A Critical Analysis Of Divorce By Mutual Consent Across Different Religious Laws
INTRODUCTION
India is a country of a very diverse culture. There are billions of people who are governed by the same set of territorial laws when it comes to administrative functions like taxes, contracts and even criminal offences. But, when it comes to personal laws regarding culture, the India constitution is very vast in terms of how it has laid down different rules for different cultures. Marriage is a social contract which binds two people in a union. It is a sacramental relationship in the Indian sub-continent, this institution varies from culture to culture as every culture has its own way to perform the practices and processions. A similar situation can be seen when it comes to divorce, the codified nature of the legislations makes it easier to break the bond of marriage across all the major religions like Hinduism, Islamism, Christianism and even Parsi law. Over the years, laws related to Marriage have evolved with the change in society. The abolition of Triple Talaq was a landmark judgement as it was a positive step towards divorce by mutual consent under Muslim law.
ANALYSIS
Why Divorce by Mutual Consent is Important?
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Marriage is a bond that is entered into by two parties and one of the most important essentials is that the consent of the two parties should be free from any undue influence. A similar situation should be observed when it comes to divorce. Shayara Bano v Union of India was a positive step towards equality when it comes to divorce laws. It abolished the concept of Triple Talaq under Muslim Law where the husband (Shohar) could divorce his wife (Biwi) just by saying the word ‘Talaq’ three times. This was a total discrimination of woman in the Muslim community as it did not put them at an equal stance.
Essential Conditions of Divorce Similar under every Personal Law
There are certain conditions that are similar to divorce under every kind of personal law. These range from simple desertion to even cruelty.
- Cruelty: Any form of mental, social or physical harm that one spouse inflicts on their significant other is termed as cruelty.
- Desertion: The meaning of desertion is quite similar under all personal laws but the period of time for desertion varies from religion to religion. Simply stated, it means voluntarily abandoning your spouse for a period of not less than 1 year.
- Unsound Mind: Any sort of mental disorder or insanity that makes it very difficult for a couple to stay together in a marriage can be grounds for divorce.
- Leprosy: Any form of leprosy can be a valid ground for divorce.
- Presumed death: If a person has not been seen alive for a period of not less than 7 years than he or she can be presumed dead and can be granted as a valid ground for divorce.
- Adultery: The process of having a sexual relationship with anyone other than your spouse is called adultery and can be a valid ground for divorce.
- By Mutual Consent: Divorce by mutual consent is where both parties agree to end the marriage by their own free will.
Divorce by mutual consent under different types of religions
- Hindu Law
The Hindu law extends to every person who is a Hindu by birth or by conversion. It includes every person who is a Jain, Sikh or Buddhist by religion. Hindu law is one of the longest codified laws in India when it comes personal laws. Prior to the Implementation of Hindu law, Marriage was considered as an unbreakable bond between two persons according to Shastras. It was only after the passing of the Hindu Marriage Act, 1955 that the provision of divorce was added to the constitution. Section 13B2 of the act provides for divorce by mutual consent. It states that if a couple has not been able to stay together for a period of one year or more then they may file a suit for mutual divorce.
- Under Christian Law
Christians have a different set of rules that govern their religion. Grounds for divorce are laid down in Section 10 of the Christian Divorce Act, 1869.3 It states that a person can claim divorce under this section if they can prove any of the given conditions necessary for divorce like abandonment, cruelty, unsound mind, adultery etc. Section 10B states the grounds divorce by mutual consent, it clearly states that if two parties to a marriage want a divorce, they can file a case under this provision and prove that their marriage is irreparable even after living separately for 2 or more years.
- Under Parsi Law
Divorce under Parsi Law is governed by the Parsi Marriage and Divorce Act, 1936. Parsi law is a little different from the rest of the laws, if a couple do not wish to be married anymore then either party can declare the marriage as null and void under Section 304 of the Act. The major point of difference under Parsi law is that when it comes to divorce by mutual consent, there is not a 1 year waiting period like Hindu Law, the couple can start divorce proceedings as soon as the papers are filed with the correct authorities.
- Under Muslim Law
Muslim Law has the most number of ways divorce can be granted in India. It is governed by the Muslim Personal Law (Shariat) Application Act, 1937.5 It can be divided into three main parts:
- By Husband
Muslim law is the only law which gives a superior status to men when it comes to divorce. A husband can pronounce Talaq to his wife even without any intervention by the courts. There are a lot of different schools under Muslim laws and each school has different rules when it comes to divorce. Under Hanafi school, the husband can even pronounce Talaq while being under the influence of alcohol, fraud or coercion while the same is not present under other schools. The Shia school has a different approach where the divorce must be done in the present of two distinct witnesses and also in oral form.
- By wife
One of the most prevalent forms is Khula where the wife pays a certain some of money to “Riha” from the husband. This consideration paid by the wife is to dissolve the marriage. The second form of divorce is if the husband accuses the wife of adultery and the same can be proved in the favour of the wife then she can file for a divorce.
- By mutual Consent
In Muslim law, divorce by mutual consent is known as Mubaraat. In most cases, this form of divorce occurs when there is no more love between the husband and the wife.
CONCLUSION
India is a multi-cultural country where many different religions are practised openly. Therefore, the idea of marriage also depends on the personal law that an individual practises, even though some religions consider it to be a sacrament and take the form of a contract. The same personal laws, which are typically codified, apply to the dissolution of such marriages as well. The concept of divorce has often experienced a number of adjustments within the personal laws in light of societal changes. The legislature has attempted to make certain changes while keeping in mind the constitutional principles to the personal laws relating to marriage and divorce that were mostly enacted after independence. Recently, the courts have also contributed to the interpretation of these statutes by taking the constitutional principles of equality and privacy into consideration.
Author: Sonakshi Pandey, A Student at the Symbiosis Law School, NOIDA, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing
