Theme: Family & Marriage

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.

 

Prohibition of Child Marriage

Child marriage is an age old practice in India. To address this social issue, the law prohibits people from performing child marriages and lays down punishments for those involved in conducting the marriage. 

 

However, if a child has been married, the law does not immediately make the marriage illegal. The child so married has the option to cancel the marriage or continue the marriage.

 

According to certain personal laws (laws that govern different religions on aspects like marriage, divorce etc.), in India, marriage is allowed after the child has attained puberty. This can happen before the child has turned 18 years (in case of girls) or 21 years of age (in case of boys). On several occasions, Courts have held that such marriages conducted under personal laws would not be illegal. However, the child married under such laws would still have the option to cancel their marriage as per the child marriage law. 

 

However, in certain circumstances, some child marriages are considered to be absolutely illegal. 

Hindu Spouse

If you want to be a Hindu spouse and marry under the Hindu Marriage Act, you have to be one of the following set of persons:

  • Any person who is a Hindu by religion. This includes Veerashaiva, Lingayat or a follower of the Brahmo, Prarthana, or Arya Samaj.
  • Buddhist, Jain or Sikh by religion.
  • Any other person to which the Act applies who is not a Muslim, Christian, Parsi, or Jew by religion.

If you are governed by Hindu law or custom or usage, then you can marry under the Hindu Marriage Act.

Who can be Adopted?

Adoption under Non-Religious Law

Under the non-religious law on adoption,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) the following children can be adopted: 

  • If the children given below are declared legally free for adoption by the Child Welfare Committee:
    • Any orphan who is a child without biological parents, adoptive parents or a legal guardian(( Section 1(4), Juvenile Justice (Care and Protection of Children) Act, 2015.)) 
    • Abandoned child who is a child  deserted by their biological parents
    • Surrendered child who is a child who has been given up by the parents to the adoption authorities
  • Child of a relative.(( Section 56(2), Juvenile Justice (Care and Protection of Children) Act, 2015.)) 
  • Child of a spouse who is surrendered by the biological parent, to be adopted by the step-parent. 

Adoption under Hindu Law

Under the Hindu law on adoption,(( Hindu Adoption and Maintenance Act, 1956.)) children can be adopted only if they meet the following criteria,51 with some exceptions based on customs and usage: 

  • They are not married
  • They are below 15 years of age
  • They are Hindu
  • They are not already adopted
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Punishment for Abandoning and Neglecting Senior Citizen

If you leave a senior citizen at some place with the intention of abandoning them and not taking care of them, you can be punished with jail time of up to three months and/or a fine of up to Rupees five thousand. The police can make an arrest without the permission of a court. However, this is a bailable crime. If you are able to pay the bail bond, you will be released.

Who can perform a Christian Marriage?

The following persons can perform a Christian Marriage under the law:

  1. Any person who has received the ordination from their church to be a priest/minister.(( Section 5(1), Indian Christian Marriage Act, 1872.))
  2. Any clergyman of the Church of Scotland.(( Section 5(2), Indian Christian Marriage Act, 1872.))
  3. Any Minister of Religion licensed under the Indian Christian Marriage law to perform marriages.(( Section 5(3), Indian Christian Marriage Act, 1872.))
  4. A Marriage Registrar appointed under the Indian Christian Marriage Act. The marriage has to take place by the Registrar or in their presence.(( Section 5(4), Indian Christian Marriage Act, 1872.))
  5. By any person licensed under the Indian Christian Marriage Act to grant certificates of marriage.(( Section 5(5), Indian Christian Marriage Act, 1872.))

Any marriage performed by a priest, minister or any clergyman of the Church of Scotland will be performed according to the rules, rites, ceremonies, and customs of that particular denomination of church. However, the procedure for marriages will be according to the Indian Christian Marriage Act if conducted by a Minister of Religion, Marriage Registrar or by any person licensed to give certificates under this law. The procedures also differ based on the person performing the marriage. Read more on the procedures here.

Is Muslim marriage a contract?

Marriage is a contract under Muslim law.(( Hasina Bano v. Alam Noor A.I.R 2007 Raj 49.)) The contract can be entered into by fulfilling the following conditions:

  • Both the bride and groom must give free consent for the marriage.
  • The couple getting married should be of sound mind and should have attained puberty (usually 15 years).(( Shoukat Hussian and another v. State of Punjab and others [CRWP No.733 of 2021 (O&M)].)) 
  • A guardian like a parent or sibling can consent on behalf of a minor or someone not of sound mind.

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.