Origin of Divorce and comparative analysis of divorce in different personal law

Introduction
During earlier times the concept of divorce was not recognised. It was believed that the
marriage can never be broken down once it is solemnized. However, with the development of
society and eventually the voice raised by women, the concept of divorce was introduced. All
the personal laws viewed the divorce as not feasible. Some say it is sinful to leave the society
of the partner. And even if divorce was present in some personal law, it provided all the
power to men to dissolve the marriage. Basically, all the personal laws were discriminatory to
women. With the progress in society and the voice raised by women for equality, the concept
of divorce was introduced. During earlier times marriage was seen as a sacramental bond that
can never be broken. Now in the 21st century, women have more rights than men to dissolve
marriage. There is so much legislation that gives women the power to dissolve the marriage.
Some of them are the Hindu Marriage Act, the dissolution of the Muslim Marriage Act, and
the Indian Divorce Act. With the implementation of these legislation, women have got the
power to leave the society of their husbands on grounds like cruelty, adultery, dissertation,
etc. Implementing these, legislation that comes in conflict with some personal laws, where
the power of divorce is given to men only was also resolved through the help of the judiciary.
As our society is based on patriarchy, some of the religious leaders don’t want the power to
dissolve the marriage should be given to women, but with the positive intention of the
legislature, all these laws were enforced. And finally, women got all those rights and were put
on a similar footing as compared to their partners to dissolve the marriage.
Origin of Divorce in Hinduism
All the personal laws of Hindus were governed by the Veda during the ancient time. The
concept of divorce can be traced from the smritis. In Bodhayana Smriti it was described that
if a woman begets a male child, or if she is not submissive, then she can be divorced by her
husband. In Gautama Smriti, the woman was given the power to divorce her husband if he
abandoned or tormented her wife under any condition. Basically, all the smritis put harsh
conditions on a woman to get a divorce from their husband.
However, the Vedic society strictly prohibits divorce in the words of dharma sastras. Manu
Smriti talks about some exceptional cases where a bad wife can be sent back to her father's
home. A Mahabharat story related to the birth of Skanda, where a huge disaster is going to
come and it can be stopped only if the wife of seven Rishis cohabitates with the Agni. And
when all of them cohabit a very powerful child was born. So, after the birth of that child, all
the seven Rishis divorced their six wives.
Later on, Kautilya brings up the concept of divorce, according to him a woman can abandon
her husband if he is of bad character, if he beats her, or if he becomes a traitor. Kautilya
recognizes desertion, mutual consent, cruelty, and impotency as a ground for getting a
divorce.

Origin of divorce law

The first codified law for divorce came in 1760 B.C. during the period of King Hammurabi of
Babylon. During that period the power to give divorce was present to men only and he could
give divorce to his wife by saying “You are not my wife” only.
After that, the concept of divorce law was implemented in various countries, the first country
to implement this was France in year 1762, followed by Germany in year 1875. In India, the
first provision towards divorce was introduced in the year 1931, in the form of, The Divorce
Act, 1931. Under this act, the power to dissolve the marriage was present with both the
spouses. After this act, the Madras Act of 1933 was implemented for divorce. And finally, in
the year 1955, the Hindu Marriage Act was introduced. This is one of the most essential acts
as it strikes at the root of the indissolubility character of marriage under Hindu law.
Divorce under Hindu Law
In Hindu law, marriage is recognized as sacramental and it is believed that once the marriage
is completed then it cannot be dissolved. But with the introduction of the Hindu Marriage
Act, 1955. So many changes happened in the field of divorce in Hindu. The most significant
feature of this act is that it strikes at the root of the indissolubility character of the marriage
under Hindu law. After this act, women get the power to dissolve the marriage on grounds
mentioned in the act. In Hindu Marriage Act, section 13 defines divorce and it lays down
grounds on which divorce can be claimed.
Ways through which divorce can be claimed under HMA are
1. By the fault of any of the parties.
2. By wife.
3. By mutual consent.

Grounds under which divorce can be claimed under the HMA are:
I. Adultery- In this case, if any of the spouses indulge in sexual intercourse with any
person after the solemnization of marriage, then this becomes the ground for divorce.
II. Cruelty- In this case if either the husband or wife treats the other with cruelty then the
aggrieved party can claim for divorce.
III. Desertion- if the husband deserted the wife for a period of two years, then this became
the ground to claim divorce for the wife and vice versa.
IV. Conversion- If any one of the spouses converted to another religion after the
solemnization of marriage, then this became the ground to file for divorce.
V. Venereal disease- If any bone of the spouse is suffering from the communicable
disease, then this becomes a ground to claim divorce.
VI. Renounce the world- If either the husband or wife renounces the world by entering
into any religious order then this becomes the ground to claim the divorce.
VII. Not heard- If the husband or wife is not being heard alive for a period of 7 years then
this becomes the ground to file for divorce.

In the Hindu Marriage Act women were given special power to claim divorce, it was given in
section 13(2) of the act. There are four grounds under which they can file a petition for
divorce. These grounds are:
 Pre-marriage bigamy
 If the husband has been charged with rape, sodomy, or bestiality.
 Non-resumption of cohabitation for one year or more after the passing of an order of
maintenance under section 18 of the HMA, or under section 125 CrPc
 If she has been married before the age of 15, then she can file for divorce before she
attains the age of 18.
Divorce by mutual consent
In HMA the concept of divorce by mutual consent was defined in section 13B. It says that
divorce can be claimed in this category if both the party mutually agree to dissolve their
marriage. In this section a petition has to be filed for divorce and after the filing of the
petition party will have to wait for a period of six to eighteen months to get the decree of
divorce by the court. The initial six-month period is called a cooling period, because if the
party feels that the marriage should not be dissolved then they can get back their petition of
divorced.
Divorce under Muslim Law
The Prophet Mohamed describes divorce as the worst thing permitted under the law of Islam.
He describes divorce as evil and he views that it must be avoided as far as possible. He said
that the use of divorce should be done during exceptional hardship where the parties to
marriage can’t live together.
In Muslim law divorce has been classified into two categories:
1. Extra judicial divorce.
2. Judicial divorce.
The extra-judicial divorce is further divided into 3 sub-categories
i. Divorce by the husband
ii. Divorce by the wife
iii. Divorce by mutual consent of the parties.
In Judicial divorce parties to the marriage dissolve their marriage through the dissolution of
Muslim Marriage Act.
Divorce by Husband
Husband got more privilege in regard to dissolving the marriage as compared to their wife.
They got such privilege because according to Islamic texts men are the maintainers of women
as they spend money in maintaining their wives so they have the right to repudiate the
marriage if they think that their wives are cheating on them. They can dissolve the marriage
by:
 Talaq
 Ila
 Zihar
Talaq- It means setting free or absolving from the liabilities of maritial obligation or in other
word it means freeing from the bondage of marriage by husband. The Muslim men get so
much power to give talaq to their wives that they are not required to provide any reason for
the dissolution of marriage. They got unilateral right to dissolve the marriage. The
pronouncement of talaq must be in expressed form. If the talaq is not expressed then it will
not be considered as a valid talaq. In Muslim law expressed talaq is divided into two
categories:
 Talaq-i-Sunnat- It is considered to be the most approved form of dissolution of
marriage because husband can revoke the talaq any time before the completion of 3
months or iddat period. This form of talaq was further divided into 2 sub-categories
they are:
 Talaq-I-Ahasan- It is regarded as the most approved form of talaq because in
this case when the husband pronounces that talaq, then after the
pronouncement of talaq he can revoke the talaq before the completion of the
iddat period.
 Talaq-I-Hasan- It is considered a less approved form of talaq. Because in this
form of talaq, the husband has to pronounce talaq three time during the
 successive period of three months. Once the pronounced the talaq for the
third time then the talaq became irrevocable.
 Talaq-i-Biddat- This form of talaq came during the second century of Islam. It is
considered to be the worst form of talaq. In this case, once the husband pronounces
the talaq to his wife by saying talaq, talaq, talaq then the marriage stand dissolved
immediately. This form of talaq was practiced by the Sunni sect. in India the tripal
talaq was declared unconstitutional in the case of Shyara Bano v. union of India. In
this the Supreme Court declared triple talaq as unconstitutional as this form of talaq is
against women and the court further said that tripal talaq is not the essential element
of Muslim law even if we remove it the Muslim law will not going to hamper. So by
using these logic SC declared the Talaq-i-biddat as unconstitutional.

Ila- This is called constructive talaq. In this case, the husband takes the oath that from today
onwards he’ll not have sexual intercourse with his wife and after the oath, he continues to
abstain from indulging in sexual intercourse for a period of four months then the marriage
stands dissolved.

Zihar- this is also the constructive talaq. In this case, the husband compares his wife with the
woman within the prohibited relationship, like a sister or mother. And after comparing his
wife with a woman of a prohibited relationship abstains from indulging in sexual intercourse
for a period of four months then the marriage is dissolved.

Divorce by wife
Before the commencement of Dissolution of Muslim Marriage Act, women got very less right
to dissolve the marriage. All the rights regarding the dissolution of marriage was with the
men. There are some rights which muslim women get to dissolve the marriage are:
 Talaq-i-tafweez- It is also called the delegated form of divorce. In this case the
husband delegate the power to dissolve the marriage to his wife.
 Lian- In this case, the wife can dissolve the marriage if her husband levels the false
charges of adultery, questions her chastity, or do character assignation. In all these
cases she can dissolve the marriage.
Divorce by mutual consent
In Muslim law, there are two ways through which marriage can be dissolved mutually. These
are:
 Khula- In this case the process to dissolve the marriage is initiated by the wife. And to
dissolve the marriage wife has to give some dower amount of some parts of her
property to the husband to dissolve the marriage.
  Mubarat- In this case the process of dissolution of marriage can be initiated by either
the husband or the wife. There is no need to give some amount of dower to husband
by wife for the dissolution of marriage.
Divorce through judicial means
Section 2 of the Dissolution of Muslim Marriage Act empowers the woman to get a divorce
from her husband on the following grounds
Section 2(i) It says that when the whereabouts of the husband are not known for a period of 4
years, then in such circumstances the wife is entitled to file for divorce.
Section 2(ii) It says that husband has failed to provide maintenance for a period of 2 years
then the wife can file for divorce.
Section 2(iii) It says that the husband has been sentenced for a period of 7 years.
Section 2(iv) It says that the husband failed to perform a marital obligation for a period of 3
years.
Section 2(v) It says that the husband was impotent during the time of marriage.
Section 2(vi) It says that the husband was insane for a period of 2 years or suffering from the
venereal disease.
Section 2(vii) It says that the marriage happened when she was below the age of 15 the in
such case, she can repudiate the marriage before the age of 18.
Divorce under Christian law
The concept of divorce was mentioned in the Bible. Jesus said that divorce is adultery and it
was prohibited in the Ten Commandments. Jesus said divorce is accepted only when either
the husband or wife is not loyal to each other being indulges in sexual intercourse with
another, person. The word of Jesus was interpreted differently by various Christian churches.
The Roman Catholic does not recognize divorce. According to their view marriage can be
dissolved only when either party to marriage dies. The Anglican church viewed that divorce
is not accepted in Christianity. But it can be allowed only in exceptional circumstances where
marriage is broken down to such a extent that it can never be repaired.
In India, the Christians were governed by the Indian Divorce Act. This act came in the year
1869. This act applies to all the people who were practicing Christianity in India. This act
was discriminatory toward women because to obtain a divorce husband had to prove only
adultery of the wife but if the wife wanted to get the divorce she had to prove one more factor
other than adultery like cruelty, bigamy, and desertion. So, the validity of section 10 of the act
was challenged in the Supreme Court and the case of Zachariah v. UOI, in this case, the court
stuck down the provision which was discriminatory towards women and directed the centre
government to make new provision. So, finally in the year 2001 the Indian Divorce Act was
amended and section 10A was added to it.
Grounds for the dissolution of marriage under the Indian Divorce Act were:
Under this act, both the parties can initiate the divorce proceeding on following grounds
 Adultery- If anyone found of doing adultery then the divorce proceeding can be
initiated.
 Converted to another religion- If either party to the marriage converts to another
religion then this becomes a ground to file for divorce.
 Unsound mind- If anyone is of unsound mind for a period of 2 years.
 Leprosy and Virulent disease- If any of them is suffering from this disease
continuously for a period of 2 years before the filing of the petition.
 Not heard- If any of them is not heard alive for a period of seven years.
 Consummate- If wilfully refuse to consummate.
 Not comply with the decree of restitution of conjugal rights for a period of 2 years.
Divorce by mutual consent
Section 10A of the Indian Divorce Act talks about divorce through mutual consent. This
provision is similar to that of the divorce under the Hindu Marriage Act under section 13B. In
this case, both parties file for divorce by mutually agreeing to dissolve the marriage and after
the filing of the petition, there will be a cooling period of 6 months. And the decree of divorce
can be pronounced between 6 to 18 months.
Divorce under Parsi Law
Parsi is not the name of any religion. To call a person a Parsi, he or she must be a Zoroastrian.
In Parsi marriage is mixture of both contractual and sacramental feature. In, the year 1855, a
Parsi law committee was formed to prepare a draft code for the Parsi people. The committee
submitted the draft code and subsequently in year 1865, the Parsi Marriage and Divorce Act
was formed. After some years this act was re-enacted in year 1936.but some Parsi community
member stared questioning the act as it was violative towards women. So, in year 1988 after
50 years this act was drastically amended. After the amendment this act looks almost similar
to the Hindu Marriage Act.
Parsi Marriage and Divorce act contains ten grounds on which the parties to marriage can
claim divorce. Section 32 of the act lays down the ground under which divorce can be
claimed by either the spouses. These grounds are:
 Marriage has not be consummated within one year od marriage.
 At the time of marriage was of unsound mind.
 Incurably of unsound mind for a period of not less than two years before filing of the
petition.
 If the wife at the time of marriage was pregnant by other person.
 Committed adultery or fornication or bigamy or rape.
 Imprisonment for a period of seven years.
 Deserted for the period of two years.
 Order passed by the magistrate awarding separate maintenance to the plaintiff and the
parties have abstain from indulging in marital intercourse for one year.
 Failed to comply with the decree of restitution of conjugal rights.
 Converted to another religion.
Divorce by mutual consent
It was the Muslim law where for the first time the concept of divorce on mutual consent was
brought up. With the development of society, the concept of divorce by mutual consent was
inculcated by different personal laws. In Parsi law, the concept of divorce by mutual consent
came with the amendment of the Parsi Marriage and Divorce Act in the year 1988. After that,
a clause was inserted in the said act for divorce by mutual consent. Section 32A talks about
divorce by mutual consent. The procedure of divorce by mutual consent is the same as that of
the Hindu Law. To get a divorce through section 32A the parties have to mutually file a
petition for the dissolution of marriage and after the date of filing the petition parties will be
given a cooling period of 6 months. And they can get the decree of divorce within 6 to 18
months.
Divorce under the Special Marriage Act
As society is progressing the concept of marriage within the same caste and religion is
diluting. People started marrying in different castes and religions and this led to huge
problems as all religions have their own personal laws. And will become difficult to solve the
problems of marriage like divorce, maintenance, and inheritance. So, to solve this problem
the Special Marriage Act was made in year 1954. Under this act, the marriage can be
solemnized within inter-caste and inter-religion. Section 4 of the act talks about the essentials
of a valid marriage and after fulfilling all the essentials, the marriage is valid in the eye of the
law.
Section 27 of the act talks about divorce; it says that either party to marriage can file a
petition for divorce on the following grounds:
 After the solemnization of marriage have voluntarily sexual intercourse with another,
person.
 Deserted for a period of 2 years.
 Imprisonment for a period of 7 years.
 After the solemnization of marriage treated with cruelty.
 Is of unsound mind. Or suffering from a mental disorder.
 Suffering from venereal disease.
 Not been heard alive for a period of seven years.
 Either party can file a petition for divorce if they have not cohabitated after the decree
of restitution of conjugal rights was passed.
 If no resumption of cohabitation for a period of one year after the decree of judicial
separation.

The Special Marriage Act gives some extra power solely to women to file a divorce petition
on the following grounds:
 That the husband has been found guilty of the offense of rape, sodomy, or bestiality.
 Suit under section 18 of the Hindu Adaptation and maintenance act, or in proceeding
under section 125 of Cr.Pc.
Divorce by mutual consent
Section 28 of the act talks about the dissolution of marriage by the mutual consent of the
parties. It says that a petition for the dissolution of marriage can only be entertained under
this ground if the parties have been living separately for a period of one year and they have
not been able to live together and they have mutually decided to dissolve the marriage. If all
these conditions are fulfilled then the court can pass a decree for the dissolution of marriage.
There is a cooling period of 6 months and only after the expiry of the said period the court
can decree a divorce between 6 to 18 months.
Conclusion
So, we have seen all the personal laws and secular laws relating to the provision of divorce.
Basically, all the personal laws during their initial days were discriminatory towards women.
All the rights to dissolve the marriage were given to men. But with the advancement of
society and recognition of the rights of women, these personal laws were amended by the
legislature and some were made unconstitutional by the judiciary of our country. As we have
seen there is no concept of divorce in the Hindu and how it will affect the condition of
women who are subject to the continuous harsh treatment by their husbands. So, with the
enactment of the HMA, the concept of divorce was introduced in the Hindu Law, which gives
women the right to annul the marriage. Similarly in Muslim law the concept of divorce was
present but the power to dissolve the marriage was present in the hands of men only, women
were subject to cruel treatment. However, with the enactment of the Dissolution of Muslim
Marriage Act, women get the power to dissolve the marriage. In Muslim Law Supreme Court
also plays an important role in balancing the power to give a divorce, as Muslim men have
unilateral power the end the marriage by pronouncing talaq three times. So, the Supreme
Court held it unconstitutional. Similarly in Christian law, the power to dissolve the marriage
was mostly present in the hands of male members of the society. So, after the positive intent
of the legislature, all these differences were removed.
Therefore, we can say that with the collective effort of the legislature, and the judiciary
inequality in the personal laws was removed. From time to time the Supreme Court in its
various judgments talks about the implementation of UCC. The constitution makes have
made it the duty of the state to come up with the UCC and it was also given in Article 44 of
the constitution. As we can see basically all the personal laws were somehow discriminatory
towards women even today after so much legislation and judicial correction. Now the time
has came when there should be a common law for all the citizen regarding the marriage,
divorce and succession.