Optional Grouping: Initiating Divorce

Ending a marriage under Hindu Marriage Law

The law on marriage recognizes emotional and marital needs; this includes many legal obligations such as owning property, taking care of your children, etc. When you end your marriage, the marital relationship comes to an end. Some legal obligations may continue to exist.

Marital Relationship

The law understands a marital relationship to include:

  • Emotional Support
  • Sexual Relationship
  • Children and Domestic Responsibilities
  • Financial Support

Legal Obligations

You and your spouse have certain legal obligations throughout your marriage. Some of these obligations may continue even after a divorce takes place.

Examples of these legal obligations are:

Alimony or Maintenance

  • The Court may sometimes ask you to pay money to your spouse and this is a legal obligation you will have to incur after divorce. This is known as maintenance.

Parental Responsibility

  • The Court may decide who will have custody of your children and how to take care of them financially.

Ending a Muslim Marriage

Divorce in Islam is governed by the Quran and other customary practices. These principles have been recognized by the law and this is what people are bound by. Since the origin of all this law is the Quran and many non-codified customs followed by people, the laws on marriage and divorce are not linear and clear. However, there are basic principles of what will constitute a valid divorce for Muslims across sects.

Marriage is a contract under Muslim law, which may be in a written form or an oral form. A married Muslim couple under the law has to fulfill certain marital obligations such as living together and having sexual relations. Apart from marital obligations, they also have certain legal obligations to fulfill, such as: 

  • Dividing the property (land, flats, investments and insurance) of the husband and wife.
  • Giving maintenance to the wife.
  • Right to dower/mehr of the wife.

When a Muslim marriage ends, it means that the contract you have with your husband or wife has also ended. This, in turn, stops marital obligations between your spouse and you but does not necessarily stop all the legal obligations.

There are two ways by which, a marriage can end:

Death of a Spouse

Death of either your husband or your wife ends the marriage. Since the nature of the marriage is of a contract, it is as if death has resulted in the spouse exiting the contract.

Divorce

Divorce for Muslims can happen without involving the Court. However, if required, you can involve the court in the case of a dispute during a divorce. During a divorce, either you or your spouse can initiate the divorce.

Marriage can end in either of the following ways:

  • When the husband chooses to end it.
  • When the wife chooses to end it.
  • When both husband and wife end it together.

In most cases, it is the man who has more options than the woman to say that he no longer wishes to be part of the marriage without approaching the court. The woman has only one way of doing this. However, she has other recourses through the Court.

Filing for Divorce under Hindu Marriage Law

Divorce is a final and irrevocable act of separating from your spouse. There are other forms of separation that are not as final.

If there has been a valid marriage you can file for a divorce. However, if the validity of your marriage is in question then you still have to approach the Court to separate legally through separation by annulment.

Approach a Court

You have to go to Court to file a divorce case. While the divorce case is going on, you will continue to have certain duties towards your spouse and children such as giving financial support to them.

Husband Wants Divorce for Muslim Marriage

As a man in a Muslim marriage, you can simply divorce your wife by ending the contract of marriage you have entered. You don’t necessarily have to approach the Court since you have many options of ending the contract of marriage through various methods prescribed under Islam.

Since your marriage is a contract, you can decide to end your marriage simply because you choose to do so. Divorce is not fault-based in Islam. That is, unlike divorce in other religions, you need not have been harmed by your spouse either through cruelty, adultery or due to some irrecoverable illness in any way for you to want to leave your marriage.

The ways in which a husband can initiate divorce are as follows:

Talaq-e-Ahsan

Stage 1

During the period of Tuhr, in the Ahsan form of divorce, you have to say ‘talaq’ only once.

Stage 2

You can take back this ‘talaq’ during the period of her iddat. For example, you can revoke your talaq by saying the words ‘ I have retained thee’ or ‘I take back my talaq’ or by the act of having sexual intercourse with your wife. In case you could not take back your divorce before the iddat period gets over then the divorce takes place and is irrevocable. Once the divorce takes place you will have to pay maintenance to both your wife and child for their well-being.

Talaq e-Hasan

In the Hasan form of divorce, the husband has to say the word ‘talaq’ in three successive periods of tuhr.

Tuhr

Tuhr, means purity, and refers to the time when your wife is not experiencing menstruation. The wife is not allowed to have sexual intercourse with anyone during this period. You can take back the talaq after every successive period of tuhr.

Process of Divorce

Stage 1

Talaq has to be said by you when your wife’s menstruation period is over. During this period, you are not allowed to have sexual intercourse but if you do, it would mean that you have taken back your decision to divorce your wife. You can revoke your decision through words by saying it or writing it.

Stage 2

Talaq has to be said by you for the second time when your wife experiences menstruation again. At this point also, you can revoke your decision to divorce her through words or conduct.

Stage 3

This is the final Talaq that has to be said by you after your wife stops experiencing menstruation. It cannot be taken back and it is the final talaq, meaning that the divorce is final. After this, the marriage between you and your wife is over and you cannot take back the divorce anymore.

Both the Ahsan and Hasan form of Divorce are practiced and approved by Sunni and Shia Muslims.

 

One Spouse wants a divorce under Hindu Marriage Law

Sometimes in a marriage, you may want a divorce (while your spouse doesn’t) due to certain circumstances. If these circumstances are recognized by the law (cruelty, mental illness) you can apply to the Court to hear you.

Your spouse can deny these reasons and tell the Court why he or she does not want the divorce.

Under the law, you can file for divorce only after one year of marriage.

One Year Period

If you want to file a divorce against your spouse, then under the law you have to wait for a period of one year from the date of the marriage to file for a divorce.

For example, if Jitendra and Vahida got married on the 9th of January, 2018, Jitendra has to wait till at least 9th of January, 2019 if he wants to file a divorce against Vahida.

Exceptions to the One Year Period

Although the law gives a waiting period of one year, there are certain reasons by which the parties can go to Court before this time limit, such as:

  • Exceptional hardship to one of the spouses. For example, if your husband or wife is physically abusing you every day, then you can go to Court to file for a divorce.
  • Exceptional depravity to one of the spouses. For example, if your husband or your wife is asking you to do humiliating sexual acts.

Wife Wants Divorce for Muslim Marriage

Given below are the provisions for divorce to a marriage under Muslim law, when initiated by the wife. 

Khula

Khula is divorce initiated by the wife. If you want to divorce your husband, you can go to either the court directly or to a Mufti. The Court or the Mufti will ask the husband to be present. And in the presence of the husband the court or mufti will ask the husband if he accepts the offer. Once the husband accepts the offer, the divorce is complete.

Talaq-e-tafwid

Your husband has the power to delegate or transfer his right to divorce, to you or any third person through the contract of marriage (kabi-nama) at the time of the marriage. This agreement lists down important points for such transfer of right.

It usually stipulates the amount of mehr you have to forgo to exercise your right to ask for a divorce.

Divorce by Mutual Consent under Hindu Marriage Law

If neither you nor your spouse want to continue the marriage, you have the option to apply for a divorce by mutual consent.

You and your spouse can go to Court if:

  • Both of you have been living separately for more than one year.
  • Both of you have not been able to live together.
  • Both of you have consented to end your marriage.

Under the law, you can file for this kind of divorce only after one year of marriage. After filing, the Courts will give you a minimum period of 6 months up to 18 months to reconcile with your spouse and withdraw your petition if you wish to do so – to reflect on whether or not both you and your spouse truly want to pursue the divorce.

For example, if Jitendra and Vahida got married on the 9th of January, 2018 and they want to divorce each other, they have to wait till the 9th of January, 2019. After filing the case on 9th of January 2019, the Courts will give them 6-18 months time to decide whether they want to pursue the divorce.

This minimum period of 6 months time limit is not a strict rule as Courts in India have waived the time limit in cases where:

  • There is no chance of you and your spouse reuniting.
  • All efforts of mediation and conciliation between you and your spouse have failed.
  • You and your spouse have settled all issues that normally arise in divorce proceedings, such as maintenance, custody of children etc.
  • If the waiting period after filing the case of 6 to 18 months, prolongs your agony and suffering.
  • When you have filed a case against your spouse for divorce, and then later both you and your spouse decide to mutually divorce each other.

Wife Approaches Court for Divorce for Muslim Marriage

The provision of going to Court to divorce a spouse, is only available for women. The law allows you to go to the Court to divorce your husband for the following reasons:

Absence of Husband

  • When your husband has been missing for over 4 years.
  • When your husband goes to jail for 7 years or more.
  • When your husband fails to pay maintenance for 2 years.

Illness or Incapacity

  • When your husband is impotent.
  • When your husband is suffering from insanity or an incurable venereal disease.
  • If your marriage took place before the age of 15 years.

Ill-treatment

All these grounds are subject to certain conditions which you should consult a lawyer to understand more.

Where can you file a divorce for a Hindu marriage?

Both you and your spouse can file a case to the Family Court. There are separate courts known as family courts which deal with divorce cases. You can approach a family court in the following areas:

Your Place of Marriage

Either you and your spouse can file for divorce in the Court of the area where your marriage ceremony took place, i.e, where your marriage was solemnized.

For example, if you and your spouse got married in Mumbai, then you can file a case at the Family Court in Mumbai.

Your Spouse’s Residence

You can file a case in the Court of the area where your spouse resides. For example, if you are filing a case against your wife who lives in New Delhi, then you can file a case in the Family Court in Delhi.

Your Last Place of Residence Together

Either you and your spouse can file for divorce in the Court of the area where you both last lived together. For example, if you and your spouse last lived together in Delhi, then either of you have the option of approaching the Family Court in New Delhi.

Your Place of Residence

Wife

If you are filing a divorce case against your husband, then you can go to the Court in the area where you are residing.

For example, if you are living in Bengaluru, you can file a case against your husband in the Family Court of Bengaluru even if your husband is not living there.

Both

If your spouse has gone abroad you can file it in your place of residence.

However, please consult your lawyer while filing the case in Court.