A divorce is generally governed according to the personal laws in India. India being a multi-diverse country with people of different faith residing together, their traditional customs are generally governed according to their respective religion or personal law. Complications are expected to arise when people of different religion wish to get married or divorce.
In the event of a divorce between a Hindu and a Muslim couple, there are certain considerations involved, depending on what structure they got married in the first place. Whether they got married under their personal laws or it was a civil marriage i.e. under the Special Marriage Act, 1954.
If marriage has been solemnized under provisions of special marriage act, then for obtaining a divorce you will have to file for divorce in family court under Section 27 of Special Marriage Act. It lays down certain grounds for divorce.
Various grounds for obtaining a divorce are –
The Act Also provide the wife with certain special grounds on which she can get a divorce from her husband. They are –
You can also get a divorce with mutual consent under section 28 of the Special Marriage Act. A petition can be presented by both parties that they have been living separately for a period of one year or more and they jointly decide that the marriage should be dissolved.
If a Hindu and a Muslim couple have married either under Muslim law or Hindu, divorce proceedings will be governed by their personal law provisions only. In each case, either party converts to their respective spouse religion.
Under the Muslim Law, a marriage is dissolved either by the death of the husband or wife or by divorce. After the death of a wife, the husband may remarry immediately. But the widow cannot remarry before a certain specified period called Iddat expires.
There are two categories of divorce under the Muslim law:
1.) Extrajudicial divorce, and
2.) Judicial divorce
Generally, both the parties to the marriage contract have a certain specific right, but the husbands right in this respect are much greater than that of the wife. The husband can dissolve the marriage tie at his will. A divorce can also take place by mutual agreement.
A Husband may divorce in the following manner –
A wife cannot divorce herself from her husband without his consent. She can, of course, purchase her divorce from her husband and can have the marriage dissolved by Tafweez (delegation) and Lian in case 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 a divorce on these grounds.
Marriage may also be dissolved by judicial decree under the Dissolution of Muslim Marriage Act, 1939, under following grounds.
Divorce under Hindu law is governed by Hindu Marriage Act, 1955 and Divorce Act, 1936.
Hindu Marriage Act, 1955 has set forth certain grounds for divorce such as adultery, cruelty, conversion, desertion, mental disorder, leprosy etc.
You can also get a divorce with mutual consent under the Hindu Marriage Act, 1955, which states that – A petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
A wife can file for divorce if her husband is found guilty of rape, sodomy or bestiality. Similarly, if the marriage whether consummated or not was solemnized before she attained the age of 15 years and the wife want to file for divorce, she can do so.