DIVORCE

Hindu Marriage Act

A brief history of the act

Divorce, as a legal option for separation, was identified and practiced in British India in
the year 1869 which was majorly for the Christians seeking divorce lawfully. In India,
there was no legal framework that could formalize a divorce or allow for it. Later in the
year 1955, the Hindu Marriage Act was formed, to enable people to file for a Divorce
Under Hindu Marriage Act.

Relevant provisions related to Divorce under the Hindu Marriage Act,1955

Recently, the Supreme Court announced that using the power listed under the Article 142
(gives Supreme Court the power to practice complete justice) they can declare any
marriage as dissolved or grant a divorce decree if it has broken down irretrievably. This
helps people to bypass the waiting period and approach the Supreme Court directly.
Now, let’s look at various sections under the Hindu Marriage Act:

Section 10

Section 10 of The Hindu marriage act talks about the judicial separation and explains the
process for lawfully getting a divorce; it includes filing the petition in the family court.
The ground for separation and sections (if required) can be mentioned in the petition as
per sections 13 (i) and (ii) (different parts). Read on to know about this section also.

Section 5

Section 5 of the Hindu Marriage Act underlines the conditions for a Hindu Marriage. It is
noteworthy to understand that the conditions are discretionary and not mandatory,
hence it is usually said that “the marriage ‘may’ be solemnized under the following
conditions’. These conditions include:

 (i) Neither the groom nor the bride is married at the time of marriage.

 (ii) None of them is incapable of giving consent to the marriage or is incapable

mentally to get married. Also, none of them has any issues like recurrent attacks
of insanity or epilepsy;

 (iii) Both are of or have crossed the marriage age as underlined in the legislation
of India, that is 21 years for the boy and 18 years for the girl.

 (iv) none of them falls under the category of prohibited relationship unless the
custom or usage governing each of them permits them for marriage.

 (v) The parties are not sapindas unless their religion or custom allows for it.

Section 13

Section 13 is a detailed section that contains several conditions for getting a Divorce
Under the Hindu Marriage Act. There are different grounds defined under this section that
can be permitted in the courts of law for divorce. It is important to know that Clause 1-A,
introduced in the HMA 1955 provides grounds for divorce by either party, however,
Clause 2 of Section 13 provides grounds to seek divorce only for the females.
  Section 13-1 includes grounds like (i) conversion-conversation of a Hindu to any
other faith like Parsis, Christianity, Islam, or any other that are not part of
Hinduism (Buddhism, Jainism, Sikhism,) (ii) Insanity-any mental illness for an
indefinite period or any mental disease that is unreasonable under the eye of law
for any human being to live with. (iii) Veneral disease, (iv) Presumption of death.

 Section 13-2 include grounds like Bigamy, Rape, sodomy or bestiality, Decree or
order of maintenance (this is subject to issue under section 18 of HMA, or section
125 of the Penal Code-any of these two can help the wife to file a divorce
petition), the wife has been living separately, marriage happened before the age
of 15 (can file divorce before reaching the age of 18 years), and both the partners
have been living separately for at least one year.

Section 14

Section 14 for Divorce Under the Hindu Marriage Act, 1955 prohibits the dissolution of
any marriage if the marriage has not elapsed one year since the date of marriage.
However, exceptions can be there provided the sections and enough proof are provided
while filing the petition. Indian Marriage Act supports that all marriages must be given a
fair chance of reconsideration and reconciliation considering the mental, emotional, and
financial investments and damages it can cause to both the parties and is considered
seriously if any child (or children) are born out of that marriage.

Section 15

Section 15 of the Hindu Marriage Act defines the rights of both the parties for marrying
again once the divorce decree is granted. The period is defined based on any new or
existing appeal against the decree. Until any appeal exists and is not dismissed in the
court of law, against any party, the rights of marrying lawfully stand null and void.

Different Theories of Divorce

Fault Theory

Under this theory, marriage can be ended when one party to the marriage is responsible
or liable for the offence under matrimonial offences done against another spouse. Only
the innocent spouse can seek this remedy. The only drawback of this theory is when both
the spouse are at fault, then no one can seek these remedy of divorce.

Mutual Consent

Under this theory, the marriage can be dissolved by mutual consent. If both the spouse
mutually gives their consents to end the marriage, they can take the divorce. But many
philosophers criticise this theory as this concept is immoral and leads to hasty divorce.

Irretrievable Breakdown

According to this theory, the dissolution of marriage happens due to failure of the
matrimonial relationship. The divorce can be taken by the spouse as a last resort i.e.
when both of them are not able to live together again.

Grounds of Divorce as per The Hindu Marriage Act

Section 13(1) provides grounds on which divorce can be sought by either of the partners
in a marriage. After the amendment of 1976, grounds for divorce specified under Section
13 of the Act and judicial separation under Section 10 are similar. The parties also have
the option of judicial separation instead of divorce, where they can rethink their decision.
The objective is to save the sacred institution of marriage and make efforts for
reconciliation. In the case of Ishwar Singh v. Smt. Hukam Kaur (1965), the Allahabad
High Court held that if the husband permitted his wife to marry someone else of her
choice because of his ill health, it does not amount to divorce because no such petition or
application had been filed in the court and so the second marriage solemnised is illegal
as the first marriage still subsists. It was also observed that a marriage subsists until a
decree of divorce has been passed by the court.

Further, in the case of Niru Sarmah v. Jatin Chandra Sarmah (2014), the Gauhati
High Court observed that if a marriage is broken to the extent that it is irretrievable and
there are no possibilities that the bond can be recovered and the marriage can be saved
in near future, decree of divorce can be passed by the court.

Adultery

The concept of Adultery may not be considered as an offence in many countries. But as
per the Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one
of the most important ground for seeking divorce. Adultery means the consensual and
voluntary intercourse between a married person with another person, married or
unmarried, of the opposite sex. Even the intercourse between the husband and his
second wife i.e. if their marriage is considered under bigamy, the person is liable for the
Adultery.

The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage Laws
Amendment Act, 1976.

In Swapna Ghose v. Sadanand Ghose

In this case, the wife found her husband with other girl lying on the same bed and the
neighbour also confirmed that the husband has committed an offence. Here the wife gets
the divorce.

In Sachindranath Chatterjee vs Sm. Nilima Chatterjee

In this case, the petitioner and the defendant were married. After marriage, the husband
leaves the wife in his home town so that she can complete her studies and go to another
city for work. He visited twice or thrice a month to meet her. Later he found that his wife
commits the adultery i.e. to involve in sexual intercourse with his own nephew,
watchman etc. The plaintiff approaches the court to demand divorce on the ground of
adultery and his petition was accepted and the marriage gets dissolved.

Prior to the 1976 amendment, in order to seek divorce on the ground of adultery, a
person had to prove that, on the date of the petition, his/her spouse was living in an
adulterous relationship. However, after the amendment, even a single voluntary sexual
intercourse with a person other than the spouse is a valid ground for divorce. It is given
under Section 13(1)(i) of the Act. The burden to prove that the spouse committed the
offence of adultery is on the person who made such allegations, and the standard of
proof is by preponderance of probabilities and not proof beyond reasonable doubt.

It is correct that there can be no direct evidence to prove the act of adultery, so
circumstantial evidence plays an important role. The Madhya Pradesh High Court in the
case of Samuel Bahadur Singh v. Smt. Roshini Singh (1960), rightly pointed out
that in India, if a male and female are living together under the same roof without any
connections or relations, it is not considered normal, and so adultery can be inferred from
the following circumstances:
  A male and female lived together in the same house for a long time.

 They are not related to each other by way of marriage or any other relationship.

 They refused to return to their spouse.

 Both the parties cannot deny adultery because of circumstantial evidence.

 They had the opportunity to commit adultery.

In the case of Chetan Dass v. Kamla Devi (2001), appellant and respondent were
married to each other according to Hindu ceremonies. After marriage, the appellant had
an extramarital affair with one of the nurses in the hospital where he was working, and so
his wife left him. He appealed, claiming that the allegations made by the respondent and
her act of deserting him without any reasonable cause amount to mental torture. The
Hon’ble Supreme Court observed that a man cannot take advantage of his own wrong.
However, the decree for divorce was not passed because the wife, or respondent in this
case, was ready to continue her marriage and live with him only on the condition that he
must leave the other woman and end his adulterous relationship.

It must be noted that adultery as an offence has been decriminalised by the Hon’ble
Supreme Court in the case of Joseph Shine v. Union of India (2018). However, it is
still a ground of divorce under the Hindu Marriage Act, 1955, which means that if a
person commits adultery, he/she would not be punished but the spouse can seek divorce.

Essentials of Adultery

1. One of the spouses involved in the intercourse with another person, married or
unmarried, of the opposite sex.

2. Intercourse should be voluntary and consensual.

3. At the time of the act, the marriage was subsisting.

4. There must be sufficient circumstantial evidence to prove the liability of another

spouse.

Cruelty

The concept of cruelty includes mental as well as physical cruelty. The physical cruelty
means when one spouse beats or causes any bodily injury to the other spouse. But the
concept of mental cruelty was added as the spouse can also be mentally tortured by the
other spouse. Mental Cruelty is lack of kindness which adversely affects the health of the
person. Well it is easy to determine the nature of physical cruelty but difficult to say
about mental cruelty

1. What is considered as Mental Cruelty against Husband by wife:

2. Humiliating the husband in front of his family and friends.

3. Undertaking the termination of pregnancy without husband consent.

4. Making false allegation against him.

5. Denial for Martial Physical Relationship without a valid reason.

6. Wife having affair.

7. Wife living an immoral life.

 8. The constant demand for money.

9. Aggressive and uncontrollable behaviour of Wife.

10. Ill-treatment to the husband parents and family.

In Balram Prajapati vs Susheela Bai

In this case, the petitioner filed the divorce petition against his wife on the ground of
mental cruelty. He proved that his wife that behaviour with him and his parents was
Aggressive and uncontrollable and many times she filed the false complaint against her
husband. The court accepts the petition and grants the divorce on the ground of cruelty.

What considered as Mental Cruelty against wife by Husband

1. False accusation of adultery.

2. The demand for dowry.

3. Impotency of Husband.

4. Force to abort the child.

5. The problem of drunkenness of husband.

6. Husband having affairs.

7. The husband lives an immoral life.

8. Aggressive and uncontrollable behaviour of the husband.

Humiliating the wife in front of family and friends

Desertion

Desertion means the permanent abandonment of one spouse by the other spouse
without any reasonable justification and without his consent. In General, the rejection of
the obligations of marriage by one party.

Before the 1976 Amendment, desertion was only a ground for judicial separation and not
divorce. But now, desertion of any of the spouses by the other for a continuous period of
two years immediately before filing the petition is a valid ground to seek divorce as well
as judicial separation. Desertion as the ground of divorce is mentioned under Section
13(1)(i)(ib) of the Act. In the case of Malathi Ravi v. B.V. Ravi (2014), the Supreme
Court held that if there is no evidence to prove that the wife had an intention to end the
marriage or whether she deserted her husband, then the court will not pass a decree of
divorce. This means that the intention to end marriage is one of the essentials of
desertion, i.e., animus deserendi must exist. Also, if there was no desertion for a
continuous period of two years immediately before the presentation of the petition or if
the party assumed it, no divorce can be granted.

In the case of Ranjeet Kaur v. Surendra Singh Gill (2012), the Madhya Pradesh High
Court gave the meaning of desertion as the intention of parties to permanently abandon
the spouse without their consent and reasonable cause, which means that for the ground
of desertion, the fact of separation and animus deserendi must co-exist. In the present
case, the wife denied the allegations of cruelty and desertion made by her husband and
requested that the court dismiss his petition. In the case of Om Wati v. Kishan Chand
(1983), the Delhi High Court opined that desertion does not mean withdrawal but is a
state of things. It is a question of fact. In the case of J. Shyamala v. P. Sundar Kumar
(1990), the Madras High Court held that if a wife starts living with her parents rather than
her husband because he made false allegations against her regarding her character and
unchastity, it would not amount to desertion. It must be noted that the desertion of a
spouse must be without reasonable cause. The burden of proof, in this case, lies on the
petitioner, and it must be proved that the said desertion occurred without any sufficient
and probable cause and did last for two years.

Essentials

1. Permanent abandonment of the other spouse.

2. Rejection of the obligation of marriage.

3. Without any reasonable justification.

4. No consent of another spouse.

In Bipin Chander Jaisinghbhai Shah vs Prabhawati

In this case, the respondent leaves the house with the intention to abandon his wife.
Later the wife approaches the court, but the defendant proved that even though he left
the house with the intention to desert, but he tried to come back and he was prevented
from doing so by the petitioner. Here, the defendant cannot be held liable for desertion.

Conversion

If one of the spouses converts his religion to any other religion without the consent of the
other spouse, then the other spouse can approach the court and seek the remedy of
divorce.

Illustration

A, a Hindu has a wife B and two children. One day A went to church and converted to
Christianity without the consent of B, here B can approach the court and seek for divorce
on the ground of conversion.

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.

Unsoundness of mind

Insanity means when the person is of unsound mind. Insanity as a ground of divorce has
the following two requirements-

1. The respondent has been incurably of unsound mind.

2. The respondent has been suffering continuously or intermittently from mental

disorder of such a kind and to such an extent that the petitioner cannot
reasonably be expected to live with the respondent.

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.
If one of the parties, i.e., either husband or wife, is of unsound mind, then it is a valid
ground for divorce. It is given under Section 13(1)(iii) of the Act. The unsoundness may
be continuous or intermittent and incurable to the extent that it is not possible for the
petitioner to continue married life with the respondent. This was also mentioned in the
Amendment Act of 1976. In the case of Smt. Alka v. Abhinesh Chandra Sharma
(1991), the Madhya Pradesh High Court found that the wife was suffering from
schizophrenia because she was cold and frigid on the first night of marriage and could
not cooperate with the husband. Also, she was not able to handle domestic appliances,
so the husband was entitled to nullity of marriage in this case. It was also observed that
the facts pertaining to the mental illness of the wife and her medical treatment were not
disclosed to either the husband or his mother and grandmother, who negotiated the
marriage on his behalf. The counsel representing the wife also argued that breaking the
marriage just after 19 days of marriage would bring upon her great tragedy. However, the
appeal made by the wife was dismissed.

In the case of Suvarnalata v. Mohan Anandrao Deshmukh and Anr. (2010),

husband filed for divorce on the ground that his wife was suffering from schizophrenia,
but the Supreme Court did not accept and agree with the allegations made by the
husband that his wife was suffering from mental disorder and desisted itself from giving
any observations in this regard because of the effect that it would have on the minor
child. Further, the Calcutta High Court in the case of Pramatha Kumar Maity v.
Ashima Maity (1991) held that in order to obtain a decree for divorce on the ground of
unsoundness of mind, it must be proved that unsoundness exists to the extent that it is
impossible for the petitioner to cohabit and live with the respondent.

Leprosy

Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc.
this disease is transmitted from one person to another. Thus it is considered as the valid
ground for divorce.

In Swarajya Lakshmi vs G. G. Padma Rao, the husband filed the case for granting the
divorce on the ground of leprosy. He claimed that his wife is suffering from incurable
leprosy with the expert’s reports. Here he succeeds in getting the divorce on the ground
of leprosy.

In the case of Mr. ‘X’ v. Hospital ‘Z’ (1998), a marriage was called off as the appellant
was found out to be HIV+ which is a venereal disease. Further, in the case of P. Ravi
Kumar v. Malarvizhi @ S. Kokila (2013), husband filed for divorce on the ground that
the wife is suffering from HIV, which is a communicable sexually transmitted disease. The
wife, on the other hand, argued that she is afflicted by the disease only through her
husband. The medical reports proved that the husband was not suffering from HIV. On
the basis of facts and circumstances, the husband was entitled to the decree of divorce.

Venereal Disease

Under this concept, if the disease is in communicable form and it can be transmitted to
the other spouse, then this can be considered as the valid ground for divorce.

Illustration

A and B married on 9 September 2011. Later A suffered from a venereal disease and it is
incurable. There’s also a chance that B can also get infected by that disease if she lives
with A. Here, B can approach the court for the dissolution of the marriage

Renunciation
It means when one of the spouses decides to renunciate the world and walk on the path
of the God, then the other spouse can approach the court and demand the divorce. In
this concept the party who renunciates the world is considered as civilly dead. It is a
typical Hindu practice and is considered as a valid ground for divorce.

Illustration

A and B got married and lives a happy life. One day A decides to renunciate the world.
Here, B has a right to approach the court and seek the remedy of divorce.

Presumption of Death

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.

In the case of LIC of India v. Anuradha (2004), the Supreme Court held that the death
of a person can be presumed only after the lapse of seven years. However, it does not
include the time of death. In the case of Prakash Chander v. Parmeshwari (1987), a
woman was asked to enter into a karewa marriage with her brother-in-law for the
procreation of children because her husband became a lunatic and was discharged from
the Army. He was not heard of after his discharge and was presumed to be dead. The
customs of karewa marriage allowed a second marriage if the spouse was not heard of
for 2-3 years, which means that they presumed the death of the spouse within this
period. However, when she was ill-treated by her brother-in-law and thrown out of the
house, she filed for divorce, but all the allegations were denied by the opposite party. The
court in this case observed that such a custom is not judicially recognised and that
the karewa marriage between the woman and her brother-in-law does not itself dissolve
the first marriage between her and her husband.

Illustration

A was missing from the last seven years and his wife B does not get any news about him
of being alive or dead. Here B can approach the court and ask for the divorce.

Concept of Divorce with Mutual Consent

As per Section 13B, the person can file the petition for divorce by mutual consent of both
the parties. If the parties want to dissolve their marriage as a mutual consent are
required to wait for one year from date of marriage. They have to show that they are
living separately for one or more year and not able to live with one another.

There was no provision related to divorce by mutual consent till 1976. It was in the 1976
Amendment that the provisions for divorce by mutual consent was added. It is given
under Section 13B of the Act and is retrospective in nature, which means that it is
applicable to marriages solemnised before the commencement of the 1976 Amendment
Act. According to the Section, both the parties can jointly file a petition for divorce by
mutual consent on the grounds that they have been living separately for a year or more
and cannot live together and resume their married life. They must also provide that they
both have mutually decided to end their married life.
The Section also provides that when the petition has been filed, parties would have to
wait for six months, after which they can bring the motion again in the court for
dissolution of marriage. If the parties do not come to court after six months and within
eighteen months from the date the petition was filed, it would be presumed that they
have withdrawn the petition. If the petition is not withdrawn, the court would hear the
parties and after necessary inquiry presume that the averments made are true and pass
a decree of divorce.

Essentials

The ingredients, or essential conditions, to seek divorce by mutual consent are:

 The petition must be filed jointly by the husband and wife.

 They must be living separately for a year or more.

 They have mutually agreed to bring their married life to an end.

 There is no possibility of resuming married life.

In the case of Laxmibai Ward v. Pramod (2009), the wife challenged the decree of divorce
by mutual consent on the ground that her signatures were obtained falsely and there was
no separation for a year or more. The Bombay High Court held that subordinate courts,
before passing a decree of divorce by mutual consent, must be satisfied of the fact that
the consent was not obtained by force, coercion, undue influence, or fraud.

Further, in the case of Rajesh R. Nair v. Meera Babu (2014), the Kerala High Court
observed that parties can withdraw the application for divorce by mutual consent even at
the stage of enquiry and if any of them withdraws their consent, then the court is not
entitled to pass the decree. The court in the case of Anil Kumar Jain v. Maya Jain
(2009) held that the consent to mutually dissolve the marriage must subsist till the
second stage, where the petition comes before the court. With respect to the waiting
period of six months, the Court in the case of Anjana Kishore v. Puneet Kishore
(2001) observed that in exceptional circumstances it can be waived. Further, in the case
of Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the period
mentioned under Section 13B(2) is not mandatory but directory.

Failure to obey decree of restitution of conjugal rights

Another ground of divorce is the failure of the parties to a marriage to comply with the
decree of restitution of conjugal rights. If such a decree has been passed by the court but
the husband and wife failed to comply with it within one year from the date the decree
was passed then they can seek divorce. This is given under Section 13(1A)(ii) of the Act.

Section 9 of the Act deals with the restitution of conjugal rights. Conjugal rights in a
marriage are a matrimonial rights that husband and wife share in society, comfort, and
affection and are made available to them by each other. Where either a husband or wife
has withdrawn from the society of another without any reasonable cause and the court is
satisfied of the same, it can pass a decree for the restitution of conjugal rights.

In the case of A.V. Janardhana Rao v. M. Aruna Kumari (2000), a petition was filed
by the husband seeking divorce on the ground that there was no cohabitation between
him and his wife within one year from the date the decree of restitution of conjugal rights
was passed and that they are not willing to resume their married life with each other. The
court held that due to non-compliance with the decree, the husband was entitled to a
decree of divorce.
Grounds of divorce specifically available to wife

The Act also provides certain grounds of divorce to women, i.e., wives, on which they can
seek divorce. These are given under Section 13(2) of the Act and are as follows:

 Bigamy by husband;

 Act of rape, sodomy, bestiality committed by husband;

 No cohabitation between husband and wife for one year or more after the decree
for maintenance has been passed;

 If the marriage was solemnised before attaining the age of 15 years, the wife can
repudiate the marriage.

Bigamy

A wife can seek divorce if the husband has committed the offence of bigamy according
to Section 13(2)(i) of the Act. Section 17 of the Act further punishes bigamy. The
conditions for the offence are:

 Marriage is solemnized after the commencement or enforcement of the Act.

 The party has a spouse living on the date of second marriage.

In the case of Lily Thomas v. Union of India (2000), the wife filed a complaint against the
husband, claiming that he converted to another religion and married another woman of
that religion, even though the first marriage is still subsisting. The court held that even
though he converted to another religion, he had not divorced his first wife. He would be
liable for the offence of bigamy, and his second marriage would be void. The Supreme
Court also observed that religion is not a commodity and must not be exploited for
worldly gain or benefits.

Rape, sodomy or bestiality

If the husband is guilty of committing the offence or rape, sodomy, or bestiality, the wife
is entitled to seek divorce on this ground under Section 13(2)(ii) of the Act. Rape as an
offence is given under Section 375 of the Indian Penal Code, 1860 (IPC), while sodomy or
bestiality fall under the category of unnatural offences. According to Section 377 of the
IPC, unnatural offences are those where a person engages in carnal or anal intercourse
against the order of nature with any animal. Carnal intercourse with a person of the same
sex or opposite sex is sodomy, while if done with an animal, it amounts to bestiality.

Non-resumption of cohabitation after the decree of maintenance has been

passed

The Amendment Act of 1976 provided another ground to the wife to seek divorce.
According to Section 13(2)(iii) of the Act, if a decree or order of maintenance has been
passed under Section 18 of the Hindu Marriage Act, 1955, or Section 125 of the Code of
Criminal Procedure, 1973 against the husband, directing him to give maintenance to the
wife in spite of whether she was living apart, and there was no cohabitation between
both of them for a year or more after the passing of such a decree or order, the wife can
claim divorce.

The essentials conditions to obtain divorce under this ground are:

 Petition must be filed by the wife.

 A decree of maintenance must be passed against the husband.

  There must be no cohabitation between husband and wife for a year or more after
passing of decree.

Repudiation of marriage

The Amendment Act of 1976 also gave the wife an opportunity to repudiate her marriage
if it was solemnised before she attained the age of 15 years. This is given under Section
13(2)(iv) of the Act. However, she can do so only before attaining the age of majority,
i.e., 18 years. This is known as repudiation of marriage. This clause applies irrespective of
whether the marriage was solemnised before or after the commencement of the
Marriage Laws (Amendment) Act, 1976.

Irretrievable breakdown of marriage as a ground of divorce

It has been observed that the rules pertaining to divorce have been liberalised especially
under the Hindu Marriage Act, 1955. However, getting a divorce on the basis of grounds
related to fault theory is cumbersome, time consuming and exhausting. It also causes
mental and physical trauma and shame to the parties. In order to avoid such situations,
the Law Commission in India proposed that the parties to a marriage must be allowed to
seek divorce on the ground of irretrievable breakdown of marriage and that it must be
recognised as a separate ground for divorce. This recommendation was made in the 71st
Law Commission Report. Further, it also suggested that a separation period of three
years must be used as the criteria in this regard.

In N.G. Dastane v. S. Dastane (1975), a petition was filed by the husband seeking
judicial separation, but his application was rejected on technical grounds. This case laid
the importance of irretrievable breakdown of marriage and the trauma and impact it has
on the children. The court also in several instances felt that where the parties cannot live
with each other and there is no possibility of restoring the relationship, marriage must be
dissolved on the basis of irretrievable breakdown of marriage. In the case of Naveen
Kohli v. Neelu Kohli (2006), the Hon’ble Supreme Court suggested the government to
consider inclusion of irretrievable breakdown of marriage as a separate ground of divorce
under the Act. The appellant in this case alleged that his wife was aggressive and rude.
She used to quarrel and misbehave with her in-laws. One day, he found her in a
compromising position with another man and so he started living separately and filed the
petition for divorce.

No petition for Divorce within one year of Marriage

As per Section 14, no Court will entertain the petition of divorce within the one year of
the marriage. But can be entertained if the matter is related to bigamy, and where the
consent of the spouse was taken through misrepresentation, fraud, undue influence etc.

According to Section 14 of the Act, no petition can be filed for divorce within one year of
marriage. The object of this provision is to enable parties to a marriage to make efforts to
save their marriage and marital bond. It is also based on public policy because marriage
is Hindu is considered to be a sacrament and has religious importance to it. The courts
try to safeguard a marriage till the end.

However, if there are exceptional hardships to the petitioner or exceptional depravity by

the respondent then the court can hear the application. While deciding the application,
the court must consider the interest of children born and whether there is a chance of
reconciliation between the parties. In the case of Dr. Rajasi v. Dr. Shashank (2015), a
petition was filed by husband under Section 12(1)(c) for nullity of marriage and also to
dissolve his marriage by way of divorce within one year of his marriage on the ground
that his wife had suicidal tendencies and behaved inappropriately. He also contended
that if he would have known about the same, he would have not solemnised the
marriage. The Bombay High Court observed that the object of Section 14 is laudable as it
prevents hasty decision of dissolving the marriage within one year however, in the
present case, the husband was able to prove that there was cruelty on the part of wife
and it is difficult for him to live with her and so ordered for dissolution of marriage.

Remarriage of Divorced Person

As per Section 15, after the marriage gets dissolved and no further petition was filed by
any of the spouses against the order of the court and the time for appeal has expired. At
that time it is assumed that both the spouse are satisfied. Then only the divorced person
can marry again.

According to Section 15 of the Act, a person has a right to remarry the person he or she
divorced. However, the following conditions must be satisfied:

 There was no right to appeal when the marriage was dissolved.

 There was a right to appeal but the time had elapsed.

 An appeal was filed by either of the parties but was dismissed.

It must be noted that this Section is only applicable to marriages that are dissolved by
divorce and not that are declared null and void under Sections 11 and 12 of the Act. In
the case of Tejinder Kaur v. Gurmit Singh (1988), the Hon’ble Supreme Court
observed that a spouse who got the decree of divorce cannot take away the right of the
other to present a special leave petition before the Supreme Court by marrying
immediately after the decree of divorce has been passed. He or she must wait for a
reasonable time.

Jurisdiction of courts dealing with divorce cases

Section 19 of the Act provides territorial jurisdiction of the courts that deal with divorce
petitions filed therein. It provides that every such petition must be brought before a
district court in whose jurisdiction:

 The marriage was solemnised as mentioned under Section 19(i) of the Act.

 Place where the respondent lives as given under Section 19(ii).

 Place where the parties lived together as given under Section 19(iii).

 If the petition is filed by a wife, the place where she lives as mentioned
under Section 19(iiia).

 According to Section 19(iv), where the petitioner lives or if the respondent lives
outside the jurisdiction of such court or has not been heard alive for more than
seven years by people who would have known about him/her if he/she was alive.

However, Section 13 of the Family Courts Act, 1984, provides that no party to a suit
before the Family Court would be entitled to legal representation as a matter of right.

Landmark cases

Lily Thomas v. Union of India (2000) – bygammy [ already sent u this case]

Amardeep Singh v. Harveen Kaur (2017)

Facts of the case

In this case, the petitioner and respondent were married to each other and had children
but decided to live separately owing to certain issues. After some time, they filed an
application for divorce by mutual consent. They also decided to waive the cooling period
or the waiting period of six months given in Section 13B because they had been living
separately for the past eight years and were firm on their decision to seek divorce. For
this, they filed a petition in the Supreme Court to allow them to waive the period.

Issues involved in the case

Whether the period of six months for the second motion mentioned under Section 13B of
the Act can be relaxed in certain situations?

Judgement of the court

It was observed that the period of six months is there to help the parties resolve their
dispute if there is a possibility of doing so and saving the marriage. The court also
observed that the object of the legislature to introduce divorce by mutual consent was to
give parties the option to dissolve the marriage by mutual consent where there is no
possibility of reconciliation and the bond is irretrievably broken. It did not aim at
prolonging the agony of the parties. The court thus held that the period of six months is
not mandatory but a directory, and after the following conditions are fulfilled, it is at the
discretion of the court to waive off the period:

 The statutory period of six months is already completed which means that the
parties were living separately from a long time.

 All the efforts and methods of reconciliation to save the marriage have failed.

 Other matters related to dissolution of marriage like maintenance, custody etc

have been resolved.

 The waiting period made mandatory to follow would cause frustration to the
parties and prolong their agony.

 The parties have the option to waive the waiting period of one week after the first
motion, but this can be done only after the parties have given valid reasons.

SPECIAL MARRIAGE ACT

Divorce

Divorce puts an end to marriage; the parties return to their unmarried status and are
free to marry again. The grounds for divorce are set out in Section 27 of the Act.

Grounds for Divorce

The District Court is the proper forum for filing a divorce petition on any of the
following grounds:

Adultery

The respondent to the case has committed adultery since the solemnization of the
marriage. Adultery is the matrimonial offence in which a married person and a
person of the opposite sex, other than the wife, have consensual sexual
intercourse during the subsistence of the marriage, as held in Dawn Henderson v. D
Henderson, AIR 1970 Mad 104 (SB). In view of provision (a) of cl. (1) of s. 27 of the
Act, a single act of adultery may constitute an adequate ground for divorce. As
required in Section 13 of the Hindu Marriage Act, 1955, it is not necessary to prove
that the respondent was ‘living in adultery’.

In the case of adultery, the court must be satisfied that adultery has been
committed, beyond a reasonable doubt. But adultery can, if ever, be proven very
rarely by direct evidence of the witness. Therefore, in most cases, the evidence must
be circumstantial in nature and depends on the probabilities of the situation.
However, as in the case of Jyotish Chandra Guha v. Meera Guha, AIR 1970 Cal 266
(DB), in the absence of wife’s reciprocity, the mere production of love letters written
by a person to a wife will not prove adultery.

Desertion

The respondent must have deserted the petitioner without cause for at least 2 years
before the petition was submitted. In essence, desertion means intentional
permanent forsaking and abandonment of one spouse by the other without the
consent of the other and without reasonable cause. It is a complete repudiation of
the marriage obligations. Desertion is not a withdrawal from a place, but from a state
of things that are necessary for marital life. It is a continuing offence and must exist
for two years immediately before the petition is presented. The essential elements of
desertion are factum or intention to desert or physical separation and animus. All
these ingredients must remain in place during the statutory period. The Doctrine of
Constructive Separation is one when one spouse is compelled to leave the
matrimonial home by the conduct of the other. The spouse that drives out is guilty of
desertion. There is no significant difference between the case of a man who intends
to stop cohabitation and leaves his wife and the case of a man who compels his wife
to leave him with the same intention through his conduct.

In Geeta Jagdish Mangtani v. Jagdish Mangtani, 2005 SC 3508, on the ground that the
husband had inadequate income, the wife had abandoned him after seven months of
marriage. She began to live with her parents and gave birth to a child. She did not
attempt to rejoin the husband and continued her job as a teacher. She knew about
the husband’s income status before marriage. Desertion on her part has been proved
under the circumstances. Due to the unpalatable atmosphere in the matrimonial
home, the wife left the matrimonial home in Sunil Kumar v. Usha, AIR 1994 MP 1, and
the reign of terror that prevailed there drove her out. She was held not guilty of
desertion.

Imprisonment

The respondent is subject to a seven-years or more imprisonment decree for an

offence laid down in the Indian Penal Code. On this ground, however, no decree for
divorce shall be granted unless the respondent has already been imprisoned for at
least three years out of the said period of seven years or more prior to the petition
being presented.

Cruelty

Since the marriage solemnization, the petitioner must have been treated with cruelty
by the respondent. The term’ cruelty’ was not defined in the Act and could be
attached to it as such a broad meaning. Russell v. Russell, [1897] AC 395, laid down
the legal position of cruelty in divorce proceedings. The legal concept of cruelty is
usually described as the conduct of such a character as to have caused risk to life,
limb or health (physical or mental) or to give rise to a reasonable apprehension of
such danger.

In a divorce proceeding on the grounds of cruelty, the petitioner must prove that the
respondent has behaved in such a way that the petitioner can not be called upon to
endure in the circumstances and that misconduct has caused injury to health or a
reasonable apprehension of such injury. The standard of proof required is the
preponderance of probability and not beyond all reasonable doubt as in criminal
proceedings.

Unsoundness of mind

The respondent must be of unsound mind, which is incurable. The burden of proof
lies with the petitioner that the respondent is of unhealthy mind or has suffered from
such a kind of mental disorder continuously or intermittently and to such an extent
that it is not reasonable to expect the petitioner to live with the respondent. The
petitioner will also need to prove that the unsoundness of mind is incurable. If the
court finds that the respondent’s unsoundness of mind is incurable, it does not
interfere with the degree of unsoundness of mind for decision-making purposes, as
stated in Lock v. Lock, [1958] 1 WLR 1248.

Venereal Disease

The respondent must be suffering from venereal disease in a communicable form.

Where it is not contracted from the petitioner who provides evidence that he or she
has not had any intercourse with any person other than the respondent, it is a prima
facie case that the respondent had committed adultery. It is then up to the
respondent to refute the prima facie case against him by calling for medical
evidence to demonstrate that:

1. The respondent did not suffer from the disease, or

2. The respondent innocently contracted the disease, or

3. The respondent had not committed adultery.

4. The doctor who examined the respondent personally can only provide
evidence to this effect.

Leprosy

The respondent should have been suffering from leprosy and the disease must not
be contracted from the petitioner. Proving the disease have a communicable nature
is not necessary.

Not heard as being alive

The respondent has not been heard by people who are closely related to the
respondent as being alive for not less than seven years. If the person is not heard of
for 7 years by those people who would naturally have heard of him being alive, then
it is presumed that the person is dead. The burden of proving that the respondent is
alive lies with the person who asserts it.

Husband is guilty of Rape, Sodomy or Bestiality

The wife can make a petition at the District Court on the ground that her husband
has been guilty of rape, sodomy, and bestiality since the solemnization of marriage.
These are also grounds for prosecution on criminal charges. However, the husband’s
conviction on these grounds of criminal offence is not enough to grant a divorce
decree. The commission of the offense must be proven de novo either by the
petitioner calling witnesses or by the respondent admitting guilt; the court will
decide whether any evidence is desirable to be corroborated.

Decree or order of maintenance obtained by the wife

The wife can also file a divorce petition on the ground that she has obtained a decree
or maintenance order and since the passing of such decree or order, she has been
living apart and has no resumed the cohabitation between her and her husband.

No resumption of cohabitation after a decree of judicial separation

The parties have not resumed cohabitation for at least one year after the passing of
a decree of judicial separation. The legislature’s intention to give such space and
time to the parties so there would be a possibility of reconciliation between the
parties. In the absence of any such change of mind of the parties, the legislature
believes that for any further period there is no justification for keeping the right of
cohabitation available to the parties. Based on their peculiar facts and
circumstances, each case has to be decided. A single act of cohabitation does not
mean the resumption of cohabitation.

Non-compliance with a decree for restitution of conjugal rights

There has been no restitution of conjugal rights between the parties for a period of
not less than one year after the decree of restitution of conjugal rights has been
passed.

Divorce by Mutual Consent

Under section 28 of the Act, which deals primarily with provisions relating to
obtaining a divorce by mutual consent in respect of a marriage solemnized and/or
registered under the Act, a petition for divorce may be filed with the District Court by
mutual consent. The following are some key points to consider when seeking a
divorce by mutual consent:

1. Both parties must present a petition for divorce to the District Court together.

2. There must be a petition on the grounds,

They lived separately for a period of one year or more.

That they were not able to live together.

That they agreed to dissolve the marriage mutually.

3. Only after one year from the date of entering the wedding certificate in the
Marriage Certificate Book then only the petition can be presented. However, in
instances where the petitioner suffers extraordinary hardship or in instances
of extraordinary depravity on the part of the respondent, relaxation may be
provided.
 4. The petition seeking divorce by mutual consent could be submitted to a
district court within its jurisdiction, either,

The marriage was solemnized.

The respondent resides, or where the wife resides, in the case where the wife is the
petitioner.

The parties to the marriage last resided together. or

The petitioner resides, in cases where the respondent is residing outside the
territories to which the Act extends.

5. Between 6 months after and within 18 months, the date of filing of the
petition for seeking divorce by mutual consent, both parties must make a
motion together for seeking a decree of divorce.

6. Among other aspects, the District Court considers the following, before
passing a divorce decree,

 That the petition has not yet been withdrawn.

 That under the Act, marriage has been solemnized.

 That the petitioner’s averments are true.

 The divorce consent was not obtained through force, fraud or undue
influence.

 That there was no unnecessary or inappropriate delay in commencing the

proceedings.

Thus, the provisions and procedures under the Special Marriage Act for acquiring
divorce by mutual consent are relatively straightforward and fairly simple.

However, parties wishing to obtain a divorce by mutual consent must bear in mind
that the Act also contains provisions dealing with the granting of alimony and
maintenance, both permanent and during the pendency of the proceedings. In cases
of divorce by mutual consent, the parties may agree on the terms relating to the
payment of alimony or maintenance and the same may be incorporated in the
pleadings before the Court. However, care must be taken to incorporate the
appropriate provisions in the pleadings in order to avoid future misunderstandings or
litigation. Therefore, while discussing the various issues related to seeking a divorce
by mutual consent with their advocates, it is advisable that the parties should
specifically discuss their arrangement and alimony and maintenance arrangements,
and take appropriate steps to ensure that their interests are safeguarded.

Restriction on Divorce during 1st year of the marriage

Any person who is married under the Special Marriage Act must be aware of this
important provision of the Act. Unless and until one year has expired from the date
of their marriage as recorded in the marriage books, the parties may not apply for
divorce in the District Court. However, in cases where the court considers that the
petitioner has suffered exceptional hardship or the respondent has shown
exceptional depravity on his part, a request for divorce would be retained, but if
there is any misrepresentation on the part of the petitioner to apply for divorce
before the expiry of 1 year, the court may, if any order has been passed, state that
order to take effect only after the expiry of 1 year, as mentioned in Section 29 of the
Act.

Can they remarry?

Speaking of the option of remarriage available for marriages of persons registered

under the Special Marriage Act, 1954, one important thing to bear in mind is that,
where the marriage has been dissolved, and there is no right of appeal available, or
there is no petition for it within the required period, or where the appeal is dismissed,
the parties may remarry as provided by the parties.

The General and Legal understanding

The general understanding is that only marriages are sacred and auspicious which
are done in one’s own caste, whereas the legal aspects of it as discussed above
doesn’t make marriages any less sacred or valid under this act. Our Law, under its
provisions, gives every citizen the right to marry and have a happy life with any
person of their choice. But many support this opinion and criticize it. Some people
think it’s valid; some don’t. The effect of arranged marriages on love marriage has
brought about this situation which, even after judgments and laws have been passed
more frequently in this regard, has not brought about a major change in the
mindsets of people who support marriages within religion and caste.

Difference between the Hindu Marriage Act and Special Marriage Act

The Hindu Marriage Act only applies to the Hindus, whereas the Special Marriage Act
extends to all Indian citizens.

The Hindu Marriage Act was enacted in 1955 by the Parliament of India Act. The
Hindu Marriage Act allows for an already solemnized marriage to be registered. It
does not provide for Registrar for solemnization of a marriage. Parties to the
marriage must apply to the Registrar in whose jurisdiction the marriage is
solemnized or to the Registrar in whose jurisdiction either party to the marriage has
resided for at least six months immediately before the date of marriage. Both parties
must appear with their parents or guardians or other witnesses before the Registrar
within one month from the date of marriage. There is a provision for the Registrar,
and subsequently, the District Registrar concerned to condone delay for up to five
years.

The Special Marriage Act, 1954, is an Act of the Parliament of India enacted to
provide the citizens of India and all Indian nationals in foreign countries with a
special form of marriage, regardless of the religion or faith practised by either party.
The Special Marriage Act provides for marriage solemnization as well as registration
by a marriage officer. The parties to the intended marriage must notify the marriage
officer in whose jurisdiction at least one of the parties has resided for at least 30
days prior to the date of the notice. It should be put in his office at some conspicuous
place. If either party lives in another Marriage Officer’s area, a copy of the notice for
similar publication should be sent to him. If no objections are received, the marriage
may be solemnized after the expiry of a month from the date of publication of the
notice The Marriage Officer has to enquire into them if any objections are received
and make a decision either to solemnize the marriage or to refuse it. Registration will
be made after the marriage has been solemnized.
Any marriage already celebrated, subject to certain conditions, may also be
registered under the Special Marriage Act after giving a 30-day public notice.

Muslim Law

Types of divorce (talaq) under Muslim Law

The two main ways by which the muslim can dissolve marriage is by divorce or when
the death of one party takes place, then automatically the marriage is dissolved.
There are four main types of divorce among Muslim. The four types are:

Divorce by husband

The husband can divorce his wife using 4 methods of divorce. The four ways a
Muslim husband can give divorce are as follows:

Talaq

A Muslim husband can give talaq to his wife anytime during their marriage with the
intention of dissolving the marriage. All the conditions are to be fulfilled by the
husband at the time of pronouncing the divorce. The Talaq is further divided into two
modes, which are:

Talaq-ul-Sunnat

The talaq-ul-sunnat is often referred to as talaq-ul-raje. In this form of divorce, there

are always chances of reconciliation and compromise. Both Shias and Sunnis
recognise and approve talaq-ul-sunnat as a valid form of divorce. Talaq-ul-Sunnat is
further divided into two types:

Ahsan

 In this type of divorce, the announcement is to be made in a single sentence

for divorce by the husband. The announcement of the divorce must be made
when the wife is not having a menstrual cycle and it has to be done during the
tuhr period. The announcement is to be made only once.

 Iddat is to be observed by the women after the divorce. The iddat period of
three months is to be observed in order to represent the Muslim wife’s three
menstrual cycles. If the wife is pregnant, then the iddat period will continue
until the birth.

 During the period of iddat, the husband cannot enter into sexual intercourse
with the wife. If he does, then the divorce will be revoked. The revocation will
be considered an implied revocation rather than irrevocable.

 Ahasan, as a type of divorce, is the most approved mode of talaq. This mode
of divorce is considered the most proper form of talaq.

 The mode of divorce can be pronounced, when the wife is having a menstrual
cycle, but for the divorce to be considered valid, the couple must not have
consummated their marriage.

Hasan
  The Hasan is less approved as compared to Ahsan. In this type of divorce,
revocation can take place.

 There should be the pronunciation of the word ‘talaq’ three times in

successive tuhrs.

 All three announcements should be made when the wife is free from the
menstrual cycle and in a state of purity.

 When the age of menstruation is crossed by the wife, the announcement is to

be made in thirty days with an interval between the three pronouncements.

 Sexual intercourse between the husband and wife should not take place
during the period of announcement that is to be made three times. If the
couple indulges in sexual intercourse, then the divorce is revoked.

 The divorce is irrevocable after the pronouncement is made for the third time.

Talaq-ul-Biddat

 Talaq-ul-Biddat is considered sinful and is not an approved form of divorce.

This form of divorce is not considered a proper way to dissolve a marriage.
Talaq-ul-biddat is also called talaq-ul-bain.

 Talaq-ul-Biddat is also referred to as triple talaq, wherein after pronouncing

the word talaq three times, the talaq is irrevocable immediately.

 Only the Sunni law recognises this form of divorce. The Shias and Malikis do
not recognise or use this type of divorce.

 If the parties want to marry each other again, the female will have to perform
the ‘nikah halala’ which means she will have to first marry another male and
divorce him in order to marry again.

In India, this form of divorce is considered unconstitutional. The Supreme Court in the
case of Shayara Bano vs. Union of India (2017) recognised triple talaq as
unconstitutional. The Chief Justice of Allahabad High Court in the case of Rahmat
Ullah vs. State of UP (1994) observed that Talaq ul-Biddat is a type of divorce that is
irrevocable in nature. This type of divorce is an instant divorce, where it takes place
in only a single sitting or when pronounced in tuhr. Talaq ul-Biddat does not give any
reconciliation chance or a waiting period nor does it allow Allah’s will for reunion,
which can be possible by getting rid of differences and helping the married couple
reconcile. This is opposite to what is stated in the holy book of the Quran.
Ila

 The next form of divorce is ila. In this type of divorce, the power to pronounce
the divorce is given to the husband, who states that he will not enter into any
sexual intercourse with his partner (wife) and will follow a vow of continence
for four months.

 After such pronouncement, the iddat period is to be observed by the wife. The
revocation of ila will take place if, during the iddat period, the husband and
wife indulge in a sexual relationship.

 The divorce will become irrevocable only when the Iddat period is completed.

 This mode of divorce is not followed or practised in India.

Zihar

 Zihar is also a constructive divorce, similar to Ila.

 Under such divorce, the wife is compared by the husband with some other
female, who shares a relationship that is prohibited and also does not indulge
in any sexual relationship with the wife.

 In this case, the wife will have the right to ask for judicial remedies. The wife
cannot seek a judicial divorce in such a case.

 The husband has to be an adult (attained the age of 18 years) and should be
of sound mind when making such comparisons.

 The husband can make amendments by feeding sixty people, observing a

fast for two months or freeing a slave to revoke zihar. The time period for
revocation is four months. After the completion of four months, the zihar is
completed.

 India does not practise this type of divorce.

In the case of Masroor Ahmad vs. The State (Govt of NCT of Delhi) & Anr. (2022), it
was observed by the Delhi High Court that both Ila and Zihar are absent virtually in
India as a form of divorce. In place of Ila and Zihar, Lian is found to be a mode of
divorce used in India, when a wife is charged with false adultery by the husband and
the husband is then not able to prove the same. The wife has the right to seek
divorce from the Muslim husband in this case. When the wife files the suit for
divorce, the husband has the chance of taking back the allegation of adultery. In this
case, the suit will fail. If the husband is adamant about the charges of adultery, then
in order to support the charges, he has to take an oath (four oaths). The wife will
also, in her defence take four oaths and prove her innocence in front of the court.
This entire process is known as the dissolution of marriage by the mode of lian.

Divorce by wife

Talaq-e-Tafweez

 The other name of talaq-e-tafweez is delegated divorce.

 Both the Shia and Sunni sects recognise this kind of divorce by wife.

 The husband who is of sound mind and has attained the age of 18 years has
the power to delegate this right to his wife. The power can be conditional or
absolute in nature, or it can be permanent or temporary in nature.

 The parties can enter into such an agreement before the marriage has taken
place or after the marriage. This type of divorce is also known as a contractual
agreement.

 The wife can seek a divorce if the conditions that are mentioned in the
agreement are not fulfilled.

 Delegating such a right to divorce to the wife does not deprive the husband of
his divorce rights that he already has. The husband will have all the rights to
pronounce the divorce intact.

In the case of Sadiya Begum vs. Attaullah AIR 1933 Cal 885, both the wife and
husband had entered into an agreement where the right to divorce was given to the
wife, with the condition that the husband wanted to marry again for the second time.
This type of talaq was considered a delegated talaq and was upheld as a valid form
of agreement. The option of using the right to divorce herself was given to the wife in
this case. This right would be active when a condition that was previously specified
takes place. In the current case, it was the second marriage of the husband, which
was the condition for exercising the right to divorce herself. It is totally the decision
of the wife to use this right. If the wife chooses to not exercise the right even when
the husband marries for the second time, which will be considered a violation of the
agreement, the marriage will not be dissolved and will continue.

Lian

 When the husband falsely charges the wife with adultery, this type of divorce
takes place.

 The divorce must be on the grounds of false adultery charges against the wife
by the husband.

 The Muslim husband must be 18 years of age or older and of sound mind
when he is imposing the charges of adultery on the wife.
  The court has to pass the dissolution decree for the marriage to be dissolved.
The divorce becomes irrevocable in nature when the decree is passed.

 If the husband wants to prevent the divorce, then he can withdraw the
charges of false adultery against his wife. This has to be done before the court
passes the decree.

In the case of Nurjahan Bibi vs. Kajim Ali (1976), the wife filed the suit for divorce on
the basis that her husband had charged her with false adultery and bad character.
The Muslim wife can bring in such a suit and seek divorce through Section 2 (ix) of
the Dissolution of Muslim Marriages Act, 1939.

Divorce by mutual consent

Khula

 Khula means ‘laying down’; in this type of divorce, the authority is laid down
to the wife by the husband.

 Khula required mutual consent from both sides. The wife will pay some
consideration from her property in return for her release from the husband.

 For the husband’s benefit, the wife releases her rights and mehr. The wife in
this type of divorce purchases the divorce from her husband in exchange for
consideration.

 The wife first makes the offer, which is then accepted by the husband. In
Khula, like other divorces, the iddat period is to be observed.

Mubarat

 The word mubarat means ‘mutual release’, the parties discharge/release their
marital rights.

 The parties, in order to become free from each other, mutually divorce each
other.

 Mubarat and Khula have similar formalities. Like Khula, in Mubarat there is
also an offer and acceptance that takes place.

 Like all other types of divorces in Muslim law, in Mubarat, the Iddat period is
also to be observed.

Divorce by judicial decree under Dissolution of Muslim Marriages Act, 1939

Faskh

 A Muslim married couple can file for divorce if they find themselves
incompatible with each other.

 The basis on which divorces can be filed by the wife is mentioned in Section 2
of the Dissolution of Muslim Marriage Act, 1939.

The grounds for divorce by wife are:

 For four years, the husband’s whereabouts are not known as per Section
2(i) of the Act. Provided that for a period of six months, a decree passed on
 this ground will not be effective. If, during the period of these six months, the
husband agrees to fulfil his marital duties by an authorised agent or physically
appears before the court stating the same, then the decree can be cancelled
by the court.

 The husband is impotent when the marriage takes place and continues to be
so as per Section 2 (v) of the Act. Provided that the husband will be given one
year by the court to prove that he is no longer impotent before the decree is
passed on this ground. If the husband is able to prove that he is impotent,
then the court will not pass the decree.

 For the period of two years, the husband has failed to maintain the wife.

 The husband is sentenced to seven years or more in imprisonment, provided

that an official order cannot be passed on this ground until the court has given
a final sentence.

 For three years, the husband has failed to perform the marital obligations, and
there is no reasonable cause for the same.

 The husband suffers from virulent venereal disease, leprosy or insanity (for a
period of two years).

 The husband is very cruel to the wife and imposes physical assault or makes
statements that are defamatory in nature and affect the wife’s reputation.

 If the wife at the time of marriage is under the age of 15, then when she turns
18, she can deny the marriage’s validity, as long as the consumption of
marriage has not taken place.

Case laws on Divorce (Talaq) under Muslim Law

The rights that the personal laws grant are established based on religion. These
rights are not absolute in nature. The two landmark judgements by the Supreme
Court of India in relation to this can be discussed to get a clear idea of this notion.

In the case of Mohd. Ahmed Khan vs. Shah Bano (1985), at the age of sixty-two,
Shah Bano’s husband had divorced her and she and her five children were disowned
by the husband and thrown out of her marital house. Shah Bano then approached
the High Court of Madhya Pradesh in order to restore the amount of her
maintenance, which was two hundred rupees. The husband stopped her from doing
the same. Shah Bano also wanted to increase the maintenance amount to five
hundred rupees as she was divorced using the triple talaq (Talaq-ul-Biddat). The
husband used the triple talaq as a defence to not pay the maintenance as Shah Bano
was no longer his wife. Under Section 125 of the CrPC, the court granted Shah Bano
maintenance on the grounds that, as she was not able to maintain and earn for
herself, she is liable for maintenance. This was against Islamic provisions.

The same happened in the case of Shayara Bano vs. Union of India (2017). Shayara
Bano, who was married to Rizwan Ahmed, was divorced by a divorce letter that was
sent to her when she was at her parent’s house visiting them. She was also a victim
of domestic violence. The letter was for talaq-ul-biddat which means triple talaq, a
talaq that is instant divorce. A petition was filed by Shayara Bano before the
Supreme Court of India to declare that triple talaq, polygamy and nikah halala are
unconstitutional. The Supreme Court considered the plea of triple talaq to be
unconstitutional. The Court also held that the government has to formulate new
provisions for the same and until then, an injunction against pronouncing triple talaq
by the husbands on their Muslim wives should be there.

The triple talaq violated Article 14 of the Constitution and is unconstitutional in

nature. The Talaq-ul-Biddat discriminates between Muslim men and women, as only
men under Muslim personal laws have the right to pronounce triple talaq. The
discrimination in religion can also be seen, as other religions have no such type of
divorce that is cruel and unjust to women. Article 21 of the Constitution is also
violated on the grounds that the right to live with human dignity is violated by triple
talaq. With the practice of triple talaq as a form of divorce, women in the Muslim
religion are subject to behaviour that is cruel and derogatory. The triple talaq does
not give a chance to any kind of reconciliation procedure to the married couple.

The case of Shamim Ara vs. State of Uttar Pradesh (2002) is one of the landmark
cases when it comes to divorce under Muslim law. In this case, Shamim Ara, who is
the petitioner, has filed a suit against her husband. The wife has claimed that her
husband has deserted her and has also not supported her family by providing any
financial support. The husband claims to have given the wife a triple talaq in 1987.
The key issue in this case is the validity of the talaq by the husband. There were
various questions, like, did the talaq take effect when the husband pronounced it but
the wife was not present but there were witnesses or did the effect take place when
the husband gave the divorce in writing to his wife in the year 1990? It was also
noted that there was no validity to the divorce. The Supreme Court decided that the
divorce was not valid in the end. The wife was not present when the talaq was given
and it was later communicated to her through writing. This is considered unfair to the
wife and such a divorce will not be recognized legally.

Justice Krishna Iyer observed in the case of Yousuf vs. Sowramma (1970) that it is a
false notion that males under Muslim laws have arbitrary power that is unilateral in
nature when it comes to the dissolution of marriage. The view is not in line with
instant divorce and is not in accordance with the rules and regulations laid down by
Islam. The holy book of the Quran has forbidden expressly that a Muslim husband
cannot find excuses to divorce his wife. If the wife is obedient and loyal to the
husband, then the husband should not find reasons that are false in nature to divorce
her. There is no power given to the Muslim man under the rules and laws of Islam to
divorce the wife whenever he wants.

In the case of Danial Latifi vs. Union of India (2001), the Supreme Court ruled that
when a talaq is pronounced under the personal laws of a Muslim, it should act in
accordance with the natural justice principles and the reasons for obtaining the
divorce must be given by the husband. The communication of the talaq must take
place as per the rules laid down in Muslim personal laws to consider it a valid
divorce. The liability of the husband will not end with the completion of the Iddat
period. In the case of destitution of wife and vagrancy, the wife must be maintained
by the husband. The husband has to make just and reasonable provisions for the
wife, even when it is after the customary period.

As per the prescribed form laid down by the divorce laws and rules for Muslim
husbands, a Muslim husband may give the right to divorce to his wife; this was held
in the case of Hamidoolla vs. Faizunnissa (1882). In the case of Shaikh Taslim vs. the
State of Maharashtra and Other (2022), it was held by the Bombay High Court that
the dissolution of the marriage can be done by the family court with mutual consent
between a Muslim couple and as per the Muslim personal law.

The validity of the contingent talaq was given some thought by the High Court of
Allahabad in the case of Bachchoo vs. Bismillah (1936). There was a dispute between
the Muslim couple in which the Muslim husband filed a suit for the restitution of
conjugal rights. The talaqnama was presented by the wife, which expressed that
when the husband defaulted under any conditions mentioned, the deed would
automatically be counted as the talaq kamil. (absolute divorce). The court found that
the husband had failed to fulfil the conditions and considered the divorce effective
and valid. The Court also dismissed the suit for the restitution of conjugal rights.

Muslim Women (Protection of Rights on Marriage) Act, 2019

The Muslim Women (Protection of Rights on Marriage) Act, 2019, was introduced with
the intention of providing protection to Muslim women who are married and to
prohibit the husband from pronouncing talaq and other related matters. This Act now
makes the triple talaq declaration a cognizable offence in nature.The key provisions
under the Act are:

Section 3 of Muslim Women (Protection of Rights on Marriage) Act

This Section states that triple talaq, when given by a Muslim husband to his wife, will
be considered void. A triple talaq given in any form, either electronic, written, spoken
or in any other way, will be illegal and void in nature.

Section 4 of Muslim Women (Protection of Rights on Marriage) Act

As triple talaq is unconstitutional and illegal in nature, pronouncing such talaq will
result in punishment. Section 4 of the Act talks about the punishment for
pronouncing the triple talaq. An imprisonment of three years, which can be
extended, is given along with a fine to the Muslim husband who divorces his wife
using triple talaq.

Section 5 of Muslim Women (Protection of Rights on Marriage) Act

This Section states that the Muslim wife is entitled to a subsistence allowance. The
Muslim wife who is divorced is entitled to an allowance from her husband for her and
her dependent children.

Section 6 of Muslim Women (Protection of Rights on Marriage) Act

This provision is related to the children’s custody. When the husband pronounces the
talaq to his wife, in that case the wife is entitled to custody of the minor children.

Conclusion

The Muslim religion has more than one type of marriage and divorce. The dissolution
of marriage can take place using various types of divorce, some of which are
followed in India and some are not. Under Muslim law, a marriage is regarded as a
civil contract, contrasting with Hindu laws that consider marriage a sacrament.
Marriage is regarded as fundamental and is vital for the establishment of a family.
Marriage is considered the sole way for establishing an intimate relationship that will
be considered legal or halal between women and men and for the children’s
legitimacy.

There are certain types of divorces that are no longer practised due to their rigidity.
Muslim laws have changed time and again in order to accommodate changing
circumstances. The government has introduced acts like the Muslim Women
(Protection of Rights on Marriage) Act, 2019 or the Muslim Dissolution of Marriage
Act, 1939. The divorce laws in India for Muslims are a blend of legal principles and
Islamic principles. With the declaration of triple talaq as unconstitutional, the Muslim
laws in India are adapting and changing with time.