In India, as with most personal matters, rules for divorce are connected to religion. Divorce among Hindus, Buddhists, Sikhs and Jains is governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All civil and inter-community marriages are governed by the Special Marriage Act, 1956. The divorce law works with some conditions and not in all situations. A spouse can initiate to give a legal notice for divorce to the other spouse before ending the husband and wife relationship. Divorce by mutual consent can be obtained within six months, but no petition in such a case can be filed within the first year of marriage. There also has to be a gap of six months between the first and second motions. The six-month cooling-off period is offered in the hopes of avoiding divorce if there is any prospect for reconciliation. But in some cases, the court can waive this cooling-off period. Procedure for getting a divorce by mutual consent in India- 1. Petition to file divorce 2. Parties must appear before the court 3. Record statement under oath 4. The first motion will be passed 5. Final hearing of the petition 6. Verdict on the divorce For getting a Mutual Divorce in India, firstly the parties have to file a joint petition for disbanding the marriage under Section 13B of the Hindu Marriage Act, 1955. The petition will be presented to the family court stating that they are unable to follow conditions and they have come to terms to part their ways. After that divorce proceeding will be initiated. Then the court may try to reconcile the spouses, if in vain, the divorce procedure proceeds. After satisfaction of the court and scrutiny of the petition, a statement of the parties will be taken on oath. The first motion will be passed and six months is provided for the second motion. After the parties appear for the second motion, and if everything is a smooth sail, they can proceed with the final hearings of the case. If the court is satisfied after hearing the allegations and if there is no means of reconciliation and cohabitation, the verdict shall pass on as ‘marriage dissolved’. Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provide for divorce of Mutual Consent. 2) THE PROCEDURE FOR CONTESTED DIVORCE IN INDIA Where the parties claim an irretrievable breakdown of the marriage and choose to move forward with legal separation. Under Section 13, Hindu Marriage Act, 1955, There are available many grounds of divorce on which both husband and wife can file a divorce petition. Under sub-clause (1) of section 13 of the Act, there are available 9 fault grounds on which divorce can be taken. These grounds are such as- a. Desertion, b. Adultery, c. Cruelty, d. Venereal disease, e. Leprosy, f. Insanity, and g. Conversion. In a contentious divorce, the petition under Section 13 of the Hindu Marriage Act, is filed by only husband or wife. The petition will contain the facts and circumstances narrated by the wife or husband requesting the divorce. After fulfilling all the formalities the petition will be filed in the family court as per jurisdiction. On the first date of hearing, the court would examine the petition and hear the opening arguments consisting of reasons and claims of the petitioner through his Advocate. After satisfaction, the court will issue summons to the other party along with a copy of the petition. And she or He would be required to appear in the Court on the next date of hearing. Then on the next date court may direct them to go for mediation. If mediation is unsuccessful then the court will proceed with the divorce proceeding. Then the court will formulate issues and record evidence of the parties. If the court is satisfied after hearing the allegations and if there is no means of reconciliation and cohabitation, the verdict shall pass on as ‘marriage dissolved’. JUDICIAL SEPARATION • It has been made available under Section 10 of the Hindu Marriage, 1955 • Judicial separation is merely a suspension of marriage It's temporary. • Judicial separation can be claimed at any time after marriage • Judicial separation does not cause the couples to be remarried. • One judgment procedure is required for judicial separation • After passing a judicial separation decree in the courts, there is still scope for reconciliation Play. DIVORCE IN MUSLIM LAW Talaq-i-rajee- Revocable Divorce Talaq-e-Bain- Irrevocable Divorce Any Mohammedan who is found of sound mind and has attained puberty may divorce his wife without any cause. In Sunni Law, a talaq under compulsion or intoxication or fraud is also valid but it is void in Shia Law. Talaq could be oral (spoken words) or in writing (talaqnama). i. My husband at his will, i.e., talaq-ul-sunnat, Talaq-ul-biddat, Ila, and Zihar ii. By mutual consent of the husband and wife, i.e., Khula and Mubara’at iii. By the wife under a power delegated to her, i.e., talaq-e-tafwid. iv. By judicial decree under the Dissolution of Muslim Marriage Act, 1939. Talaq-ul-sunnat a. Talaq-ahsan (ahsan means best, very proper form of talaq) It has 3 conditions • Husband makes a single pronouncement of divorce • The pronouncement is made during a tuhr (the period when the woman is not menstruating) • Husband abstains from sexual intercourse for the period of iddat (90 days). (After iddat the divorce becomes irrevocable). b. Talaq-Hasan (Hasan means good, proper form of talaq) • There are three pronouncements of talaq made during successive tuhrs. • There must be abstinence from sexual intercourse until the third pronouncement. Talaq-ul-biddat • Biddat came from biddah (innovation), which means that this form of talaq was devised later. • This form of talaq is for ‘instant divorce’. It is an irrevocable form of divorce. • It is banned in most of the Islamic nations of the world. In India, it is only recognized by the Sunni School. • It was held unconstitutional by Supreme Court in Shayara Bano vs. UOI (2017). • the Triple Talaq Act i.e. The Muslim Women (Protection of Rights on Marriage) Act,2019 criminalizes ‘triple talaq’ with up to 3 years of punishment for the husband. ILA It is a type of constructive divorce, in this the husband vows of abstinence and if he keeps the vow for 4 months wife gets the right to seek judicial divorce. This type of divorce is almost obsolete nowadays. ZIHAR Zihar is a form of inchoate divorce. If the husband compares his wife to any of his female relations within such prohibited degrees as renders marriage with such person as unlawful, the wife has a right to withdraw from him until he has performed penance. If the husband does not expiate, the wife has a right to apply for judicial divorce. TALAQ-E-TAFWID The husband can delegate his power of giving talaq to some third person or to his wife. This power could be delegated absolutely or conditionally, for a particular period of time or permanently. Temporary delegation is irrevocable, but a permanent delegation may be revoked. An agreement made either before or after the marriage, that under certain conditions, the wife can pronounce divorce upon herself is valid, provided the conditions are reasonable and not opposed to the policy of Mohammedan Law. An agreement between husband and wife, by which the husband and wife, by which the husband authorizes the wife to divorce herself from him in the event of his marrying a second wife without her consent are also valid in this regard. KHULA Khula is divorced with consent and at the instance of the wife. Khula means, ‘to lay down. In law, it means laying down by a husband of his right and authority over his wife. The essential conditions of Khula are: i. there is an offer from the wife; ii. the offer is accompanied by some consideration or compensation by the wife to the husband instead of her release from the marital bond; iii. The offer must be accepted by the husband. Once the offer is accepted, it operates as a single irrevocable divorce (talaq-e-bain). MUBARA’AT/MUBAARAH Like khula, mubara’at is also a form of divorce where marriage is dissolved by agreement between the parties. The difference between the two is that in khula, the aversion is on the side of the wife and she desires a separation, whereas in mubara’at the aversions are mutual and both the parties desire a separation. Unlike in khula, in mubara’at, the wife is not required to pay any compensation. The offer in a mubara’at divorce may proceed from the wife or it may proceed from the husband, but once accepted, the dissolution is complete and it operates as a talaq-e-bain as in the case of khula. BY JUDICIAL DECREE- Section 2 of The Dissolution of Muslim Marriage Act, 1939 provides grounds through which a woman can obtain a decree of dissolution of her marriage. • Whereabouts of husband not known for 4 years • Failure of husband to provide maintenance for 2 years • Sentence of imprisonment on the husband for a period of seven years • Not performing marital obligations without reasonable cause for 3 years • Cruelty • Impotence, insanity for 2 years or leprosy or a virulent venereal disease • Repudiation of marriage by the wife • Any other ground which is recognized as valid for the dissolution of marriage under Muslim Law.
