The modern matrimonial law in India is greatly influenced upon by the modern matrimonial law of England. “Divortium dictur a divertendo, quia vir divertitur ab uxore.”[i] Divorce is a judicial act by which the marriage relation between a man and a woman is either dissolved or partially suspended. After a decree of divorce is passed, the parties can no longer be husband and wife. There are three theories to the concept of divorce – the fault theory, the consent theory and the breakdown theory. This submission discusses the substantive and procedural aspect of getting a divorce in India.
Law regulating Divorce in India:
Both the Centre and the State can legislate on matters pertaining to marriage and divorce in India since it is a matter covered in the concurrent list.[ii] India being a diverse country with varied religions, cultures and customs, the personal law is drafted in such a manner that there are specific legislations for individuals belonging to different religions.
- Hindu Marriage Act, 1955 – governs marriage and divorce for Hindu, Buddhist, Jain, Sikh.[iii]
- Dissolution of Muslim Marriage Act, 1939 – governs the divorce procedure for Muslims.[iv]
- Divorce Act, 1869 – governs the divorce procedure for Christians.[v]
- Parsi Marriage and Divorce Act, 1936 – governs marriage and divorce for Parsis in India.[vi]
- Special Marriage Act, 1954 – governs all secular and civil marriages and their dissolution thereof.[vii]
Types of Divorce in India:
A holistic reading of the gamut of divorce laws in India, allows us to classify divorce into two types –
- Divorce by mutual consent.
- Contested Divorce.
A. Divorce by mutual consent:
In this form of divorce, both the husband and the wife mutually agree that their marriage is not sustainable and therefore they peacefully separate with consenus ad idem.
Divorce by mutual consent is governed by S.13B of the Hindu Marriage Act, 1955; S.28 of the Special Marriage Act, 1954; S.32B of the Parsi Marriage and Divorce Act, 1936 and S.10A of the Divorce Act, 1869.
Conditions to be fulfilled for divorce by mutual consent:
In Samistha v. Om Prakash,[viii] the requirements for presenting a petition for divorce by mutual consent were discussed. They are:
1. That the spouses have been living separately for a period of one year. (Note that this condition in the Divorce Act, 1869 reads as two years). The expression ‘living separately’ means that the parties are not living as husband and wife, irrespective of the fact that they are living in the same house or different houses.
2. That they have not been able to live together, implying that the marriage has irretrievably broken down.
3. That they have mutually agreed that their marriage should be dissolved.
In a petition for divorce by mutual consent, no other ground can be taken.[ix]
Necessary Documents to be furnished for Obtaining Divorce by Mutual Consent
The following are the necessary documents required for obtaining divorce by mutual consent –
- Birth details, address proof and family details of husband and wife.
- Marriage certificate or any proof of marriage like marriage invitation.
- Evidence proving that the spouses are living separately since more than the statutory requirement.
- Evidence of failed attempts of reconciliation.
- Details of present income and assets.
- Income Tax Returns for the last 3 years.
Procedure to be followed for obtaining a divorce by mutual consent:
1. Presentation of joint petition: Upon satisfying the aforementioned three conditions, a joint petition by both the husband and the wife has to be presented to the Court having jurisdiction. This presentation of joint petition and filing of statements is known as establishment of the first motion.
2. ‘Cooling off period’: After the presentation of the joint petition, the parties are required to wait minimum for a period of six months extendable to a maximum period of eighteen months. This cooling off period is an opportunity for the couple to reconsider their decision and reconcile. Though this cooling off period is statutory in nature, there has been a diverse opinion of the High Courts if it can be waived or not.
The Supreme Court recently in the case of Amardeep Singh v. Harveen Kaur,[x] said that the cooling off period may be waived if the following conditions are satisfied:
The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year Under Section 13B(1) of separation of parties is already over before the first motion itself;
3. a) All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 Code of Civil Procedure/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
b) The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
c) The waiting period will only prolong their agony.
4. Factors to be considered by the Court: There are three main things to which the couple should mutually agree. They are –
a. Alimony or Maintenance to be paid – The alimony may be payable by one spouse to the other depending on the extant of dependency. It may be a gross sum or a periodical sum that both of them mutually agree to.
b. Custody of the child – The best interest and the welfare of the child are of paramount importance.[xi] Other factors such as statutory mandate, wishes of the parents, wishes of the child, age and sex of the child are also considered while granting custody. The parties should mutually agree as to who will retain the custody of the child. The custody may be shared or joint or exclusive.
c. Division of Property (both movable and immovable): Right from bank balance and jewelry to land and building, the properties should be divided. It is not necessary that there has to be proportionality as long as both the parties have agreed mutually to divide the property in a particular manner.
The Court must in every case be satisfied that the consent of neither party has been obtained by fraud, force or coercion.[xii] It is court’s duty to figure out the reasonableness of the case and to ensure while looking at the facts that the consent is not viciously obtained. An appeal against the decree of divorce is allowed as there can be situations where even court fails to ensure that consent given for divorce is not free.[xiii] If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce.
5. Passing of a decree of divorce: On making limited inquiry, if the Court is satisfied that aforesaid conditions are fulfilled; the decree of divorce deserves to be passed in such matter.[xiv]
Islamic Law and Divorce by Mutual Consent:
Islamic law has not conferred power to pronounce talak on the woman, as it has on the man, though it recognizes that a Muslim wife has the right to seek for divorce with the consent of the husband. When the wife initiates the divorce and the husband consents to it, it is known as Khula. When the husband and the wife mutually consent to divorce, it is known as mubaraat.
For Khula, it should be evident that the spouses must be of sound mind and major.[xv] A divorce by Khula is a divorce with consent and at the instance of the wife, in which she gives or agrees to give consideration to the husband for her release from the marriage tie.[xvi]
Compensation is usually given in Mubaraat (which is in most cases, forbearance of dower), though it is not an essential part of the transaction. The requirements of Mubaraat and Khul are that in both, the wife must undergo Iddat. Both are essentially acts of the parties and judicial intervention is not required, though it may be effected by a Kazi, where he merely declares that the parties have dissolved their marriage mutually.
B. Contested Divorce:
As the name suggests, the parties have to contest the divorce in a Court of law. Every legislation has different grounds, also known as matrimonial offences, the commission of which may allow one party to initiate divorce proceedings.
1. Hindu Marriage Act, 1955 recognizes the following grounds of divorce where the spouse:[xvii]
a. Has voluntary sexual intercourse with any person other than his or her spouse;
b. Treats the other spouse with cruelty (physical or mental);
c. Has deserted the spouse for a continuous period of not less than two years immediately preceding the presentation of the petition;
d. Has converted to another religion;
e. Has been incurably of unsound mind or has been suffering from continuous or intermittent mental disorder;
f. Has been suffering from virulent and incurable form of leprosy;
g. Has been suffering from venereal disease in a communicable form;
h. Has renounced the world by entering religious order;
i. Has not been heard as being alive for a period of seven years or more.
2. Dissolution of Muslim Marriage Act, 1939 recognizes the following grounds for divorce:[xviii]
a. That the whereabouts of the husband have not been known for a period of four years;
b. That the husband has neglected or has failed to provide for her maintenance for a period of two years;
c. That the husband has been sentenced to imprisonment for a period of seven years or upwards;
d. That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
e. That the husband was impotent at the time of the marriage and continues to be so,
f. That the husband has been insane for a period of two years or is suffering from a virulent venereal disease;
g. That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years : Provided that the marriage has not been consummated ;
h. That the husband treats her with cruelty, that is to say,– habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or associates with women of evil repute or leads an infamous life, or attempts to force her to lead an immoral life, or disposes of her property of prevents her exercising her legal rights over it, or obstructs her in the observance of her religious profession or practice, or if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;
i. On any other ground which is recognized as valid for the dissolution of marriages under Muslim law
3. The Divorce Act, 1869 recognizes the following grounds for divorce:[xix]
Any husband can present a petition to the District Court or the High Court, praying that his marriage needs to be dissolved on the ground that his wife has been guilty of adultery since the solemnization of marriage. According to this act, such marriage might be solemnized according to the Christian Marriage Act.
Any wife can present a petition to the District Court or the High Court for dissolution of marriage. The wife can file such petition under any of the following circumstance:
a. If her husband has exchanged his profession of Christianity for the profession of some other religion
b. If the husband went through a form of marriage with another woman
c. If her husband has been guilty of incestuous adultery since the solemnization of marriage
d. In case of bigamy with adultery
e. In case of marriage with another woman with adultery
f. In case of rape, sodomy or bestiality
g. In case of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro
h. In the case of adultery coupled with desertion, without reasonable excuse, for two years or more
4. The Parsi Marriage and Divorce Act, 1936 recognizes the following grounds for divorce:[xx]
a. Marriage not being consummated even after the completion of a year
b. When either one of the spouses was of unsound mind during the time of marriage or this fact was hidden during the time of marriage
c. When either one of the spouses is suffering from leprosy or some form of mental disorder
d. In cases whereby the wife is pregnant with another man’s child during the time of marriage
i. The wife started practicing prostitution
j. Whereby the spouse has been imprisoned for a period of seven years or more
k. If any of the spouses has deserted for a period of two years or more
l. If either one of the spouses has converted into another religion and has ceased to be a Parsi.
5. The Special Marriage Act, 1954 recognizes the following grounds for divorce where the spouse :[xxi]
a. Has voluntary sexual intercourse with any person other than his or her spouse;
b. Has deserted the other spouse for a continuous period of not less than two years immediately preceding the presentation of the petition;
c. Is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the IPC;
d. Has since the solemnization of the marriage treated the petitioner with cruelty;
e. Has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder;
f. Has been suffering from venereal disease in a communicable form;
g. Has not been heard of as being alive for a period of seven years or more.
The wife has two additional grounds –
a. That the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
b. That in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.
Procedure to be followed in a contested divorce:
The Family Courts Act, 1984 establishes family courts which adopts the procedure as laid down in the Indian Evidence Act, 1872,[xxii] Code of Civil Procedure, 1908 and Code of Criminal Procedure, 1973.[xxiii] It can even adopt its own procedure.[xxiv] The following are the main steps to obtain a contested divorce in India:
1. Drafting and Filing of Divorce Petition in the court of relevant jurisdiction.
2. Service of summons to the other party and giving them notice that a divorce proceeding has been initiated.
3. Response by the other party. In case there is no response, an exparte order may be passed.
4. Conducting the trial by examination of witnesses and inspection of documentary evidences.
5. Interim orders may be passed, if any.
6. Advancing of arguments by the representative counsels.
7. Passing of final order of divorce.
As discussed earlier, the three main concerns in a divorce are – alimony, custody of the child and separation of property.
Contested divorce for Muslims:
As per S.3 of the Dissolution of Muslim Marriage Act, 1939 a Muslim woman to whom a decree of divorce is granted should have her mahr/dower returned. It entitles her to a fair and reasonable maintenance during the iddat period and all gifts and properties given to her at the time of marriage. Also, section 4 of this Act provides that if a divorced woman is unable to maintain herself after the iddat period, then her relatives who are entitled to inherit her property on her death as per Muslim Law, may be ordered by a magistrate to maintain her, keeping in regard her standard of living prior to divorce and capacity of such relatives. The amount of such reasonable and fair maintenance would be payable by such relatives in the proportions in which they would inherit her property.
Personal laws in India are extremely diverse and intricate. Courts always consider all the factors before passing a final order of divorce. Hence, in order to obtain a divorce, it is essential to know the rights and liabilities of the parties to the wedlock.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i] Divorce is said to be divertendo because a man is diverted from his wife.
[ii] Entry 5, List III, Schedule VII, Constitution of India.
[iii] S.2, Hindu Marriage Act, 1955.
[iv] Preamble, Dissolution of Muslim Marriage Act, 1939.
[v] Preamble, Divorce Act, 1869.
[vi] Preamble, Parsi Marriage and Divorce Act, 1936.
[vii] Preamble, Special Marriage Act, 1954. Uses the word ‘in certain cases’.
[viii] AIR 1992 SC 1909.
[ix] Ravi v. Sharda, AIR 1978 MP 44.
[xi] Surya Vadanan v. State of Tamil Nadu, (2015) 2 SCC (Civil) 183.
[xii] S.23(1)(aa), Hindu Marriage Act, 1955.
[xiii] Sushma v. Pramod, 2009 SCCOnl Bom 399.
[xiv] Mittal Ramesh Panchal v. Nil, 2013 SCC Online Bom 1714.
[xv] Rashid v. Anisa, (1931) 59 IA 21.
[xvi] Buzz-sul-Raheem v. Lutefunuissa, (1861) 8 MIA 397.
[xvii] S.13, Hindu Marriage Act, 1955.
[xviii] S.2, Dissolution of Muslim Marriage Act, 1939.
[xix] S.10, Divorce Act, 1869.
[xx] S.32, Parsi Marriage and Divorce Act, 1936.
[xxi] S.27, Special Marriage Act, 1954.
[xxii] S.14, Family Courts Act, 1984.
[xxiii] S.10, Family Courts Act, 1984.
[xxiv] S.10(3), Family Courts Act, 1984.