Divorce in Various Personal Laws (1)

8/9/2019 Divorce in Various Personal Laws (1)

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[ DIVORCE IN VARIOUS PERSONAL LAWS ]

A Research Project Report

Submitted to

School of Law

Auro University

As a second Course Work for continuous evaluation in the subject of

FAMILY LAW [Law103]

Semester III

[2013- 2018]

UN!R "#! $U%ANC! &'

Prof. Ankita Kumar Gupta[ LA 10!]

School of Law

Auro University

R!S!ARC#!RS

Anu"a #$a$

#$a$%a& 'a(%ari

(


2/22

U)*+,AK)G

We the undersi)ned hereb* )ive an undertakin) that this project report titled *ivor/e Uner

arious Persona( Las is based on the data collected and anal*+ed b* us, "his Report is a

Course Work conducted as part of continuous evaluation for the course of 'amil* law -Law (./0,

Date: 15thOctober 2014

Anuja Shah

Shahbaz Malbari

1


3/22

AK)4L+*G+'+)

Apart from the )roup 2embers3 the success of our project depends lar)el* on the encoura)ement

and )uidelines of man* others, % take this opportunit* to e4press m* )ratitude to the people who

have been instrumental in the successful completion of the project, We would like to show our)reatest appreciation to Prof. Ankita Kumar Gupta

"hank *ou so much tremendous support and help *ou provided us for carr*in) out a research

project,"he blessin)3 help and )uidance )iven b* *ou time to time shall carr* us a lon) wa* in

the journe* of life which we are about to embark, Without their encoura)ement and )uidance this

project would have not been materiali+ed ,

"he )uidance and support received from all the members who contributed to this project3 was

vital for the success of the project, We are )rateful for the constant support and help,

5


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4)+)

Pa)e No

(, %ntroduction66666666666666666666666667

(,( $eneral introduction to the topic6666666666666,,7

(,1 &bjectives of the Stud*66666666666666666,,8

(,5 #*pothesis of the Stud*6666666666666,,,,,,,,,,,,,,,/

(,9 Research 2ethodolo)*66666666666666666,,:

1, 2ain ;od* related to the stud*66666666666666666,

Whether the time period for reconciliation is provided under #indu 2arria)e Act

Whether the divorce is )ranted to the parties without livin) separatel*>

Whether there are certain ri)hts with wife to ask for divorce under 2uslim Law>

Whether mutual consent obtained b* force3 fraud or undue influence can lead to

divorce>

:


9/22

*4,+ U)*+, A,4U# P+,#4)AL LA#

At one time3 %ndia used to have one of the lowest divorce rates in the world, ;ein) a societ*

lar)el* based on a traditional value s*stem3 couples were both le)all* and sociall* dissuaded

from seekin) a divorce, #owever3 socioBeconomic chan)es complemented b* le)al reforms in

the last half a centur*3 have enabled partners3 especiall* women3 to opt out of uneual andabusive marria)es(, #owever3 the divorce procedure in %ndia continues to be one of the most

protracted in the world3 especiall* in cases where either part* contests the divorce,

A cursor* readin) of the entire )amut of %ndian Laws re)ardin) ivorce makes it clear broadl*

that the ivorce can be obtained b* two wa*s1D

ivorce b* 2utual Consent

Contested ivorce

*4,+ 59 'UUAL 4)#+)3

Seekin) a divorce in %ndia is a lon)Bdrawn out le)al affair3 where the period of prosecution takes

a minimum of si4 months, #owever3 the time and mone* reuired to obtain a divorce can be

considerabl* shortened if the couple seeks divorce b* mutual consent, #owever3 for filin) for a

divorce on this )round3 it is necessar* for the husband and wife to have lived separatel* for at

least a *ear, 2utual Consent ivorce is a simple wa* of comin) out of the marria)e and

dissolves it le)all*, %mportant reuirement is the mutual consent of the husband E wife, "here

are two aspects on which #usband E Wife have to reach to consensus, &ne is the alimon* or

maintenance issues, As per Law there is no minimum or ma4imum limit of maintenance, %t could

be an* fi)ure or no fi)ure, Ne4t important consideration is the Child Custod*, "his can also be

worked out effectivel* between the parties, Child Custod* in 2utual Consent ivorce can be

shared or joint or e4clusive dependin) upon the understandin) of the spouses,After hearin)s

from the husband and wife3 if the jud)e is satisfied that all the necessar* )rounds and

reuirements for the divorce have been met3 the couple is )ranted a mutual divorce decre,&ther

than alimon* and child custod* 3 return of dowr* items or FstreedhanF and liti)ation e4penses are

also important issues,

( "he $uide to $ettin) a ivorce in %ndia b* 2utual Consent b* kal*ani retrived online on (9 &ctober 1.(9from-httpD==www,futurescopes,com=)ettin)Bdivorce=:1(=)uideB)ettin)BdivorceBindiaBmutualBconsent0

1 #&W "& $!" A %&RC! %N %N%A retrived online on (9 &ctober 1.(9 from

-httpD==www,divorcelaw*ers,co,in=howBtoB)etBaBdivorceBinBindia=0

5 #&W "& $!" A %&RC! %N %N%A retrived online on (9 &ctober 1.(9 from

-httpD==www,divorcelaw*ers,co,in=howBtoB)etBaBdivorceBinBindia=0


10/22


11/22

L)G #+P+,A+ - "he e4pression I livin) separateJ means that parties are not livin) as

husband and wife3 irrespective of the fact that the* are livin) in the same house or in different

houses,/

)4 A5L+ 4 L+ 4G++,D"he e4pression Inot able to live to)etherJ means that the

marria)e had broken down irretrievabl*, &n the motion bein) moved b* the parties that the

marria)e be dissolved 3 shall on bein) satisfied after hearin) the parties and after makin) such

inuir* as it thinks fit that the marria)e has been solemni+ed and that the averments in the

petition are true3 pass a decree , "he court in ever* case must be satisfied b* consent of neither

part* has not been obtained b* force 3 fraud or undue influence,:

,+LA+* A#+ LA

%n Smt. Sureshta Devi v. Om Prakash9

,Honourable Supreme Court held asunder:

Under Sub-section !" the parties are re#uired to make a $oint motion not

earlier than si% months a&ter the date o& presentation o& the petition and not

later than '( months a&ter the said date. )his motion enables the Court to

proceed *ith the case in order to satis&+ itsel& about the enuineness o& the

averments in the petition and also to &ind out *hether the consent *as not

obtained b+ &orce, &raud or undue in&luence. )he Court ma+ make such

in#uir+ as it thinks &it includin the hearin or e%amination o& the parties &or

the purpose o& satis&+in itsel& *hether the averments in the petition are true.

& the Court is satis&ied that the consent o& parties *as not obtained b+ &orce,&raud or undue in&luence and the+ have mutuall+ areed that the marriae

should be dissolved, it must pass a decree o& divorce.

4 *4+# 4,K10

%n all there are two court appearances in mutual divorce

/ Smt, Sureshta evi v, &m Prakash A%R (


12/22

'irst A joint petition si)ned b* both parties is filed in court

Secondl* %n the first motion statement of both parties are recorded and then si)ned on

paper before the #onble Court, "hirdl* "he 8 month period is )iven for reconciliation3 ?the honble court )ives a chance

to the couple to chan)e their mind@ 'ourthl* 8 months after the first motion or at the end of the reconcile period if both

parties still dont a)ree to come to)ether, "hen the parties ma* appear for the second

motion for the final hearin),

'inall* ivorce decree will be )ranted as the #onble Court ma* deem fit,

:4,'AL+# 4 5+ 4'PL+* 11

Under this section a decree for dissolution of marria)e solemni+ed under this Act can be passed

b* a istrict Court on compliance with the followin) formalitiesD

A petition is to be presented jointl* b* the parties to the marria)e,

"he parties have been livin) separatel* for a period not less than one *ear "he partieshave failed for an* reason whatsoever to live to)ether, %n other words3 no reconciliation

or adjustment is possible between them "he parties have freel* consented to the a)reement of dissolution of marria)e,

"he court must be satisfied as to the averments in the petition after makin) inuir* and

after hearin) the parties which are initiated b* a joint motion of the e4pir* of si4 months

from presentation of the petition, "he e4pression Fafter hearin) the partiesF appearin) in

su%-se/tion >2? of se/tion 28of the Act does not reuire the presence of the parties

before the court,

!ver* petition should contain certain details as to the facts on which the relief claim is based 3

that the petition is not presented in collusion between two parties 3 "he statements contained inthe petition shall be verified b* the petitioner or some other competent person,

G,4U)* 4: *4,+ 59 'UUAL 4)#+)12

"he )round of divorce b* mutual consent is to be found in se/tion 28 of t$e #pe/ia( 'arria7e

A/t(


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4)+,#4) 4: :AUL G,4U)* P+4) 4 P+4) 59 'UUAL

4)#+)

"he polic* of law havin) under)one a chan)e after the 2arria)e Laws ?Amendment@ act3 it is

now possible to dissolve a marria)e b* a)reement between the parties althou)h none of the

)rounds on which the marria)es ma* be dissolved b* the court3 be found to e4ist

,

,+LA+* A#+ LA

%n the case nraa( v ,a$ey ,aman13husbandMs petition on the )rounds of wifeMs adulter*

and desertion was decreed and the wife appealed , At the appellate sta)e the court asked the wife

what she wanted and she said that she did not want to live with the husband and she would a)ree

for a compromise decree of divorce 3 if the husband withdrew the char)es , "he husband

a)reed 3provided the wife also withdrew the counter char)e of adulter* , ;oth the parties a)reed

accordin)l*,

Simmilarl* in #antos$ v irenra an ,avi vs #$ara1=Ca petition for divorce on the )round

of cruelt* and desertion was allowed to be converted into the petition of divorce b* mutualconsent,

U)LA+,AL *,AAL 4: 4)#+) 59 4)+ PA,9.

!arlier some #i)h courts e4pressed the view that once consent is )iven 3 one of the parties to the

petition cannot withdraw the consent, ;ut later the ;omba* 3 Punjab and #ar*ana and kerala

#i)h courts have e4pressed the view that a spouse is free to withdrew his or her consent3

unilaterall* at an* time(7, %t should not be i)nored that in such cases marria)e has in fact broken

down irretrievabl* and no use will be served in keepin) it alive,

,+LA+* A#+ LA

%n As$oka urra v. ,upa1B it was held b* the Supreme Court that divorce should be )ranted

even thou)h the wife had the wife had unilaterall* withdrawn the consent as the marria)e was

found to be irretrievabl* broken down,

"he period of (: months is the upper Limit for the withdrawal of the petition 3 but the court has

power to )rant divorce even after the e4pir* of si4 months 3if other conditions are fulfilled ,

Another trend that is discernible in our #i)h court 3 where waitin) period of si4 months is

dispensed with if there is histor* of lon) protracted liti)ation and marria)e is found to be

irretrievabl* broken down,

(5 A%R (


14/22

*4,+ 4) + 5A## 4: 'UUAL 4'P,4'#+

%n ,aymon Union(/of %ndia was a petition of divorce b* mutual consent under the divorce

Act,the supreme court said that such a petition could not be )ranted3 as under the divorce act3

there is no provision for divorce b* mutual consent,, ;ut after the amendment of the said act this

provision is now available b* the virtue of section (.BA , %n 6o7iner v. pus$pa183 a petition for

divorce on the basis of compromise was allowed, ;ut Calcutta #i)h Court in Apur%a v'anas$iC1; has dissented from the view, %n our submission 3 it is wron) view as a consent

petition for divorce is after all a petition b* compromise, %n a statue which reco)ni+es divorce b*

mutual consent3 it is implicit that petition is a compromise petition,

U)*+, PA,# LAOoroastrianism states that marria)e is a spiritual discipline and not a mere civil contract ,

"he parsi laws acknowled)es the conversion of a nonBparsi into +oroastranian, $rounds

of divorce in the Parsi marria)e Act where further liberali+ed and divorce b* the mutual

consent was introduced in the *ear (


15/22

1arriae /ct, '944 applies e#uall+, to Section 2!3 o& )he Parsi 1arriae /nd

Divorce /ct.

U)*+, 'U#L' LA20

KULAD

"he* are two forms of divorce b* mutual consent but in either of them3 the wife has to

part with her dower or a part of some other propert*,A verse in the #ol* uran runs asD

IAnd it not lawful for *ou that *e take from women out of that which *e have )iven

themD e4cept ?in the case@ when both fear that the* ma* not be able to keep within the

limits ?imposed b* Allah@3 in that case it is no sin for either of them if the woman ransom

herself,J "he word khula3 in its ori)inal sense means Ito raD or Ei7 upD or Eto take

offDsuch as takin) off oneMs clothes or )arments, %t is said that the spouses are like

clothes to each other and when the* take khula each takes off his or her clothes3 i,e,3 the*

)et rid of each other, %n law it is said is said to si)nif* an a)reement between the spouses

for dissolvin) a connubial union in lieu of compensation paid b* the wife to her husband

out of her propert*, Althou)h consideration for Hhula is essential3 the actual release of the

dower or deliver* of propert* constitutin) the consideration is not a condition precedent

for the validit* of the khula, &nce the husband )ives his consent3 it results in an

irrevocable divorce, "he husband has no power of cancellin) the QkhulM on the )round

that the consideration has not been paid, "he consideration can be an*thin)3 usuall* it is

mahr3 the whole or part of it, ;ut it ma* be an* propert* thou)h not illusor*,

'U5A,AD

%n mubarat3 the outstandin) feature is that both the parties desire divorce, "hus3 the

proposal ma* emanate from either side, %n mubarat both3 the husband and the wife3 arehapp* to )et rid of each other , Amon) the Sunnis when the partiesto marria)e enter into

a mubarat all mutual ri)hts and obli)ations come to an end , "he Shia law is strin)ent

thou)h, %t reuires that both the parties must bona fide find the marital relationship to be

irksome and cumbersome, Amon) the Sunnis no specific form is laid down3 but the Shias

insist on a proper form, "he Shias insist that the word mubarat should be followed b* the

word talaa3 otherwise no divorce would result, "he* also insist that the pronouncement

must be in Arabic unless the parties are incapable of pronouncin) the Arabic words,

%ntention to dissolve the marria)e should be clearl* e4pressed, Amon) both3 Shias and

Sunnis3 mubarat is irrevocable, &ther reuirements are the same as in khula and the wife

must under)o the period of iddat and in both the divorce is essentiall* an act of the

parties3 and no intervention b* the court is reuired,

*4,+ 59 :+D

1. "he Concept of ivorce under 2uslim Law retrived online on (9 &ctober 1.(9 from

- httpD==www,le)alserviceindia,com=article=l5


16/22

"he divorce b* wife can be cate)ori+ed under three cate)oriesD

>i? a(aaF-i-tafee&

>ii? Lian

>iii? 5y *isso(ution of 'us(im 'arria7es A/t 1;3;,

ALAA@--A:++ 4, *+L+GA+* *4,+

%t is reco)ni+ed amon) both3 the Shias and the Sunnis, "he 2uslim husband is free to dele)ate

his power of pronouncin) divorce to his wife or an* other person, #e ma* dele)ate the power

absolutel* or conditionall*3 temporaril*or permanentl* , A permanent dele)ation of power is

revocable but a temporar* dele)ation of power is not, "his dele)ation must be made distinctl* in

favour of the person to whom the power is dele)ated3 and the purpose of dele)ation must be

clearl* stated, "he power of talaa ma* be dele)ated to his wife and as 'ai+ee observes3 Ithis

form of dele)ated divorce is perhaps the most potent weapon in the hands of a 2uslim wife to

obtain freedom without the intervention of an* court and is now be)innin) to be fairl* common

in %ndiaJ, "his form of dele)ated divorce is usuall* stipulated in prenuptial a)reements, %n 2d,

K$an v. #$a$mai1(

3 under a prenuptial a)reement3 a husband3 who was a Hhana amad3undertook to pa* certain amount of marria)e e4penses incurred b* the fatherBinBlaw in the event

of his leavin) the house and conferred a power to pronounce divorce on his wife, "he husband

left his fatherBinBlawMs house without pa*in) the amount, "he wife e4ercised the ri)ht and

divorced herself, %t was held that it was a valid divorce in the e4ercise of the power dele)ated to

her, ele)ation of power ma* be made even in the post marria)e a)reements, "hus where under

an a)reement it is stipulated that in the event of the husband failin) to pa* her maintenance or

takin) a second wife3 the will have a ri)ht of pronouncin) divorce on herself3 such an a)reement

is valid3 and such conditions are reasonable and not a)ainst public polic* , %t should be noted that

even in the event of contin)enc*3 whether or not the power is to be e4ercised3 depend upon the

wife she ma* choose to e4ercise it or she ma* not, "he happenin) of the event of contin)enc*

does not result in automatic divorce,

LA)

%f the husband levels false char)es of unchastit* or adulter* a)ainst his wife then this amounts to

character assassination and the wife has )ot the ri)ht to ask for divorce on these )rounds, Such a

mode of divorce is called Lian, #owever3 it is onl* a voluntar* and a))ressive char)e of adulter*

made b* the husband which3 if false3 would entitle the wife to )et the wife to )et the decree of

divorce on the )round of Lian, Where a wife hurts the feelin)s of her husband with her behaviour

and the husband hits back an alle)ation of infidelit* a)ainst her3 then what the husband sa*s in

response to the bad behaviour of the wife3 cannot be used b* the wife as a false char)e of

adulter* and no divorce is to be )ranted under Lian, "his was held in the case of)ur"a$an v.

Ka&im A(i %y t$e a(/utta i7$ ourt.

1( '95(" 6.7. 22 ./. (' S.C. ( 3om. 6.7. 298

(8


17/22

,+LA+* A#+ LA#22

(@ %n #ye iauin v. Parve& #u(tana3 Parve+ Sultana was a science )raduate and she

wanted to take admission in a colle)e for medical studies, She needed mone* for herstudies, S*ed Oiaudddin promised to )ive her mone* provided she married him, She did,

Later she filed for divorce for nonBfulfillment of promise on the part of the husband, "he

court )ranted her divorce on the )round of cruelt*, "hus we see the courtMs attitude of

attributin) a wider meanin) to the e4pression cruelt*,1@ n u%aia 5e7um v. #arar #$a$3 a case from Lahore #i)h Court3 the husband sold

the ornaments of the wife with her consent, %t was submitted that the husbandMs conduct

does not amount to cruelt*,

5@ %n A%oo%a/ker v. 'amu koya3 the husband used to compel his wife to put on a sari and

see pictures in cinema, "he wife refused to do so because accordin) to her beliefs this

was a)ainst the %slamic wa* of life, She sou)ht divorce on the )round of mental cruelt*,

"he Herela #i)h Court held that the conduct of the husband cannot be re)arded as cruelt*

because mere departure from the standards of suffocatin) orthodo4* does not constitute

unB%slamic behaviour,

9@ %n tari v. As7$ari3 the Allahabad #i)h Court observed that %ndian Law does not

reco)ni+e various t*pes of cruelt* such as Q2uslim cruelt*M3 Q#indu cruelt*M and so on3

and that the test of cruelt* is based on universal and humanitarian standards that is to

sa*3 conduct of the husband which would cause such bodil* or mental pain as to endan)er

the wifeMs safet* or health,

+ #P+AL 'A,,AG+ A H A) ),4*U4)

"he Special 2arria)e Act3 (


18/22

Under se/. 28 of t$e A/t3 which primaril* deals with the provisions relatin) to obtainin) a

divorce b* mutual consent in respect of a marria)e solemni+ed and=or re)istered under the Act3 a

petition for divorce b* mutual consent ma* be presented to the istrict Court, A few ke* points

to be considered while seekin) a divorce b* mutual consent are as follows 17D

(, A petition for divorce must be presented to the istrict Court b* both parties to)ether,

2."he petition must be on the )rounds3

that the* have been livin) separatel* for a period of one *ear or more3

that the* have not been able to live to)ether3 and

that the* have mutuall* a)reed that the marria)e should be dissolved,

3."he petition ma* be presented onl* after one *ear from the date of enterin) the certificate of

marria)e in the 2arria)e Certificate ;ook, #owever3 rela4ation ma* be provided in cases where

e4ceptional hardship is suffered b* the petitioner or in cases of e4ceptional depravit* on the part

of the respondent,

=, "he petition seekin) divorce b* mutual consent could be presented to a istrict Court3 within

whose jurisdiction3 either3

the marria)e was solemni+ed3

the respondent resides3 or in case the wife is the petitioner3 where she is residin)3

the parties to the marria)e last resided to)ether3 or

the petitioner resides3 in cases where the respondent is residin) outside the territories to

which the Act e4tends,


19/22

Parties desirous of obtainin) a divorce b* mutual consent3 must however keep in mind that the

Act also contains provisions dealin) with )rant of alimon* and maintenance3 both permanent and

durin) the pendenc* of the proceedin)s, %n the cases of divorce b* mutual consent3 the parties

ma* a)ree upon the terms relatin) to pa*ment of alimon* or maintenance and the same ma* be

incorporated in the pleadin)s before the Court, #owever care has to be taken that suitable

provisions are incorporated in the pleadin)s to avoid future misunderstandin)s or liti)ation, %t is

therefore advisable that3 while discussin) the various issues connected with seekin) a divorce b*mutual consent with their advocates3 the parties must specificall* discuss their arran)ement and

a)reement on alimon* and maintenance3 and take suitable steps to ensure that their interest is

safe)uarded,

+#)G 4: 9P4+##

es 3 there is a provision for maintenance but here is no minimum or ma4imum limit of

maintenance, %t could be an* fi)ure or no fi)ure,

es3 a period of si4 months is )ranted for reconciliation in case if the parties want to

chan)e their decision,

No divorce can be )ranted onl* if the parties have lived separatel* for a *ear or more

es 3 the wife has ri)ht to ask for divorce under "alaaBiBtafwee+ 3 Lian 3 ;* issolution

of 2uslim 2arria)es Act (


20/22

4)LU#4) A)* ,+4''+)*A4)#

Lar)e number of divorce cases are pendin) in court due to various reasons, !ver* *ear3 an

avera)e /37.. cases of divorce are filed in 2umbai3


21/22

children probabl* become victims for this situation, Althou)h people trend to think carefull*

before the* )et marria)e3 the rates of divorce continuousl* rise nowada*s,

55L4G,AP9

5ooks ,eferre1. :ami(y (a %y *r. Paras *ian

2. :ami(y (a in nia %y .K #a$aray

3. ,eefinin7 :ami(y La in nia %y Paras$ar *$ana

#AU+#

1. nian ivor/e a/t 18B;

2. inu 'arria7e a/t 1;


22/22

11

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Divorce in Various Personal Laws (1)

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