LAWS GOVERNING DIVORCE IN INDIA BY ALISHA BAWA @LEXCLIQ

Introduction:-

In India marriage is considered to be a scarified act for establishing a healthy and social life. It is believed that marriage is a sacrament which ties man and woman together during their lifetime. Hindu believe that Marriage is an indissoluble partnership which is to be continued even after the death. Hence, therewere no concept of Divorce before.

Concept of Divorce:-

Is some religion there was no concept of dissolution of a marital relation between man and a woman. A Divorce is the legal dissolution of marriage between spouses. The Court has a power to grant divorce to parties after receiving a petition from husband or by wife. The annulment of marriage makes marriage null and void in the eyes of law. When the Court declares marriage null and void means that their marital relationship is no longer available. The concept of Divorce, dissolved the marriage between husband and wife. The term Divorce accompanies with alimony, child visitation manner, child custody etc. it settles all dispute relating to matter arise in future and party may live happily.

Laws Related to Divorce:-

India is a diverse country by having various types of culture and customs in its roots. So it is important to set laws according to need. Marriage and divorce are part of various personal laws which has made according to tradition and belief. The laws determines various ground of divorce. There are some laws related to divorce are as follows,

Ø The Hindu Marriage Act, 1955

Ø The Divorce Act, 1869

Ø The Special Marriage Act, 1954

Ø The Muslim Law

The Hindu Marriage Act, 1955:-

The Hindu religion believes that marriage is a sacrament which put a holy tie in between man and woman which bind them for future life as well. Hence there was no concept of divorce. Hindus, Buddhist, Sikhs and Jains were governed by the Hindu Marriage Act 1955. The act extends to all Hindus including citizen residing outside the territories of India and Schedule Tribe too.

There are various grounds of Divorce under a law provided under section 13. Any party may present application for divorce under section 13 of the said act. The grounds of divorce are as follows,

[ Adultery

[ Cruelty

[ Conversion

[ Unsoundness of Mind

[ Leprosy

[ Desertion

[ Venereal Disease

[ Renunciation of world

[ Presumed Death

[ Non-Presumption of Cohabitation etc.

The Divorce Act, 1869:-

It extends to whole of India after scrapping of article 370. The said act applies only to the Christians citizen residing in India. The Divorce act 1869 codified the law to regulate divorce amongst Christians. This is one of the old act enacted by British before independence and it continues to force till date.

The said act provides the various grounds for Divorce under section 10 where party can dissolve their marriage by moving to Court. The said Divorce Act also provides additional grounds for dissolution of marriage to wife when husband committed an act of rape, bestiality or sodomy. The general ground grounds which applicable to both parties are as below,

· Adultery

· Conversion

· Leprosy

· Venereal diseases

· Presumed death

· No-Consummation

· Desertion

· Unsoundness of mind

· Cruelty

Special Marriage Act 1954:-

The Special Marriage act applicable to all citizens residing in India. This act is applicable to all citizens of different casts and religions and citizens residing outside the territories of India. It provide a special form of law regardless of race, caste. Religion and faith practised by either party to the citizens.

There are several condition provided under section 4 of the Special marriage act 1954 which have to fulfilled for a marriage to make valid under eyes of law. The conditions includes that party should be sound mind, must attain age of majority and marriage should not be come under a prohibited relationship.

Section 27 of the Special Marriage Act 1954 provides similar types of grounds for divorce with some exception. Which given under section 27A.

Muslim Law:-

Muslim laws comes under a category of personal law which are governed by Holy Quran, Hadiths and fatwa. All muslim citizens residing in India are governed by the Muslim Personal Law Application Act, 1937. Indian muslim women can obtain divorce under The Dissolution of Muslim Marriages Act, 1939 as a right to take divorce from her husband. These laws not covered those Muslim who married under Special Marriage Act, 1954.

Under muslim law, Marriage is a contract which made with certain conditions to be fulfilled as to make Nikah (marriage) valid under law. These conditions include that the bride and bridegroom is sound mind, agents, wali and witnesses have to be physically present at a time of Nikah and there must be a specified dower by the bridegroom to the bride.

Muslim law provides a various modes of divorce which is categorized as

1. Judicial Divorce

2. Extra Judicial Divorce

Judicial Divorce are those which are decreed by Court that the marriage between spouses is null and void. The said type of divorces settles a matter of child custody, alimony and maintenance.

Extra Judicial Divorce are depend upon the will of spouses or by mutual agreement. spouces at any time step away from matrimonial obligation by pronouncing Talaq as per laws. It provid a different kind of right to wife and Husband. Talaq-e-Sunnat are also known as Talaq ul Raza which is a revocable form of talaq. The Muslim Divorce basically divided into 3 categories as,

a) By Husband (Talaq e- Sunnat, Biddat, ila and Zihar)

b) By Wife (Talaq e- Tafweez, Lian and Khula)

c) Mutual Consent- Mubarat

By Mutual Consent:-

Divorce by Mutual Consent was incorporated under laws. Parties can move to court jointly under an applicable section of different matrimonial laws with praying that their marriage be dissolved by court. The Court may after hearing the arguments of parties and reasonable inquiry can pass decree for divorce that their marriage is comes to an end.

BY :- ALISHA BAWA

DATE:- 17 May, 2021

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