Divorce: Comparative analysis between Hindu and Muslim personal Law

Abstract

Women benefit from divorce based on the husband’s wrongdoing, but men should too. The Hindu Marriage Act, 1955 enables divorce for mutual consent, abandonment, bigamy, renunciation, adultery, venereal sickness, unsound mind, or cruelty. Divorce violates women’s equality. Muslim males may divorce more easily. So, India desperately needs a common civil code to foster secularism in democracy. Hindu and Muslim personal laws vary. Hinduism encourages marital equality. Both couples must perform weddings. Monogamous marriages with similar divorce grounds. Islam discriminates. Muslims may marry four times. He may remarry any woman. Talaq any wife. Angry spouses can talaq. Muslim women lose spouse support after talaq. Indian strict secularism breaches equality.

Keywords: Women, Talaq, Wife, Muslim, democracy.

Introduction

In terms of how it treats women, Indian culture is unique. A divorce comes with a number of negative consequences. Whereas a guy who has divorced his wife may obtain a girl of sweet seventeen the very next day, a girl who has been divorced by her husband can only anticipate a man in his mid-fifties as a spouse or will have to stay alone for the rest of her life.

In terms of marriage and divorce, it would not be far from the truth to state that our culture is still a man’s society. We are able to take judicial notice of the fact that several young girls have suffered the agony of life with all of its privations and penury after their husbands divorce them, and it is these difficult cases that may have induced and impelled the supreme law- making body of this country to enact the provisions contained in Section 125 of the New Code [of Criminal Procedure, 1973]. Ours is an unusual culture in which women are subjected to a wide variety of disadvantages, whilst males consistently have the advantage[1]. In this paper, the author has tried to compare the provisions of divorce under the Hindu Marriage Act, 1955 and Muslim personal Law.

Research Objectives

1. To study divorce under the Hindu Marriage Act,1955 and Muslim Personal
2. To compare the divorce provisions under both Hindu and Muslim

Research Questions

1. What are the different provisions of divorce under both The Hindu Marriage Act,1955 & Muslim personal law?
2. What are the differences between the provisions of divorce under the Hindu Marriage Act, 1955 & Muslim Personal Law?

Research Methodology

The research methodology used in this paper is based on both primary & secondary sources of data. That includes dissertations, the Hindu Marriage Act, of 1955, research papers, articles, and case laws.

Hindu and Muslim law recognize tradition as a source of law. British jurists and politicians fought to recognize Indian custom and usage as law. Under Orientalist influence, the colonial state initially acknowledged the customs, usage, and practices of the subject population, but the Regulating Act of 1773 failed to respect them. The Act of Settlement 1781 directed the Supreme Court at Calcutta to decide “”matters of inheritance and succession to land and goods,” and “matters of contract and dealing between party and party,” “by the laws Other Presidency towns enacted similar laws, often with minor wording changes. Outside the Presidencies, the courts (Adalat system founded by Warren Hastings in 1772 in Bengal Bihar, and Orissa) were commanded to arbitrate all inheritance, marriage, caste, and other religious usages and institutions according to the Koran for Muslims and the Shaster for Hindus. In 1781, this rule was extended to compel adalats to act with justice, fairness, and good conscience. Muhammadan law and Hindu law supplanted “the law of the Koran and the Shaster” under S. 37 of the Bengal, Agra, and Assam Civil Courts Act of 1887. This tradition was not mentioned.

Warren Hastings believed Hindus and Muslims were dominated by their sacred texts. Colonial officials’ changing and growing experiences in India made the custom vital. Therefore, Regulation IV of 1827, in S. 26, which gave precedence to custom, deviated from the Bengal model when it came to the legislation of the territories annexed to the Bombay Presidency in 1827. It stated that “the law to be observed in the trial of suits shall be Acts of Parliament and Regulations of Government applicable to the case; in the absence of such Acts and Regulations, the usage of the country in which the suit arose; if”

The Bombay Regulation prioritized local usage above formal Muslim or Hindu legislation[2].

The policymakers’ views on family regulation, Muslim standards, and family norms mattered most. As cultural accommodation remained a crucial consideration in family law, policymakers only introduced gender-equalizing legal changes if legal mobilization, litigation, and transnational legal networks provided a credible basis for change in group law, group norms, and Judges and legislators only introduced those changes they felt were sorely group initiatives. required, rejecting different expectations established in communal tradition. Their ideal family life prevented them from granting women more property.

The premise of policymaking led many reformers to seek collective norms. Reformist ambition was unconstrained by the limitations of policy change. Piecemeal adjustments diminished conservative hostility to state law changes but strengthened conservative attempts to steer litigants away from state courts. These patterns imply that demands for additional gender-equalizing legislative reform and attempts to avoid state courts will increase.

During the 1970s, policymakers’ perspectives have changed, which may loosen Indian Muslim law. There are shifts in policymakers’ views of community norms, ideal family life, and family life regulatory patterns. Continued legal mobilisation will add to these reforms.

The reforms that were made to various aspects of Muslim law led to some convergence with Hindu law and Christian law, which are the two main family laws in India. There was convergence in divorce and alimony rights, but not in inheritance rights. While group norms affect legal development and Muslim law has distinct jurisprudential roots, the limited convergence we have witnessed is unlikely to homogenize family law[3].

Theories of divorce

Divorce theories include divorce fault, mutual consent, and irretrievable breakdown of marriage theory[4].

Only when one of the spouses has committed a marital offence may a marriage be dissolved, according to the Fault Theory, the Offenses Theory, or the Guilt Theory[5]. There must be a guilty and an innocent party, and only the innocent person may divorce[6]. The biggest issue is that there is no recourse if both parties are at fault. Mutual consent is a different divorce theory[7]. The idea is that if two people may marry of their own free choice, they should also be able to leave the relationship of their own free will[8].

The third theory concerns the marriage’s irreparable breakdown[9]. The breakdown of marriage is described as “such failure in the married connections or such circumstances unfavorable to that relationship that no reasonable prospect exists for the couples again living together as husband & wife.” Such a marriage should be dissolved with the utmost justice and the least amount of anger, misery, and disgrace[10].

In current Hindu law, all three divorce theories are accepted. The Hindu Marriage Act, 1955 initially predicated divorce on the fault theory, with nine grounds in Section 13(1) on which either the husband or wife may suit for divorce and two fault reasons in Section 13(2) on which the woman alone could seek the divorce[11]. In 1964, Section 13(1) was changed to become Section 13(1A), recognizing two causes for marital breakdown. The 1976 Amendment Act included two new fault grounds for divorce for wives and a new section 13B for mutual consent divorce[12].

Grounds for divorce under The Hindu Marriage Act, 1955

Adultery

According to Section 13[13], adultery is committed when either the husband or the wife willingly has sexual relations with a third person. The court will issue a divorce decree if the victim’s spouse requests it[14].

Cruelty

This ground was not included in the statute when it was passed. It was established in 1976. If one spouse abuses the other, Section 13 (1) (a)[15] allows the victim spouse to file a petition with the Competent / District Court for a divorce decree[16].

Desertion

In 1976, clause (1)(b) of Section 13[17] was added to the Hindu Marriage Act to include this ground. This section allows for divorce if either spouse deserts without cause. This section requires a 2-year divorce decree. There are two types of desertion, namely real and constructive desertion, despite the fact that this section does not specify them[18].

Conversion

Apostasy is a Hindu divorce ground. According to Section 13(1)(ii), the victim spouse may terminate the marriage if either partner converts to another faith. The Hindu Marriage Act applies solely to Hindus, therefore if one spouse converts and the other refuses to convert, the spouse has the right to break the marriage[19].

Unsoundness of mind

To be in good mental health is a requirement for a legitimate marriage; if one partner is not in good mental health at the time of marriage, the marriage is invalid. However, the marriage is not voidable if either spouse loses their mental faculties after the ceremony. The marriage is lawful, and any partner may file for divorce[20].

Leprosy

Section 13(1)(iv)[21] allows divorce if one spouse has virulent and incurable leprosy. This right may only be utilized if leprosy is incurable or the responder is not receiving sufficient treatment[22].

Venereal Diseases

Venereal illness is another common ground for divorce. Venereal illness may spread via sexual contact. The institution of marriage legalizes sexual contact between spouses, and illnesses that damage it ruin its purpose, making it a ground for divorce. If one spouse has venereal disease, the other may receive a divorce decree[23].

Renunciation of the world

Section 13 (1) (vi) states that if either spouse has abandoned the world by becoming a sanyasi and refuses to perform his or her commitment to the family, the victim spouse may file for divorce[24].

Presumption of life

If one spouse fails to perform his or her obligations and is not recognized by family or friends for seven years, the court will deem him dead and award a divorce decree so the other spouse may go on[25].

Divorce by mutual consent

This is a crucial ground for both sides. This ground for divorce allows both parties to leave their marriage if they can’t live together. When the act was adopted, this ground was not accessible. In 1976, Section 13 added this ground (B) If the spouses are unhappy, it’s best to divorce. The section further states that a divorce decree cannot be given before 6 months[26].

Grounds of divorce for women

Section 13(2)[27] gives four additional reasons for the wife solely. Only after considering the situation of women in pre-independent India are these reasons granted to women[28].

Bigamy

Section 13(2)(i) allows a woman whose husband has more wives than she to divorce her marriage after the act’s enactment.

Husband guilty of the offense

According to Section 13 (2) (ii)[29], the woman may ask the court for a divorce decree if the husband is found guilty of rape and other unnatural crimes. She shouldn’t be forced to live with the offender, according to the clause.

Marriage to a minor

If the marriage was solemnized before the woman became fifteen, she may get a divorce, but she must ask for the decree before becoming eighteen, according to Section 13 (2) (iv)[30].

N.G. Dastane v. S. Dastane[31]

In this instance, Dr. Narayan Ganesh Dastane married Sucheta Dastane in April 1956. The Appellant was told by the Respondent’s father, B. R. Abhyankar, that the Respondent had a “severe attack of sunstroke” and “cerebral malaria” before the marriage proposal was finalized. She healed from this mental illness. He didn’t ask any more questions. The couple had two kids and lived together until February 1961. Respondent was three months pregnant on the day of their divorce. On February 19, 1962, proceedings were started in the Trial Court where the appellant claimed that Respondent is unwell and harsh and a threat to his life. Whether sexual activity constitutes cruelty condonation, that was the question at hand. Condonation occurs when the accuser has forgiven or ignored an act. In the aforesaid instance, the SC found that the husband had a normal sexual life notwithstanding the respondent’s harshness. Since the partners have a regular marriage connection unaffected by the respondent’s behavior, the goal is to repair and forgive the offending spouse. Mr. and Mrs. Dastane’s divorce was denied[32].

Sureshta Devi v. Om Prakash[33]

The Honorable Supreme Court ruled in this case that a couple cannot live together if they petition for divorce together with mutual consent. The parties are not required to demonstrate that they cannot coexist. “Unable to live together” means breakdown of marriage, no prospect of reconciliation. Yet, it is vital to determine if both parties’ consent was freely provided and not obtained via pressure, fraud, or undue influence. If one party says, “I have withdrawn my consent” or “I am not a willing participant in the divorce,” the Court will not give a decree for divorce by mutual consent. Mutuality and consent for divorce are invalidated if the Court issues a decree on the first petition. Section 13-B divorce requires mutual consent to the decree. If the parties must divorce, mutual consent must last until the divorce decree is issued.

Swapna Ghosh vs Sadananda Ghosh [34]

In this case, the Court upheld the decree for dissolution of marriage issued by the trial Judge in favor of the petitioner’s wife, not on the ground that the husband respondent is guilty of adultery coupled with such cruelty that without adultery would have justified a decree of judicial separation, but rather on the ground that the husband respondent is guilty of adultery coupled with desertion without reasonable excuse for two years and more.

Divorce under Muslim Law

The Muslim husband may divorce his wife by Talaq, Ila, or Zihar. Talaq is an explicit form of divorce, whereas Ila and Zihar are inferred.

Talaq: The husband’s verbal divorce is known as Talaq. Talaq has two subtypes. Talaq ul sunnat and talaq ul biddat are these[35].

Talaq ul sunnat:

Talaq ul sunnat has two forms: ahasan and i-hasan.

Talaq-i-ahasan: This is the most accepted form of talaq. Talaq-i-ahasan is a version in which the husband pronounces talaq in a single pronouncement in her condition of purity, also known as tuhr, and then abstains from sexual activity during iddat. Talaq becomes irreversible after iddat. This kind of talaq is the best and most authorised since it may be withdrawn before iddat. This kind of talaq does not instantly dissolve the marriage[36].

Talaq-i-hasan

The husband pronounces talaq three times in three tuhrs in talaq-i-hasan. The husband may announce talaq after one month or thirty days if the woman does not menstruate or has reached a certain age. There must be no sexual activity between the husband and wife during this time[37]. After the third proclamation and abstention from sexual activity, the talaq is irreversible. This talaq is less accepted. Revocation of marriage is possible since parties may cohabit[38].

Talaq-ul-biddat

Talaq-ul-biddat is sometimes called Talaq-i-bain. The husband pronounces talaq irreversibly in this type of talaq, either in one statement or in three words. This kind of talaq is irreversible since the parties cannot undo their error. This kind of talaq is disapproved since it revokes the marriage regardless of whether the husband says it in a sleepy or angry state[39].

Ila

This is a kind of talaq that is indirect or implied. In this version, the man swears that he will not have sexual relations with his wife but does not declare talaq. If the husband does not engage in sexual activity for four months after taking such an oath, the marriage is irreparably dissolved and the woman must endure an iddat period. Yet, the marriage restarts if the husband cohabitates for four months. Ila divorce requires judicial approval[40].

Zihar

Zihar is a kind of talaq that is indirect. In this form, the husband compares his wife to a woman in banned ties, such as his mother or sister. I won’t live with you, the husband tells his wife, since you’re like my mother or sister. If the husband does not live with his wife for four months after making such a comparison, the marriage is dissolved[41].

Divorce by wives

Muslim wives may divorce. Lian and talaq-itafweez are the wife’s options.

Talaq-i-tafweez

Talaq-i-tafweez is sometimes termed delegated talaq. Only the husband may proclaim divorce in Islam, although he might give his wife the power to do so conditionally or unconditionally. In this kind of talaq, the wife might declare talaq on her[42].

Lian

Lian signifies false accusations. The woman may divorce her spouse if he falsely accuses her of infidelity. If the woman can show that the husband’s character assassination injured her and made it impossible for her to live with him, the court may award her a divorce decree[43].

Khula

Regardless of whether a clause is included in the marriage deal, every Muslim woman has the right of khula, which is similar to men’s right of talaq in all respects. If understood properly, Islam’s freedom to divorce is exceptional. A woman who believes she can no longer live with her spouse might simply request a divorce. He may then try to reconcile but cannot compel the wife to live with him. He may only ask his wife to pardon her dower, which the husband must pay in the event of a talaq divorce. A khula, or divorce at the woman’s request, occurs if the wife consents and the husband quietly consent[44].

Divorce by mutual consent

Not only can a husband and wife decide to end their marriage based on their subjective contentment after exhausting the resources of arbitration and conciliation, but they may also mutually come to the conclusion that they are unable to live together and decide to end their marriage as a result of their mutual consent. Mubaraa is the term used to describe this kind of separation[45].

Faskh (judicial rescission)

In some circumstances, the court may step in and order the dissolution of marriage in addition to the aforementioned divorce options for the couple. Despite the fact that Islam detests courts interfering in the sacred union of a husband and wife, a qadi or court may legally dissolve the marriage under certain dire circumstances. The term “faskh” denotes annulment or abrogation. Its root indicates “to annul (an action)” or “to repudiate (an agreement). Hence, it alludes to the Muslim qadi’s ability to annul a marriage upon the wife’s request. The termination or retraction of the contract of marriage by court decree[46].

• In Ahmed Kasim Khatoon Bibi[47], it was held that: ‘Any Mohammedan may divorce his wife at his mere whim or caprice.’
• In Sarabai v. Rabiabai[48],” it was observed that arbitrary divorce by a Muslim husband was ‘good in law though bad in theology.”

(iv) In Rashid Ahmad v. Anisa Khatoon[49], (as mentioned earlier) it was held: “According to that law (Muslim law), a husband can effect a divorce whenever he desires”.

• In Aisha Bibi Kadir Ibrahim[50], it was said: ‘the impropriety of the husband’s conduct would in no way affect the legal validity of a divorce duly effected by the husband’.

Comparison of Hindu and Muslim divorce law

Hindu and Muslim personal laws vary. Marriage equality is a key element of Hindu law. The rites necessary for a legitimate marriage must be performed by both the husband and wife. Both spouses are bound by the monogamy rule and have similar grounds for divorce. Muslim personal law undermines equality. The Muslim husband may marry four times. He may divorce any of his wives and remarry. He may talaq any of his wives. Muslim divorce is uncontrolled. With minor issues or wrath, the husband may talaq his wife. The Muslim woman has no support rights from her husband after talaq and if she is not remarried. After declaring talaq, the divorced lady must marry another person and consummate the marriage before she may legally marry her former husband. In India, secularism is the norm, yet personal restrictions based on secularism contradict the constitutional right to equality. Although secularism is widely accepted as the standard in India, the constitutional right to equality is often broken by personal constraints that are founded on secularism. This is the case even though secularism is the universally accepted norm in India. When it comes to divorcing a marriage because the husband committed an offense, the provision of divorce is weighted in favor of women. Yet, this ground for divorce has to be available to the husband as well for it to be a valid reason for divorce. According to the Hindu Marriage Act of 1955, the grounds for divorce for women include mutual consent, desertion, bigamy, renunciation, adultery, venereal disease, unsoundness of mind, and cruelty. These are the reasons that can cause a marriage to be dissolved. Both the husband and the wife have the freedom and equality to do so. These are the justifications that are outlined in the act. The practice of only allowing women to register for divorce is not only severely discriminatory against women but also violates their right to equality. Men are not allowed to file for divorce in several countries. In Muslim law, males have access to a larger number of legal alternatives for dissolving their marriages than do women have. This is because women are not permitted to file for divorce.

Conclusion

Secularism is the accepted norm in India, yet the constitutional right to equality is violated by personal constraints based on secularism. Although the provision of divorce is biased for women when it comes to divorce from the husband based on the offence committed, this ground for divorce should be available for the husband as well. The grounds of divorce for women in the Hindu Marriage Act, of 1955 give both the husband and the wife the freedom and equality to dissolve the marriage through mutual consent, desertion, bigamy, renunciation, adultery, venereal disease, unsoundness of mind, or cruelty. The provision of divorce by women is severely discriminatory against women, and it violates their right to equality. Muslim law allows more means of divorce to males than it does to women. The adoption of a uniform civil code in India that would encourage secularism in Indian democracy is thus urgently needed.

Reference(s):

Ahmad, F. (2003) “UNDERSTANDING THE ISLAMIC LAW OF DIVORCE,” Indian Law

Institute, 45(3/4), pp. 484–508. Available at: https://doi.org/ https://www.jstor.org/stable/43951877.

Ahmed Kasim v. Khatoon Bibi AIR 1933 Cal 27.

Asha Bibi vs Kadir Ibrahim Rowther 3 Ind Cas 730.

Ahmad, S.E.U. (2017) “CUSTOMARY PRACTICES AND MUSLIM PERSONAL LAW IN

COLONIAL INDIA,” Indian History Congress, 78, pp. 643–651. Available at: https://doi.org/ https://www.jstor.org/stable/10.2307/26906136.

Caroll, L. (1986) “THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT 1986: A RETROGRESSIVE PRECEDENT OF DUBIOUS

CONSTITUTIONALITY,” Journal of the Indian Law Institute, 8(3), pp. 364–376. Available at: https://doi.org/ https://www.jstor.org/stable/43951025.

Kumar, V. (2022) “Comparative Study Of Matrimonial Laws Of Hindu And Muslim,” International Journal of Creative Research Thoughts (IJCRT), 10(8), pp. 845–853. Available at: https://ijcrt.org/papers/IJCRT2208465.pdf (Accessed: March 12, 2023).

Patna Law College (n.d.) “Divorce under Hindu Law,” Patna Law College [Preprint]. Available at: https://www.patnalawcollege.ac.in/econtent/1604508999217.pdf (Accessed: March 12, 2023).

N.G. Dastane v. S. Dastane (1975) 2 SCC 326.

Saiyid Rashid Ahmad vs Mussammat Anisa Khatun (1932) 34 BOMLR 475.

Sarabai v. Rabiabai (1906) 8 BOMLR 35.

Smt. Sureshta Devi vs Om Prakash 1991 SCR (1) 274.

Subramanian, N. (2008) “Legal Change and Gender Inequality: Changes in Muslim Family Law in India,” Wiley on behalf of the American Bar Foundation, 33(3), pp. 631–672. Available at: https://doi.org/https://www.jstor.org/stable/20108777.

Swapna Ghosh vs Sadananda Ghosh And Anr. AIR 1989 Cal 1

 

[1] Caroll, L. (1986) “THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT 1986: A RETROGRESSIVE PRECEDENT OF DUBIOUS CONSTITUTIONALITY,” Journal of the Indian Law

Institute, 8(3), pp. 364–376. Available at: https://doi.org/ https://www.jstor.org/stable/43951025.

[2] Ahmad, S.E.U. (2017) “CUSTOMARY PRACTICES AND MUSLIM PERSONAL LAW IN COLONIAL

INDIA,” Indian History Congress, 78, pp. 643–651. Available at: https://doi.org/ https://www.jstor.org/stable/10.2307/26906136.

[3] Subramanian, N. (2008) “Legal Change and Gender Inequality: Changes in Muslim Family Law in India,” Wiley on behalf of the American Bar Foundation, 33(3), pp. 631–672. Available at: https://doi.org/https://www.jstor.org/stable/20108777.

[4] Patna Law College (n.d.) “Divorce under Hindu Law,” Patna Law College [Preprint]. Available at: https://www.patnalawcollege.ac.in/econtent/1604508999217.pdf (Accessed: March 12, 2023).

[5] Ibid 4

[6] Ibid 4

[7] Ibid 4

[8] Ibid 4

[9] Ibid 4

[10] Ibid 4

[11] Ibid 4

[12] Ibid 4

[13] Section 13 (1) (a) Hindu Marriage Act, 1955

[14] Kumar, V. (2022) “Comparative Study Of Matrimonial Laws Of Hindu And Muslim,” International Journal of Creative Research Thoughts (IJCRT), 10(8), pp. 845–853. Available at: https://ijcrt.org/papers/IJCRT2208465.pdf (Accessed: March 12, 2023).

[15]Section 13(1)(a) of the Hindu Marriage Act, 1955.

[16] Supra 14

[17] Section 13(1)(b) of the Hindu Marriage Act, 1955.

[18] Supra 14

[19] Supra 14

[20] Supra 14

[21] Section 13(1)(iv) of the Hindu Marriage Act,1955.

[22] Supra 14

[23] Supra 14

[24] Supra 14

[25] Supra 14

[26] Supra 14

[27] Section 13(2)(i) of the Hindu Marriage Act, 1955.

[28] Supra 14

[29] Section 13(2)(ii) of the Hindu Marriage Act, 1955.

[30] Supra 14

[31] N.G. Dastane v. S. Dastane (1975) 2 SCC 326.

[32] N.G. Dastane v. S. Dastane (1975) 2 SCC 326.

[33] Smt. Sureshta Devi vs Om Prakash 1991 SCR (1) 274.

[34] Swapna Ghosh vs Sadananda Ghosh And Anr. AIR 1989 Cal 1

[35] Supra 14

[36] Supra 14

[37] Supra 14

[38] Supra 14

[39] Supra 14

[40] Supra 14

[41] Supra 14

[42] Supra 14

[43] Ahmad, F. (2003) “UNDERSTANDING THE ISLAMIC LAW OF DIVORCE,” Indian Law Institute,

45(3/4), pp. 484–508. Available at: https://doi.org/ https://www.jstor.org/stable/43951877.

[44] Ibid 43

[45] Supra 43

[46] Supra 43

[47] Ahmed Kasim v. Khatoon Bibi AIR 1933 Cal 27.

[48] Sarabai v. Rabiabai (1906) 8 BOMLR 35.

[49] Saiyid Rashid Ahmad vs Mussammat Anisa Khatun (1932) 34 BOMLR 475.

[50] Asha Bibi vs Kadir Ibrahim Rowther 3 Ind Cas 730.