This article has been written by Mr. Dhirendra Singh, a 1st year law student of Modern Law College, Pune.

ABSTRACT

Divorce in India is regulated by personal laws which are more or less codified on the lines of religious sanctions. This article on challenges in interfaith divorces under Hindu Law will focus on divorce laws under Hindu Laws. It will try to look how interfaith marriages are solemnized and what are the ways to dissolve such marriages while touching upon what does it mean by interfaith. Article will provide an insight about conditions of marriages under Hindu Laws and grounds on which divorce can be taken. Emphasis is made upon to look for the legal challenges interfaith people face while seeking for divorce and the way out for the interfaith people seeking divorce under Hindu laws. 

KEYWORDS

Divorce, Dissolve, Hindu Laws, Interfaith, Conversion

INTRODUCTION

Hindu texts considered marriages sacrament and recognized marriage as indissoluble union. A union that will last for eternity and therefore did not have any concept of divorce. However Indian legislature on the ground that if marriages are based on love and morality, they shall continue only till it lasts in a marriage. Parliament then enacted Hindu marriage Act 1955 which provided for conditions for marriage and specific provision for divorce. However, Hindu Marriage Act did not provide for marriage and divorce of interfaith individuals. The same were regulated by Special Marriage Act, However, complicated issues came at the doors of judiciary which pronounced judgements clarifying the relationship of Hindu laws and interfaith divorce.

MARRIAGE UNDER HINDU LAW

Hindu Marriage Act 1955 provides that only Two Hindu can marry under this act. HMA was enacted to regulate the marriage and divorce of Hindus. But question here Who are the Hindus as per HMA and thus section 2 of HMA clears that Every person by religion of Hindu is Hindu also all Sikh, Buddhist, and Jain will be considered as Hindu for the purpose of this act. Also, if a person not Muslim, Christian, Jew or Parsi is Hindu if he doesn’t prove that Hindu Laws does not applies on him. 

SECTION 13 HMA (DIVORCE)

Section 13 of Hindu Marriage act 1995 mentions the grounds on which a marriage solemnized in accordance with Hindu laws, before or after the commence of Hindu Marriage Act can be dissolved. The grounds for divorce are:

• Adultery.
• Cruelty,
• Desertion for not less than 2 years,
• conversion to other religion,
• Incurably, unsoundness of mind,
• Either of the partners suffering from communicable venereal disease
• Either of the partner has renounced the world
• Either of the partner is not heard of as being alive for a period of seven years or more by those who would naturally hear of it.

There are some specific grounds of divorce mentioned which can be exercised by the wife only, like Bigamy, Husband after solemnization has been guilty of rape, sodomy or bestiality etc.

Also, in 1976 legislature recognized the no fault theory of divorce and added another section in HMA according to which parties can go for mutual divorce under section 13B of HMA 1955, It is a condition where both the partner realize and accept the fact that their marriage has been irrevocably broken down and want to dissolve their marriage.

CONCEPT OF INTERFAITH

Interfaith for the purpose of personal laws do not strictly means inter-religion because as discussed above Hindu itself encompasses four religions in itself that is Hindu, Buddhist, Jain and Sikhs. So the concept of Inter-faith comes into picture when the either of the parties is Christian, Muslim, Jew or Parsi while other being Hindu (which includes Sikh, Buddhist, Jain). Hindu Marriage Act specifically mentions that this act is applicable only on Hindus and thus the interfaith parties as discussed above if willing to marry shall marry under Special Marriage Act. Hindu Marriage Act thus has applicability on four inter-religion marriages which are Hindu. Sikhs, Buddhist and Jain. If we consider these four religions as interfaith too then divorce among individuals married under HMA will be regulated by section 13 HMA

INTERFAITH DIVORCE

Two scenarios can be there where parties married are of interfaith as discussed above where one party is of Muslim or Christian, or jew or Parsi Religion.

• First, before marriage they were Hindus (Hindus as per section 2 HMA) and after the solemnization of marriage either of the partner converts himself to other religion that is Muslim, or Christian, or  Jew or Parsi then the aggrieved party has the right to seek divorce under section 13 clause (ii).

This in this context where  parties are interfaith at the time of seeking divorce can apply for divorce under section 13 clause (ii) HMA and the remedy is available to aggrieved party.

• Secondly, when the parties before the solemnization of marriage were interfaith, here one thing is pertinent to mention that parties can obtain divorce under the same act under which their marriage was solemnized.

So, an interfaith marriage cannot be solemnized under Hinu Marriage Act however if it was done so it will be considered null and void. There have been instances where interfaith marriage was solemnized and even marriage certificate was issued under Hindu Marriage Act later on when they moved for divorce under HMA, petition was not accepted as when the marriage between a Hindu and a Non-Hindu cannot be solemnized under Hindu Marriage Act, how come the divorce petition will be accepted.

Thus, since the Hindu laws do not recognize the marriage between a Hindu and a Non-Hindu it does not have any provision for divorce of interfaith parties married in the second scenario discussed above.

THE WAY OUT

It has been a proven fact that Murphy always visits where there is room for him to visit and the same applies in legal field too. The problems of theory turned into reality and several individuals faced such problems, However the solution always comes to those who seek it out. Challenges to inter faith divorce can be sorted out in following ways

1. Firstly, if the marriage was solemnized under Hindu marriage Act 1955 that marriage is void is Hindu marriage act does not apply to the marriage between a Hindu and a Non-Hindu.

The parties can approach High Court for the decree of nullity in respect of their marriage as District court will not be having any jurisdiction into it under HMA and the matrimonial relief can be sought under 125 CrPC.

1. Secondly, The parties have an option to marry again under Special Marriage Act 1954 and after the period of one year they may apply for the divorce under Mutual consent and follow the prescribed rules as per Special Marriage Act 1954.
2. Thirdly, Both the parties can mutually agree and decide the jurisdiction and can seek the divorce from abroad. Which means they have to travel abroad and live there for some time until law of land jurisdiction applies to them and can seek divorce by mutual consent. Since countries abroad consider the marriages as civil contract and easily grant divorce under clause of mutual consent.

This way of dissolving marriage was widely used by NRIs however courts of India accepted only those decrees in which divorce was given under the mutual consent.

Thus, divorce for Interfaith parties under Hindu law may look like infinity point but judicial pronouncement and principle of equity, justice and good conscience have made it a bit easy for the individuals who had committed mistake due to ignorance of laws. Generally, these case happen in rural areas where there are cases of conversion. Since individuals being rooted to Hindu religion solemnize their marriage as per Hindu customs and rites but for the purpose of the administrative purpose their religion has changed to other religion. And in the ignorance of the application of laws such mistakes occur.

State shall act promptly and put their best efforts to disseminate the legal awareness about laws and application of laws on individual. Also, if there is conversion of people in areas the person responsible to administer the conversion shall act honestly and make the individuals aware about the effects of conversion and change in laws they are governed by.

Also, the person solemnizing the marriage shall ensure that parties to marriage are aware under what laws they are getting married, for example if a Hindu Priest is solemnizing the marriage he must ensure that both the parties are Hindu and if they are not priest shall aware them about non-applicability of HMA. However, if the same was not done it shall be the duty of the registrar to ensure that parties registering their marriage under the correct legislation and if there is any discrepancy or anomaly comes to his notice, he must inform the parties about the irregularity occurred in solemnization of their marriage and the consequences of not rectifying the irregularity.

A legislation on personal laws shall be proposed to rectify such irregularities so that parties can obtain either the decree of nullity or the divorce without running from pillar to post.

CONCLUSION

Divorce is one the complicated legal issue for which theories and prudence have still been developing, while there was no place for divorce in ancient Hindu texts but resorting to modern idea modern legislation put the concept of divorce in Hindu Marriage act which was further amended to put in the concept of divorce by mutual consent. However, Divorce under Modern Hindu law is applicable to those individuals who have married to each other under Hindu Marriage act only and in section 2 it is clearly mentioned that act is applicable for Hindus only. Thus interfaith ab-initio marriage cannot be solemnized under Hindu marriage act and also Divorce of the same cannot be granted under HMA.

However, the parties can seek the remedy of obtaining the degree of nullity from court or other remedies discussed above. Thus, interfaith divorce under Hindu law is very challenging and state shall act promptly to resolve it.

REFERENCES

1. Hindu Marriage Act,1955.
2. Special Marriage Act, 1954. 
3. Criminal Procedure Code 1973.