Legal Aspects of Marriage and Divorce inIndia: A Comparative View across Religions

Introduction

Traditionally, marriage in India is reckoned as more than simply a private arrangement between two people as it may, in different communities, be a religious institution, a social institution, a legal arrangement, or a combination of any of those. Recognizing this multiplicity of meaning, different communities in India are governed by personal laws that are unique to them, rather than one common legal framework. There are options like the Special Marriage Act (1954)[1] in India which allows for a common secular event and subsequently same treatment by law. In a similar fashion, Article 44 of the Constitution of India recognizes this pluralism but also imposes an aspiration for a Uniform Civil Code[2] This plurality, or dual nature of Indian marriage law offers both room to move for diverse communities in India but also friction, and is particularly relevant to this issue when we consider divorce which continues to hold stigma even as acceptance widens in law[3]

This article will explore the different laws about marriage and divorce in India, comparative between the relevant statutory provisions under Hindu, Muslim, Christian, Parsi and the secular Special Marriage Act. It will also discuss case law, socio-cultural hurdles and the current existential debate of a need for a common approach.

Legal Framework of Marriage in India

Hindu Marriage

The Hindu Marriage Act, 1955 (HMA), applies to Hindus, Buddhists, Jains and Sikhs[4]. Traditionally, Hindu Law held that marriage was a sacramental rite, indissoluble [5]. This concept is included in effective legislation via Section 5 of the HMA, which sets out important provisions. The HMA requires that neither party to the marriage shall have a spouse legally living at the time of the marriage, that both parties achieve the required minimum age (21 years for male, 18 years for female), that consent was free and capable of being valid, and that marriage must not take place within degrees of prohibited degrees, or within sapinda relationships. Even the tradition of saptapadi is still ceremonially important[6]. Under the HMA polygamy is illegal, and punishable under Section 494 of the IPC[7]. Thus, Hindu law today is a combination of gender practices, legal traditions, and statutory reform.

Muslim Marriage

Muslim marriage is regulated by the requirements of the uncodified Shariat, even though the Muslim Personal Law (Shariat) Application Act, 1937, affirmed its application[8]. Under Muslim personal law, marriage or nikah is regarded as a civil contract, marked by ijab (offer) and qubool (acceptance), witnesses, and the specification a dower (mehr)[9]. As with Hindu law, Muslim law does allow for polygamy, with men allowed up to four wives, so long as the husband treats the wives equally[10]. The practice, although recognized/deemed legally valid, earned criticism for its effect on treatment of women[11]. Registration of marriage is not an obligatory element of the ceremony under Muslim law; however registered marriage is continuously encouraged[12].

Christian Marriage

The Indian Christian Marriage Act, 1872 governs Christian marriage[13]. A valid Christian marriage must be solemnized by a priest or minister and duly registered. It is regarded as a religious sacrament and a legal union[14]. The Act recognizes only parties that profess to be adherents of the Christian faith; therefore interfaith marriages must resort to the Special Marriage Act. It upholds the religious solemnity of marriage but incorporates the state onto the process[15].

Parsi Marriage

The Parsi Marriage and Divorce Act, 1936 governs the Parsi sect[16]. A valid Parsi marriage requires that the Ashirwad ceremony is performed before a priest and at least two witnesses. The Act provides a set of requirements specific to the community but codifies these with detail stopping short of codifying these requirements into those of annulment and divorce[17].

The Special Marriage Act, 1954

The Special Marriage Act is intended to be a legal vehicle for a marriage, regardless of religion, and provides an option for couples that want a civil marriage that could be inter-caste or interfaith[18]. It treats marriage as a contract. The parties give notice to the Marriage Officer, the Marriage Officer publishes the notice so that anyone can object, the marriage is then solemnized by the officer. However, one criticism of the Special Marriage Act is the 30-day length of time in which the public is given to find out about the proposed marriage and intervene which exposes couples to potential harassment or violence[19]. The Special Marriage Act is secular, unlike the personal laws that accompany marriage, there is no religious ceremony, and there are some procedural requirements, but the practical element is “a marriage is a marriage, and you should want to be legally married”[20].

Divorce under Different Personal Laws

Hindu Divorce

Traditional Hindu law did not recognize divorce, however, the HMA, 1955, provided statutory grounds for divorce in section 13: adultery, cruelty, desertion, conversion, mental disorder, venereal disease, renunciation, and presumption of death [21]. Section 13(2) also provided further grounds, specific to a wives divorce, which included bigamy and the husband being convicted of a sexual offence [22]. The Act also created:

Judicial Separation (s.10), which allowed the husband and wife to “live apart” without dissolving their marriage [23].

Divorce by Mutual Consent (s.13B), which was added by the Marriage Laws (Amendment) Act, 1976 [24].

In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that a six-month cooling-off period in s.13B(2) could be dispensed with, in compelling circumstances [25].

Divorce in Muslim Personal Law  

Various kinds of divorce exist under Muslim law. For example, there are:

1. Talaq-e-Ahsan (revocable single pronouncement);
2. Talaq-e-Hasan (three successive pronouncements at monthly intervals);
3. Talaq-e-Biddat (in instant form as ‘triple talaq’) this form of divorce was deemed unconstitutional by the Supreme Court in Shayara Bano v. Union of India (2017)[26];
4. Khula (divorce unilaterally initiated by the wife with consideration being paid to the husband);
5. Mubarat (divorce undertaken by mutual consent);
6. Faskh (judicial divorce that may be granted under the Dissolution of Muslim Marriages Act, 1939)[27].

Maintenance for Muslim women were limited to the iddat period, however in Danial Latifi v. Union of India (2001) the Supreme Court held that reasonable maintenance must be paid by the husband that continues beyond the iddat period[28]. The Muslim Women (Protection of Rights on Divorce) Act, 1986 was placed under construction in conformity with their constitutional rights in Danial Latifi v. Union of India[29].  

Divorce in Christian Personal Law  

The Indian Divorce Act, 1869 created inequality in the standards of divorce available to husbands and wives; husbands could petition for divorce based upon adultery alone whereas wives were obliged to show the husband committed adultery and was cruel or deserted her[30]. The Indian Divorce Act, 1869 was subsequently amended in 2001 such that the divorce was equal, and mutual consent divorce was included[31]. Grounds for divorce include adultery, cruelty, desertion, conversion, unsoundness of mind, and venereal disease[32]. Courts have shown more concern over the principles of gender equality promoted through Christian personal law[33].

Parsi Divorce 

The Parsi Marriage and Divorce Act, 1936 has ten grounds for divorce, mostly the same as Hindu law, such as adultery, cruelty, desertion, unsoundness of mind, venereal disease, etc.[34]. Section 32B added in 1988 allows for divorce by mutual consent[35]. The Act has an intensely community-oriented focus demonstrating the insular nature of Parsi personal law[36]. 

Secular Divorce under Special Marriage Act

Grounds for divorce under Special Marriage Act are similar to HMA: adultery, cruelty, desertion, mental disorder, venereal disease, presumption of death, and conversion[37]. Mutual consent is also a basis for divorce under the Special Marriage Act[38]. Alimony, custody, and child welfare are decided under general family law principles with possibly some preferential treatment for Muslims[39]. However, while Special Marriage Act is the most egalitarian mechanism for ending marriage based on the available literature, the social story for the couple may be similar or worse than inter-religious marriages[40].

Comparative Analysis 

The comparative study of marriage and divorce laws demonstrates both diversity and disparity

• Nature Of Marriage; under Hindu law marriage is a sacrament; under Muslim law, a contract; under Christian and Parsi law, a sacrament with a conjoined legal duty; and under the Special Marriage Act, only describes and treats marriage as an exclusive contract [41].
• Polygamy is found only in Muslim law; it is punishable in all other laws under IPC s.494 [42].
• Divorce was recognized by modern statutes to include divorce across communities, however Hindu law only recognized divorce at a much later date[43].
• Mutual Consent is now recognized under every law, though the procedures vary[44].
• Although Gender Equality is far from equal, the malaise remains consistent under all marriage laws, including misogonistic unilateral talaq valid under Muslim law[45].

Socio-Cultural Dimensions and Gender

Even with a number of legal changes in the past few decades, divorce still packs a social punch and is especially stigmatizing to women; while research shows women who get divorced are often blamed, financially vulnerable and sad[46]. Patriarchal norms regularly curtail women’s decision-making regarding divorce in spite of legal entitlements[47]. Important cases, such as Joseph Shine v. Union of India 2018 – which decriminalized adultery[48], and Shayara Bano (2017), which struck down triple talaq, show the role of the judiciary as activist on behalf of gender justice[49]. While the presence of polygamy, halala, and unequal inheritance stand in stark contrast to equal treatment promised in the Constitution’s Articles 14 and 15, wife’s rights in a marriage are continuously denied by society and, in some cases, law[50].

Towards an Uniform Divorce Law Mechanism

The legal framework’s fragmentation has prompted scholars and courts to call for greater uniformity [52]. Article 44 allows for a UCC, but the risk of interfering with cultural autonomy remains [53]. In Sarla Mudgal v. Union of India (1995), the Supreme Court suggested the need for a UCC to limit conflict between conflicting personal laws [54].

Several recent scholars suggest a uniform divorce law, if not a UCC, should establish the standardization of the divorce process and uphold the rationale of eliminating the risk of violence towards women through a notion of gender justice, while allowing for various forms of the notion of diversity [55]. Adv. Jain, Suman emphasized the need to standardize laws on divorce as this will limit litigation and allow the issues of equality to be dealt with in all types of divorce [56].

Conclusion

The contrast between the marriage and divorce laws in India confirms the wealth of pluralism, and the corresponding challenges it presents. Hindu, Christian and Parsi law has undergone some changes towards equity, while Muslim law is still highly contested primarily in terms of gender justice. The Special Marriage Act does however provide a secular alternative and has its own operational limitations. Moving forward reforms should seek to promote harmony, gender justice and ease of process. Instead of seeking ‘uniformity’, a gradual convergence through judicial interpretation and legislative reform would likely best offset the value of religious freedom against that of constitutional equality.

References:

1. Nalanda Badekar, ‘Comparative Study of Marriage Laws in India’ (2025) 12(6) Journal of Emerging Technologies and Innovative Research (JETIR) http://www.jetir.org/ 
2. Constitution of India, Article 44.
3. Olivia Tito, ‘Marriage and Divorce: Women’s Experiences with the Legal System, Socio-cultural Norms and Religion’ (2024) 7(9) International Journal of Social Science Research and Review 244 http://dx.doi.org/10.47814/ijssrr.v7i9.2348 14.
4. Hindu Marriage Act 1955.
5. Richa Saxena, ‘Religion, Marriage and Law’ (2021) 8(1B) Kanpur Philosophers: International Journal of Humanities, Law and Social Sciences 477 https://www.researchgate.net/publication/380575473_RELIGION_MARRIAGE_AND_LAW 15.
6. Hindu Marriage Act 1955, s 5.
7. Indian Penal Code 1860, s 494.
8. Muslim Personal Law (Shariat) Application Act 1937.
9. Unsaathi, ‘A Comparative Legal Study on Divorce Laws in Different Religions’ (Unsaathi, 19 March 2025) https://www.unsaathi.com/16.
10. Ibid.
11. Suman Dinesh Jain, ‘Uniform Divorce Mechanism in India: Evaluating the Legal Landscape’ (2024) 1(1) Sarvalokum: Law and Society 2 18.
12. Badekar (n 1).
13. Indian Christian Marriage Act 1872.
14. Shaili Mazoomdar, ‘Understanding Marriage and Divorce Laws in India: A Comprehensive Guide’ ETLegalWorld(20 March 2025) 13.
15. Ibid.
16. Parsi Marriage and Divorce Act 1936.
17. Badekar (n 1).
18. Special Marriage Act 1954.
19. Saxena (n 5).
20. Badekar (n 1).
21. Hindu Marriage Act 1955, s 13.
22. Hindu Marriage Act 1955, s 13(2).
23. Hindu Marriage Act 1955, s 10.
24. Marriage Laws (Amendment) Act 1976.
25. Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746.
26. Shayara Bano v. Union of India (2017) 9 SCC 1.
27. Dissolution of Muslim Marriages Act 1939.
28. Danial Latifi v. Union of India (2001) 7 SCC 740.
29. Muslim Women (Protection of Rights on Divorce) Act 1986.
30. Indian Divorce Act 1869.
31. Act 51 of 2001 (amending Indian Divorce Act).
32. Unsaathi (n 9).
33. Jain (n 11).
34. Parsi Marriage and Divorce Act 1936, s 32.
35. Parsi Marriage and Divorce Act 1936, s 32B.
36. Badekar (n 1).
37. Special Marriage Act 1954, s 27.
38. Ibid, s 28.
39. Mazoomdar (n 14).
40. Saxena (n 5).
41. Badekar (n 1).
42. IPC 1860, s 494.
43. Tito (n 3).
44. Unsaathi (n 9).
45. Jain (n 11).
46. Tito (n 3).
47. Ibid.
48. Ibid.
49. Joseph Shine v. Union of India (2018) 2 SCC 189.
50. Shayara Bano (n 26).
51. Constitution of India, Arts 14–15.
52. Jain (n 11).
53. Constitution of India, Art 44.
54. Sarla Mudgal v. Union of India (1995) 3 SCC 635.
55. Jain (n 11).
56. Ibid.