DIVORCE UNDER HINDU AND MUSLIM PERSONAL LAWS BY AASTHA ANANYA

Divorce is derived from the Latin word “Divortium” which means to turn aside or to separate.

In this article, divorce under Hindu Law and Muslim Law shall be discussed. The article would contain precise and crisp information about the different types of divorce explained under Hindu as well as Muslim Law.

 Read Now: Compulsory Mediation in Divorce Cases

HINDU LAW

Section 13 of Hindu Marriage Act, 1955 talks about Divorce. Theories of Divorce under Hindu Law-

  • Fault Theory
  • Consent Theory
  • Breakdown Theory

FAULT THEORY

The following are the grounds for divorce under this theory-

  1. Adultery : Section 13(1)(i)
  • Petition presented by either husband or wife
  • The other party has after solemnization of marriage had voluntary sexual intercourse with any person than his or her spouse
  • Burden of proof is always on the person alleging the same
  • Evidence may be direct evidence or circumstantial evidence which establishes preponderance of probabilities
  • CaseG.Dastane v. Dastane (AIR 1958 SC 441)

In the case where it was found that the wife occupied the same room in a hotel with the respondent under an assumed name, it was held that her conduct as shown by the evidence was sufficient to justify the conclusion of her having committed adultery. It is not essential that the factum should be proved beyond reasonable doubts.

  1. Cruelty : Section 13(1)(ia)
  • The concept is very subjective- varying with time, place and persons
  • The marriage may be dissolved if the other party has after solemnization of marriage treated the petitioner with cruelty
  • No conditions as regards nature, fear of injury or harm

CaseBajrang Gangadhar Ravedkar v. Pooja Bajrang Ravedkar (AIR 2010 Bom.8 at13)

The court held that husband’s plea of cruelty was nothing but his imagination as instances for husband’s petition for divorce alleging cruelty by wife alleged to establish her cruelty were a day to day quarrels over trivial matters; the fact that the wife makes her grievance in loud noise was not cruelty.

  1. Desertion : Section 13(1)(ib)
  • It is not withdrawal from place but state of things
  • It is total repudiation of marital obligation
  • Elements of desertion – Factum of separation, Animus Deserted or intention to bring cohabitation permanently to an end, without consent of petitioner, without reasonable cause, continuous for prescribed statutory period of 2 years
  • CaseBipinchandra Jai Singhbai Shah v. Prabhavati(AIR 1957SC176)

It was a case under the Bombay Hindu Divorce Act, 1947, the court lucidly defined and explained the concept of desertion. It held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.

  1. Conversion : Section 13(1)(ii)
  • It does not automatically affect a marriage tie i.e. ipso facto does not dissolve the marriage.
  • It is the non-convert spouse only who can seek matrimonial relief on this ground i.e. a spouse who gives up Hinduism and adopts another faith cannot go to the court and seek any relief on this ground. This is barred even under the provisions of Sec. 23(1) (a) viz. that the petitioner cannot be allowed to take advantage of his or her own wrong or disability. (Suresh babu v. V.P.Leela AIR 2007 (NOC) 285 (Ker))
  1. Unsoundness: Section 13(1)(iii)
  • Either spouse has been incurable of unsound mind or has been suffering continuously to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
  • Prior to 1976 – mental disability should not have been less than 3 years
  • After 1976 – No duration mentioned
  • CaseSudhir Singhal v. Neeta Singhal (AIR 2001 del)

It was held that mental disorder cannot be equated with psychological depression.

  1. Leprosy and Venereal Disease : Section 13(1)(iv) and Section 13(1)(v) respectively
  • Leprosy should be Virulent or Incurable
  • Venereal disease should be communicable
  1. Renunciation of World: Section 13(1)(vi)
  • Complete and final withdrawal from worldly affairs by entering into a religious order or ascetic
  • Two requirements-
  • Renunciation of world by defendant
  • Entering into holy order of life by him/her
  1. Presumption of Death: Section 13(1)(vii)
  • A person is presumed dead if not heard as alive for 7 yrs or more by those persons who would naturally have heard of him had he been alive
  • No spouse can presume himself as widow/widower
  • If second marriage performed without dissolution of marriage then no person other than missing spouse can challenge it
  • Burden of Proof on the concerned persons who alleges so

CONSENT THEORY

To prevent mockery out of each other and not defame each other, divorce is by mutual consent. Mentioned under Section 13 B (inserted by 1976 amendment). The requirements are –

  • Parties living separately for period of at least 1 yr
  • They have not been able to live together
  • Mutually agreed to dissolve marriage

Further, a) If petition not withdrawn then on motion of both parties, made not earlier than 6 months after date of petition & not later than 18 months after this date, the court shall proceed with it, b) Court before passing decree must be satisfied itself after hearing both the parties & making requisite inquiries that averments made in petition are true, c) The court must also satisfy that such consent has not been obtained by force, fraud or undue influence.

BREAKDOWN THEORY

When the marriage is a broken nutshell and nothing is left then the marriage is dissolved. It represents the modern view of divorce. It can be simply defined as such failure in the matrimonial relationship or such circumstances adverse to that relation that no reasonable probability remains for the spouses again living together as husband and wife. In the case of Yousuf v. Sowramma (AIR 1971 Ker 261) learned judge said: “while there is no rose which has no thorns But If You Hold Is All Thorn And No Rose Throw It Away. The ground for divorce is not conjugal guilt but the breakdown of marriage.” Also, in Law Commission of India, 71st report, Reforms of Ground of Divorce it was said that “The empty shell is to be destroyed with the maximum fairness and minimum bitterness, distress, and humiliation.”

MUSLIM LAW

BY DIVORCE

By Husband

  • Talaaq(Repudiation)
  • Ila
  • Zihar

TALAAQ

  • Means repudiation or rejection
  • Comes from a root “TALLAQA’ meaning to release an animal from the tether.’ ‘Free wife from the bondage of marriage.
  • Condition of valid talaaq –
  • Capacity: every Muslim husband of
  • sound mind
  • attained the age of puberty
  • talaaq by a minor is void and ineffective
  • insane husband – Qazi or judge
  • Free Consent

Pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc.

  • Shia law – is valid and dissolves the marriage
  • Sunni law – is void and ineffective
  • Formalities
  • Shia law – Intention is essential, Communicated in writing is not valid unless husband is physically incapable of pronouncing
  • Sunni law – No proof of intention required, presence of wife not necessary; maybe signed in presence of Qazi/wife’s father/any other person
  • Presence of wife/witnesses
  • Shia law – Presence required
  • Sunni law – Not essential only wife name required
  • Two types– i) Talaq-ul-sunnat
  1. ii) Talaq-ul-biddat

Talaq-ul-sunnat

  • Affected in accordance with dictates/traditions of Prophet
  • Ahsan talaaq – i) Husband makes single pronouncement
  1. ii) Pronouncement must be in state of purity (tuhr period)

iii) Abstain from conjugal relation for period of iddat

  • Hasan talaaq – i) Three successive pronouncements
  1. ii) No conjugal relation to be maintained during three periods of tuhr

iii) Irrevocable on the third pronouncement

Talaq-ul-biddat

  • Sinful form of divorce
  • Maybe in writing
  • Not recognized in Shia law

ILA (Vow of Continence)

  • Essentials – i) Husband must be sound mind & major
  1. ii) Swears by god or takes a vow

iii) Not have sexual intercourse with his wife

  1. iv) Abstains from sexual relations with his wife for 4 or more months
  • Marriage is dissolved irrevocably
  • Legal proceedings required only under Shia law
  • Not valid in India

ZIHAR (Injurious Assimilation)

  • Husband compares his wife with a woman within his prohibited relationship e.g. mother, sister etc.
  • Wife has right to refused sexual relation unless husband expiated himself from penance prescribed by law such as: feeding a slave; fasting for 2 moths; feeding poor etc.
  • Legal consequences – i) Sexual relation becomes unlawful and ii) Husband is rendered liable to expiation by penance
  • Such form of divorce has become obsolete

By Wife

  • Talaaq-i-tafweez
  • Lian
  • Fask
  • Khula

TALAAQ-I-TAFWEEZ

  • Recognised among both, Shia and Sunni
  • Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person either absolutely or conditionally, temporarily or permanently
  • Delegation – made distinctly in favour of the person to whom the power is delegated, purpose of delegation must be clearly stated
  • The most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court
  • Case – Mohd. Khan v. Mst. Shahmali AIR 1972 J&K 8

LIAN (False charge of Adultery)

  • Amounts to character assassination
  • Husband (adult & sane) makes false charges wife of adultery or denies paternity of her child
  • Does not ipso facto dissolved marriage

FASK (Cancellation of marriage)

If the husband and wife both come to a conclusion that they cannot live together then the Qazi can terminate the marriage. The lady can approach the Qazi for dissolution of marriage.

KHULA (On request of Wife)

Three conditions –

  • There must be an offer of divorce from the wife
  • The offer must be accepted with the consideration (evaz) for the release
  • The offer must be accepted by the husband

Consideration can be anything that can be given as dower.

By Mutual Consent –

  • Known as Mubarat
  • Both parties to marriage desired separation
  • Denotes act of ‘freeing one another mutually’
  • Offer from either side i.e. husband or wife
  • When offer accepted it becomes irrevocable
  • Iddat is necessary
  • All mutual rights and obligations come to an end in Sunnis

Also, Dissolution of Muslim Marriage Act, 1939 provides various grounds wherein A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, namely –

  • That the whereabouts of the husband have not been known for a period of four years
  • That the husband has neglected or has failed to provide for her maintenance for a period of two years
  • That the husband has been sentenced to imprisonment for a period of seven years or upwards
  • That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years
  • That the husband was impotent at the time of the marriage and continues to be so
  • If the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease
  • That the husband treats her with cruelty – i) Aboobacker v. Mamu koya ii) Itwari v. Asghari

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