Hindu, Muslim and Christian Divorce Laws in India

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Introduction

'Marriage', is a legally and socially sanctioned union, usually between a[1]and a woman, that is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners and accords status to their offspring (if any). [i] Almost every religion considers marriage a sacramental union. As a sacramental union, it is considered to be a permanent bond between the parties. It implies that marriage cannot be dissolved. That means marriage is valid not only in this life but also in future lives. [ii]

In India, divorce was not so prevalent in old times because it was believed that marriage is not only a mere bond between two people but it is a social institution that maintains social norms and regulations by creating a dignified society. There is a specific divorce law for every religion in India. The Hindu Marriage Act, of 1955 includes all Hindus, Buddhists, Jains, or Sikhs who can get a divorce under this act. For Muslims, there is the [2]. Christian people can get a divorce under The Divorce Act, of 1869. Parsi people can seek divorce under The Parsi Marriage and Divorce Act, of 1936. Other than these religion-specific laws if two inter-religious people marry they can get a divorce under the Special Marriage Act, 1954.

'1. Divorce under Hindu Law'

Under Section 5 of the Hindu Marriage Act, 1955 the conditions for a valid Hindu marriage have been described and Section 13 provides the grounds under which a decree for divorce can be sought by any of the spouses. But before coming to the divorce there are two more steps to be followed-

i. Restitution of Conjugal Rights- under section 9 if any of the spouses withdraw from the marriage the aggrieved party may apply to the court for restitution of his or her conjugal rights and the court on being satisfied can also grant that.

ii. Judicial Separation- under section 10 any of the spouses can pray for a judicial separation under Article 13(1) and the wife can pray under Article 13(2) as well. When a decree for judicial separation has been passed by the court the parties are not obliged to cohabit with each other. Through judicial separation, the parties are given one last chance to reconcile their marriage.

After one year of judicial separation the courts on being satisfied that there is no chance to save the marriage. The court can dissolve the marriage by specifying some grounds that are mentioned under Section 13(1). Those grounds are-

  1. The respondent has voluntary sexual intercourse with any other person outside of marriage.
  • The respondent has treated the petitioner with cruelty.
  • The respondent has deserted the petitioner for not less than two years immediately preceding the presentation of the petition.
  • He or she has converted to any other religion other than Hinduism.
  • The respondent is of incurably unsound mind or has been suffering from such a kind of mental disorder that the petitioner cannot reasonably expect to live with his or her.
  • He or she has been suffering from a venereal disease.
  • The respondent has renounced the world by entering any religious order.
  • The respondent has not been heard of as being alive for seven years by those persons who would have naturally heard of it if that party had been alive.

    There are some grounds under Article 13(2) which are exclusively available to the wife for presenting a divorce petition-

    • The Husband has married before and that previous wife is still alive at the time of the solemnization of the marriage of the petitioner.
    • Since the solemnization of the marriage, the husband has been guilty of rape, sodomy, and bestiality.
    • A decree or order has been passed by the court to provide maintenance to the wife and the husband has failed to provide that.
    • Her marriage whether consummated or not was solemnized before she attained fifteen years of age she can repudiate the marriage before attaining the age of eighteen years.

    iii. Divorce by Mutual Consent-

    under Section 13B if both parties agreed to file a petition for dissolution of marriage together on the ground that they are living separately for one year or more and they are unable to live together they both mutually agreed to dissolve the marriage. After presenting the petition the court on being satisfied that the facts are true shall pass a decree of divorce within six months to eighteen months of filing the petition. [iii]

    2. Divorce under Muslim Law

    Even though the provision of divorce was recognized in all religions. Islam is perhaps the first religion that has expressly recognized the termination of marriage by way of divorce. In Muslim law, divorce is known as Talaq. A marriage can be dissolved either by death of the husband or wife or by divorce. After the death of a wife, the husband may remarry immediately but the wife has to wait for a certain specific period known as iddat. The iddat of death is four months and ten days and in case the wife is pregnant it is continued until the delivery of the child. In Muslim Law, the dissolution of marriage can happen in four ways by husband, by wife, by mutual consent, and by judicial decree under the Dissolution of Muslim Marriages Act, 1939. [iv]

    A. There are three ways under which a Husband can divorce his wife. Those are-

    1. Talaq

    2. Ila

    3. Zihar

    1. Talaq is considered to be immediate relief from the marriage tie. It can be further classified into two types i. Talaq-ul-Sunnat ii. Talaq-ul-Biddat. Talaq is regarded as evil. But Talaq-ul-Sunnat is considered as the best method because it does not dissolute the marriage immediately there is always a chance of reconciliation. This form is accepted by both Sunnis and Shias. It is subdivided into two sections-

    a. Talaq Ahsan- it is a single-sentence divorce declaration.

    b. Talaq Hasan- in this method the Husband makes three divorce declarations in a row.

    ii. Talaq-ul-Biddat is a single declaration type of divorce process that makes the marriage irreversible immediately. It is considered a sinful form of divorce.

    2. Ila- in this method, the husband in sound mind after reaching a majority swears in the name of God to not have sexual relations with his wife and after four months if all the conditions are fulfilled then the marriage is irreversibly dissolved. The wife is entitled to a statutory divorce after four months. It is not practiced in India.

    3. Zihar- if the husband compares his wife to a woman from a forbidden relationship such as mother or sister and lives apart for four months after that period the wife either makes a petition for restitution of conjugal rights or she may file a petition for judicial divorce. If the husband wants to revoke Zihar within four months he has to perform certain acts to get back to his marriage.

    B. Dissolution of Marriage by Wife

    Talaq-e-Tawfeez- it is a form of divorce whereby the husband delegates the power of divorce to the wife. There are certain conditions when the wife can use this method. Those are-

    a. If the husband marries for a second time.

    b. The husband is unable to sustain her wife for a given period.

    C. Dissolution by Mutual Consent It was not recognized under Muslim Law, but it became available after the passing of the Dissolution of Muslim Marriages Act, of 1939. There are two methods whereby dissolution of marriage can happen-

  • Khula- It is a divorce by mutual consent at the request of the wife upon which she decides to give some consideration to her husband. It is the redemption of a marital contract.
  • Mubarat- It is a form of mutual divorce where the offer can be made from either side and acceptance of the offer makes the divorce irrevocable. Iddat period is necessary for this. [v]

    D. Dissolution by Judicial decree under Muslim Marriage Act,1939

    There are two methods to get a divorce under this act-

    1. Lian- if the husband falsely accuses the wife of adultery, the wife shall sue him and seek a divorce under this act by filing a standard suit of divorce petition on the same grounds under this act.
    2. Fask- if both parties to the marriage find that they will not be able to live together they may approach a Qazi who after thorough inspection can decide to end their marriage. Under this method, only Muslim wives are entitled to get a divorce.

    Those grounds are mentioned under section 2 of The Dissolution of Muslim Marriage Act,1939

    • If the husband is absent for not less than four years the wife may seek a divorce petition. The decree will take effect six months after it is issued.
    • If the husband fails to provide maintenance to his wife for not less than two years then he is considered to be in default.
    • If a husband is imprisoned for seven years or more
    • If the husband failed to perform his marital obligation for three years without any reasonable cause.
    • If the husband was and appears to be impotent at the time of marriage
    • If the husband has been insane or has leprosy or other venereal diseases for two years the wife can seek judicial divorce on the same grounds.
    • If a girl has been married before the age of 15 years by her guardian she can repudiate the marriage after reaching the age of 18 as long as the marriage is not consummated.
    • If the husband treats the wife with cruelty she may file a petition in the court for a judicial separation on the same grounds. [vi]

    '3. Divorce under Christian Law'

    The persons professing Christian religions are granted divorce under The Divorce Act of 1869. Section 10 of The Divorce Act of 1869 provides grounds for dissolution of marriage. Those grounds are-

    • If the respondent has committed adultery
    • The respondent has not conversed with any other religion and has ceased to be Christian
    • The respondent has been incurably of unsound mind for not less than two years immediately preceding the presentation of the petition.
    • The respondent has been suffering from a venereal disease in a communicable form for not less than two years immediately preceding the presentation of the petition.
    • The respondent has not been heard of being alive for seven years by those persons who would have naturally heard of him if he were alive.
    • The respondent has wilfully refused to consummate the marriage.
    • The respondent has failed to comply with a decree for restitution of conjugal rights for two years or more after passing the decree against him.
    • The respondent has deserted the petitioner for at least two years immediately preceding the presentation of the petition.
    • The respondent has treated the petitioner with such cruelty that it has caused reasonable apprehension in the mind of the petitioner that it will be harmful or injurious to live with the respondent.

    Section 10(2) of The Divorce Act, of 1869 provides some grounds, especially for the wife under which she can seek for the dissolution of Marriage. Those grounds are- since the solemnization of the marriage the husband has been guilty of rape, sodomy, and bestiality.

    iii. Divorce by Mutual Consent

    Under Section 10A of the Divorce Act of 1869, if both the parties mutually agreed that they cannot live together and they are living separately for a period of two years (the period has been reduced to one year by a 2010 Kerala High Court order) or more, the court being satisfied with the petition can grant a decree of divorce within six months to one-and-a-half-year from the date of filing the petition in the court. [vii]

    'Conclusion'

    'Inprevious times people used to think that once the marriage has been done between the two parties they become inseparable. So, the marriage was carried on in the absence of proper remedies. But with the advent of specific divorce acts for all religions if anyone is unsatisfied they can take the help of the particular Law and the court will give them a proper remedy. So that, every independent individual in our country can live their life with proper dignity and as per their wish.

    [i]< ref> See The Editors of Encyclopaedia Britannica, Marriage, Britannica, (Apr17, 2024) [3](25th May, 2024) < / ref >

    [ii]< ref > Dr.Paras Diwan & Peeyushi Diwan, Modern Hindu Law, 65 (25thedition, 2021) < / ref >

    [iii]< ref > THE HINDU MARRIAGE ACT, 1955, No. 25, Acts of Parliament, 1955 (INDIA) s. 9,10,13(1), (2), 13B < / ref >

    [iv]< ref >Aqil Ahmed, Mohammedan Law, 164 (28th edition, 2022) < / ref >

    [v]< ref >Aqil Ahmed, Mohammedan Law, 165-193 (28th edition, 2022) < / ref >

    [vi]< ref > THE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939, NO. 8, Acts of Parliament, 1939 (INDIA) s. 2

    [vii]< ref > THE DIVORCE ACT, 1869, No. 4, Acts of Parliament, 1869 (INDIA) s. 10(1), (2), 10A



    1. ↑ #cite_note-1 [1]
    2. ↑ #cite_note-2 [2]
    3. ↑ #cite_note-3 [3]
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