Divorce Laws In India Is Most Complicated Due To Diversity In Religions and Cultures
In India, people used to believe that marriage is a bonding for their whole life. Unlike most of the western countries, the occurrences of divorces were very rare in India. Now, many women in India are financially independent, and they also understand their fundamental rights. If things are not going well in the their marriage relationships, they are willing to take legal help for terminating their marriages. Divorce is not seen as much as a taboo like it was in the past.
However, the divorce rates is still on the lower side of 13 divorces in 1000 marriages in India, while in UK, it is 500 divorces in 1000 marriages. Data shows that between 2003 to 2011, the increase in the divorce rates in Kolkata is 350 %, while in Mumbai, it has doubled from 2010 to 2014.
By looking at above trend, it is interesting to know about the divorce laws that are prevailing in India. There is another reason why the divorce laws in India are much more complicated and time consuming. As India is a very big country, having a number of religions and cultures, the marriage and divorce laws become much more complex, in comparison to any other western countries.
What is Divorce in India?
Divorce is basically the legal way to terminate any marriage. It is one of the most difficult decisions for any couple, as in India the concept of marriage is very deep rooted. Therefore, when a couple decides to break up their marriage, they will have to go through a lot of social pressures as well.
Also, the entire legal divorce process is too time consuming. What it means is that the husband and wife will have to go through extended suffering, humiliation, and mental disturbances. Therefore, before opting for divorce, one must understand that this process will take at least a year, and in some cases, it may even keep dragging on for a number of years.
As mentioned above, India is a country with different religions, and each of them have their own set of rules and ethics, so far as their marriage and divorce laws are concerned. Therefore, the divorce procedure of each community can vary significantly from the other.
- Hindus, Sikhs, Buddhists, and Jains are governed by the Hindu Marriage Act 1955. If the couple belong to Christian, Muslim, or Parsi religions, then they have their own separate laws for their marriage, as well as for divorce.
- If the spouse belongs to a different community, then they will be governed by the Special Marriage Act 1956.
- If one of the spouse is from a foreign country with different nationality, then their divorce laws will be governed by Foreign Marriage Act 1969.
As the cases of divorce are increasing in India, social awareness is also increasing rapidly. The Government of India has also amended the laws to suit the modern day societies and sensibilities. The laws are more progressive, where the gender matters and other such sensitive issues are addressed better.
In India, under the Hindu Marriage Act, the divorce laws are broadly categorized as follows:
Contested divorce –
If the divorce case is going to be contested, then there must be sufficient grounds to back it. Only then the divorce petition can be filed. Any husband or wife cannot just walk into a court and ask for divorce, unless there are valid reason(s), which has to be proved. Following are few grounds under which contested divorce proceedings may take place.
- Cruelty – It can be both physical as well as mental cruelty. As per Hindu divorce law, if any one of the spouse has an apprehension in mind that the conduct of the other spouse is either harmful or injurious to them, then it can be a valid ground for obtaining divorce under cruelty.
- Adultery – Adultery will be considered if any one of the spouse actively indulges in consensual sex, with someone outside the marriage. Then the person can be charged for this criminal offence. If husband is involved in adultery, then wife can file divorce case. However, if the wife commits adultery, then she cannot be charged, and the husband will need to prosecute the male member who is involved in the adultery.
- Desertion – If one of the spouse deserts the other without any valid reasons like cruelty, adultery, etc. then it can become a good ground for divorce. According to Hindu law of divorce, the desertion must be continuously for at least 2 years. Christians cannot file a divorce case for this reason exclusively.
- Conversion – If one of the spouse converts to any other religion, then this can be a ground for divorce, and for this there is no waiting period.
- Mental disorder – Couples can go for the divorce, if any one of them is having a mental illness, which does not allow him or her to perform the everyday duty or requirements of a married life.
- Communicable disease – If any of the spouse is suffering from communicable disease like HIV/AIDS, gonorrhoea, syphilis, or other incurable diseases, then too a divorce can be sought
- Renouncing the world – If any of the spouse decides to renounce his or her married life, and opt for Sanyasa, then the aggrieved spouse can file a case for divorce.
- Presumed to be dead – If any of the spouse is missing, and if there is no news ofthe person being alive for a minimum 7 years, then judicial decree of divorce can be obtained.
Divorce by mutual contest –
There is a section 13-B under Hindu Marriage Act, 1955 available, under which any married couple can ask for divorce with mutual consent. Here, both the spouses can decide among themselves to go separate ways, without having to face any kind of public embarrassments.
However, they will need to file a petition in the court, so that marriage can be nullified or made void in a legal manner. This is considered to be the simpler and sober way to seek divorce, instead of facing the court and publicly, and blaming each other before the court. However here the husband and wife have to agree on the following matters:
- How much maintenance or alimony will the husband will need to pay to his ex-wife. There are no limits fixed by the court, and it has to be decided mutually by the couple.
- Another things to agree is about the custody of children. This can be either shared or can be joint responsibility, where both the couples have to mutually agree.
There are few more things to closely consider, while going through divorce with mutual consent:
- This type of divorce can be sought only after one year of marriage. It has to be proved that both the couples are living separately for one year, before filing the case.
- After both the parties submit their affidavit in the court, the case will be held adjourned for 6 months, and after that they have to present before court to confirm that they are still standing by their earlier affidavit.
- This six months’ time is given so that the couple can reconsider their decision. If that is the case, they can fill an application stating that they are not interested to divorce. Court will then issue the necessary order.
- If either of the partners is still interested to stick to divorce, then divorce can only be granted under the grounds that are applicable for contested divorce (As mentioned above).
- Till the court gives their divorce order, either of them cannot remarry. Only after a 3 months’ period post the divorce date, remarriage can take place.
- The whole proceeding may take around 6 months to 12 months.
Void marriage –
Under any of the following grounds, court can declare a marriage as void:
- If either of the spouses has a living spouse from their earlier marriages, then the subsequent marriage is considered as illegal.
- If parents of either of the partner in the marriage are born under prohibited relationships.
- In case any of the partner belongs to a family of spouse – Anyone from last four generations from father’s side, or 3 generations from mother’s side, are consider as Sapinda relations.
If the marriage is declared void, then following issues can arise. The rules applicable are as follows:
- Maintenance to wife – If the marriage is void under section 488, then the wife cannot claim any maintenance. However, under section 18 of Hindu Adoption and Maintenance Act, and under section 24 of Hindu Marriage Act, the wife has the right to get maintenance.
- Children born out of void marriage – As per Hindu Marriage Act 1955, children that are born under such void marriages, will not be considered as illegal child.
Now let us discuss about the divorce law of India as regards to other religions.
Muslim religion – Under Muslim divorce laws, marriage is dissolved if either of the partner dies. Man can remarry immediately after his wife’s death, however the woman will need to wait for a specified period of Iddat as per Muslim law.
Divorce may take place anytime, however husband has an upper hand under Muslim law. Husband can divorce his wife anytime he wishes, but wife will need to take consent before opting for divorce. She will have to buy her divorce from her husband, and marriage will be dissolved by Tafweez.
Husband can divorce in following manners:
- Talaq – By uttering this word 3 times he can dissolve the marriage immediately. After a lot of controversies and political pressures, the Instant Triple Talaq is now ruled as a criminal offence.
- Ila – With this provision, the husband can abstain from all kinds of relationship from his wife
- Zihar – Any adult and sane husband can consider his wife as his mother or any other prohibited female relationship.
Wife may divorce in following manners:
- Talaq-e-tafwiz – Talaq after taking consent from his husband
- Khula – Wife can buy her divorce by paying certain compensation to her husband
- Lian – If husband falsely accuses her for any adultery, then wife has the right to ask for divorce.
Divorce under judicial procedure under Muslim Marriage Act, 1939:
Any marriage can be dissolved under this Muslim Marriage Act for the below mentioned reasons
- Lian – If the wife is falsely charged for adultery, then she can file a suit to the court by submitting an application.
- Fask – Abolition, cancellation, annulment or revocation of marriage can be applied by Muslim women, under the Fask doctrine.
Muslim woman can also file for divorce under following condition:
- If her husband is missing for 4 years, and his whereabouts is not known
- If husband neglects his wife and does not pay for her maintenance for 2 years
- If husband is jailed for 7 years or more
- If husband has failed to do his marital obligation for 3 years
- If the husband is mentally insane
- Suffering from any communicable diseases
- If the husband is impotent
- If woman was married by their parents before she attained the age of 15, then she can refuse the marriage after attaining the age of 18.
Triple Talaq issue has been considered by Islamic jurists as a part of Sharia law, for which neither there is any sanction in Holy Quran, nor any approval of Holy Prophet. Therefore, recently the parliament has passed a law under which Triple Talaq has been declared as illegal.
Christian Divorce –
Divorce proceedings of Indian Christians are governed by Indian Divorce Act, 1869. Under this act, any husband can divorce his wife on the grounds that wife was unfaithful to him and committed adultery.
Wife can submit petition for divorce under following conditions:
- Her husband changed religion to marry another woman
- Husband is guilty of adultery
- Husband married to another woman with adultery
- Husband committed rape, bestiality, or sodomy
- Husband has done cruelty and adultery
- Husband has deserted her for 2 years or more and also done adultery
Parsi Divorce –
Parsi marriages are governed under the Parsi marriage and Divorce Act, 1936. Divorce can take place under following circumstances
- If either of the couple remains separated, and if there is no communication between them for 7 years or more, and are not aware whether the other partner is dead or alive.
- If the marriage has not been consummated within one year after marriage with wilful refusal.
- If any of the partner is unsound in mind during the marriage, and it was concealed during marriage.
Under Special Marriage Act, all Indians irrespective of their religion can file divorce case under following conditions:
- If any of the partner has done sexual intercourse with someone else wilfully
- Has deserted the petitioner for continuously 2 years or more
- If the partner is jailed for 7 years or more
- Has treated with cruelty after marriage
- Suffering from mental disorder
- Any partner is suffering from any communicable disease of venereal type or leprosy
- Has not been heard whether he or she is dead or alive for 7 years or more
Wife can file a case of divorce under following conditions:
- Husband is found to be guilty of rape, bestiality, or sodomy
- No cohabitation for one year or above, after decree for judicial separation
- No conjugal rights between the party after decree for restitution of conjugal rights
No party can file divorce suit within one year after their marriage.