Feminism, women’s rights, equality for all gender etc. are few terms which were heard prominently in the last decade. Yet, the same is not accomplished exhaustively. The status of women in society is neither a new issue nor is it a fully settled one till date. Status of women in numerous human societies of the world is different. Whether, it is developed, developing or under developed societies, women inhabit an peerless position. India still lacks behind to present a completely equal platform for both men and women. Equality for all types of gender is asked by everyone but is there equality for all in a single gender? Are women of all religion treated equally with equal rights? India is secular country, which means the right to choose your religion is entirely independent. But with this right there are also personal laws governing each religion, which creates hindrance with respect to different rights and liabilities for the people of that religion. These rights and liabilities are not same in all personal laws. The right to inheritance, marriage, divorce, adoption, maintenance and what not is entirely different for all religions. Marriage forms an essential part in both Hindu and Muslim laws, although there are an assortment of differences between the two laws like its essentials, process of solemnizing the marriage and the basic ideals, like in Hindu law it is considered to be a Sacrament, but in Muslim law, it is of a contractual nature. There must be some similarity amongst them but the dissimilarity between them is more vast. The main reason for contrast is the sources of the two personal laws, which hold equal importance for both the religions. For many decades Muslim women have been struggling for gender equality in the Islamic law that oversee rights related to marriage, divorce, and property rights. This paper is anticipated to provide a brief and genuine exposition of Rights of Muslim and Hindu women and a brief survey of the status of women. This research paper mainly focuses on the rights conferred to women of Hindu and Muslim religion, mainly the rights conferred to them to dissolution of marriage through different modes. Also lays down the gap between the two personal laws which can be diminished if insisted upon.
GROUNDS OF DIVORCE UNDER MUSLIM LAW
Muslim law is founded upon revelation and is blend with religion. The law is the divine communication between Prophet Mohammad and Allah through Angel Gabriel. The Muslim legal system differs from other modern systems, in the sense that it signifies to have its sole source of divine will communication through human channel. In this religion the people are divided into two sects namely shias and sunnis. Under this law the dissolution of marriage can take place through 2 mediums i.e. Death or Divorce.
Looking only onto the aspects of divorce for dissolution of marriage. Muslim women are provided with two procedure of divorce which are uncodified whereas Muslim men are given three such procedures which are also uncodified. These two modes are-
Talaq-e-tafweez: This mode is called as the delegation of power, where in the husband delegates his power of divorce to the wife after the marriage. Such delegation of power is called tafweez. The power for divorce is initially vested with the husband only. The wife can only exercise this, if in case of such delegation. Under this mode, the divorce is not made by the wife but she does this only on the behalf of the husband after being delegated the power to divorce.
Case- Manjila bibi v. Noor Hussain
In this case the petitioner was married with the defendant Noor Hussain. The husband had delegated his power of divorce to his wife and executed in an agreement. Later when the wife was ill, she dissolved the marriage by virtue of the power delegated to her. The husband then refuses to pay her maintenance and dower.
Court held that the delegation of power gave the wife all rights for this divorce and the husband is liable to pay the amount.
Lian- This is the case when the husband charges the wife for adultery and the charges are later proved to be wrong, the wife has right to divorce and can file a petition for the same only on basis of such false charges. Here too, the women are not given absolute right for dissolving the marriage, the right is dependent on the male i.e., only if he accuses for such charge, then the female can obtain divorce.
Case- Nurjahan Bibi v. Mohm. Kazim Ali
In this case court held that the doctrine of lian has not become obsolete.
Apart from these two modes, Muslim women are also given the right to divorce under The Dissolution of Marriage Act, 1939. Section 2 of the act states all the grounds under which divorce can be obtained. Which are as follows:
Absence of husband ( for a period of four year)
Husband has neglected or has failed to provide maintenance ( for two years)
Husband sentenced to imprisonment for seven years or more
Husband has failed to perform marital obligation
Impotency of husband
If married before the age of 15 and repudiated before 18 years of age.
Any other reason recognized as valid by Muslim law.
Case- Sharaya Banu. V. Union of India
In this famous case of triple talaq, SC held that talaq-e-biddat or mostly known as triple talaq is a sinful form of talaq. Under this form of talaq, the husband can make three pronouncements of talaq and it becomes irrevocable immediately. It has been declared unconstitutional by the court as it violates article 14, 15 and 21 of the Indian Constitution.
GROUNDS OF DIVORCE UNDER HINDU LAW
The development of Hindu law is based upon the dharmas. Unlike Muslim law, this is not divided into any sects but constitute of many religion coming together including Buddhism, Jainism and Sikhism, meaning Hindu laws not only govern Hindus but also Sikhs, Jains, Buddhists. Sources of Hindu law are Shrutis, Smritis and customs. There are no modes of divorce to any gender outside the legal scope, which means the law is absolutely codified. Grounds for both spouses are enumerated under section 13 of the Hindu Marriage Act, 1955.
Section 13 of the act states eight such grounds for husband and four more for the wife.
The common grounds of divorce available to both under section 13(1) of the Hindu Marriage Act, 1955 are :
Desertion ( two years or more)
Ceased to be Hindu
Suffering from venereal disease
Renounced from the world
Not been heard from 7 years or more.
Apart from these, the four grounds available to wife only under section 13(2) are:
Bestiality and sodomy
No cohabitation after decree of maintenance ( one year or more)
If married before the age of 15 and repudiated before 18 years of age.
1. Niru Sarmah v. Jatin Ch. Sarmah
In this case, the court observed that if the marriage between parties is completely broken and has become irretrievable for all particular purposes and if they have been living separately for quite a long time and there is no possibility of reunion in future, in that condition the court can grant decree of divorce between the parties.
2. Chandra Prakash v. Sudesh Kumari
In this case court held that the burden of proof of adultery lies
on the party who has alleged it. State of adultery cannot be established by the only fact that the party had every opportunity and freedom to have sexual intercourse with any other person.
Other than this, Hindu wife can also obtain judicial separation where if such decree has been passed, it is no longer obligatory for the parties to live together. The grounds for filing a petition of judicial separation are same as in the case of divorce for both husband and wife.
Case- Satya Narayan v. Smt. Mainla & ors
In this case, the Rajasthan high court observed that “ a man who ultimately contracts marriage with another lady in the background that he never has the liking for his wife right from the beginning, raised demands for dowry and persecuted the wife, can definitely be said to have committed cruelty against her.” On the of such finding by the court, the decree of judicial separation was passed by the honorable court.
DIVORCE BY MUTUAL CONSENT
In Hindu law, the provisions for divorce are provided under section 13B of the Hindu Marriage Act, 1955. The section clearly states that the parties can obtain divorce on the ground that the parties have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. Both the parties are given the time period of 6 months for reconciliation before the decree is passed. Conditions are such divorce are that the marriage must be solemnized at least one week before filing the petition for divorce of mutual consent. But the same can be overruled under special circumstances.
Case- Amardeep Singh v. Harveen Kaur
In this case, Supreme Court observed that the cooling period of six months given to the parties under section 13B is not mandatory. It can waived under certain circumstances, if marriage has irretrievably broken down, and to enable them to rehabilitate as per available options there is no chance of reconciliation and reunion. And the parties have genuinely settles their differences and waiting period will only prolong their agony, the court, in such circumstances, can waive the waiting period.
Under Muslim law, the procedure for divorce through mutual consent is presented as Mubarat and Khula in an uncodified way. There is no codified procedure yet for divorce by mutual consent under Muslim law.
Khula, though counted within the scope of mutual consent, yet is only a divorce given on the request of wife. In this, the proposal for dissolution of marriage is made by the wife and if then accepted by the husband is called as Khula. In Khula, the wife agrees to give consideration to the husband for her release from the marriage bond. It signifies an bargain entered into for the purpose of dissolving a connubial connection in lieu of compensation paid by the wife.
Murabat is a more proper form of divorce by mutual consent. The offer for dissolution of marriage may be initiated by either of the party and then accepted by the other. When an offer of murabat is accepted it becomes irrevocable and iddat is necessary to be observed.
On the above stated, it can be clearly noted that there is no form of judicial divorce of mutual consent in Muslim law. Wherein the Khula put within the bracket of mutual consent divorce, is only a divorce by wife and acceptance by husband. There is no sign of mutuality here and the fact that the wife has to pay compensation to get out of the marriage relationship makes it more weak relationship in my view. Murabat and divorce under 13B of Hindu Marriage Act, 1955 are very similar form of mutual consent divorce. Even in the case of Hindu marriage, maintenance and alimony amount is to be paid by the husband to the wife, if the court thinks fit so. But the provisions for mutual consent divorce in Muslim law can be codified and made more static.
Case- Moonshi Bazul-ul-Raheem. v. Lateefutoonnissa
In this case lateefutoonnissa alleged that the appellant had divorced her with the two instruments which purported had waived her right to recover her dyn-mahr were obtained by force and were ineffective did not bar her claim. The appellant in return denied the divorce, as stated by her but alleged that a khulanama had been executed by her, by which she released her mahr. Honourable court held that there are two forms of divorce under mohammedan law- talaq or khula. A divorce by khula is divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage.
India does not have a uniform civil code, which means the laws pertaining to marriage and divorce differ from people from different faiths. As states above in the rights given to Muslim women for divorce, it does not seem like a right but only an mere option in hand. Delegation of power means that she cannot have that on her own by any means, which already puts her in such a weak position than men under Muslim law. The vast difference between the codified and uncodified laws also make it arduous to lay down the dissimilarity between the two laws. As we read above in lian, the right of women arises after she been falsely alleged of adultery, this is not a right at first place. This is clearly a contingency and arises only after the false allegation put forward by the husband. The two codified ways between both the laws, that is section 13 of Hindu Marriage Act,1955 and section 2 of Dissolution of Marriage Act, 1939 are quite similar and the grounds specified are of alike nature. Yet in the case of Hindu’s, female are given more rights even after divorce in terms of maintenance, alimony, custody of child, inheritance etc. Muslim law on the other hand is a slight silent about these terms. Though there are provisions for dower/mahr, which is a sort of consideration but does not amount to maintenance or alimony. Only if the law had been generous enough to give equal rights in the uncodified procedure too, the women would have been in a better state than today, because fighting for an absurd ground of divorce like triple talaq in the 21st century does not seem duly right.
Mohammedan law- Aqil Ahmed
Modern Hindu law- Dr. U.P.D. Kesari
Hindu Marriage Act, 1955
Dissolution of Marriage Act, 1939.
By Muskan Sihag, VI semester student of B.A.LL.B(Hons) of Manipal University Jaipur