This article is written by Lakshay Kumar , a second-year B.A.LLB student of Delhi Metropolitan Education, Indraprastha University and Ayushma Sharma of Faculty of Law, Aligarh Muslim University. In this article, they have covered the whole topic of Divorce system in India and how do people of various religions seek divorce according to their own religion.
Table of Contents
Divorce is one of the most difficult phases of life that a married couple goes through. In India, since divorce is a personal matter, it is connected with religion. The Hindu Marriage Act,1955 governs the divorce for the Jains, Sikhs, Hindus and Buddhists. The divorce laws of Muslims are governed by Dissolution of Muslim Marriage Act,1939 , the Parsis by Parsi Marriage and Divorce Act,1936 , and Christians are governed by the Indian Divorce Act,1869 . All inter-community marriages are governed by the Special Marriages Act,1954 .
In case a couple wants a divorce then they have to follow the following steps:
The documents required for the filing of divorce petition for a contested divorce are:
Generally, the charges for filing a divorce case is not too much, however, the lawyer who engages to fight a divorce suit might charge for the services he has given. The lowest cost to fight a divorce suit is around ten thousand and the maximum might go is around ten lakhs.
The Procedure for filing a divorce case in India is regulated by the Code of Civil Procedure,1908 . The procedure of initiating a divorce case starts by filing a petition for seeking divorce either by the husband or wife, and then, it is accompanied by an affidavit from both the parties. The petition for seeking divorce must state the following details:
According to Section 10 of the Indian Divorce Act, 1869 after the solemnization of marriage the District Court can, based on the petition filed by either the husband or wife, can dissolve the marriage on the ground that the respondent :
The court has the jurisdiction to dismiss any petition of divorce if it feels that divorce cannot be granted. The grounds on which a petition of divorce can be dismissed are mentioned below:
It is up to the court to decide whether to pass a decree for dissolving the marriage. If the court finds that enough pieces of evidence have been presented to pass a decree for dissolving the marriage, then, the court will pass the decree but if the court is not satisfied with the evidence then it will not pass a decree. The court will not pass a decree for dissolving the marriage under the following grounds:
In case of every decree passed by the District Court either in favour of the petitioner or respondent, the decree so passed has to be verified by the High Court of that state. The High Court has full authority to examine the decree passed and if the bench of the High Court consists of 3 judges then the decision of the majority would prevail, and if there are two judges then, in that case, the judgement of the senior judge would be taken into consideration. High Court also has the power to direct the concerned authority to collect additional evidence or examine the proofs again. The result of the enquiry held would be communicated by the District Judge to the High Court and the High Court, after examining the enquiry, would pass the order of dissolving the marriage.
The husband or wife can approach the High Court or the District Court to seek divorce by declaring their marriage null and void. After looking at the petition the concerned Court may pass an order declaring the marriage null and void under the following situations:
If people think that the easiest way to get a divorce in India does not involve law or through out of court settlement, then, there is no such way. To get a valid divorce law has been involved. So, amongst all those divorce laws that have been provided with the most straightforward procedure, the easiest one is according to Section 13B of the Hindu Marriage Act, 1955 . As already mentioned, it is the provision of divorce sought with mutual consent. It is really important that parties have some agreements on issues because it helps the court in carrying out the divorce procedure at a much faster pace, also both the parties suffer from less emotional trauma. Having understanding on issues makes the procedure less complicated which in other circumstances is much more complicated since everything is decided by the court. There is no such provision that guarantees that the procedure for the decree of divorce will be completed within this time limit. In some cases, it will take less time than the time taken in other cases. But the one thing that helps to get a divorce in an easy and less complicated way is the understanding of the parties on issues like, child custody, child support, alimony, etc.
When both the husband and wife mutually consent to end their marriage, then, in that case, the married couple can seek a divorce from the courts. However, the court will not automatically dissolve the marriage. So that the petition for divorce is accepted, it is necessary to show that the couple has been living separately for over a year or two.
Sometimes, a petition for divorce may be applied not because there is some problem between the husband and wife, but because of some financial problems and the couple is not able to sustain their livelihood. In such cases, the couple can seek divorce with mutual consent.
There are three aspects between a husband and a wife when they are seeking divorce:
Various laws have different periods specified for the completion of procedure of divorce. According to Section 13B of the Hindu Marriage Act,1955 , to initiate the divorce proceedings it is necessary that both the husband and wife must be living separately for a minimum period of one year. However, for the Christians, the period is different. According to Section 10A of the Divorce Act, 1869 , the couple should be living separately for a minimum period of two years. Living separately does not mean that the couple has to live at two different locations. They can be living together yet it is sufficient to prove that they were not living like husband and wife.
The divorce without mutual consent can be sought on the following grounds:
Cruelty may be both physical or mental, if one of the patients feels that the conduct of the other party towards him or her is likely to cause some mental or physical injury, then, it serves as a sufficient cause to seek divorce.
In India, earlier, adultery was a criminal offence but in a recent Supreme Court judgement adultery has been decriminalised. But it still can be used as a ground to seek divorce from a spouse who has been committing adultery. Generally, in most cases it is committed by the husbands rather than the wives.
If one of the parties deserts the other one without giving any reasonable reason, then, it is a good reason to obtain a divorce from the other. However, the person who abandons the other spouse must have the intention to desert and have the proof for it as well. Under Hindu law, the dissertation must have lasted for at least two years, but under Christian law, there is no such time limit and a petition of divorce can be filed just by claiming that the other spouse has committed desertion.
Converting to another religion by a spouse is another reason to claim divorce from the other. This does not require any minimum time that has to be passed before claiming for divorce.
If the spouse is unable to perform the normal duties that he or she is required to perform due to some mental illness or disorder then, in that case, divorce can be sought. However, if the mental illness does not hamper the capabilities of the person from performing his or her duties then the divorce cannot be claimed.
If the spouse has not been heard of being alive for a minimum period of 7 years, then, in that case, the spouse who has not heard any news regarding his or her spouse being alive can seek divorce as the courts presume that the other spouse is dead.
If the spouse decides to renounce the world and obtains a holy order, then, the aggrieved spouse can file for divorce. However, this renunciation must be absolute and incontestable.
The Hindu Marriage Act, 1955 was enacted with the purpose of providing a uniform law in case of marriage to all the Sections of Hindus and others. It codified the marriage law between Hindus and introduced provisions related to divorce and separation.
Section 2 of the Act tells about the applicability of the Act. According to it, the Act is applicable to all the Sections of Hindu (Vaishaiva, a Lingayat or a follower of the Brahmo, Prarthana, Arya Samaj) and to any person who is a Sikh, Buddhist, or Jain by religion (in accordance with Article 44 of the Constitution of India ). It is also applicable to all those persons who are the permanent residents of India and are not Muslims, Jews, Christians, or Parsis by religion.
Sikh marriages are called ‘Anand Karaj’ which means blissful union or joyful union. Even though the Hindu Marriage Act, 1955 is applicable to the Sikhs yet they have their own personal law governing marriage of their religion, i.e., Anand Marriage Act, 1909 . It was introduced in 1908, in Imperial Legislative Council.
Initially, the Sikhs had to register their marriages under the Hindu Marriage Act,1955 since the Act of 1909 did not contain a provision related to registration of Sikh marriage. But in the year 2012, Anand Marriage (Amendment) Act, 2012 was enacted under which the Sikhs could now register their marriages. So now, Sikhs don’t have to register their marriage under any other Act after registering under the Anand Marriage (Amendment) Act, 2012 .
The divorce law for Jains is governed by the Hindu Marriage Act, 1955 . They don’t have any separate law of their own to govern their marriage and divorce cases.
The provisions related to divorce for Jains have been covered under the Hindu Marriage Act, 1955 . Buddhists have been demanding for separate law relating to marriage and divorce, especially since marriage between two Buddhists couples (according to the Buddhists rituals) was declared void. So far, no step has been taken towards the fulfilment of their demands. But the Government of Maharashtra proposed a draft for Boudha (Buddhist) Marriage Act which mentions the solemnization of Buddhist marriage as per the Buddhist rituals. However, it does not include any rule regarding divorce. Therefore, the divorce provisions for Buddhist marriage is still governed by the Hindu Marriage Act, 1955 .
This provision stated the grounds on which petition for divorce can be filed. Section 13(1) of the Hindu Marriage Act, 1955 allows a husband or a wife to file a petition for divorce, if the other party has committed the following acts after the solemnization of marriage:
Section 13(2) of the Act provides additional grounds on which a wife can obtain the decree of divorce:
According to Section 11 of the Hindu Marriage Act, 1955 , a marriage is null and void ab-initio if at the time of the marriage either of the parties had a living spouse. For this provision to be applicable it is necessary to prove that-
Bigamy is both a matrimonial as well as a criminal offence. In 2009, the Law Commission suggested to make bigamy as a cognizable offence. So, bigamy is a cognizable, compoundable and bailable offence.
Section 17 of the Act of 1955 provides for the punishment of bigamy. It states that a marriage solemnized will be considered void if either of the parties had a living husband or wife, and Section 494 and Section 495 of the Indian Penal Code will be applied accordingly.
The Supreme Court in K. Neelaveni v. State Insp. of Police & Ors. ,[1] held that for a case of bigamy under criminal law it is not necessary to prove the commission of the offence because it is for the trial court to determine the authenticity of the allegations made.
Section 13(2)(ii) of the Hindu Marriage Act, 1955 states that a wife can file a petition for divorce on the ground of rape, sodomy, and bestiality. These three terms have not been mentioned anywhere in the Act of 1955.
The term ‘rape’ has been defined under Section 375 of the Indian Penal Code . It can be defined as sexual intercourse with a girl or a woman without her consent. The punishment for rape is mentioned in Section 376 of IPC. The other two grounds, i.e., ‘bestiality’ and ‘sodomy’ are referred to as the unnatural offences and are dealt under Section 377 of the IPC. According to the courts, ‘sodomy’ refers to as the son corral copulation with the member of the same sex or opposite sex. Bestiality means sexual intercourse by a human being, against the order of nature, with any man, woman, or an animal. Even the slightest misconduct on the part of the man can make him liable. Thus, if the husband has committed any of these acts, then, the wife can file for divorce.
As per Section 13(2)(iii) of the Act, a wife can obtain a decree of divorce if in a case within the ambit of Section 18 of the Hindu Adoption and Maintenance Act, 1956 , or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 an order has been passed according to which the husband has to provide maintenance to his wife in spite of the fact that she has been living apart and there has been no cohabitation between the parties from the date on which the decree was passed.
The main requirements for the application of this provision are:
As per Section 13(2)(iv) of the Act if the marriage is solemnized before the bride attains the age of 15 years then she can repudiate the marriage before she attains the age of majority, irrespective of the fact that the marriage was consummated or not. This clause 2 was added by the Marriage Laws (Amendment) Act, 1976 .
In Bathula Iylaiah v. Bathula Devamma , [2] the Court admitted the application for repudiation of the marriage even when the repudiation was done by the girl after she attained the age of majority. The petitioner didn’t know about the enactment of the Amendment Act of 1976, so as soon as she came to know about she filed for the repudiation of the marriage. The court on the basis of the reasonable explanation of delay decided to admit the petition.
The Special Marriage Act was enacted in the year 1954. It replaced the old Act III of 1872. Its purpose is to provide special marriage to all the persons living in India as well as the Indians living in foreign countries irrespective of the religion of either of the parties. The three main objectives because of which this Act was enacted to replace the Act III, 1872 are:
Following are the conditions that are required to be fulfilled to ensure a valid marriage takes place:
As per Section 27 of the Act, a petition can be filed by either a wife or a husband on the ground that the respondent:
And by the wife on the ground that her husband is guilty of rape, sodomy, or bestiality since the solemnization.
Under Parsi law, a person may seek divorce under the following three grounds:
One thing to be noted is that divorce would be not granted to the person based on the above grounds, unless:
Christians, in India are governed by the Indian Divorce Act,1869 when it comes to divorce, according to this act, divorce proceedings can be initiated either by the husband or by the wife through filing a petition. After the divorce between the parties, various other problems like who will take custody of the child, or how will the property be divided, or who will get what, it is all covered under the Indian Divorce Act,1869 .
There are mainly 2 types of divorce petition as per the Indian Divorce Act,1869 which the Christians can claim:
The first petition is known as the no-fault petition which is sometimes equated to divorce through mutual consent.
The second petition is known as fault liability petition under which either of the spouses can file for divorce on the grounds specified under the Act.
A Christian couple can claim divorce through mutual consent. For claiming divorce through mutual consent it is necessary that the couple must be living separately for at least 2 years. They have to prove that they have not been living as husband and wife. The issue of child custody, the maintenance of the child and the division of the property should be settled mutually.
When a divorce takes place at the instance of one party without the consent of the other party, then, that divorce is said to be a divorce without mutual consent.
A husband may seek to file a divorce petition in a District Court or a High Court claiming that his wife has committed adultery after the marriage was approved. The marriages of Christians are governed by the Christian Marriage Act,1872 .
A wife may also file a petition for divorce under the following grounds:
As stated above Muslims are governed by the Dissolution of the Muslim Marriage Act,1939 . However, the judicial way to seek a divorce, under Islamic Law, apart from a judicial way is through Extra-Judicial way. Under the Islamic law, divorce is only permitted when both the husband and wife are unable to live together.
Muslim women do not have any right to seek divorce unless their husbands have delegated this right to them. They can seek divorce on the grounds of false charges made under adultery, impotence and insanity of the husband.
Section 2 of the Dissolution of Muslim Marriages Act,1939 gives the right to women to seek divorce on the following grounds:
When the husband is missing for four years and there is no news about him either to his wife or all the persons who would have known about him, then, in that case, the wife can approach the court and ask the court to pass the order to dissolve the marriage. After this the court will ask the wife to make a list of all the people who are the legal heirs of the husband. If the court is satisfied with the answer, then, in that case, the court will issue a decree in favour of the wife for dissolving the marriage which will come into force only after six months. If the husband returns home before six months then the court will set aside the decree passed by it and the marriage will not be dissolved.
It is a legal obligation of every husband to provide maintenance to his wife for a minimum of two years, if he fails to do so, then, this would entitle the wife to seek divorce because the husband failed to perform his legal obligation. The husband may not be able to maintain his wife mainly because of two reasons, first, he might have neglected her and secondly, he does not have enough money to maintain her, though in both cases the wife would be entitled to claim divorce from his spouse. However, this remedy is available only when the wife has performed her part of the obligation which she had to do. If she was unable to perform her part of obligation and she leaves home, then, in that case, she can not claim divorce from the court.
The period when the wife can seek divorce under this situation starts when the decision of the final court has been given and the appeal filed has expired.
Marital obligation has not been defined anywhere in this Act. However, under this Act marital obligation can be equated with the conjugal obligation that the husband has to perform. If the husband is not able to perform his conjugal obligation, then, in that case, the wife can seek the divorce on the ground of non-performance of conjugal rights.
The wife can seek divorce if she can prove that the husband is impotent or was impotent at the time of marriage and till continues to be impotent. In that case, the court will give the husband a period of one year to prove his potency, but only on an application filed by him. In Gul Mohd Khan v Hasina ,[4] the wife applied for divorce claiming that her husband is impotent, later on, the husband within the specified period, filed an application to prove his potency. The court granted him one year to prove his potency.
Under this situation, the wife is only allowed to seek divorce if the disease or insanity is incurable. If the disease is a disease in the sex organ and is curable, then, the wife can not apply for divorce. If the disease has been caused to the husband because of the activities of the wife, even then, she is entitled to claim divorce from her husband.
If the girl was given to other guardians before the age of, then also, the wife can ask for divorce provided that the marriage was not consummated.
Under this Act, various acts have been put under the basis of cruelty such as:
The Act only lays down a limited set of acts that could be termed as cruelty, the courts over time have expanded the meaning of cruelty and in various cases, they have given a different meaning to it, so now, every kind of cruelty is included under the Act.
In Abookbacker v. Mamu Koya , [5] the husband used to force his wife to wear a sari and come with him to watch a movie, but the wife refused as it was against her religion and she filed a suit of divorce. However, the Court held that the husband’s conduct can not be regarded as cruelty as just departing from the orthodox way of clothing standard is not un-Islamic.
In Itawari v. Asghari , [6] the Allahabad High Court held that the Indian Law do not recognise any kind of Muslim cruelty or Hindu cruelty, the concept of cruelty is based on universal and humanitarian grounds. Any act of the husband that is to cause harm physically or mentally to the wife would be treated as cruel behaviour towards the wife.
There are four conditions of a valid talaq under Muslim law:
Only persons who have attained the age of majority and of sound mind can pronounce talaq. No person who has not attained the age of majority or is of unsound mind can pronounce talaq. This means that a minor husband cannot pronounce talaq, in case of the minor husband the qazi and the Maulvi will decide the fate of the marriage. Also, no other person on behalf of the legally entitled person can pronounce talaq.
Except under Hanifa school of law, the talaq pronounced by husband should be done by free consent. However, under Hanifa School of thought, even if the husband pronounces talaq to which his consent is not free, then, in that case also talaq pronounced by him would be valid.
Under Shia law, talaq may be given either orally or it may be in some written form, there are no express words which need to be spoken to constitute a valid talaq. A simple clear desire by the husband to not continue the marriage will constitute a valid divorce.
It is necessary that the husband clearly indicates his will to give talaq, if the husband does not clearly specify his intention to dissolve the marriage then it must be proven that he wants to dissolve the marriage.
There are two modes of Divorce through which a marriage can be dissolved under Muslim law:
There are two expressways by which the husband can give talaq to his wife:
Talaq-e-Sunnat is further divided into two types, namely:
Talaq-i-Sunnat is considered to be following the sayings of prophet Muhammad. The two subclasses of Talaq-e-Sunnat are
Taalq-i-ahasan is a single pronouncement of talaq which is made by the husband during the period of tuhar. This kind of method is approached when the wife is free from menstruation. This type of divorce applies only to the oral pronouncement of divorce and not written. The advantage of this kind of divorce is that it can be revoked at any time before the completion of the period of iddat and therefore, thoughtless divorce can be stopped if made.
Under this form of talaq, the husband has to pronounce talaq at subsequent intervals during three successive tuhars. For example, if the wife is going through the period of tuhar and she has not had any sexual intercourse, then, if the husband pronounces talaq then it is the first pronouncement. Similarly, when the wife enters into the second period of purity, and before sexual intercourse the husband pronounces talaq it would be the second pronouncement of talaq, and if the husband pronounces talaq for the third time before sexual intercourse then, in that case, the marriage would be dissolved.
This form of divorce includes pronouncement of talaq three times in one go either in one sentence or in three. This type of divorce is condemned by various Islamic jurists as it is not considered to be an appropriate form of pronouncing talaq because it can not be revoked.
Under Ila, the husband takes an oath not to engage in sexual intercourse for four months and after the expiry of four months the marriage is dissolved. If the husband engages in sexual intercourse within these four months then that marriage would not be dissolved. If after cohabitation the wife wants to have a divorce, then she can claim it through only by the way of judicial separation. However, when there is no cohabitation after four months the wife can simply approach the court for enforcing the conjugal rights that the husband has to fulfil.
In this form of divorce, the husband compares his wife with another woman like his mother and sister, after making such a statement does not cohabitate with his which results in the dissolution of the marriage.
Talaq-i-tafweez or delegated divorce is a form of divorce that is delegated to the wife by her husband. This power may be given temporary or permanently. When this power is given temporary then, in that case, the power delegated cannot be revoked but if the power is given then, in that case, the power delegated can be revoked. This kind of divorce is a kind of weapon in the hands of the wives so that they can relieve themselves from the clutches of their husbands without any judicial intervention.
When the husband makes false charges of unchastity or adultery against his wife then results in degrading the character of the wife which guarantees the wife to seek a divorce from his husband. However, this right is only available when an aggressively false charges of adultery and has been against the wife. In Nurjahan v. Kazim Ali ,[3] it has been held by the Calcutta High Court that when the wife says something bad about the husband or shows bad behaviour towards him and in response the husband says some bad things to the wife, then, it would not entitle the wife to claim divorce under Lian.
The period taken for a divorce procedure to complete depends upon the facts and circumstances of the case. It can take from 8 months to 2 years or more. This procedure is not easy to complete because it’s just not a legal process, it is an emotional process as well. The parties go through mixed feelings while they fight for their case, and also, it’s not the only the parties who are suffering but their families are affected too, especially children.
If a divorce petition is filed with the mutual consent of both parties, then, it is likely to take less time. Since in this case, the parties just have to prove that they have been living separately for more than one year or more and have no intention to reconcile, it doesn’t involve many disputes. The court has to see if the required conditions are fulfilled, and if the parties are still not interested to continue their marriage then it can grant divorce decree to the parties.
Since in this case, the parties don’t agree with each other on at least one major issue, they have to face trials for all unresolved issues. Normally, it takes more than one year to get the divorce.
The time taken to get a divorce is affected by:
(fault-based – where neither of the parties takes the blame for breaking up the marriage
no-fault based – where one of the parties it to be blamed for ruining the marriage)
When both the husband and wife are married then there are certain duties that each one of them has to perform, after divorce these duties do not come to an end. When either of the spouses is dependant on the other spouse(in most cases it is wife) then, in that case, the wife can claim maintenance from the husband for her living or her children and even in the case of an indigent parent. In cases of maintenance, the court looks into various factors before giving any maintenance such as the earnings of the husband or his ability to reclaim his property assets and liability in case he has to give some part of the property to his wife.
When the parties obtain a divorce by mutual consent the question of payment of alimony is solved on the basis of understanding and agreement between the contesting parties. The decision of who will pay who depends on the mutual understanding of the parties. The court on the basis of their agreement will pass the order, thus, binding the parties.
The spousal support, also known as alimony, is assessed on the basis of the following:
Following are the formulas through which alimony can be calculated:
It is not necessary for all the courts to use the above-mentioned formulas. Many courts decide the spousal support and the period till which it would be paid or received based on a list of factors. This list of factors can include the length of the marriage, educational qualification of the spouse, the age of the spouse, whether either of the spouses had an extra-marital affair and income of both the contesting parties.
The part can either receive the amount in a lump sum or monthly instalments. Previously, i.e., before 2019, the spouse who was supposed to pay the alimony could reduce support payments from their tax returns while the spouse who received the amount had to pay the tax. But after 1st January 2019, the payer can no longer reduce the support systems and the receiver has to pay nothing.
This is a landmark judgment case in which the Supreme Court held that the six months period, i.e., the cooling-off period is not mandatory under the Section 13B (2) of the Hindu Marriage Act,1955 . The Court held that the provision of the cooling-off period is a directory provision and can be waived off under certain circumstances. In this case, the parties were living separately for 8 years and with mutual consent decided to apply for divorce. The parties pleaded for the waiving off the provision of the cooling-off period given under Section 13B (2) of the Act since they had been living separately for the past 8 years and there was no chance of reconciliation. The Court also held that the courts have the liberty to exercise their discretion of waiving off this provision depending on the facts of the case.
The Court stated that the courts while deciding the matter under this aspect can consider the following points before giving judgment:
In this case, a divisional bench consisting of Pankaj Mittal and Rajiv Joshi, JJ. admitted an appeal filed by a wife against a decree of divorce by mutual consent. The wife filed an appeal under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984 stating that her consent, in the divorce by mutual consent, was taken under undue influence. The main issue that arose was whether an appeal would lie before a High Court under Section 19 of the Family Courts Act,1984 against the Section 13B of the Hindu Marriage Act, 1955 ?
The Court admitted the appeal while referring to Sureshta Devi v. Om Prakash [7] case, and held that it is the responsibility of the Courts, before deciding the case, to satisfy that the consent obtained under divorce by mutual consent was obtained voluntarily. Therefore, it can be concluded that when consent, in divorce by mutual consent, is disputable then an appeal can lie against it before the higher courts.
In this case, the petitioner (husband) filed a petition to obtain divorce decree on the ground of cruelty. In return, the respondent (wife) filed for restitution of conjugal rights and claimed for interim maintenance. The Family Court, based on an email sent by the wife containing a letter written by husband declaring his medical problem, decided that the husband has to pay the maintenance amount. Later on, an appeal was filed by the husband against the judgment of the Family Court. The Madras High Court held that just because a letter was sent by the husband doesn’t mean that he is at fault, he might have considered it as important information that his wife should know about. Also, no matter what claims are made by the parties the Courts should keep in mind that at this point, emotions of the parties are subjective and they are at loggerheads. Therefore, the courts should take the decision accordingly. The Madras High Court, thus, reduced the amount of maintenance which was decided earlier in accordance with his salary.
The alimony amount is decided while taking into consideration various factors, one such factor is the duration of the marriage, if the marriage has lasted for a decade then, the alimony amount would be generally high. Other important factors that are kept in consideration are as follows:
In marriage, both the husband and wife have equal rights over the, even if the property is owned by one of the spouses. If the spouse has custody of a child, then, the claim of the parent having custody of the child in the property becomes much stronger. Until the proceedings of divorce are over both spouses have an equal right to stay on that property.
According to Section 11 of the Hindu Marriage Act,1956 , a marriage is annulled and is declared void if it is contravening clause 1,2 and 5 of Sections 5 of the Hindu Marriage Act,1956 .
Therefore, a marriage under Hindu law would be declared void and will give the concerned spouse a chance to claim divorce if the other spouse contravenes any of the following acts:
Neither of the parties should have a spouse living at the time of marriage. If any of the spouses indulges in bigamy, then, the marriage will automatically be annulled without any formality.
In the case of sapinda relations, one person is a lineal ascendant of the other within the limits of spinda. Sapinda, here, means the relation which extends up to three generations of line ascents on the mother’s side and father’s side it extends as far as the fifth generation in the line of ascents.
In other words, a marriage between an ancestor and a descendant or any close relatives, under this situation as well, the marriage would be annulled.
Prohibited relations are those relations in which people are related by blood or marriage. A marriage cannot be considered as a valid marriage in which the parties fall within the prohibited relationships. Such prohibitions are based on:
This prohibited degree of relationship extends to marital as well as non-marital offspring. Therefore, marriage between uncle and niece or between an aunt and nephew are the marriages that would be declared void.
Voidable marriages are not annulled automatically. But the process of annulment is started by one of the parties if they think that there was no intention to enter into a civil contract by the other party at the time of marriage either because of some mental disorder or because of intoxication.
After a divorce, a family that was once happy does not remain happy anymore. All the members of the family suffer from different levels of emotions. The divorced couple goes through a very emotional phase where they not only have to take care of themselves but their children as well.
In divorce cases, somehow the couple manages to understand the situation since it was their decision only. But, the children who always had the idea of a happy family living under the same roof, when come to know about the divorce don’t take it well. In some cases, the children are able to get themselves together and move on with their lives but in other cases, children have to suffer in the long term. The couple faces emotional problems, financial issues, the situation of less happiness, etc. The children go through educational, psychological, emotional and behavioural problems. It has been seen that children from divorced families are more likely to show such problems than children from non-divorced family.
In case, the married couple has children, then, the issue of their custody is, generally, dependent upon one consideration, i.e., what is best for the child. In the case of mutual divorce, the custody of the child is also decided mutually. However, in the case of a contested divorce, the court will look into various factors before deciding to which parent the child is to be handed over. Many people think that mothers have a strong case when it comes to child custody, however, the courts decide it by considering what is best for the child. Sometimes there are situations when the custody is given to the mothers and fathers have to provide financial help to them. The principle on which the custody of the child is decided is ‘best interests of the child’.
There are five types of child custody in India. They are:
In sole custody a parent has full custody in all matters concerning the child. It rarely happens that a court awards sole custody to either of the parents. It happens only in cases where one of the parents is deemed to be unfit or incapable of raising the child, like in cases where a parent is a drug addict or alcoholic.
Sole custody is further divided into two kinds:
The parent has the authority to make decisions that are related to the child’s well being, like, his education, his medical expenses, etc.
The parent has the right to keep the child with him under his supervision subjected to reasonable visitation by the other parent.
In this case, the parent has the right to manage the child’s affairs which are related to his welfare for a long period. Mostly, legal custody is given both to the mother and the father unless the Court is satisfied that one of the parents is not fit to take care of the child.
It covers two aspects:
It has been already discussed above under sole custody.
In this case, both the parents have equal right to deal with their child’s affairs.
Under this head, a child has to live with the parent to whom the court has awarded the physical custody. The parent has to take care of day to day needs of the child. The non-custodial parent is allocated visiting period in which he has the right to spend some time with the child. It has two aspects:
Though the child will live the parent who has been awarded the physical custody, the legal custody is shared between both the parents which means that both of them have equal right to take part in their child’s life.
According to this heading, one parent is given physical custody as well as sole legal custody. This type of custody is mainly given in cases where the other parent is deemed not to be fit for taking care of the child. Though the other parent is still allowed to visit the child but the period will be less than that in case of joint legal custody.
Here, both parents are given the custody of the child. They have equal rights over the child’s well being. It includes:
The child under joint physical custody lives with both parents as per the arrangement decided. The parents will cooperatively make decisions for their child.
The parents with mutual understanding take decisions relating to the welfare of the child but only one has the sole physical custody.
If both parents are not fit to ensure the well-being of their child then the court can give the child’s custody to the grandparents of the child, believing that they are the best guardians. The awarding of this custody depends upon the circumstances of the case. In some cases, visitation is also allowed to them when it is seen that the child is benefitted from his relationship with the grandparents.
As far as the custody of children is concerned, the law applied in the case of Hindus, Sikhs, Jains and Buddhists is the Guardian and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956 .
According to the Hindu Minority and Guardianship Act, 1956 , a Hindu child below the age of five has to remain with the mother on moral and emotional grounds.
Under normal circumstances, the natural guardian is the father. While in other cases it is the mother who assumes the role as the guardian of the child.
If the court thinks that giving the custody of the child to the father will not serve the best interest of the child, then he can not claim any indefeasible right. Custody of the child can shift from one person to another keeping in mind the welfare of the child.
Under the Guardian and Wards Act,1890 , when it comes to the custody of the child no religious tradition or custom would be looked at as far as the welfare of the child is concerned. The court will only look into the factors that would help in the overall development of the child, and whosoever parent is able to provide that overall development would be given the custody of the child.
The Indian Divorce Act,1925 along with the Guardian and Wards Act,1890 governs the rules regarding the custody of the child during the divorce proceedings or after the divorce. The court may pass any order as it may deem fit in the best interest of the child. Apart from this, the Divorce Act, 1869 also confers the court not only to decide matters relating to the custody of Christian child but also to decide the custody dispute of any other child.
The custody of a Muslim child is also governed by the Guardian and the Wards Act,1890 . In Muslim law custody of the child is known as Hizanat which means infant care. The rules of custody are as follows:
The laws that govern child custody cases in India are as follows:
An application for the custody of the child can be filed in a Family Court or in the jurisdiction of the Court where the minor lives.
One of the most important aspects in divorce cases is the custody of children in the hands of the parent who is more capable of ensuring the welfare of the child than the respondent.
The other aspects that the court considers before deciding the custody of a child are as follows:
Now the question arises, what happens to the custody of the child before the divorce is finalized?
Generally, during the proceedings of divorce both the parents with their mutual consent, decide amongst themselves regarding the custody of the child. If the parents agree to share the custody of the child, then, they can either live in the same house or if a parent moves out then they can take turns to keep the child with themselves. The custody of the child before the finalizing of divorce is at the discretion of the parents.
In other circumstances, the parents can agree to keep the child with one parent if the other parent decides to move out of the house and does not have the means to support the necessities of the child because of some issues. Another option is also there, where the parties, in case of no agreement, can ask the court to issue a ‘temporary custody order’ of the child till the divorce proceedings are finished. After the parties have filed the petition they can then file a motion for temporary custody, if haven’t decided about the custody. The proceedings for the temporary custody will initiate early as an emergency case and then, after the hearing of the case the court will decide the custody of the child which will be effective until the divorce is finalized.
The process of annulment of marriage is the same as it is in divorce, however, the grounds under which a marriage is annulled are different than that of divorce. Some of the grounds of annulment are as follows:
Judicial Separation is a legal separation of the husband and wife through a petition filed in the court either by the husband or the wife. In case of judicial separation, the couple will be considered to be married but they would be living separately and none of the couples would be allowed to get re-married. In case of judicial separation, the couple can seek a decree on the grounds of adultery or cruelty without any reasonable excuse for two years. This decree would be treated like a divorce under the Indian Divorce Act, 1869 . The application for seeking a judicial separation would be presented to the District Court or the High Court and on satisfying
itself, the Court may give the directions of judicial separation.
In the case of Judicial Separation, the wife who wishes to get separated would be considered to be an unmarried woman, in case she enters into a contract or suffers an injury or is sued or is suing someone in civil proceedings. The husband cannot be made liable for any act or any contract entered into by the wife during the time of separation.
In every case of judicial separation, the wife would be considered to be separated from the date of issue of the decree till the time the separation continues.
The separated wife would be personally liable for any matter concerning the property she had acquired during the time of separation, the husband cannot be made liable for any contract entered into by the separated wife during the time of separation.
Both Judicial Separation and Divorce have a very thin line of difference although many people think that both are the same. However, both these concepts have differences among them as well such as:
In restitution of conjugal rights, the partner of the aggrieved party withdraws himself from the aggrieved party without any valid reason or giving any explanation for taking such a decision. In such situations, the aggrieved party can move to the Family Court to claim for restitution of conjugal rights. It doesn’t mean that the Court can force the other party to get back with the party that moved such petition. It is a paper decree meaning thereby, that the decree will be enforced by attaching the properties of the judgment debtor. But if this decree is not honoured within one year then it becomes a ground of divorce.
In India most women are dependent on their husbands for survival after their marriage, especially in the rural areas. Therefore, the big question arises that what all rights do woman has, after she has been separated from her husband or when she has obtained a divorce. This question becomes even bigger when apart from sustaining herself, a mother has to sustain her child as well, therefore, it is necessary to discuss some of the rights that women are provided with.
There are mainly three kinds of rights that women can claim after divorce namely:
Maintenance means the amount of money that a husband is supposed to give it to his wife after divorce. The main objective of giving maintenance is to provide financial security. The law presumes that after divorce it is very difficult for the wife to accumulate finances immediately after divorce and therefore, for immediate relief of the wife, the husband has to provide financial help to his wife. But this maintenance help is only available to the legally entitled wife. According to the Code of Criminal Procedure , if both the husband and wife are living separately by mutual consent then the wife cannot claim the maintenance amount from her husband, but if the petition is filed for divorce and a decree has been passed for that effect, then, the husband is bound to pay the maintenance amount to the wife. What amount is to be paid is at the court’s discretion and the court after examining the financial condition of both the couples decide what amount of money is to be paid.
When a divorce petition is filed the court looks whether the woman is working or not, if a woman is working, then she is not entitled to maintenance before divorce but she can live in the residence of the husband before divorce and does not have any right in the husband’s property during his lifetime.
Under Hindu law, women living separately can also claim maintenance. A married woman who is not seeking divorce but living separately from her husband can claim maintenance under Hindu Adoption and Marriage Act, 1956 . Sometimes a wife due to personal reasons does not opts for divorce but can choose to not live without her husband. Under such circumstances, she suffers mental as well as physical injuries. In that situation, the Hindu law provides interim relief to the wife by giving her maintenance to fulfil her immediate needs.
However, under Hindu law, there is a certain limitation period which is imposed on the women seeking maintenance such as:
A married woman has an equal share in the husband’s property after his death. But, if there is divorce, then, the women would be entitled to at least half of the husband’s property as this would be treated as maintenance given to the wife for fulfilling her basic needs.
Under Parsi law it is important to understand how a woman can claim maintenance from her husband. She can claim it either by bringing a criminal or civil suit before the court. However, it is not necessary to look into the religion if the complaint is brought as a criminal complaint, but the religion of the party would be taken into consideration if the nature of the complaint is civil.
Under the Parsi law, if the husband fails to provide o neglects to provide his wife with the maintenance fee, then, the married woman can approach the court for non-performance of the duty. If even after the order of the court the husband does not provide maintenance, then, he shall be liable for punishment for at least one year. Under the Parsi Marriage and Divorce Act,1936 , a married woman has the right to claim both the pendent alimony as well as the permanent alimony.
The maintenance amount under Parsi law, that a married woman can claim should not exceed one-fifth of the husband’s income. While deciding the maintenance amount various other things are taken into consideration such as the total income of the husband, how much assets does he own and what is the current financial status of the husband. Apart from this, the actions of the parties involved are also taken into consideration. It is the duty of the husband to keep on providing financial help to the wife until she remains unchaste.
According to the Indian Succession Act, 1925 , after the death of the husband, the wife would be entitled to at least one-third of ancestral property. If there are no descendants, then the wife would be entitled to at least half of the property of the husband.
Under Christian law as well maintenance can be claimed under both the criminal and civil courts. Similar to the Parsi law, if a complaint is brought under criminal courts then the religion of the courts would not be taken into consideration. But if the maintenance claim is brought to the civil courts, then, the religion of the petitioner would be taken into consideration.
A married Christian cannot claim back the amount of alimony from her husband after the divorce if she has not applied for maintenance in the court. This provision is mentioned in Section 37 of the Indian Divorce Act,1869 .
In case the husband refuses to give maintenance to his wife or neglects her, the wife can approach the court of law and in that case, the court after being satisfied with the wife’s argument may order the husband to pay the amount of maintenance to the wife as soon as possible.
The total amount of maintenance should not be more than one-fifth of the husband’s average income. In case the husband is facing some financial crisis, he can delay the payment, say, once every two months, but this is only allowed when the court approves it. The court can also ask the husband to pay the maintenance amount to the trustee of the wife on her behalf.
Under the Indian Succession Act,1925 , the wife after the death of the husband is entitled to one-third of ancestral property and in case, there is no descendant the wife would be entitled to at least half of the property of the husband.
Muslim Women(Protection of Rights and Divorce) Act,1986 protects the women and contains the provisions regarding the divorce of Muslim couples. The act makes it mandatory for the Muslim husband to provide alimony to his wife after the divorce.
After the famous Shah Bano case, the courts have made it mandatory for the husbands to provide the maintenance amount to the wife, even after the expiration of iddat period. If after the death of the husband if the wife observes the iddat period in which she does not marry another man, she is entitled to claim maintenance amount from the relatives of the husband. If the relatives are not able to provide the maintenance amount then the court can order the state wakf board to pay the amount to the wife. The Muslim Women(Protection of Rights and Divorce) Act,1986 is retrospective in nature.
After the famous Shah Banu case, the Supreme Court ruled that it is the responsibility of the husband to give maintenance to his wife even after the period of iddat. As far as the rights of the women are concerned in terms of the property, the Muslim woman has equal access to the property of the husband before the divorce. After the Divorce the woman is entitled to have some degree of control and right over the property of the husband.
In India, generally males are blamed for divorce and all the burden falls on the husbands to maintain their wives after the divorce. However, Indian law also grants protection to the males even after the divorce. There are various provisions that deal with the protection of the rights of the males during and after the divorce. Some of the regulations protecting the interest of the husbands after and during divorce are mentioned below.
There is a presumption that only wives can approach the courts for seeking divorce, however, men also have the right to approach the court of law for seeking divorce under the following grounds :
Apart from the above-mentioned rules, a husband can also refuse to grant maintenance to his wife on the following mentioned grounds:
In the case of interim maintenance, the husband can refuse to pay the money to his wife if the wife is well off to maintain herself and is in a good financial condition. Alimony money is only payable when the wife is financially weak and not able to sustain even her basic needs.
Another right that is reserved with the husbands is that if the wife claims compensation under the pretext that her husband indulges in domestic violence and she is not able to prove it, then, the husband is not entitled to pay the money.
The biggest right that a husband has is that of the equal right in order to claim the custody of the child. It is a myth that when courts take up the cases regarding the custody of the child they are biased towards the mothers, which is not actually true. Yes, during the initial years of the child the importance of mother was more than the father but that does not mean that fathers are totally excluded from not taking the custody of their children. After the initial years of the child, when he or she is not dependent on the mother for the necessities, the father can file a fresh petition in the court seeking the custody of the child, then, in that situation the court will examine the financial condition of both the parents, and will also look as with whom the child would be more comfortable living with. In other words, the court will have to decide by looking into the fact as to who will provide better welfare to the child, and if the father is able to prove, then, he will get the custody of the child.
Going through a divorce in India is not an easy task, the process of divorce is not only long but it has an everlasting impact on the mental conditions of the couple, including men. The society we live in generally does not appreciate divorce and if it is not done mutually it has an even worse impact. In India, there is a myth that men are primarily responsible for the divorce and therefore, it becomes all the more important for the males to go through a poised and not very disturbing divorce, some of the advice that can help them to manage their divorce suits mentioned below:
The changes introduced by the Hindu Marriage (Amendment) Act, 1976:
In fact, even a situation where there was a misrepresentation of fact on behalf of either side of the party could be used as a ground for nullity of marriage. Through this Amendment broadened the scope of ‘insanity’.
The Marriage Laws Amendment was a bill introduced to amend two main laws in case of marriage, i.e., Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 . It was first introduced in Rajya Sabha in 2010. Later on, it was by the upper house in the year 2013. But Lok Sabha did not pass the resolution. The main purpose of this Bill of 2010 was to make it ‘women-friendly’. Some of the changes that were introduced in the Bill are as follows:
However, the new ministry has decided to introduce it once again. A draft on the basis of the Marriage Laws Amendment Bill, 2010 has been prepared after some inter-ministerial consultation.
The Personal Laws (Amendment) Act of 2019 was introduced by the Parliament to amend:
It introduced the following changes:
The Supreme Court, in this case, explained what does ‘living separately’ exactly means. The Court held that the expression ‘living separately’ means not living like a husband and wife. It has no relation to the place of living. If the couple is living under the same roof but doesn’t carry out their matrimonial duties, then, it is considered as if they are living separately.
In this case, the Court observed that once spouse gives consent to abide by the undertaking in the First motion for dissolution of marriage under Section 13B (1) , then, later on, he or she cannot resile from such an undertaking based on some agreement between the parties. If the spouse decides to resile, then, it would amount to a breach of such undertaking, thus, attracting contempt proceedings.
In this case, the Court held that the while deciding matters the courts must satisfy itself that the consent given by the parties must be voluntary one. If the party to the matter is absent in the proceeding (after a period of six months in divorce by mutual consent) then, presuming the consent on behalf of the party is not the correct method just because both the parties were signatories to the first motion under the Section 13 B of the Act.
Section 13(1)(i) in Hindu Marriage Act, 1955 states that if any party to the marriage after the solemnization of marriage has voluntary sexual intercourse with any person other than the aggrieved party, then, a petition for divorce can be filed before the Family Court on the ground of adultery. Before the commencement of Marriage Laws (Amendment) Act, 1976 single act of adultery on the part of one party was the valid ground for judicial separation not divorce, for divorce the other party had to be ‘living in adultery’. But now, a single act of adultery has a ground of divorce.
The Madras High Court in Subbarama Reddiar v. Saraswathi Ammal [13] observed:
“If an unrelated person is found along with a young wife, after midnight in her bedroom in actual physical juxtaposition, unless there is some explanation forthcoming for that, which is compatible with an innocent interpretation, the interference, that a court of law can draw is that the two must be committing an act of adultery together.”
Therefore, it can be said that in the case of Adultery it is necessary to prove that there was some sexual activity involved. Anything which shows that it might have been something apart from sexual intercourse does not make it an act of adultery. The onus probandi (burden of proving) always lies on the petitioner.
As per Section 2(viii)(b) of the Muslim Marriages Act , if a Muslim man associates himself with a woman who does not have a good reputation, or leads an infamous life then it amounts to cruelty to the wife. It can be considered equal to adultery.
The concept of Lian under the Islamic law where it is used as a ground of dissolution of marriage by the wife against her husband, the Allahabad High Court in Zafar Hussain v. Ummat Ur Rahman , [14] held that this right is available to only those wives who are not guilty of adultery and not to those guilty of adultery. In another case of Abbas v. Rabia ,[15] the Allahabad High Court held when a man frames a false case by accusing his wife of committing adultery, though it was he who committed the act will serve as a sufficient cause to seek divorce on the grounds of divorce.
In case a wife has the offence of adultery, then, the husband can divorce her by executing triple-talaq and he can do so without giving any explanation for his actions.
According to Section 10(1)(i) of the Divorce Act, 1869 , (amended in 2001) if any party to the marriage has committed adultery then the aggrieved party has the option of filing a petition for divorce on the grounds of adultery. However, initially, the husband could file for adultery against his wife but in case of wife she had to mention other grounds of divorce along with adultery, like desertion.
In Ammim E.J. And Etc. v. Union of India , [16] the Kerala High Court observed that the ground of adultery was discriminatory one on the basis of sex since it was more favourable to men than to women. Hence, it was violative of Article 15 of the Indian Constitution , therefore, the words ‘coupled with’ were struck down.
Section 22 of the Divorce Act, 1869 provides for adultery as a ground for judicial separation.
Section 32(d) of the Parsi Marriage and Divorce Act, 1936 allows any married person to file for divorce against his or her spouse on the grounds of adultery. Though the Section provides a limitation of two years from the date when the petitioner comes to know of such adultery.
The High Court of Bombay in Mozelle Robin Soloman v. Lt. Col. R.J. Soloman , [17] held that the wife under Jewish law can file for divorce from her husband on the grounds of cruelty and adultery. Jewish law considers adultery as a criminal offence. In another case, it was held that when a Jew man marries another woman then, too, it will be considered as adultery.
Some of the provisions related to the Extra-marital affairs under CrPC, 1973 are as follows:
Yes, Divorce is the most traumatic event in the life of every married couple, no one wants to go through this period, but when this period of life confronts no one can escape from it. Therefore, it becomes essential to know what are our rights and duties, when a divorce suit is filed, etc. The above article examines the various ways through which couples can seek divorce and the further matter like the maintenance or custody of the child and property sharing disputes that are to be handled. Women are the worst sufferers in such cases, as in India many women are dependent on their husbands for financial support. So, the article also analyses the regulations governing the rights of women after divorce. In India it is often thought that men do not suffer as they are the main culprits behind divorce but in many cases we can see that those men are also suffering from the pain of divorce, they have to go through the mental torture, financial burden and the most important is the humiliation from the society. Therefore, in the end, the article focuses on the rights that men can avail after divorce and the advice that they should consider before seeking divorce.
[2] A.I.R 1981 AP 74.
[3] AIR 1977 Cal.90.
[4] A.I.R. 1988 J&k 62.
[6] A.I.R. 1960 All 684.
[8] 2018 SCC OnLine All 513.
