Comparative study of Divorce under various personal laws


Divorce is the official termination of a marriage, removing the responsibilities and legal duties a of marriage and breaking the bond of marriage between the spouses. The concept of divorce is very old and its origin is not traceable. According to Letourneau "divorce as an institution is the final milestone in the process of freeing the woman from the slavery of man in marital relationship". Since India is a land of diverse religious communities with their own marriage laws, the procedures of divorce varies too, depending on the community of couples seeking divorce.

The divorce among Hindus is governed by the Hindu Marriage Act, 1955. The Indian Divorce Act, 1869 governs the divorce among the Christians. A Parsi husband or wife may dissolve the marriage under the Parsi Marriage and Divorce Act, 1936. There is no codified divorce laws for jews. They only have the customary laws. Muslim married woman are protected from the rigidity of Muslim personal textual law by the Dissolution of the Muslim Marriage Act, 1939. The Special Marriage Act, 1954 is a secular law for all the citizens regardless of their religious affiliations. In 1954, the Special Marriage Act was passed, is an inter-religious marriage and divorce law allowing Indians to divorce and marry regardless of their faith or religion.. This secular law provides adequate matrimonial remedies including divorce and it applies to all the country's citizens, i.e., Muslims, Hindus, Parsis, Jews, Christians etc. This article will argue why the Indian Divorce Act should have more grounds for divorce like the Special Marriage Act and the Hindu marriage act. Further, this article will argue why more grounds for divorce are required for women under various personal laws.

Concept of Divorce under personal laws

Under all uncodifed personal laws in India, except Muslim law, marriage is considered as unbreakable and eternal. Christian law, Hindu law, and Parsi law do not provide for the marriage dissolution. under the Muslim law only a marriage is considered as a dissoluble bond. With the passing years, it was recognized that it is very difficult to continue the marriage sometimes. This resulted in the enactment of various statutory personal laws, enabling marriage dissolution by competent court's decree.

Hindu Law of Divorce

The marriage was unbreakable and eternal under the shastric hindu law. Divorce wasn't given, however painful cohabitation might be. The HMA, 1955 has introduced a change by allowing divorce on some reasonable grounds(under section 13 of HMA,1955) to all the Hindus. In hindu law's history this approval was granted for the 1st time. The Act also saved the special legislation and customs granting the dissolution of marriage before its commencement (Section 29(2)). The initial provisions of the Hindu Marriage Act, 1955 related to divorce were liberalized by the Mariage Laws Amendment Act of 1976. The divorce relief may be granted in any Hindu marriage solemnized before or after the Act's commencement. A divorce petition to a court may be filed by either the wife or the husband. A divorce petition cannot be filed by a third party like by the children or parents. The Act grants divorce under section 13 of HMA, 1955. Section 13 has various parts namely 13(1), 13(2), 13(1-A), 13 A and 13 B.

Christian law of Divorce

Marriage is a union between husband and wife for life according to Christianity. As such in Christian law there was no concept of divorce. The Divorce Act, 1869 granted the right for dissolution of marriage for the first time. Section 10 of this act laid down the grounds for divorce for both husband and wife. This act was significantly amended in 2001, by which, under section 10(1) ten grounds are mentioned which are available to husband and wife. The grounds for divorce under this act are nearly similar to the grounds under the HMA, 1955. The wife may sue for divorce on additional grounds if the husband is guilty of sodomy, bestiality and rape under section 10(2) of the Act.

Parsi law of divorce

In India divorce proceedings for parsis are goverened by the Parsi Marriage and Divorce Act of 1936. According to this act, if marriage cannot be consummated due to some natural causes, either party can declare the marriage null and void(section 30 of the Parsi Marriage andDivorce Act,1936). The grounds for divorce are laid down in section32 of the Act, 1936. The Act also provides divorce by mutual consent under section 32B of the Act. However the divorce by mutual consent under this Act is different from the divorce under the Hindu Marriage Act,1955 and the Special Marriage Act,1954. Under this act the court starts proceedings immediately after application is received while in the HMA and the SMA, there is a waiting period of 6 months.

Jewish law of divorce

In India the jews are governed by their customary law and not by statutory law. Dissolution of the marriage in India can be done through the court on grounds of cruelty or adultery. Generally the marriages are monogamous except in some specific cases. As they are a minority, no attempt has been made to reform or codify this law. Jewish law acknowledges divorce by mutual agreement. According to Jewish law, the court shouldn’t intervene where both parties claim that their marriage has failed and the parties want to dissolve it.

Divorce under Special Marriage Act,1954

A civil ceremony is laid down in the Special Marriage Act,1954 for marriage. The marriage under this Act is basically a civil contract. The Marriage Laws Amendment Act 1976 has amended the divorce grounds under the SMA 1954 and HMA 1955, and has brought them at par with each other. Conversion is not a ground for divorce under this act. Also 2 grounds are there for the wife alone under section 27(1-A)of the Act. Section 27-B allows for divorce by mutual consent, similar to Section13-B of the Hindu Marriage Act,1955.

Divorce under Dissolution of muslim marriage Act,1939

The Dissolution of muslim marriage act,1939 provides nine divorce grounds which are available to the wife.

Common Grounds of Divorce under various personal laws

Grounds for Divorce under Section13 of the HMA: The Hindu Marriage Act has 12 divorce grounds that are mentioned under section 13 of the act. They are Adultery, Desertion, Cruelty, Conversion, Leprosy, Unsoundness of mind , Renunciation of world, Venereal disease, Non Resumption of cohabitation, Presumed death and Failure to comply with decree for restitution of conjugal rights and divorce by mutual consent.

Adultery - The act of indulgence in any sort of sexual relationship including sexual intercourse outside marriage is referred to as adultery. Adultery is considered as a criminal offence and evidence is necessary to prove it. An amendment of 1976 states that adultery's one single act is sufficient for divorce

Cruelty- In Shobha Rani Case, the Court said that cruelty is not defined in the HMA. The word as used in section 13(1) (ia) of the HMA refers to human conduct or behavior in respect of or in relation to matrimonial obligations or duties. It is an act of one that adversely affects the other. The cruelty may be unintentional or intentional, physical or mental. A divorce case can be filed by the spouse when they are subjected to any kind of physical and mental injury that causes to health, life and limb. Cruelty's intangible acts though mental tortures are not judged by a single act but by a number of incidents and it can be decided with relation to circumstances and facts of each particular case. The evidence can be examined by the court in appeal too. Continuous ill treatment, perverse sexual act, abuses to acquire dowry, and , denying food such are some of the examples of cruelty.

Desertion - After the amendment of 1976, desertion is a ground for both divorce and judicial separation. If the spouse abandons his or her spouse voluntarily for a 2 years at least, a divorce case can be filed by the abandoned spouse on this ground. In Shyam Chanad v. Janki, it was held that If a spouse is forced by the other spouse to leave the home, he/she will be guilty of desertion.

Conversion - A decree of divorce can dissolve a marriage on the ground that the party is no longer a hindu by converting to any other religion. It follows from this that some other major religion should be adopted which can't be considered as Hindu religion. If a Hindu who is a Jain converts to Buddhism, he is still considered a Hindu. It cannot be said that he has changed his religion. It must be remembered that this conversion ground is unavailable to the converting spouse, it is only available to the spouse who is still a hindu.

Mental Disorder – Mental disorder is a ground for divorce filing if the petitioner's spouse suffers from insanity and mental disorder that is incurable and therefore can’t be expectedto stay together. It is a broad term that covers different mental disorder and phases of unsoundness of mind.

Leprosy – The other spouse can file a petition using this ground in case of an incurable and virulent form of leprosy.

Venereal Disease – A divorce can be filed by the spouse if the other spouse suffers from a serious communicable disease. The STDs like AIDS are considered as venereal diseases.

Renunciation – A spouse can file for a divorce if the other spouse renounces the world by taking a religious order.

Presumed death– It is presumed that the person is dead if he is not heard or seen alive by those who are normally supposed to be heard of the person for seven years' continuous period.

No Resumption of Co-habitation - If the couple fails to resume their cohabitation after the passing of a separation decree by the court it becomes a divorce ground.

Failed to comply withdecree for restitution of conjugal rights: that there was no restitution of conjugal rights between the spouses for 1 year or more after the decree for it was passed.

Grounds for Divorce under section 27of the Special Marriage Act,1954: The Special Marriage Act of 1954 has 11 grounds for divorce that are mentioned under section 27 of the act. They are Adultery, Desertion, Undergoing 7 or more years of imprisonment, Cruelty, Non-resumption of cohabitation, Divorce by mutual consent, Unsoundness of mind, Presumed death, Veneral diseases, Leprosy, and Failure to comply with the decree of Restitution of conjugal rights.

Grounds for Divorce under the Parsi Marriage and Divorce Act,1936: The Parsi Marriage and Divorce Act of 1936 has 17 grounds for divorce that are mentioned under section 32 of the act. They are Unsoundness of mind, Marriage not consummated, Defendant was Pregnant at the time of marriage by some other person, Adultery, Fornication, Bigamy, unnatural offence, Non-resumption of cohabitation, veneral disease, Compelled wife to prostitution, Cruelty, Grievous hurt, defendant undergoing imprisonment, Desertion, conversion, Failure to comply with the decree for Restitution of conjugal rights, an order has been passed by a Magistrate awarding separate maintenance to the plaintiff and they haven’t had marital intercourse for 1 or more year, divorce by mutual consent.