting. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and acceptance made at another meeting does not make a valid Muslim marriage. Neither writing nor any religious ceremony is essential.
Under the Sunni law, the proposal and acceptance must be made in the presence of two male Muslims who are of sound mind and have attained puberty or one male and two female witnesses who are sane, adult and Muslim. Absence of witnesses does not render marriage void but makes it irregular.
Under the Shia law, the proposal and acceptance need not be made in writing. Where the offer and acceptance are reduced into writing, the document is called Nikah nama or Kabin-nama. Also, there is no such provision of witnesses required but the same is required at the time of divorce.
Free consent of the parties is absolutely necessary for a valid marriage. If there is no free consent a Muslim marriage is void. Under the Muslim Law, when the consent to the marriage has been obtained by force or fraud, the marriage will be invalid, unless it is ratified. When a marriage was consummated against the will of the women, the marriage is void. Lunatics and Minors can freely contract their marriage if they contract it through their legal guardians because a minor and lunatic is unable to give free consent. The specification of guardians is different in cases of Shias and Sunnis.
According to Section 2(7) of Dissolution of Marriage Act, if the marriage of minor girl has been contracted by father or grandfather then a minor girl can get her marriage annulled if following conditions are satisfied
- The marriage took place before the age of fifteen years
- She repudiated the marriage before attaining the age of eighteen years:
- The marriage has not been consummated
However, before the act situation was quite different but now the lacunae have been fixed by the law.
|4. No Legal disability ( For more info please read here)
Under Muslim Law, marriage under certain circumstances is prohibited or not permitted. The prohibitions can be classified into two classes:
|A) Absolute Prohibition
1) Prohibited degrees of relationship
(a) Consanguinity: Relationship on the basis of blood, basically a blood relationship between two parties:
1. “His mother or grandmother (however high so ever)”
A marriage with a woman who comes within the relationship of consanguinity is absolutely void in cases of Shia Muslims but Marriages in cases of Sunnis are of irregular nature.
(b) Affinity: It means concerning or having a family relationship by marriage. A man is prohibited from marrying as per Sharia Law
1. “His wife’s mother grandmother (however high so ever)”
B) Relative prohibition
|Under Muslim Law, there are certain prohibitions, which are not absolute but only relative, and marriage in violation of such relative prohibitions will only be irregular and not void and at the moment when the irregularity is removed the prohibition ends and the marriage becomes valid. The following are the relative prohibitions.
1) Unlawful conjunction
A man is prohibited from marrying 2 wives at the same time if they’re associated with one another by blood kinship, affinity or fosterage, that they might not have lawfully intermarried with one another if they’d been of various sexes. therefore a Muslim cannot marry his adult female’s sister whereas the wife is alive. However he will create the wedding valid by marrying his adult female’s sister once the death or divorce of his initial wife. wedding with 2 such wives is associate Unlawful conjunction. According to Sunni law, a wedding in violation of the rule of unlawful conjunction isn’t void however solely irregular. but underneath religious sect law, a wedding in violation of the rule of unlawful conjunction is void.
2) Marrying a fifth wife (Polygamy)
Muslim law permits polygamy (Marrying over one adult female ) with a restriction of at most four wives. thus a Muslim could have four wives at the identical time. In cases of Sunni, if a male marries a fifth adult female when he has already four, the wedding isn’t void, however simply irregular. However, the fifth wedding will be treated as valid when the death or divorce of anybody of the four wives of his earlier marriages. According to the Shiah law wedding with the fifth adult female is void.
In India, no Muslim marrying below or obtaining his wedding registered under The Special Marriage Act, 1954, will marry a second adult female throughout the lifespan of his spouse.
3) Absence of proper witnesses
A Muslim marriage must be conjugated in the presence of proper and competent witnesses. Under the Sunni law “at least two male or one male and two female witnesses must be present to testify that the contract was properly entered into between the parties. The witnesses must be of sound mind, adult and Muslim. A marriage without witnesses is irregular”.
According to Shia law, the presence of witnesses is not necessary. The marriage is contracted by the spouses themselves or their guardians in private are held valid. The absence of witnesses does not render the marriage void.
4) Differences of religion (Marriage with non-muslim)
The law with regard to marriage with a non-Muslim is vastly different under both Sunni law and Shia law. Under Sunni law, a male can marry a Muslim female or a Kitabia (a person who believes in a revealed religion possessing a Divine Book viz Christianity and Judaism). A Sunni Muslim male can validly marry a Jewish or Christian female. But he cannot marry an idolatress or a fire-worshipper. A marriage, with an idolatress or a fire worshiper, is merely irregular and not void.
According to Mulla, “a marriage between a Muslim woman and Non-Muslim male is irregular”. But according to Prof. Fyzee, “such a marriage is totally void.”
Under Shia Law marriage with a non-muslim is void. Both spouses are required to be Muslims. The marriage of a Sunni male with a Shia female is void. A marriage of a Muslim female with a non-Muslim male, whether he be a Christian, or a Jew or an idolator or a Fire-Worshiper is void under Shia Law. But as already discussed Shia Muslims can contract marriage with any Muslim or a person of Kitabia religion, Jews, Fire Worshipper in a Muta form of marriage.
5) Marriage during Iddat
Under Muslim law, a lady who is undergoing iddat is prohibited from marrying throughout that period of time. Iddat is that the time period which is basically incumbent upon a lady, whose wedding has been dissolved by divorce or death of her husband and she has to stay in seclusion and to abstain from marrying another husband. The aim behind this is to determine whether or not she is pregnant by earlier husband, so as to avoid confusion of the parentage of the kid. Muslims take into account the Iddat time period very seriously.
The period of Iddat is prescribed as under:
1. “In case termination marriage by divorce- three lunar months or three menstrual courses”
2. “In case of a widow- 4 months and 10 days”
3. “In case the woman is pregnant – till the delivery”
Under Sunni Law marriage with a woman undergoing Iddat is irregular and not void. Under Shia law marriage with a woman who is undergoing Iddat is void.
One of the most important conditions of a Muslim marriage is the payment of Mahr or Dower. The provision of Dower in the Muslim Marriages is said to be invented by Prophet Mohammed because during the pre-Islamic times there was rampant prostitution going on due to which a man used to marry his daughter in return of another female and then that female was discarded by man which imposed arbitrariness and despotism on the part of women. Therefore it became very necessary to find a solution to this and thus dower came for their rescue. A dower is said to be a consideration to be paid to a woman at the time of her marriage. It is generally fixed by on some criteria like the social standing of a family, the beauty of a girl, standing of girl’s family, etc. According to some sources of Muslim law, there needs to be a minimum dower of 10 dirhams and a maximum of 500 dirhams but in the present world, it is of a meager value. Therefore the above conditions hold no good value. Dower consists of two types.
- It is a type of dower which has to be paid at the time of marriage.
- Women are free to demand prompt dower at any time of marriage and thus husband shall be obliged to its payment.
- The wife can even refuse to perform marital if prompt dower is refused by the husband as it happened in case of Anis Begum v. Muhammad Istafa Wali Khan.
It is a type of dower which needs to be paid at the dissolution of marriage.Dower holds great importance, even if it has been not fixed at the time of marriage the same will be fixed at the later stage basically at the time of dissolution of marriage.
Thus it is one of the most essential grounds in cases of Muslim marriage.
PS: If Prompt Dower is not paid at the time of marriage, it does not necessarily become deferred dower.
Difference between Hindu And Muslim Marriages
|Hindu Marriage||Muslim Marriage|
|1. NO POLYGAMY ALLOWED||1. POLYGAMY ALLOWED|
|2. MINIMUM AGE (21 FOR MALE AND 18 FOR FEMALE)||2. MINIMUM AGE (15 YEARS OR PUBERTY REACHED)|
|3. MARRIAGE IS A SACRAMENT||3. MARRIAGE IS A CONTRACT|
|4. MARRIAGE WITH NON- MUSLIM (ONLY WITH A KITABIA. JEW, PARSI, CHRISTIAN) IS POSSIBLE||4. MARRIAGE WITH NON- HINDU NOT POSSIBLE|
|5. NO MEHR OR DOWER||5. DOWER IS VERY IMPORTANT|
|6. CONCEPT OF SAPINDA RELATIONSHIP||6. CONCEPT OF LEGAL DISABILITY|
However, it is to be also noted that Muslims and Hindus can freely marry each other or a person of any other caste as per the provisions of the Special Marriage Act. There is no such bar which can be enforced on adults to marry on the basis of religion but then their marriage will be registered under provisions of Special Marriage Act.
Divorce, also known as dissolution of marriage, is the process of terminating a marriage or marital union. Divorce usually entails the cancelling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. Divorce and its grounds in cases of Hindus and Muslims are different from each other.
Divorce in cases of Hindu
Marriages in cases of Hindu were considered as indissoluble union which has been expressed by Manu as well as by various sages and interpreters of Hindu texts and said that “Hindu law does not contemplate divorce” and thus divorce was not recognized in the ancient Hindu law, they said that marriage once solemnized has to be continued till seven generations of life. It was after the Hindu Marriage Act 1955 which recognized “Divorce” as a ground for dissolution of marriage. It is said to be the result of various theories of Divorce which are as follows:
|FAULT THEORY||CONSENT THEORY||IRRETRIEVABLE BREAKDOWN|
|In this theory, there is the fault of one party.||In this theory, mutual consent is necessary to opt for divorce.||It is also defined as the failure of marital obligations.|
|It is a requisite condition to have one guilty and innocent party.||Parties must mutually agree for divorce or divorce won’t be granted.||No reasonable possibility for cohabitation left.|
Grounds For Divorce
Hindu Marriage bases its grounds of divorce on the fault theory and section 13(1), 13(2) states grounds of divorce and after amendment section 13(B) was added which states Mutual consent as a ground for divorce.
Grounds for Divorce are as follows:
1. Adultery ( For additional info please click here)
Adultery may be defined as the act of a married person having sexual intercourse with a person of opposite gender other than the wife or husband of the person. Personal laws all around the world condemn adultery and it is considered as a ground for divorce or separation. In adultery, there must be voluntary or consensual sexual intercourse between a married person and another. The Indian Courts time and again had stressed that adultery has to be proven beyond any reasonable doubt. However in several judicial the courts have even stressed that merely a man and woman are lying naked on bed, it doesn’t mean they are guilty of adultery, penile penetration is a must, but in Dastane v. Dastane he apex court held that there certainly is no necessity of the presence of proof beyond reasonable doubt where personal relationships are involved especially those between a husband and wife. Section 10 of the Hindu Marriage Act, 1995 defines adultery as a ground for judicial separation. The provision states that the parties to a marriage may file for a decree of judicial separation under any of the grounds mentioned in Section 13(1).
The concept of cruelty has been of changing times. Cruelty not only includes a physical injury but it also includes mental injury as well. To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. Mere trivial annoyance, fights between spouses, which happens day-to-day married life, doesn’t amount to cruelty. While physical cruelty is easy to determine it becomes very difficult to determine mental cruelty. Physical cruelty has been specifically dealt with as a physical injury or physical violence which inflicts pain to one party. In Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as ‘the state of mind and listed instances which will qualify as mental cruelty on one party:
- The demand of Dowry: It has been held in Somenath Jana vs The State Of West Bengal that Demand of dowry will amount to cruelty.
- Impotency: It has been also held in various judicial pronouncements that impotency or failure to have conjugation and cohabitation would amount to impotency. Merely stating that one party is not capable of procreation of children would not amount to impotency.
- Drunkenness: It has also been held that frequently drinking and then committing any mental and physical pain to one party may amount to cruelty.
- Threat to commit Suicide: Threat to commit suicide by one party will also constitute cruelty because it inflicts a mental injury to one party.
There are many more grounds of Cruelty which have been developed by various judicial pronouncements like the father of girl misrepresenting about women’s virginity was also considered by the court as cruelty.
3. Desertion (For additional info. please click here)
“Halsbury’s Laws of India defines desertion as a ‘’total repudiation of the obligation of marriage’. There are mainly four basic elements which are primarily to be satisfied to constitute desertion. The first two are to be present in the deserting spouse”.
- The fact of separation (factum deserdendi)
- The intention to do desertion ( animus deserdendi)
At the point when an appeal is documented, the initial step is demonstrating the reality of intention and the goal independently while the second step is to demonstrate their union. It is anything but difficult to demonstrate the physical act of intention either from the conductor from the condition of psyches. The trouble emerges on demonstrating the hostility is the expectation for desertion. This aim is required all through the time of renunciation. The petitioner basically relies upon to prove the intention of a person’s mind.
Apart from these elements in the deserting spouse, there are two other elements which have to be present in the deserted spouse:
- Absence of consent
- The absence of conduct which led to the other spouse leaving the matrimony.
The petition for divorce on the grounds of desertion can be filed only after a period of two years from the commencement of the co-existence of animus and the factum.
Desertion can come to an end and can be terminated in the following ways:
- Resumption of cohabitation
- Resumption of marital intercourse
- Supervening animus revertendi or offer of reconciliation.
The concept of marriage is a sacrament. This bond is considered religious, moral and social of mutual duties and obligations. The Hindu marriage act has proposed two conditions when conversion as a ground for divorce can be invoked, these are
- That the respondent has ceased to follow the faith of Hinduism, that is he is no longer a Hindu
- That the respondent has converted to another religion that is a non-Hindu faith.
But in this case petitioner has to get his marriage annulled before remarrying or he/she will be charged under section 494 of IPC.
To prove Insanity as a ground of divorce following requirements has to be satisfied-
- The respondent has been incurably of unsound mind.
- The respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
- If the plaintiff or petitioner knows the same before the conjugation of marriage then it could not be defense for divorce.
It had been recognized as a ground for divorce by Hindu Marriage Act but in Feb. 2019 the parliament passed a law removing leprosy as a ground for divorce.
If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases. The only prerequisite is that disease should be of a very high communicable nature.
A spouse is entitled to divorce if the other spouse renounces all the worldly and material measures which if one of the spouses takes a sanyasa and has entered the holy world. The person who does this is considered to be worldly and civilly dead. The entering into this ashrama means not merely the renunciation of the world or worldly things, but it is also an end of one’s worldly life. Entering into this ashrama is part of Hindu religion.
9. Presumption of Death
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at least seven years. The burden of proof that the whereabouts of the respondent is not known for the requisite period is on the petitioner under all the matrimonial laws. This is a presumption of universal acceptance as it aids proof in cases where it would be extremely difficult if not impossible to prove that fact. A decree of divorce granted under this clause is valid & effective even if it subsequently transpires that the respondent was, in fact, alive at the time when the decree was passed.
Besides the acts of divorce enumerated in section 13(1) of the Hindu Marriage Act, the wife has also been some grounds as per section 13(2) of Hindu Marriage Act which is as follows:
- Pre-Act Polygamous Marriage: If a husband has committed polygamy and still has two or more wives before the enactment of the act then the wife can easily sue him for divorce.
- Rape, Sodomy or Bestiality: If a divorce petition has been presented because the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality, then the spouses are free to file for the divorce petition.
- Repudiation Of Marriage: This provision provides a ground for divorce to the wife when the marriage was solemnized before she attained the age of fifteen years, and she has repudiated the marriage, but before the age of eighteen.
Although this something which has not been recognized in Hindu Marriage Act it is due to various judicial that irretrievable breakdown of marriage has been recognized as the special ground of divorce because why the spouses have to perform marital obligations if there is no scope of reconciliation left among the parties. Legally speaking, Irretrievable Breakdown of Marriage is defined as: “The situation that exists when either or both spouses are no longer able to live with each other willing, thereby destroying and tarnishing their husband and wife relationship with no hope of resumption and cohabitation of spousal duties.”
Both the Supreme Court and Law Committee have tried to consider the implementation of such a theory as a boon to parties because both presume that if nothing is left between the marital ties of the party, then it would be really unjust if one party is forced to live with the other party. The consequence of such marriage will be null and void because both the spouses don’t want to continue their marital ties and even if the marriage is restituted as per section 9 of Hindu Marriage Act, it would not hold a good purpose but it will only be a burden on both the spouses. For more information on the topic, you may click here.
The Supreme Court in the case of Navin Kohli vs. Neelu Kohli granted a divorce on the basis of irretrievable breakdown of a marriage. The court strongly advocated that there is a dire need of this provision in the grounds for seeking divorce. The court ruled that where the marital obligations are so wrecked and destroyed that the pervasiveness of such marriage would give pain to each other, it would be better to terminate the parties with that namesake bond so that they continue their life ahead. But it should not be oblivious that the ground, when introduced, needs to provide safeguards to ensure that no rights of a party are exploited.
Divorce by Mutual Consent
Section 13(B) of the Hindu Marriage Act, 1955 deals with divorce by mutual consent between both the spouses. One of the important thumb rules in seeking this form of divorce that there should be mutual consent between both the parties to file for this divorce. Also when parties believe that the marriage can’t be cohabited and there is no scope left for marriage to get it straightened then parties are free to file for divorce by mutual consent.
The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage.
They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation, they have not been able to live together as husband and wife.
Thus divorce by mutual is a good form of divorce as the marriages in this form can’t be terminated unilaterally, there has to be mutual consent of both parties to terminate the marriage.
Divorce in case of Muslims
Islam is only the religion which recognized divorce or talaq as a means to dissolve the marriage and later on the method was adopted by other religions. However it was allowed in rarest of rare cases, Prophet Mohammad considered divorce as worst things among the permitted and some Muslim scholars even considered it to be a sin.
Conditions of valid divorce:
- Capacity: Divorce in Muslims could be pronounced when a person attains puberty. A minor or a lunatic cannot pronounce divorce and divorce by the guardian of minor is void and not effective. Therefore it is a pre-requisite that a person must attain puberty in order to pronounce the divorce. However, in cases of lunatic a guardian can pronounce the divorce.
- Free Consent: The parties have to freely consent for their divorce. Since marriage in Muslims is of contractual nature, therefore free is a pre-requisite of valid and it must be ensured that divorce is not vitiated by coercion, undue- influence, misrepresentation, fraud, etc.
- Oral or written: According to Shia Law the divorce must be oral in nature but in the case of Sunni law it could be either written or oral.
- Also the talaq or divorce, a husband must express in clear words his intention to dissolve the marriage.
- In cases of Shias, the divorce must be pronounced at the presence of two male witnesses from the paternal side and if it is not complied with, then divorce would be not binding, but there is no such requisite in cases of Sunni Law.
Forms of Divorce
In cases of Muslim Law, divorce has been divided into two categories. In this case, the husband has been given unilateral power to give divorce to a woman. But it was after 1939 when some grounds to give divorce were conferred to women by Dissolution of Marriages Act, 1939.
There are two categories of divorce under Muslim law:
1.) Extrajudicial divorce,
2.) Judicial divorce
The category of extrajudicial divorce can be further subdivided into three types, namely,
- By husband- talaaq, ila, and zihar.
- By wife- talaaq-i-tafweez, lian.
- By mutual agreement- khula and mubarat.
The judicial divorce is the type of divorce which a woman seeks under the Dissolution of Marriage Act.
Talaq by Husband
A talaq and a divorce could be given by a Muslim husband to his wife in different ways. Following are the different types of Divorce:
Basically, Divorce in the case of Muslim has been divided as follows:
- TALAQ-ul-Sunnat(considered as the most appropriate form of divorce)
- Talaq- ul- Biddat
This form of Talaq has been considered as the most appropriate form of divorce and it has been further classified into two forms:
A Talaq given by this format is considered to be a most pious and purest form of Talaq among Muslim communities. This Talaq is given to wife when she is in her Tuhr or a period free from menstruation, although some scholars even say that if the wife is away from home then the above condition is discretionary on the part of the husband. The Talaq is given in three pronouncements when a wife is in her Tuhr period or is free from menstruation. The Talaq becomes final when a woman completes her Iddat period. It means till the wife completes iddat period, a husband has a right to revoke such Talaq. Resumption of Sexual intercourse before completion of iddat may also result in revocation of Talaq.
Talaq- e- Hasan is considered as the second most pure form of Talaq after Talaq- e- Ahasan. In this, the husband is required to pronounce the formula of talaaq three times during three successive tuhr. When the last pronouncement is made, the talaaq, becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr. It means Talaq has to be given in three successive tuhrs or period of purity. It is to be noted that sexual intercourse between spouses could result in revocation of such divorce. On the third pronouncement of third tuhr divorce becomes irrevocable.
Talaq- ul- Biddat
It was considered as the evil form of divorce and therefore not recognized in the Quran. Muslim Scholars condemn this form of divorce. In this form of divorce, a Talaq becomes irrevocable when the triple declaration of talaq made in a period of purity, either in one sentence or in three. In this case, the husband may divorce the wife when she is in her tuhr by making a single pronouncement thrice “I divorce thee thrice”. It is considered a bad divorce because one spouse is not given a power of irrevocability to revoke the divorce. Shia Muslims only recognize Talaq-ul-Sunnat as the form of divorce.
It is the other form of divorce wherein a Muslim husband takes a vow of not having sexual intercourse with his wife. Ila’ is an oath taken by a husband in God’s name to refrain from having sex with his wife. In this case, if sexual intercourse has not started then, a wife after 4 months may approach judge and judge may command a husband to either resume cohabitation and sexual ties or divorce her. So, in this case, the husband has the power to divorce his wife if he has taken any vow in the name of God.
In this mode, the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister, etc. E.g. If a husband tells his wife: “You are to me like the back of my mother” therefore, it would be very tough for a husband to resume sexual ties with her and also it is not permissible for him to have sex with her. A marital could only resume if the following conditions are fulfilled by the husband:
- The husband observes fast for a period of two months.
- He provides food to at least sixty people.
- He frees a slave.
Only if the above criteria are fulfilled then only a husband is allowed to resume sexual ties with his wife else it will be treated as divorce and wife would be considered as haram for him.
The divorce by wife can be categorized under three categories:
- By Dissolution of Muslim Marriages Act 1939
- Though, the wife does not have a right to pronounce Talaq unless such a power is delegated to her by her husband at the time of contracting marriage, all the same, she is given a right to seek divorce through intervention of Qazi (court) on the grounds pleaded by her, or by mutual consent on the terms agreed by the parties.
- It has been recognized among both Shia and Sunni Muslims. In this form of divorce Husband delegates some power to wife to make a contract specifying conditions and the acts which the husband must forbid after the resumption of marriage, Provided the condition imposed by the wife is not against the public policy.
- If a husband doesn’t follow the conditions imposed by wife then she is free to divorce him by sacrificing her some part of Dower or Mahr.
It is associated with a false allegation of adultery to the spouse by the husband who entitles her to file a suit for dissolution of marital ties and acquire a divorce if she proves the charge to be false. Therefore to dissolve such a wedding underneath the school of thought of Lian, the court has to work out judicially whether or not a charge of adultery was or wasn’t unjustly created and whether the husband has disavowed from the allegations or not.
Dissolution of Marriages Act
After the enactment of this, Muslim women were given several grounds on which they could divorce their husband without sacrificing any part of Dower and Mahr. The grounds stated in Section 2 of the act are self-explanatory:
Thus the grounds according to section 2 of Dissolution of Marriages act, 1939 are as follows:
A married would be entitled to divorce if following grounds are justified:
(i) Husband has vanished for more than 4 years
(ii) Husband has failed to provide her maintenance for more than 2 years
(iii) Husband has been facing the punishment of imprisonment for more than 7 years, then also a Muslim woman is free to rescind her marriage
(iv) There has been a breach and glitch on part of the husband to perform a marital obligation for a period of more than 3 years
(v) Impotency of Husband was also added as a ground for divorce
(vi) When Husband has been suffering from lunacy, unsoundness of mind, communicable disease, leprosy and even any virulent or disease of highly contagious nature.
(vii) When the marriage of a Muslim girl has been solemnized by her paternal or maternal guardian before attaining the age of puberty, she is free to rescind her marriage before attaining 18 years of age.
(viii) When the husband treats her Muslim wife with cruelty
- Gives her physical pain, agony, and injury to her body
- Associates with women of evil repute or lead an infamous life
- When husband Forces her wife to live in a disdain condition
- When he disposes of her property without her consent and agreement.
- When husband hinder her wife from performing any religious offering or duty
- If a particular man has more than one wife and he treats the other wives without complying to the condition in the Quran.
Thus, in the above scenarios, Muslim women are free to take divorce from her husband.
However, in the course of time, Muslim Law has also accepted the format of Divorce by Mutual agreement either by Khula or Mubarat.
Khula and Mubarat are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. Thus, a Muslim is free to take divorce by sacrificing her Mahr if she wants to take divorce in Khula and Mubarat format.
Thus, marriage forms an essential part in both Hindu and Muslim laws, although there are various differences between the two laws like its essentials, process of solemnizing the marriage and the basic ideals, like in Hindu law it is considered to be a Sacrament, but in Muslim law, it is of a contractual nature.
Also as far as divorce is concerned, in case of Hindu it became as a new concept because among Hindus it was believed that Marriage once solemnized has to be continued till generations of life so some new grounds in Hindu Marriage Act to get the marriage repudiated and also the conditions and essentials of valid divorce and marriage came into force, but in the cases of Muslim it was a very conventional concept so there were few alterations in it, like some grounds for women were introduced so that they may also give divorce because Muslim Law was silent on this aspect and gave all powers of Divorce to men.