Different divorce laws in India for different religions!

3
Spread the love

Different divorce laws in India for different religions!

Divorce laws in India are different under different enactments, providing different grounds on the basis of religion, customs and usages.  Some of the categories, like tribes are left on the basis of their own customs.  Uniformity in divorce laws are required to be in consonance with the concept of equality before law under Constitution of India, 1950 (COI) – Article 14.

Different provisions for getting divorce have been provided under various law and enactments in India based mainly upon different religion, which makes it very complicated. In modern civilized nation, divorce laws should be similar providing similar grounds so as to bring all of them under the ambit of Article 14 of the Constitution of India which provides equality before law. Classification on the basis of religion for making different laws is certainly unwarranted and unconstitutional.

  1. Anand Marriage Act, 1909

Its applicability:-

This is an Act to remove doubts as to the validity of the marriages ceremony common among the Sikhs called Anand (known as Anand Karan).

Grounds available for Divorce:-

Same as under the Hindu Marriage Act.

  1. Arya Marriage Validation Act, 1937

Its applicability:-

This is an Act to recognize and remove doubts as to the validity of inter-marriages current among Arya Samajists.

Grounds available for Divorce:-

Same as under the Hindu Marriage Act.

  1. Dissolution of Muslim Marriage Act, 1939

Its applicability:-

This is an Act to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.

Grounds available for Divorce:-

Divorce can be sought Under Section 2 of the Act on the following grounds:-

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:

Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;

(ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law;

Provided that

(a) no decree shall be passed on ground (iii) until the sentence has become final;

(b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and

(c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.

The provisions shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.

  1. Divorce Act, 1869

Its applicability:-

This is an Act to amend the law relating to Divorce and Matrimonial Causes of persons professing Christian religion.

Grounds available for Divorce:-

Divorce can be sought under Section 10 of the Act on the grounds of Adultery, conversion to another religion, incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; suffering from venereal disease in a communicable form (for two years), not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive, has wilfully refused to consummate the marriage and the marriage has not therefore been consummated, has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent, deserted the petitioner for at least two years immediately preceding the presentation of the petition, has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.

Additional grounds for wife to seek Divorce:-

A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

Mutual Consent Divorce:-

Under Section 10-A parties can also seek mutual divorce on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved on the motion of both the parties made not earlier than six months after the date of presentation of the petition and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.

  1. Foreign Marriage Act, 1969

Its applicability:-

An Act to make provision relating to marriages of citizens of India outside India.

Grounds available for Divorce:-

The Provisions as given under the Special Marriage Act below will be applicable for the people marrying under the provisions of this Act.

  1. Hindu Marriage Act, 1955

Its applicability:-

An Act to amend and codify the law relating to marriage and Divorce among Hindus, Virashaiva, a Lingayat, Brahmo, Prarthana, Arya Samaj, Buddhist, Jaina, Sikh and any person who is not Muslim Christian, Parsi or Jew by religion, unless it is proved that such person would not have been governed by the Hindu Law or any custom or usage as part of that law.  However, this Act does not apply to Scheduled Tribes withing he meaning of clause (25) of Article 366 of Constitution of India, 1950 (COI) unless Central Government notifies in the Official Gazette.

Grounds available for Divorce:-

For a Hindu spouse, the following grounds have been envisaged under Section 13 of the Act for getting divorce under Hindu Marriage Act, 1956 by presenting petition before Family Court/District Judge:-

Adultery, Cruelty, Desertion, Religious Conversion, Mental Disorder, Venereal Disease, Renouncing the World, Presumed Dead, Non-resumption of Cohabitation after Judicial Separation Decree.

For detailed discussion click here.

ADDITIONAL GROUNDS FOR WIFE TO FILE DIVORCE PETITION

Divorce by mutual consent.

  1. Indian Christian Marriage Act, 1872

Its applicability:-

This Act is to consolidate and amend the law relating to the solemnization in India of the marriages of Christians.

Grounds available for Divorce:-

As given above under Divorce Act, 1869.

  1. Marriages Validation Act, 1892

Its applicability:-

This is an Act to validate certain marriages solemnized under Indian Christian Marriage Act, 1872.

Grounds available for Divorce:-

As given above under Divorce Act, 1869.

  1. Muslim Personal Law (Shariat) Application Act, 1937

Its applicability:-

An Act to make provision for the application of the Muslim Personal Law (Shariat) to Muslims.

Grounds available for Divorce:-

Under Dissolution of Muslim Marriage Act, 1939 detailed above.

  1. Muslim Women (Protection of Rights on Marriage) Bill

Its applicability:-

A Bill to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.

Grounds available for Divorce:-

Tripple Talaq declared invalid.

  1. Parsi Marriage and Divorce Act, 1936

Its applicability:-

An Act to amend the law relating to marriage and divorce among Parsis.

Grounds available for Divorce:-

Divorce can be obtained under Section 32 of the Act on the following grounds:-

(a) that the marriage has not been consummated within one year after its solemnization owing to the willful refusal of the defendant to consummate it;

(b) that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit:

Provided that divorce shall not be granted on this ground, unless the plaintiff (1) was ignorant of the fact at the time of the marriage, and (2) has filed the suit within three years form the date of the marriage;

12(bb) that the defendant has been incurably of unsound mind for a -period of two years or upwards immediately preceding the filing of the suit or has been suffering continuously or intermittently from mental disorder of such kind and to such an extent that the plaintiff cannot reasonably be expected to live with the defendant.

(c) that the defendant was at the time of marriage pregnant by some person other than the plaintiff:

(d) that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence:

Provided that divorce shall not be granted on this ground, if the suit has been filed more than two years after the plaintiff came to know of the fact;

12[(dd) that the defendant has since the solemnization of the marriage treated the plaintiff with cruelty or has behaved in such a way as to render it in the judgment of the Court improper to compel the plaintiff to live with the defendant.

(e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to submit herself to prostitution;

(f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code:

(g) that the defendant has deserted the plaintiff for at least two years;

(h) that an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had Marital intercourse for one year or more since such decree or order;

(i) that the defendant has ceased to be a Parsi by conversion to another religion.

(j) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.

(k) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

(l) No decree for divorce shall be granted under sub-section (1) if the plaintiff has failed or neglected to comply with an order for maintenance passed against him under section 40 of this Act or section 488 of the Code of Criminal Procedure, 1898 or section 125 of the Code of Criminal Procedure, 1973.

Divorce by mutual consent

A suit for divorce may be filed by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Parsi Marriage and Divorce (Amendment) Act. 1988, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved:

Provided that no suit under this sub-section shall be filed unless at the date of the filing of the suit one year has lapsed since the date of the marriage.

The Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and the averments in the plaint are true and that the consent of either party to the suit was not obtained by force or fraud, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

  1. Special Marriage Act, 1954

Its applicability:-

This is an Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce.

Grounds available for Divorce:-

Section 27 of this Act provides for grounds of divorce, which are mainly, an act of adultery after solemnization of marriage, desertion for continuous period of two years, undergoing sentence for seven years or more for an offence under Indian Penal Code, 1860 (IPC), cruelty, incurably of unsound mind or suffering continuously or intermittently from mental disorder making living difficult ordinarily, suffering from venereal disease in communicable form, not heard of being alive for a period of seven years, no resumption of cohabitation for one year or more after decree of separation passed, no restitution after decree of restitution passed and period of one year or above have passed.

Wife may additionally apply for divorce on ground of husband being guilty of rape, sodomy or bestiality, cohabitation not resumed for a period of one year or above after decree or order passed against him mainly in maintenance or adoption case.

3 thoughts on “Different divorce laws in India for different religions!

Leave a Reply

Your email address will not be published. Required fields are marked *

Next Post

TRANSFER OF EMPLOYEES

Mon Jul 22 , 2019
In case the transfer if also found to be issued as a measure of punitive measure or colourable exercise of powers or as an oblique motive, they also fall under the category of illegal or arbitrary transfers and can be challenged. Frequent and unscheduled transfers also fall under this category and can be challenged before the court of law.
Transfer of employees