Laws for Dissolution of Marriage in India
The Indian judicial system has various personal laws based on different religious faiths, besides the enactment of the Special Marriage Act for all citizens irrespective of religion.
1. The Hindu Marriage Act, 1955, is applicable to persons who are Hindu or Buddhist or Jain or Sikh by faith, and all those are not governed by any Law. The Act contains provisions regarding void marriage under Sec. 11, voidable marriage under Sec. 12 for seeking nullity of marriage and provisions under which dissolution of marriage may be sought under Sec. 13.
2. The Divorce Act 1869 is applicable to persons having Christian faith.
3. The Parsi Marriage And Divorce Act, 1936 is applicable to person having Parsi faith. A petition for dissolution of marriage may be filed as per the Proisions of Section 32 and Where the consumption of marriage from natural causes is found impossible a petition for nullity of marriage under Section 30 may be filed.
4. A petition for dissolution of marriage may be filed as per the provisions of Sec. 27 and for nullity of marriage as per the provisions of Sec. 24 of the Special Marriage Act, 1954, by a person who registered their marriage under this Act or as per provisions of the Foreign Marriage Act, 1969.
The provisions of the Foreign Marriage Act, 1969, applies where marriage is performed “ in foreign country” which means a country or place outside India, and includes a ship which is for the time being in the territorial waters of such a country or place;
5. The Jewish personal Law applies to the Jews, but maximum grounds for seeking dissolution of marriage, are similar to other Laws.
6. The provision of the Muslim Personal Law (Shariat) Application Act, 1937 enables Muslim spouses to dissolve their marriage by an extra-judicial mode.
7. The provisions of the Dissolution of Muslim marriage Act 1939 empowers Muslim wife to seek dissolution of marriage.
Grounds for dissolution/nullity of marriage specifying relevant sections of the Acts, for Judicial decree
|
Sr. No. |
Grounds for divorce |
Hindu Marriag e Act 1955. |
The Divorce Act 1869 Christian |
The Parsi Marriage And Divorce Act, 1936 |
Dissolution of Muslim marriage Act 1939 (Wife only) |
Special Marriag e Act |
|
|
|
Section /Sub-Section / Clause |
||||
|
1 |
Adultery OR Fornication OR Extramarital sex |
13 (1) (i) |
10 (1) (i) |
32 (d) see proviso |
2 (viii) (b) |
27 (a) |
|
2 |
Cruelty |
13 (1) (ia) |
10 (1) (x) |
32 (dd) proviso |
2 (viii) & (a) to (f) |
27 ( d) |
|
3 |
Desertion |
13 (1) (ib) |
10 (1) (ix) |
32 ( g) |
2(iv) marital obligations |
27 ( b) |
|
4 |
Conversion to other religion |
13 (1) (ii) |
10 (1) (ii) |
32 (j) |
|
|
|
5 |
Mental Disorder/ unsound mind/ |
13 (1) (iii) |
10 (1) (iii) |
32 (b) – (bb) See Proviso Explanation |
2 (vi) insane for two year |
27 (e) |
|
6 |
Leprosy ( Omitted ) |
13 (1) (iv) |
10 (1) (iv) |
|
2 (vi) |
|
|
7 |
Venereal Disease |
13 (1) (v) |
10 (1) (v) |
32 (e) |
2 (vi) |
27 (f) |
|
8 |
Renunciation |
13 (1) (vi) |
|
|
|
|
|
9 |
Not Heard Alive |
13(1) (vii) |
10 (1) (vi) |
|
2 (i) see proviso |
27 (h) |
|
10 |
No resumption of co- habitation with in one year after decree of judicial separation |
13 (1A) (i) |
|
32A (i) |
|
27 (2) (i) |
|
11 |
No restitution of conjugal rights after decree of restitution of conjugal right |
13 (1A) (ii) one year |
10 (1) (viii) two year |
32A (ii) |
-- |
27 (2) (ii) |
|
12 |
Will fully refused to consummate the marriage |
-- |
10 (1) (vii) |
32 (a) one year |
-- |
25(1) |
|
13 |
Husband is held guilty of rape, sodomy or bestiality or |
13 (2) (ii) |
10 (2) |
32 (d) unnatural offence |
-- |
27 (1A) (i) |
|
14 |
Wife was pregnant from other person at time of marriage. |
12(1)(d) |
-- |
32 (c) see proviso |
-- |
25(ii) |
|
15 |
Bigamy/ having living spouse at the time of marriage. |
11 r.w 5(1) |
-- |
32 (d) |
-- |
-- |
|
16 |
Voluntarily caused grievous hurt |
-- |
-- |
32 (e) |
-- |
-- |
|
17 |
Compelled wife to prostitution/ immoral life |
-- |
-- |
32 (e) |
2 ( viii) (c) |
-- |
|
18 |
Sentenced to undergo imprisonment for 7 year or more |
-- |
-- |
32 (f) proviso |
2 (iii) see proviso |
27 (c) |
|
19 |
Failed to provided maintenance for two years |
-- |
-- |
-- |
2 (ii) |
-- |
|
20 |
Husband failed to perform marital obligations |
-- |
-- |
-- |
2 (iv) |
-- |
|
21 |
Husband is impotent |
Sec. 12(1)(a) voidable |
-- |
-- |
2 (v) see proviso |
-- |
|
22 |
Wife repudiated marriage after attending 18 year age |
13(2) (iv) |
-- |
-- |
2 (vii) |
-- |
|
23 |
Husband associates with women of evil repute or leads an infamous life. |
-- |
-- |
-- |
2 (viii) (b) |
-- |
|
24 |
Husband disposes of wife's property or prevents her exercising her legal rights over it |
-- |
-- |
-- |
2 ( viii) (d) |
-- |
|
25 |
Husband obstructs her in the observance of her religious profession or practice |
-- |
-- |
-- |
2 ( viii) (e) |
-- |
|
26 |
If husband has more wives than one, does not treat wife equitably in accordance with the teaching of Shariat |
-- |
-- |
-- |
2 ( viii) (f) |
-- |
|
27 |
Husband failed to resume cohabitation with in one year after granting maintenance allowance by court, to wife living separate. |
13(2)(iii) |
-- |
32 (h) |
-- |
27 (1A) (ii) |
|
28 |
Any other Valid Ground |
-- |
-- |
-- |
2 (ix) |
-- |
|
29 |
Unable to give consent |
12(1) (b)r.w 5(ii) |
- |
- |
- |
24(1)(i) r.w. 4(b) |
|
30 |
Consent for marriage obtained by force/fraud. |
12(1)(c) |
- |
- |
- |
25(iii) |
|
31 |
Spouses are below the marriageable age. |
5(iii) |
- |
- |
- |
24(1)(i) r.w. 4(c) |
|
32 |
Parties are having prohibited relations |
11 r.w. 5(iv) |
- |
- |
As per Shariyat. |
24(1)(i) r.w. 4(d) |
|
33 |
Belongs to same Sapinda |
5(v) |
- |
- |
- |
- |
|
34 |
Mutual Consent |
13 B |
10 A |
32 B |
Holy Quran Chapter No. 2, Sura-Al-Baqra – Ayat No. 229, Caption 319 of Principles of Mohammedan law by Mulla |
28 |
CUSTOMARY DIVORCE UNDER HINDU LAW.
The provision of Hindu Law is not applicable to member of and Schedule Tribe within the meaning of clause (25) of article 366 of the Constitution.
As per the Hindu law administered by courts in India divorce was not recognized as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognized by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such a custom since the said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy.
JEWISH PERSONAL LAW
Chapter XIV dealing with "Dissolution of Marriage" in the standard book on the Jewish Law of Marriage and Divorce in ancient and modern times by the well-known Jewish Scholar and Prof. of Talmudic Literature at the Hebrew Union College, Rev. M. Mieliziner, Ph.D., D.D. (Second revised edition), enumerates the various kinds of divorces granted, namely, (i) by mutual consent, or (ii) upon a petition by the wife or (iii) upon a petition by the husband and (iv) a divorce enforced by Court. In the case of Bension Joseph Hayeema Vs. Sharon Bension Hayeema reported in MANU/MH/0619/1995: 1995(4)BomCR493, the Hon'ble Bombay High Court has elaborately discussed the grounds for divorce in Jewish Personal law which are similar to the other Laws.
But neither codified law exist nor any enactment is there enabling the Jewish community or Courts to deals their Matters according to Jewish Personal Law in India, however, in case of Mozelle Robin Solomon vs Lt. Col. R.J. Solomon reported in (1979) 81 BOMLR 578, the Hon'ble Bombay High Court held that the Jewish spouse has right to seek relief on the ground of a matrimonial wrong committed by the other spouse.
EXTRA JUDICIAL DISSOLUTION OF MUSLIM MARRIAGE
The provision of the Muslim Personal Law (Shariat) Application Act, 1937 provides that in the matters of dissolution of marriage of Muslim spouses the rule of the decision shall be Shariat. The spouses are not required to get dissolve their marriage by judicial decree, However, on the filing of a petition for endorsement and declaration of status of marriage, the Court cannot turn down the intention of spouses to arrive mutually or unilaterally, therefore, dissolving marriage before the court would be safe and authentic.
The provisions regarding dissolution of marriage under of Muslim Personal Law (Shariat) Application Act, 1937 is not codified. The primary sources of Islamic legal system are as under:
1) The Holy Book (The Quran) ;
2) The Sunnah (Hadith / Hadees) ;
[Authentic saying (including judgment and directions) and the traditions or known practices of the Prophet Muhammad (PBUH)]
3) Ijma' (Consensus) ; and
4) Qiyas (Analogy)
Muslim spouses have to follow the directions and guidance of the holy Quran and Hadith in their daily life. The spouses are having same rights. (Holy Quran : Surat Al Baqra No 2 - Ayat 228) The Prophet (PBUH)said: The best of you is the one who is best to his Family (Wife). (Book of Hadith-Ibne- Maja No. 1977). In case there is a dispute between husband and wife, it is suggested to the husband to ignore the mistakes of the wife, if he sees a thing to dislike wife, he may find that Allah makes in her much good. (Holy Quran: Surat Al Nisa No 4 - Ayat 19) so also the wife is advised to obey husband ( Sahih Ibn Hibban – No 4254).
Mediation and reconciliation.
In case of Dispute
a) Private :- Spouses should sort out their dispute privately.
(Holy Quran: Surat Al Nisa No 4 - Ayat 128).
b) Through Arbitrator/ Mediator/Counselor :-
If the dispute could not sort out privately, the spouse should try to redress the dispute by appointing arbitrators consisting of one relative each from both sides. (Holy Quran: Surat Al Nisa No 4 - Ayat 35).
In case of Shamim Ara v/s Union of India reported in (2002) 7 SCC 518, the Honourable Supreme court emphasized upon necessary requirement of reconciliation before dissolution of Muslim marriage.
The efforts of mediation and reconciliation may result in the reunion of spouses. However, expecting that every matter should result in reunion is against human nature and any compulsion would ruin the concept on which the edifice of family system and society is built. If in any case, efforts to reunite the spouses is not successful, the spouses may be convinced to arrive at a settlement to dissolve marriage by mutual consent. If the efforts of mediation do not bring them together to arrive at a settlement, spouses may opt for any mode of dissolution of marriage as a last resort.
MODES OF DISSOLUTION OF MUSLIM MARRIAGE
I - Dissolution of Marriage by Mutual Consent;
(Holy Quran: Surat Al-Baqara No 2 - Ayat 229).
It is of two Types
(i) “Mubara'at”
- It means the dissolution of marriage by Mutual consent.
- The proposal of Mubara'at may be offered by either husband or wife.
- When there is offer by wife, she need not to relinquish her right or to return material gain or to pay consideration to husband.
- It provides same procedure as provided in the provisions of section 13-B of Hindu Marriage Act or other laws, but without restriction of filing petition after one year of separation and there is no need to wait for six-months cooling period.
- It has the effect of instantaneous and irrevocable single Talaq as soon as accepted by the spouses.
- The Mubara'at takes effect as soon as the spouses admit and affirm their intention to dissolve marriage with mutual consent.
- Court has to endorse the intention and to declare that the marriage is dissolved, after verifying the intention of spouses.
(ii) “Khula with consent of husband”
- It also means the dissolution of marriage by Mutual consent.
- The proposal of khula always offered by wife and accepted by husband.
- Wife offers to relinquish her right or to return material gain for her release from marital tie.
- It provides same procedure as provided in the provisions of section 13-B of Hindu Marriage Act or other laws, but without restriction of filing petition after one year of separation and there is no need to wait for six-months cooling period.
- It has the effect of instantaneous and irrevocable single Talaq as soon as accepted by the spouses.
- The “Khula with consent of husband” takes effect as soon as the spouses admit and affirm their intention to dissolve marriage.
- Court has to endorse the intention and to declare that the marriage is dissolved, after verifying the intention of spouses.
II Dissolution of Marriage by wife unilaterally.
A- “Khula without consent of husband”
- Where the wife gives offer for dissolution of marriage but husband refuses to accept the same, the wife may approach to the court for dissolution of marriage upon her attempt to dissolve marriage.
- The Hon’ble Kerala High Court in the case reported in 2021 SCC OnLine Ker 2054 (Identity of parties not disclosed) Indiankanoon.org), after considering the provisions of Shariyat and the opinions of Islamic Jurists held that wife is entitled to dissolve the marriage by adopting the mode of Khula even husband has refused her offer. Hon'ble High court has culled out the requirements to be satisfied by wife to avail unilaterally the mode of Khula.
a) A declaration of repudiation or termination of marriage by wife. (Her intention to avail mode of Khula)
b) An offer to return dower or any other material gain received by her during marital tie.
c) An effective attempt for reconciliation was preceded before the declaration of khula.
B- “Talaq-e- tafwiz”
The pronouncement of talaq by Muslim wife, in the delegated manner, to whom power of pronouncement of talaq is delegated by her husband. Same procedure is applicable which applies to the pronouncement of Talaq by Muslim husband. This mode of dissolution of marriage is not generally in use.
III Dissolution of Marriage by husband unilaterally
Talaq:- means voluntary pronouncement of Talaq ( reciting or uttering word Talaq or any similar word ) by Muslim husband with intention to dissolve the marriage either oral or written or in electronic form or in any other manner whatsoever.
- Where the efforts of mediation by arbitrators do not bring positive result, then husband can opt to pronounce single talaq.
- Pronouncement should be during tuhr (Period between two menstruation) having no sexual intercourse.
- After pronouncement husband should abstinence from sexual intercourse for the period of Iddat.
- Husband may revoke the talaq within Iddat period (Next three successive menstruation period)
(Holy Quran: Surat Al Baqra No 2 - Ayat 228)
- This mode correct mode of pronouncement of talaq as per origin of Shariat Law is called Talaq-e Ahsan or Talaq-e- Rajai.
- During the period of Iddat neither the husband should drove the wife out of house not she should leave, unless they are committing a clear immorality. (Holy Quran: Surat Al Talaq No 65 - Ayat 1).
- Husband may revoke talaq expressly or impliedly.
- The wife may try to attract husband, so that he could think for revoking talaq. (Holy Quran: Surat Al Talaq No 65 - Ayat 1, exegesis of Tafheem-ul-Quran by Syed Abul Ala Maududi.).
- In case, talaq is not revoked within Iddat period, it will become final.
- Husabad cannot revoke after Iddat period.
- After Iddat period talaq-e-ahsan converts as Talaq-e-bain, and marriage would stand dissolved.
- The dissolution of marriage by adopting m`ode of Talaq-e- Ahsan does not require to observe HALALA for re-marriage between the same couple, until that dissolution of marriage is of third time.
IV Pronouncement of Talaq adopting Mode of Talaq-e-hasan is also recognised which may be described as under:-
“Talaq-e-hasan” means and consists of three pronouncements of Talaq made by a Muslim husband during successive tuhr (Period between two menstruation) having no sexual intercourse, followed by abstinence from sexual intercourse, revocable within period of Iddat before the third pronouncement.
However adopting mode of Talaq-e-ahsan is only best and recommendable mode.
The pronouncement of talaq adopting mode other than Talaq-e- ahsan and Talaq-e-hasan is called Talaq-e- bidat. The effect of pronouncement of Talaq-e-bidat is not disputed among Islamic jurists of Sunni sect but pronouncement of triple Talaq in one sitting is offence and having no effect in India.
Other mode of dissolution of Muslim marriage, now not in general practice, in India
1- Ila: ( Caption 317 of Mohammedan law by mulla )
It is constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.
Hadith
Narrated Nafi`: Ibn `Umar used to say about the Ila (which Allah defined (in the Holy Book), If the period of Ila expires, then the husband has either to retain his wife in a handsome manner or to divorce her as Allah has ordered. ( Book of Hadith Sahih Bukhari = Hadith No 5290)
2- Zihar: ( Caption 318 of Mohammedan law by mulla )
In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete.
AFTER THE EXPIRY OF FOURTH MONTH THE WIFE HAS FOLLOWING RIGHTS:
(i) She may go to the court to get a decree of judicial divorce.
(ii) She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. It can be revoked if: (i) The husband observes fast for a period of two months, or, (ii) He provides food at least sixty people, or, (iii) He frees a slave. (Holy Quran: Surat/Chapter. 58 - Ayat No 3 and 4 = Book of Hadith Jam e Tirmizi- Hadith No 3299) According to Shia law Zihar must be performed in the presence of two witnesses.
3- Lian: ( Holy Quran: Surat/Chapter. 24-Ayat No 6 to 9 )
( Caption 333 of Mohammedan law by mulla )
If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.
Hadith
Narrated Ibn `Umar: Allah's Apostle separated (divorced) the wife from her husband who accused her for an illegal sexual intercourse, and made them take the oath of Lian. ( Book of Hadith Sahih Bukhari = Hadith No 5313)
COMPULSORY PRE- LITIGATION MEDIATION / RECONCILIATION IS NECESSARY IN EVERY MATRIMONIAL DISPUTE
- In the case of Srinivas Rao V/s D. A. Deepa reported in AIR 2013 SC 2176 the Hon'ble Supreme Court has recognised mediation as an effective method of alternative dispute resolution in matrimonial matters and advised the parties to explore the possibility of settlement through mediation in matrimonial dispute, directing all mediation centre to set up pre-litigation desks/clinic and to give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage.
- The Maharashtra State legal Services Authority has issued directions to all the Chairman of the District Mediation Monitoring Committees under District Legal Services Authority and all Principal Judge, Family Court of all district in Maharashtra to set up pre-litigation desks/clinics for matrimonial disputes vide its letter no. Mediation/2019/360 dated 30/05/2019.
- Now in all district of Maharashtra a pre-litigation desk / clinic for matrimonial disputes is in existence. If a spouse feels that the matrimonial dispute cannot be resolved privately, he or she may apply for mediation of the matrimonial dispute by pre-litigation desk/clinic.
DISSOLUTION OF MUSLIM MARRIAGE BEFORE COURT ADOPTING EXTRA JUDICIAL MODE
It is the misconception that the matters of Khula, Mubaraat and Talaq must be dealt with by Kazi. However, these matters are required to be dealt with only before the Court of Law established by the Constitution of India. Kazis are being appointed as per the Provisions of Kazi Act, 1880 having no judicial powers.