DIVORCE: THE DISSOLUTION OF MARRIAGE IN INDIAN SOCIETY By- Shristi Raj & Shilpi Kumari

DIVORCE: THE DISSOLUTION OF MARRIAGE IN INDIAN SOCIETY

Authored By- Shristi Raj & Shilpi Kumari

 

 

 

ABSTRACT

Marriage in India is not just a tie between two individuals but is a matter concerning the two families and this is the reason why divorce is major and most bitter concept here. This paper at hand seeks to provide an overview of the concept of divorce under the Hindu law and the Islamic law. Though the concept of marriage under Islamic law is a contract, the basis of divorce under Muslim law is all upon the capacity of party to continue that contract. Whereas, Under Hindu law, marriage is not a contract, nor it is a human made tie but a sacred concept and considered as divine miracle when two individuals meets and tie the nodes before the sacred fire. Thus, under Hindu law there was no concept of dissolution of marriage until the implication of the Hindu Marriage Act, 1955. Here, in this paper, we will examine the concepts of divorce under both the Hindu as well as Muslim law in India.

KEYWORDS: Marriage, Divorce, Contract, Hindu law, Muslim law.

 

DIVORCE UNDER HINDU LAW

INTRODUCTION

In Hindu religion marriage is considered as sacrament that cannot be broken In ancient times, there was no concept of divorce and it can be said that it didn’t even exist, husband and wife cannot be separated from each other because it cannot be broken even after by death but later on the concept of divorce came and Divorce was introduced under Hindu Marriage Act 1955.

 

According to kautilya in Arthashashtra, marriage can be dissolved by mutual consent in an unapproved form of marriage.[1] On the other hand, Manu does not believe in the concept of the dissolution, According to Manu the only way to end the marriage is the death of one of the Spouses.[2]

 

THEORY OF DIVORCE

There are various types of theories for Divorce:

• FAULT THEORY

Under Fault theory, marriage can be dissolved if one spouse committed offence against another spouse and if both spouses at fault, then no one will be able to seek the remedy of divorce. Under the Hindu Marriage Act 1955 section 13(1) lays down nine fault grounds of divorce.

 

• MUTUAL CONSENT THEORY

Under Mutual Consent theory, the marriage can be dissolved by mutual consent of both spouses. Under the Special Marriage Act, 1954, Section 13-B there are provisions of jointly filing of petition by mutual consent.

 

The Hindu Marriage Act 1955 also lays down the provisions for divorce by mutual consent with following averments:

1. That they have been living separately for a period of one year
2.  They have not been able to live together,
3. They have mutually agreed to live separately.[3]

 

• IRRETRIEVABLE BREAKDOWN THEORY

Under Irretrievable breakdown theory, Failure of matrimonial relationship is the cause of dissolution of marriage, both spouses can take the divorce when both of them are unable to live together. This breakdown theory was introduced under the Hindu Marriage (Amendment) Act 1964 by modifying the two clauses of the section 13 (1) viz., clause (viii) and clause (ix). This change brings with modification in section 13 (IA) which runs as:

Either party to a marriage, whether solemnized before or after the commencement of this Act, may seek divorce on grounds-

1. There has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upward after passing of a decree for judicial separation in a proceeding to which they were parties; or
2. There has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.[4]

 

THE HINDU MARRIAGE ACT 1955

Divorce means dissolution of marriage. The Hindu Marriage Act 1955 actually based on the fault theory of divorce which enlists nine grounds of fault by one party which leads to divorce or the dissolution of marriage under section 13. Section 13 of the act is classified into two divisions:

Section 13 (1) enshrined the grounds of divorce under which either the husband or the wife can sue for divorce, whereas, section 13 (2) provides grounds on which only wife can seek divorce from her husband.

 

In Gaurav Nagpal v. Sumedha Nagpal case[5] an issue raised that whether section 13 was conceived as a provision to strengthen the institution of marriage. Since there is an increase in dissolution of marriage, this provision seems inefficient in fulfilling its objective. Then the honorable Apex court held that the validity of this provision cannot be questioned. Work has to be done at various other levels in order to strengthen the marriage institution. 

 

GROUNDS OF DIVORCE

1. ADULTERY

 Adultery is defined under section 497 of the Indian Penal Code.  Adultery is an offence where one person has done a sexual intercourse with another women who is married to another women and Adultery and if person found guilty for committing Adultery then it will be punishable with imprisonment which may extend to five years, or with fine, or both. Under the Hindu Marriage Act the concept of Adultery was inserted by the Marriage Laws Amendment Act,1976. In many countries, Adultery is not an offence but according to the Hindu Marriage Act 1955 Adultery is considered as an offence and cause of the seeking divorce. Adultery means voluntary intercourse between the husband and his second wife and it can also be considered as bigamy and the individual will be liable for committing.

In the case of Swapna Ghose V. Sadanand Ghose[6], the wife found her husband with other girl lying on the same bed and the neighbor also confirmed that the husband has committed an offence. Here the wife gets the divorce.

 

1. CRUELTY

Under the concept of cruelty include mental cruelty and physical cruelty as well. Mental cruelty means one spouse can be mentally tortured by another spouse and affects the health of a person and physical cruelty means one spouse beats another spouse and it causes bodily injuries to other spouse.

 

In Pravin Mehta v. Inderjeet Mehta[7], the court has defined mental cruelty as ‘the state of mind’, as the honarable court held that “Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the cases”.

 

In Raj Talreja v. Kavita Talreja[8], the court held that “Cruelty can never be defined with exactitude”. The court also held that: “All the acts and conducts, in our considered view, constitute cruelty. Further, as is evident, it was not a solitary instance of cruelty on the part of the defendant and appellant. They indulged in repeated acts of cruelty and misbehavior with her husband”.

 

Some instances of Cruelty are as follows:

● False accusations of adultery or unchastity.

● Demand of Dowry

● Refusal to have marital intercourse/children

● Impotency

● Birth of Child

● Drunkenness

● Threat to commit suicide

● Wife’s writing false complaints to employer of the husband

● Incompatibility of temperament

● Irretrievable breakdown of marriage

 

With these above mentioned grounds of cruelty, there are some grounds which does not amount to cruelty which are as follows:

● Ordinary wear & tear of married life

● Wife’s refusal to resign her job

● Outbursts of temper without rancor

 

1. DESERTION

Desertion means a permanent leaving of one spouse by the other spouse without giving any justification and without his consent.

In the case of Bipinchandra v. Prabhavati[9], the Supreme Court stated that if the respondent leaves the matrimonial home with the intent to desert, but later shows an intention to return and is prevented from doing so by the petitioner, he is not guilty of desertion.

 

1. CONVERSION

Under this, if one spouse converts his/her religion without taking the consent of the other spouse, such as Islam, Christianity, Judaism etc.then the other spouse can seek the Divorce and approach the court.

 

1. INSANITY

If One spouse is suffering from insanity, that means if One spouse is of unsound mind then it can be one of reasons to seeking divorce.

 

1. LEPROSY

Leprosy is an disease of the nervous system and this disease is transmitted from one spouse to another and this can be considered as a valid ground for taking divorce.

 

1. VENETRAEL DISEASE

Venereal disease can be transmitted from one person to another such as AIDS, gonorrhea etc. and this can be considered as a valid ground for taking Divorce.

 

1. RENUNCIATION

Renunciation means one spouses has decided to walk on the path of God and to renunciate the world, then it can be a valid reasons for seeking divorce and other spouse can approach the court.

 

1. PERSUATION OF DEATH

 Presumption of Death is given under section 13(1) (vii) of the Hindu Marriage Act, 1955.If the family or friend does not hear any news about the person that person is alive or not for seven years then it can be one  of the reasons for seeking divorce, but the burden of proof is lie on the person who demands the divorce

 

CONCEPT OF DIVORCE WITH MUTUAL CONSENT:

If there is a mutual consent of both spouses for seeking divorce and both are not living together, they are living separately and they are unable to live with one another then it can be one of the reasons for seeking divorce and under section 13B, the person can file the petition for seeking divorce by their mutual consent of both the parties and the parties are required to wait for one year from the date marriage for seeking Divorce.

 

REMARRIAGE OF A DIVORCEE:

According to Section 15, when the marriage gets dissolved and any other petition has not filed by both spouses against the order of court and if time of appeal has expired then in that time it is assumed that spouses are satisfied and then in that situation divorced person can marry again.

 

DIVORCE UNDER MUSLIM LAW

Under Islamic Law, Marriage is treated as a contract where parties come together with their mutual consent. Because marriage is a contract here, the dissolution of marriage is also prescribed under the Islamic law. The best classification of divorce has been given by Fyzee in his book[10] where he classified divorce way more scientifically. According to his classification, marriage under Islamic law can be dissolve in two ways: By the act of the parties and By the decree of the court of law.

 

CLASSIFICATION OF DIVORCE

The term ‘divorce’ includes all separation originating from the husband and repudiation for talak in the limited sense, namely, of separation effected by use of appropriate word[11]. Islamic law from the very initial stage recognized the judicial and Extra judicial modes of divorce. Where judicial divorce is referred to as irrevocable, the extra judicial pronouncement of divorce is revocable. A revocable pronouncement of talaq does not dissolve marriage until the iddat period has expired, whereas an irrevocable pronouncement dissolves the marriage immediately on its pronouncement.[12] In Islam, divorce is considered as an exception to the status of marriage. However, there are three modes of divorce, each one of which is prescribed under Islamic law with separate rules. Under Muslim law, a marriage is dissolved either by the death of either party, I.e., the husband or the wife, or by court of law.

 

DIVORCE BY THE HUSBAND

• TALAK

             “Talak” is an Arabic word which means ‘Taking off any tie or restraint’. Technically, Talak is a mode of divorce which vested absolute power to the husband over his wife in way to dissolve the marriage. Generally, it has been used for all kinds of divorce, but the term particularly applied for the divorce by the husband.

 

In the case of Moonshee Buzloor Rahim v. Laleefutoon Nisa[13], it was held that under Islamic law talaq is mere arbitrary act of a Muslim husband who may repudiate his wife at his own pleasure with or without cause. He can pronounce the talaq at any time.

 

Under Shia law, the pronouncement of talaq is not effective unless these conditions have fulfilled:

1. Strictly in accordance with the Sunnat
2. Pronouncement must be in Arabic terms
3. Presence of at least two adult male witnesses
4. The distinct intention to dissolve the marriage tie
5. Out of husband’s own free will
6. While sane and possessed to sound understanding
7. After attainment of puberty

This talaq is further classified into different modes:

• Talaq Ul Sunnat

             This mode of talaq is effective in accordance with the traditions of the prophet. Talaq ul sunnat has been further sub classified into:

1. Ahsan: Most approved mode of talaq

            This mode of talaq must fulfil these conditions:

               a.  The husband must pronounce the formula of divorce in a single sentence

               b.  The pronouncement of divorce must be in a state of purity (tuhr)

               c.   He must abstain from intercourse for the period of iddat.

 

1. Hasan: Good mode of talaq

            This mode of talaq must fulfil these conditions:

                a.  There must be three successive pronouncements of the formula of divorce

                b. In the case of menstruating wife, the first pronouncement should be made during a period of tuhr,

The second during the next tuhr and the third during the succeeding tuhr.

                c.  In the case of non-menstruating wife, the pronouncement should be made during the successive Intervals of 30 days.

                d.  No sexual intercourse should take place during these three periods of tuhr. 

 

• Talaq Ul Biddat

             In Islamic law, under the talaq ul biddat, once a definite complete separation has been taken place the husband and wife cannot remarry without the formality of wife marrying another man and divorced him.

Talaq ul biddat is a mode of divorce when:

1. Three pronouncements made in single tuhr, either in single sentence or in separate sentences.
2. A single pronouncement made during a tuhr clearly indicating an intention to revoke the marriage.[14]

OTHER MODES OF DIVORCE BY THE HUSBAND UNDER MUSLIM LAW:

• ILA

Under Ila, a Muslim husband can repudiate his marriage with an oath following not entering sexual intercourse with his present wife for a period of four months.

The Ila needs to fulfil the following ingredients:

1. The husband must be of sound mind and must have attained majority.
2. He swears by God or takes a vow.
3. That he will not have sexual intercourse with his wife.
4. In pursuance of the vow, he abstains from sexual intercourse with his wife for four months or more.

 

• ZIHAR

Here, if a Muslim husband in sanity compares his wife with any female within a prohibited degree. Zihar means a husband tells his wife that “she is much like back of his mother to him”. It is also referred as a constructive divorce. Here, after such objectionable comparison of her, the husband must restrain any sexual intercourse with his wife for four months and upon the expiry of the fourth month, the zihar seems to be completed. Also, the wife has a right to refuse herself to him and has a right to apply for a judicial divorce.

 

DIVORCE BY THE WIFE

• TALAQ IT TAFWEED

This mode of divorce is considered as delegated divorce and is recognized by both the Shia and the Sunni. Here the 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. This mode of divorce usually in the prenuptial agreements but this is not the bar as this may be stipulated under post marriage agreements as well.

 

• LI’AN

In case where the husband levels charges of adultery or unchastely against his wife maybe false in nature and surrounded with character assassination, the Islamic law gives power to that wife to ask for divorce to her husband. This mode of divorce is based on the the holy Qur’anic verses which instructs the husband to respond against his rude and bad behaviour towards his wife in way to swear “four times”.

Three basic conditions to fulfil the Li’an:

1. The status of marriage should be in continous between the spouses
2. The marriage should be valid
3. The husband must be liable to be a witness and not to have been given the punishment of qazf.

• JUDICIAL DIVORCE

FASKH

Under the Dissolution of Muslim Marriage Act, 1939, there are provisions of judicial divorce which is applicable to all the muslim women. Section 2 of the Act laid down nine grounds on which a Muslim wife can seek divorce to her husband.

Those nine grounds under section 2 of the Dissolution of Muslim Marriage Act, 1939 are as follows:

1. Absence of husband for more than the period of four years
2. Failure to provide maintenance for more than two years
3. Imprisonment of husband for the period of seven or more years
4. Failure to perform marital obligation for the period of three years
5. Impotency of husband at the time of marriage and continues to be so.
6. Cruelty
7. Insanity, leprosy or venereal disease
8. repudiation of marriage by wife till she attain eighteen years of age, if at the time of marriage she was below the age of fifteen years
9. Any other ground recognized under Muslim personal law.

 

CONCLUSION

Marriage is not just a bond of two individuals but a matter of concern for the whole society. Marriage has been considered as a divine miracle and is the connection of souls. Though the concept of divorce is not completely absurd, peaceful separation from any unwilling relationship is far better than living in an unhappy, toxic or suffocating relationship. Divorce in itself is not problematic but arisen in stacks of divorce now a days needs our concern. The most biggest victim in the whole procedure is the child in case who at the same time is the most unheard voice. Marriage is totally based on compatibility and companionship what people need to know and realize. And in India, maintaining a relationship with mutual contribution is something everyone has been taught since childhood. Under both, the Hindu as well as the Muslim law, have provisions of divorce but at the same time it also has some conditions mentioned which shows, until and unless the relation is in in problem, just for the sake of enjoyment and choice one cannot break or dissolve this pure of the purest bond that divine itself made.

 

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[1] Https://www.legalserviceindia.com/legal/article-6487-divorce-under-hindu-marriage-act-1955

[2] https://blog.ipleaders.in/divorce-under-hundu-marriage-act-1955

[3] Girija v. Vijay, 1995 Ker 159

[4] Paras Diwan: Modern Hindu Law

[5] 2009 SC 557

[6] Swapna Ghose v. Sadananda Ghose, AIR 1979 Cal 1

[7] (2002) 5 SCC 706

[8] (2017) 14 SCC 194

[9] Bipinchandra Jaisingbai Shah v. Prabhavati, AIR 1957 SC 176 122

[10] Fyzee, “The Muslim wife’s right of dissolving her marriage” (1936) 38 Bom. Law Reporter, LJ 113.

[11] Furzund Hussain v. Janu Bibee, (1878) 4 CAL 588; Ahsa Bibi v. Kadar, (1909) 33 Mad. 22

[12] Saxena K.P. : book on Muslim law, p 76

[13] Moonshee Bulzoor Rahim v. Laleefutoon Nisa, 8 MIA 397

[14] Aqil Ahmad: Mohammedan law, p. 171