In this blog post, Debiyanka Nandi, a B.A. LLB student at Department of Law, Calcutta University and pursuing a Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata details the different laws pertaining to Divorce in India.
Concept of Marriage in India
In India, marriage is a necessity for establishing a healthy social life. A man and women is believed to be incomplete without one another. A man cannot have a material existence until he has a wife. A man is only half of hiMself and he becomes complete only after marriage. From time immemorial, the question regarding the nature of marriage has come across people’s mind. It has been accepted that marriage is a ‘sacrament’, that is, a holy tie between a man and a woman. Marriage is an indissoluble union of flesh with flesh, bones to bones and is to be continued even after death, in the next world. The object of marriage is ‘sublime’.
Concept of Divorce in India
Divorce is the legal dissolution of the marital union between a man and a woman. In India, divorce is granted by the court of law after receiving a petition from either husband or wife. Divorce is followed by granting alimony, child custody, child visitation, distribution of property, distribution of debts etc. Though the jurisdiction of divorce changes varies yet it can be classified as either no-fault divorce (mutual divorce) or fault divorce. In some cases the fault of the spouse may not be needed to be proved. The concept of divorce must not be confused with the concept of judicial separation. Judicial separation is the legal separation between the husband and the wife, granted by the court on petition from either the husband or the wife or both. In judicial separation the marital tie between the husband and wife continues to exist and neither of them enjoys the freedom to be re-married. Divorce must not also be confused with the concept with annulment of marriage. Annulment of marriage renders the marriage null and void from the first instance. The court declares the marriage to be null and void and the husband and wife should treat the marriage as if it never happened. The concept divorce is different from the other two measures of separation. It has a stronger legal binding and makes the husband wife more responsible.
Restitution of Conjugal Rights
The primary purpose of marriage is to impose the right of cohabiting upon the parties to the marriage. When either the husband has withdrawn from the society of the other without a reasonable excuse, the aggrieved party may apply, by petition to the district court for restitution of conjugal rights and the court on being satisfied with the truth of the statements made in such petition and that there is no legal ground for refusal of such application, may decree restitution of conjugal rights accordingly. Where a question arises whether there has been a reasonable excuse for withdrawal from the society, the burden of proof lies on the alleged. The object of this section is to protect the marital ties from the wishes and whims of a person. The court acts as a guardian and compels the parties to live together with an intention to establish a better marital tie between the spouses especially when there is a scope of betterment of relation between the parties.
The parties may separate from each other under the decree of the court known as judicial separation. Separation of parties, whether under the decree of court or by an agreement between the parties, means separation from bed and board. After separation, the parties are not bound to cohabit with each other. Judicial separation can be allowed only if the marriage is valid. In a separation by agreement, the state of separation comes to an end as soon as the parties revoke the agreement or starts cohabiting with one another. The object of the provision of section 10 is to give time to the spouse for reconciliation. The main function of matrimonial relief is to provide protection to the innocent party and to dissolve the marriage only when the practical purposes have broken down. Either party to the marriage, whether solemnized before or after the commencement of this act, may present a petition to the district court praying for a judicial separation on the grounds specified under section 13 (1) and 13 (2) of this act.
Effects of judicial separation:
- Marriage is not dissolved
- The rights and obligations arising from the marriage are merely suspended
- The husband and the wife are not bound to cohabit with each other
- Alimony can be claimed by either party
- If either spouse marries during the period of separation, he or she will be guilty of bigamy
- The wife shall, after separation be considered as fame sole i.e. an independent woman
Alimony is the amount paid to the wife by the husband, after and during the proceeding of divorce, for her maintenance. The wife is entitled to alimony pendente lite, permanent alimony and maintenance. Alimony pendente lite means alimony during the pendency of the suit. If the court finds that the wife does not have an independent income to support the expenses of the proceedings and to support herself during the proceedings, the court may direct the husband to pay the necessary amount to the wife on a weekly or monthly basis with regard to the income of the husband.
After the proceedings are completed, the court may after it is satisfied that the wife has no independent income to support herself, can direct the husband to pay permanent alimony to the wife. The amount is decided on the basis of the income of the husband and is not absolute. The may be raised or reduced based on the changes in the condition of the husband. In order to receive the alimony, the wife should not be engaged in adultery or should not re-marry any other person.
THE LAWS GOVERNING DIVORCE IN INDIA
India is a land of diversity. It is a goldmine of culture and customs. The customs and culture changes at rapidly as we move from east to west and from north to south and so do the rituals of marriage and grounds of divorce. Marriage and divorce are a part of personal law thus they are not uniform. The grounds for determining a marriage to be valid and divorce also changes and are thus determined by various laws in India. Some of the laws discussed in the following are:
- The Hindu Marriage Act (1955)
- The Special Marriage Act (1954)
- The Divorce Act (1869)
- The Muslim Law
THE HINDU MARRIAGE ACT (1955)
The Hindu Marriage Act (1955) extends to the whole of in India except the state of Jammu and Kashmir and applies also to Hindus domiciled in the territories to which this act extends who are outside the territories. This act is applicable to all the Hindus including a Virashaiva, a Lingyat or a follower of Brahmo, Prarthana or Arya Samaj. This act also includes the Buddhist, Jaina or Sikh by religion and to any person domiciled in the territory and is not a Muslim, Christian, Parsi or Jew by religion. This Act shall also be applicable to the scheduled tribes under Article 366 of the Constitution unless the Central Government otherwise directs.
The conditions for a valid Hindu Marriage
A marriage can be valid, void or voidable. Validity of marriage is the first criteria needed to be fulfilled to seek divorce under this act. The conditions for a valid Hindu marriage are laid down under section 5 of the act. The following are the conditions for a valid marriage:
- MONOGAMY: neither party should have a spouse living at the time of marriage.
- SOUNDNESS OF MIND: neither party should be incapable of giving valid consent to the marriage in consequence of unsoundness of mind. Neither party should suffer from mental disorder of such a kind that he or she becomes unfit for marriage or procreation of children. Neither party must be suffering from any kind of insanity or epilepsy (the clause for epilepsy was removed under the amendment act of 1999).
- AGE: the bridegroom must complete the age of 21 years and the bride must complete the age of 18 years.
- BEYOND SAPINDA: the parties must not be Sapinda of each other unless the custom provides for it. For example: a person cannot marry his brother’s daughter.
- BEYOND PROHIBITED RELATIONSHIP: the parties should not come under the degrees of prohibited relationship unless the customs so provide. For example: a person cannot marry his daughter in law.
The grounds for divorce
A marriage may, on petition presented by either husband or wife, be dissolved by a decree of divorce on the grounds mentioned under section 13 of this act. These grounds are faulty grounds and are available to both husband and wife. The grounds are as follows:ADULTERY: where the other party has been involved in any kind of sexual relationship outside the marital tie
- CRUELTY: where the other party has treated the petitioner with cruelty
- DESERTION: where the other party has deserted the petitioner for a continuous period of 2 years
- CONVERSION: where the other party has converted into some other religion
- UNSOUNDNESS OF MIND: where the other party suffers from incurable form of unsoundness of mind or of any kind of mental disorder which has made the petitioner unable to live together
- LEPROSY: where the other party suffers from virulent and incurable from of leprosy
- VENEREAL DISEASE: where the other party is suffering from some kind of venereal disease
- RENUNCIATION OF WORLD: where the other party has renounced the world by entering any religious order
- PRESUMED DEATH: where the other party has not been heard of being alive for a period of 7 years preceding the date of presenting the petition
- NON-RESUMPTION OF COHABITATION: where there has been no resumption for cohabitation for a period of one year or more after passing the decree of judicial separation
- FAILURE TO COMPLY WITH DECREE FOR RESTITUTION OF CONJUGAL RIGHTS: where there has been no restitution of conjugal rights between the parties for a period of 1 year or more after the passing of the degree of restitution of conjugal rights
There are some additional grounds available only to the wife under section 13(2) of this act. The grounds are as follows:
- BIGAMY: where husband has a spouse living at the time of marriage
- RAPE, SODOMY OR BESTIALITY: where the husband is guilty of rape, sodomy or bestiality
- FAILURE OF MAINTENANCE BY THE HUSBAND: where the husband has failed to provide maintenance to the wife
- OPTION OF PUBERTY: where the wife was below the age of 18 years at the time of marriage
Divorce by mutual consent
Section 13(b) was incorporated in the Marriage Laws (amendment) Act 1976. Section 13(b) provides for divorce by mutual consent. The petition for divorce by mutual consent is to be moved jointly by the parties to the marriage in the district court, on the ground that they have been living separately for a period of one year or more and they have not been able to live together and also they have jointly agreed that the marriage should be dissolved.
The petition cannot be withdrawn before 6 months and after 18 months from the date of presentation of the petition. If the petition is not withdrawn within the stipulated time, the court may after hearing the parties and making reasonable inquiry.
SPECIAL MARRIAGE ACT (1954)
The Special Marriage Act (1954) extends to the whole of India except the state of Jammu and Kashmir. It is applicable to all the citizens on India domiciled within the territories to which this act extents.
Conditions for valid marriage
Section 4 of the act provides for the conditions which need to be fulfilled for a marriage to be valid under this act. The conditions are as follows:
- MONOGAMY: neither party should have a spouse living at the time of the marriage
- SOUND MIND: the parties to the marriage must be of sound mind and should not be a lunatic
- PROHIBITED RELATIONSHIP: the parties to the marriage should not come under prohibited relationship
- AGE: the bridegroom must be above 21 years of age and the bride must be above 18 years of age
- JAMMU AND KASHMIR: if any person marries according to the special marriage act in the state of Jammu and Kashmir, he has to prove that he has domicile in any other part of India where this act extends as this act is not extended to the state of Jammu and Kashmir.
Grounds for divorce
Section 27 of the act provides for the grounds of divorce. The grounds are almost similar to the grounds of divorce except for some exceptions. The grounds are as follows:
- ADULTERATION: neither of the spouse must be involved in any sexual relationship outside the marital tie.
- DESERTION: either of the spouse has deserted the other for a continuous period of not less than 2 years
- CRUELTY: where the other party has treated the petitioner with cruelty
- INSANITY: where the other party suffers from incurable unsound mind or where the other has such a kind of mental disorder which makes the petitioner unable to live together
- VENEREAL DISEASE: where the other party is suffering from any kind of communicable venereal disease
- LEPROSY: where the other party suffers from leprosy of virulent and incurable form
- PRESUMED DEATH: where the other party has not been heard of being alive for a continuous period seven years immediately preceding the date of presenting the petition
When a petition for dissolution of marriage has been filed due to any of the grounds in section 27 except for ‘presumed death’, the court may pass a decree of judicial separation instead of divorce if it feels necessary (section 27A).
Any petition for dissolution of marriage shall be presented after the expiration of one year since the date of entering the certificate of marriage in the Marriage Certificate Book. The court may entertain any petition filed before the expiration of one year on the condition that the petitioner has suffered exceptional hardships or the respondent has caused exceptional depravity to the petitioner. If the court feels that the petitioner has misrepresented the incidents and taken leave to present the petition, the court, may dismiss the decree or suspend the degree till the expiration of the said one year. While disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of marriage, the court shall have regard to any interest of children of marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the one year (Section 29).
When the decree of the divorce has been passed and no appeal has been made before the expiration of the time to appeal or when an appeal has been made but dismissed, either party has the right to re-marriage (section 30).
Divorce by mutual consent
The petition for divorce by mutual consent may be presented to the district court by both the parties on the ground that they have been living separately for or more than a year and it is not possible for them to cohabit together and they have mutually agreed dissolve the marriage. The petition can be withdrawn after the expiration of 6 months and before the expiration of 18 months from the date of presentation. (Section 28)
THE DIVORCE ACT 1869
The Divorce Act 1869, extents to the whole of India except the state of Jammu and Kashmir. This act applies only to the Christians domiciled in India at the time of presenting the petition.
Grounds for divorce
Section 10 of the act provides for the grounds for dissolution of marriage. Both the husband and wife can move to court to seek a decree for divorce under this act. The grounds are as follows:
- ADULTERY: The respondent has committed adultery
- CONVERSION: The respondent has ceased to be a Christian by conversion to another religion
- LEPROSY: The respondent has been suffering from a virulent and incurable form of leprosy for a period not less than two years immediately preceding the presentation of the petition
- VENEREAL DISEASE: The respondent has been suffering from a venereal disease in a communicable form for a period not less than 2 years immediately preceding the presentation of petition
- PRESUMED DEATH: The respondent has not been heard to be alive for continuous period of 7 years or more
- NON-CONSUMMATION: The respondent has willfully refused to consummate the marriage and therefore the marriage has not been consumated
- FAILURE TO COMPLY WITH THE DECREE OF RESTITUTION OF CONJUGAL RIGHTS: The respondent has failed to comply with the decree of restitution of conjugal rights
- DESERTION: The respondent has deserted the petitioner for a continuous term of 2 years or more immediately preceding the presentation of petition
- UNSOUND MIND: The respondent has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the date of presentation of the petition
- CRUELTY: The respondent has treated the petitioner with such cruelty that it has created a reasonable apprehension in the mind of the petitioner that it would be injurious to live with the respondent.
The act provides that the wife may also present a petition for dissolution of marriage on the ground that the husband has committed an act of rape, sodomy or bestiality
Divorce by mutual consent
Section 10A of the act provides for dissolution of marriage by mutual consent. The petition for divorce by mutual consent may be presented to the district court by both the parties on the ground that they have been living separately for or more than a year and it is not possible for them to cohabit together and they have mutually agreed dissolve the marriage. The petition can be withdrawn after the expiration of 6 months and before the expiration of 18 months from the date of presentation.
Nullity of marriage
Any husband or wife may present a petition to the district court praying that his or her marriage may be declared null and void. The grounds for presenting the petition to nullify the marriage are as follows:
- The respondent was impotent at the time of marriage and at the time of institution of suit
- The parties were within the prohibited degree of consanguinity or affinity
- Either party was a lunatic or idiot at the time of marriage
- The former husband or wife of either party was living at the time of marriage
THE MUSLIM LAW
The Muslim laws are governed by the holy book of Quran. The personal laws of the Muslims such as marriage, divorce, succession etc are derived from the religious holy book of Quran and therefore there is no specific legal enactment present for the same.
Conditions of a valid Muslim marriage
Muslim marriages are called ‘NIKAAH’. ‘NIKAAH’ is a contract therefore like any other contract there are certain conditions which need to be fulfilled in order to make it valid. The conditions are as follows:
- The bride and bridegroom must be clearly identified by name or description
- The bride and bridegroom or their agents must be physically present at the marriage
- The presence of ‘wali’ is must. ’ Wali’ is the person who does the contract on behalf of the wife.
- Dower must be paid to the bride by the bridegroom or his family
- There must be two male or one male and two female witnesses present at the marriage.
- The marriage must be announced. There must not be any secret.
Modes of divorce
A husband can divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which express the intention to disown the wife is sufficient. The wife can only divorce the husband if she has been delegated such rights by the husband in the agreement. After the Dissolution of Muslim Marriage Act 1939 has been passed, the wife has got various grounds under which it can divorce the husband.
The modes of divorce can be categorized as the following:
- Extra judicial divorce
Extra judicial divorce can be divided into three types:
- By husband- talaaq, ila and zihar
- By wife- talaaq-i-tafweez and lian
- By mutual- khula and mubarat
2. Judicial divorce
Conditions of a Valid Talaaq
There are certain conditions which need to be fulfilled in order to declare a talaaq to be valid. The conditions are as follows:
- Capacity: the husband must be of sound mind, has attained the age of puberty and has the capacity to pronounce talaaq
- Formalities: according to Sunni law, talaaq must be either in oral or expressed in a written document called talaaqnama. According to Shia law, talaaq must only be in oral form except where the husband cannot speak, or else it is void
- Free consent: except for Hanafi law, the consent of the husband must be free from compulsion, coercion, undue influence, fraud or voluntary intoxication or else it is void. Under Hanafi law, talaaq pronounced under involuntary intoxication is void
- Express words: the word talaaq must clearly indicate the intention of the husband to dissolve the marriage
As we know marriage and divorce laws vary from one custom to another but the essence remains the same, that is, to provide justice to the victim. The law ensures that the husband and wife respects the sacramental tie of marriage as well as one another but at the same time it ensures that nobody must carry the burden of torture and disrespect and has full freedom to break this when necessary. Apart from divorce there are various other ways by which a relief can be granted to the victim such as restitution of conjugal rights and judicial separation. The law also ensures that the spouse is well maintained even after divorce by directing the husband to pay alimony to the wife.
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