Marriage is a sacred connection in diverse cultures and faiths. It is subject to a complex web of religious and secular laws. When marital discord unfolds, the surrounding legal framework for dissolution, or divorce, is where the ground gets bitter and hot. This comparative study analyzes the divorce laws of various major religions practised in India, comparing their similarities and differences and evolution over time. Hindu Divorce Laws There was no explicit recognition of divorce in traditional Hindu law. According to Manusmriti, marriage is a sacrament, an indissoluble union. However, the enactment of the Hindu Marriage Act of 1955 acted as a significant reform, which empowered various individuals to break free from their toxic marriages. Hindu Marriage Act of 1955 The Hindu Marriage Act of 1955 is a Hindu personal law that allows individuals to end their marriage. The law not only provides divorce laws but also holds the provisions for separation, maintenance, custody, annulment of marriage, etc. Grounds for Divorce - Section 13 of the Hindu Marriage Act of 1955 Section 13 of the Hindu Marriage Act of 1955 has the grounds for divorce. Adultery, cruelty, desertion, conversion, unsoundness of mind, leprosy, venereal disease, renunciation of the world and presumption of death are the grounds for divorce. Furthermore, apart from this, section 13 (2) provides exceptional grounds for divorce for the wife, which includes the presence of more than one wife if the husband is involved in any rape, sodomy case, or even no cohabitation for a year. Mutual Consent Divorce: Section 13 (B) of the Hindu Marriage Act of 1955 Mutual divorce permits couples to dissolve their marriage by mutual agreement following a period of separation. The court attempts to save their marriage by providing them with a cooling period of 6 months, which can be waived off in exceptional circumstances. Section 13(B) holds the provision for mutual divorce. Judicial Separation: Section 10 of the Hindu Marriage Act of 1955 Judicial Separation (Section 10) allows couples to separate with a legally binding contract while still married, granting reconciliation time. The grounds for judicial separation are cruelty, adultery, insanity, desertion, etc. Maintenance and Alimony: Section 24 of the Hindu Marriage Act of 1955 The financially dependant partner can be awarded maintenance. The court also determines the custody and maintenance of the child. The section 24 of the hindu marriage act empowers the dependent spouse to get maintenance from the other spouse. The Hindu Marriage Act has recently been amended to address the evolving social norms while enabling equality among genders. The provision of temporary maintenance is also mentioned in the Section 144 of BNSS. Muslim Divorce Laws There is no personal divorce law for Muslims. The marriage or nikah in Muslims is governed by their law, 'Shariat'. There is divorce under Muslim law, chiefly through the "Talaq." However, the methods and forms differ. Talaq-e-Ahsan- This form of divorce in Muslim law is most accepted and appropriate. Talaq-e-Hasan - This type of divorce allows the husband to say 'talaq' one a month for three months. Talaq-e-Biddat - This type of talaq is also called 'Triple Talaq'. Talaq-e-Biddat is a muslim practice which allows the husband to say the word 'talaq' three times. This form of talaq was declared illegal and void in India by the supreme court of India. Khula - Divorce by the wife through the return of dower or compensation. Mubarat - When the wife and husband both agree to separate, it is called mubarat. Faskh - The court's termination of a marriage for particular reasons, such as cruelty or impotence. This judicial separation is irrevocable. Maintenance or Iddat - A divorced Muslim woman can claim maintenance only during the "Iddat" (waiting period). Muslim Women (Protection of Rights on Divorce) Act, 1986 Judicial interpretations, as well as the Muslim Women (Protection of Rights on Divorce) Act, 1986, have dealt with the issue of maintenance beyond the Iddat period. The Muslim Personal Law (Shariat) Application Act of 1937 It governs the personal laws of Muslims in India. This divorce law contains provisions for custody, maintenance along with grounds for divorce, etc. Christian Divorce Law There are various laws governing Divorce for Christians. Christian Divorce laws in India are mainly covered under the Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872.The grounds for divorce for the Christian are adultery, conversion, cruelty, desertion, unsoundness of mind and leprosy. Maintenance and Alimony - Section 37 of Indian Divorce Act 1869 Section 37 of the Indian Divorce Act 1869 provides maintenance to the dependent spouse. Child Custody and Visitation - Guardian and Wards Act 1890 Child custody and visitation disputes are taken care of by the provisions of the Guardian and Wards Act 1890 and the India Divorce Act 1869. Parsi Divorce Law The Parsi Marriage and Divorce Act of 1936 governs the divorce matters of the Parsi community. The grounds for divorce are adultery, cruelty, desertion, conversion, unsoundness of mind and failure to consummate the marriage. The Divorce law also allows divorce by mutual consent.The divorce law also has provisions for Judicial Separation for the couples who want to live separately without ending the marriage. Similarities and Differences in the divorce laws India is a country with different cultures and communities. Therefore, the need to curate different divorce laws for different communities arises. But let's dive deep and understand the similarities and differences between the divorce laws of other communities. Grounds for Divorce Grounds of adultery, cruelty, and desertion are common across many religions. However, each ground is subject to interpretation and can be applied differently. Mutual Consent This is also consistent with the principle of mutual consent divorce recognized by most religions. Maintenance and Alimony All religions contain provisions for maintenance and alimony, which can, however, vary in the quantum and tenure. The alimony is provided to the dependent spouse so that they can maintain their lifestyle even after divorce or separation. Judicial Separation In many non-Muslim laws, a judicial separation, which gives the separation a legal imposition without giving a divorce, is a standard provision. Civil Marriages - Divorce Law The Special Marriage Act, 1954 governs the inter-religious marriages or for the couples who choose to get married in civil courts. Grounds of Divorce - Section 27 of Special Marriage Act, 1954 Adultery, Cruelty, Desertion, Mental Illness , Venereal Disease and Presumption of Death are the grounds of divorce mentioned in the Section 27 of the Special Marriage Act, 1954. Mutual Consent Divorce - Section 28 of the Special Marriage Act, 1954 Under Section 28 of the Special Marriage Act, 1954, couples can file for a mutual consent divorce if they want to legally end their marriage in a peaceful manner. The process must begin when a couple has lived apart for at least one year, and both accept it as the only possible outcome to their marriage. The couple submits a joint petition in the district court as the statements get recorded. The court then imposes a six-month “cooling-off” period, designed for contemplation and possible reconciliation. If not, and both parties still want a divorce after this time, they subsequently file a second motion. After confirmation, the court issues a divorce decree that legally ends the marriage. Maintenance and Alimony - Section 37 of the Special Marriage Act The Section 37 of the Special Marriage Act offers permanent maintenance and alimony to the dependent spouse for them to maintain a lifestyle even after the separation or divorce. Judicial Separation - Section 27(2) of Special Marriage Act The special marriage act, by section 27(2), provides for judicial separation and not divorce. With court approval, couples can live apart — but still be married. Divorce Laws - A step towards gender equality A focus on gender equality in divorce laws is essential, as many discriminatory practices need to be tackled. The judiciary has played a progressive role in ensuring gender justice. From maintenance and alimony to child custody and visitation rights, the divorce laws are there to empower individuals who suffer because of bad marriages. Evolution of Laws It is also constant with the idea that all religions-based personal laws have been subjected to changes and turbulent history from the time of birth to ideological changes through legislative and judicial steps. Adversities and the Road Ahead of Divorce Laws Uniform Civil Code (UCC)—The same applies to the UCC. The debate rages on whether to substitute religion-reliant personal laws with a common set of laws for all Indian citizens. There are various views towards the UCC, and it is a multifaceted subject. Access to Justice - The divorce law needs to guarantee the right to legal aid and affordable representation in family law matters, particularly for divorce. Reconciliation - More recently, the emphasis has increasingly been on mediation and counsel to encourage reconciliation and decrease divorce rates Conclusion There are various divorce laws in India. Each religion has its features, but there are also mainstream challenges for all faiths, with common themes and evolving interpretations. It wouldn't have been possible to balance these laws and maintain gender equality without the intervention of the Indian Judiciary. As you continue to read about the UCC, you will see that much of the debate over its implementation centres around conflicting ideas about religious versus secular law. As society progresses, divorce laws need to evolve as well to ensure that they align with contemporary social values and principles of equality and justice for everyone involved.
[caption id="attachment_1560" align="alignnone" width="2460"] Grounds For Divorce[/caption] Marriages are a union of two individuals keen on spending their life together. But when life throws curveballs, all the promises lose their significance, and cracks appear in the relationship. A lover’s spat, infidelity, desertion, constant bickering, and other incidents – cause trouble in paradise where couples end up seeking divorce to end the relationship once and for all. Not only that but sometimes either spouse chooses to file for divorce to get rid of marital obligations and responsibilities as well. In India, people follow personal laws in matters of marriage and divorce. Hindus rely upon Hindu Marriage Act, 1955 to seek dissolution of marriage. In this day and age, when more and more people are choosing to leave their spouse due to internal differences, it is crucial to understand grounds for divorce under Hindu law, special grounds that can be sought by the wife alone, and circumstances in which a couple can mutually apply for divorce. Divorce under Hindu Law A large section of Hindus viewed divorce as a threat to the institution of marriage. This thought developed from the teachings of Manu since according to him, a husband and wife could not break their marital tie. It could be broken only upon the death of either spouse. While marriage is considered an unbreakable bond in Hinduism, legislators understood the need to be at parity with changing times by keeping the law dynamic, and introducing the concept of divorce to Hindus via the enactment of the Hindu Marriage Act, 1955. The Hindu Marriage Act does not define the term ‘divorce’ explicitly but mentions that it means ‘dissolution of marriage’. Grounds for Divorce Section 13 of the Hindu Marriage Act, 1955 sheds light on the grounds of divorce. It contains 9 grounds upon which either spouse can file for divorce. Adultery Section 13(1)(i) of the Hindu Marriage Act discusses adultery as a ground for divorce. The provision states that if a married person cohabits with an individual other than his/her spouse in the course of the marriage, he/she will be said to have engaged in adulterous acts. The burden of proof lies on the petitioner. Initially, adultery was known as a crime as per section 497 of the Indian Penal Code. However, in the case of Joseph Shine v Union of India (2018), the Apex Court struck down the aforementioned section and stated that it is one thing to allow divorce on the grounds of infidelity but quite another to add the touch of criminality to the act of infidelity since it worsens the situation and complicates it further by interfering in a couple’s personal matter. A marriage is a personal matter between two individuals, and a law cannot punish a man for cheating on his/her spouse when the alternative of divorce is already available as a recourse. Cruelty Section 13(1)(i) of the Hindu Marriage Act discusses cruelty as a ground for divorce. The term ‘cruelty’ has not been defined explicitly in this section. Primarily, the courts have relied upon English cases to deduce the meaning of cruelty, and its meaning continues to evolve. However, cruelty to women has been discussed in Section 498A of the Indian Penal Code and treated as a criminal offence. In case, A. Jayachandra v Aneel Kaur (2005), the Supreme Court observed that cruelty can be both mental and physical. When assessing whether the conduct of one spouse is cruel or not, it is pertinent to determine whether such conduct would make the life of another spouse miserable to the extent that living together is next to impossible. Desertion Section 13(1)(ib) of the Hindu Marriage Act mentions desertion as a ground for divorce. Desertion means abandoning a spouse or petitioner without a just cause. If the petitioner has been abandoned by his/her spouse for two years preceding the presentation of the petition, then it can be one of the grounds for divorce. Not only that but if the petitioner’s spouse has refused to live with the partner out of the blue, and does not discharge his obligations towards the petitioner anymore, that shall also count as desertion. However, if the petitioner remains in touch with the spouse through electronic or physical means in the period of two years preceding the filing of the petition, he/she cannot claim divorce on this ground. Insanity Section 13(1)(ii) of the Hindu Marriage Act discusses conversion as a ground for divorce. Conversion denotes when a married Hindu man or woman adopts another religion such as Islam, Christianity, etc, and ceases to be a Hindu. If one spouse ceases to be a Hindu, the marriage falls apart since it ceases to meet the criterion of marriage by virtue of Section 5 of the aforementioned Act. Conversion Section 13(1)(iii) of the Hindu Marriage Act discusses insanity as a ground for divorce. Insanity means when the person is not in a mental state to make sound decisions for himself or to differentiate between right and wrong. A married man or woman who has a spouse suffering from incurable unsoundness of mind or who suffers continuously or periodically from any mental disorder can seek divorce under this ground. marriage falls apart since it ceases to meet the criterion of marriage by virtue of Section 5 of the aforementioned Act. Leprosy Section 13(1)(iv) of the Hindu Marriage Act discussed leprosy as a ground for divorce. It was stated that if the petitioner’s spouse was suffering from the deadly and incurable nature of leprosy, she/he has the burden of proof for seeking divorce on this ground. However, leprosy has been deleted from the definition as per Personal Laws Amendment, Act (2019) since it promotes unfairness towards individuals suffering from this disease. Venereal Disease Section 13(1)(v) of the Hindu Marriage Act discusses venereal disease as a ground for divorce. If a married man or woman suffers from a sexually transmitted disease that is both transferable and incurable, the spouse can seek divorce on this ground. Renunciation Section 13(1)(vi) of the Hindu Marriage Act discusses renunciation as a ground for divorce. When a married man or woman embraces holy order by renouncing the world, his/her spouse can seek divorce on this ground. However, the act of renouncing the world must be absolute. Presumption of Death Section 13(1)(vii) of the Hindu Marriage Act discusses the presumption of death as a ground for divorce. If a married man or woman has not been seen alive or heard from for 7 years by any such person who would have heard from him/her has she/he been alive, he/she shall be presumed to be dead. In such a situation, the spouse can seek divorce on this ground. Special Grounds for Divorce for Wife Section 13(1)(vii) of the Hindu Marriage Act discusses the presumption of death as a ground for divorce. If a married man or woman has not been seen alive or heard from for 7 years by any such person who would have heard from him/her has she/he been alive, he/she shall be presumed to be dead. In such a situation, the spouse can seek divorce on this ground. The Hindu Marriage Act provides for two special grounds under which a wife can file for divorce. These grounds are discussed as follows: Presence of more than one wife Section 13(2)(i) of the Hindu Marriage Act states that if a man had more than one wife living at the time after the commencement of this Act, a wife can file for divorce on this ground. However, the other wife should be alive at the time when the petitioner is presenting the petition in court. No divorce can be filed under this ground if the other wife had died before presenting the petition in court. The petitioner does not need to prove the existence of the first wife at the time of the second marriage using direct proof. Rape, Sodomy, or Bestiality If the husband engages in acts of rape, sodomy, or bestiality after the solemnization of marriage, the wife can seek divorce on this ground under section 13(2)(ii) of the Hindu Marriage Act. None of these acts can be condoned under any circumstances. More so, rape is a heinous crime, and a criminal offense under section 375 of the Indian Penal Code. No Cohabitation for 1 year after passing of maintenance award against husband If the maintenance award has been passed against the husband and no sexual intercourse takes place between them following the maintenance award for one year or more, the wife can seek divorce on this ground under section 13(2)(iii) of the Hindu Marriage Act. Divorce by Mutual Consent Section 13(B) states that if a husband and wife are living separately for one year or more and believe they have no chance of reconciliation under any circumstances, they can mutually file a petition for divorce before the Family Court. In the case of Sureshta Devi v Om Prakash (1992), the Hon’ble ruled that the parties could live under the same roof but should not have any relationship between husband and wife between them. Moreover, in the case Jayashree Ramesh Londhe v Ramesh Bhikaji (1992), the Supreme Court observed that either party could not choose to withdraw the petition once filed without the permission of the other since it was a joint petition filed mutually by the parties. Conclusion The legislative intent behind introducing ‘divorce’ under Hindu Marriage Act has stood the test of time since no provision allows for the filing of frivolous petitions. A husband or wife seeking divorce has to think it through before taking such a huge step since Courts demand proof, and the burden of proof lies on the petitioner only. The progressive approach of the legislators reflects in Section 13. Wives have the right to file petitions for divorce in some cases. Not only that, but the introduction of divorce by mutual consent has made it easier for cooperative and mature spouses to seek divorce without making it a mess for themselves and their families. While some partners may choose to file for divorce in a moment of impulse, the court has granted them a sufficient cooling period to reconcile with their partner in case they have a change of heart. It shows that Courts strive towards preservation of marriage and grant divorces in the matter only where subsistence of marriage between two parties would wreak havoc not only on the concerned individuals but affect their peace and deteriorate their quality of life.
Marriage, one of the cornerstones of traditional Indian society, has historically been conceived as a holy union. But in a time where social norms are shifting, and people want diverging things, many couples find themselves arriving at a crossroads trying to find a graceful way to dissolve their union. When a legal procedure is a bit complicated and involves emotions, it makes it very hard, and soon the couple wants to divorce, but mutual consent divorce in India helps to provide the most amicable route to dissolution. This clause not only reflects the changing attitudes around marriage today but also allows couples to more dignifiedly separate from each other without the protracted combat of a contested divorce. We will discuss the law regarding divorce by mutual consent in India in this article We examine the process in different religious and cultural contexts, explore the procedural specifics, look at the social implications, and consider how divorce by mutual consent is significant to contemporary India. Divorce by Mutual Consent Explained Divorce by mutual consent is a legal provision allowing both spouses to agree on dissolving the marriage. This route is for couples whose marital relationship is over but want to see their separation happen in an amicable way, without lengthy court battles or emotional toll. By filing a joint petition, the two parties wish to work out the conditions of their separation, which might involve property division, alimony and child custody. Grounds: Divorce by Mutual Consent in Other Religions in India The divorce by mutual consent laws differ concerning the religion of the parties in India, given the country's diverse cultural and religious background. Here's how mutual consent divorce works under various marriage laws: Hindu Marriage Act, 1955 Again, Section 13B of the Hindu Marriage Act, 1955, governs the divorce from mutual consent. It enables a married couple to divorce if they have been married for at least one year. The husband and wife must file a joint petition in the court to dissolve their marriage. After the petition is filed, however, there is a six-month waiting period that must run. The waiting period gives the couple time to reconsider their decision, not to mention allowing for the possibility of reconciliation between the parties if that is what they want. Muslim Law Muslim law recognizes two forms of mutual divorce , namely, Khula and Mubarak. Khula refers to the situation where the wife initiates the divorce but agrees to provide something to the husband in return, often in the form of a financial settlement. Mubarat, on the other hand, however, is when the husband and wife both agree to divorce. Both forms of divorce require agreement from both parties involved, but there is a subtle difference in the condition in which they are granted, depending on the party initiating the divorce. Special Marriage Act, 1954 For marriages registered under the Special Marriage Act of 1954, lifetime registrations tend to be inter-caste or inter-religious, and divorce by mutual consent is dealt with by Section 28. Under this provision, one of the spouses can petition for a divorce after living separately for a year. This law essentially gives a civil infrastructure to marriage and divorce so that even those from different religions have the same rights when officials go to break up a marriage. Divorce by Mutual Consent: A Step-Wise Process In contrast to a contested divorce, a divorce by mutual consent in India is generally an amicable process that enables a comparatively faster resolution. But it is still a detailed process involving legal, procedural, and emotional steps. Here'sHere's how it plays out typically, so let's discuss this procedure with the example of how it works as per the Hindu Marriage Act, 1955, even though the steps are practically same for other religious laws too. Filing the Petition This first step requires filing a divorce petition by mutual consent. The spouses need to be in sync about the divorce decision. The petition should contain details of the marriage itself, such as the grounds for divorce, any arrangements relating to child custody (if applicable), alimony, and division of property. The couple is also required to say they have been living apart for at least one year. The Cooling-Off Period There is typically a six-month Cooling-Off Period enforced by the court, which was between the filing of the petition. The waiting period is to allow for reconciliation and to give the couple time to consider their decision. The court may also order mediation or counselling in an attempt to resolve any lingering disputes at this stage. If the couple stands firm in wanting to get a divorce, the process moves to the next phase. The Cooling-Off Period can be waived in certain exceptional cases, which involve abuse, adultery, etc. Reaffirmation of Consent At the conclusion of the waiting period, both parties must re-verify their desire to get divorced. They need to appear in court and file affidavits affirming that their consent to divorce is genuine and voluntary. The court will also direct the couple to provide confirmation that they find terms of their agreement such as property division, child custodian and alimony fare and mutually agreeable. Court Hearing Upon reaffirmation, the court sets a hearing. The parties will attend the hearing in person to make sure they still want to proceed with the divorce. The couple will be interrogated separately by the court to make sure that it is a joint decision and that both sides are not under duress or duress. The court also checks that the euro divorce agreement is fair and that one side is not getting pounded or exploited. Decree of Divorce If both parties agree to the satisfaction of the court, the court grants the Decree of Divorce. If the decree is issued in court, it legally ends the marriage and makes official the terms you agreed on. The divorce is final, and both can go on with their lives. Any outstanding matters of a financial or legal nature should be concluded in accordance with the orders issued by the court. Key Points to Keep in Mind Divorce by mutual consent is generally the faster and less acrimonious route, but it also comes with some things you should really know: Consistency of terms: It is important that each party agree on all the terms before the divorce petition is filed and it concerns the topics of property division, alimony and child custody (where applicable).Disputes over these issues can complicate the process. If either one of the parties withdraws his or her consent during the waiting period or they both fail to show at the time of reaffirmation hearing, the divorce petition may be dismissed by the court. True Consent: The court pays particular attention to if the divorce is being entered by both parties freely, and with any coercion or undue influence. The petition can be rejected if the court has doubts about the consent being genuine. Societal Implication of Divorce by Mutual Consent The introduction of divorce by mutual consent has several beneficial aspects both for the individual and the society. In a land like India, where divorce still carries a considerable stigma, the introduction of this option is a more humane and less confrontational solution to a decaying marriage. It also enables couples to separate without the emotional burden of a contested divorce. In addition, the approach encourages respect for one's autonomy, enabling each party to come to an informed decision about their married life. In some instances it also stops long-lasting bitterness or acrimony, allowing both to continue on with their lives in a healthier less confrontational way. Despite this, divorce by mutual consent is seen as sensitive in many communities, particularly rural neighbourhoods and conservative areas. Due to social stigma and cultural beliefs about marriage and divorce, many people are reluctant to pursue divorce until it is absolutely necessary for both parties. To ease this challenge, the legal system is working itself through provisions such as mutual consent divorce to make divorce a less daunting task and more approachable. Conclusion That being said, divorce by mutual consent in India provides a systematic and simplified way for couples who want to end their marriage peacefully. It recognizes individual freedom while encouraging an equitable dissolution process. However, despite the societal challenges with divorce, there was a positive shift towards progressive law in India. It offers a balanced, compassionate alternative to contested divorces and empowers individuals to make decisions that serve their emotional health, financial security, and future happiness. As such, divorce by mutual consent carries not just the potential for a more amicable end to a marriage under this legal umbrella but also indicates a further evolution in how society perceives marriage and separation as attitudes towards self-determination in the institution of marriage evolve.
