A divorce is the most disturbing event for any couple. The entire procedure of separation which begins from dealing with emotional trauma to fighting in the dreadful Courts for getting a divorce decree is obviously a difficult episode to overcome.
However, with the advancement of laws and social awareness,the divorce procedure has been simplified in India to help couples come out of unwanted relationships.
In India, marriage and divorce are governed by Personal Laws. Personal laws are connected to religion of the people. For Hindus, Buddhists, Sikhs and Jains divorce is governed by the Hindu Marriage Act, 1955. The Muslim, Christian and Parsi communities, on the other hand, have different laws governing marriage and divorce. For couples belonging to different communities and castes, marriage and divorce are governed by Special Marriage Act, 1956. There is also the Foreign Marriage Act, 1969, governing divorce laws in marriages where either spouse is from a different nationality.
In India, divorce can obtain in two ways
- Divorce by mutual consent
- Divorce without mutual consent, i.e. contested divorce
Divorce by Mutual Consent
In situations where both husband and wife are willing to end the marriage, they can opt for mutual consent divorce. Both the husband and wife agree to a peaceful separation. Mutual Consent Divorce is the simplest way of dissolving the marriage legally. The only ingredient is the mutual consent of each of the spouse. The only two aspects on which the couple has to reach consensus is alimony or maintenance and the child custody. As per the law, there is no minimum or maximum limit set for maintenance. This amount can be worked out effectively between the parties. Child custody in Mutual Consent Divorce can be exclusive or joint depending on the understanding of the couple.Section- 13 (B) of the Hindu Marriage Act states that the parties can seek divorce by mutual consent by filing a petition before the Family Court.
As per Section 19 of the Hindu Marriage Act, 1955 you file the divorce petition before a Civil Court of a District in the following jurisdictions
- Where the couple seeking divorce last resided together
- Where the marriage took place
- Where the wife is residing at present
- Where the respondent(opposite party) is residing at the time of presentation of the petition.
The District Court here implies the Family Courts that are established under the Family Courts Act, 1984.
Divorce without mutual consent
In case of a contested divorce, certain specific grounds are required to be fulfilled before filing of a petition. The reasons for divorce are as follows although not all are applicable to all religions.
Cruelty can be physical or mental. According to the Hindu Divorce Laws in India, if one spouse has a reasonable fear in the mind that the partner’s conduct in all likelihood be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.
Under Indian laws, if a man who commits adultery (consensual sexual intercourse outside of marriage) can be punished with a criminal offence. The wife may, also, file for divorce as another remedy. However, if a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.
If either spouse is incapable of performing the normal duties expected in a marriage because of any mental illness then it becomes a valid ground for divorce.
A spouse leaving/ abandoning the other without reasonable cause is a valid ground for divorce. However, the spouse who abandons the other should do so to desert and there should be evidence of it. For instance, as per Hindu laws, the desertion must last for at least two(2) continuous years.
Under the Hindu Divorce Laws, if a spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy then it is a valid ground for divorce.
Presumption of Death
If either of the spouses has not been heard of by the other spouse as being alive for a period of at least seven years, then the spouse who is alive can obtain a divorce.
If a spouse converts to another religion then the partner can seek divorce. This reason does not require any time limit to have passed before divorce can be filed.
Renunciation of the World
If either of the spouses surrenders his or her married life and chooses to be a Sanyas or Sanyasi, the aggrieved spouse may obtain a divorce on this ground.
Unsoundness of mind
Prior to the Marriage Laws (Amendment) Act 1976, a petition for divorce might be presented by a spouse on the ground (a) that the respondent had been incurably of unsound mind, and (b) that the respondent had been so for a continuous period of not less than three years immediately before the filing of the petition
Documents Required To File A Petition For a Divorce
- Marriage certificate
- Address proof of wife
- Address proof of husband
- Address of matrimonial home
- 4 passport size photographs of marriage
- Evidence proving couple has been living separately for more than 1 year
- Evidence relating to the failed attempts of reconciliation
- Income tax statements for the last 2-3 years
- Details of profession and present salaries
- Information about family of both the spouses
The following grounds shall render a marriage void/ illegal:
The offence of marrying someone while already married to another person is bigamy. The subsequent marriage is an illegal marriage. It is void-ab-initio and non-existent.
Lineal ascendants are to be seen from both sides, i.e. from the father’s side as well as from the mother’s side. So,both the father and mother are lineal ascendants fall in degrees of disallowed relationships.
Presuming A to be a boy. Since he is regarded as one generation, relatives falling in four more generations upwards from him from the side of his father shall be his Sapinda relations. Therefore, A’s father, A’s grand-father, A’s great grand-father and the father of A’s great grand-father shall all be A’s Sapinda relations. But on the mother’s side, this chain is to be extended to only three generations that include A.
Therefore, A’s mother and A’s maternal grand-mother only, shall be A’s Sapinda relations from the mother’ side, ‘A’ himself being one generation. Marriages of such relationships are void.
The Provisions Relating To Child Custody
Courts generally agree to the decision of the parents in a mutual consent divorce, however, the Courts are supposed to see to the best interest of the child.
In a contested divorce, the courts examine the ability of the parents of the child. For instance, money is not the most important factor that is considered, non-working mothers are often given custody of the child with the father expected to provide financial assistance.
Jurisdiction of Court
Section 19 of the Hindu Marriage Act deals with the jurisdiction of the Court in which a petition under this Act shall be presented. But a question arises as to whether an aggrieved party to a Christian marriage who is a Hindu can initiate proceedings under the Act for dissolution of marriage by a decree of divorce under Section 13 of the Act. It is held that a petition for such relief is not maintainable under this Act even if one of the parties to the marriage is a Hindu. The test to attract the jurisdiction of the Court under this Act is whether the marriage is a Hindu marriage under Section 5 of the Act and both the parties to the marriage are Hindus and the solemnization of the marriage is done in accordance with the provisions of Section 7 of the Act
Ex parte divorce decree passed in a foreign court, effect thereof.
The husband in a case filed a petition for divorce in a foreign court. The wife had no means to contest the proceedings there. It was held that non-contesting of proceedings by the wife would not mean that she conceded the jurisdiction of the court. Thus an ex parte decree passed against her is violative of the principles of natural justice and as such a nullity. Subsequent petition for divorce by the wife in India on the ground of adultery cruelty and desertion is not barred by the principles of estoppel or from res judicata because she had accepted maintenance under the foreign judgment.
Modes of Divorce in Muslim
A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally this done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq only in form, not in substance. A wife cannot divorce her husband of her own accord. She can divorce the husband only when the husband has delegated such a right to her or under an agreement. Under an agreement the wife may divorce her husband either by Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the Court.
There are two categories of divorce under the Muslim law:
- 1.Extra judicial divorce
- 2.Judicial divorce
The category of extra judicial divorce can be further subdivided into three types, namely,
- By husband- talaaq, ila, and zihar.
- By wife- talaaq-i-tafweez, lian.
- By mutual agreement- khula and mubarat.
The second category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.
Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it means “setting free”, “letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words. In other words, talaaq is repudiation of marriage by the husband in accordance with the procedure laid down by the law.
The following verse is in support of the husband’s authority to pronounce unilateral divorce is often cited:
Men are maintainers of women, because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower) . When the husband exercises his right to pronounce divorce, technically this is known as talaaq. The most remarkable feature of Muslim law of Talaaq is that all the schools of the Sunnis and the Shias recognize it differing only in some details. In Muslim world, so widespread has been the talaaq that even the Imams practised it. The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband should pronounce talaaq; how he does it, when he does it, or in what he does it is not very essential.
Conditions for a valid talaaq
Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce talaaq.It is not necessary for him to give any reason for his pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then talaaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce talaaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a Judge has the right to dissolve the marriage in the interest of such a husband.
Except under Hanafi law, the consent of the husband in pronouncing talaaq must be of a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.
Talaaq pronounced under forced or involuntary intoxication is void even under the Hanafi law.
Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.
Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by the husband or he may write a Talaaqnama. No specific formula or use of any particular word is required to constitute a valid talaaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses.
According to Shias, talaaq, must be pronounced orally, except where the husband is unable to speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here talaaq must be pronounced in the presence of two witnesses.
The words of talaaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.
- Express Talaaq (by husband)
- When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express talaaq, falls into two categories:
- Talaaq-i-sunnat has two forms
- Talaaq-i-ahasan (Most approved)
- Talaaq-i-hasan (Less approved)
Talaaq-i-sunnat is considered to be in accordance with the dictates of Prophet Mohammad.
The ahasan talaaq: consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has not been consummated. The advantage of this form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may effected expressly or impliedly.
Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says I have retained thee” the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also results in the revocation of divorce.
The Raad-ul-Muhtar puts it thus: “It is proper and right to observe this form, for human nature is apt to be mislead and to lead astray the mind far to perceive faults which may not exist and to commit mistakes of which one is certain to feel ashamed afterwards.”
The hasan talaaq
In this the husband is required to pronounce the formula of talaaq three time during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the talaaq, becomes final and irrevocable.It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr. Example: W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the first pronouncement by express words. Then again, when she enters the next period of purity, and before he indulges in sexual intercourse, he makes the second pronouncement. He again revokes it. Again when the wife enters her third period of purity and before any intercourse takes place H pronounces the third pronouncement. The moment H makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat.
It came into vogue during the second century of Islam. It has two forms: (i) the triple declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is condemned. It is considered heretical, because of its irrevocability.
Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.
In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc.The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete.
After the expiry of fourth months the wife has following rights
- She may go to the court to get a decree of judicial divorce
- She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. It can be revoked if:
- The husband observes fast for a period of two months, or,
- He provides food at least sixty people, or,
- He frees a slave.
According to Shia law Zihar must be performed in the presence of two witnesses.
Divorce by Mutual Agreement
Khula and Mubarat
They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. A verse in the Holy Quran runs as: “And it not lawful for you that ye take from women out of that which ye have given them: except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the woman ransom herself.” The word khula, in its original sense means “to draw” or “dig up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other.
In law it is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the ground that the consideration has not been paid. The consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations comes to an end.
The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words.Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.
Divorce by wife
The divorce by wife can be categorized under three categories
- By Dissolution of Muslim Marriages Act,1939
Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently.A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”.
This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy . It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce.
If the husband levels false charges of unchastity 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. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian. This was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court.
Dissolution of Muslim Marriages Act,1939
Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It however became law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages Act,1939.
Section 2 of the Act runs thereunder
A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, namely:
- That the whereabouts of the husband have not been known for a period of four years: if the husband is missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides that where a wife files petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issues notices to all such persons appear before it and to state if they have any knowledge about the missing husband. If nobody knows then the court passes a decree to this effect which becomes effective only after the expiry of six months. If before the expiry, the husband reappears, the court shall set aside the decree and the marriage is not dissolved.
- That the husband has neglected or has failed to provide for her maintenance for a period of two years: it is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground. A husband may not maintain his wife either because he neglects her or because he has no means to provide her maintenance. In both the cases the result would be the same. The husband’s obligation to maintain his wife is subject to wife’s own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her own conduct disentitles her from maintenance under Muslim law.
- That the husband has been sentenced to imprisonment for a period of seven years or upwards: the wife’s right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court.
- That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: the Act does define ‘marital obligations of the husband’. There are several marital obligations of the husband under Muslim law. But for the purpose of this clause husband’s failure to perform only those conjugal obligations may be taken into account which are not included in any of the clauses of Section 2 of this Act.
- That the husband was impotent at the time of the marriage and continues to be so: for getting a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of marriage on the ground of impotency. The husband made an application before the court seeking an order for proving his potency. The court allowed him to prove his potency.
- If the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral disease: the husband’s insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be white or black or cause the skin to wither away. It may be curable or incurable. Veneral disease is a disease of the sex organs. The Act provides that this disease must be of incurable nature. It may be of any duration. Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground.
- 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
- That the husband treats her with cruelty, that is to say
- Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical illtreatment, or
- Associates with women of ill-repute or leads an infamous life, or
- Attempts to force her to lead an immoral life, or
- ) Disposes of her property or prevents her exercising her legal rights over it, or
- Obstructs her in the observance of her religious profession or practice, or
- If he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.
In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give her money provided she married him. She did. Later she filed for divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce on the ground of cruelty. Thus we see the court’s attitude of attributing a wider meaning to the expression cruelty. In Zubaida Begum v. Sardar Shah, a case from Lahore High Court, the husband sold the ornaments of the wife with her consent. It was submitted that the husband’s conduct does not amount to cruelty.
Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law. In 1945 in Umar Bibi v. Md. Din , it was argued that the wife hated her husband so much that she could not possibly live with him and there was total incompatibility of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux, again an attempt was made to grant divorce on the ground of irretrievable breakdown of marriage. This time the court granted the divorce. Thus in Muslim law of modern India, there are two breakdown grounds for divorce: (a) non-payment of maintenance by the husband even if the failure has resulted due to the conduct of the wife, (b) where there is total irreconcilability between the spouses.
Custody of Child Under Muslim Law
The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. This right is known as right of hizanat and it can be enforced against the father or any other person. The mother's right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right''
'Son—''Among the Hanafis, it is an established rule that mother's right of hizanat over her son terminates on the latter's completing the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis the mother's right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.''
Daughter- Among the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother's right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7. The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate.Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father.
In the absence of both the parents or on their being disqualified the grandfather is entitled to custody. Among the Malikis following females are entitled to custody in the absence of mother:
- Maternal Grandmother
- Maternal Great Grandmother
- Maternal Aunt and Great Aunt
- Full sister
- Uterine sister
- Consanguine sister
- Paternal aunt
Divorce under Christian Law
Indian Divorce Act 1869,deals with the laws governing divorce among Christian there has been criticism about the title of the Act.Since it only governs divorce among Christian community in India .In 2001, by the Amendment the word the Indian was dropped but still it seems incompleteas in other other Personal Law Statues religion has been specified. eg:Hindu Marriages Act 1955.the Muslim Personal Law (Shariat) application 1937,Indian Christian Marriage Act 1872
According to Section 2 of the Act for filing a suit for divorce one of the parties to be Christian and both the parties must bea domicile in India at the time of filing of the petition.In case of any of the parties is not domiciled in India the cease to have jurisdiction to look in to the matter
In case of Dalal v Dalal (AIR 1930) Bombay,385, it was held that when wife is a Russian Christian and husband is a Parsi by religion the Court has jurisdiction to try wife’s petition for restitution.
Scenario before and after Indian Divorce Amendment Act, 2001
Prior to the 2001, Indian Amendment Act the grounds for divorce for Indian Christian men and women are Different husbands had only one ground i.e adultery where wife were given several grounds adultery bigamy sodomy,rape etc.These provisions were criticized and termed and outdated rudimentary and sluggish and also considered as violative of fundamental rights as provided under Ar 14,15 and art 21 of the constitution.Even these provisions are not at par with the concerned provisions under Special Marriage Act 1954 and other statues are different from personal laws
In case of Mary Sonia Zachariah v Union of India in 1990 (DMC Kerala ) held that Section 10 of the Act is opposed to Article 14 ,15 and 21 of the Constitution of India as it denies the equality among men and women and it is also a discrimination and it also denies a right of Christian wife which denies the basic right of dignity and fair treatment.Based on such adequancies in the provisions of Section 10 of the Act were several objections were raised by such community which held to Amendment Act of 2001.Within this amendment the ground of divorce are made with consonance with the Special Marriage Act, 1954 and other personal laws relating to marriage and divorce.Common grounds for divorce were formulated for both husband and wife.The amendment has both retrospective and prospective effect and restricts the jurisdictions of the Courts since only the District Courts have only original jurisdiction for adjudicating a divorce petition.
Under Section 10 of the Indian Divorce Act, a husband can seek divorce on the ground that after solemnization of marriage the wife has been guilty of adultery.
A wife, however, may file petition for divorce on any of the following grounds
- Husband has changed his religion and started professing some other religion than Christianity.
- Husband has married another woman.
- Husband has been guilty of incestuous adultery, meaning unlawful intercourse between relatives or between persons who are closely related.
- Husband has committed bigamy with adultery, meaning adultery with the same woman bigamy was committed.
- Husband has married another woman with adultery.
- Husband has committed rape, sodomy or bestiality.
- Adultery coupled with cruelty.
- Adultery coupled with desertion, without reasonable excuse for more than two years
Under Divorce Law in India, Sec. 19 of the Indian Divorce Act lays down specific grounds on which a decree can be obtained to the effect of declaring the marriage as null and void;
- Husband or Wife impotent at the time of marriage and at the time of institution of suit.
- Parties are within prohibited degrees of consanguinity or affinity.
- Either party is a lunatic or idiot at the time of marriage.
- Subsisting marriage with one’s former husband or wife.
- Consent of either party obtained by force or fraud.
- A suit for judicial separation can be sought under Sec. 22 of the Act on the grounds of adultery, desertion and cruelty.
- As per the Indian Divorce Act, a person can re-marry 6 months after the order of the High Court date confirming of the decree for the dissolution of marriage made by a District Judge.
- After 6 months from the date on which a decree of dissolving of marriage is passed by a High Court and no appeal has been made when appeal has been dismissed.