The Author, Anushka Khaitan, is a 3rd-year, BBA.LLB student at Jindal Global Law School. She is currently interning with LatestLaws.com.

Introduction

Law in India is governed by two systems; territorial and personal law and the religion driven laws come under personal law, while acts which can be applied irrespective of a person’s religion come under territorial law.

Each of these laws have their own provisions as to marriage, divorce and inheritance. Thus, to understand which laws to apply to a marriage or a divorce, we need to establish certain parameters to pinpoint which code to adhere to. We need to know which religion the person legally belongs to, whether they prefer to come under such personal law or under a secular law, whether or not the marriage is valid under the code of such religion, and if there is a provision for divorce in that code. 

Divorce in India is influenced by a variety of non-legal issues such as societal pressures, religious restrictions and community ostracization. It is a fairly uncommon phenomenon due to the stigma attached to it, and estimated to be at less than 1%, i.e. 13 out of every 1000 people get divorced in India. This is not a positive rather, given the social status of women in our heteronormative patriarchal matrimonial system, it reflects women’s dependence on men. According to a report published by the UN, women’s participation in labour force in India as compared to the rest of the world has seen the largest fall since late 1990s.

Marriages, too, are shaped by dynamics such as caste, class and sexuality in India. Even today, family and kin play a huge part in spouse selection, as does caste, gotra, race and religion.  Even though Sec. 377 was decriminalized by the Supreme Court in 2018, same-sex marriages have not been legalized and as such all data related to marriage and divorce does not account for approximately 2.5 million (as on 2012) people in India. However irrespective of this, all legitimate marriages provide a legal status to both the parties involved as being the husband and the wife. This legal status allows each of them to avail certain rights during the marriage and after a divorce for the benefit of the spouses.

Divorce Laws in India

The Indian legal system has a pluralistic approach when it comes to divorce, that is there are several methods to attain the same under different marriage codes as compared to the uniform civil code in many Western countries. There are currently six different enactments that govern divorce law in India. The Hindus, Buddhists, Sikhs and Jains adhere to the Hindu Marriage Act (HMA), 1955, the Muslims to the Dissolution of Muslim Marriages Act (DMMA), 1939, the Parsis to the Parsi Marriage and Divorce Act (PMDA), 1936 and the Christians to the Indian Divorce Act (IDA), 1869. The fifth enactment, the Special Marriage Act (SMA) of 1956, governs all legitimate marriages which are not within the confines of the previously mentioned Acts or of the people who choose to adhere to the SMA. The sixth enactment, the Foreign Marriage Act (FMA), 1969, is availed by parties between whom at least one person is a citizen of India and the marriage takes place in a foreign country while adhering to the conditions given by this Act.

Apart from difference in opinion as to the regulation of marriage and divorce, some religions also have varying definitions of marriage. The nature of the marriage itself is considered to be a sacrament in Hindu law, while a contract in Muslim law. This is why the Hindu community did not recognize divorce as an option till the codification of the Hindu Code Bill, while the Muslim community has always had many formal and informal means of divorce pursuant to invalidity or dissolution of contract. Unlike in the Indian Divorce Act which governs Christian divorce proceedings, women cannot file for divorce amongst Muslims, subject to some exceptions such as adultery, impotency or insanity. Under the HMA and the PMDA either spouses can file for a divorce, and the grounds for such divorce are very similar to the ones given by the Special Marriage Act. The similar grounds available under HMA as well as the SMA under which either spouse can file for divorce against the other include adultery, desertion for two or more years, conviction with imprisonment of seven years or more, cruelty, insanity, contraction of communicable venereal disease or having a status of legal death. The PMDA has many commonalities to the HMA and SMA as well, however it has many provisos as to the statute of limitations to file a suit. Further, it also allows for divorce on grounds of grievous hurt or the husband forcing his wife into prostitution. The HMA and the Parsi Marriage and Divorce further allow for divorce on grounds of conversion of religion, as well as failure to abide by decree of restitution of conjugal rights for more than a year or non-reconciliation after judicial separation for more than a year. All of these acts now recognize divorce by mutual consent as a valid form of divorce.

Most of these personal laws give further provisions for women to seek divorce on other grounds in an attempt to reconcile the inherent inequality they face as a result of our patriarchal matrimonial traditions and customs.  For this reason, Section 17(1-A) of the SMA allows for women to file for divorce on grounds of sodomy, rape or bestiality. The HMA also gives women under the age of 18 an option to repudiate the marriage if she was a victim of child marriage before the age of 15, thus creating option of puberty as an alternative suit for women. There are provisions in the DMMA as well as other acts, which battle child marriage as well. As per the DMMA, if a girl has been given in marriage by her guardians before she turned 15, she can repudiate the marriage provided that it should not have been consummated.

The DMMA was enacted for the purpose of consolidating the methods of Muslim marriage dissolution under different school, however unlike in Hindu law, the Sharai remains mostly un-codified. Under the Hanafi law, women do not have the right to file for divorce, but Hanafi Muslim jurists found this harsh and thus used the Maliki law, which allows for women to file for divorce under certain circumstances. This was possible due to the interpretation that when the application of Hanafi law causes hardship then provisions of Maliki, Shafi’s or Hambali law can be applied instead. This was the academic discourse kept in mind when Section 2 of the DMMA was enacted.  Except for the conditions mentioned in Section 2, a woman cannot seek divorce however a man can. This Section provides grounds such as neglection or failure to pay maintenance for more than two years, failure to perform marital obligations, conviction with jail time of more than seven years, insanity, cruelty, impotency, or any other valid grounds which are recognized by Muslim law, to name a few.

Till the 2017 judgment of the Supreme Court in Shayara Bano v UOI case, men could instantly divorce their wives by the triple talaq method without giving reason. This practice was outlawed only on 22nd August 2017.

Apart from seeking judicial interference, the Shariat also allows for extra-judicial methods of divorce such as Talaq-e-Sunnat, Talaq-i-biddat, ila and zahar. These come within customary divorce, which is an accepted practice in India. Apart from within Muslim law however, no reference can be found in the HMA or the IDA as to customs which would be considered as a valid to invoke customary divorce. However, there is a mention of the validity of customary divorce in itself in Section 29(2) of the HMA.  It often happens that the customary divorce, when challenged, is not accepted by courts as valid custom. This is because courts have interpreted “custom” under Section 29(2) to mean a continually and uniformly observed long standing tradition in a community, and they hold any alleged custom to a high standard of compliance to ensure that there is no frivolous use of customary divorce.

The divorce laws in India are pluralistic and hard to disentangle. They have several basic commonalities but differ in ideology and principle. The Acts we have so far talked about only encompass people who are citizens of India, living within India. The Foreign Marriage Act is one such act which talks about marriage of an Indian citizen outside Indian territory as well. The conditions for filing for divorce under this Act adhere to the rules laid down under the SMA itself. However, the procedure for divorce is different as defining the jurisdiction is more complicated; the courts need to look at domicile status, matrimonial residence and residence of the petitioner as well.

Such complications tend to arise when we cross the lines of citizenship and cross the borders of countries. Another problem faced by courts along the same lines is on the topic of decrees of divorce granted by foreign courts. In a judgment[1] authored by then CJ, Y.V. Chandrachud, he stated “Principles governing matters within the divorce jurisdiction are so conflicting in the different countries that not unoften a man and a woman are husband and wife in one jurisdiction but treated as divorced in another jurisdiction”

The applicability of foreign decrees of divorce were discussed in detail by the Supreme Court in Y. Narasimha Rao. v Y. Venkata Lakshmi.[2] The courts ruled that unless it is by mutual consent, only a court which recognizes the law under which the parties were married has jurisdiction over divorce proceedings. Further, any such ruling should respect the merit of provisions given by the applicable personal law and if the court does not have jurisdiction, both parties must have unconditionally submitted to this foreign courts’ jurisdiction.

This principle has not been deliberated on by Indian courts much, except for in the two above mentioned cases. In Teja Singh case,[3] the SC said that the divorce from the foreign court was derived under the guise of fraud and thus, it was not acceptable in India. Similarly, in the Narasimha Rao case, the husband was convicted for bigamy as the divorce decree from a foreign court was not accepted by the Indian court. In these cases, the foreign court decree was declared invalid, however many countries have an understanding which follows on the concept of “comity of courts”. This is a mutual understanding based on respect between courts of several countries, to accept foreign decrees keeping in mind the persons’ rights as long as all parties involved do the same. This was accepted by the Indian Supreme Court in the case Elizabeth Dinshaw v. Arvand M. Dinshaw [1987 1 SCC 42, 47]. Specifically, in India, any foreign decree being accepted needs to adhere to Section 13 of the Code of Civil Procedure.

Conclusion

Divorce laws in India are mostly governed by religion, however there is an outcry for a Uniform Civil Code. The same is also envisaged by Section 44 of our Constitution, which is a part of Directive Principles of State Policy. Such laws continually increase the gap between religious communities and falsify Jawaharlal Nehru’s ideal of a “one-nation”. Further, they pose many legal obstacles such as slower dispensation of justice, larger number of incorrect suites being filed as well as common people being appropriated by the more legally affluent families. Our family law system needs to fight multiple evils including gender inequality and oppression, religion and caste-based discrimination as well as unnecessary complications which delay justice delivery.


[1] Smr. Satya v Shri Teja Singh, (1975) 1 SCC 120

[2] (1991) 3 SCC 451

[3]  Supra 1

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Anushka Khaitan