December 28, 2023

Comparative analysis of Hindu Divorce Laws and Personal Laws of other religions

This article has been written by Mr. Abhishek Singh, a first year student of Banaras Hindu University, Varanasi.

 

Abstract-

It is rightly said that laws are a mirror to the society and if one want to understand what type of society is there, one can understand it by studying its laws. This article aims to enumerate divorce rights given to spouses throughout religions by studying their Personal laws and to find some of the similarities and differences between each other and simultaneously tries to understand their relevance in the contemporary time in view of modernity and new gender identities.

Keywords– Divorce, Comparison, Adultery, Cruelty, Multiculturalism

Introduction-

Marriage, throughout all religions, have been considered as a holy union of not only two individuals but also of two distinct lineages. In view of its sacred status, Divorce rights were deliberated and eventually conceded so as to reduce the power imbalance in the relationships and to provide spouses mainly women, a right to escape traumatic and unhealthy relationships. Initially, Divorce rights were tide up with the evolution of Women’s rights as Marriage as a relation was dominated by Patriarchy and women were given a subsidiary role as a partner but with passage of time as society slowly strives to be more gender balanced, Divorce rights slowly became lesser gender oriented and more on circumstantial focused providing both the spouses an equal divorce rights and keeping in mind some women-focused offences, additional grounds for divorce were given to Women. Laws have many sources from which they are created or adopted and one of the prominent source is customs. It has been generally observed that formulation of law is generally preceded by behavioural changes but it was not the same with divorce rights as in Indian landscape because literacy in women was not at par with men because of which Legislature supplemented with efforts of some educated men had to take the initiative to bring a required positive change. Initial legislations were rather restrictive according to modern terms and subsequently, after Independence, Parliament passed several laws mainly to codify Hindu Personal Laws while other religions continued to be governed by pre-Independence laws. Laws, if remain static may outlive its utility and can give birth to several societal ills. An apt example can be given of the need of The Muslim Women (Protection Of Rights On Marriage) Act, 2019 which was enacted to criminalize triple talaq. Thus, its not only important but a necessity that laws should be judged and analysed on the prevailing societal values so as to keep them effective with the passage of time.

India have been a cultural pot where different religions, different cultures continues to exist from time immemorial, interacting and developing into a uniform entity with distinct features depending upon geographical, religious and historical reasons. These similar traits are also depicted in the legislative framework of our country’s personal laws where taking into consideration the distinct religious, historical and other features, Separate personal laws were framed.

 

Indian laws governing divorce rights

India not only have multitude of religions but also have various sub-sects, classifying which is a daunting task as some of them propagate competing religious practices and beliefs because of which codifying personal laws have always remained a difficult task as religion will always have a dominant impact on these personal laws. Some of the workload was eased off by Britishers when they formulated some of preceding laws, and the remaining lacuna was fulfilled by Indian Parliament. The Major personal laws for the scope of these articles as classified on the basis of religion are –

  • Hindu Marriage Act, 1955- It deals with the marriage, separation and divorce among Hindus and codified Sastrik law and through it brought uniformity of law for all sections of Hindus and also included several other religious sects such as Buddhists and Jains within its purview.
  •  Muslim Dissolution of Marriage Act, 1939 –It deals with the situations in which Muslim women in India can obtain divorce And refers to The Muslim Personal Law [Shariat] Application Act,1937 which deals with marriage, succession and inheritance among Muslims. The act was enacted for consolidating and clarifying the various provisions for giving divorce rights to Muslim women.
  • Divorce Act, 1869-It amends the laws governing the divorce of Christian people and is codified in nature.
  • The Parsi marriage and divorce Act, 1936-It repealed the previous The parsi Marriage and divorce Act, 1865 and amended the law governing marriage and divorce among Parsis. The Act was last amended by the Parsi Marriage and Divorce(Amendment) Act, 1988

Keeping in mind, the distinct cultures, historical reasons that motivated the formulation of these laws and their wide ranging impact on a layman’s life, each one of these laws require individualized and focused study to give justice to the legislative intent.

 

Hindus-

Hindu Marriage Act of 1955 is the major law applying on the majority of Indian citizens as Section 2 of the Act gives a broad definition of “Hindus” on which the provisions of Act applies.

Section 2(1) states the jurisdiction of the Act which states that-

  • Hindu by religion or a subject who follows it any other form such as Brahmo Samaj, Lingayat etc.
  • Person who is Buddhist, Jaina or Sikh by religion.
  • Any other person who is domiciled in the territories to which the Act applies and who is not Muslim, Parsi, Jew or a Christian by religion.

Seeing its jurisdiction, It can be judicially concluded that it is one of the crucial Act which is governing one of the crucial and important aspect of one’s life as it made provisions for solemnization of marriages and also deals with grounds on which this union can be broken.

The Act incorporates two well known theories of divorce which is supplemented by Judicial incorporation of theory of irretrievable breakdown of marriage. Section 13 incorporates theory of fault while section 13B depicts theory of mutual consent which was included through amendment of 1976 for reflecting change in socially held values.

The detailed grounds which are provided under the Act are as follows-

  • Adultery- Adultery as defined by the Act, refers to having sexual intercourse with any other person other than his or her own spouse. The section is wide enough to include sexual intercourse between husband and his second wife, if his second marriage is included within the purview of Bigamy.
  • Cruelty– It includes mental and physical cruelty. while physical cruelty refers to physical torture, mental torture is as broader term to include lack of kindness and affection towards the other spouse.
  • Desertion- Desertion which refers to abandoning the partner after the marriage for a Continuous period of not less than Two years just preceding the petition. Earlier it was just a ground for judicial separation however after the amendment of 1976 it was made a ground for divorce.
  • Conversion of religion-  Converting into any other religion by spouse without the consent of his/her spouse can be a viable ground for the other to ask for divorce.
  • Unsound mind or mental disorder-Insanity as a ground for divorce makes continuously or intermittent unsoundness of the mind of the spouse or his/her suffering from the mental disorder which makes the living with them next to impossible.
  • Venereal diseases in a communicable form-If one of the spouse is suffering from venereal diseases such as leprosy which are communicable in nature provides a viable ground for divorce as living with the infected spouse would be harmful for their health.
  • Renunciation-they left the society and thereby, are not going to perform their martial duty and in the eyes of the Civil law they are dead and it provides a valid ground for divorce.
  • Presumption of death- When the individual is not heard for continuous 7 year by their family and friends, they are presumed to be dead and is a valid ground for divorce.
  • Failure to obey decree of restitution of conjugal rights-One another ground for divorce is failure to comply with the decree awarded by the court for the restitution of the conjugal rights.

There are also some grounds which are exclusively given to women which are-

  • Bigamy-If husband has more than one wife, then his wife can file for divorce subject to the condition that his other wife should be alive at the time of petition.
  • Rape, sodomy or bestiality-The commission of these offences must be proved by the wife either by witnesses as to fact or by evidence.
  • Decree or order of maintenance-This ground was added by the amendment of 1976, according to which, if a decree of maintenance under section 18 of Hindu marriage act, 1955 or an order of maintenance under section 125 of code for criminal procedure, 1973 is passed against the husband, and there is no  cohabitation between the spouses, then it provides a sufficient ground to the wife to claim divorce.
  • Repudiation of marriage-The amendment of 1976 also provided wife within option to repudiate their marriage if at the time of marriage she was under the age of 15 years subject to the condition that she can only repudiate the concerned marriage after attaining the age of majority which is 18 years.

There is also a provision for mutual divorce which is included through an amendment of 1976 in the view of section 13B

  • Divorce through mutual consent –It was added through amendment of 1976 and is retrospective in nature, it can be contended by the couples on the grounds that they are living separate from each other for more than 1 years and unable to resume their marriage. This section makes provision according to which after filing of the petition the couples would have to wait for six months and within eighteen months of the original petition, they can bring another resolution for dissolution of the marriage and if not filed code will presume that they had withdrawn the petition for divorce.
  • Irretrievable breakdown of marriage as a ground of divorce –Judiciary through it’s interpretative power have included irretrievable breakdown of marriage as a ground for divorce, it is observed that if a marriage is damaged beyond repair and it is at such a stage that asking the couple to continue their marriage would be nothing more than forcing them to undergo a mental trauma, so for the purpose of providing them a remedy, divorce can be granted.

Muslims

Muslims are gradually becoming the second largest majority of India as their population nears to 40 crore. In contrast to Hindus where no religious text or school of thought can be considered authoritative, religious texts play a prominent role in every aspect of the life of Muslims including divorce, thereby, the whole institution of marriage is collaborated with the religious sanction, making understanding of their religious law, a prerequisite in appreciating already formulated family laws. Nature of Marriage[Nikah] as under Muslim law is contested as different jurists hold contesting views. Some consider it as a civil transaction having legal nature while other considers it a sacred institution, after which the concerned women continues to retain their individual identity, thereby, creating a progressive impression about their family law. The recent increase in demands for Uniform Civil code and a general impression that being dominated by religious philosophies, Muslim personal laws are backward in nature are a gross generalization to say at the very least. Thereby, to understand and appreciate the relevance of these laws, it is important to analyse the history behind them and their intricacies involved.

Divorce refers to end of a relationship and there are two ways in which a Muslim marriage can be dissolved- Divorce and Talaq. In common parlance, one uses both the terms interchangeably where Divorce is governed by Dissolution of Muslim Marriage Act, 1939 while Talaq is dealt by Muslim personal laws. While Triple Talaq had been considered unlawful by the Supreme Court in view of the social evils it gave birth to but other grounds both for men and women do exist for divorce.

Divorce grounds under Muslim law.-

Under Muslim law,  dissolution of marriage can take place through four ways-

  • By husband
  • By wife.
  • By mutual consent.
  • By judicial decree under the provisions of Dissolution of Muslim Marriage Act, 1939.

 

By husband

Talaq- it is an Arabic word which means taking off restraint and signifies dissolution of marriage. However, there are two narration about it in different sects as in Hanafi Law, there is no need for any ready-made phrase or words to be spoken whereas in Ithna Ashari law, there is a strict procedure for talaq to be effective. Sunnis permit both oral and written forms of talaq while Shias on oral talaq. Therefore, to reconcile these differences of different sects, two modes are available to husband for the purpose of dissolving the marriage, which are –

  • Talaq- ul- Sunnat– Talaq is propounded by the traditions established by the Prophet. It is a form of divorce in which within a period of time, decision taken can be revoked by the husband and cohabitation can again be established. This is further sub-divided into –
    • Ahsan talaq– It is considered most appropriate. In this, Husband refuses to accept his wife while she is free from menstrual cycle after which the wife is supposed to observe iddat, which is basically a period of waiting which a married Muslim women has to undergo after her separation with his Husband or after her Husband’s death and only after that she is allowed to remarry. During this period, Husband can revoke the talaq either in an expressed or implied manner.  Renewed cohabitation with wife during the iddat period is considered as an implied revocation and after three months or delivery of the child, when iddat period ends and there is no revocation, talaq becomes conclusive and final.
    • Hasan– This type of divorce is also of revocable nature. It is considered that this type of divorce is approved by Prophet Mohammad and is seen as valid by all schools of Muslim law.In this, husband has to talaq on his wife three times with a gap of one month between each of them, making its duration of 90 days and between two pronouncement of talaq, there should be a period of abstinence known as iddat. The talaq or divorce is revoked if the couple gets intimate or begins to cohabit during the period of iddat. Supreme Court in Benazeer Heena vs Union of India & Ors too differentiated talaq-e- Hasan and triple talaq and observed that there is a time duration between the pronouncements of divorce and the actual divorce and can be revoked during the time of iddat, it is prima facie not violative of women rights as much as triple talaq was where there was an instant divorce.it was brought to bring an end to the ill-treatment of her husband as where husbands were using it to divorce and repudiate the divorce according to their sweet will.

After these, there are also Implied and Contingent divorce. In implied divorce, husband should clearly pronounce the divorce and there should be no scope for ambiguity, so as to make the divorce effective while Contingent divorce refers to divorces which are affected by future events and they are known as talaq-e-taliq. There are two other modes of Ila and Zihar which are not practiced in India.

By wife

Talaq-e-tafweez

This is the only way through which women can give divorce to his husband, however, this authority can only be delegated by the husband by an agreement before or after the marriage. In this two conditions are provided in which the women get the right to divorce her husband which are –

  • If her husband performs bigamy.
  • If the husband is unable to maintain to her for a specified period of time due to any other condition which is not opposed to public policy.

This divorce method also got judicial acknowledgment through Hamidoollah v. Feizunnisa.

Divorce by mutual consent

It was made available only to Muslim women after Dissolution of Muslim marriages act, 1939.

  • Khula- The literal meaning is ” to lay down” before the law. It denotes rights of Muslim women to divorce her husband, similar to the right of talaq available to the husbands subject to some consideration given by the women and observance of iddat period. Several scholars are of different opinions regarding the role of husband consent in this divorce as some scholars of hanafi school of Islamic jurisprudence considers husband’s assent , an important condition for making the divorce effective.
  • Mubarat -It signifies mutual discharge from the martial tie as the offer to dissolve the marriage can be given from both the side and acceptance of offer makes the divorce irrevocable subsequent to compulsory iddat period.

By death of the husband or wife

Being a natural occurrence, death of any of the spouses dissolves the marriage. While husband can remarry immediately, women are expected to follow the iddat period of 4 months and 10 days and in case of pregnancy, she have to wait until the delivery of child to remarry.

 

Dissolution of Muslim Marriage Act, 1939.

Lian

If a husband charges his wife with adultery charges and are proven to be false, it provides a ground to wife for obtaining a divorce by filing a regular suit for dissolution of marriage. The judicial separation given through lian is irrevocable in nature.

Faskh

Section 2 of the Dissolution of Muslim Marriage Act , 1939 states nine grounds on which a muslim wife can obtain a decree of divorce-

  • Failure to maintain-when a husband doesn’t provide maintenance to his wife for two years, it provides a ground for divorce. No defense is available on grounds of poverty, failing health or unemployment.
  • Imprisonment of husband- when husband is imprisoned for seven years or more, women is entitled to obtain a decree for divorce.
  • Failure to perform martial obligations-if husband is unable to perform is martial obligations for three years, it gives a ground for dissolution of marriage
  • Impotency of husband- In this burden of proof lies on the husband to prove that he is not impotent and even after one year, if he is judged to be impotent, then divorce will be granted.
  • Insanity, leprosy or venereal disease- Judicial divorce can be granted on the above mentioned ground.
  • Repudiation of marriage by wife- If a girl is married while she is minor, after gaining majority, she is entitled to a decree of divorce through repudiation.

Grounds recognized by Mohammedan law-

Women are entitled to obtain divorce mentioned under Mohammedan law.

  • Cruelty by husband- cruelty can be judged on several grounds such as physical assault, defamatory statements,  restriction on practice of their religion among others.

Substantial changes were brought in by the Muslim Women protection Act, 2019 which criminalized triple talaq and included section 5 which provides rights to the women for maintenance after divorce after Supreme Court observation in Shayara Bano v. Union of India [2017].

While some issues were dealt by the Concerned Act and Judicial Decision, some inherent issues still persists which calls for a careful analysis with other contemporary laws which is dealt further in the article.

Christian

Many centuries ago, Christians came to India mainly as merchants and ultimately, settled down, following their initial traditions along with local customs. Many locals also took Christianity as their religion. When Britishers came in India, they were accompanied by huge influx of mercenaries and Christians. Seeing this, personal laws were formulated. The present Act, i.e., Indian divorce act of 1869 which deals with divorce between Christians or when one of the spouses is a practising Christian. Initially, the Act was gender biased in the favour of men and harsh provisions were there. Thereby, to make the law more gender sensitive and effective, Indian Divorce (Amendment) Act, 2001 was enacted and introduced section 10A and introduced new grounds. So the present grounds for divorce available to both husband and wife are-

  • The other spouse has committed adultery.
  • The other spouse is no longer a Christian and have changed their religion.
  • Have been of unsound mind for two years preceding the petition.
  • The other spouse is suffering from any viral form of leprosy for last two years.
  • The other spouse is suffering from any venereal disease in any communicable form from last two years.
  • The other spouse is not heard for about seven years even to those who would be naturally aware about them if they were alive.
  • The other spouse has failed to comply with the judicial decree of restitution of conjugal rights for two years or upwards.
  • Section 10A incorporates mutual divorce in the act . According to this, if after living separately for two years, The couple think that they can’t Live together and the end result is nothing but breakdown, they can file a petition in district court with the purpose of dissolving their marriage mutually. The court may, if no resolution is moved by the parties after six months and before eighteen months, look into the facts and after satisfying it of some of the fact such as existence of marriage among others will dissolve the marriage.

Parsis-

 In Sir Dinshaw Manockji Petit v. Sir Jamsetji Jeejeebhoy (1908), Bombay High court observed that Iranians from Persia who came to India either temporarily or permanently and profess Zoroastrian religion along with their forefathers and forthcoming generation, make up the Parsi community. However, after Jamshed Irani v. Banu Iarni (1967), Parsis were used for both Indian and Iranian Zoroastrians. The Parsi Marriage and Divorce Act, 1936 was enacted which repealed the pre-existing Parsi Marriage and Divorce Act, 1865, which till date governs the marriage and divorce of the community. The act was amended last in 1988.

The grounds given in the Act for Divorce are-

  • When marriage has not been consummated within one year from the date of institution of marriage due to deliberate failure on the side of the other spouse.
  • When at the time of marriage other spouse is of unsound mind or mentally ill and has remained the same at the time of filing of suit.
  • When the wife is pregnant with someone other than his husband subject to the conditions that-
    • at the time of marriage, he was unaware about her pregnancy.
    • Suit was filed within two years.
    • After knowing about the pregnancy, there was no martial intercourse.
  • When other spouse have committed adultery, bigamy, unnatural offence or fornication.
  • When the other spouse has deserted the plaintiff for two years.
  • When the other spouse is sentenced to imprisonment for seven years or upwards according to any offence given in Indian Penal Code[1860]
  • when the defendant have caused plaintiff-
    • grievous hurt.
    • Infected with a venereal disease.
  • When the defendant is husband and have forced the wife to submit to prostitution.
  • That the other person have ceased to be Parsi by religion.
  • That a judicial decree was passed and no martial intercourse for one year took place between them after passing of the decree.

Judicial method-

Section 32A provides that on failure of reconstitution of conjugal rights even after a judicial decree was passed for one year or upwards, any one of the spouse can file a suit to dissolve their marriage.

Divorce by Mutual consent

Section 32B deals with dissolution of marriage by mutual consent when the spouses are living separately for one year or upwards and are thereby, of opinion that martial obligations can’t be fulfilled by them.

Looking into all these laws one can easily that Indian society is not only a cultural pot but each culture is also provided their own legitimacy through their own personal and unique laws but are all laws justice oriented or have developed with time or have remained static? This question can only be answered through comprehensive analysis of these laws.

 

 

Comparative Analysis of Hindu Divorce law and personal law of other religion–

India have varied cultures and religions living together because of which each of these cultures have intermingled while at the same time they continue to maintain their distinct identity. These same conclusion can also be drawn from the grounds on which divorce is given under personal laws of different religions. On a cursory view, one can definitely find some of the similarities between each of these laws such as adultery or in cases of Legal death, these symbolic grounds are a representative of common cultural and historical perspective. It can be observed that after independence, government through amendments have included mutual divorce in almost all of these laws while simultaneously, Judiciary through its judgments, observations in PILs and decree continues to change the meaning of some of the restrictive words and to keep them useful. However, there are also substantial differences in these laws with respect to remedies and practical application because of which whenever a suit is filed for divorce, issues and contentions always remain as some of the provision of the Laws and cultural practice on a prima facie appears to be contradictory to the constitutional provisions. Courts while deciding the cases, generally take the lenient view and tries to maintain the sanctity of marriage as an institution and opts for divorce only as a last resort by deciding cases on its own merit. These issues were also taken in account by Constitution framers because of which they included Article 44 which acts as directive to the state to apply Uniform Civil Code. The laws when they were formulated may have been progressive or a laudable piece of legislation but how effective a statute is depends on how much it is effective in the current situation of society and not how effective they were when they were formulated. The growing feminist movement along with incorporation of LGBTQ+ in the society demands that laws with more gender neutrality and uniformity are formulated so as to make them more inclusive in spirit.

 

Conclusion–

“The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom.” This quote by John Locke rightfully explains how impactful a single piece of legislation can be and more so, if it is a Personal Law. Each religion in India have their own Personal law according to which they decide various matters and one of those matter is marriage and divorce and just like every piece of legislation, these legislation too are not perfect and subject to some evils. Legislature and Judiciary, at regular intervals, continue to modify these according to societal demands but right now, Society is undergoing a rapid and enormous change which can change the whole definition of what marriage is. Therefore, it is necessary that there should be some positive changes in the Family law jurisprudence and in societal landscape to make them truly people-centric laws.

 

References-

 

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