A Brief on Divorce with regard to the Personal Laws in India
The secular country India where an extensive number of religions are freely practiced. The major religions practised consist of Hinduism, Islam and Christianity. The people of the respective religion solemnise their marriage according to their personal laws, Therefore the matrimonial laws such as marriage, divorces and other linked issues are basically ruled by personal laws of the parties relying on their religion. The way of dealing with divorce for each religion is different in India, there are certain acts which have provisions related to divorce, like for Hindu there is Hindu marriage act, 1955, For Christians there is Divorce Act 1869, and Muslims too have provisions but that are not codified.
Furthermore, Special Marriage Act too applies to all religions in India. Special Marriage Act, 1954, allows people from two different religious backgrounds to come together in the bond of marriage. The Special Marriage Act, 1954 lays down the procedure for both solemnization and registration of marriage, where either of the husband or wife or both are not Hindus, Buddhists, Jains, or Sikhs.
The secular way of thinking of the Indian judicial system has initiated proclamation of diverse personal laws based on different religious faiths. Primarily understanding the various grounds of divorce which are common amongst all the personal laws in India. They are:-
Adultery:- Adultery means the consensual and voluntary intercourse between a married person with another person, married or unmarried, of the opposite sex.
Cruelty:- The physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse.
Desertion:- Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his consent.
Conversion:- If one of the spouses converted his religion to any other religion without the consent of the other spouse, then the other spouse can approach the court and seek the remedy of divorce.
Insanity:- Insanity means when the person is of unsound mind. If one party is of unsound mind then it can be a ground for divorce.
Leprosy:- Leprosy is an infectious disease which is transmitted from one person to another. Thus it is considered as the valid ground for divorce.
Renunciation:- It means when one of the spouses decide to renunciate the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead.
Presumption of death:- In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.
The preceding content about the grounds may be almost common for all respective religions in India but the personal laws still differ from each other. India being home to multifarious communities and has no uniform law on divorce thus briefing the personal laws and their provisions for divorce is below mentioned:-
Hindu Law and Divorce
Provisions for divorce are given under Section 13 of Hindu Marriage Act, 1955, In this section both the spouses have right to seek court for divorce that can be filed either by one party with certain grounds under clause (a) of section 13 or by mutual consent under clause (b) of section 13 respectively. Our laws are much influenced by our culture and this is much seen by the very fact that a step like a divorce is taken only as a last option, so under Section 10 of Hindu marriage Act 1955 the court can also give judicial separation for minimum period of 6 months between the two in case they want to reconcile.
Muslim Law and Divorce
Divorce/Talaq in Muslim law can be unilateral either by the side of husband or wife, mutual divorce and judicial divorce. Unilateral divorce by husband can be orally or can be in writing according to Shia and also according to some schools of Sunni. The expressed talaq can be classified as Talaq-i-sunnat and Talaq-i-biddat (Triple Talaq). The words of talaq must clearly indicate the husband's intention to dissolve the marriage. If the pronunciation is not expressed and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage. Whereas divorce by wife is classified as Talaq-i-tafweez or delegated divorce and Lian. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person and If the husband levels false charges of unchastely or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. The divorce by mutual consent in Muslim law is divided into khula and mubarat, Khula is the right of a woman in Islam to divorce and it means separation from her husband whereas The literal meaning of the word Mubarat is 'obtaining release from each other'. It is said to take place when the husband and wife, with mutual consent and desire, obtain release and freedom from their married state.
Christian Law and Divorce
The Indian Divorce Act, 1869 regulates the law relating to divorce of persons professing the Christian religion and also other matrimonial clauses. This Act is applied if one of the parties to the proceedings is a Christian. Divorce can either by court or mutually, According to Section l4 of the Act, the Court shall pronounce a decree declaring such marriage to be dissolved in case the Court is satisfied on the evidence that the case of the petitioner has been proved and does not find that the petitioner has been in any manner accessory to or connived at, the going through of the said form of marriage or the adultery of the other party to the marriage or has condoned the adultery complained of or that the petition is presented or prosecuted in collusion with either of the respondents. After Section 10, a new Section 10-A has been inserted which lays down conditions for dissolution of marriage by mutual consent.
Divorce under Special Marriage Act
Under the Special Marriage Act it was laid down that a couple may present a petition for divorce by mutual consent 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 to divorce. There can be the following grounds for the same:-
(i) Husband and wife have been living separately for a period of one year or more.
(ii) That they are unable to live together.
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed. Hence marriage should be dissolved. Under these circumstances, a Divorce by Mutual consent can be filed.
Conclusion
Divorce laws range considerably around the sector; however in maximum countries it calls for the sanction of a court or different authority in a legal process. Though laws of divorce have many forms the final fulfillment is one that is acquiring divorce, however it takes distinctive forms in different religions and statutes. Where monogamy is law, divorce allows every former partner to marry another; where polygamy is legal (however polygamy isn't legal), divorce permits the woman to marry another. Divorce refers to the frequently messy and painful cease of a marriage in each religion. Almost every person has been touched by it, both by going through it themselves as a partner or a child’s divorce, or understanding a person who has gone through it as a partner.