DIVORCE UNDER DIFFERENT PERSONAL LAWS IN INDIA

In India, the law in relation to marriage and divorce for a Hindu, Sikh, Jain or

Buddhist is codified and governed under the Hindu Marriage Act, 1955; in case of a

Muslim by their Personal laws recognized under the Muslim Personal Law

(Shariat) Application Act, 1937 as well as Muslim Dissolution of Marriage Act,

1939. For the Christians, the marriage and divorce are governed under the Indian

Christian Marriage Act, 1872 and the Divorce Act, 1869 respectively. Apart from

personal laws, the Special Marriage Act, 1954 which is a secular law and allows

parties of different religion & castes to be married, governs these matters in relation

to those parties.

Divorce under Hindu Personal Law

Divorce under the Hindu personal law is recognized under the Hindu Marriage Act,

1955 which applies as per Section 2 of the Act to any person who is a Hindu by

religion in any of its forms or developments, to any person who is a Buddhist, Jain or

Sikh by religion, to any other person domiciled in the territories to which this Act

extends who is not a Muslim, Christian, Parsi or Jew by religion.

Section 13 of the Act provides for the dissolution of the marriage or divorce, for

which either spouse can file an application before the appropriate court for granting a

decree. The grounds which are available under the provision are:

• The spouse had voluntary sexual intercourse with any other person.

• The partner has treated the applicant with cruelty.

• Has deserted the partner for a continuous period of not less than two years.

• Has converted to another religion.

to live with him.

• Has been suffering from a communicable form of venereal disease.

• Has renounced the world by entering into a religious order.

• Has not been heard alive for a period of seven years or more.

There are two grounds that are based on the 'break-down' theory of divorce which

either spouse may avail:

• That there is no resumption of cohabitation for a period of one year or upwards

after the passing of decree of judicial separation.

• That there is no restitution of conjugal rights for a period of one year or upwards

after the passing of the decree for restitution of conjugal rights.

There are then some specific grounds which are available to a wife who may

seek a decree of divorce on the ground that:

• That the husband already married to another woman, who was alive at the time the

application for divorce, is filed.

• Divorce can also be sought by the wife if the husband is guilty of rape, bestiality or

sodomy.

• Where a decree for maintenance was passed in favour of the wife and there is no

cohabitation between them for a period of one year or more.

• Where the marriage of the wife took place when she was below the age of 15 years

(consummated or not), and where she repudiated the marriage before attaining the

of 18 years.
Section 13-B provides for divorce by mutual consent where both the parties living

separately for a period of one or more years, present a petition for divorce on the

ground that they have not been able to live together and therefore agreed mutually to

dissolve the marriage.

DIVORCE UNDER MUSLIM PERSONAL LAW

The Muslim Personal Law (Shariat) Application Act, 1937, under Section 2 states

that notwithstanding any custom or usages in matters of dissolution of marriage,

where the parties are Muslims will be governed by the Shariat or the Muslim

Personal Law. Further, the dissolution of marriage for a party that is a Muslim can be

divided into the following:

Divorce by husband

Earlier a Muslim husband could seek dissolution of marriage by pronouncing talaq to

the wife. Now it is being abolished. It was a form of divorce only available to the

husband by which he can sever ties with his wife without the intervention of any court

or without seeking prior approval of the wife. Every husband who has attained

puberty and is of sound mind can talaq his wife. There are no grounds or conditions

for pronouncing talaq and is an arbitrary act based on the whims & fancies of the

husband.

Under different schools of Muslim law, some additional conditions may or may not be

applicable. Such as under Hanafi law the pronouncement of talaq under coercion,

compulsion, fraud, and voluntary intoxication etc. is valid whereas under other

schools, the same is not applicable and the consent of the husband at the time of

pronouncing talaq must be free. The talaq operates from the day it was pronounced

and the words used therein must be clear & not ambiguous. The Sunni sect does not
prescribe any formalities for the talaq whereas the Shia sect insists that it be

pronounced in front of two witnesses and in oral form.

Talaq further can be in a revocable form or irrevocable form also known as Talaq-ul-

Sunnat and Talaq-ul-Biddat respectively. Talaq-ul-Sunnat is considered as a proper

form of divorce which is further categorized into Talaq Ahsan and Talaq Hasan.

Talaq-ul-Biddat in Lay form is considered improper and is not recognized by majority

of the schools except Sunnis. It is also popularly known as triple talaq which was

declared unconstitutional by the Supreme Court in the case of Shayara Bano v.

Union of India, (AIR 2017 SC 4609). Soon after the judgment, the parliament

enacted The Muslim Women (Protection of Rights on Marriage) Act, 2019 wherein

any declaration of Talaq by the Muslim husband is supposed to be void and illegal.

The Act also provides for stringent punishment in case of any violation of

the said provision.

DIVORCE BY A MUSLIM WIFE

The divorce by a Muslim wife is recognized under the personal law by the Muslim

Personal Law (Shariat) Application Act, 1937.

The first form of divorce available to the wife is called Khula which is a divorce

purchased by the woman from her husband; where compensation is paid by the wife

to the husband from her property in order to dissolve the marriage. When this form of

divorce is affected all the rights of spouses are extinguished and only the right of

maintenance during the period of iddat is available apart from any right expressly

agreed between the parties.

The second form of divorce is ila which in literal terms means an oath. In law, it

means that, when a husband takes an oath that he will not have sexual intercourse
with his wife for four months or above on the expiry of four months after making ila, if

the husband has abstained from sexual intercourse during this period, the marriage

shall stand dissolved.

The third type of divorce available is in the form of Zihar. It is available when the

husband compares the wife with his female relations who are in the prohibited

degree of relationship such as his mother. The same is recognized under the Shariat

Act and enables the wife to seek divorce in such a case.

Fourthly a divorce can be affected by the wife if the husband accuses her of adultery.

If the accusation levelled by the husband against her is not proved, it gives her a

right to file a divorce suit against the husband.

Divorce by mutual consent

The divorce by mutual consent is known as Mubaraat which means to release from

each other mutually. It is a form of divorce where both the spouses agree to severe

their marital ties mutually.

Judicial divorce

After the enactment of the Dissolution of Muslim Marriages Act, 1939, a Muslim

woman has a right to get a divorce through the courts in India on the grounds

mentioned in Section 2 of the act.

Judicial separation

In certain cases, a Muslim wife is entitled to seek judicial separation such as in case

of impotency of the husband, cruelty by the husband rendering it unsafe for her to

live in the dominion of the husband if the marriage was irregular and on the failure of
the husband to perform marital obligations imposed upon him by the contract

of marriage, etc.

DIVORCE UNDER CHRISTIAN PERSONAL LAW

A person professing Christian religion can get a divorce under the Divorce Act, 1869.

The act is applicable if one of the parties to the marriage is a Christian and the

marriage can be dissolved by bypassing a decree by the court under the Act.

The grounds provided by the Act for dissolution of a marriage under Section 10 are

as follows:

1. Where the spouse committed adultery.

2. The respondent ceased to be Christian by conversion.

3. Where the respondent is suffering from an incurable unsound mind for a

continuous period of two years.

4. Where the respondent is suffering from a virulent and incurable form of leprosy for

a continuous period of two years.

5. Where the respondent is suffering from venereal disease of a communicable form

for a continuous period of two years.

6. Where the respondent has not been heard alive for a period of seven years or

more.

7. Where the respondent has refused to willfully consummate the marriage.

8. Where decree of restitution of conjugal rights was passed, the respondent failed to

comply with such decree.

9. The respondent deserted the respondent for a period of two years or more.
10. Where it is harmful for the petitioner to live with the spouse on account of cruelty

committed against him/her.

11. A wife can seek divorce in case the husband is guilty of rape, sodomy or

bestiality.

The parties to the marriage can also file a petition together for seeking divorce by

mutual consent under Section 10-8 on the ground that they have mutually agreed to

divorce after living separately for a period of two years or more and have not been

able to live together.

UNDER THE OTHER SPECIAL LAWS

The Special Marriage Act, 1954 provides for the marriage of parties irrespective of

the religion, faith or caste etc. followed by either of the parties. Similarly, the divorce

by the parties who got married under the act is also governed by the same

enactment. The grounds for divorce are mostly similar to those under the Hindu

Marriage Act, 1955.

Another enactment, the Foreign Marriage Act, 1969, is availed by parties between

whom at least one person is a citizen of India and the marriage takes place in a

foreign country while adhering to the conditions given by this Act. The divorce

between such parties is governed by the provisions of the Special Marriage Act,

1954 subject to the provisions of the Foreign Marriage Act, 1969.

COMPARING DIVORCE UNDER DIFFERENT ENACTMENTS

The grounds for divorce under the statutory enactments of the Hindu Marriage Act,

1955 and the Special Marriage Act, 1954 are similar. Under both the acts either
spouse can file an application for divorce apart from some specific grounds

especially available to the wife.

Those specific grounds include bigamy, rape, sodomy or bestiality etc. They can also

file an application mutually for a divorce under both Acts. They also recognize in

some cases, the theory of irretrievable breakdown of marriage where even after a

decree for restitution of conjugal rights or judicial separation is passed the couple are

not able to live together and can file for divorce.

In the case of Muslims, apart from the Personal laws, the Dissolution of Muslim

Marriage Act, 1939 provides for grounds of divorce. The same was enacted since the

Personal law of Sharia is not uniform, unlike the Hindu Personal law which although

didn't provide for divorce since marriage was considered a sacrament, was largely

codified after the independence through statutory enactments. The different schools

under Muslim religion didn't follow a uniform approach and some schools such as the

Hanafi, didn't allow a woman to divorce whereas others such as Maliki allowed

women to divorce under certain circumstances. Therefore, Section 2 of the provided

for grounds of divorce to the woman and only on those specified grounds they could

seek divorce unlike men under Muslim Personal law. The grounds available to

Muslim women under the act are conviction of husband for than seven vears. failure

or neglect to pay maintenance to wife, impotency, cruelty, insanity etc.

Both under Hindu Personal law or Muslim Personal law, the statutory enactments

have overridden the effects of the customs and usages. The divorce under both

religions is governed as per the statutory enactments which do not recognize any

custom or usage. In case of Muslim Personal Law, the Shariat, as well as the Muslim

Dissolution of Marriage Act, governs divorce.

Marriage Act, 1955 as well as Special Marriage Act, 1954. In the case of marriage

under the Foreign Marriage Act, 1969 the divorce proceedings are governed as per

the Special Marriage Act.