Law governing Divorce in India


Posted On : January 21, 2021
Law governing Divorce in India
various governing law related to divorce are elaborated and explained below!
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Table of Contents

Introduction

In India marriage is considered to be a scarified act for establishing a healthy and social life. It is believed that marriage is a sacrament which ties man and woman together during their lifetime. Hindu believe that Marriage is an indissoluble partnership which is to be continued even after the death. Hence, there were no concept of Divorce before.

The Goa Civil Code applicable to all regardless of religion boundary to citizen residing there. It is pertinent to note that personal laws are not applicable in Goa state. Under a matrimonial law, Court has a power to to grant Restitution of Conjugal Rights, judicial separation, alimony, custody of child and maintenance.


Concept of Divorce

Is some religion there was no concept of dissolution of a marital relation between man and a woman. A Divorce is the legal dissolution of marriage between spouses. The Court has a power to grant divorce to parties after receiving a petition from husband or by wife. The annulment of marriage makes marriage null and void in the eyes of law. When the Court declares marriage null and void means that their marital relationship is no longer available. The concept of Divorce, dissolved the marriage between husband and wife. The term Divorce accompanies with alimony, child visitation manner, child custody etc. it settles all dispute relating to matter arise in future and party may live happily.


Laws Related to Divorce

India is a diverse country by having various types of culture and customs in its roots. So it is important to set laws according to need. Marriage and divorce are part of various personal laws which has made according to tradition and belief. The laws determines various ground of divorce. There are some laws related to divorce are as follows,

  1. The Hindu Marriage Act, 1955
  2. The Divorce Act, 1869
  3. The Special Marriage Act, 1954
  4. The Muslim Law


The various laws determine various concept of marriage and dissolution. Therefore for taking divorce under a law is different according to applicable law. For example if particular husband or wife wanted to take divorce then law will applicable according to their profess religion, hence the ground for law is also differ.


The Hindu Marriage Act, 1955

The Hindu religion believes that marriage is a sacrament which put a holy tie in between man and woman which bind them for future life as well. Hence there was no concept of divorce. Hindus, Buddhist, Sikhs and Jains were governed by the Hindu Marriage Act 1955.  The act extends to all Hindus including citizen residing outside the territories of India and Schedule Tribe too.

The condition of a valid Hindu Marriage are laid down under section 5 of the said act which states about a soundness of mind, age of bride and bridegroom, whether they should not have any living spouse and their relation does not based on Sapinda (blood relation) unless custom provides it.

There are various grounds of Divorce under a law provided under section 13. Any party may present application for divorce under section 13 of the said act. The grounds of divorce are as follows,

  • Adultery
  • Cruelty
  • Conversion
  • Unsoundness of Mind
  • Leprosy
  • Desertion
  • Venereal Disease
  • Renunciation of world
  • Presumed Death
  • Non-Presumption of Cohabitation etc.

above mentioned are general ground of divorce available to both party. But the said act also provide some additional ground available to wife. The said ground are laid down under section 13(2) of the said act which include bigamy, Rape, sodomy or bestiality, option of puberty means when wife was under age at the time of marriage.


The Divorce Act, 1869

It extends to whole of India after scrapping of article 370. The said act applies only to the Christians citizen residing in India. The Divorce act 1869 codified the law to regulate divorce amongst Christians. This is one of the old act enacted by British before independence and it continues to force till date.

The said act provides the various grounds for Divorce under section 10 where party can dissolve their marriage by moving to Court. The said Divorce Act also provides additional grounds for dissolution of marriage to wife when husband committed an act of rape, bestiality or sodomy. The general ground grounds which applicable to both parties are as below,

  • Adultery
  • Conversion
  • Leprosy
  • Venereal diseases
  • Presumed death
  • No-Consummation
  • Desertion
  • Unsoundness of mind
  • Cruelty


Special Marriage Act 1954

The Special Marriage act applicable to all citizens residing in India. This act is applicable to all citizens of different casts and religions and citizens residing outside the territories of India. It provide a special form of law regardless of race, caste. Religion and faith practised by either party to the citizens.

There are several condition provided under section 4 of the Special marriage act 1954 which have to fulfilled for a marriage to make valid under eyes of law. The conditions includes that party should be sound mind, must attain age of majority and marriage should not be come under a prohibited relationship. 

Section 27 of the Special Marriage Act 1954 provides similar types of grounds for divorce with some exception. Which given under section 27A. The Court can pass decree for divorce except Presumption of death.The Court has a discretionary power to pass decree of judicial separation instead of divorce.


Muslim Law

Muslim laws are comes under a category of personal law which are governed by Holy Quran, Hadiths and fatwa. All muslim citizens residing in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937. The said law govern marriage, succession, inheritance of muslim. Indian muslim women can obtain divorce under The Dissolution of Muslim Marriages Act, 1939 as a right to take divorce from her husband. These laws not covered those Muslim who married under Special Marriage Act, 1954.

Under muslim law, Marriage is a contract which made with certain conditions to be fulfilled as to make Nikah (marriage) valid under law. These conditions include that the bride and bridegroom is sound mind, agents, wali and witnesses have to be physically present at a time of Nikah and there must be a specified dower by the bridegroom to the bride.

Muslim law provides a various modes of divorce which is categorized as

  1. Judicial Divorce
  2. Extra Judicial Divorce

Judicial Divorce are those which are decreed by Court that the marriage between spouses is null and void. The said type of divorces settles a matter of child custody, alimony and maintenance.

Extra Judicial Divorce are depend upon the will of spouses or by mutual agreement. spouces at any time step away from matrimonial obligation by pronouncing Talaq as per laws. It provid a different kind of right to wife and Husband. Talaq-e-Sunnat are also known as Talaq ul Raza which is a revocable form of talaq. The Muslim Divorce basically divided into 3 categories as,

  1. By Husband (Talaq e- Sunnat, Biddat, ila and Zihar)
  2. By Wife (Talaq e- Tafweez, Lian and Khula)
  3. Mutual Consent- Mubarat


By Mutual Consent

Divorce by Mutual Consent was incorporated under laws. Parties can move to court jointly under an applicable section of different matrimonial laws with praying that their marriage be dissolved by court. The Court may after hearing the arguments of parties and reasonable inquiry can pass decree for divorce that their marriage is comes to an end.



 

Written By:
Asma Firoz

Asma Firoz

Mumbai

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