Marriage, Divorce, Maintenance and Custody under Family Laws in India:
Family law encompasses all the legal matters relating to a family including marriage, divorce, maintenance, adoption, partition etc. India is a colossal and a complex country where people follow more than one religion including Hindu, Muslim, Christianity, Buddhism etc. People in India solemnise their marriage in accordance with their personal practices and ceremonies due to which marriage, divorce and other allied matters are usually governed by the parties’ personal laws. Since people in India do not follow one particular religion, there are different personal laws that govern the marriage of parties belonging to each religion. They are for:
(i) Hindus – Hindu Marriage Act, 1955
(ii) Muslims – The Muslim Personal Law (Shariat) Application Act, 1937
(iii) Christians – The Indian Christian Marriage Act, 1872
(iv) Parsis – The Parsi Marriage and Divorce Act, 1936
With advancement and change in generation, a significant number of people started getting married outside of their religion, and in order to govern such marriages, the Government had passed the Special Marriage Act, 1954, which governs marriage between people of any religion.
This Article will cover the laws relating to Divorce, Maintenance and Custody in three of the major religions in India i.e., Hindus, Muslims and Christians. It will also cover the Special Marriage Act for marriage between people belonging to different castes or religions.
HINDUS:
The Hindu Marriage Act has been one of the most important social legislations to have been passed, as it not only codified the personal laws, but also brought some very important changes.
With the passage of Hindu Marriage Act:
(i) the inter-caste and inter-religious marriages were legalised.
(ii) The legal age for marriage was introduced with 18 years for brides and 21 years for bridegrooms, thus discouraging child marriage.
(iii) Earlier marriage was indissoluble, it was only permitted if recognised by customary practices, the Act brought about provisions laying down grounds for divorce.
(iv) Earlier a widow could not remarry, however the Act provides for remarriage of widows.
(v) The Act laid down punishment for bigamy and also sets conditions for a valid marriage.
(vi) Earlier the marriage was a sacrament and did not require the spouse’s consent, therefore, a person could marry a minor, or a person of unsound mind. However, the Act made it more contractual by making consent as one of the essential conditions for a valid marriage.
Applicability:
The Hindu Marriage Act, 1955 applies to all Hindus, Jain, Sikhs and Buddhists, but not to Muslims, Christians, Parsis or Jews. The person can be either Hindu by birth or by religion or a person domiciled in India and belonging to one of the above religions.
The Domicile can be either by origin or choice. The court in Central Bank of India Ltd v. Ram Narain held that domicile by choice consists of two elements. They are:
(i) Residence of a particular kind, it need not be continuous, and;
(ii) Intention to stay permanently in the residence that has been taken.
Therefore, Hindu Marriage Act applies to the whole of India except the state of Jammu and Kashmir, and also applies to Hindu residing outside the country, but domiciled in the territory within which the Act applies. Hence, the Act applies even if the persons do not reside within the territory of India, as long as they are domiciled here.
Valid Marriage:
Section 5 of the Act provides for the conditions to be fulfilled to constitute a valid marriage. Some of the conditions are as follows:
(a) neither party must be married previously;
(b) neither party must be incapable of giving valid consent;
(c) the boy is at least 21 years and the girl is at least 18 years;
(d) they are not within the degree of prohibited relationship as defined in Section 3(f) of the Act. Prohibited degree of relationship has been defined in the Act as persons who are related to each other by –
(i) lineal ascent and/or affinity, or;
(ii) if one was wife or husband of lineal ascendant or descendant or;
(iii) if one was wife of certain brother relationship of the other, i.e., wife of brother, wife of father’s brother, or wife of mother’s brother etc.,
(iv) or relationships such as uncle and niece, brother and sister, aunt and nephew, children of siblings etc.
‘Lineal ascent’ covers the Sapinda relationship as defined in Section 3(g) of the Act, which extends up to fifth degree in the line of father and third in the line of mother. ‘Affinity’ means being related to the lineal ascents or descent, for example, mother-in law and son-in-law, or father in law and daughter in law, step-son, step mother etc.
(v) For a marriage to be valid, two things need to be fulfilled – the marriage must be solemnised and it must be registered.
Solemnisation of marriage is required as marriage under Hindu Law is a religious sacrament, therefore unless necessary ceremonies, shastric or customary, whichever is prevalent on either of the parties’ side is performed, the marriage will not be valid. Some of the important ceremonies are sagai (engagement), satpadi (7 rounds around fire), or it could be the simple custom of putting vermilion by the bridegroom on the forehead of the bride.
Until recently, registration of marriage was not necessary to constitute a valid marriage, however, in 2007 the Supreme Court of India mandated registrations of all kinds of marriage without exception to any religion. This was done in order to reduces the instances of child marriage, desertion of women, bigamy etc. It was reported that before this law was passed, out of 50,000 marriages that were conducted in New Delhi every year, only 1500 marriages were registered.
Reliefs:
The Hindu Marriage Act provides different reliefs to the parties based on different issues and circumstances. The reliefs are annulment, restitution of conjugal rights or divorce.
(A) Annulment:
Annulment is a legal process of declaring a marriage null and void. It is granted when certain legal requirements are not met. Annulment is given only to marriages that are voidable, and not the ones that are void-ab-initio or null and void right from the beginning, in which case it is considered that the marriage never took place in the first place.
Nullity of marriage occurs when one of the conditions under Section 5 (i), (iv), (v) of the Hindu Marriage Act has not been fulfilled such as bigamy, marriage between people belonging prohibited degree relations, or marriage between sapindas.
However, grounds on which a marriage can be declared null and void has been provided under Section 12 of the Hindu Marriage Act. Some of the grounds are non-consummation of marriage, not meeting age requirement, impotency, or if consent has been obtained by fraud or force.
Notwithstanding the above, children born out of either the void or the voidable marriages are considered legitimate children.
(B) Restitution of Conjugal Rights:
If your spouse has left you without any reasonable grounds, then you can apply for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. When a decree of restitution of conjugal rights is passed, it means that the guilty spouse is ordered to live with the aggrieved party. While, enforcement is a problem, the courts usually try to ensure the execution of decree by attaching of property, and if the party still does not comply, the Court may also punish him for contempt of court.
The decree for restitution of conjugal rights can be passed if it meets four essential elements. They are:
(a) the respondent spouse must have withdrawn from the spouse’s society;
(b) the withdrawal must be without any reasonable cause, and;
(c) the respondent spouse has filed a case for restitution of conjugal rights
(d) The statements made in the application must be true and there are no legal grounds for refusal of such relief.
The Respondent spouse can be relieved from the petition for restitution of conjugal rights if he or she has a reasonable defence for the desertion of the spouse. Some of the reasonable defences accepted by the courts are:
(i) if the respondent has a ground to claim for a matrimonial relief;
(ii) if the aggrieved spouse is guilty of any misconduct;
(iii) Act act or omission by the spouse, that makes it impossible for the respondent spouse to live with the aggrieved spouse.
(C) Judicial Separation:
The relief of judicial separation is provided in Section 10 of the Hindu Marriage Act. A decree of judicial separation has no effect on the marital relationship of the parties, instead once the decree is passed, the parties are under no obligation to co-habit with his or her spouse. The grounds for judicial separation is the same as that for divorce and is provided under Section 13 of the Hindu Marriage Act.
The Punjab-Haryana High Court had held in Sohan Lal v. Kamlesh that a wife can claim maintenance even in case of judicial separation.
Judicial separation is usually step before obtaining a decree of divorce, since even though the Act does not provide the time-limit of judicial separation, Section 13 states that if there is no resumption in co-habitation one year after the decree of judicial separation, then the parties can get a divorce on this ground. However, if the parties decide to co-habit, then they have to apply for annulment of decree of judicial separation.
(D) Divorce:
The decree of divorce is taken when the husband and wife no longer want to live together and want to break all the vows and promises taken during the wedding. There are different methods of taking divorce. They are:
(i) Mutual Consent Divorce:
It is one of the most convenient and easiest methods of taking divorce, provided the couple amicably agree on the consent terms regarding maintenance, exchange of property, child custody etc. The application for mutual consent divorce must mention that the parties have been living separately for at least one year. The court then gives the couple 6 months to reconcile, however, if they do not reconcile, then the decree of mutual consent divorce is passed.
More recently, the Supreme Court in Amardeep Singh v. Harveen Kaur held that the cooling period of 6 months can be waived off. It laid down certain conditions which if fulfilled, can make a case for waiving of the statutory period provided under Section 13(B)(2) of the Hindu Marriage Act. The conditions are:
(a) the statutory period of 6 months along with the one year separation of parties is completed before the filing of first motion itself;
(b) All efforts for mediation/reconciliation to reunite the parties have failed and there is no likelihood of success by further efforts;
(c) The parties have consented on all issues including alimony or custody, and;
(d) The waiting period will only prolong their agony.
(ii) Irretrievable breakdown of Marriage:
It is to be noted that irretrievable breakdown of marriage has not been added in the Hindu Marriage Act yet. It can be a ground for divorce if the court is satisfied that the marriage cannot be saved. It cannot be used as a ground for divorce at the will of the parties.
Irretrievable breakdown of marriage caters to the situation where one party believes that the marriage has failed and wants to take divorce, but the other party refuses to believe it. In Naveen Kohli v. Neelu Kohli, that the Hon’ble Supreme Court of India suggested the Centre to seriously consider adding irretrievable breakdown of marriage as a ground for divorce. The Law Commission had also studied in the issue at length and had forwarded its report to the Government , and the UPA Government had finally introduced the Marriage Laws (Amendment) Bill, 2013 in the Parliament, but it has been withheld at the moment due to many representations and objections being made against it.
(iii) Contested Divorce:
Contested divorce is when the parties want to take divorce but have not agreed on the terms of their divorce. The grounds for divorce are provided in Section 13 of the Hindu Marriage Act. Some of the grounds are as follows:
(a) Adultery – It is when a married person has sexual intercourse with someone other than their spouse.
(b) Cruelty – It could include both physical cruelty and mental cruelty. Physical cruelty is when the spouse is physically assaulting or beating the wife or husband. Mental cruelty could include various forms of cruelty, right from not paying attention to the needs and wants of the spouse, humiliating the spouse to inflicting upon him or her financial cruelty, that is not providing for the husband or wife’s daily expenses and basic needs. It becomes very complicated as the daily expenses and basic need of each person is different from the other.
(c) Desertion – When one party deserts the other for a continuous span of at least 2 years. However, if the party leaves with an intention to desert the spouse, but later changes the mind and tries to return to his/her spouse, and the spouse does not accept them back, and instead files a case for divorce on the grounds of desertion, then the party is not considered liable for desertion.
(d) Conversion – When one party converts to another religion without the consent of their spouse, then it becomes a ground for divorce.
(e) Mental illness – It is when the spouse is of unsound mind. Insanity needs to fulfil two requirements. One, being that the spouse is incurably of unsound mind, and the spouse has been continuously or intermittently of unsound mind of such a kind or extent that the petitioner cannot be reasonably expected to live with the respondent.
(f) Leprosy – It is a serious form infectious disease of skin, peripheral nerves, mucosal surfaces of upper respiratory tract and eyes, which is contagious and is hence a ground for divorce. (This has now been omitted owing to The Personal Laws (Amendment) Act, 2019)
(g) Venereal or Communicable disease – It is when a person is suffering from a disease that can be transmitted from one person to the other.
(h) Renunciation – This is when the spouse decides to renounce the world and has adopted the religious path to God. In such cases the spouse is considered civilly dead.
(i) Presumption of death – This is when the family and friends of the spouse have not heard from him or her for a period of 7 years, then it is considered as a valid ground for divorce.
The above listed grounds can be used by either the husband or the wife. However, there are certain additional grounds that can be used by only the wife. They are:
(j) When the husband has another subsisting wife from his previous marriage conducted before the commencement of the Hindu Marriage Act.
(k) The husband is found guilty of rape, sodomy or bestiality.
(l) When the conjugal relations between the partners failed to resume even after one year from the date on which an order of maintenance was passed in favour of the wife.
(m) When the marriage occurred before the wife attained 15 years, and after completing 18 years, she renounces the marriage.
Maintenance:
Maintenance is provided to put the spouse back in the same condition as he/she was during the time of marriage. There are two kinds of maintenance, they are:
(i) Temporary Maintenance – Section 24 of the Hindu Marriage Act provides that either the husband or wife can claim maintenance pendent lite i.e., maintenance till the proceedings are pending. It is provided so that wife has money to pay for the litigation expenses she has had to incur.
(ii) Permanent Maintenance
– Section 25 of the Hindu Marriage Act provides for grounds for permanent alimony. The can order for this to be paid in lump sum or as a monthly amount. However, if there is any change in circumstances or if the spouse has remarried or has been proved to be unchaste, then the court can change, modify or rescind the order at the option of the other party.
Section 18 of the Hindu Adoption and Maintenance Act (HMA Act) also provides that the wife can claim maintenance from her husband during her lifetime. The wife can also claim separate residence along with maintenance on grounds such as cruelty, adultery, desertion, conversion to another religion etc. The grounds are provided in Section 18 of the HMA Act, which are more or less the same as the grounds for divorce under the Hindu Marriage Act. It is to be noted that Section 19 also provides that a widowed wife is to be maintained by her father-in-law.
(iii) Maintenance under Section 125 of CrPC
– It provides for maintenance to wife, child and parents. The court can order for the wife to be maintained if the husband neglects her maintenance and she is not able to maintain herself. It shall be valid unless the wife commits adultery or refuses to live with her husband without any sufficient reason. The punishment for not complying with the order is fine or with imprisonment of one month or both, provided an application for recovery is made within one year from the date on which it became due.
In fact, under Section 125 of CrPC, even a woman who has been in a live-in relationship with a man for a reasonably long period of time is entitled for maintenance. The Hon’ble Supreme Court of India in Chanmuniya v. Virendra Kumar Singh Kushwaha & Anr., has held that the term ‘wife’ must also include instances where man and woman have lived as husband and wife together for a reasonably long period of time, and in such cases strict proof of marriage is not a pre-condition for maintenance under Section 125.
Calculation of maintenance:
Maintenance does not just involve food, clothing and shelter but also other necessities, therefore, determining the amount of maintenance in each case is one of the most challenging tasks faced by the judges. Section 18 of the HMA Act provides for the elements to be considered while calculating the amount of maintenance. They are:
(i) the status of the parties;
(ii) the reasonable wants of the claimant;
(iii) the reason why the claimant is living separately;
(iv) the value of claimant’s property and income derived from such property, or claimant’s earnings or from any other source;
(v) the number of dependants and the amount of expense borne for them by the husband.
Apart from this, the court also considers the income of the husband, his personal expenses, his standard of living etc., while calculating the amount of maintenance.
Custody:
Custody of children is one of the most contentious issues in any divorce. While cases of child custody are treated on case-to-case basis, the welfare of the child is top priority. There are different kinds of custody. They are:
(i) Physical custody – The child lives with the parent who is given physical custody.
(ii) Legal custody – The parent who gets legal custody has the right to important decisions regarding the educational and religious upbringing of the child, financial support and medical care.
(iii) Joint custody – It is comparatively new. There is no statutory provision for joint custody, but the courts have been granting joint custody so that the child gets to enjoy the benefits of having both parents and there is no question of having primary guardian.
Statutory Laws Governing Custody:
(i) Hindu Marriage Act, 1956 – Section 26 of the Hindu Marriage Act provides for child custody.
(ii) Hindu Minority and Guardianship Act, 1956 (HMGA) – This Act provides that the father is the natural guardian of the minor’s person and minor’s property, and then the mother. Section 6 of HMGA provides that:
(a) in case of a minor boy and an unmarried minor girl, the natural guardian is the father and after him, it is the mother.
(b) In case of a minor who has not completed 5 years of age, the custody shall ordinarily be with the mother.
(c) In case of an illegitimate child, the mother is the natural guardian, and after her father.
(d) In case of a married girl, the husband is the natural guardian.
The constitutional validity of above Section 6(a) was challenged as inequality between sexes, as it disentitles the mother from being the natural guardian during the lifetime of the father. However, the Supreme Court of India in Gita Hariharan & anr. v. Reserve Bank of India & Anr., stated that the word ‘after’ must not be interpreted to mean after the lifetime of the father, but it means in the absence of the father, and absence could also mean ‘temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.’
(iii) Guardians and Wards Act, 1890 (GWA) – This Act applies to all guardians and minors within the territory of India irrespective of the religion. GWA authorises the District court to appoint a guardian for the minor’s person or property when the guardian appointed under the minor’s personal law, or the testamentary guardian appointed basis a will fail to discharge their duties. Section 17 of the Act provides the factors to be considered while appointing a guardian. Some of the factors are age, sex and religion of guardian, how closely the minor is related to the guardian, character and capacity of the guardian, wishes of the parents, if any, and the existing or previous relation if the guardian with the minor. Section 19 of the Act provides that if the father of the minor is alive then the court cannot appoint a guardian, if in the opinion of the court, the father is not unfit to be a guardian. Earlier Section 19(b) prevented the court from appointing a guardian only if the father was alive, however, with the Personal Laws (Amendment) Act, 2010, this is also made applicable to cases where the mother is alive.
MUSLIMS
The source of Muslim Personal Law is the Quran. Quran means ‘recitation.’ Quran is the compilation of series of conversation between the Allah and Prophet Muhammad. The Muslim community is mainly divided into two groups:
(i) The Shia Group; and
(ii) The Sunni Group
Statutes that apply to the Muslims:
(I) The Muslim Personal Law (Shariat) Application Act, 1937:
The Muslim Personal Law (Shariat) Application Act was passed in 1937 according to which Shariat (Muslim Personal Law) shall apply to all questions regarding intestate succession, special property of females, marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trusts, trust properties, and wakfs, where the parties are Muslims.
(II) The Dissolution of Muslim Marriage Act, 1939:
The Statement of Objects and Reasons of this Act clearly explains the reason why this Act was passed. It states that since the Hanafi Code did not enable the Muslim women to approach the court to dissolve their marriage in case the husband neglects to maintain her, treated her with cruelty, deserted her etc., causing misery to the Muslim women. The Hanafi jurists have laid down that if the Hanafi law causes hardship to the people, then it is permissible to apply the provisions of Maliki, Shafii, or Hanbali law. Therefore, this Act was enacted providing Muslim women to apply for dissolution of marriage on certain grounds.
The grounds for divorce under this Act is provided in Section 2, which provides that a woman married under the Muslim law is entitled to file for divorce on one of the following grounds:
(i) husband whereabouts not known for 4 years;
(ii) husband has neglected or failed to maintain the wife for two years;
(iii) husband has been sentenced to imprisonment for 7 years and above;
(iv) husband has failed to perform his marital obligation without any reasonable cause for three years;
(v) impotency
(vi) leprosy or venereal disease (Omitted owing to the Personal Laws (Amendment) Act, 2019.
(vii) repudiation of marriage by woman after attaining 18 years
(III) Muslim Women (Protection of Rights on Divorce) Act, 1986 – This Act enables a divorced Muslim woman to receive maintenance from her husband after divorce within the iddat period.
(A) Divorce:
The dissolution of marriage under Muslim personal law can be under three heads:
(I) Talaqal – Sunna:
This divorce is in accordance to the teachings of the prophet. It can be further divided into two types.
(i) Talaq-Ahsan – It is a proper form of repudiation of marriage. It is revocable. In this form, the husband has to make single pronouncement of talaq during the wife’s tuhr period i.e., the purity period between two menstruations. In the absence of menstruation due to old age of woman or pregnancy, the pronouncement can be made at any time. The wife then observes iddat for a period of three months during which husband cannot revoke the talaq. However, after the iddat period, if the husband does not revoke the talaq, it becomes absolute and final.
(ii) Talaq-Hasan – This is another approved from of divorce. Hasan mean ‘good’. In this form, talaq has to be mentioned three times during three successive tuhrs. In case of old age, pregnancy, it must be made after an interval of 30 days each. After the third pronouncement, the divorce becomes absolute and irrevocable. After this the husband cannot revoke the marriage, unless the wife marries another man, and he divorces her.
(II) Talaq-ul-biddat:
This is a disapproved form of divorce, also known as instantaneous divorce. It involves three pronouncements of talaq during made simultaneously during a single period of tuhr.
It was held by the Supreme Court of India in Shamim Ara v. the State of U.P that any pronouncement of divorce must precede with an attempt of reconciliation between the husband and the wife. In fact, the Gauhati High Court in Rukia Khatoon’s case pointed out that as per Sura IV verse 35 of the Holy Quran, reconciliation must be tried by two arbiters, one appointed by husband’s family and the other by wife’s family. Therefore, given the fact that triple talaq or talq-ul-biddat is instantaneous and irrevocable, any attempt for reconciliation cannot take place before this kind of divorce is given by the husband. Hence, it is arbitrary and violates the fundamental rights guaranteed under Article 14 of the Indian Constitution, and it must therefore be struck down.
After the hearing before the constitutional bench of the Supreme Court of India in the Shayara Bano case, which declared triple talaq unconstitutional in its historic judgment on August 22, 2017, the Rajya Sabha finally passed the Triple Talaq Bill on 31st July, 2019. Some of the important points in the Triple Talaq Bill are as follows:
(i) The Bill makes all declarations of instantaneous talaq, including written and electronic form to be void and illegal.
(ii) The Bill makes declaration of instantaneous talaq, a cognisable and non-bailable offence. Cognisable means that the accused can be arrested without warrant.
(iii) The husband can be punished for a period of three years and fine.
(iv) The accused can be granted bail by the Magistrate only after hearing the woman against whom triple talaq has been pronounced.
(v) Offence may be compounded i.e., settle the dispute and stop the legal proceeding by the Magistrate at the request of the woman
(vi) The Bill provides for subsistence allowance to a Muslim woman against whom divorce has been declared by the husband for herself and her dependent children. The amount is to be decided by the First Magistrate Court.
(vii) Muslim woman is also entitled to seek custody of her children, which is to be determined by the Magistrate.
The Supreme Court Judgement on Triple Talaq and the Triple Talaq Bill have been extensively examined in one of Legal Parley’s previous posts. You can access it HERE.
(B) Mutual Consent Divorce:
There are two forms of mutual consent divorce under the Muslim Personal Law. They are called Khula and Mubarat.
(i) Khula – It is the form of divorce where the wife agrees to give some kind of consideration to the husband in exchange for divorce. Relieving the husband from payment of mahr or dower is also one of the considerations.
(ii) Mubarat – ‘Mubarat’ means obtaining relief from one another. In this form of divorce, both husband and wife want to get separated by dissolving the marriage:
(a) either the husband or wife make an offer;
(b) the other spouse accepts the offer;
(c) once accepted, it becomes irremediable, this means that unlike talaq, where the parties can still reconcile and remarry, this form of divorce does not allow any form of reconciliation.
(d) iddat period is mandatory before taking this form of divorce as well.
(C) Annulment:
Nullity of marriage is not recognized under the Muslim personal law. However, a declaratory suit may be filed under Section 34 of Specific Relief Act, 1963. Section 34 provides that any person who is entitled to a legal character or a right to the property may file a declaratory suit against the person who is denying his or her right to such title or character.
(D) Restitution of Conjugal Rights:
Even though there is no mention of restitution of conjugal rights under the Dissolution of Muslim marriages Act, a Muslim husband usually files a case of restitution of conjugal rights as a counteract to the petition of divorce filed by the wife. Restitution of conjugal rights in Islamic law means to restore the relationship between the husband and wife. Through various court decisions, there are two main defenses that a wife has against the husband’s petition for restitution of conjugal rights. They are cruelty and desertion.
Maintenance:
The Muslim personal law had limited obligations on the husband to maintain the wife after divorce. It only made the husband liable to pay maintenance to the wife during the iddat period. There are two ways in which a marriage may be dissolved. They are:
(i) Dissolution by death of husband – On the husband’s death, a Muslim woman has no right to maintenance, even if she is pregnant. It is considered that obligation to pay maintenance to wife is the husband’s personal obligation, and it ends with his death.
(ii) Dissolution by divorce – Woman’s right to maintenance precedes even maintenance to the child, but that is only so long as she remains as wife. After divorce, the Muslim husband is under no obligation to maintain the woman except during the period of iddat i.e., three menstrual cycles or three months after the divorce.
Maintenance under an Agreement:
Marriage is a contract under the Muslim personal law, so if there is an agreement between the husband and wife or their guardians, even if the couple is not a party to it, the agreement shall stand valid and enforceable. Accordingly, if there is an agreement entered into between the couple or their guardians stipulating that the husband would maintain the wife until her lifetime in case of divorce, then it would be valid before a court of law, and the husband would be liable to fulfill the promise made in the agreement.
Further, wife can also be entitled to a special allowance called Kharcha-i-pardan, guzara or mewa-khori. It is a personal allowance that can be stipulated in the pre -nuptial agreement between the couple or their guardians. As early as in 1920, the Allahabad High Court in Moinuddian v. Jamal Fatima had held that the pre-nuptial agreement entered into between the husband and his father with the wife stating that the husband would pay Rs. 15 to the wife every month as allowance in case of divorce was valid and the divorced wife is entitled to this allowance as promised.
Maintenance under Criminal Procedure Code (CrPC):
Section 125 of CrPC is provided to protect the interests of all divorced, neglected or deserted wives belonging to any community or religion. The general law under CrPC and the Muslim law have always been inconsistent with one another.
Before Section 125 of CrPC was enacted, Section 488 of CrPC entitled a wife to maintenance by the husband. So, it was claimed by husbands that once divorce takes place, the woman ceases to be a wife, and is hence not entitled to maintenance. Since, it was relatively easy to take divorce under the Muslim law, the Muslim men were taking advantage of this loophole. Taking this into consideration, Section 125 of CrPC was enacted, wherein a divorced wife was also entitled to maintenance until she remarries, and it applied to Muslim women as well.
However, there was again a discrepancy between the law under Section 125 of CrPC and the Muslim law, as the Muslim law provided maintenance to divorced women only till the expiry of the iddat period. This created a lot of confusion regarding the maintainability of an application for maintenance by a Muslim woman under Section 125 of CrPC. There have been many instances where the courts have not entertained application made by the Muslim women.
Therefore, the question of exclusion of Muslim women from the ambit of Section 125 of CrPC came up before the Hon’ble Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum. The two judge bench after hearing the contentions of both sides held that Muslim women were entitled to maintenance under Section 125 of CrPC. The case was then referred to a constitutional bench presided over by Justice Chandrachud. This bench also concluded that divorced Muslim women are entitled to apply for maintenance under Section 125 of CrPC, and that mahr is not a sum payable on divorce under the Muslim Personal law.
Of course, this decision was met with a huge uproar from the Muslim community. The clergy claimed that the Supreme Court had interfered with the personal law of the Muslims and that as per the 1937 law, it is provided quite clearly that matters of marriage, divorce, succession etc., shall be governed as per the Muslim personal laws.
Even though, the Supreme Court had made its decision after referring the Quran, the government finally succumbed to the protests of the minority community, and the Muslim women faced a huge setback with the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986.
According to this Act, under Section 3(1), a divorced woman is entitled to fair maintenance by her husband to be paid within the iddat period. However, under Section 4 it states that if the Magistrate is satisfied that woman has not remarried and is unable to maintain herself after the iddat period, he may order her relatives who would be entitled to inherit her property on her death to pay reasonable maintenance as deemed fit by the Magistrate. In the absence of such relatives, the Magistrate may direct State Wakf Board established under Section 9 of the Wakf Act, 1954 (29 of 1954), or any other law in force to pay maintenance to the woman. The Act therefore, diluted the obligation of the husband towards the divorced wife to within the iddat period.
Daniel Laitifi, who was also the advocate for Shah Bano, later challenged this law. The Muslim organisations contended that the right of the divorced wife is being upheld, but not by punishing the husband, but by providing the maintenance to the woman through other sources. The Act therefore does not violate the fundamental rights guaranteed under the Constitution. However, the bench in Danial Latifi & Anr v. Union Of India observed that Section 125 CrPC was enacted to help destitute divorced women, by making the husband liable to pay her maintenance. However, to limit the payment by husband to within the iddat period, and then making the woman request her relatives to maintain her, and then to run from pillar to post to finally request the wakf board to pay her maintenance does not seem like a justified alternative to the provisions of Section 125 of CrPC.
Besides, the bench also interpreted the wordings of Section 3 and observed that the words ‘within iddat period’ does not limit the duration of maintenance, but provides the time within which the husband has to make arrangement for payment of maintenance. According to the provision, the husband could be excluded from liability post iddat period if he has already discharged his obligation by paying the woman in lump sum, in addition to payment of mahr, or dower.
This issue popped up again in Shabana Bano Case , where the Supreme Court again observed that a Muslim woman’s application for maintenance under Section 125 of CrPC is maintainable until the time she remarries.
Custody:
Under the Muslim personal law, the right to have the custody of the children lies with the mother. This is called the right of hizanat. This right is recognized taking into consideration the welfare of the children.
Sons – According to the Sunnis, the mother’s right of Hizanat over the son is till he attains the age of 7 years. According to Shias, the mother’s right of Hizanat is till the son is weaned.
Daughters – According to Sunnis, the daughter’s custody can be with mother till puberty, while under Shia law, the daughter can be with mother till she attains 7 years.
Under the Shia law, in the custody in the absence of mother is with the father, and in the absence of both parents, the custody is with grandfather. As per Sunni school of thought, in the absence of mother, the custody is with the following:
• Maternal grandmother
• Maternal great grandmother
• Maternal aunt and great aunt
• Full sister
• Uterine sister
• Consanguine sister
• Paternal aunt
The Delhi High Court in Mohd. Nihal v. State held that as per Section 2 of the Shariat Act, 1937 and Section 6 of Guardians and Wards Act, 1890, Muslim personal law will prevail over any question of guardianship and custody.
CHRISTIANS
Christianity is India’s third largest religion after Hindu and Islam. Christianity spread to India centuries ago. When the East India Company became the ruling power in India, the Common Law of England became applicable to all matters including marriage and divorce among the Christians. However, there was variance in judicial opinions on whether the Laws of England applied only to Christians within England or even outside. So, in order to clear the confusion, the British Parliament passed a law in 1852 to authorise solemnization of marriages among Christians in India in the presence of Registrars, appointed by the Government. This was followed by the enactment of Indian Christian Marriage Act, 1872. This law allowed marriage between Christians and non-Christians.
However, dissolution of marriage has been an uphill struggle for the Christians, as Christian Personal Law did not recognize divorce. However, with time the concept of divorce was introduced.
Statutes:
(i) Indian Christian Marriage Act, 1872
(ii) Indian Divorce Act, 1869
(A) Divorce:
Indian Divorce Act, 1869 was a law that discriminated against the Christian women. Section 10 of the Act provided that either the husband or wife can file for dissolution of marriage. However, the grounds for such dissolution was not the same for husband and wife. While the husband could file for dissolution of marriage if the wife committed adultery, the wife was not entitled to the same unless the husband had also committed some other matrimonial fault along with adultery. The faults were listed as:
(i) incestuous adultery;
(ii) bigamy with adultery;
(iii) marriage with another women with adultery;
(iv) adultery coupled with cruelty ; and
(v) adultery coupled with desertion without reasonable excuse, for two years or upwards.
Under Section 22 of the Act, the wife was entitled to a qualified divorce that is the couples were forbidden to live together. Therefore, in case of adultery, desertion or cruelty, the wife was only entitled to judicial separation, while the husband was entitled to divorce.
Therefore, the validity of Section 10 of Indian Divorce Act was challenged by Christian women before the Kerala High Court Ammini, E.J. v. Union of India contending that the provision violates Article 14, 15 and 21 of the Indian Constitution . The Kerala High Court observed that the discrimination in the grounds of divorce was purely based on sex, and such discrimination violated Article 14 and 15 of the Constitution. Also, the court observed that compelling a wife to live, even though in name as wife of the man who treated her with cruelty is forcing her to live a wife without dignity and personal liberty. Hence, the section also violates Article 21 of the Constitution.
In 1997, Bombay High Court also in Pragati Varghese v. Cycril George Varghese struck down the provision stating that it discriminates not only on the basis of sex but also religion, and it therefore violates Article 14, 15 and 21 of the Constitution.
The 15th Law Commission Report also suggested revision of some of the provisions of the Indian Divorce Act, however these suggestions could not see the light of the day due to various reasons. Finally, in 2001, amendments were made to the Indian Divorce Act, through which among other changes, equal grounds were given to both men and women for divorce.
(B) Mutual Consent Divorce:
The 2001 amendment to the Act also added Section 10A which provided for mutual consent divorce. However, it stated that a couple seeking for mutual divorce must live separately for a period of two years. The Christian community was not happy with this amendment as the period of separation required under other legislations like Hindu Marriage Act or Special Marriage Act was one year.
(C) Annulment of Marriage:
Section 18 of the Indian Divorce Act provides that either the husband or the wife can file a petition for the marriage to be declared null and void. Section 19 provides grounds on which such a decree can be passed.
They are:
(i) Impotency of Respondent at the time of marriage;
(ii) Parties are within prohibited degree of relationship;
(iii) Either party was a lunatic at the time of marriage;
(iv) Either party was already married at the time of the present marriage.
(D) Restitution of Conjugal Rights:
Section 32 of the Indian Divorce Act provides that either party can file a case of restitution of conjugal rights if the spouse has withdrawn from the society of the other without any reasonable cause.
Maintenance:
The Indian Divorce Act, 1869 provides for maintenance. Section 36 of the Act provides for alimony pendent-lite, under which irrespective of who has filed the divorce petition, and whether or not the wife has asked for protection order, she can produce a list of expenses that must be reimbursed by the husband, if ordered by the court to do so.
Section 37 provides that the court can order for permanent alimony to be paid to the wife till the end of her life either by lump sum payment or annual payment. As per Section 38, the alimony can be directed to be paid to the wife herself or to her trustee that is approved by the court.
Custody:
Section 41 of the Indian Divorce Act, 1869 provides the court the power to make orders as to the custody of children in a suit for separation. If needed it can also order for the child to be under the protection of the court.
One of the important cases regarding adoption Rosy Jacob v. Jacob A.Chakramakkal, wherein the Hon’ble Supreme Court had held that “all orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards.”
In any case of dissolution of marriage or nullity of marriage, the court may pass an interim order regarding custody, maintenance and education of children, and before the decree is confirmed, the court can pass interim orders directing the child to be under the protection of the court. This is taking into consideration the Halsbury’s Laws of England according to which the child’s interest is of first and paramount consideration.
SPECIAL MARRIAGE ACT , 1954 (SMA)
Since inter-caste and inter-religion marriages began taking place, there was a need for a law to govern these kind of marriages where personal laws could not be applied. Therefore, Special Marriage Act, 1954 was enacted. This Act can also be used by couples belonging to the same religion/community, but do not want their marriage to be governed by their personal laws.
As per Section 5 of SMA, couples who want to get married under this Act have to give prior notice in a prescribed form to the Marriage Officer in the district where at least one of the parties to the marriage has resided at least for 30 days immediately preceding the date of this notice. If any one raises objection within 30 days after the date of notice, and the marriage officer considers it to be a valid objection then the marriage cannot take place. In such cases, the parties can appeal to the District Court. This makes marriages under Special Marriage Act a little more burdensome.
(A) Divorce:
Section 27 of SMA provides the grounds for divorce, and the grounds are as follows:
(i) Desertion for at least 2 years;
(ii) Imprisonment for sever years;
(iii) Cruelty;
(iv) Having unsound mind with mental or psychopathic disorder;
(v) Suffering from venereal disease;
(vi) Leprosy;
(vii) Has not been heard of for a period of seven years;
(viii) Guilty of rape, sodomy, or bestiality
However, the Parliament has passed the Personal Law Amendment Act, 2019 which removed leprosy as a ground for divorce from personal laws such as Hindu Marriage Act, Special Marriage Act, Dissolution of Muslim Marriage Act, Indian Divorce Act and Hindu Adoption and Maintenance Act.
(B) Mutual Consent Divorce:
Section 28 of SMA provides for mutual consent divorce. For the couple to apply for mutual consent divorce, they must be married for at least one year, and they must have lived separately for at least one year. It also states that once the petition for divorce is filed, divorce will be granted after the parties move a motion after 6 months from the time of presentation of petition, and not later than 18 months. However, with the Supreme Court’s judgement in Amardeep Singh v. Harveen Kaur case, the waiting period of 6 months has been waived off.
(C) Annulment of Marriage:
Section 24 of SMA provides for void marriages. A decree of nullity can be passed under this section on the following grounds:
(i) If wither party has a living spouse;
(ii) Incapability of giving valid consent due to unsoundness of mind;
(iii) Parties are under-aged;
(iv) Parties are within the prohibited degree of relationship;
(v) Impotency.
Under Section 25 of SMA , a marriage is voidable if –
(i) marriage has not been consummated due to willful refusal of the respondent;
(ii) if respondent was pregnant with someone else at the time of marriage;
(iii) consent of wither party was obtained by fraud or coercion.
(D) Restitution of Conjugal Rights:
Section 22 of SMA provides that either husband or wife can file a petition for restitution of conjugal rights if the spouse has withdrawn from his/her society without any reasonable cause. The burden of reasonable excuse is on the person who has withdrawn from the society.
Maintenance:
Unlike Hindu Marriage Act, where either of the spouses can file an application for maintenance, the Special Marriage Act only provides for the wife to make an application for maintenance. Section 36 provides for alimony pendent-lite, on the ground that the wife does not have sufficient independent income to support herself and to incur litigation expenses. Section 37 of SMA provides for permanent alimony that can be paid in lump sum, monthly or periodically.
In applications for maintenance, the court considers the following:
(i) the status, income, salary, assets and lifestyle of husband;
(ii) the reasonable wants of the wife;
(iii) the status, assets and earnings of the wife.
Custody:
Section 38 of SMA provides for custody of children wherein it states that the District Court can pass order regarding the custody, maintenance and education of minor children. Such orders can also be later revoked, modified or suspended on application by one of the parties.
Law Commission’s 257th Report on ‘Reforms in guardianship and Custody Laws in India’ allows courts to provide joint custody in cases where it is suitable for the welfare of the child.
Conclusion:
In spite of the presence of these wide-ranging religions, diverse cultures and practices, the provisions of each of these enactments are more or less the same. The Parliament and judiciary have tried their best on different occasions to bridge any sort of discrimination among the various provisions, if any, and have tried to bring the laws of all religions on the same footing.
It is for this reason that there is an ongoing debate on Uniform Civil Code that could replace the personal laws of all religions, and could govern all citizens of India belonging to different religions with a common set of rules. However, whether that is feasible in India, and if it is beneficial for the citizens of the country is a separate lengthy debate altogether.
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