JAMIA MILLIA ISLAMIA

Faculty of Law

Research

RIGHTS OF WOMEN DURING DIVORCE IN

INDIA

Women and Child Law

Submitted to: Dr. Subhradipta Sarkar

Submitted by: M. Usama Ansari (39) & Zuhair Siddiqui (65)

BA.LLB (Regular) 7th Semester

Batch: 2017 – 2022

 ACKNOWLEDGEMENT

The success and outcome of this research required a lot of guidance and assistance from
many people and we are extremely privileged to have got this all along with the completion
of our work. All that we have done is only due to such supervision and assistance and we
would not forget to thank them.

We respect and thank Dr. Subhradipta Sarkar, for providing me with an opportunity to do
the project work and giving me all the support and guidance, which made me complete the
assignment duly.
 INTRODUCTION

All major religions have their laws that govern divorces within their community, and many
have separate regulations regarding divorce in interfaith marriages in India.

Hindus, Buddhists, Sikhs, and Jains in India are governed by the Hindu Marriage Act, 1955;
Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act,
1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939, which provides the
grounds on which women can obtain a divorce, and the uncodified civil law. Civil marriages
and inter-community marriages and divorces are governed by the Special Marriage Act,
1956.

In the Hindu religion, marriage is a sacrament and not a contract, hence divorce was not
recognized before the codification of the Hindu Marriage Act in 1955. With the codification
of this law, men and women both are equally eligible to seek divorce. Hindus, Buddhists,
Sikhs, and Jains are governed by the Hindu Marriage Act 1955, Christians are governed by
The Divorce Act 1869, Parsis by the Parsi Marriage and Divorce Act 1936, Muslims by the
Dissolution of Muslim Marriages Act 1939 and Inter-religious marriages are governed by
The Special Marriage Act 1954.

HINDU LAW

In ancient times, the concept of divorce was not known to anyone. They considered marriage
as a sacred concept. According to Manu, the husband and wife cannot be separated from each
other, their martial tie cannot be broken. Later the concept of divorce came into the picture
and was established as a custom to put the marriage to an end.

The provision related to the concept of divorce was introduced by the Hindu Marriage Act,
1955. The Hindu Marriage Act defines divorce as a dissolution of the marriage. For the
interest of society, the marriage or the marital relationship needs to be surrounded by every
safeguard for the cause specified by law. Divorce is permitted only for a grave reason
otherwise given other alternative.

Grounds of Divorce

Under the Hindu Marriage Act,1955 there exists following grounds of divorce such as:-
1) Fault Ground (section 13(1))

2) Breakdown Ground (section 13(1A)(i), 13(1A)(ii))

3) Divorce by Mutual Consent (section 13-B)

4) Customary Divorce (section 29(2))

Fault Ground

Under the Hindu Marriage Act 1955, section 13(1), lays down nine fault ground of divorce.
Some of these are Adultery, Desertion, Cruelty, Insanity, Leporacy, Verenal Disease, while
others such as Conversion, Or Renunciation of words are typically Hindu grounds.

 Desertion

In explanation to sub-section (1) of Section 13, Hindu Marriage Act, 1955, Parliament has
explained desertion: “The expression ‘desertion’ means the desertion of the petitioner by the
other party to the marriage without reasonable cause and the consent or against the wish of
such party and includes the wilful neglect of the petitioner by the other party to the marriage,
and its grammatical variations and cognate expressions shall be construed accordingly” 1. In
other words, Desertion means permanent leave or forsaking of one spouse by the other
without any sensible reason without the consent of the other.

For the offence of desertion so far as deserting spouse is concerned, two essential conditions
must be there

 the reality of the split and

 the desire to finally put an end to cohabitation (animus deserendi).

Similarly, two elements are essential so far as the deserted spouse is concerned:

 the lack of consent, and

 the lack of a valid cause of action for the partner leaving the matrimonial home to
render the required purpose referred to above.

In Savitri Pandey v. Prem Chand Pandey 2 court held that “ there can be no desertion without
previous cohabitation by the parties”

1
Paras Diwan, MODERN HINDU LAW, 24th ed. 2019, p. 134
2
2002 SC 591
In Bipin Chander Jaisinghbhai Shah vs Prabhawati3 court held that “The offence of desertion
is a path of behaviour which exists independently of its duration, however as a ground for
divorce it needs to exist for a duration of as a minimum 3 years at once previous the
presentation of the petition or, in which the offence seems as a cross-charge, of the answer.
Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in
that the offence founding the purpose of motion of desertion isn't always complete, however,
is inchoate, till the healthy is constituted. Desertion is persevering with the offence”

 Cruelty

Before 1976, Cruelty was not the ground for divorce. It was ground for judicial separation.
By the Amendment Act, Cruelty is made a ground for divorce. Oxford Dictionary defines the
word “cruelty” has not been outlined and it's been utilized concerning human conduct or
human behaviour. it's the conduct concerning or in respect of marital status duties and
obligations. it's a course of conduct and one that is adversely moving the opposite. The
cruelty is also mental or physical, intentional, or unintentional4.

In Savitri Pandey vs Prem Chandra Pandey,5 the court held that Cruelty has not been
outlined underneath the Act however in respect to marital matters it's contemplated as the
conduct of such sort that endangers the living of the petitioner with the respondent. Cruelty is
an act that is dangerous to life, limb, or health. Cruelty for the aim of the Act suggests that
wherever one spouse equivalent has therefore treated the opposite and manifested such
feelings towards her or him on have inflicted bodily injury, or to own caused cheap
apprehension of bodily injury, suffering, or to own bruised health. Cruelty could also be
physical or mental. Mental cruelty is that the conduct of other spouse equivalents that causes
mental suffering or worry about the marital life of the opposite. Cruelty "therefore postulates
the petitioner's approach with such cruelty as to trigger an accessible apprehension that it may
be detrimental or harmful to him.

In Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha6 Court held that “case for
divorce, false, baseless, scandalous, malicious and unproven allegations made in the written
statement may amount to cruelty to the other party and that party would be entitled to get a
decree of divorce on that ground”.

3
1957 SC 176
4
Vidhya Viswanathan vs Kartik Balakrishnan (2014) 15 SCC 21
5
2002 SC 591
6
AIR 1991 Bom 259
In Gurbux Singh vs Harminder Kaur7 court held that Simple minor aggravations, squabbles,
normal wear, and tear of married life which occurs in everyday life in all families would not
be satisfactory for an award of separation on the ground of cruelty.

 Adultery

Reydon defines Adultery as “consensual sexual intercourse between a married person and a
person of the opposite sex, not the other spouse, during the subsistence of marriage”.

While adultery may not have been recognized as a criminal offence in all countries, the
matrimonial offence of adultery or the fault ground of adultery is recognized in most. Even
under the Shastric Hindu law, where divorce had not been recognized, adultery was
condemned in the most unequivocal terms. There is no clear definition of the matrimonial
offence of adultery.

In adultery there must be voluntary or consensual sexual intercourse between a married

person and another, whether married or unmarried, of the opposite sex, not being the other’s
spouse, during the subsistence of marriage. Thus, intercourse with the former or latter wife of
a polygamous marriage is not adultery. But if the second marriage is void, then sexual
intercourse with the second wife will amount to adultery.

Though initially a divorce could be granted only if such spouse was living in adultery, by the
Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is
that it considers even the single act of adultery enough for the decree of divorce8.

Since adultery is an offence against marriage, it is necessary to establish that at the time of
the act of adultery the marriage was subsisting. Also, it follows that unless one willingly
consents to the act, there can be no adultery. If the wife can establish that the co-respondent
raped her, then the husband would not be entitled to a divorce.

In Swapna Ghose v. Sadanand Ghose9 the wife found her husband and the adulteress to be
lying in the same bed at night and further evidence of the neighbours that the husband was
living with the adulteress as husband and wife is sufficient evidence of adultery. The fact of
the matter is that direct proof of adultery is very rare.

7
(2010) 14 SCC 301
8
Vira Reddy v. Kistamma, 1969 Mad. 235 & Subbarma v. Saraswathi, (1966) 2 MLJ 263.
9
AIR 1979 Cal 1
In Subbaramma v. Saraswati Court10 held that one single act of adultery is enough for
divorce or judicial separation. In the same case court also held that “the unwritten taboos and
rules of social morality in this country and particularly in village areas must necessarily be
taken into account. If an unknown person is found alone with a young woman after midnight,
in her apartment, in an actual physical juxtaposition, unless an excuse is given which is
consistent with an innocent interpretation, the only conclusion that the Court of Justice can
draw must be that the two have committed an act of adultery together”.

So, we can conclude that in the context of Indian law actual penetration is not required for the
act of adultery.

 Insanity

Under the Marriage Laws (Amendment) Act, 1976, Section 13(iii) petitioner may get a
decree of divorce or judicial separation if the respondent has been experiencing consistently
or irregularly mental turmoil of such a sort and so much that the petitioner can't sensibly be
required to live with the respondent.

In Ram Narayan v. Rameshwari11, Supreme Court held that in schizophrenic mental disorder,
the petitioner should prove not merely the said mental disorder, but also establish that
account the petitioner could not reasonably be expected to live with the respondent.

In Smt. Alka Sharma v. Abhinesh Chandra Sharma12, it was discovered that the spouse was so
cold and sub-zero and apprehensive on the first evening of marriage as not to have the option
to coordinate in a sexual act. She was discovered incapable to deal with homegrown
machines. She fizzled to clarify the direction of peeing within the sight of all relatives. The
court held that she was experiencing schizophrenia, and the spouse was held to be entitled to
the nullity of marriage.

 Leprosy

Section (1)(iv) in the Hindu Marriage Act, 1955, Leprosy is both ground for divorce and
judicial separation.

10
(1966) 2 MLJ 263
11
1988 AIR 2260
12
1991 (0) MPLJ 625
But for divorce under Section (1)(iv) in Hindu Marriage Act, 1955, Leprosy must be in the
form of

 Virulent and
 Incurable

a mild type of leprosy which is capable of treatment is neither ground for divorce nor judicial
separation13.

 Venereal Disease

Section 13(V) of the Hindu Marriage Act, 1955 provides ground for divorce against
communicable Venereal Disease.

In Mr. X v. Hospital Z14, the Supreme court held that on the ground of venereal disease Either
husband or wife can get a divorce, and a person who has suffered from the disease cannot be
said to have any right to marry even before marriage, as long as he is not completely cured of
the disease.

In Smt. Mita Gupta vs Prabir Kumar Gupta 15 court held that Venereal disease is a cause of
divorce, but the partner may be denied relief even though the other partner suffers as much if
the former is responsible for the contagion

 Conversion

Under the Hindu Marriage Act, Section (13)(1) clause (ii) divorce maybe obtain if the
respondent converted from Hindu to another Religion and ceased to be a Hindu. Under the
clause two conditions must be satisfied:

 Respondent has ceased to be a Hindu, and

 He has converted to another religion

Ceased to be Hindu means a person got converted to a non-Hindu faith such as Parsis, Islam,
Christianity, or Zoroastrianism. A person not ceased to be Hindu if he converted into Jain,
Buddhism, Sikhism because Sikh, Jain, Buddhist by religion is a Hindu.

13
Paras Diwan, MODERN HINDU LAW, 24th ed. 2019, p. 169
14
[AIR 2003 SC 664 ]
15
[ AIR 1989 Cal 248]
In Teesta Chattoraj vs Union of India 16 court held that Conversion to another religion is a
ground for divorce, but a spouse may be denied divorce even if the other spouse has
embraced some other religion if the former goaded the latter to such conversion.

 Renunciation of World

Renounce the world" could imply "to withdraw from worldly pursuits as a way to lead a non-
secular life." Reference is made to section 13(1)(vi) of the Hindu Marriage Act. The word
"renouncing" means "making a formal resignation of a few rights or, in particular, believing
in one's position as successor or trustee.".

To obtain a divorce under this clause two conditions must be satisfied:

 The respondent must have renounced the world, and

 He must have entered some other religious order

In Sital Das v. Sant Ram17 it was held that someone is stated to have entered in a religious
order whilst he undergoes a few ceremonies and rites prescribed via the faith. Now there are
some other matters to observe here. For example, if one man or woman has entered into a
religious order but comes home day by day and cohabits then it cannot be taken as a floor for
divorce because he has no longer renounced the world.

 Presumption of Death

Under the Indian Evidence Act, 1872, a person is presumed to death if he/she has no longer
been heard of as being alive for at least seven years. On this ground, the petitioner may obtain
a divorce. But in ancient Indian Hindu Law, a presumption of death isn’t like presumption
under modern law, there should lapse of twelve years to be presumed a person dies. This
presumption underneath the availability of regulation isn't inflexible and death might also
even be presumed before the lapse of 7 years from proof of special instances.

Irretrievable Breakdown Ground

16
188(2012) DLT 507
17
1954 SC 606
Under Hindu Marriage Act 1955, section 13(1A) Either party to a marriage, whether
solemnized before or after the commencement of this Act, may also present a petition for the
dissolution of the marriage by a decree of divorce on the ground:

 that there has been no resumption of cohabitation as between the parties to the
marriage for a period of 8 [one year] or upwards after the passing of a decree for
judicial separation in a proceeding to which they were parties; or
 that there has been no restitution of conjugal rights as between the parties to the
marriage for a period of 8 [one year] or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which they were parties.

In K. Srinivas Rao v. D.A. Deepa18 court held that the irretrievable breakdown of a marriage
is not a basis for divorce under the Hindu Marriage Act of 1955. However, where marriage is
beyond repair due to the animosity induced by the actions of the husband or the wife or both,
the courts have often treated the irretrievable dissolution of marriage as a rather severe
situation, inter alia, causing marital separation. A marriage that is dissolved for all purposes
cannot be restored by the decision of the court if the parties are not able to do so.

In Vishnu Dutt Sharma vs Manju Sharma19 court held that on bare reading section 13, we
have not found that legislature provides divorce on the ground of irretrievable breakdown of a
marriage. However, in some cases, this court dissolves the marriage on the ground of
irretrievable breakdown. In our opinion, this case should not be treated as a precedent.

Divorce by Mutual Consent

Under the Hindu Marriage Act, sub-section (1) of section 13B of the Act required that the
petition for divorce via mutual consent need to be provided before the court jointly among the
events and that there had been 3 other requirements of sub-section (1) specifically

 they have been residing separately for 365 days,

 they have not been capable of living together and
 they've together agreed that the marriage has to be dissolved

Under the Hindu Marriage Act, Section 13-B, it might be clear that both the parties can
document a joint petition for divorce using mutual consent, provided they were living
separately for 365 days. moreover, it's far provided that at the motion made using each the

18
(2013) 5 SCC 226
19
(2009) 6 SCC 379)
events not earlier than 6 months after the date of presentation of the stated petition and no
longer later than 18 months of the stated date, the court on being satisfied after hearing the
events and after making such an inquiry as it thinks suit, pass a decree of divorce dissolving
the wedding by way of mutual consent.

In Smt. Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe20 court held that either party
can withdraw the petition after thinking over the matter about divorce through mutual consent
and that in this way a party can withdraw the earlier consent though not obtained by using
fraud, undue influence, and coercion.

In Manish Goel v. Rohini Goel 21 court held that this court is competent to waive the statutory
period of six months in the exercise of its jurisdiction under Article 142 of the Constitution.
the said statutory duration of six months for filing the second petition under section 13-B(2)
of the Act has been prescribed for offering an opportunity to events to reconcile and
withdraw the petition for dissolution of marriage.

Customary Divorce

It is a fact that divorce was not known to the general Hindu rule, but in some cultures, divorce
was accepted by custom and the courts followed the custom where it was not contrary to
public policy. The scheme and the purpose of this Act are not to circumvent any of those
customs which have been recognized as having divorce and effect by the saving found in this
chapter. Under any other situation, the spouses don't need to come before the Court to seek
divorce on the grounds recognized by custom22.

Wife Special Ground of Divorce

 Husband having more than one wife living

Under clause (i) of sub-clause (2) of section 13 of the Hindu Marriage Act, the wife was
entitled to file a petition dissolving his marriage on the ground that at the time of the
ceremony of a marriage between the appellant and the appellant the first wife of the appellant
who was married to the appellant before the commencement of the Act was alive.

In Leela v. Anant Singh23 court held that the wife of polygamous marriage cannot be deprived
of her right of divorce on the ground that, before the commencement of the act, she entered
20
AIR 1984 Bom 302
21
(2010) 4 SCC 393
22
P. Mariammal vs Padmanabhan, AIR 2001 Mad 350
23
AIR 1963 Raj 178
into a compromise with her husband to continue living with her; nor can the husband plea
that her conduct or disability is a bar to her claim of divorce.

 Rape, Sodomy or Bestiality

Under clause (ii) of sub-clause (2) of section 13 of the Hindu Marriage Act, the wife is
entitled to divorce on the ground of rape, sodomy, or bestiality against her husband.

A man is guilty of rape if he induces an unwilling woman to participate in sexual intercourse,

i.e. unwilling or unfiltered, or when his consent is gained by placing her in the fear of death
or her consent, or by falsely believing that she is his wives when they are not, or if they are
less than twelve years old. However, one cannot be accused of raping his wife unless she is
less than 15 years old.

Sodomy or bestiality happens when one has a carnal relationship with another man, woman,
or animal outside the order of nature. The matrimonial crime of sodomy under the scope of
the clause would be if the man were to perform sodomy on his wife without their consent.

 Non-resumption of cohabitation after a decree of maintenance

Under clause (ii) of sub-clause (2) of section 13 of the Hindu Marriage Act provided the
woman with an alternative basis for a divorce. The purpose of incorporating the
aforementioned provision was to grant the wife the right to pursue a divorce if her husband
had ignored her or not sustained her after a maintenance order was passed in her favour.

 Repudiation of Marriage

Wife/applicant lodged an application for divorce from the respondent-husband on the basis
that she was under 15 years of age when she was married, but that she had rejected her
marriage before she was 18 years of age, and that she was thus given a divorce order under
Section 13(2)(iv) of the Hindu Marriage Act, 1955.

CHRISTIAN LAW

INDIAN DIVORCE ACT,1869

The Indian Divorce Act was drafted into the Indian legal system in the year 1869. In India
divorce rules and procedure varies according to the community of the couple. The Indian
Divorce Act governs divorce among Christian couples in India. Divorce is the legal
dissolution of the marital union between a man and a woman. According to this act, the
separation is granted by the court of law after receiving a petition from either wife or
husband. Divorce is followed by granting alimony, child custody, and child visitation,
distribution of property and distribution of debts. Before opting for a divorce, the Christian
couple should be aware of the fact that a divorce procedure in our country.

Types of Divorce Petitions

A Christian couple can get a divorce with mutual consent (no-fault divorce or mutual
divorce), or either spouse may file for divorce without the consent of the other (fault divorce)
as per the Indian divorce act.

Divorce with Mutual Consent

When the couples agree to a divorce, the courts will consider a divorce with mutual consent
as per. Section 10A of the Indian Divorce Act, 1869, requires the couple to be separated for at
least two years, the couple only needs to provide that they have not been living as husband
and wife during this period.

• The couples should be separated for over a year

• The couple should able to prove that they have not been able to live together

• Matters of children’s custody, maintenance and property rights need to be agreed to

mutually

Alimony or Maintenance Issues

There are three aspects regarding which the couples have to reach a consensus. One is
alimony or maintenance issues. As per divorce law, there is no minimum or maximum limit
of support.

Custody of the child

The second consideration will be the custody of the child. Child custody in the mutual
consent divorce can also be shared or joint or exclusive depending upon the understanding of
the spouses.

Property Rights

The third is a property. The couples must decide who gets which part of the property (both
movable and immovable property). Regarding the bank accounts, everything must be divided.

Dissolution of Marriage (Divorce without Mutual Consent)

According to the Indian Diverse act, either the husband or wife can file the petition for the
dissolution of Marriage. The conditions when they can file the petition are explained in detail
below:

Petition by Husband

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.

Petition by Wife

Any wife can present a petition to the District Court or the High Court for dissolution of
marriage. The wife can file such a petition under any of the following circumstance:

• If her husband has exchanged his profession of Christianity for the profession of some
other religion

• If the husband went through a form of marriage with another woman

• If her husband has been guilty of incestuous adultery since the solemnization of marriage

• In case of bigamy with adultery

• In case of marriage with another woman with adultery

• In case of rape, sodomy or bestiality

• In case of adultery coupled with such cruelty as without adultery would have entitled her to
a divorce
• In the case of adultery coupled with desertion, without reasonable excuse, for two years or
more

Juridical Separation

Juridical Separation is the legal separation between the husband and the wife, granted by the
court on a petition from either the husband or the wife or both. In judicial separation, the
marital tie between the wife and husband continues to exist, and neither of them enjoys the
freedom to be re-married.

The husband or wife can obtain a decree of judicial separation; on the ground of adultery or
cruelty or desertion without reasonable excuse for two years, or more and such decree will
have the effect of divorce under the Indian Divorce Act.

PARSI LAW

Under the Parsi Marriage and Divorce Act, 1936, lunacy made a ground for divorce which
was formerly a ground for nullity. It is also provided that not only a subsisting Parsi marriage
but also a non-Parsi marriage would be a bar to a new marriage under this Act and that a
Parsi would be prohibited from remarrying even if he or she changed his or her religion or
domicile (unless his or her previous marriage was dissolved under the Act.)24

Section 32 of the Act provides the following grounds for divorces:

(i) wilful refusal to consummate the marriage within one year of its solemnization;

(ii) commission of adultery, bigamy, fornication, rape or an unnatural offence;

(iii ) causing grievous hurt;

(iv) causing infection with venereal disease;

(v) sentence of imprisonment. for seven years;

(vi) desertion for three years;

(vii) lapse of three years after an order for judicial separation or separate maintenance was
passed;

(viii) failure to comply with a restitution decree for one year; and
24
Section 4, The Parsi Marriage and Divorce Act 1936
 ( i ) ceasing to be Parsi.

Besides these grounds, the husband was given additional ground of divorce- pregnancy of the
wife another man unknown to him at the time of marriage and the wife the additional ground
of being forced into prostitution. The court was empowered to make such order it considered
reasonable for payment, of interim permanent alimony by the husband to the wife so long as
the wife remained chaste and unmarried.25

UNKNOWN/WHEREABOUTS

The absence of either husband or wife for seven years or more has been recognized in India
as a ground for affording' a remedy of dissolution of marriage since 1872 statutorily, and, is
the contribution of English common law system. Section 31 of the Parsi Marriage and
Divorce Act, 1936, provides:

'Petition may be presented for the dissolution of marriage on the ground that the other party
to the marriage has not been heard of as being alive for seven years or more by those persons
who would naturally have heard of it had that other party been alive'.

Under section 108, of the Indian Evidence Act 1872, a person is presumed to be dead if he is
not heard of as alive for seven years or more by those who would have normally heard of him
or about him had he been alive. The burden of proving that such a person is not dead but alive
lies on him or her who affirms it.

DIVORCE BY MUTUAL CONSENT

Muslim Law is the first legal system in India under which mutual consent as a ground of
divorce has been recognized and in other legal systems prevailing in India the same got
recognition subsequently. In 1936, the Parsi Marriage and Divorce Act originally did not
recognize 'divorce by mutual consent' for Parsi Zoroastrians. It was only in 1988 that Section
32—B was inserted to provide for divorce by mutual consent between spouses whose union
in bed-and-board has been wrecked beyond all prospects of a gainful salvage by an
amendment to that effect in Parsi Marriage and Divorce Act. This provision incorporates the
breakdown theory of divorce, in contradiction to the guilt/offence theory of Hindu Law.26

New provisions brought by Parsi Marriage and Divorce (Amendment) Act, 1988

25
Sections 39-41 of the Parsi Marriage and Divorce Act, 1936.
26
M. Shabbir and Manchanda, Parsi Law in India, p. 62 (1991)
As per the provisions of Section 32-B of the Parsi Marriage and Divorce Act, a suit for
divorce by mutual consent may toe filed by both the parties to marriage together, whether
such marriage was solemnized before or after the commencement of the Parsi Marriage and
Divorce (Amendment), Act, 1988. Section 32--B of the Act makes it abundantly clear that its
provision will have a retrospective effect. Divorce by mutual consent can therefore be sought
by a Parsi couple irrespective of when their marriage was solemnized i.e. before or after the
commencement of the amending Act of 1988.

As such, the requirements for seeking divorce by mutua1 consent are:27

(i) Both spouses should together present a suit for divorce

(ii) The spouses should have been living separately for one year or more;

(iii.) The spouses could not adjust with each other and had not been able to live together;

(iv) When a motion is made by the parties for obtaining a decree of divorce on the ground of
mutual consent, the court is to be satisfied that:

(a) there has been solemnization of the marriage of the parties under the Parsi Marriage and
Divorce Act, 1936;

(b) the court has also to be satisfied that the consent of both parties was not obtained by
force, fraud or undue influence.

When the decree for divorce by mutual consent is passed, the marriage-tie gets dissolved
from the date of decree and not with effect from the date of the presentation of the petition.28

MUSLIM LAW

Divorce existed before Islam, but the advent of Islam made the divorce process much more
favourable to women. Women’s property is not divided during a divorce. 29 Whatever a
woman earns or is given before and during the marriage remains her property if the marriage
ends. This prevents men from
taking advantage of women’s property or wealth through marriage. On the other hand, the
man’s property is divided if a divorce occurs according to the couple’s marriage contract. 30 A
27
Tahir Mahmood, Studies in Hindu Law
28
Ravi Shankar v. Sharda, AIR 1978
29
The Qur’an 2:229; The Qur’an 4:20
30
The Qur’an 2:231; The Qur’an 2:241
woman is entitled to support and maintenance from her former husband if she requires it. 31
There are also special instructions if a divorce occurs before the marriage is consummated
and before or after the dowry is set.32
Islam also instituted a three-month waiting period for women called Iddah. 33 During these
three months, women are not permitted to re-marry. The basic reason for this rule is to
determine whether the woman was pregnant before she remarried so the proper father could
be ascertained. This practice also ensures the child’s identity and lineage can be accurately
determined. A husband and wife are also allowed to attempt reconciliation during the waiting
period. However, men are specifically instructed not to take back their wives to “injure or
take undue advantage” of them.
Determining the proper procedure for divorce is highly dependent upon the timing of the
divorce, the reasons for divorce, the client’s Islamic School of Thought (Hanafi, Hanbali,
Maliki, and Shafi), whether he or she is Sunni or Shiite, and the circumstances surrounding
the divorce. The scope of this article cannot cover all the conceivable scenarios or grounds
for divorce but will seek to address the basic requirements for divorce. 70It is important to
keep in mind different schools of thought can cause some variances in the basic structure
described below.
As stated earlier, Muslims in America seeking a divorce still have to comply with the laws of
the United States. However, most Muslims will seek to follow the laws regarding divorce in
America but will also want documents reflecting their religious beliefs and their marriage
contract. Either a man or woman can initiate a divorce. Before a Muslim starts official legal
action, he or she must meet the following requirements:
He or she must have reached puberty and be capable of making a decision;
He or she must be sane, conscious, alert, and free from intoxication or anger;
He or she must be free from external pressure;
His or her intention must be clear;
Divorce must take place after the wife’s menstrual period and no sexual relations have
occurred since her period ended.
If all the above factors are present, either the husband or wife can pursue a divorce or they
can pursue a divorce jointly and amicably. This will involve going through the normal
divorce proceedings according to American law but will also involve reviewing the terms in

31
The Qur’an 2:231; The Qur’an 2:241
32
The Qur’an 2:236-7
33
The Qur’an 2:228; The Qur’an 231
the marriage contract and drafting language that incorporates prior agreements and ends the
contract.
There are also several levels of revocability of divorce in Islam. If a client approaches a
practitioner claiming the divorce is revocable the best course of action is to consult an Islamic
scholar. This can be a complicated question that will likely require an Islamic scholar to listen
to both sides and decide. Islam has a strong tradition of alternative dispute resolution that will
help resolve complex matters surrounding divorce.
It is also important to keep in mind that although divorce is permitted in Islam, it is not
encouraged. The Prophet Muhammad stated of all the permitted acts divorce is most
displeasing to God (Allah).34 The Quran further states: "Live with them (your wives) on a
footing of kindness and equity. If you dislike them it may be that you dislike something in
which Allah has placed a great deal of good."35 Muslims truly view divorce as a last result
and many Muslims seek counselling and extensive assistance to avoid divorce. If a client is
coming to a practitioner to carry out a divorce it has likely been a very long and difficult
religious and personal decision.

Section 3 of the act Muslim Women (Protection of Rights on Divorce) Act, 1986. Says
Mahr or other properties of Muslim woman to be given to her at the time of divorce.
(1) Notwithstanding anything contained in any other law for the time being in force, a
divorced woman shall be entitled to:
(a) a reasonable and fair provision and maintenance to be made and paid to her within the
iddat period by her former husband
(b) where she maintains the children born to her before or after her divorce, a reasonable and
fair provision and maintenance to be made and paid by her former husband for two years
from the respective dates of birth of such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to Muslim law; and

(d) all the properties were given to her before or at the time of marriage or after her marriage
by her relatives or friends or the husband or any relatives of the husband or his friends.

(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower
due have not been made or paid or the properties referred to in clause (d) of sub-section (1)
34
Hadith reported by Abu Dawoud, a companion of the Prophet Muhammad. Hadith also reported by Ibn Umar
35
Quran 4:19. Prophet Muhammad further stated: "A believing man must not hate a believing woman. If he dislikes
one of her traits he will be pleased with another." Hadith reported by Muslim.
have not been delivered to a divorced woman on her divorce, she or anyone duly authorized
by her may, on her behalf, make an application to a Magistrate for an order for payment of
such provision and maintenance, mahr or dower or the delivery of properties, as the case may
be.

(3) Where an application has been made under sub-section (2) by a divorced woman, the
Magistrate may, if he is satisfied that-

(a) her husband having sufficient means has failed or neglected to make or pay her within
the iddat period a reasonable and fair provision and maintenance for her and the children; or

(b) the amount equal to the sum of mahr or dower has not been paid or that the properties
referred to in clause (d) of sub-section (1) have not been delivered to her,

make an order, within one month of the date of the filing of the application, directing her
former husband to pay such reasonable and fair provision and maintenance to the divorced
woman as he may determine as it and proper having regard to the needs of the divorced
woman, the standard of life enjoyed by her during her marriage and the means of her former
husband or, as the case may be, for the payment of such mahr or dower or the delivery of
such properties referred to in clause (d) of sub-section (1) the divorced woman

Provided that if the Magistrate finds it impracticable to dispose of the application within the
said period, he may, for reasons to be recorded by him, dispose of the application after the
said period.

(4) If any person against whom an order has been made under sub-section (3) fails without
sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the
amount of maintenance or mahr or dower due in the manner provided for levying fines under
the Code of Criminal Procedure, 1973 (2 of 1974), and may sentence such person, for the
whole or part of any amount remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one year or until payment if sooner made,
subject to such person being heard in defence and the said sentence being imposed according
to the provisions of the said Code.

Section 4 of the act Muslim Women (Protection of Rights on Divorce) Act, 1986. Says
Order for payment of maintenance
(1) Notwithstanding anything contained in the foregoing provisions of this Act or any other
law for the time being in force, where a Magistrate is satisfied that a divorced woman has not
re-married and is not able to maintain herself after the iddat period, he may make an order
directing such of her relatives as would be entitled to inherit her property on her death
according to Muslim law to pay such reasonable and fair maintenance to her as he may
determine fit and proper, having regard to the needs of the divorced woman, the standard of
life enjoyed by her during her marriage and the means of such relatives and such maintenance
shall be payable by such relatives in the proportions in which they would inherit he property
and at such periods as he may specify in his order:
Provided that where such divorced woman has children, the Magistrate shall order only such
children to pay maintenance to her, and in the event of any such children being unable to pay
such maintenance, the Magistrate shall order the parents of such divorced woman to pay
maintenance to her:

Provided further that if any of the parents is unable to pay his or her share of the maintenance
ordered by the Magistrate on the ground of his or her not having the means to pay the same,
the Magistrate may, on proof of such inability being furnished to him, order that the share of
such relatives in the maintenance ordered by him be paid by such of the other relatives as
may appear to the Magistrate to have the means of paying the same in such proportions as the
Magistrate may think fit to order.

(2) Where a divorced woman is unable to maintain herself and she has no relatives as
mentioned in sub-section (1) or such relatives or any one of them have not enough means to
pay the maintenance ordered by the Magistrate or the other relatives have not the means to
pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid
by such other relatives under the second proviso to sub-section (1), the Magistrate may, by
order, direct the State Wakf Board established under section 9 of the Wakf Act, 1954 (29 of
1954), or under any other law for the time being in force in a State, functioning in the area in
which the woman resides, to pay such maintenance as determined by him under sub-section
(1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at
such periods as he may specify in his order.
CONCLUSION

Divorce is the legal dissolution of marriage. A divorce is among the most horrible incidents
for any couple. The whole cycle of divorce that begins from adapting up to passionate good
and bad times to challenging for the hotly anticipated divorce order for a while is certainly an
extreme undertaking to get past. Prior to settling on a divorce one ought to know about the
way that a divorce system in India degrees for close to 12 months and in some extraordinary
instances of questions the method may proceed for quite a long time. The Rights of women
exist all along but lack of knowledge on this very thing leads to injustice to the women of our
motherland, India.