‘Divorce’ is just a seven letter word which puts an end to a relationship that ought to last till seven lives. Marriage and divorce are a subject of personal/ religious laws in India. The types of divorce in hindu law are not the same as applicable to Muslims or Christians. Moreover, how many types of divorce in India depend upon whether it is a matter of Muslim laws or any other religious/ secular laws. For others, the types of divorce options are split up based on consent of the parties. However, consent is not the major player in case of types of divorce in Islam. For Muslims, the authority of the husband or the judiciary/ Qazi determine whether it will be a judicial or a non-judicial divorce. For a better clarity on different types of divorce in India, each type has been explained in detail below.
When both husband and wife have realized that their relationship is reaching its climax and wish to terminate their marital obligations, they mutually decide to have a divorce. In such a case, husband and wife apply to the court for grant of divorce by mutual consent. This type of divorce is available in almost all religious practices prevalent in India. However, there is no policy of granting instant divorce even if it is mutual. Courts grant parties with a cooling period of at least 6 months after hearing them once. This gives them enough room for reconciliation, if there is a bit of scope for the same. Final divorce is granted after both of them are heard again by the court and still persist with the idea of mutual consent divorce. If you got married in Kolkata, or it is the city where the couple reside after marriage, or one of the spouses resides there, divorce lawyer in Kolkata may help understand the legal process better.
When one among the spouses wishes to bring an end to marital obligations while the other is still persistent to continue the marriage, there is a dispute. The same is termed as contested divorce because the willing spouse has to prove before the court one of the several grounds for divorce in India, while the other party contests. If the court is convinced that the divorce grounds alleged are evident based on facts of the case, divorce is granted.
The grounds for divorce vary among religious laws in India as depicted below:
It is advisable for couples to avoid contested divorce and amicably end their marriage if things do not go as per plan. In case one is planning to end the marriage, serving legal notice for divorce is a must as per procedure. If the other spouse accepts the same for mutual consent divorce, both can approach the court.
The personal laws applicable to Muslims are rarely codified by the legislature. The Islamic or Sharia laws are a bit complicated and different from other religions. Muslim marriage is a contract which can be ended anytime. The major 3 types of divorce in Islam do not necessarily require a Qazi or judge for grant of divorce. Sometimes, the presence of a wife is also not compulsory. Thus, it is recommended that lawyers for Muslim laws must be approached in case of any confusion over personal laws.
There are types of divorce options in Muslims that allow divorce when a husband pronounces ‘talaq’ regardless of the absence or presence of his wife. There is no need for a judge or even a Qazi to validate the same since witnesses alone are enough.
1. Talaq-E-Ahsan - In this kind of divorce, the husband pronounces divorce once while the woman is in her pure state, i.e. Tuhr (when the wife is not menstruating). This is followed by undergoing 90 days of Iddat period by wife (Iddat period denotes the period when there is no sexual intercourse among divorcing Muslim couples, and the wife can not marry another. The purpose is to determine the paternity of the child if such a wife gets pregnant ). In case the couple has sexual intercourse during Iddat period, the divorce is revoked, i.e. taken back/ cancelled. This is the most preferred among the types of divorce in Islam as the divorce still remains revocable. But if there is no intercourse after 90 days of single pronouncement of divorce by the husband, divorce is finalized.
2. Talaq-E-Hasan - This is a comparatively less approved form of divorce. Husband pronounces ‘talaq’ thrice in three successive Tuhr periods. Basically, divorce is pronounced over a period of three months. Lack of even one of these pronouncements results in revocation of divorce. Absence of sexual intercourse is required in this type of divorce as well.
3. Talaq-E-Biddat - This kind of divorce among Muslims is legally banned in India. When the husband pronounces talaq thrice in one go, the couple is deemed to be divorced immediately. Among the different types of divorce in Islam, this kind is irrevocable and takes effect immediately.
4. Talaq-E-Tafweez - A Muslim husband can delegate his power to pronounce talaq to his wife under this kind of divorce in India. Such a delegation may be temporary, permanent, absolute, or even conditional.
5. Faskh - If the husband and wife find it impossible to continue their relationship as a husband and wife and wish to terminate the same, they approach a Qazi (Persons skilled and knowledgeable in Islamic law rites). The Qazi may hear the couple and accordingly grant divorce legally.
There are some types of divorce in Muslim law which require the married couples to approach the judge or Qazi for grant of divorce. For reasons for divorce provided under the Dissolution of Muslim Marriage Act, 1939, wife needs to approach the court for judicial divorce.
1. Ila - In this kind of divorce, the husband pledges not to have sexual intercourse with his wife for a period of 4 months or ever again. In such a case, the wife can approach court and apply for divorce.
2. Zihar - According to Islamic laws, if a husband regards his wife to be akin to his mother or other prohibited degree of relationship, such a gesture is insulting and illegal as well. In such a scenario, the wife can seek divorce.
3. Lian - If a husband falsely accuses his wife of committing adultery with another person, such a wife can approach the court for seeking divorce.
4. Khula - Under this kind of divorce among Muslims, the wife proposes divorce to the husband in return of which, she has to give away her property to the husband as compensation. The husband accepts the offer and thus, it becomes mutual divorce.
5. Mubarat - The term literally means ‘obtaining release from each other’. This is another kind of divorce by mutual consent under Islam. Either husband or wife can initiate the divorce procedure.
6. Dissolution of Muslim Marriage Act, 1939 - Section 2 of the Act provides several grounds through which the wife can seek divorce from husband through court. Not knowing the whereabouts of the husband for 4 years, no maintenance for 2 years, imprisonment of 7 or more years, etc. A divorce attorney shall help a Muslim wife seeking divorce under the Act.
It can be seen that while in other religions, divorce is classified based on whether it is a decision of one or both the spouses. However, in the case of Muslims, sole rightful authority to divorce is there in the hands of the husband. A wife may seek divorce through husband, Qazi, or court. But a Muslim wife can not directly pronounce divorce against her husband unless the power is delegated to her by the husband as provided under Talaq-E-Tafweez. Due to such discriminating and confusing practices, demands for Uniform Civil Code are on the rise. It is yet to become a norm to be brought into reality.