Marriage and Divorce Laws in India-Article.

Introduction of Marriage & Divorce in India.

Marriage is the socially sanctioned way for coming together of two individuals, who enter into a relationship with a promise to spend their lives together. In its narrow sense, marriage is primarily a way of regulating human reproduction by bearing children. However, in modern societies, the meaning of marriage has assumed a wider scope, wherein the main aim is not just procreation, but also serves as a mode of companionship, and more importantly, provides emotional and psychological support to the married couple. The Indian society, being home to people of various faiths and beliefs, has equally different notions of marriage. For Hindus and Christians, marriage is a sacrament, while in Muslims, marriage assumes the form of a contract. Despite being held in high regard, marriage between two individuals does not guarantee that the relationship will survive forever and that all will be well and good in the future. Many a time and especially in present-day modern society, the vagaries of life, changes in the attitude of individuals, and failure to give attention to their partner are resulting in more and more cases of divorce taking place in our society. Divorce is an emotionally tearing experience and often ends on a sour note. It not only involves the dissolution of marriage, but also raises questions regarding custody of the child, partition of property, and matters relating to alimony. Therefore, it becomes important to be aware of the laws that govern divorce and issues related to it. The law governing Divorce in India is compartmentalized based on the faith of the people seeking Divorce. While the Hindus (including Buddhists, Jains and Sikhs) are governed by the Hindu Marriage Act, 1955, the Christians are governed by the Divorce Act, 1869. Whereas, Muslims have their own separate set of personal laws based on the principles of Shariat. This article attempts to make an honest attempt in this regard.

Understanding the meaning of Divorce

The word Divorce traces its origin from the Latin term Divortium meaning to separate. The Black’s Law Dictionary defines Divorce as “The legal separation of man and wife, effected, for cause, by the judgment, of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties”. In a legal sense divorce means cessation of matrimonial bond. A decree of divorce is an end to the marital bond and the parties no longer remain husband and wife. It is at this time, that it becomes important to differentiate between Divorce and Judicial Separation. Both result in a break in marriage, but they differ in nature and substance.

Theories of Divorce under Indian Laws

1. Fault Theory: This theory is based on the principle of guilt. This theory necessitates one guilty party along with one innocent party, and a cure of divorce can only be filed by an innocent party. The guilty party is alleged to be at fault which includes Adultery, Cruelty, Desertion, Insanity, etc. This theory is covered by Section 13(1) of the Hindu Marriage Act, 1955.
2. Will Theory: As the name suggests, this theory postulates that dissolution of marriage can take place at an individual’s will. There can be any reason given for separation. This theory is more prevalent in Mohammedan Law.
3. Consent Theory: This is one of the more civilized manners of separation, wherein, parties to the marriage, instead of leveling accusations and counter-accusations, mutually agree that their good lies in separation and they give consent to such dissolution. This theory has legal backing in the form of Section 13B of the Hindu Marriage Act, 1955.

       Divorce among Hindus as per Hindu Laws

• Who can file for divorce: The petition for Divorce can be filed by any one of the spouses, i.e., either the Husband or the Wife as per Section 13(1) of the Hindu Marriage Act, 1955.
• Where can the divorce petition be filed: As per Section 19 of the Act, five options have been provided to parties regarding the place for filing a divorce. These are:

1. The place where the marriage took place or was solemnized.
2. The place where the respondent (other party) resides.

• The place where the Husband and Wife last resided together. It is important to note here that only places of permanent stay will be considered for this purpose. For ex: If the Couple lives in Delhi, and goes on vacation in Jaipur, then the place for filing Divorce will be Delhi and not Jaipur.

1. If the petitioner (the party that is filing for divorce) is a woman, she can do so at the place where she resides.
2. The place where the petitioner resides, (a) if the person she/he is seeking a divorce from resides outside the area where the Hindu Marriage Act is applicable, or (b) if the person she/he is seeking a divorce from has not been heard of since past seven years or more.

• What are the grounds for Divorce: The grounds relating to Divorce have been provided under Section 13 of the Hindu Marriage Act, which can be divided in the following categories:

1. Adultery: This ground has been provided for under Section 13(1)(i) and states that any voluntary sexual intercourse with any other person than his/her spouse. It does not matter how many times such intercourse took place. Even once is enough to file the divorce petition. In the case of Sanjivani Ramchandra Kondalkar v. Ramchandra Kondalkar (2016), the Hon’ble Bombay HC has held that if charges of Adultery are proven against the wife, she is not entitled to maintenance.
2. Cruelty: Provided for under Section 13(1)(i-a) it says that any of the spouses can file the divorce petition if he/she is subjected to cruelty of any kind at the hands of the spouse. Cruelty can take any form such as physical and mental. The Hon’ble Courts have considered making false allegations against a spouse to affect his/her job as Cruelty as in the case of Thalraj v. Jyoti, (Bom HC 2015) while, in the case of Major Frank Ralston Samuel Raj v. Kezia Padmini Swarna Pandian, (Mad HC 2016), the Hon’ble Court held that unilateral refusal to consummate marriage amounts to mental cruelty. While Dowry demand was considered as constituting in the case of Shobha Rani v. Madhukar Reddy (1988) by the Hon’ble Supreme Court.

• Desertion: Section 13(1)(i-b) provides that the divorce petition may be presented by either party if the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The term desertion has not been defined in the Act, but it means withdrawing from marital obligation. It is the intentional abandonment of one spouse by another without any reasonable cause and the consent of the other. Willful neglect of the spouse is also covered under Desertion.

1. Conversion: Section 13(1)(ii) enunciates that a divorce petition may be presented by either party if the other party has ceased to be a Hindu by conversion to another religion. However, conversion does not automatically result in divorce. The party who has converted is not allowed to file a divorce petition.
2. Unsound mind or mental disorder: Section 13(1)(iii) provides that a divorce petition may be presented by either party if the other party has been of unsound mind or has been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. The expression mental disorder is mental illness, arrest or incomplete development of mind, psychopathic disorder, or any other disorder or disability of mind and includes schizophrenia. The Hon’ble SC in the case of Ram Narayan Gupta v. Shrimati Rameshwari Gupta (1988) held that the degree of mental disorder must be such that the spouse seeking relief cannot reasonably be expected to live with the other.
3. Spouse suffering from Venereal Disease: If a spouse is suffering a disease of contagious nature that spreads with sexual intercourse, the other spouse can approach the court with a divorce petition. Provision for this has been provided under S.13(1)(v).

• Renunciation of the world by joining religious order (Sanyaas): If any of the spouses joins any religious order and thereby or thereafter renunciates the world, the other spouse gets the ground of divorce. Renunciation or Sanyaas is considered to be a Civil Death under Hindu Laws. This has been provided for under S. 13(1)(vi).
• Presumption of Death: If one of the spouses has not been heard of as being alive for a period of seven years or more by those persons who would naturally be expected to have heard of it, had that party been alive, then it becomes a ground for Divorce as per S. 13(1)(vii).
• Grounds that are available only to the wife:

1. Bigamy by Husband: If a husband was already married before this act came into force and then marries again, then any of the wives may file for divorce, provided that both the wives are alive at the time of presenting the petition. This has been provided for under 13(2)(i).
2. Rape, Sodomy, and Bestiality by Husband: If any husband is found guilty of Rape, Sodomy (having sex with a person other than of the opposite sex), or Bestiality (sex with an animal), then it gives ample ground for his wife to move the court for dissolution of marriage by filing the divorce petition. This has been provided for under S.13(2)(ii).

• No cohabitation and maintenance decree against husband: Section 13(2)(iii) says that if a ‘Maintenance decree’ against the husband has been passed under 125 Cr. P.C or Sec. 18 Hindu Adoptions and Maintenance Act and if there has been no cohabitation between the husband and wife for more than one year period then the wife can file a divorce petition.

1. Wife less than 15 years old at the time of marriage: If the marriage was solemnized when the wife was less than 15 years old and she repudiated the marriage before she turned 18, then this also becomes a valid ground for filing of divorce petition as provided for under Se.13(2)(iv).

• Some other grounds:

1. Absence of cohabitation or conjugal relations: If there is no resumption of cohabitation for one year or more after the passing of the Judicial Separation Decree, or there has been no restitution of Conjugal rights for one year or more after passing the decree then it provides a ground for separation by filing the divorce decree. S. 13(1A) provides for this ground of divorce.
2. Divorce by mutual consent of husband and wife: There are situations when both Husband and Wife accept the fact that their marriage is beyond repair and that it is interest of the two that they must separate. In such a situation, S. 13(B) of the Hindu Marriage Act provides that they can jointly file a divorce petition before a court to dissolve their marriage. However, following essentials must be satisfied:
3. Both the parties must be living separately for a period of one year or more
4. Both parties have not been able to live together and have mutually agreed that the marriage should be dissolved
5. Both parties should present a joint petition for dissolution of marriage by mutual consent
6. After the presentation of the petition the parties need to wait for a minimum period of six months
7. After the expiry of the said period, which is at least 6 months and not more than 18 months, the parties will again make a motion before the court.
8. If the court is satisfied that the marriage was solemnized and the averments in the petition are true, then it will pass the decree of divorce by mutual consent
9. However, the consent in the divorce by mutual consent should not be obtained by force, fraud or undue influence.

• Irretrievable breakdown of Marriage: The Hon’ble SC recently in the case of Shilpa Sailesh v. Varun Sreenivasan (2023) has held that it can use its extraordinary discretion by virtue of Article 142 of the Indian Constitution by granting couples divorce who are trapped in ‘bitter marriages’. If a marriage is wrecked beyond hope of salvage, the public interest lies in recognizing this real fact. Therefore, SC can grant a divorce in cases of ‘irretrievable breakdown of marriage’. However, this extraordinary power of the Supreme Court is to be exercised with great care and caution as granting divorce is not a right but a discretion. The facts must establish that the marriage has completely failed and there is no possibility that the parties will cohabit together.

1. Divorce based on Customs: Section 29 of the Hindu Marriage Act reads as, nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act, thereby giving accreditation to dissolution of marriage based on customs of the particular community to which the couple belongs.

Divorce among interfaith couples

Marriage among Hindus is governed and regulated by the Hindu Marriages Act of 1955, while in Muslims, it is done so by personal laws. But what if the couples belong to different religions or faiths? Such marriages are governed, regulated, and recognized by the Special Marriage Act (SMA) of 1954.  The SMA enables marriage between inter-faith or inter-caste couples without them giving up their religious identity or resorting to conversion. The law also provides for grounds for divorce or dissolution of such marriages. The grounds are same to those of the Hindu Marriage Act, with one addition that a divorce petition may also be filed by one party, if the other party is undergoing a sentence of imprisonment for seven years or more for an offence, which is cognizable and non-bailable in nature as defined in the Indian Penal Code. The grounds relating to Divorce have been covered under Section 27 and 28 of the Act.

Divorce among Muslims and related laws

Marriage among Muslims is considered as an ‘ibadat’. However, it is also true that marriage among Muslim is a civil contract as it is meant for the procreation of children and for legalizing sexual intercourse. Marriage is enjoined upon every Muslim, and celibacy is frequently condemned by Mohammed. However, among Muslims also, there are instances when the married couple is no longer able to survive in the company of the other due to various reasons, then there is no option left but to go for divorce. When it comes to matters relating to Divorce under Muslim law, the divorce may take place by the act of parties themselves or through a decree of the court of law. Talaq is an Arabic word and its literal meaning is “to release”. The correct law of Talaq as ordained by the Holy Quran is that (i) Talaq must be for a reasonable cause; (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one from the wife’s family and the other from the husband. If an attempt fails, talaq may be affected.The dissolution of marriage under Muslim law can be done in following ways:

• On instance of the Husband

1. Talaq ul Sunnat: Talaq-ul-Sunnat is regarded to be the approved form of Talaq. It is a revocable form of talaq because in this form, the dissolution of marriage does not take place at once. There is a possibility of compromise and reconciliation between husband and wife. It is further divided into two types:
2. Talaq – e – Ahsan: ‘Ahsan’ means best or most proper. Under Talaq-e-Ahsan, the husband must pronounce divorce in a single sentence when the wife is in a state of ‘purity’, that is, not menstruating. The divorce is then followed by a period of abstinence, known as iddat. The duration is ninety days or three menstrual cycles or three lunar months. If the couple resumes cohabitation or intimacy within the period of iddat, the pronouncement of divorce is treated as having been revoked. Thus, ‘talaq – e – ahsan’ is revocable. On the other hand, if there is no resumption of cohabitation during this period, the divorce becomes final and irrevocable.
3. Talaq – e – Hasan: This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there is a provision for revocation. But it is not the best mode because evil words of Talaq are to be pronounced three times in the successive Tuhrs or the period of purity between two successive menstruation cycles.

2. Talaq ul Biddat: It is a kind of divorce that is usually practiced in Islam in a wide range. It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it becomes effective as soon as the words (utterance of the word ‘talaq’ three times in one go) are pronounced and there remains no possibility of reconciliation between the parties thereby making it irrevocable. The man need not a proper reason for the divorce and wife need not to present at the time of pronouncing of talaq. The Hon’ble SC in the landmark case of Shayra Banu v. Union of India (2017) held this form of talaq to be unconstitutional and therefore invalid.
3. Ila: In ila, the husband takes an oath not to have sexual intercourse with his wife. Following this oath, there is no consummation for a period of four months. After the expiration of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, ila is canceled and the marriage does not dissolve.
4. Zihar: In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister, etc. “The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period, Zihar is complete. After the expiry of the fourth month, the wife has the following rights:

• She may go to the court to get a decree of judicial divorce
• She may ask the court to grant the decree of restitution of conjugal rights. Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce.

• On instance of the Wife

1. Talaq – e – Tafweez: Under this form of Talaq, the Husband delegates his powers of divorce to any other person, including wife. It give rights to women to divorce their husband without going to the court. This form of delegated divorce is usually stipulated in prenuptial agreements. Delegation of power to divorce may be made even in the post-marriage agreements. Thus, where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, she will have a right of pronouncing divorce on herself, and such an agreement is valid, and such conditions are reasonable and not against public policy.
2. Khula: It is a kind of conditional divorce in which the wife has the liberty to purchase her freedom from her husband. If a woman decides not to live with her husband and doesn’t want to share her life with her husband, she can go with the solution of Khula where she pays some consideration to her Husband and the Husband accepts such consideration and pronounces her free.

• Dissolution by Mutual Consent

1. Mubarat: Mubarat is also a form of dissolution of a marriage contract. It signifies a mutual discharge from the marriage claims. In mubarat the aversion is mutual and both the sides desire separation. Thus, it involves an element of mutual consent. In this mode of divorce, the offer may be either from the side of wife or from the side of the husband. When an offer of the mubarat is accepted, it becomes an irrevocable divorce and Iddat is necessary.
2. Khula: Sometimes, Khula (as discussed above) also falls in the category of dissolution of marriage by mutual agreement as Husband delegates his power to his wife, and then wife uses that power to affect dissolution of marriage.

• Dissolution by Court

1. Lian: If the husband levels false charges of unchastely or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called lian.

There are three conditions of Iian:

1. The state of marriage between the spouses should be continuing.
2. The marriage contract must be valid.

• The husband must be liable to be a witness and not to have been given the punishment of false accusation.

2. Fasak: It is a dissolution of Islamic marriage that commences in a court on the application of the wife. This kind of divorce is available if the husband and wife mutually do not give consent on the same, and if the husband refuse to give talaq it is prohibited for a husband to unreasonably refuse to grant talaq to his wife so, Fasak is the option for wife to seek divorce in such circumstances.

Divorce among Christians

Divorce among people of the Christian faith is regulated by the Divorce Act, 1869 as it stands amended in 2001. Grounds for Divorce have been covered under Section 10 of the Act, which provides for the following grounds:

1. One of the parties has committed adultery.
2. One of the parties has ceased to be Christian by conversion to another religion.
3. One of the parties has been of unsound mind incurably continuously, at least for the past two years.
4. One of the parties has been suffering from venereal disease, at least for the past two years.
5. One of the parties has not been heard of as alive for the past 7 years by any of the person who would reasonably be expected to have heard about it.
6. One of the parties has willfully refused to consummate the marriage and as a result of which the marriage has not been consummated.
7. One of the parties has failed to comply with the decree of restitution of conjugal rights for two years after passing the decree.
8. One of the parties has deserted the petitioner for at least two years immediately preceding the presentation of the petition.
9. The petitioner has been treated by the respondent with such cruelty, so as to create in his mind reasonable apprehension that it would be harmful or injurious to continue living with him.
10. Petition may also be presented by wife if the husband has been guilty of rape, sodomy, or bestiality.

Additionally, as per Section 10(A), a petition for Divorce may also be filed jointly by both Husband and Wife mutually, on grounds that they have been living separately for at least two years and not have been able to live together and that they have mutually agreed that their marriage should be dissolved.

Conclusion

Marriages are one of the most sacred aspects of Indian traditions and values. They give validity to relationships between two individuals. It’s in the public interest of the country that the fullest efforts must be made by the parties to the marriage and the state to see that marriages succeed.  However, there are cases when couples are not able to coexist due to various reasons. Sometimes, it may be the act or omission on the part of the Husband, while sometimes the Wife can be held guilty. The reason can be adultery, cruelty, impotency, venereal disease, desertion, etc. India being a melting pot of people of various faiths, beliefs, and customs, has different sets of laws governing divorce. Despite this, the object of lawmakers in all the laws governing divorce has been to provide uniformity when it comes to grounds for Divorce. Special attention is given to the plight of women, who might be exploited at the hands of their husbands to seek separation by making the Husband liable for his fault. Where the law is silent or has not sufficiently addressed any issue, the Courts have been forthcoming to fill those gaps. One of the hallmarks of democracy is that every pillar of the State plays its role to see that there is an end to the plight of individuals and they can seek redressal from the sufferings of their lives. The Divorce laws in India have been able to more or less take care of this side of the societal issue.