Divorce literally means the dissolution of marriage. It is the process whereby a marital union comes to an end. Parties are no longer husband and wife, they don’t have the obligation to cohabit or perform their marital obligations. In India, divorce requires a decree of the court. Divorce is a matter that comes under the purview of various personal laws since we do not have a uniform civil code.
Divorce under Hindu Law
Section 13 of the Hindu Marriage Act lists down the conditions whereby the aggrieved party can petition for annulment of marriage. There are 9 grounds under Section 13(1) whereby, both the husband and the wife can petition for annulment of marriage. The grounds are:-
e) A virulent and incurable form of Leprosy
f) Venereal Disease.
g) Conversion to another religion (ceased to be a Hindu)
h) Renunciation of World
i) Presumption of death.
Section 13(2) lays down special grounds whereby a wife alone could seek a divorce. There are four grounds namely,
a) If any wife (former or latter) of the polygamous marriage may seek a divorce. The only requirement is that at the time of the presentation of the petition, at least, one more wife should be alive;
b) The husband has, since the solemnization of marriage been guilty of rape, sodomy or bestiality;
c) If the wife has obtained an order for maintenance under Section 125 CrPC or by a decree under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 and since then cohabitation between parties has not started after a year or after the passing of the decree;
d) If the wife was married before the age of 15, and who had repudiated the marriage after attaining that age but before the age of 18, can seek divorce irrespective of the fact that the marriage has been consummated or not;
Divorce under Christian Law
The Divorce Act, 1869 applies to the Christians and it lists 10 grounds for dissolution of marriage under Section 10(1). It recognizes similar grounds enshrined under Section 13(1) of the Hindu Marriage Act, 1955 barring renunciation of the world. It also recognizes unsoundness of mind, willful refusal to the consummation of marriage and no consummation, and failure to comply with a decree of restitution of conjugal rights as grounds of divorce.
An additional ground for a wife has been enshrined under 10(2) of the Act. She could seek divorce if the husband has been guilty of rape, sodomy or bestiality.
Divorce under Mohammedan Law (for women)
Under Section 2 of the Dissolution of Muslim Marriage Act, a woman married under Muslim law shall be entitled to seek divorce on the following grounds –
- If the whereabouts of the husband have not been known for a period of four years.
- If the husband has neglected or has failed to provide for her maintenance for a period of two years.
- If the husband has been sentenced to imprisonment for a period of seven years or upwards.
- If the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.
- If the husband was impotent at the time of marriage and continues to be so.
- If the husband has been insane for a period of years or is suffering from leprosy or virulent venereal disease.
- If she had been given in marriage by her father or another guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years.
- If the husband treated her with cruelty.
- On any other ground which is recognized as valid for the dissolution of marriages under Muslim law.
Muslim personal law is largely uncodified
Mohammedan law is largely uncodified and hence, the law relating to divorce is mostly an extra-judicial activity.
Extra-judicial divorce can be divided into the following parts –
- By husband – Talaq (Talaq-ul-biddat and Talaq-ul-Sunnat), Ila and Zihar.
- By wife – Talaq-i-Tafzeen and Lian.
- By Mutual Consent – Khula and Mubarak
Talaq-ul-Biddat is Instant tripe talaq whereby the husband pronounces ‘talaq’ three times and he gets divorced. It is unconstitutional in India.
Ila – husband takes an oath to not have sexual intercourse with her wife.
Zihar – husband compares her wife to a woman of a prohibited degree of relationship e.g. sister, mother etc.
Talaq-i- Tafweez – husband delegates the power of divorce to the wife or to any other person.
Lian – if the husband levies false charges of unchastity or adultery against his wife.
Khula and Mubarak are two types of divorce by mutual consent i.e. when both the parties agree to obtain a divorce against each other.
Divorce, as mentioned, is the termination of a marital union. Mostly all the divorce laws across religions revolve around the three theories – guilt theory ( where one party has to be blamed), mutual consent ( divorce occurred by mutual understanding), and irretrievable breakdown theory ( where marriage is beyond repair). Termination of marriage is perceived as an unfortunate incident but at times it is also perceived as a necessity due to the problems in marriage itself. Special grounds have also been granted to women in both Hindu and Mohammedan law.