Marriage being a sacrament in Indian culture has a great place and respect but with changing times there comes new ways to look at it and with changing times now if a marriage is not working properly then people look for divorce as an option for benefit of both the persons in a relation.
Divorce can be one of the most difficult steps to take keeping in view number of things and circumstances. If taken a view of divorce laws in India there are number of different divorce laws in India for different religions and also special marriage act in case of marriage performed under it.
What are the rules for divorce in India?
In India there are 6 different laws
- The Hindu Marriage Act, 1955
- The Muslim Women (Protection of Rights on Divorce) Act, 1986
- The Special Marriage Act, 1954
- The Parsi Marriage and Divorce Act, 1936
- The Christian Marriage and Divorce Act,1957
- The Divorce Act, 1869
All these rules and laws provide for various rules and procedure that are to be followed by anyone who wants to obtain a divorce decree.
Legal Rights in Marriage
A marriage is not only a sacrament but is also a contractual relationship. There are number of rights which arise out of a marriage such as cohabitation and conjugal rights for which decree can also be passed by court of law but can’t be enforced forcefully and non-fulfillment can be a reason for divorce.
Right as to matrimonial home this gives her right to wife to stay in husband’s house and to be maintained by him.
Right of financial security from the spouse which is employed and receives income to the one who is not financially secured or is unemployed. Right to fidelity i.e. courtesy and decency including right not to be harassed mentally and physical cruelty.
Legitimacy of issue as to a reciprocating responsibility of both the parties which can also become ground for divorce.
Theories for Marriage
If we see ways in which divorce can be filed, these are various theories of divorce.
By Mutual consent
When both husband and wife mutually decide to take divorce and they file for mutual divorce in court of law. In this theory both the partners mutually decide all the matters of alimony, maintenance, custody and other matters. Two conditions that are required for this type of theory are (i) mutual consent and (ii) living separately for one year.
Irretrievable Breakdown of Marriage Theory
This situation arises when marriage reaches at a position where it is not possible for it to be normal again. In situation there are frequent quarrel between both and they are living separately. While granting this kind of divorce decree court examines number of circumstances and when it is satisfied as to it being irretrievable as there are no such exact rules prescribed for it.
In this particular type of divorce can be taken by one spouse by applying for it in court of law as there other spouse has done any matrimonial offence. Section 13 of Hindu Marriage provides supports and is base of this particular type of theory.
Marriage and Divorce laws also provides certain kinds of relationships in which if marriage done are termed as void marriages. Following are the types of relationships which will render a marriage void.
When a marriage is performed or solemnized without fulfill of conditions provided under Section 5 of the Hindu Marriage Act, 1955.
When a person is in spinda relationships with other then they can’t be married. A person is said to be in Spinda relationship when they are lineal assendents or decendents of one another. Upto three degree of lineage is covered under spinda relationships.
When persons falls under prohibited degree of relationship then also they can’t get married. such prohibitions are based on Consanguinity and Affinity.
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What are the Divorce Laws in India for different religions?
Divorce under Hindu Law
Definition of a Hindu includes Sikh, Jain, and Buddhist and divorce law are applicable to all these also. Section 13 of Hindu Marriage Act, 1955 provides for nine grounds on which decree of divorce can be obtained. Some of these grounds can be invoked both by husband and wife and some can be invoked only by one.
- Adultery: When after solemnisation of marriage person had voluntary sexual intercourse with anyone besides his/ her spouse, it is considered as matrimonial offence and divorce decree can be obtained it as ground.
- Cruelty: When a person is harassed, injured mentally or physically means cruelty. Cruelty can be on both husband and wife and this ground can be invoked by any spouse. Certain example of cruelty can be false allegations, dowry demands, mental or physical injury.
- Desertion: When one spouse is living separately from each other and deserted the other for atleast 2 years preceding the date of filing of petition of divorce.
- Conversion of religion: When any one of the spouse converts to other religion after marriage this is one of the grounds for divroce.
- Insanity: When a person is of unsound mind it is one of the grounds of the divorce.
- Leprosy: Leprosy is a disease which is incurable and can be transmitted from one person to other. It is one of the grounds for divorce.
- Communicable disease: when a person is suffering from any communicable disease. It is also one of the grounds for divorce.
- Renunciation of world: When a person has renounced the world i.e. when he moved on path of god and has given up the way of life, it is one of the grounds of divorce.
- Presumption of death: When a person is not heard for 7 years to be alive then other spouse can file a petition for divorce.
There are also certain grounds which are available to a wife only for obtaining a divorce decree, which are:
- In case wife is married before age of 15 years, she can file for divorce in such situation.
- When husband is guilty of rape, sodomy or bestiality.
- Bigamy is also one of the ground of bigamy, in case husband has committed bigamy then wife can file for divorce.
Divorce under Muslim law
Muslims in India can take divorce by way of both Judicial and Extra-Judicial process. By way of judicial process can be taken in two ways, which are: (i) Lien and (ii) Fask
Lien is when husband has falsely alleged wife of adultery and wife is charged. In this case both spouses needs to be major and of sound mind. Once decree is given by court of law it is irrevocable.
Doctrine of Fask is used as a method of obtaining divorce before enactment of law for divorce by Muslims and it is the only option then.
There are number of grounds provided under section 2 of Dissolution of Muslim Marriage Act, 1939, which are:
- Wife doesn’t know husband and he is missing for 4 years.
- Husband is imprisoned for atleast 7years.
- Husband is impotent at the time of marriage.
- Is of unsound mind for last 2 years.
- Suffering from venereal disease
- Husband causes cruelty to wife.
- Husband is not able to fulfill martial obligation for atleast 3 years without any reason.
Ways in which divorce can be taken by extra judicial process are:
- Divorce by Husband can be taken by three ways: Talaq – e – Sunnat, Ila and Zihar
- Divorce by wife, i.e. Talaq-i-Tafweez
- Divorce by Mutual Consent has two kinds: Khula, Mubarat
Divorce under Christian law
Section 10A of Divorce act provides for method in which Christian can take divorce and there are two ways, which are:-
- Mutual divorce: When both husband and wife decide that they can’t reside together and needs divorce. Condition of living separately for 2 years atleast is mandatory.
- Contested divorce: Contested divorce means when one spouse can file divorce on any ground. Grounds provided here are same as to provided under Section 13 of Hindu Marriage Act in addition to them husband being guilty of rape, sodomy and willfully refusing to consummate marriage are also there.
Divorce under Parsi law
Parsi Marriage and Divorce Act, 1939 provides for the grounds and procedure for obtaining a divorce decree. Following are the provision relating to divorce under the act:-
- Under Section 30 it provides that if it becomes impossible to consummate marriage within one year of marriage due to natural circumstances, it becomes one of the ground of divorce.
- Further Section 31 provides presumption of death as a ground of divorce i.e. when a person in not heard to be alive by persons whom should naturally know him whereabouts for 7 years.
- Certain other grounds are also provided for divorce which are:
- When any spouse refuse consummates marriage within one year of marriage.
- When any spouse is imprisoned for 7 years and has been in prison for 1 year.
- Conversion of religion
- Any spouse being insane at time of marriage, petition under this ground is to be filed within three years of marriage.
- If wife was pregnant at the time of marriage, petition is to be filed within two years of marriage and there should be no material intercourse as condition.
This act also provides for divorce by mutual consent under Section 32B and consent must not be obtained by fraud or is forced.
Divorce under Special Marriage Act, 1954
Special Marriage Act, 1954 provides for divorce in case of marriages registered and done under this particular act. It applies to marriages which are inter-caste or are inter-religion and also to marriages with foreign nationals. If we take an overview of the grounds which this act provides as ground of the divorce are same as that of provided under Section 13 of the Hindu Marriage Act, 1955.