The people of India belong to different religions and faiths. They are governed by different sets of personal laws in respect of matters relating to family affairs, i.e., marriage, divorce, succession.
Personal Law
The people of India belong to different religions and faiths. They are governed by different sets of personal laws in respect of matters relating to family affairs, i.e., marriage, divorce, succession, etc.

Indian Laws Relating To Maintenance

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Definition

The word maintenance is of wide connotation. The most precise definition of it has been given under Section 3 (b) of the Hindu Adoption & Maintenance Act, 1956, which reads as under:-
“in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.”

There are four different types of provisions regarding maintenance:-

(A) Provisions under Code of Criminal Procedure, 1973.
(B) Provisions under the Hindu Marriage Act, 1955.
(C) Provisions under the Hindu Adoptions and Maintenance Act, 1956.
(D) Provisions under the Protection of Women from the Domestic Violence Act.

The provisions of maintenance in the Cr.P.C. and the Hindu Adoption and Maintenance Act are independent reliefs. Although, the right to claim maintenance under the Hindu Marriage Act is an independent right and it is not being controlled by the Hindu Adoption and Maintenance Act, but the jurisdiction of the Court cannot be ousted on the plea that the applicant under the Hindu Marriage Act is already getting maintenance under the Hindu Adoption and Maintenance Act, but while fixing the quantum of maintenance that may be taken into consideration. Under the Hindu Marriage Act, either spouse can seek maintenance, under the Code of Criminal Procedure and Hindu Adoption and Maintenance Act, only the wife can claim maintenance.

(A) Provisions under the Hindu Marriage Act, 1955

Under the Hindu Marriage Act, an order for maintenance may be made by the Court.
Firstly; for maintenance pendente lite (interim or temporary) and expenses of the proceedings under Section 24, and
Secondly; for permanent maintenance and alimony under Section 25.

(B) Provisions under the Code of Criminal Procedure, 1973:

Section 125 of the Code provides that ” if any person, having sufficient means, neglects or refuses to maintain….his wife, unable to maintain herself…a Magistrate of the first class, may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife.

Provided that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation – “wife” includes a woman who has been divorced by, or has obtained divorce from her husband and has not remarried.

If a husband has contracted marriage with another women or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, if they are living separately by mutual consent.

The provision is secular in nature and covers the right of a wife professing Islam or any other religion. (Shamima Farooqui Vs Shahid Khan decided on 06.04.2015 by Hon’ble Apex Court and Shamim Bano Vs Asraf Khan decided on 16.04.2014 by Hon’ble Apex Court).

The sweep of provision has been extended by the Hon’ble Apex Court by observing that strict proof of marriage should not be insisted as pre-condition for maintenance under Section 125 Cr.P.C. It includes those cases where a man arid woman have been living together as husband and wife for long period of time (Chanmuniya Vs Virender Kumar Singh Kushwaha JT 2010 (11) SC 132).

The second wife or a woman living as ‘wife’ is not entitled to get maintenance. If the marriage is void or annulled under Section 12 of the Hindu Marriage Act, a wife is not entitled to maintenance. (Krishan Copal Vs Usha Rani, 1982 Cr.L.J. 901 Del.).

Recently, the Hon’ble Supreme Court again held that the expression ‘wife’ as per Section 125 Cr.P.C. refers only the legally married wife. The court observed that “there may be substance in the the appellant wife that the law operates harshly against the woman, who plea of unwittingly gets into a relationship with a married man and Section 125 of the Code does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo.” The Court, however, held that the illegitimate children from the second wife are entitled to such maintenance.

C) Provisions under the Hindu Adoptions and Maintenance Act, 1956:

The Hindu husband is under a duty to maintain his wife during life time. Maintenance is a personal/legal obligation. It is an incident of the status or estate or matrimony. The meaning of the term ‘maintenance’ is given in Section 3 (b) or the Act “maintenance” includes (i) in all cases,

provision for food, clothing, residing, education, and medical treatment and (ii) in case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.

Section 18: Maintenance of wife

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to he maintained by her husband during her life time.

Section 18 (1) is applicable when the wife lives with her husband. A wife who has ceased to be Hindu cannot claim maintenance. However, an unchaste wife who lives with her husband can claim maintenance.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.
a) If he is guilty of desertion or of willfully neglecting her.
b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.
c) If he is suffering from a virulent form of leprosy.
d) If he has any other wife living.
e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere.
f) If he has ceased to be a Hindu by conversion to another religion.
g) If there is any other cause justifying living separately.

(3) (Forfeiture of the claim of maintenance). A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Maintenance of widowed daughter-in-law

Section 19 of the Hindu Adoption and Maintenance Act provides that after the death of her husband, a Hindu wife is entitled to be maintained by her father-in-law, if she has no means of her own earnings or other property or estate of her husband/ father/ mother or from her son or daughter or his/her estate. However, this right cannot be enforced if the father-in-law does not have the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share. Further, his obligation ceases when the daughter-in-law remarries.

Amount of Maintenance: Court’s Discretion

Under Section 23, it is in the discretion of the Court to determine whether any, and if so what, maintenance should be awarded under the Act, in respect of the wife, children, aged or infirm parents, the Court will have regard to:
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether he (or she) is justified in doing so;
(d) the value of the claimant’s property and any income derived from such property, or from the claimant’s own earning or from any other source; and
(e) the number of persons entitled to maintenance under the Act

The amount of maintenance, whether fixed by a Court’s decree or by agreement, may be altered subsequently if there is a material change in the circumstance (Section 25). A person cannot claim maintenance under the Act if he or she has ceased to have a Hindu by conversion to another religion (Section 24).

(D) The Protection of Woman From Domestic Violence Act, 2005:

This enactment provides for a specific and effective remedy to an aggrieved person, who is victim of domestic violence while living in the shared household along with the respondent including husband. The scope of legislation is wide as it covers not only the wife but every women who has been living in the relationship in the nature of marriage. Maintenance is to be granted under Section 20 of the Act. While disposing of application under Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person as a result of domestic violence. The basic condition for claiming right under the Act is causing violence.

Distinction between Section 18 of the Hindu Adoption and Maintenance Act and Section 25 of the Hindu Marriage Act and Section 125 of the Code of Criminal Procedure.

(a). Under Section 18 of the Hindu Adoption arid Maintenance Act and Section 125 of the Code of Criminal Procedure only wife can claim maintenance, while under Section 25 of the Hindu Marriage Act either spouse can do so.
(b). Under Section 18 of the Hindu Adoption and Maintenance Act and Section 125 of the Code of Criminal Procedure, a wife can claim maintenance and live separately from her husband while her marriage subsists. Under Section 25 of the Hindu Marriage Act, either spouse can claim maintenance and permanent alimony but that can be done only after judicial separation or after divorce.

When the marriage is subsisting there is no question of applicability of Section 25, Hindu Marriage Act but Section 18, Hindu Adoption and Maintenance Act. The word “wife” does not have the same meaning in the two enactments. The Court cannot grant the relief of maintenance in proceeding under one enactment in proceedings under the other (Ramesh Chandru Daga Versus Rameshwari Daga AIR 2005 SC 422)

(c). Hindu wife contemplated under Section 18 of the Hindu Adoption and Maintenance Act and Section 125 of the Code of Criminal Procedure includes only the wife of a valid marriage. While under Section 25 of the Hindu Marriage Act even a wife of void marriage can claim maintenance.

(d). Apparently Section 18 of the Hindu Adoption and Maintenance Act seems to have overridden Section 25, Hindu Marriage Act because in both the sections a similar provision exists and by virtue of Section 4, Hindu Adoption and Maintenance Act, it is the Act of 1956 (i.e. HMA) which shall prevail and the provisions of the Act of 1955 (i.e. HMA) vis-a-vis maintenance of a wife shall cease to have any effect.

Apparently it seems so: but there is no inconsistency between
two sections as both do not deal with a similar provision (as noted in the aforesaid differences). Both sections provide for separate and independent reliefs. The Court’s jurisdiction can’t be ousted on the plea that the applicant for maintenance under the Hindu Marriage Act is already getting maintenance under the Hindu Adoption and Maintenance Act though in fixing the quantum of maintenance that may be taken into consideration. (e) The provisions of maintenance in the Code of Criminal Procedure and the Hindu Adoption and Maintenance Act are again independent relief.

Multiple Proceedings for Maintenance:

In this regard the relevant judgments of Apex Court and various High Courts are discussed hereinafter.

Sudeep Chaudhary Vs Radha Chaudhary decided on 31.01.1997, AIR 1999 SC 536, 1999 CLL.’. 466, JT 1998 (9) SC 473.

It was held by Hon’ble Apex Court that the jurisdiction for granting maintenance under Section 125 of the Code of Criminal Procedure and Domestic Violence Act is parallel jurisdiction and if maintenance has been granted under Section 125 of the Code of Criminal Procedure after taking into account the entire material placed before the Court and recording evidence, it is not necessary that another Magistrate under Domestic violence Act should again adjudicate the issue of maintenance.

The law does not warrant that two parallel courts should adjudicate same issue separately. If adjudication has already been done by a Court of Magistrate under Section 125 of the Code of Criminal Procedure, re-adjudication of the issue of maintenance cannot be done by a Court of Magistrate under Domestic violence Act.

Smt. Premila Vs Shri Dharam Singh on 28 September 2011, P& H it was observed that:-
“Facts relevant for the decision of present revision petition are that during pendency of the petition under Section 13 of the Act filed by respondent-husband, petitioner-wife filed an application under Section 24 of the Act for interim maintenance and litigation expenses. The application was contested by respondent-husband on the plea that petitioner-wife has already been granted maintenance by the concerned Court in proceedings under Section 125 of the Code of Criminal Procedure and hence, it was held that petitioner-wife was not entitled to claim maintenance in the present proceedings”

Moreover law is well settled that the maintenance can be awarded under Section 125 of the Code of Criminal Procedure as well as under Section 24 of the Act, which are independent provisions and, however, from the maintenance awarded under Section 125 of the Code of Criminal Procedure can be adjusted.

It must be understood that the Protection of Women from Domestic violence Act, 2005 does not create any additional right to claim Maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil suit or by Court of Magistrate in an application under Section 125 of the Code of Criminal Procedure she does not have a right to claim additional maintenance under the Act. The Court of Magistrate under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under it Court or under Section 125 of the Code of Criminal procedure. If the woman has already moved Court and her right of maintenance hay been adjudicated by a competent Civil Court or by a competent court of Magistrate under Section 125 of the Code of Criminal procedure for any enhancement of maintenance already granted, she will have to move the same Court and she cannot approach Magistrate under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance.

Quantum of Maintenance:

The following are the documents relevant for the Court to decide application for maintenance:
(a) Income Tax returns
(b) Form 16 and Form 12BA
(c) Appointment letter
(d) Cost to company certificate
(e) Salary certificate
(f) Bank statement of all the bank accounts
(g) Credit/debit card statements
(h) Title deeds in respect of immovable property
(i) Registration certificate of vehicle

Burden of proving the income:

The monthly income of the husband may not very often be within the knowledge of the wife, particularly in a case where their relationship is considerably strained and the spouses are living separate for a considerable period.

The assets, liabilities, income and expenditure of the parties are necessary to be determined not only to fix the maintenance under Section 24, but also to determine the permanent alimony under Section 25 of the Hindu Marriage Act and right to the joint properties under Section 27 of the Hindu Marriage Act. it is, therefore, necessary to formulate a format of the affidavit of assets, income and expenditure and also specify the documents to be disclosed by them.

The Court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the Court would depend upon multiple circumstance which are to be kept in view. These could be the time taken to serve the respondent in the petition; the date of filing of the application under Section 24 of the Act; conduct of the parties in the proceedings, averments made in the application and the reply.

Now to have a look upon the relevant factors to adjudicate the quantum:

Law under Section 24 of the Hindu Marriage Act is well settled. The following are the factor, which can be taken into account while awarding interim maintenance
(a) Status of the parties
(b) Reasonable wants of the claimant
(c) Number of the persons to be maintained by the husband
(d) Liabilities, if any, of the husband
(e) The amount required by the wile to live a similar life style as she enjoined in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife and payment capacity of the husband.

Rights of Inheritance of Muslim Woman – Muslim Personal Laws in India

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The Muslim Law of Succession is a combination of four sources i.e. the Holy Quran, Sunna (practice of prophet), Ijma, (Consensus of the learned men of the community over the decision over a particular subject matter), Qiya (deductions based on analogy on what is right and just in accordance with good principles). Muslim law recognises two types of heirs, firstly, sharers, the ones who are entitled to certain share in the deceased’s property and secondly, Residuaries, the ones who would take up the share in the property that is left over after the sharers have taken their part.

It is noteworthy that the Muslim law does not make any strict distinction between any two or more type of properties such as movable and immovable, corporeal and incorporeal etc. Since there is no such distinction between different kinds of properties, therefore, on the event of death of a person, every such property which was within the ambit of ownership of the deceased person shall become a subject matter of inheritance. The amount of property that shall become the subject matter of inheritance and is made available to the legal heirs to inherit shall be determined after making certain appropriations. Such appropriations may include expenses paid in lieu of funeral, debts, legacies, wills etc. After making all these payments, the left over property shall be termed as the inheritable property.

Every religion practiced in India is governed by its respective personal laws – which includes property rights as well. However, Muslims in the country do not have codified property rights and are broadly governed by either of the two schools of the Muslim personal law – the Hanafi and the Shia. While the Hanafi school recognises only those relatives as heirs whose relation to the deceased is through a male. This includes son’sdaughter, son’s son and father’s mother. The Shia school, on the other hand, favours no such discrimination. This means that heirs, who are related to the deceased through a female are also accepted.

Under the Indian legislative scheme, the rules that govern inheritance under the Muslim law depend on the kind of property involved. In cases of Non testamentary succcession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the other hand, in case of a person who dies testate i.e. one who has created his will before death, the inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. In cases where the subject matter of property is an immovable property which is situated in the state of West Bengal or comes within the jurisdiction of Madras or Bombay High Court, the Muslims shall be bound by the Indian Succession Act, 1925. This exception is only for the purposes of testamentary succession.

 

The wasiyat (will) under Islamic law

  • A Muslim cannot give away more than one third of his/her total property through a will. In circumstances where there are no heirs in the estate as prescribed by the law, the wife may inherit a greater amount by will. 

Therefore, Succession of 2/3rd part of the assets will be governed under the Muslim Law of Inheritance

Rules of inheritance

  1. A son gets double the share of the daughter wherever they inherit together.
  2. The wife gets one-eighth of the share if there are children and one-fourth of the share if there are no children. In case the husband has more than one wife, the one-eighth share will be divided equally among all wives. The husband gets one fourth of the share of his dead wife’s property,If there are children and one-half if there are no children .
  3. If the parent has more than one daughter, only two-third of the property shall be divided equally among daughters. If the parent has only one daughter, half of the parent’s property is inherited by her.
  4. The mother gets one-sixth of her dead child’s property if there are grandchildren, and one-third of the property if there are no grandchildren.
  5. Parents, children, husband and wife must, in all cases, get shares, whatever may be the number or degree of the other heirs.
  6. Slavery, homicide, difference of religion and difference of allegiance, exclude from inheritance.

Property rights of a daughter in Islam

  • Thus, under the Muslim law, the rules of inheritance are rather strict. A son takes double the share of a daughter, on the other hand, the daughter is the absolute owner of whatever property she inherits. If there is no brother, she gets half a share. It is legally hers to manage, control, and to dispose it off as and when she wants.
  • She is also eligible to receive gifts from those she would inherit from. This is contradictory because she can inherit only one-third of the man’s share but can get gifts without any hassle. 
  • Till a daughter is not married, she enjoys the right to stay in her parents’ house and seek maintenance. In case of a divorce, charge for maintenance reverts to her parental family after the iddat period (approximately three months) is over. However, if her children are in a position to support her, the responsibility falls on them.

Principles governing rules of inheritance of joint or ancestral property

  • Unlike Hindu law, there is no provision of distinction between individual i.e. self acquired or ancestral property. Each and every property that remains within the ownership of an individual can be inherited by his successors. Whenever a Muslim dies, all his property whether acquired by him during his lifetime or inherited from his ancestors can be inherited by his legal heirs. Subsequently, on the death of every such legal heir, his inherited property plus the property acquired by him during his lifetime shall be transferred to his heirs.

Birth right

  • The principle of Hindu law of inheritance of Janmaswatvad does not find place in the Muslim law of inheritance. The question of inheritance of property in Muslim law comes only after the death of a person. Any child born into a Muslim family does not get his right to property on his birth. In fact no such person holds becomes a legal heir and therefore holds no right till the time of death of the ancestor. If an heir lives even after the death of the ancestor, he becomes a legal heir and is therefore entitled to a share in property. However, if the apparent heir does not survive his ancestor, then no such right of inheritance or share in the property shall exist.

Inheritance on the basis of Doctrine of Representation

  • Doctrine of representation states that if during the lifetime of an ancestor, any of his or her legal heirs die, but the latter’s heirs still survive, then such heirs shall become entitled to a share in the property as now they shall be representing their immediate generation. Doctrine of Representation finds its recognition in the Roman, English and Hindu laws of inheritance. However, this doctrine of representation does not find its place in the Muslim law of inheritance. For example, A has two sons B and C. B has 2 children i.e. D and E and C also has two children F and G. During the life time of A if B dies, then on the event of death of A only C shall be entitled to inherit A’s property. B’s children D and E shall not be entitled to any share in A’s property. Between C and B’s children D and E, C would totally exclude D and E from inheriting the property. Therefore, it is said that the nearer heir excludes the remote heir from inheritance.  The Muslim jurists justify the reason for denying the right of representation on the ground that a person has not even an inchoate right to the property of his ancestor until the death of that ancestor.[1] It is further argued that a right which was not vested in any possibility cannot give rise to claim through a deceased person.

Manner of Distribution

  • Under the Muslim law, distribution of property can be made in two ways, firstly per capita or per strip distribution. Per – Capita distribution method is majorly used in the Sunni law. According to this method, the estate left over by the ancestors gets equally distributed among the heirs. Therefore, the share of each person depends on the number of heirs. The heir does not represent the branch from which he inherits.
  • On the other hand, per strip distribution method is recognised in the Shia law. According to this method of property inheritance, the property gets distributed among the heirs according to the strip they belong to. Hence the quantum of their inheritance also depends upon the branch and the number of persons that belong to the branch. For example, if A has two sons i.e. B and C. B has two children i.e. D and E. C has three children F, G and H. Suppose on the death of A his property’s worth is estimated to be about 12000. B and C would be entitled to an equal share of 6000 each. . In case if B and C both die, then the extent of their children’s share shall be in following manner.  B’s children D and E can only inherit the property to the extent of B’s share. Their share shall be 3000 each. As far as the children of C are concerned the extent of property that they can inherit shall extend to 6000. Their respective shares shall be equal i.e. 2000 each. Hence, it can be said that the share of each person in this method of distribution varies.
  • It is noteworthy that the Shia law recognises the principle of representation for a limited purpose of calculating the extent of share of each person. Moreover, under the Shia law this rule is applicable for determining the quantum of share of the descendants of a pre-deceased daughter, pre-deceased brother, pre-deceased sister or that of a pre-deceased aunt.

Right of Females in inheritance of property

  • Muslim does not create any distinction between the rights of men and women. On the death of their ancestor, nothing can prevent both girl and boy child to become the legal heirs of inheritable property. Preferential rights do not exist. However, it is generally found that the quantum of share of female heir is half of that of the male heirs. The justification available to this distinction under Muslim law is that the female shall upon marriage receive mehr and maintenance from her husband whereas males will have only the property of the ancestors for inheritance. Also, males have the duty of maintaining their wife and children.

Rights of inheritance of a child in womb

  • Under Muslim Law, a child in the womb shall only be entitled to the share in property if he or she is born alive. In case if he is born dead then the share vested in him shall cease to exist and it shall be presumed that it never existed.

Rights of a childless widow and widow

  • Under the Shia law, a Muslim widow who does not have any children shall be entitled to inherit one – fourth share of the movable property belonging to her deceased husband. However, a widow with children or childless widow is entitled to one – eighth of the deceased husband’s property. In cases where a Muslim man gets married during a period when he is suffering from some mental illness and dies without consummating the marriage, the widow shall not be entitled to any right over her dead husband’s property.

Rights of the step children

  • The rights of the step children do not extend to inherit the property of their step – parents. However, the step brother can inherit property from their step sister or brother.

Escheat

  • In cases where a person dies without any heir then, the property of such a person shall go to the government. The state is considered as the ultimate heir of every deceased.

The need to re-examine to the Muslim personal law

  • In a recent development, a public interest litigation has been filed asking for an amendment in the Muslim personal law on inheritance, alleging that Muslim women are being discriminated on the issues relating to sharing of property in comparison to their male counterparts.
  • The petition claimed that a bare perusal of the law shows that a wife should receive 1/8th of the property of her husband on his death if they have children. In case there are no children borne out of marriage, she is entitled to 1/4th of the property. A daughter will receive half of the share of a son. In stark contrast, the men receive 1/4th of the property of his wife on her death if they have children. In case there are no children borne out of the marriage, he is entitled to half the property. A son receives double the share of the daughter, the plea alleged.
  • The petition further states that the discrimination based on customary law as well as the statutory law violated Muslim women’s fundamental right to equality enshrined under Articles 14, 19, 21 and other relevant provisions of the Constitution. The plea contended that Article 13 of the Constitution included personal laws, including Muslim personal laws.
  • The Delhi High Court has now sought the Centre’s response on the PIL filed by advocate Raghav Awasthi.

What is Divorce by Mutual Consent?

Section 13B of the HMA Act 1955 provides for divorce by mutual consent.

The Conditions required under section 13B of the Hindu Marriage Act are as follows: 

(i) Husband and wife have been living separately for a period of one year or more,

(ii) That they are unable to live together,

(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, Hence marriage should be dissolved.

Under these circumstances a Divorce by Mutual consent can be filed.

Advantages of mutual divorce:

Divorce By Mutual consent saves time, money and energy for both,

Leaves no room for unnecessary quarrel and most importantly avoid washing your dirty linen in public.

What is Divorce by mutual consent?

Divorce By Mutual Consent is as the name suggests is when both parties i.e. husband and wife come to a mutual understanding that the marriage be dissolved amicably.

How does it work:

In all there are two court appearances in a mutual divorce

  1. First A joint petition signed by both parties is filed in court .
  2. Secondly In the first motion statement of both parties are recorded and then signed on paper before the Hon’ble Court.
  3. Thirdly The 6 month period is given for reconciliation, (the hon’ble court gives a chance to the couple to change their mind)
  4. Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don’t agree to come together. Then the parties may appear for the second motion for the final hearing.
  5. Finally Divorce decree will be granted as the Hon’ble Court may deem fit.

Here are the list facts to be mutually agreed upon in the petition for Divorce by Mutual Consent:

Firstly: Custody of child;

Secondly: Alimony (lump sum maintenance to be decided between parties);

Thirdly: Returns of items (dowry, streedhan, etc); and

Fourthly: Litigation expenses.

The mutual consent divorce petition should also contain a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce.

The court will pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:

(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;

(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and

(c) The petition is not withdrawn by either party at any time before passing the decree.

If the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent.

In a mutual consent divorce petition, the marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, that means Both parties have to agree to Divorce.

What does Divorce by Mutual Consent Mean?

Divorce by Mutual Consent means when both Husband and wife has agreed amicably amongst themselves that they cannot live together anymore and that the best solution is to Divorce, without putting forth any allegations against each other, in the court of law, than such a Divorce petition presented jointly before the honourably court, is known as mutual consent Divorce, it is the quickest form of divorce in India.

  1. Formalities to be complied with

Under this section a decree for dissolution of marriage solemnized under this Act can be passed by a District Court on compliance with the following formalities:

(a) A petition is to be presented jointly by the parties to the marriage.

(b) The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation.

But it does not seem necessary for the court to go into that matter provided the condition of separate living under the same roof of matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not travel beyond the statutory condition of its jurisdiction.

(c) The parties have failed for any reason whatsoever to live together. In other’ words, no reconciliation or adjustment is possible between them.

(d) The parties have freely consented to the agreement of dissolution of marriage.

(e) The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiry of eighteen months from the date of presentation of the petition for making inquiry, the unilateral right of a party to withdraw the petition appears to be barred. But in Sureshta Devi v Om Prakash 5 it has been held that a party to a petition for divorce by mutual consent can unilaterally withdraw his or her consent.

(f) The court must be satisfied as to the averments in the petition after making inquiry and after hearing the parties which are initiated by a joint motion of the expiry of six months from presentation of the petition. The expression “after hearing the parties” appearing in sub-section (2) of section 28 of the Act does not require the presence of the parties before the court. Affidavit-evidence is sufficient for this purpose by virtue of section 40 of the Act which attracts the ­ Code of Civil Procedure 1908 and which provides in Order 19 for proof of any point by affidavits.

  1. Appeal and revision.

The maintainability of appeal though open to question, order is open to revision either under s. I IS of the Code of Civil Procedure or under Art. 227 of the Constitution of India.

  1. Ground of divorce by mutual consent

The ground of divorce by mutual consent is to be found in s. 28 of the Special Marriage Act 1954, and in s. 13B of the HMA. The Hon’ble court cannot read that ground under s. 10 of the Divorce Act 1869, by adopting a policy of “social engineering”.

  1. Reconciliation necessary

Even if dissolution of marriage by mutual consent is sought by a joint petition of the husband and the wife still it is incumbent on the court to comply with the mandatory provisions of s. 34(2) of the Act to make attempt for reconciliation between the parties.

To learn more about family laws here are a list of articles:

Preeti Singh v Sandeep Singh – Supreme Court Guidelines on Mutual Consent Divorce

Divorce: To get a judgment of divorce, you have to make arrangements for your property, your children, and support (if any). If you have a high degree of conflict, it is also about keeping the peace and protecting you, your children and your property.

Restitution of Conjugal Rights: Section 1(1) of the Hindu Marriage Act, 1955 embodies the concept of Restitution of Conjugal Rights under which after solemnization of marriage if one of the spouses abandons the other, the aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights

Recognition of Equality Marriage: Marriage is an eternal bond, the essence of family. In most parts of the world, the idea of marriage is confined strictly to union of two biologically different sexes, one man and one woman, the basic formula for propagating the species

Family Courts in India: There are also cases of misuse of provisions like Section 498A of the Indian Penal Code, Protection of Women from Domestic Violence Act, Section 125 Criminal Procedure Code, Child Custody laws to name a few

 Divorce under Muslim Law: 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.

Divorce by mutual consent: A consent decree per se in matrimonial matter is not collusive. As would be evident from the legislative intent of s. 13B of the Act

Mediation In Divorce: With an alarming increase in the number of couples heading for divorce in India, judges have now stood up to save the sanctity of marriage

Supreme court Judgments on Divorce laws in India:

Sexual harrasment | Woman has no right to eye her mother-in-law’s property for maintenance | Police and court cannot impound passport but can seize it for at most 4 weeks | Quash of 498a filed 10 years after customary divorce and alimony | Husband gets divorce on grounds of cruelty | Quash of 498a citing abuse of court process (NRI) | Customary payments, gifts not dowry | Requirements for a Foreign Divorce be valid in India | Crime against woman Judgments | A.K Kraipak v. Union of India

The Concept of Divorce under Muslim Law

Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of divorce . Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. However in whatever manner the divorce is effected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. The Prophet declared that among the things which have been permitted by law, divorce is the worst . Divorce being an evil, it must be avoided as far as possible. But in some occasions this evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on their union with mutual affection and love then it is better to allow them to get separated than compel them to live together in an atmosphere of hatred and disaffection. The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together. A divorce may be either by the act of the husband or by the act of the wife. There are several modes of divorce under the Muslim law, which will be discussed hereafter.

Modes of Divorce: 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, and
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 practiced 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. In Hannefa v. Pathummal, Khalid, J., termed this as “monstrosity” . Among the Sunnis, talaaq may be express, implied, contingent constructive or even delegated. The Shias recognize only the express and the delegated forms of talaaq.

Conditions for a valid talaaq:
1.) Capacity: 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.

2.) Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaaq must be 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.

Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is void even under the Hanafi law.
Shia 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.

3.) 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.

4.) Express words: 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,
• Talaaq-i-biddat.
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 dictats 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.

Talaaq-i-Biddat: 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.

Ila: 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.

Zihar: 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 month the wife has following rights:
(i) She may go to the court to get a decree of judicial divorce
(ii) 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:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) 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 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 come 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:
(i) Talaaq-i-tafweez
(ii) Lian
(iii) 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.

Lian: 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,-
    (a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical illtreatment, or
    (b) Associates with women of ill-repute or leads an infamous life, or
    (c) Attempts to force her to lead an immoral life, or
    (d) Disposes of her property or prevents her exercising her legal rights over it, or
    (e) Obstructs her in the observance of her religious profession or practice, or
    (f) 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.

In Aboobacker v. Mamu koya , the husband used to compel his wife to put on a sari and see pictures in cinema. The wife refused to do so because according to her beliefs this was against the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty because mere departure from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour.

In Itwari v. Asghari , the Allahabad High Court observed that Indian Law does not recognize various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test of cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health.

Irretrievable Breakdown: 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 maintenancy 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.

Conclusion:
In contrast to the Western world where divorce was relatively uncommon until modern times, and in contrast to the low rates of divorce in the modern Middle East, divorce was a common occurrence in the pre-modern Muslim world. In the medieval Islamic world and the Ottoman Empire, the rate of divorce was higher than it is today in the modern Middle East. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some villages in western Java and the Malay peninsula had divorce rates as high as 70%.In practice in most of the Muslim world today divorce can be quite involved as there may be separate secular procedures to follow as well. Usually, assuming her husband demands a divorce, the divorced wife keeps her mahr, both the original gift and any supplementary property specified in the marriage contract. She is also given child support until the age of weaning, at which point the child’s custody will be settled by the couple or by the courts. Women’s right to divorce is often extremely limited compared with that of men in the Middle East. While men can divorce their spouses easily, women face a lot of legal and financial obstacles. For example, in Yemen, women usually can ask for divorce only when husband’s inability to support her life is admitted while men can divorce at will. However, this contentious area of religious practice and tradition is being increasingly challenged by those promoting more liberal interpretations of Islam.
**********************
# Sinha R.K., Muslim Law, 5th Edn., (Allahabad:2003).
# Tyabji, Muslim Law, 4th Edn., p.143.
# The Holy Quran, IV, 35.
# Abdur Rahim, 327.
# Diwan Paras, Law of Marriage and Divorce, 5th Edn., (New Delhi:2008)
# The Raad-ul-Muhtar, II, 683-684.
# Faizee, Muslim Law, p. 156.
# The Hedaya 139, Fatwa-i-Alamgiri, I, p.669.
# Baillie, Digest of Moohummudan Law, pp.238, 109.
# A.I.R. 1972 J&K 8.
# Hamidoola v. Faizunnisa, (1812) 8 Cal 327.
# A.I.R. 1977 Cal 90.
# A.I.R. 1988 J&k 62
# ( 1979) II Andh LT 179
# (1943) 210 IC 587.
# (1971) KLT 663.
# A.I.R. 1960 All 684.
# A.I.R. 1945 Lah 51
# A.I.R. 1971 Ker 261.

Is Marriage between a Muslim and Hindu Legal?

Needless to say, inter-faith marriages are largely looked down across the nation, by Hindus and Muslims alike. The main issue with a Hindu-Muslim marriage is not about people’s personal distaste towards it, but the legal ramifications pertaining to it. Both the Hindu and Islamic Marriage Acts have labeled marriage to someone from the opposite religion as void.

Relevance of Special Marriage Act, 1954

The Special Marriage Act of 1956 provides some legal recognition to people in a Hindu-Muslim marriage. This Act does not override the separate clauses of the Hindu and Muslim laws. The spouses continue to be bound by the laws of their respective religions, unless one of them gets converted. This Act is intended to solve the basic legal disputes or matrimonial affairs that arise over the course of an inter-faith marriage.

Qualifying under the Special Marriage Act

It must be noted that not every marriage is recognized under the Special Marriage Act. The following terms must be fulfilled to file for marriage under the Act:

  • The marriage is a civil contract, involving no form of rites or ceremonies.
  • Both parties must not be involved in any other existing valid marriage.
  • The parties should not be mentally incapacitated, and must be capable of giving a valid consent for the union.
  • The bride must be at least 18 years old, and the bridegroom must have attained 21 years.

Is Conversion the Only Solution?

The Special Marriage Act, often a convenient resort for parties of a Hindu-Muslim marriage, fails to qualify the spouses for inheritance benefits under their separate laws. This is often a detrimental scenario, particular for a child born of such wedlock. Therefore, regardless of how optimistic and liberal one is, partners of an inter-faith marriage are likely to be faced with a dilemma to covert to another religion, at least for the sake of their children.

Conversion is a common practice in India, and laws do not debar anyone from converting or re-converting. However, since religion is a sensitive issue, conversion is largely averted by the community.