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Published: Fri, 02 Feb 2018
COMPARISON OF DIVORCE UNDER HINDU AND MUSLIM LAW
Table Of Contents
SOURCES OF LAW………………………………………………………………………….4
Muslim Law .5
Hindu Law 6
DIVORCE – MUSLIM LAW 8
A. By the Husband 9
B. By the wife 11
Divorce by Mutual Agreement 12
Divorce by the Court 12
B. Faskh 12
• Injury or Discord 13
Divorce by Law 15
DIVORCE – HINDU LAW 16
Mutual Consent 21
SUBJECT : Family Law – I
AREA : Personal Laws
TOPIC : Comparison of divorce under Hindu and Muslim law
OBJECT : To compare and analyze the specific differences between the two personal laws and highlight the same.
OBJECTIVES: The specific objectives of this project are
• To Study in detail, the grounds for and procedure with respect to attaining divorce in Hindu and Muslim Laws.
• To explain and analyze the same, with the help of comparative method
DATA: Secondary data would be used and utilized in carrying out the research work. The sources of data would include textbooks, reports and articles on the relevant topics and journals.
FOOTNOTING STYLE: The footnoting style, used throughout the project, is in accordance with the one prescribed by the National Law University, Jodhpur.
““The worst reconciliation is better than the best divorce””
– Miguel de Cervantes, El Quijote
The term ‘Divorce’ is derived from the Latin term ‘divortium’ which means to turn aside or separate. Divorce is the legal cessation of a matrimonial bond and thus refers to a situation where a man and wife no longer remain so due to a number of possible reasons, acceptable in law as grounds for divorce.
In the case of Ms. Jordan Diengdeh v. S. Chopra, the issue of divorce laws under different religions was addressed and studied. A comparison of the relevant provisions of the Christian marriage act 1872, Hindu marriage act 1955, special marriage act 1954, Parsi marriage and divorce act 1936, dissolution of Muslim marriage act, 1939, show that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform in different religions.
India has two major legal systems governing personal laws. Hindu law governs Hindus in all aspects of life, and Islamic law governs Muslims in the areas of divorce, marriage, and inheritance. The application of distinct family laws to specific cultural groups is the foremost way in which cultural diversity is recognized. Multicultural institutions often provide unequal rights to citizens, violate individual rights, impede policy change, and restrict cultural exchange. Some argue that such outcomes are inevitable aspects of multiculturalism. Such criticisms are particularly leveled at plural family law systems. This is because the norms of most groups give the genders unequal rights in family life, or at least did so when plural family law systems initially took shape.
While this separate system of governing in the family law context is still intact, it has faced opposition in recent years from the Hindus, who comprise a clear majority of India’s population. Muslims, the second largest religious group in India, total approximately ten percent of the population. Several years ago, the Indian Supreme Court took an unprecedented step and requested that the Central Government enact one civil code applicable to all residents of India, drawing from the mandate of Article 44 of the Indian Constitution, which directs the states to “endeavour to secure for the citizens a uniform civil code throughout the Best territory of India.”
Sources Of Law
Even though there are several sources of Islamic law, for the purpose of comparison, only the most basic sources that apply to Muslims in India are relevant. The essence of Islamic law is the Shari’a doctrine. Shari’a consists of commentaries and scholarship on justice, welfare, and how Muslims should live. The most important text in Islamic law is the Qur’an. Muslims regard the Qur’an as the Prophet Muhammad’s seventh century A.D. writings of the word of God. The Qur’an is not a compilation of law per sé; it contains religious and ethical standards to which Muslims must adhere. The Qur’an is an important source to understand the principles and practices associated with divorce under Muslim law.
A second source of Islamic law, answering what the Qur’an does not, is the Sunnah of the Prophet Muhammad. The Qur’an gives rise to the Sunnah by saying, “You who believe, obey God and the Prophet … and if you are at variance over something, refer it to God and the Messenger.” The Sunnah, in essence, is a record of the Prophet’s sayings, deeds, and silent approval of deeds. Muslim scholars interpreted the Sunnah and transmitted it through narrative records known as hadiths. The most accurate hadiths come from approximately the middle of the ninth century A.D. By following the Sunnah, Muslims hope to achieve Muhammad’s perception of God.
A third source of Hanafite law is istihsan, or juristic preference. Pursuant to istihsan, if analogical reasoning leads to a harsh outcome in a situation, then equitable principles can be applied to lessen the severity of the result. At this point, Islamic law in India takes a path different from Islamic law in other countries. These differences arose because foreign states influenced, through invasion and colonization, the various Islamic regions in different ways. While the Middle East has codified Shari’a doctrine, India has implemented a case law system, resulting from its colonization by Great Britain that allows Indian courts to decide cases of Islamic law based upon legal precedent.
The main source of Hindu law is the Constitution of India, which the Indian Parliament drafted in 1950 as the supreme law of the land. The drafters designed the Constitution to entrench fundamental values, such as the civil and political rights of Indian citizens. The purpose of government became the creation and furtherance of an egalitarian order, not merely the prevention of social inequality.
The Constitution of India, in keeping with the Theory of Separation of Powers, delegates legislative powers. List I of the Constitution grants the Central Government the exclusive right to legislate in areas of foreign relations, national security, military affairs, citizenship, commerce, and other national affairs, while List II grants the state governments the exclusive right to legislate in the areas of police administration, public order, education, public health, agriculture, and other local matters. List III is the Concurrent List; it enumerates areas in which both the Central Government and the states may legislate. Union, or federal, legislation in any of these areas, however, supersedes concurrent state legislation. List III includes family law, criminal law, and economic planning. Because the Central Government has legislated in the area of divorce, any state legislation is inapplicable and only the Union legislation is relevant for the purpose of comparison.
The second source of law is the Hindu Code. The Hindu Code is a compilation of statutes that was created in the mid-1950, keeping in mind that all such legislation must comply with the Constitution. Working in conjunction with the Code is judicial authority, a creation of the British Empire. Great Britain colonized India until 1947, infusing into India British concepts of law and jurisprudence that have remained. Great Britain created a legal system dependent upon judicial authority, often called Anglo-Hindu law, to model a common-law system.
The final source of law is the Dharmasastra, a system the Brahmin class founded upon religious perceptions of righteousness. Dharmasastra dates back to the sixth century B.C. At its inception, Dharmasastra was applicable to only the higher castes; though in modern times the Court takes these principles into consideration.
Divorce – Muslim Law
In Muslim law, Marriage (Nikah), is a Civil Contract between the Husband, (Zawj): and the Wife, (Zawja). The Muslim Personal Law (Shariat) Application Act of 1937 subjects Muslims in India to Islamic personal laws. This Act states, in relevant part:
Application of Personal Law to Muslims.– Notwithstanding any custom or usage to the contrary, in all questions … regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, … the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
According to Islamic law, there are several methods by which one spouse may divorce another. Because marriage is considered a contract between husband and wife, divorce or repudiation can terminate only a valid marriage contract; if the contract was not valid, either the couple or a court must annul the marriage. The methods of terminating a marriage are:
• Repudiation of the marriage contract,
• Divorce by mutual agreement,
• Divorce by court order, or
• Divorce by law.
Each of these methods is examined in sequence below.
By the Husband
The most well-known form of divorce in Islam is that of repudiation, known formally as talaq. Before a couple can be divorced by repudiation, the couple must allow two judges, one representing each spouse, to attempt a reconciliation; if reconciliation is impossible, repudiation can occur. Repudiation is a right, with some qualifications, for husbands under Islam. The repudiating husband must be of majority age and sane. Furthermore, the husband must not be in a state of heightened emotion, namely rage or shock. Interestingly, the husband does not have to be free of coercion or intoxication to repudiate, and pronouncements of talaq as threats, oaths, or in jest are binding. With these mandates fulfilled, a husband can divorce his wife if he follows the formal requirements.
The formal requirements are minimal. Words of repudiation, whether written or spoken, must be clear and unequivocal. The words must proclaim a divorce, or talaq. If the words are not explicit, the husband must prove that his words show intent to divorce. It has been held that the wife need not be present during, nor given notice of, the divorce for it to be effective.
Finally, the pronouncement can be either absolute, affecting a divorce immediately, or conditional, affecting a divorce upon the occurrence of some event or conduct.
Upon fulfilment of the above conditions, the Qur’an provides for three forms of approved repudiation, known as talaq-us-sunnat. The first two forms consist of a single pronouncement of divorce and both are called talaq-ul-ahsan. The Qur’an establishes the first talaq-ul-ahsan with the following phrase: “O you who believe, when you marry believing women then divorce them before having (sexual) contact with them, you have no right to demand observance of the ‘waiting period’ of them.” This portion of the Qur’an states that if a husband repudiates the marriage before it is consummated, the repudiation is effective immediately. This is the only form of repudiation that occurs prior to consummation of the marriage.
The second type of talaq-ul-ahsan occurs after consummation of the marriage. By virtue of the procedures for the two, the first form is the most favored. In order to repudiate pursuant to the second form of talaq-ul-ahsan, a husband should proclaim talaq during a period when his wife is not menstruating and abstain from marital relations with her for a certain amount of time after the proclamation, a period known as the iddat.
Prior to completion of the iddat, the husband can revoke the repudiation, even without his wife’s consent, by either words of revocation or resuming marital relations with his wife. If the husband does not revoke the repudiation in that time, the repudiation is effectuated and the couple can be rejoined only by remarriage. According to the Qur’an, a husband can repudiate twice and revoke each time without problem.
Repudiating a third time yields the second kind of talaq-us-sunnat, talaq-ul-hasan. The third pronouncement of talaq finalizes the repudiation immediately. The husband can no longer revoke because the repudiation is final. The iddat is considered over and the former couple can no longer engage in marital relations. The only way for the couple to be reunited is for the wife to marry another and for that second husband to divorce her after consummation of the marriage. After that divorce, the first husband may remarry the wife. Islamic law favours repudiations that can be revoked, namely the first and second pronouncements of talaq. This is probably because such repudiations allow for resumption of the marriage.
In providing for revocable talaq, however, the Qur’an does not treat repudiation lightly. The Qur’an calls for the husband to “keep [women] honourably (by revoking the divorce) or let them go with honour.” For this reason, repetitive repudiations are considered mockeries of God’s will and are looked upon with contempt by the Qur’an.
There are also two methods of irrevocable repudiation, otherwise known as talaq-ul-biddat, that the Islamic community disapproves of because the procedures do not follow the Qur’an’s mandates:
• “triple talaq” – The husband proclaims talaq three times by saying either (1) “I divorce thee three times” or (2) “I divorce thee” three times in succession.
• The husband makes one, irrevocable pronouncement.
If either form of talaq-ul-biddat occurs, the repudiation is final at pronouncement, and a remarriage is required if the couple wishes to be reunited.
B. By the wife
The Qur’an states that “Women also have recognized rights as men have, though men have an edge over them.” The right of husbands to repudiate is also a right of wives, but in limited form. A wife’s power to repudiate is limited because a wife can have the right of talaq only if her husband expressly delegates his power to repudiate to her. For that reason, this form of repudiation is called “delegated divorce.” The husband can delegate the power for any length of time and with any restrictions or conditions he chooses. For the wife’s talaq to be valid, she must prove that any conditions allowing her to exercise her power have occurred and that she did exercise her power.
Divorce by Mutual Agreement
The Qur’an says, “If you fear you cannot maintain the bounds fixed by God, there will be no blame on either if the woman redeems herself.” This method is called mubaraat. When the parties agree to a divorce, the marriage is irrevocably dissolved.
Divorce by the Court
The Qur’an regulates the lian manner of divorce. The Qur’an states:
“Those who accuse their wives and do not have any witnesses except themselves, should swear four times in the name of God, the testimony of each such person being that he is speaking the truth, and (swear) a fifth time that if he tell a lie the curse of God be on him. The woman’s punishment can be averted if she swears four times by God as testimony that her husband is a liar, her fifth oath being that the curse of God be on her if her husband should be speaking the truth.”
Upon being accused of adultery, a wife can file suit to compel her husband to retract the accusation or swear the oath that the Qur’an requires. During this time, when the suit is filed, the couple cannot engage in marital relations. If the husband retracts his accusation, the wife is not entitled to a divorce and the couple can resume normal relations. If the husband does not retract his statement, the wife can file for divorce and must swear her own oath of innocence; a hearing is then held on the charge of adultery. Lian applies only when the husband accuses the wife of adultery, and not the other way around.
While the Qur’an does not promote divorce, it states, “If you fear a breach between the couple appoint one arbiter from the people of the man and one from the people of the woman. If they wish to have a settlement then God will reconcile them ….” This provision is interpreted to mean that the Qur’an permits Muslims to divorce pursuant to legal standards. In 1939, British India enacted the Dissolution of Muslim Marriages Act (“DMMA”). The DMMA provides grounds for marriage dissolution unrecognized prior to its enactment. Only a wife can file for divorce under the DMMA; a husband cannot invoke the DMMA to divorce his wife. This is probably because husbands have broad talaq rights and do not need the rights that the DMMA gives. The most important implications of the DMMA are that it:
– raises the stature of Muslim women in the family law context, and
– does not differentiate between the Islamic schools.
The DMMA lists a variety of grounds upon which a woman can be entitled to a decree of divorce; only one of them need exist for a divorce to be granted. Though the grounds are listed in no particular order, they can be divided into four separate categories:
Injury or Discord
This first category allows a Muslim wife to file for divorce on the ground that her husband caused her injury, covering both emotional and physical injuries. A husband forcing his wife to commit immoral acts or lead an immoral life is also a form of injury. Injury, however, is not a prerequisite to divorce within this category, as discord within the couple will suffice. Discord, as a reason for divorce, must go further than mere disagreements between husband and wife. The husband must take control over his wife’s property without her consent, interfere with his wife’s religious practices, or treat her in violation of the Qur’an.
• Defect on the part of the husband
The second category allows a Muslim wife to file for divorce if her Muslim husband has some type of defect. By defect, it is meant that the husband either has become impotent since the marriage took place, has been insane for two years, or has leprosy or venereal disease. Before a court grants a divorce on grounds of impotence, however, the husband can have the ruling stayed for one year to give him time to prove to the court that his impotence no longer exists. If the husband so proves, no divorce will be entered. According to some scholars, these grounds are based upon the treatment of marriage as a contract in Islam. It is possible that the rationale is that if the wife enters into marriage with the expectation that her husband is “whole” and can produce children, the absence of any of these attributes should suffice as a condition for divorce.
• Failure to provide for maintenance
Under the DMMA, a husband’s failure to maintain to provide maintenance to the wife is a separate ground for divorce. The courts have given a very wide interpretation to this clause and held that the wife is entitled to a decree of divorce wherein failure to neglect to maintain arises owing to his poverty, loss of work and so on, the wife is still entitled to a divorce where she has not been the direct cause of the same. In the case of Mehafoz Alam Dastagirsab Killedar Vs. Shagufta , the woman had left the husband, and nevertheless claimed maintenance, the law was torn between providing women who deserted their husbands with a lottery in the form of maintenance and between allowing men who ill-treated women to the point of leaving, the benefit of their wrong-doing. Despite it being alleged on the side of the male, that the woman had left of her own accord, had never demanded maintenance, and did not require maintenance, it was held that maintenance was a ground for which she could sue if it were not given to her as required. Hence, the ground of neglect was proved. Here is laid out the intention of the legislature to protect women, being a needy section of the society, hence, the provisions must be read in their favor.
• Absence or imprisonment of the husband
A wife may file for divorce if her husband is missing or becomes imprisoned. If the husband is missing for four years, the court shall grant a divorce. The wife must notify the people who would be her husband’s heirs and such heirs have a right to be heard. If granted, the divorce shall not take effect for six months; if the husband or his agent comes forth within those six months and promises the husband will fulfil his marital duties, the court must set aside the decree. Also, the wife can file for divorce if and when her husband is sentenced to incarceration for seven or more years.
Divorce by Law
Two situations can exist whereby a previously valid marriage will become invalid, making a divorce or court order unnecessary:
• Change of one spouse’s religion
Conversion is referred to as ‘apostasy’ under Muslim Law. A Muslim may cease to be a Muslim merely by renouncing his faith. It may be express or implied; while formal conversion to another religion also amounts to apostasy.
– Apostasy of the Husband results in instant dissolution of the marriage; the wife need not observe Iddat.
– Apostasy of a formerly non-Muslim Muslim wife, will also result in dissolution
– Apostasy of a Muslim wife does not bar her from suing for divorce under section 2 of the DMMA. It does not dissolve the marriage.
– If she remarries before the dissolution of the marriage, she can be prosecuted for bigamy.
• Creation of a prohibited relation.
In essence, the Qur’an discourages intra-family relations. With respect to this paper, this proclamation means that, if one spouse commits a sexual act with an ascendant or descendant of the other, the couple could be considered related and the marriage is dissolved.
Divorce – Hindu Law
The Hindu Marriage Act of 1955 (“HMA”) is the law that governs Hindu divorces. The HMA applies:
• To any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthna or Arya Samaj,
• To any person who is a Buddhist, Jaina or Sikh by religion, and
• To any other person domiciled in the territories to which this Act extends who is not Muslim, Christian, Parsi or Jew by religion (emphasis added).
As the HMA explicitly states, it does not apply to Muslims. This is the clearest example of the absence of church-state separation in India; religion plays a large role in the application of laws.
The HMA made two changes to the prior rule: it sanctioned only monogamous marriages and introduced the concept of divorce. Another differentiating aspect of the HMA is that both wives and husbands can invoke it; the HMA is gender neutral. In 1976, the Central Government amended the HMA to its current state via the Marriage Laws (Amendment) Act. The amendments introduced the “breakdown principle” as a ground for divorce; couples could get divorced for the simple reason that the marriage was not working. The HMA, as amended, is divided into two sections: marriages considered voidable and grounds for divorce, and for the purposes of comparison with Muslim law, only the latter needs to be taken into account.
Hindu spouses in India can petition for a judicial decree of divorce either on fault grounds or by mutual consent. The HMA provides a list of circumstances, each of which can serve as grounds for divorce. These grounds can be best categorized into:
• Mistreatment of the petitioning spouse,
• Illness on the part of the respondent spouse,
• Absence of the respondent spouse,
• Religious conversion of the respondent spouse, and
• Mutual consent.
One interesting aspect of this statute is that Indian courts may not hear petitions for divorce until one year of the marriage has elapsed; there is an exception to this rule, however, in circumstances in which extreme hardship or depravity are factors. The most obvious reasoning behind this provision is that the legislature intends to provide couples married less than a year and seeking a divorce an attempt at reconciliation before separating.
Hindus can divorce on grounds that the respondent spouse has mistreated the petitioning spouse. The mistreatment can be adultery or either mental or physical cruelty. Adultery is a serious matrimonial lapse and even the most liberal of societies view this as extremely damaging to a harmonious marital relationship. The word ‘adultery’ is not explicitly defined anywhere, except in a most limited sense in the Hindu Marriage Act, 1955 as ‘voluntary sexual intercourse with any person other than his or her spouse’. Under Section 13(1)(i) and Section 10(1) of the Hindu Marriage Act, 1955, either the husband or the wife may file a petition for dissolution of marriage or judicial separation, respectively, on the ground that the other party ‘has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse’. This provision was amended in 1976 by the Marriage Laws (Amendment) Act, and now a single act of voluntary sexual intercourse by a party with any person other than his/her spouse is sufficient to prove adultery.
Cruelty is a ground for matrimonial relief, and the same has not been defined either. This is rightly so as human behaviour is diverse, and what is construed as cruelty today, may not have been so a few decades back. Section 13(1)(ia) of the HMA states that a marriage may be dissolved on the ground that the other party has ‘after the solemnisation of the marriage, treated the petitioner with cruelty.’
This category pertains to marriages in which the respondent spouse suffers from some form of illness. Under the shastric law, there was no concept of a voidable marriage. Though marriage with a lunatic or idiot was not viewed with favour and was rather discouraged by the shastras, but such a marriage, if performed was not treated as void. Thus, the marriage of a lunatic who was not so insane so as to not understand that he was being married was held not to be invalid. According to another view, however, such marriages should not be held to be valid. The law on the point has now been settled as under s. 12 (1)(b), stating that such marriage is only voidable and not void.
Under s. 5(ii) of the Hindu Marriage Act, 1955, if either party to the marriage is:
a) incapable of giving a valid consent to it in consequence of unsoundness of mind; or
b) though capable of giving a valid consent, has been suffering from mental disorder of such kind or to such an extent as to be unfit for marriage and the procreation of children; or
c) has been subject to recurrent attacks of insanity,
then the marriage shall be voidable and may be annulled by a decree of nullity. It must be mentioned that the crucial time is the time of the marriage, and thus, where a party had suffered from an occasional mental derangement before marriage but was cured at the time of the marriage; there can be no decree of annulment.
With respect to physical illnesses, though matrimonial law cannot take notice of every kind of physical abnormality as affording a ground for relief, there are certain serious diseases which it would take into account in its provisions relating to matrimonial reliefs. Under the Hindu Marriage Act, 1955, as amended in 1976, divorce is available if the other party is suffering from ‘virulent and incurable form of leprosy’.
Living together is the essence of marriage; living apart is its negation. If one spouse is absent for a period of time or convicted of a crime, the other spouse has a valid reason for divorce. As pointed out by the apex court in Savitri Pandey v. Prem Chandra Pandey:
Desertion for the purpose of seeking divorce under the Act means the intentional permanent forsaking and abandonment of one spuse by the other without that other’s, consent and without reasonable cause. In other words, it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place, but from a state of things… Desertion is a not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.
However, in Bipinchandra Jai Singhbai Shah v. Prabhavati, which was a case under the Bombay Hindu Divorce Act, 1947, the court lucidly defined and explained the concept of desertion. It held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.
Therefore, there are two essentials so far as the deserted spouse is concerned:
• the absence of consent; and
• the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
Further, the petitioner for divorce bears the burden of proving those elements in the two spouses respectively.
Religion is a very sensitive and personal aspect of individual’s life and the Constitution of India guarantees the freedom of conscience and religion to people of all denominations. Thus, a person is free to profess any faith or relinquish his faith of birth and convert to any other religion. In keeping with the highly religious tradition of India, this category allows for divorce if one spouse either:
• changes his or her religion from Hinduism, or
• renounces the world by entering a holy order after the marriage has been performed.
The logic underlying the grant of relief in case of conversion is, however, not merely a legal one, viz that after conversion, the convert will be governed by different personal law, but also because conversion could mean a radical change in the personality of the convert.
Conversion could have the following legal effects on the marriage:
i) An automatic dissolution of the marriage
ii) A ground for divorce at the instance of the non-convert
iii) A ground for divorce at the instance of the convert
The issue whether a marriage performed under the Hindu law can be dissolved under the Hindu Marriage Act, 1955 by a spouse who ceases to be a Hindu by conversion to another religion, was considered by the Delhi High Court in Vilayat Raj v. Sunita, where it was held that the relevant date on which both par
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