Author - Ramasamy Santhanakrishnan
Divorce is the process of dissolution of a marriage. Divorce in India is governed by personal laws related to religion. The article below discusses divorce between Hindus, Buddhists, Sikhs and Jains as regulated by the Hindu Marriage Act of 1955; between Muslims as regulated by the Dissolution of Muslim Marriages Act, 1939; and between Christians regulated by Indian Divorce Act of 1869.
DIVORCE UNDER HINDU LAW
There are necessarily three theories of divorce - fault theory, mutual consent theory & irretrievable breakdown of the theory of marriage.
- Under the theory of fault or the theory of offences or the theory of guilt, as the name suggests, marriage can be dissolved when there is a fault or offence.
- Mutual consent. The underlying logic is that because two people can marry by their free will, they should both be able to exit the marriage out of their free will. It has however been criticised that it will lead to hasty divorces.
- The third hypothesis involves a marriage's irretrievable breakdown. The breakdown of a marriage is described as such a failure in marriage relationships or circumstances adversely affecting that relationship that there is no fair possibility for the spouses to live together again as married couples.
In modern Hindu law, all three divorce theories are recognized, and divorce can be obtained on each of them. Originally based on the theory of fault, the Hindu Marriage Act of 1955 enshrined nine grounds for failure in Section 13(1) in which either the husband or wife could sue for divorce and two grounds for fault in Section 13(2) in which only the wife could seek divorce. The grounds for divorce are:
- Cruelty - Either physical, emotional or mental cruelty. If one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, it is a sufficient ground for obtaining a divorce.
- Adultery - If either party commits adultery, the other may approach the courts for divorce.
- Desertion - One spouse deserting the other without reasonable cause for at least two continuous years.
- Conversion - if the spouse ceases to be a Hindu.
- Mental Disorder - if a spouse is incurable of unsound mind to such an extent that the normal duties of married life cannot be performed.
- Communicable Disease - If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy then the other party can obtain a divorce.
- Renunciation of the World - If the spouse renounces his/her married life and opts for sannyasa, the aggrieved spouse may obtain a divorce under Hindu divorce laws.
- Presumption of Death - If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have reasonably heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce under the Indian divorce law.
Additional grounds for divorce available to a wife:
- Indulgence of the husband in rape or sodomy.
- The husband has remarried in spite of the fact that the first wife was alive then the first wife can file a divorce petition.
- If a girl has been married before the attainment of 15 years of age and renounces her marriage before she has attained 18 years of age.
- Non-cohabitation for a period of one year and the husband has neglected the judgement of maintenance awarded to the wife by the court.
Apart from the above, Section 13B of the above Act provides for divorce by mutual consent. A petition for dissolution of marriage may be presented to the district court by both the parties to a marriage together, that they have mutually agreed that the marriage should be dissolved.
DIVORCE UNDER MUSLIM LAW
Under Muslim law, a marriage is broken either by the husband's or wife's death or by divorce. The husband can remarry immediately after the death of his wife. However, the widow of a deceased husband cannot remarry until the expiry of a specified time, “Iddat”.
Marriage can also be dissolved by judicial order under the Dissolution of Muslim Marriage Act,1939.
A husband can divorce as follows :-
- Talaq: In its literal meaning, it means "setting free", "letting loose", or taking off any "ties or restraint". In Muslim Law it means freedom from the bondage of marriage and not from any other bondage.
It is to be noted that, the triple talaq has been a subject of controversy, with many countries striking it down. The three divorces in Islam remained legal in India; however, the Supreme Court ruled that triple talaq was unconstitutional vide its order dated 22.08.2017 (AIR2017SC4609). The Lok Sabha has also passed the Triple Talaq Bill, rendering the practice illegal and imprisonment for three years, if followed.
- Ila: Where a sound-minded husband vows to abstain from all relationships with his wife.
- Zihar: Where an adult and sane husband compares his wife with his mother or any other female within the prohibited degrees.
A wife can divorce as follows : -
- Talaqetafwiz: Talaq by the wife under delegated power by the husband.
Women’s right to divorce under the Dissolution Of Muslim Marriage Act, 1939
A Muslim woman can seek divorce for the following reasons –
- that the whereabouts of the husband have not been known for a period of four years;
- that the husband has neglected or has failed to provide for her maintenance for a period of two years;
- that the husband has been sentenced to imprisonment for a period of seven years or upwards;
- that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
- that the husband was impotent at the time of the marriage and continues to be so;
- that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
- that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:
- that the husband treats her with cruelty
INDIAN DIVORCE ACT, 1869
It amends the law relating to the divorce of people professing Christianity according to the preamble to this Act. It also confers jurisdiction on other courts to address such matters.
Grounds for Dissolution of Marriage
Section 10 of the Indian Divorce Act provides reasons for the dissolution of a marriage by a judge. The husband or wife shall file a petition for divorce before the District Court in whose jurisdiction the parties solemnized their marriage or lived together or last lived together.
The court may grant a divorce on any of the following grounds:
- has committed adultery; or
- has ceased to be Christian by conversion to another religion; or
- has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or
- has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or
- has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or
- has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or
- has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or
- has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or
- has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or
- has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.
In addition to these purposes, the wife could file a divorce petition on additional grounds. For example, she would file for divorce if her husband was guilty of rape, bestiality, etc. after marriage.
Divorce by Mutual Consent
The conditions we have seen above must exist for a party to sue for divorce, according to Section 10 of Indian Divorce Act, 1869. However, the Act was amended to insert Section 10A to enable a married couple to approach the court together for divorce.
Apart from the above, there are also other Acts governing divorce in India. Though there are several acts governing divorce, they all focus on providing appropriate relief and justice to men and women in a marriage. Divorce proceedings, like any legal proceedings constitute of various stages viz., service of summons, trial, interim relief, arguments, final order. While going through the process of divorce, other important elements that are inevitable are, alimony, custody of children, settlement of property, etc. As divorce is still considered to be one of the most traumatic experiences for a married couple, and it could get as messy as it could, a lack in clarity of the law and procedure concerning divorce can be not just time consuming, but also frustrating. So, it is recommended that the best legal help and guidance be obtained before commencing the process.
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