DIVORCE: HINDU vs MUSLIM

 Written by- Divyanshu Raj Singh 

Occupation- Student (BALLB-III)

College- Yashwantrao Chavan Law College, Pune

"Marriage is not for individual happiness, but for the welfare of the nation and the caste" ~Swami Vivekananda

Introduction

In Kautilya's Arthashatra', marriage may be broken up by common consent on account of the unapproved type of marriage. Manu is not convinced that the marriage should be discontinued and is not concerned with the discontinuance of marriage. He declares that "reciprocal loyalty may continue until death"; according to him, this is the highest dharma of the husband and wife. Even after death, a women's obligation continues. She should never have a second husband.

Divorce is the end of all marital relationships between spouses. It is the legal dissolution of a marriage by a court. After divorce spouses can no longer be husband and wife. As we know that in ancient India there no such type of concept of divorce exists. In Hindu Law, the concept of divorce was introduced after the enactment of the Hindu Marriage Act in the year 1955. While in Muslim Law it is from the time of Prophet Mohammad..

In Hindu and Muslim Law there are some procedures for getting a divorce along with this there are several grounds on which any spouse can get a divorce, which we discuss in this blog.

Divorce under Hindu Law

In Ancient Hindu Law, the nature of the Hindu marriage is a 'Sacrament' because of three reasons i.e., permanent, eternal and holy union. But the nature of marriage in the Hindu Marriage Act, 1955 is contractual because of the divorce (Section 13, Hindu Marriage Act, 1955) and the concept of consent of parties in a marriage. So, in the present situation, Hindu Marriage is a combination of Sacrament and Contractual.

Grounds Of Divorce in Hindu Law

There are several grounds mentioned under Section 13 of the Hindu Marriage Act, 1955 which are as follows-

Grounds Available to both Husband & Wife

Section 13(1)- Eight grounds were mentioned in Section 13(1), on which either the husband or wife could sue for divorce which is as follows:-

than one's spouse.

Case: Joseph Shine v. UOI- Adultery has been declared unconstitutional and now it is no offence, but it will remain a ground for divorce.

ii. Cruelty: Any unreasonable conduct which causes pain and suffering, it may be physical mental. Case: Russel v. Russel- First time Supreme Court defined cruelty.

Desertion: One spouse withdrawal from matrimonial obligations for a continuous period of not less than two years without any reasonable cause.

 Conversion: One of the spouses converted to another religion from Hindu. In Suresh Babu vs Leela

In this case, the husband converts himself into Muslim and marries another

woman. Here the wife Leela filed a case and demanded the divorce on the ground of conversion without her consent and cruelty.

Insanity: Petitioner has to prove the respondent is suffering from incurable

unsoundness of mind.

In Vinita Saxena vs Pankaj Pandit

In this case, the petitioner filed a case to get the divorce from the respondent on the ground that the respondent was suffering from Paranoid Schizophrenia which means mental disorder. She came to know these after her marriage. Here, the court grants the divorce on the ground of insanity of husband.

Venereal Diseases: One of the spouses is infected by sexually transmitted diseases.

Renunciation: One of the spouses has completely renounced the world.

Presumption of Death: Not heard alive for 7 years or more.In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.

Note: In Sec 13(1), Before 2019 there were nine grounds. By the 2019 Amendment Act, Leprosy as a ground was removed.

Section 13(1-A)- Two grounds were mentioned in Sec. 13(1-A), on which either the husband or wife could sue for divorce which is as follows:-

i. No resumption of cohabitation for one year or more after the passage of the Decree of Judicial Separation (u/s 8 HMA,1955) then becomes a ground for divorce.

ii. No restitution of conjugal rights between the parties for one year or more after the passage of the Decree of Restitution of Conjugal Rights (u/s 8. HMA, 1955) then it becomes a ground for divorce.

Grounds Available to Wife only

 Section 13(2)- Wife has been provided four additional grounds u/s 13(2) of the HMA, 1955, they are:

i. Bigamy: Husband having another wife.

ii. If the husband is proven guilty of Rape, Sodomy, Bestiality

iii. Non-restitution of cohabitation after a decree of Maintenance (u/s 125 CrPC or u/s 18 Hindu Adoption and Maintenance Act, 1956) for one or more years.

iv. Option of Puberty: Marriage has done when the wife was under 15 years and repudiated the marriage before she was 18 years.

Section 13 (B)- Divorce by Mutual Consent: Both husband and wife want to dissolve the marriage means mutually agreeing to end the marriage. The parties must live separately for one year before filing a divorce petition.

Divorce under Muslim Law

Under Muslim Law, there are two modes given for the dissolution of marriage i.e., Divorce and Talaq. Under Muslim Law, if a person seeks divorce, he will be governed by the provisions of the Dissolution of Muslim Marriage Act, 1939. Whereas talaq proceedings are governed by Muslim Personal Laws.

Classification of Dissolution of Marriage

Extra Judicial Divorce

In this parties are governed by Muslim Personal Laws and there is no court involvement.

 By Husband

i. Talaq: Talaq is broadly divided into two types i.e.,

Talaq-ul-Sunnat, this form of talaq is effective and practised by Prophet Mohammad.

Talaq-e-Biddat, a sinful form of talaq, also known as Triple Talaq and not it's unconstitutional.

ii. lla: The husband takes oath in the name of God that he will not have sexual intercourse with his wife for four months continuously and leaves her to observe iddat.

iii. Zihar: When the husband compares his wife with his mother or any other female within the prohibited degree.

 By Wife

i. Talaq-i-Tafweez: Muslim husband delegates his power of pronouncing divorce to his wife, it may be absolute or conditional and permanent or temporary.

ii. Lian: If the husband puts false charges of adultery against his wife, then the wife gets the right to file for divorce.

Faskh: Qazi assistance for divorce.

By Mutual Consent

i. Khula: In this wife offers divorce and then she gives compensation (which is the dower amount) to the husband.

ii. Mubarat: In this, any spouse offers for divorce by mutual consent.

Judicial Divorce

Dissolution of Muslim Marriage Act, 1939: In Section 2 of this Act, there are nine grounds available to the wife for taking divorce. The grounds are as follows- Absence of husband for four years or more; Failure to maintain for two years or more; Husband's imprisonment of a minimum of seven years; Failure to perform a marital duty; Impotency of the husband; Insanity/ venereal diseases; Repudiation by the wife

if she is married under fifteen years of age; Grounds recognised by Mohammaden

Law; Cruelty by husband..

Conclusion

Whether it is Hindu or Muslim Law, divorce is not a big problem, but when the couple stays in a bad marriage for the sake of kids then it becomes a problem.

Hindu Law is codified law so in this there is no scope for confusion. In Hindu Marriage Act, 1955, there are available much grounds for divorce on which both husband and wife can file a divorce petition. Even in Hindu Marriage Act, 1955 no spouse can file a petition for divorce within one year of marriage (Sec. 14 HMA,1955).

The major problem with Muslim Law is that, unlike Hindu Law, it is uncodified. Due to this, there have been different interpretations and practices, which have further led to confusion. Some of its practices violate Fundamental Rights and are thus declared unconstitutional (Talaq-e-Biddat).