How To End Marriage In India?

How To End a Marriage in India

Marriage is one of the oldest establishments in our country. It is one of the ten most important religious sacraments of the Hindu’s. It plays a very important role in the social life of a Hindu and has no doubt become an obligatory duty.

In a Hindu marriage, a father gives his daughter to a sound groom who then is the daughter’s husband and will take care of her, this form of marriage has been entrenched since the Vedic period.

A Muslim marriage is a civil contract and is not anyway related to religion. The nature of Muslim marriages is very different from that of a Hindu marriage. Marriage in the Muslim law has an aim of the unity of two sexes to form a family.

Just like Hindu’s marriage is known as a sacrament in Christianity also. It is considered as a relationship which is not dissolvable. According to Christianity God is the creator of marriage, and lays the plan of marriage as a lifelong union.

Concept of Marriage

Hindu Marriage Act,1955 not only applies to Hindu’s but also to Sikhs, Jain’s, and Buddhists also. This Act makes marriage neither a binding religious duty nor a pure sacrament anymore. When two individuals get married they develop some responsibilities towards each other which can only be dissolved when the marriage ends. For a valid Hindu marriage, there are a few essentials such as:

  1. Neither the husband nor the wife should have an existing spouse at the time.
  2. Neither party should be incapable of giving a valid consent due to unsoundness of mind or has been suffering from a mental disorder which makes him/her unfit for marriage and procreation of a child or has been subject to recurrent attacks of insanity or epilepsy.
  3. The bride should have attained the age of 18 years and the groom should have attained the age of 21 years.
  4. The parties should not be within the degree of prohibition unless there is a custom or usage which permits it.
  5. The parties to the marriage shouldn’t be a Sapinda of each other.

A Muslim marriage is also known as ‘nikah’ which means union of sexes. Essentials of a Muslim marriage are in many ways similar to the essentials of contracts, such as:

(a) Proposal and Acceptance: One of the parties should make a proposal (Ijab) and the other party should accept the proposal (Qubul), and this ceremony should take place in one meeting.

(b) Competency of parties: This includes three components such an

  • Being a major
  • Being a Muslim
  • Being of sound mind.

(c) consent should be given by both parties.

(d) Dower: Also called ‘mahr’ is the amount of money to be given to a bride by the bridegroom as a consideration of marriage.

The parties should be free from legal disability.

End of Marriages

In a Hindu marriage, the petition of divorce can be filed if a year of marriage is completed. When the dissolution of marriages takes place their dissolution of the conjugal responsibilities between the wife and husband but certain rights such as maintenance and responsibility towards their child will continue.

In Hindu marriage restitution of conjugal rights takes place with the help of section 9 of the Hindu Marriage Act,1955. It basically provides that when either of the spouses has unreasonably withdrawn from the society of the other and the court is satisfied with the statements being true then there can be restitution provided there is no legal ground that the application shouldn’t be granted. There is no such rule that husband and wife cannot live separately with mutual understanding and regular relationships. Withdrawal from society shouldn’t compulsorily be physical, it is also recognized as a mental aspect too. ‘Reasonable excuse’ is decided to depend on the circumstances the couple has been through.

Hindu Marriage Act recognizes judicial separation through section 10. Judicial separation does not terminate the marriage but puts an end to the conjugal rights.

Section 13 the Act deals with the divorce and it provides various grounds for it. This section is based on the fault theory, which basically means that one of the parties has to prove that the other party has committed a fraud. There are specific grounds on which people acquire a divorce, such as:

  1. Adultery: When either of the spouses has sexual intercourse with anyone else other than the person they are married to is adultery.
  2. Cruelty: The court recognizes both mental and physical cruelty as a ground of divorce. It depends on the courts to decide whether there is cruelty established or not based on the grounds of facts of the case.
  3. Desertion: One of the partners has to desert the other for not less than two years. The proof of desertion is always on the petitioner.
  4. Conversion: If the petitioner proves to the court that the other party has converted from Hindu to a non-Hindu religion such as Christianity or Islam then on this ground a divorce can be permitted.
  5. Unsoundness of mind: When a person can’t be expected to live with the petitioner with reasons such a mental illness which can be temporary or permanent. There has to be evidence provided to prove the illness by the party seeking a divorce.

Divorce by mutual consent is provided in section 13 B which basically says that a divorce can be filed mutually when they have been living separately for a year and have themselves decided that the marriage should be dissolved.

In Muslim law “Talaq” is a practice that implies the inability of the parties to live together. Under Muslim law, a marriage can be dissolved either by the death of the husband or wife or by divorce. Talaq may be given either by a Muslim husband or wife. A Muslim Man can reject his wife at his own will, with or without any cause but the wife cannot divorce herself from her husband without his consent. Generally, both the parties have an option for divorce but, the right of husband is considered to be greater than the wife has the option of purchasing her divorce from her husband by delegation or Tafweez. Marriage may also be dissolved by judicial decree.

Modes of divorce in Muslim law can be classified into four types

  • Talaq -ul-Sunnat-  it is a talaq which is in accordance with the traditions of the prophet. It is a more approved form of divorce. It can further be subdivided into two types-
  • Talaq Ahsan- it is the most approved form of talaq. In talaq Ahasan the husband must pronounce the formula of divorce in a single sentence, the pronouncement of divorce must in the period when a woman is free from her menstrual cycle (tuhr) and the man should abstain from intercourse for the period of iddat.
  • Talaq Hasan-it is considered as a good mode of talaq. In Talaq Hasan there must be three successive pronouncements of divorce, In the case of the menstruating wife, the first pronouncement should be made during tuhar and the second and the third during the successive tuhar. In the case of a non-menstruating wife, the pronouncement should be made during the successive intervals of 30 days and there should be no sexual intercourse during these three phases of tuhar.
  • Talaq-ul-Biddat- it is considered as a disapproved mode of talaq and is considered as a sinful form of divorce. It is a reorganized form of talaq among the Hanafis but is not recognized by Shias and Malikis.

The honourable Supreme Court of India declared the practice of triple talaq to be unconstitutional being against article 14 of the constitution of India.

Talaq-e-Tafwiz- Divorce by wife-It is also known as delegated divorce in Islam the husband can delegate his right of divorce to any third person or to the wife herself.

By mutual consent- there are two types of divorces by mutual consent in Muslim law:

Khula: it is the right which is bought by the wife from her husband. She basically gives consideration to her own husband to get out of the marriage.

Mubarat: it is the divorce by the consent of both parties. Both Khula and Mubarat are irrevocable in nature. In India divorce and separation are perceived to be relatively rare events. While quantitative data are lacking, there is a rich multi-disciplinary literature on various aspects of marital stability in India. Marriage among better-educated women is more durable and the difference between less-educated and better-educated women has widened over time. Ending a marriage in India is still a taboo in various places affecting the lives of people involved.

So there might be many legal and moral grounds for ending a marriage in India but what still remains a question of society is not it’s a legal aspect but how it is accepted in the country.

This article is written by Sanjana Gupta student of B.A.LL.B(Hons.) at Hidayatullah National Law University

Also Read: Concept Of Iddat Under The Muslim Law           

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