COMPARISON BETWEEN HINDu and MUSLIM IN RELATION TO DIVORCE

The term ‘Divorce’ is derived from the Latin term ‘divortium’ which means to turn aside or separate. It is a situation where a man & woman no longer remain together due to a number of possible reasons. The two major legal systems governing personal laws, namely, Hindu Law and Islamic Law governs Hindus[1] in all aspects of life and in areas of marriage, divorce & inheritance in case of Muslims, respectively. Before I elaborate further on divorce under Hindu and Muslim law let us understand the meaning of the term Divorce. According to Black’s law Dictionary, “Divorce is the legal separation of man and wife, effected, for cause, by the judgment of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties.”

DIVORCE UNDER HINDU LAW

The Hindu Marriage Act of 1955 (“HMA”) is the law that governs Hindu divorce[2]. According to section of HMA, the Act applies to any person who is a Hindu by both birth & religion as well as to the people following Buddhism, Jainism, and Sikhism. It also applies to those persons who are domiciled in the territories to which this Act extends[3]. Section 13 provides for the ground for divorce. A major change that this Act brought is the introduction of the concept of divorce and the fact that both the husband and wife can invoke it, viz; the HMA is gender neutral. The grounds for divorce are as follows.

CRUELTY

Section 13(1)(ia) of the HMA states that a marriage maybe dissolved on the ground that the other party has ‘after the solemnization of the marriage, treated the petitioner with cruelty’. The concept of cruelty has changed as the time progressed. Cruelty not only includes a physical injury but it also includes mental injury as well. Physical cruelty is easy to determine as compared to mental cruelty. In Pravin Mehta v. Inderjeet Mehta, the court has defined mental cruelty as ‘the state of mind and listed instances which will qualify as mental cruelty on one party[4] like in the case of in Somenath Jana vs The State Of West Bengal, it was held that demand for dowry will amount to cruelty. In short, to constitute cruelty, it must be concluded by the court that it must be grave in the sense that the petitioner wife no longer can live with her husband.

DESERTION

In Bipinchandra Jai Singhbai Shah v. Prabhavati[5]  under the Bombay Hindu Divorce Act, 1947, the court lucidly defined and explained the term desertion[6]. The two essentials of deserted spouse are Absence of consent & the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention. The burden of proof lies the petitioner for proving these two elements. “Desertion” basically means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly[7]. It is additionally important to note that for a matrimonial relief on the ground of desertion, it is necessary to show the passage of the statutory period of two years and the same must be continuous[8].

CONVERSION

Under Article 1 of the constitution, it states that every citizen of India has the right to practice, profess and propagate any religion of his or her choice. Divorce is allowed in India only when either of the spouse changes his or her religion from Hinduism, or renounces the world by entering into a holy order after the marriage has been performed. Accordingly, the legal effect of conversion can be an automatic dissolution of marriage or a ground for divorce at the instance of convert.

ILLNESS

Section 5(ii) of the Hindu Marriage Act, 1955 lays down certain conditions, if fulfilled, results in the marriage becoming voidable and maybe be annulled by a decree of nullity. Serious illness like AIDS which may be transmitted sexually are accounted to be venereal.

MUTUAL CONSENT

 Section 13(B) of the HMA deals with divorce through mutual consent. If both the spouses agree that their marriage cannot succeed, then they may decide to get a divorce by mutual consent and also give reasons for the same. The parties intending to dissolve marriage will have to show that both of them were leaving separately for a period of one year or more before filing a petition in the court and during the 1 year period, they have been not living as husband & wife.

DIVORCE UNDER MUSLIM LAW

The only religion which had recognised divorce or talaq as a means to dissolve the marriage was Islam and in the upcoming years to follow, other religions also adopted it. According to Prophet Mohammad, divorce was considered as the most cruel thing and many scholars considered it as a sin. According to Islamic Law, there are several methods by which one spouse may divorce the other. These methods are:

DIVORCE BY MUTUAL CONSENT

KHULA OR KHUL: The word “Khul” literally means “to put off”. In the context of matrimonial law, it means “laying down by a husband of his right and authority over his wife for an exchange”[9]. A Muslim women has a right to ask for divorce when she feels that she cannot  live in matrimony or she does not desire to live with her husband even where he is not at fault. There is an agreement between the spouses and the wife can release herself by giving some property or relinquish part or whole of her dower amount or any other benefit. Once the Khula has been accepted by the husband, he has no power to cancel it or sue his wife for non-consideration.

MUBARAAT OR MUBARA: Mubaraat is also a form of dissolution of marriage. Some compensation is usually given in Mubaraa ,though it is not an essential part of the transaction. When an offer of Mubaraat is accepted, it becomes an irrevocable divorce (Talaq-ul-Bain) and idda is necessary.

DIVORCE BY WIFE

In India, a Muslim wife may divorce her husband under her delegated power in the event of his taking a second wife. The power to pronounce Talaq by wife is delegated by her husband during the time of marriage which has been recognized by both Shia and Sunni Muslims. Under this, powers are delegated to wife on the condition that it must not be against the public policy.

DIVORCE BY COURT

The Qur’an regulates the Lian manner of divorce. Under this, those who accuse their wives and if there is no witness present except themselves, then, they should swear four times in the name of God. If the wife is falsely accused by the husband of adultery, then the wife can file a suit for dissolution of marriage and acquire a divorce if she proves the false charges levied upon her. However, Lian does not work the other way round.

 DIVORCE BY LAW

In Muslim law conversion is referred to as ‘apostasy’. When a Muslim Husband during the subsistence of the marriage converts to another religion by merely renouncing his faith, he ceases to be a Muslim and the marriage come to an end immediately. Formal conversion to another religion also amounts to apostasy. Apostasy of a formerly non-Muslim Muslim wife, will also result in dissolution. The Qur’an discourages intra-family relations. This 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 stands dissolved.[10]

CONCLUSION

Time is changing, the situations are constantly changing and the social ladder has turned. Every provision of law has its merits and demerits, and in order to change the demerits to merits, the laws has to keep updating itself to the current scenarios. If a Uniform Civil Code is made and effected in India the results would be interesting because either the Muslims would have to give up the exclusive right of talaq or the Hindus would have to embrace it. The most obvious difference between the two systems is the Muslim husband’s right of Talaq. This right emanated from the Qur’an, but the Hindus do not share it. The ground for divorce based upon criminal behavior is more broadly dealt with in the DMMA than in the HMA. Islamic law grants divorce if the husband is sentenced for any crime, but the Hindu law grants a divorce only when the respondent is guilty of a sexual crime. Therefore it is very essential that the lawmakers of our country should deal with the subjects in a cautious manner after considering its impact in the future.


[1] Sikhs, Buddhists and Jains as well.

[2] As enumerated in section 13.

[3] who is not a Muslim, Christian, Parsi or Jew by religion

[4] Subodh Asthana-Concepts of Marriage and Divorce under Hindu and Muslim Law, Marriage and Divorce in context with Hindu and Muslim Laws (ipleaders.in), visited on 02-07-2021 at 18:31hrs.

[5] As provided under Art. 2, Part III of the Indian Constitution

[6] If a spouse abandons the other in a state of temporary passion, without intending permanently to cease cohabitation, it will not amount to desertion.

[7] Sudhi Ranjan Bagri- Desertion as a ground for divorce, Desertion As A Ground For Divorce – iPleaders, visited on 02-07-2021 at 18:52hrs.

[8] IBID.

[9] Baillie 38, Hedaya, 112.

[10] https://www.lawteacher.net/,visited  on 02-07- 2021 at 20:30hrs.

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