DIVORCE LAWS: COMPARATIVE STUDY OF HINDU AND MUSLIM

LEGAL FRAMEWORKS
BY - YUVRAJ PANDEY
INTRODUCTION
Divorce is regarded as a legal remedy that terminates marriage ties permanently. Once the
divorce decree is issued both spouses rights and responsibilities towards each other cease to
end. A Hindu man marrying a Hindu woman adheres to Hindu norms, but if he later converts
to Islam, he falls under Mohammedan law, allowing divorce per the Dissolution of Muslim
Marriage Act of 1939. There's a need for amendments to these personal laws to address such
complexities.

DIVORCE UNDER HINDU LAW

The Hindu Marriage Act of 1955 regulates both marriage and its dissolution. To obtain a
divorce decree under this act, specific conditions or grounds must be met. Individuals cannot
terminate the marital bond solely at their discretion; rather, certain criteria must be satisfied
to acknowledge the permanent breakdown of the marriage. There are three predominant
theories governing divorce under Hindu Law: fault-based theory, breakdown theory, and
mutual consent theory.1

1. Fault-Based Theory: Under this theory, if the court determines that either spouse is at
fault, it may grant a divorce decree. Sections 13(1) and 13(2) of the Hindu Marriage
Act, 1955 address the fault-based theory. Section 13(1) outlines the grounds on which
both spouses can seek a divorce decree. The grounds for divorce include:
a. Adultery: Adultery refers to extramarital affairs. If either spouse engages in sexual
relations with someone other than their spouse, the other spouse is entitled to seek
divorce relief. It's not necessary for the respondent to have engaged in multiple acts; a
single act of adultery is sufficient grounds for divorce.
b. Cruelty: Cruelty encompasses both physical and psychological mistreatment. The
burden of proof lies with the petitioner to demonstrate that the respondent has
subjected them to cruelty. The option of divorce on grounds of cruelty is open to both
spouses.

1
The Hindu Marriage Act, 1955
c. Desertion: Desertion refers to deliberate abandonment without reasonable cause and
against the will of the other spouse. The deserted spouse can seek divorce relief after a
two-year period of desertion.
d. Conversion: If either spouse converts to another religion, ceasing to be a Hindu, the
other spouse is entitled to seek divorce relief.
e. Mental Disorder: If the respondent suffers from a mental disorder severe enough that
the petitioner cannot reasonably be expected to live with them, divorce relief is
granted. The disorder need not have been present at the time of marriage; what
matters is its permanent or recurring nature.
f. Leprosy: Divorce relief is available to both spouses if it's proven that the respondent
suffers from virulent and incurable leprosy at the time of petition submission.
g. Venereal Disease: If either spouse has a communicable form of venereal disease, the
other spouse can seek divorce relief. It must be demonstrated that the disease is
capable of transmission through contact.
h. Renunciation: If either spouse voluntarily renounces worldly life by becoming a
sanyasi, the other spouse is entitled to seek divorce relief.
i. Death: If one spouse passes away, the surviving spouse is entitled to remarry. If the
whereabouts of the other spouse remain unknown for more than seven years to those
who would normally have contact with them, the surviving spouse is entitled to seek
divorce relief. After seven years of absence, civil death is presumed.
j. No Cohabitation: Failure to resume cohabitation after a decree for the restitution of
conjugal rights becomes a ground for divorce. Section 13(2) specifically outlines
grounds available only to the wife: If the husband is guilty of rape, sodomy, or
bestiality from the date of marriage, If the husband had a living wife at the time of
marriage or remarried before the commencement of the Hindu Marriage Act of 1955,
If the wife married before the age of 15 and renounced the marriage between ages 15
and 20, If maintenance is granted to the wife but there is no cohabitation for one year.
2. Mutual Consent Theory: When both parties agree that living together is not feasible,
the court may grant a divorce decree based on mutual consent. This theory is
sanctioned under Section 13A of the Hindu Marriage Act of 1955.
3. Irretrievable Breakdown Theory: The persistence of marital discord has become a
significant issue. The irretrievable breakdown of a marriage, for reasons not covered
under fault-based theory, is recognized. Although such behavior by the parties doesn't
constitute a matrimonial offense, the marriage still remains unfulfilled. There are
 instances where one party desires to maintain the marital relationship while the other
lives separately and independently. In such cases, granting divorce may seem contrary
to the natural order, but it becomes necessary as parties cannot be compelled to live
together. Over time, attitudes towards marriage have shifted, leading some to abandon
their marital responsibilities even in the early stages. This weakening of the institution
of marriage leaves parties in isolation, prompting the remedy of divorce as the
marriage breaks down.

DIVORCE UNDER THE MUSLIM LAW

Divorce in Islamic law falls into two categories:

I. Extra-judicial divorce which includes the following subdivisions:

1. Divorce by Husband:

There are three types of extra-judicial divorce that a husband can grant:

a. Talaq: According to Muslim law, women are considered the weaker gender created by
Allah, and men in the Muslim community are regarded as their maintainers. It is
believed that only men have the authority to unilaterally grant talaq. Conditions for a
valid talaq are Capacity, Free Consent, Formalities and Expressed Words. Capacity
for a talaq, granted by the husband to his wife, to be valid, the husband must be of
sound mind, have reached the age of majority, be a Muslim. Talaq granted by
someone of unsound mind or a minor is void. However, talaq can be given during
lucid intervals. The guardian of a minor or mentally incapacitated person cannot grant
talaq on their behalf. A judge has the authority to dissolve the marriage for an
incapacitated person. The husband pronouncing the talaq must do so with free
consent, without coercion, fraud, compulsion, undue influence, or involuntary
intoxication. If any of these elements are present, the talaq is considered void. Under
Muslim law, Muslims are divided into Shia and Sunni sects. Under Sunni law, talaq
can be written or oral. Simply uttering the term "talaq" is enough to constitute
divorce. Under Shia law, the utterance of "talaq" in the presence of two witnesses
constitutes divorce. Written talaq is accepted only if the husband is unable to speak.
Expressed Words means the pronouncement of talaq must be clear and unambiguous,
indicating the husband's intention to end the marriage.
 b. Ila: A Muslim husband can dissolve his marriage through Ila, also known as
constructive divorce. Ila involves the husband taking an oath not to engage in sexual
relations with his wife. If the marriage.
c. Zihar: Zihar is a form of divorce initiated by the husband towards his wife. In Zihar,
the husband compares his wife to someone within the prohibited degree of
relationship, declaring in front of others that she is akin to his mother or sister. If,
following this declaration, cohabitation does not resume, Zihar is considered
complete. After four months, the Muslim wife is entitled to the remedies such as filing
a petition for a judicial divorce decree or by submitting a petition for the restoration of
conjugal rights. Zihar can be annulled at any time before the four-month period
elapses. The husband can revoke Zihar by resumption of cohabitation, observes
fasting for a period of two months, provides food to at least sixty people or he frees a
slave.

2. Divorce by Wife:

There are two types of divorce: Talaq-I-tafweez and Lian.

a. Talaq-I-tafweez: It is also known as delegated divorce, is recognized among both Shia

and Sunni Muslims. It involves the husband delegating the power to grant divorce to
the wife, or even to another individual. This delegation is reversible. For the
delegation to be valid, it must benefit the person receiving the power, and the reason
for the delegation must be stated. Typically, such delegations are outlined in
prenuptial agreements, age remains unconsummated after four months, it is
irrevocably dissolved.
b. Lian: In cases where the wife is falsely accused of unchastity or adultery, leading to
her character being tarnished, she is entitled to seek divorce. These accusations must
be voluntarily made by the husband, and the wife must not have condoned them.

3. Divorce by Mutual Consent:

Muslim law recognizes two types of divorce - judicial and extra-judicial. Mutual divorce
among Muslims falls into the extra-judicial category, asserting that since divorce is an act of
the parties involved, court intervention is unnecessary. Khula and Mubarat are the two forms
of mutual divorce or agreement.
 a. Khula: This mutual divorce involves an agreement between spouses (husband and
wife) to dissolve their union, with the wife compensating the husband with part of her
property. While actual delivery isn't mandatory, consideration is crucial for Khula's
validity. Once the husband consents, an irrevocable divorce occurs, and the husband
can't revoke it if the consideration hasn't been paid.
b. Mubarat: In this type of divorce, both spouses must desire the divorce, and the
proposal can come from either side. Once an offer is made and accepted, the divorce
becomes irrevocable. There are variations for Sunnis and Shias regarding this form of
divorce. For Sunnis, entering into Mubarat terminates the rights and obligations of the
parties. For Shias, specific wording is required, with "Mubarat" followed by "Talaq"
for the divorce to be valid, spoken in Arabic with clear intention to dissolve the
marriage.

II. Judicial Divorce:

Divorce under the Muslim Marriage Act, 1939: This section of the Muslim Marriages Act of
1939 addresses the dissolution of marriage through a divorce decree. A Muslim woman has
the right to seek divorce based on the following grounds:

- If the husband's whereabouts have been unknown for four years.

- If the husband has failed to provide maintenance for his wife for two years or more.

- If the husband has been sentenced to imprisonment for seven years or more.

- If the husband is unable to fulfill matrimonial obligations.

- If the marriage is annulled by the girl before reaching the age of eighteen, in cases where
she was married before turning fifteen.

- If the husband has subjected his wife to cruelty.

CONCLUSION

The Hindu Marriage Act of 1955 outlines provisions for divorce defining it as the dissolution
of marriage. Three main theories regarding divorce are Fault Theory, Mutual Consent
Concept, and irretrievable theory, with Fault Theory being applicable in India, where
marriage can end if one spouse is responsible for matrimonial offenses. Grounds for divorce
under this act for Hindu women include adultery, desertion, conversion, leprosy, cruelty, etc.
Despite criticism from some philosophers, Hindu married women can also seek maintenance
under Section 125 of the Criminal Procedure Code. Thus, innocent spouses have the option to
approach the court for divorce remedies. The Muslim law provides ground mainly to husband
for divorce under the religious lines but due to various legislations and judicial interpretation
now Muslim women can also claim divorce. Muslim women can claim divorce under the
Section 125 of CrPC as held in the landmark Shah Bano case2, they can seek for divorce
under the false accusation of adultery by husband on her which he fails to prove or under the
Muslim Marriage Dissolution Act, 1939 on the grounds available therein.

2
Mohd. Ahmed Khan vs Shah Bano Begum and Ors 1985 SCR (3) 844, AIR 1985