Divorce Laws in India
The article ‘Divorce Laws in India‘ highlights the different ways that couples can file for divorce in India and how the procedure and statutory requirements differ based on their religion. Any married couple experiences the most painful event in their lives when they get divorced. No one wants to go through this time, but when it comes, there is no escape from it. Knowing our rights and obligations, what to do when a divorce petition is filed, etc., becomes crucial as a result.
Marriage was once regarded as a sacrament in India because of the purity of the relationship, which could not be broken for seven lifetimes. Marriage has currently lost its sacramental nature due to modern laws and an ever-expanding society. When a court or another competent body authorises the dissolution of a marriage, divorce occurs. Once a divorce is granted, the marriage’s bond is broken, and the parties, or husband and wife, are no longer required to carry out their obligations.
One of the most challenging stages in a married couple’s life is divorce. In India, divorce is associated with religion because it is a personal affair. For Jains, Sikhs, Hindus, and Buddhists, the divorce process is governed by the Hindu Marriage Act of 1955. Dissolution of Muslim Marriage Act (1939), Parsi Marriage and Divorce Act (1936), and Indian Divorce Act (1869) govern the divorce laws for Muslims, Parsis, and Christians, respectively. The Special Marriages Act of 1954 governs all intercommunity marriages.
Divorce Laws for Hindus
Hindu Marriage Act, 1955 provides for the elaborate procedure of divorce that is to be followed by Hindus. Here the divorce can be filed under two major categories:
a. Divorce by Mutual Consent
b. Divorce without Mutual Consent (through petition)
Divorce by Mutual Consent
Divorce without Mutual Consent
1. The petition, in this case, must be submitted to the court by the appropriate counsel for the parties, and the court will then proceed after reviewing the paperwork.
1. One party approaches the court and requests a divorce. No party may obtain a decree without establishing a legitimate basis for doing so, and the party must give a good cause for doing so.
2. They must demonstrate that they have been living apart for one to two years.
2. The following justifications are permitted under Section 13 of the Hindu Marriage Act of 1955: cruelty, adultery, presumed deceased, conversion, mental illness, renunciation of the world, or any contagious disease.
3. Section 10A of the Divorce Act of 1869 calls for a separation of two years, and Sections 13B and 28 of the Special Marriage Act of 1954 both stipulate that the parties must have been apart for at least a year before filing for divorce.
3. Additionally, both the husband and the wife may sue for divorce on the following grounds:
a. If the husband has a history of sodomy, rape, or bestiality.
b. If the spouse was wed before turning 15 years old.
c. The wife received a divorce decree after receiving maintenance, and they have been apart for more than a year.
Maintenance, child custody, and property rights are more simply resolved in Divorce by Mutual Consent.
It is important to know that in divorce cases without mutual consent, the petition must be submitted to the court together with all required paperwork, and if the court is satisfied after reviewing the petition, additional proceedings will begin. The court initially suggests mediation as a means of resolving the conflict; if that is unsuccessful, the court then invites both parties to appear before the court on a specific date. The court makes its decision after hearing from both sides. In the three months following the issuance of such an order, the aggrieved party may file a court petition.
New Rule for Hindu Divorce Laws brought about by the Supreme Court
Hindu couples seeking divorce were given a significant reprieve by the Apex Court, which ruled that the 6-month waiting period outlined in Section 13B(2) is discretionary rather than mandatory. As a result, lower courts were instructed to expedite divorce proceedings in cases where both the husband and wife agreed to resolve their differences regarding alimony, child custody, or any other outstanding issues between the couple.
In the words of the Supreme Court in Kavita Malik v. State of NCT of Delhi, W.P.(C), 3922 of 2021:
“If there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option.”
Divorce Laws for Muslims
For Muslims, too, there are two major categories of obtaining divorce which is further divided into various subcategories that follow. The 2 major categories are:
By Judicial Process
This takes into consideration the Dissolution of Muslim Marriages Act, 1939. Section 2 of the Act outlines the following reasons which Muslim women can obtain a divorce in India:
- The husband either married before turning 15 or mistreated his wife.
- The husband neglected his wife for a period of at least two years.
- The husband failed to fulfil his marital obligations for at least three years without a valid excuse.
- For more than four years, no one has heard from or about the husband.
- At the time of the marriage, the spouse had a venereal illness, was impotent, or was mentally ill.
- If the husband has served at least 7 years in prison.
By Extra-judicial Process
This category further has three divisions:
A. Divorce by Wife
This can be of two types: Talaq-i-Tafweez, which means the husband, in this case, gives his wife a temporary or permanent divorce, it is also known as a delegated divorce. While Lian means the woman has the right to divorce if she is falsely accused of infidelity.
B. Divorce by Husband
This has four possible types, including Talaq-e-Sunnat, talaq-i-ahasan, Ila and Ziha. In a talaq-i-ahasan divorce, the husband must say the word “talaq” once within the tuhr period (the period between 2 mensuration cycles). It may, however, be cancelled while iddat is in effect. Talaq-i-hasan: In this kind of talaq, the husband must say the word three times throughout the course of three subsequent tuhrs. There shouldn’t be any sexual activity at this time. Ila: The husband takes an oath to refrain from having sexual relations for four months, after which the marriage is dissolved. Zihar: The husband compares the wife to her sister, mother, or anyone else to an improper degree.
C. Divorce by Mutual Consent
This includes Mubarat, which means one of the parties proposes to dissolve the marriage since both parties want to end the marriage. The marriage is dissolved, and the divorce is finalised if the other party accepts the proposal; Khula which means when a wife agrees to give her husband the benefit of the doubt and end their union, it is seen as a mutual divorce. It also included Triple Talaq earlier but is not valid legally anymore.
Divorce as per Christian Law
When it comes to divorce, Christians in India are controlled by the Indian Divorce Act, of 1869, which states that either the husband or the wife may start the divorce process by filing a petition. The Indian Divorce Act of 1869 addresses a number of issues that may arise between the parties after a divorce, such as who will have custody of the child, how the parties’ property would be divided, and who will receive what. A Christian may seek a divorce decision in one of two ways, according to Section 10A of the Indian Divorce Act of 1869:
1) Mutual Divorce: By mutual consent, a Christian couple may file for divorce. The couple must have been living apart for at least two years before filing for divorce by mutual consent. They must provide evidence that they were not living together as husband and wife. The issues of child custody, child support, and property partition should be resolved amicably. If the couple is of the view that they have been unable to cohabitate for the stipulated period of two years or longer, they may simply file a divorce petition before the Court.
2) Contested Divorce: Either the husband or the wife may request a Decree of Divorce from the court. On the grounds of adultery, desertion without reason, one spouse not being heard from for at least seven years or presumed dead, renunciation of the world, ceasing to be a Christian, and willful denial of the marriage’s consummation, being of unsound mind, suffering from the incurable illness for more than two years, cruelty or when the husband is guilty of sodomy, cruelty or bestiality.
Divorce under Parsi Law
The Parsi Marriage and Divorce Act of the year 1936 governs divorce for Parsis in India. Any of the spouses may file for divorce and ask the court to issue a decree of nullity declaring the marriage null and void if the marriage cannot be performed owing to a natural cause.
According to Section 30 of the Act, either party may ask for the nullity of the marriage if such circumstances emerge that prevent the parties from consummating the marriage. Further, as per Section 31 of the Act, a marriage may be dissolved if one spouse has been missing or unheard for seven years or more, as determined by the spouse or by the person’s family.
Section 32 of the Parsi Marriage and Divorce Act specifies the following reasons for obtaining a decree declaring a marriage null:
- Willful reluctance to consummate the marriage.
- The other spouse was uninformed that the spouse was not of sound mind when they got married.
- The husband was not informed that his wife was pregnant when they were married. A couple may file for divorce two years after getting married if there has been no intercourse between them.
- Cruelty, adultery, forced prostitution, rape, inappropriate sexual behaviour, venereal illness, willful injury, and bigamy are among situations when a divorce may be granted within two years.
- One spouse has left the world or adopted a different religion.
- If either spouse is serving a seven-year sentence and one year has already elapsed.
Mutual divorce is also allowed under Section 32B, provided that no coercion or deception is used to acquire the consent of the other spouses.
Divorce is one of the most devastating occurrences that can happen to any marriage since it is a major life disruptor that may lead to a lot of stress—financial, emotional, and even spiritual. Due to the fact that divorce is a private matter, it is related to religion in India. Indian society is secular. There are people of various religious backgrounds living here, and when addressing personal matters of the party, the personal laws of the parties are given preference. However, violations of constitutional rights are not permitted, as was the case with triple talaq, where a man was granted complete authority to divorce his wife without acknowledging her preferences. As a result, the court abolished triple talaq since it treated women disproportionately.
Significant changes in India’s divorce laws have occurred during the past ten years, according to Indian society. However, there are diverse views on divorce throughout India. Even though divorce is now a more often used phrase than it ever was, our culture has not accepted it as it should.
Therefore, instead of making the painful decision to get a divorce and be happy, couples choose to keep quiet and work to make their marriages better. Instead of being seen as a decision taken by two people to live a better life, getting a divorce is still seen as a battle between good and wrong.
 Dr Roopa Trasia, Theories of Divorce under Hindu Family Law, Available Here
 Sonali Rana, Comparision and Study on the Provision and Practices Relating to Divorce among Hindus and Muslims in India, Available Here
 Advocate Chikirsha Mohanty, New Rules in Divorce Laws, Available Here
 Grounds of Divorce in India, Available Here
 Anushka, Divorce Law In India: Divorce Process In India, Available Here
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