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Laws Regarding Divorce In India

Historical Background
Before the commencement of Hindu Marriage Act 1955, it was termed that the union of Husband and Wife is inseparable. Manu said that husband cannot abandon wife by sale, abandonment and believed that there is no method of separating them. But in Ancient times Hindu Law did not recognize Divorce.

But after the introduction of the Hindu Marriage Act 1955, there were lot of changes seen in the domain of laws of marriage and divorce. Under HMA 1955 Divorce is mentioned in section 13, section 13-B, section 14 and section 15

  1. Section 13 lays down the grounds by which divorce can be obtained.
  2. Section 14 says that spouses cannot issue petition for divorce until 1 year has gone of marriage but if exceptional circumstances arises then it can be entertained and these situations are when matter is related to bigamy or where the consent of the petitioner was taken by fraud, misrepresentation.
  3. Section 15 says that divorced person when may marry again and it lays down the limitation that the divorced person to marry again which are: when marriage dissolved by a decree of divorce and there is no right of appeal against decree or time of appeal has expired or appeal was presented but dismissed, then it would be legal for either party to marry again.

Divorce in the simplest way can be defined as legal dissolution of marriage by legal process that is through Court but that's not it there are different procedure and law to get divorce in India like Hindu has different method, Muslims have different method and so as the Christians. In divorce not only Husband and wife gets separated but also involves custody of child and division of property.

Theories Of Divorce

There are three theories regarding divorce which are:

  • Fault Theory: This theory tells that one of the spouse can take divorce from the other spouse if he or she has committed a matrimonial offence. Section 13 of Hindu Marriage Act provides the ground for filling of this type of divorce.
  • Mutual Consent Theory:

    Under Hindu Marriage act mutual divorce is covered under Section 13-B. Both Husband and Wife agree to get divorce in peaceful way. Both parties before hand settles matters on alimony and child custody if there is any. But there are two requirements present in this type of divorce (i) mutual consent and (ii) they have to live separate for at least one year.
  • Irretrievable Breakdown Of Marriage Theory:

    This means that husband and wife are not able to live together, and when it reaches to such an extent that it is not possible to repair the marriage then irretrievable breakdown of marriage. Some of the situation can be like spouses are not living together, they have frequent quarrels this lead to the irretrievable breakdown of marriage. There is no codified law regarding this in India right now, this type of divorce is different from the above two because in this Court decides by examining the facts, circumstances and evidences whether the marriage can be saved or not.

  • Grounds For Obtaining Divorce

    Section 13 of Hindu Marriage Act 1955 lists the grounds by which Divorce can be obtained:

    1. Adultery:

      In HMA Adultery is considered as matrimonial offence in which either of the spouses are involved in sexual relation with any person other than their spouse.
    2. Cruelty:

      Cruelty comprises of both physical and mental cruelty. Physical cruelty means when one spouse cause bodily injury to other spouse it is to identify and mental cruelty is more harsh and difficult to identify, mental cruelty effects the health of the person to whom mental cruelty has been caste.

      Now let's see how mental cruelty is caused:
      1. How mental cruelty is caused to husband by wife:
        1. Making false allegations
        2. Constant demand of money
        3. Wife living immoral life
        4. Wife Ill - treating husband's parents and family
      2. How mental cruelty is caused to wife by husband:
        1. Impotency of husband
        2. Husband demanding dowry
        3. Husband forcing wife to abort the child
        4. Husband lives an immoral life
    3. Desertion:

      When one spouse without any reason and without consent abandons the other spouse and with an intention of not coming back this is known as desertion. If two years have passed of desertion, it becomes a valid ground of divorce.
    4. Conversion:

      If any of the two spouses, one spouse change religion then the other spouse can go to Court to get Divorce.
    5. Insanity:

      Insanity is a condition when a person becomes unsound. Insanity becomes ground of divorce when it is not possible for the spouse to live with that spouse who is suffering from mental disorder
    6. Leprosy:

      Leprosy is an infectious disease of skin and nervous system etc.. This disease is transmitted from one person to another thus a valid ground of divorce.
    7. Communicable disease:

      If the disease is of this kind and it is incurable then it can be ground of divorce.
    8. Renunciation:

      Renunciation means when one person has given up something and this person has renounced the way of life and has walked on the path of God, if any of the spouse do something like this so it becomes valid ground of Divorce.
    9. Presumption of death:

      A person is presumed to bed dead if he is not heard for 7 years by family and friends and they have no idea whether that the person is alive or dead. So this becomes a valid ground for divorce.

    Other grounds of divorce which can only be used by wife and these are:

    1. Wife was married before the age of 15 years this can be the ground of divorce.
    2. Husband is guilty of rape, sodomy or bestiality.
    3. Bigamy, wife can apply for divorce if husband has married another woman in her life time.

    Grounds to get divorce under Muslim Law

    By two ways you can get divorce under Muslim Law, the Dissolution of Marriage Act 1939 mentions two ways and these are:

    1. Judicial Process:

      • Lien: Wife is entitled to seek a judicial divorce if she has been falsely charged by husband. Essential elements for lien are both spouses should be of major and sound mind, husband has put false charge of adultery on wife and mere false allegation of adultery cannot cause dissolution of marriage wife have to file a petition in Court for divorce and also the decree should be passed in favour of wife then marriage dissolves. This is irrevocable.
      • Fask: ( Judicial Separation of Marriage ): Before the enactment of dissolution of marriage act 1939, Muslim woman could only apply for dissolution of marriage act under the doctrine of Fask.

        Section 2 of the Dissolution of Marriage Act 1939 specifies the way by which Muslim women can take divorce in India and these are laid down below:

        1. The wife don't know where her husband is and he is missing for 4 years.
        2. Husband has faced an imprisonment for at least 7 years this is valid ground of divorce.
        3. The husband was impotent at the time of marriage.
        4. The husband is unsound for at least two years.
        5. Husbands do cruelty on her wife.
        6. Husband not able to fulfil marital obligation for at least three years without any reason.
        7. Husband suffering from venereal disease.
    2. Extra � Judicial Process:

      1. Divorce by Husband can be taken by three ways: Talaq � e - Sunnat, Ila and Zihar
        Talaq � e � Sunnat has two forms: Talaq e ahasan, Talaq e hasan
        • Talak i ahasan: This kind is more approved, In this huband has to say Talaq only once during the period of tuhr i.e. period between two mensuration. This type of Talaq can be revoked any time during the period of iddat.
        • Talaq i hasan: This kind is less approved, under this husband has to say Talaq three times during three successive tuhr. But the condition is there should not be sexual intercourse during these periods.
        • Ila: Under this husband takes an oath that he will not have sexual intercourse with her wife and leaves her to observe iddat. It is necessary to note that iddat is not practised in India.
        • Zihar: In this form husband compares his wife to any other female who is in prohibited degree like mother, sister.
      2. Divorce by wife:
        • Talaq-i-Tafweez: This type of divorce is also known as delegated divorce. In this husband delegates his power to divorce to his wife either temporarily or permanently.
      3. Divorce by Mutual Consent has two kinds: Khula, Mubarat
        • Khula: in this type if wife has agreed to give consideration to her husband it is basically redemption of the contract of marriage, this is considered as mutual divorce. In this observance of iddat is necessary.
        • Mubarat: Under this both spouses don't want to continue their marriage. So any of the spouse can make a proposal of divorce and if other party accepts the proposal for divorce then it becomes irrevocable and the marriage comes to an end.

    Whether Triple Talaq is a valid form of Divorce?

    Talaq-e-Biddat or Triple Talaq is no longer valid form of divorce, Section 3 of the Muslim Women (Protection of Right of Marriage) Act 2019, triple Talaq is held as void and illegal. This act makes the practice of triple Talaq illegal whether it is oral, written, or in electronic form and makes it non-bailable and cognizabe offence.

    Difference between Sunni divorce and Shia divorce:

    No. Sunni Divorce Shia Divorce
    1 Presence of witnesses not necessary when Sunni divorce is happening. Presence of witnesses necessary when divorce is in process .
    2 Divorce in intoxication is valid. Divorce in intoxication not valid.
    3 In Sunni Talaq e biddat and Talaq e Sunnat both are valid. In Shia only Talaq e Sunnat is valid .
    4 In Sunni divorce can be done by both ways either oral or written In Shia only oral mode of giving divorce is valid except when the husband is not able to speak then only written mode is acceptable

    How can a Christian get a divorce in India?

    Section 10A of the Indian Divorce Act 1869 tells us the two ways to get Christian Divorce in India.

    1. Mutual Divorce: Both the spouses agree that they are not able to live together happily and they are living apart for at least two years and then they can file a petition for the divorce before District Court.
    2. Contested Divorce: Contested divorce can be filed by either of the spouses on the following grounds:
      1. Unsound mind for continuous period of not less than two years.
      2. Adultery.
      3. Either of the spouse has ceased to be Christian
      4. Deserted for at least two years.
      5. Wilfully refusing to consummate the marriage.
      6. Cruelty
      7. Husband is guilty of rape, sodomy.
      8. Any of the spouse not heard of alive for seven years or more.
      9. Suffering from incurable leprosy for at least two years.

    How can Parsi can get a divorce in India?

    Parsi Marriage and Divorce Act, 1936 lays down the grounds on which marriage can come to an end.

    • Section 30 says that if it becomes impossible to consummate the marriage because of the natural circumstances then either party can obtain nullity of marriage.
    • Section 31 says that if either of the spouse hasn't heard of other spouse for the period of seven years from the persons who would have naturally known of that person then the marriage can be dissolved.
    • Section 32 lays down the grounds on which divorce can be obtained and these are:
      1. When one party refuses to consummate the marriage within one year of marriage.
      2. If any of the spouse is imprisoned for more than 7 years and one year of imprisonment have been passed then divorce can be taken.
      3. If either of the spouse has deserted the other spouse for more than two years or has given up his or her religion then divorce can be taken.
      4. If the person at the time of marriage did not knew that the other person was unsound then the divorce can be taken but the condition is divorce petition have to be filed within three years from the date of the marriage.
      5. If the wife was pregnant at the time of marriage and husband had no idea then the divorce can be taken within two years of marriage but the condition is that their should not have any marital intercourse.
      6. If either of the spouse has been treated with cruelty, or any of the spouse is infected with venereal disease then the divorce can be filled within two years.

    • Section 32B tells about divorce by mutual consent provided that the consent has not been obtained through fraud or force.
    • In India, Parsi Marriage and Divorce Act 1936 says that Parsis can initiate divorce only under Special Courts which are instituted under section 19 and section 20 of the said act. Such Courts are presided over by officials who are Parsis and it is also necessary to register the divorce at the registrar office.

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