All over the world, marriage began as a sacrament (religious ceremony).
Hindus took marriage as indissoluble (unable to be destroyed) even after death.
Whereas, Muslims took marriage as a contract. Muslim marriage has been defined
as a civil contract for the purpose of legalizing sexual intercourse and
procreation of children.
Family Law and its Sources
Family law is the area of law that addresses family relationships. It includes
creating family relationships and breaking them through divorce and termination
of parental rights. This law addresses adoption, contested custody of children,
etc. There are five broad sets of family laws in India, namely Hindu law, which
governs all Hindus, Buddhists, Jains, and Sikhs, Muslim law for the Muslims;
Christian law for the Christian; Parsi law for the Parsis and secular law, i.e.
the Special Marriage Act. The religion-based laws are derived from religious
texts. These laws have also been amended from time-to-time by Parliamentary
Sources and Schools
There are many sources and schools for the explanation of the concept of laws in
different religions. Some of them are given below:
Sources of Hindu Law
Sources of Hindu law can be classified into two heads
According to Manu
, there are four sources of Hindu law i.e.
Shruti is believed to contain the precious words of God. The shruti mainly
consists of four Vedas (namely the Rig Veda, the Yajur Veda, the Sama Veda and
the Atharva Veda), six Vedangas and the eighteen Upanishads.
It contains those portions of the shrutis which the saints forgot in their
original form and then they wrote in their own way with the help of their
memory. Thus, it is based on shrutis. The smritis are divided into two kind's
viz. Dharamasutras and Dharamshastras
Commentaries and Digests
Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period from 600
AD to 1200 AD. The commentaries professing and purporting to rest on the smritis
explained, modified and enlarged the traditions recorded therein to bring them
into harmony and accord with prevalent practice which is suitable with the time.
It is regarded as the highest 'dharma'. It is explained by the judicial
committee and signifies a rule in a particular family or in a class or district.
Custom is a principle source and its position is next to the shrutis and smritis
but usage of custom prevails over the smritis.
Customs are divided into several parts:
Characteristics of customs needed to declare them valid are:
- Local customs
- Class customs
- Family customs
The modern sources of Hindu law are given below:
Justice, Equity and Good Conscience
- It must be ancient.
- It must be certain and free from ambiguity.
- It must be reasonable.
- It must be continuous.
- It must not be opposed to public policy.
- It must not be opposed to any law.
When any dispute comes before a court and which cannot be settled by the
application of any rule from any available sources, then the principles of
justice, equity and good conscience would be applied. For example, case of
Gurunath V. Kamlabai
(A.I.R. 1955 S.C. 206).
The doctrine of precedent was based on the principle of treating like cases
It is called to be a source of Hindu law in two senses, which are as follows:
- All the important principles and rules of Hindu law have now been
embodied in case law.
- It is a source of law in the sense that by the process of judicial
interpretation doctrines, principles and rules of law stand modified and
altogether have been introduced in the body of Hindu law.
The decisions of Privy Council are binding on all the lower courts in India
except where they have been modified or altered by Supreme Court, whose
decisions are binding on all courts, except for itself.
Judicial decisions on Hindu law are sometimes taken as a source of law. In the
law reports, all important points of Hindu law are to be found. Sometimes, the
decisions on Hindu law have superseded the commentaries.
For example: case of Shri Krishna Singh V. Mathura Ahir,
(1981) 3 S.C.C.
Legislative acts of Parliament play an important role in formation of Hindu Law.
After independence, Hindu laws important aspects have been codified. For
example, the Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act,
1956, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act,
Schools of Hindu Law
The Vedas and Smritis are the most reliable source of laws in India, but they
are not easy to understand. So many scholars in India wrote commentaries, which
led to the development of these schools.
There are two main schools of Hindu Law:
It is named after the commentary called Mitakshara written by Vijnaneshwara on
Yajnavalkya Smriti. It is applicable to whole India excluding the State of
Assam. In case of Rohan V. Lakshman 1976, it was held that the effect of
Mitakshara School is so strong that it also applies to even undescribed subjects
in Bengal and Assam.
It is the orthodox school which is divided into four sub-schools:
- Banaras sub-school
- Mithila sub-school
- Maharashtra sub-school
- Dravida or Madras sub-school
The Dayabhaga School is mainly found in Bengal and Assam. It is not a commentary
on any particular code but is a digest of all the codes. It was written by
Jimutavahana in 12th century. It is the reformist school of Hindu law. The
succession of property in this school is based on spiritual principles. The
person who earns maximum peace and religious profit for the soul of deceased by
performing 'Pindadaan' is the successor of the property in this school. On the
basis of succession, his property shall devolve among his heirs, in case of
death of a Hindu person. The coparcenary evolves after the death of the father.
Sources of Muslim Law
The sources of Muslim law can be classified into following heads:
There are four ancient sources of Muslim law, namely:
The word Quran
means 'to be recited'
. It is the first important
source of Islamic law. It is believed that these are direct words of God as
revealed to Muhammad through angel Gabriel in Mecca and Medina. The society
should be based on its moral, philosophical, social, political and economic
aspect. Muslim jurists agree that the Quran is not totally a legal code, rather
its purpose is to lay down a way of life which regulates man's relationship with
others and God.
The term Sunnah
literally means the trodden path, a procedure, and a
way of action
. It is the applied principles of Islam embodied in the holy
Quran. Important source of Sunnah is Hadis. Both Sunnah and Hadis are used
interchangeably in the law books whereas both are different. Sunnah is the rule
of law deduced from the practice of the Prophet, his noble behaviour. The study
of Hadis developed only after the formation of Sunnah through various schools of
law (Madhab). Tradition cannot repeal the Quranic text but can explain it. No
tradition can be received which is contrary to the Quran.
Ijma means the view point of the learned. When persons know about the law and
would agree on a point, such consensual opinion was referred to as Ijma. So,
Ijma is the harmonious decision of jurists for a particular question with
reference to that age or communal legislation. It is through the tradition of
the Prophet that Ijma derives its validity and authority as a source of law.
Whenever, law needed an amendment, the jurists used to give a common opinion to
amend it and to find the new solution. To be a jurist or Mujtahid, it was
mandatory that the person was a Muslim with adequate knowledge of law.
Types of Ijma are as follows:
- Ijma of the Companions
- Ijma of the Jurists
- Ijma of the People
Qiyas is an Arabic word which means 'analogy or measurement'. It is analogical
deduction from the known to the unknown. It does not meant to create a new law
but apply old established principles to new circumstances. It is generally the
interpretation of law rather than a source of law. Ijthihad (means personal
reasoning), Istihsan (means Jurists preference), Ikhtilaf (means disagreement)
are the other principles of interpretation of Muslim law.
Custom: Urf or Taamul
It refers to the customs and practices of a given society which is formally
included in Islamic law. Sharia law recognizes customs that prevailed at the
time of Muhammad but were not abrogated by the Quran. It is not a formal source.
When rule of law is not present in the text of the primary sources, the
customary rules are treated as law. Most of the customs were abolished by the
Shariat Act, 1937. Section 2 lists ten matters. For example, inheritance,
marriage, divorce, wakf and maintenance wherein customs and usage cannot be
During British rule, the Muslim law has undergone various modifications. So, the
source of these modifications is
Equity, Justice and Good Conscience
Equity, justice and good conscience is the universal phenomenon and Muslim law
is not exceptional to this. For instance, Istihsan of the Hanafi School and the
doctrine of Maselihul Mursala of Malik.
Cases which have no specific directions, the court has to act according to
equity, justice and good conscience. This was regulated by the regulations of
The common law doctrine of precedent has never been part of Muslim law; the
decisions of a Kazi never constituted a precedent in English law. Fatawa belongs
to the approach of this doctrine in Muslim law, which has huge initiative force.
The Fatawa not possess moral sanctions but has legal authority. During British
period, the doctrine of precedent became part of Muslim law.
In India, the Muslim law is not free from legislative and judicial intervention.
In some matters, pure Muslim law was altered. e.g.,
Schools of Muslim Law
- The Dissolution of Muslim Marriage Act, 1939.
- Muslim Women (Protection of Right on Divorce) Act, 1985.
- The Caste Disabilities Removal Act, 1850.
- The Child Marriage Restraint Act, 1924.
After the death of the Prophet Muhammad in 632 BCE, people divided into two
sects having different views regarding certain aspects of Islam. Thus, the
School of Muslim law can be broadly divided into two categories:
In Sunni sect, there are four main schools of Muslim law, which are as follows:
Earlier, it was known as Kufa School which was based on the name of the city of
Kufa in Iraq. Later, on the name of its founder Abu Hanifa, it was renamed as
Hanafi School. Hanafi school is based on customs and decisions of the Muslim
community. The Prophet had not allowed his words and traditions to be pen down.
The school was named after Malik-bin-Anas, who were the Mufti of Madeena. During
his period, the Kufa was considered as the capital of Muslim Khalifa, where Imam
Abu Hanifa and his disciples flourished with Hanafi Schools. He discovered about
8,000 traditions of Prophet but compiled only about 2,000 of them.
It was named after Muhammad-bin-Idris Shaffie. His period was between 767 AD to
820 AD. He was the student of Imam Malik of Madeena. It considered Ijma as the
important source of the Muslim law and give validity to the customs of Islamic
people and follows more methods of Hanafi school.
This school was founded by the Ahmad-bin-Hanbal. He was the disciple of Imam
Shafi and supports Hadis. He introduced the theory of tracing the root of Sunna
and Hadis and try to find solutions of all his questions.
In Shia sect, there are three main schools of Muslim law, which are given below:
This school is mainly considered as the Shia Muslim dominant. The Jafari Fiqh of
the Shias in most cases is inseparable from the four Sunni Madhahib, only
exception is mutah as the lawful marriage. The follower of this school believe
that the last Imam disappeared and to be returning as Mehdi (Messiah).
The Ismailis School
In India, this school is divided into two groups i.e. the Khojas or Western
Ismailis and the Bohoras. The Bohoras and Khojas of Mumbai are the followers of
this school and considered that they have special knowledge of religious
The followers of this school are not found in India. They mostly reside in Saudi
Arabia. The followers of this school are considered as the political activists.
They often rejected the twelve Shia school philosophies.
Other than Sunni and Shia sect schools, there are other schools of Muslim law,
which are as follows:
Marriage and Dissolution of Marriage
- Ibadi School
- Ahmadiva School
All over the Hindu and Christian words, marriage began as a sacrament. Marriage,
as a sacrament, necessarily implied a permanent and indissoluble union. Marriage
is a conjugal union of a man and woman which arises only from the free consent
of each spouse, but this freedom belongs to the question whether two persons
really wish to enter into matrimony or not, it is totally independent from the
free will of spouses. Once a contract of marriage is entered into, a marriage is
considered as sacrament.
In Hyde V. Hyde Case
, Lord Penzance gave the definition of marriage as I
conceive that marriage as understood in Christendom may be defined as the
voluntary union for life of one man and one woman to the exclusion of all
Under Hindu Law
Marriage is a mandatory sanskar among Hindus and every Hindu must marry. They
considered it a sacramental union i.e. a Sacrosanct, permanent, indissoluble and
eternal union. They did not regard it as a contract, but as a tie which once
tied cannot be untied.
Hindu Marriage-A Sacrament or Contract
The Hindu Marriage Act, 1955 has abolished polygamy and introduced strict
monogamy for all Hindus. Divorce also has been recognised. The Hindu Marriage
Act does not lay down that a marriage without the consent of the parties is
void, though it does lay down that if consent of a party to marriage is obtained
by fraud or force, the marriage is voidable.
In same way, when one of them is of unsound mind, the marriage is voidable. It
is laid down that the age of bride should not be less than 18 years and
bridegroom should not be less than 21 years in age. A combined reading of
Sections 5, 11 and 12 of the Hindu Marriage Act, leaves no doubt that consent is
not an essential aspect of Hindu marriage. The Hindu marriage has no longer
remained an indissoluble and eternal union. Widow marriages are allowed. Divorce
is also permitted. It may still be called a holy or sacramental union, in the
-sense that a sacramental ceremony is necessary. Thus, one may say that Hindu
marriage has neither become a contract nor has remained a sacramental union, it
has semblance of both.
Under Muslim Law
From the very initial time, Muslims have considered their marriage as a
contract. Muslim marriage has been defined as a civil contract for the purpose
of legalizing sexual intercourse and procreation of children. Muslim law does
not prescribe any religious service essential for its solemnization. Muslim
marriage is a contract which is evident from the nature of marriage and the mode
by which it is performed. Thus, only a civil ceremony, i.e. an offer made by one
party and accepted by another in one and the same meeting held in the presence
of two witnesses (not among Shias) is sufficient for entering into the contract
of marriage. Muslim marriage is a polygamous marriage limited to four wives. A
Muslim male has capacity to keep four wives simultaneously. But, if a Sunni male
takes five or more wives, his marriage with the fifth wife or subsequent wives
is not void but irregular.
Parsi, Jew and Christian Marriages
The Parsi marriage is also considered as a contract but the religious ceremony
of ashirvad is mandatory for its validity. Ashirvad means a prayer or
exhortation to the parties to observe their marital obligations. The marriage is
solemnised by a Parsi priest in the presence of two witnesses.
The Jew marriage is also considered as contract. A written contract called
Katuba between the parties is essential for the validity of marriage. A
religious ceremony is also required.
In India, Christian marriage is also a contract and is solemnized by a Minister
of Religion licensed under the Christian Marriage Act, 1872 and also by the
Marriage is mandatorily a civil contract under the Special Marriage Act, 1954.
Prohibition of Marriage on Account of Relationship by Blood or Affinity
Since ancient system, the law deals with the prohibitions on marriage on account
of relationship of blood or affinity. The details of these prohibitions are as
Under Hindu Law
Sagotra and Inter-caste Marriages
Earlier Hindus were prohibited to marry within the same gotra and pravara. They
were also prohibited for inter-caste and inter-religious marriages.
A Hindu cannot marry a non-Hindu under Hindu law. He/she can do so only under
the Special Marriage Act, as a civil marriage.
In the modern Hindu law, marriages are prohibited on account of relationship
which are recognised - on two grounds, which are as follows
Sapinda Relationship Section 3(f) (i) lays down:
in sapinda relationship with reference to any person extends as far as the
third generation in the line of ascent through mother, and the fifth in the line
of ascent through the father, the line being traced upwards in each case from
the person concerned, who is to be counted as the first generation.
Then, Section 3(f) (ii) lays down, persons are said to be 'Sapindas
each other if one is a lineal ascendant of the other within the limits of
sapinda relationship, or if they have a common lineal ascendant who is within
the limits of sapinda relationship with reference to each of them.
Degrees of Prohibited Relationship: It is stated in Section 3(g) of the
explanation. The couple is said to be within the degree of prohibited
Under Muslim Law
Inter-sect and Inter-religious Marriages
- if one is a lineal ascendant of the other,
- if one was the wife or husband of lineal ascendant or descendant of the
- if one was the wife of the brother or the father's brother's wife or
grandmother's brother's wife and
- if the two are brother and sister, uncle and niece, aunt and nephew, or
children of a brother and sister or of two brothers or two sisters.
There is no prohibition on inter-sect or inter-school marriage, but
inter-religious marriages are restricted under Muslim law.
A Sunni male is allowed to marry a non-Muslim Kitabia (whose faith is based on
same holy book containing revelations such as Christians and Jews, but not
Sikhs), but not a fire-worshipper or idol-worshipper.
Under the Shia law, the marriage of a Muslim male or female with a non-Muslim is
null and void.
Prohibitory grounds on the basis of consanguinity restricts Muslim males to
marry the following:
- his mother or grandmother, how high soever,
- his daughter or granddaughter, how low soever,
- his sister, full, consanguine or uterine,
- his aunt (both on father's and mother's side), how high soever.
The expression how high soever
and how low soever mean ascendants and
descendants of any degree respectively.
It is based on the relationship arising out of marriage, irrespective of the
fact whether marriage is void or valid. On the basis of this, a Muslim male
cannot marry his wife's mother or grandmother, how high soever, his father's
wife or father's father's wife, how high soever, foster-mother's son's wife. A
female child cannot marry her foster-mother's husband, Foster-mother's son,
Foster-mother's daughter's husband.
Marriage between Cousins
In Muslim law, there is no prohibition on marriage between cousins including all
the first cousins, parallel as well as cross.
Under Muslim law, a male is not allowed to have at the same time two wives who
are so related to each other by consanguinity, affinity or fosterage, that if
either had been a male, they could not have lawfully married each other.
Marriage with a Woman Undergoing Iddah
If a Sunni male marry a woman during the period of iddah, so that marriage is
irregular. But in case of Shia male, such marriage is void.
Prohibitions on Marriage under Parsi and Christian Laws
The Parsi law also lays down prohibitions on the ground of affinity and
The Christian Marriage Act does not specify the degree of prohibited
relationship but lays down that a marriage which is forbidden by the personal
law of the parties is not valid.
Special Marriage Act
This act provides the provisions for the performance of marriage by civil
ceremony. All marriages can either be registered under the respective personal
law or under the Special Marriage Act, 1954. It extends to all citizens of India
irrespective of their religion. It provides for both solemnizations as well as
Special Marriage Act has carved a simple means to legally register a marriage
between two people from different religion, however even if both of the
intending parties belong to the same religion, they can choose to register the
marriage under this Act.
Registration of Marriage
It is a special provision of the Special Marriage Act that a marriage solemnized
in any other form under any law, between any two persons, may be registered
under the Act, and on registration, such a marriage for all intends and purposes
is treated as performed under the Act.
Presumption of Marriage
Section 114 of The Indian Evidence Act lays down that where independent evidence
of solemnization of a marriage is not available, it will be presumed to be a
valid marriage by cohabitation between the parties unless the contrary is
Nullity of Marriage
The jurisdiction to declare a marriage valid or invalid is vested in the courts.
The courts can declare a marriage null and void if it is solemnized in violation
of impediments on marriage which were considered absolute. So, no valid marriage
could come into existence, if either spouse is already married to somebody else,
who was alive at the time of marriage, or spouses were related to each other
within prohibited degrees, or either party did not freely consent to the
Such a marriage could be formally annulled by a decree of an ecclesiastical
court and even without such a degree, either party could contract another
It is basically a misnomer (wrong term) and a void marriage, when two persons
having no capacity to marry have, in fact, undergone the requisite rites and
ceremonies of marriage. When court passes a decree of nullity in respect of a
void marriage, it declares a marriage null and void. Under all the Indian
matrimonial statutes, a petition for nullity can be filed only by either party
to the marriage. Also, if one of the parties dies, the other cannot file such a
For example, in Molly Joseph V. George Sebastian and Jose V. Allice case
Grounds of Void Marriage
The grounds of void marriage under the Indian personal laws are:
Under Hindu law, following are the grounds of void marriage:
- The second marriage will be void if the first marriage is valid.
- If the parties are sapinda (a person considered to be in relation to any of
his or her three nearest lineal made ancestors or descendants) to each other.
- If the parties are under prohibited degrees of relationship.
- If the required ceremonies are not performed.
- Marriage between a Hindu and non-Hindu is void under this act.
Under Muslim law, following are the grounds to declare a Muslim marriage void:
Under the Shia law, a marriage is void on the basis of above said grounds. It is
also the base to declare Sunni marriage as irregular.
It is a valid marriage till it is avoided. A voidable marriage can be avoided
only on a petition by either party to the marriage. If any one of the party does
not file petition for annulment of marriage, it will remain valid, and if one of
the party dies, the validity of the marriage cannot be questioned in any court
Grounds of Voidable Marriage
The grounds to declare a marriage voidable are given below:
Under the Hindu Marriage Act, voidable marriage grounds:
Under the Sunni law, the grounds of irregular marriage are:
- On the account of impotency.
- On the account of unsoundness of mind.
- Respondent's pregnancy at the time of marriage.
- Petitioner's consent was obtained by force or fraud as to the nature of
Lack of Consent - Consent obtained by Fraud or Force
- Marriage with a woman undergoing iddah.
- On the ground of different religion, violation of marriage.
- Marriage performed without witness.
- Marriage with fifth women.
- Marriage performed in violation of rule against unlawful conjugation.
Matrimonial Causes Act, 1973 lays down the factors which are given below
Children of Void and Voidable Marriage
- Fraud as to the nature of ceremony.
- Identity of a party.
- Concealment of disease or deformity.
- Concealment of religion or caste.
- Concealment of unchastity.
- Concealment of illegitimate birth.
- Concealment of age.
- Concealment of financial status and job and educational qualification.
- Non-disclosure of pre-marriage status.
- Wife being devoid of female organs.
- Fraud of third person.
- Physical or mental impotency.
Under the Matrimonial Causes Act, children of voidable marriage continue to
remain legitimate even after the passing of the decree of annulment of the
marriage. The present position under the Hindu Marriage Act and the Special
Marriage Act is as under:
- Children of unannulled (not declared invalid) voidable marriage are
legitimate in the same way as children of an otherwise valid marriage.
- Children of annulled (declared invalid) voidable and void marriage (whether
declared void or not) are legitimate but they will inherit the property of their
parents alone and of none else.
- If the marriage is void or voidable under any provision of the law, except
Sections 11 and 12, the children will be illegitimate.
Such children can inherit the separate property of their father under Section 8,
Hindu Succession Act, but could not lay any claim on the coparcenary interest of
the father. Child of such a marriage has no birth right in the Hindu Joint
Valid, Void and Irregular Marriages under Muslim Law
Muslim law does not differentiate void and voidable marriages. On the basis of
validity, classification of marriage under Muslim law is as follows:
Valid or Sahih Marriage
This marriage is held between the parties having capacity to marry with all
important formalities and follow all legal consequences of a valid marriage.
Void or Batil Marriage
This is performed in violation of perpetual impediments, under Sunni law, and of
all impediments under Shia law. A Batil marriage is no-marriage, it means it is
void-ab-initio. No legal consequences occur from it. So, such a marriage
performed in violation of rules of consanguinity, fosterage or affinity is void
marriage. No legal action is provided under Muslim law.
Irregular or Fasid Marriage
An irregular marriage has no effect before consummation. Either party may
terminate it, at anytime, either before or after its consummation, by expressing
an intention to do so.
The Shia law does not recognize irregular marriages, and marriages performed in
violation of perpetual or temporary or remedial impediments are void.
Judicial Separation and Divorce
Judicial separation is viewed as a lesser evil than divorce, since it leaves
open the door for reconciliation. A decree of judicial separation does not
dissolve the marriage bond but suspends marital rights and obligation during the
period of subsistence of the decree, however, parties continued to be husband
and wife, neither party is free to remarry. In the event of one of the spouses
dying during, the subsistence of the decree of judicial separation, the other
will succeed to his/her property.
Judicial Separation and Separate Residence
Under Section 18(2), Hindu Adoptions and Maintenance Act, 1956, a Hindu wife
may, on certain grounds, live separate and claim maintenance from her husband.
Decree of Judicial Separation in a Petition for Divorce
Since judicial separation is a lesser relief than divorce, in a petition for
divorce, the court has power to pass a decree of judicial separation instead of
divorce, evens though no such prayer is made in the petition. It may happens in
the case the petitioner has failed to establish the ground of divorce alleged by
him though a ground for judicial separations is wade out.
Provisions of divorce, alimony and maintenance are provided as the matrimonial
remedies. According to Corpus Juris, alimony is defined as the allowance,
required by law to be made to a wife, out of her husband's estate for her
support either during the matrimonial suit or on its termination where the fact
of the marriage is established and she proves herself entitled to separate
maintenance. Like maintenance, alimony connotes the existence of a duty on the
part of a person to provide for the need of another person or persons who is or
are, in one way or the others, related to, or dependent upon, him.
The law of maintenance and alimony may be classified under the following
Interim Maintenance and Expenses of the Proceedings
Under the Hindu Marriage Act and the Parsi Marriage and Divorce Act (after the
amendment of 1988), interim maintenance can be claimed by the wife or husband
and it is called Alimony Pendente Lite. The Special Marriage Act, 1954 also
provides for Alimony Pendente Lite for the wife alone.
On the dismissal of the petition, maintenance is provided. Either wife or
husband can apply for maintenance. Even if marriage is void, either party can
Permanent Alimony and Maintenance
The provision for permanent alimony and maintenance exists in all the Indian
matrimonial statutes and it is susbstantially the same.
Section 7, Divorce Act, deals with Permanent Alimony. Section 37 of the
Special Marriage Act, 1954 deals with Permanent Alimony and Maintenance.
Section 26, Hindu Marriage Act, 1955 and Section 40 of the Parsi and Divorce
Act, 1935-88 are the same except that under that provision, an application for
permanent maintenance and alimony can be made by either party, i.e. by husband
or wife. Section 41 of the Parsi Marriage and Divorce Act stipulates for the
payments of alimony of the wife or her guardian appointed by the court.
Divorce in Hindu Law
Customary divorce is recognised in Hindu Law.
Section 29(2), Hindu Marriage Act, runs as under Nothing contained in this act
shall be deemed to affect any right recognised by custom or conferred by any
special enactment to obtain the dissolution of a Hindu marriage, whether
solemnized, before or after the commencement of this Act.
Before coming into force of the Hindu Marriage Act, 1955, Hindus could obtain
divorce only if a custom governing them allowed it.
Some of the important provisions under law are as follows
Renunciation, Abandonment or Repudiation
Among several tribes and castes, particularly among the Jats, a husband has the
power to repudiate the marriage. Immediately on repudiation, the wife is free to
Immorality, Unchastiy, Adultery or Conversion
Among some tribes and castes, husband has the power to divorce his wife on the
ground of unchastity, immorality, adultery and conversion. If the wife converts
to another religion, husband may divorce her.
Divorce by Mutual Consent
Customs among some castes and tribes recognized divorce by mutual consent. It
may be oral or in writing.
Divorce under Special Enactment
In South India, particularly, in the Erstwhile States of Travancore and Cochin (Kerala),
divorce among several castes or groups was recognised and regulated under
In Gurubasawa V. lrawwa case
, judicial notice of custom was taken and proof of udiki marriage among lingayats was held to be a proof of dissolution of earlier
Divorce in Muslim Law
There is no judicial or non-judicial authority needed to effect the dissolution
of marriage under Muslim law. Non-judicial divorce under Muslim law may
described as Unilateral divorce by husband is called Talaq.
Several forms of Talaq are:
- Express talaq
- Implied and contingent talaq
- Delegated divorce, talaq-i-tafweez
- Divorce by mutual consent, i.e. when both the husband and wife agree to
take divorce and declare the marriage null and void.
The Shias recognized only express talaq and delegated talaq.
There are following forms of talaq:
The express divorce/talaq falls under two categories.
In this type, the pronouncement for divorce is revocable, that is why it is
called approved divorce. It has two forms i.e. Ahasan talaq and Hasan talaq
This form of divorce has been struck down by the Supreme Court holding it to be
unconstitutional after a protracted battle fought by Muslim women in Shayara
Bano V. Union of India case
. The observations made were:
Implied and Contingent Talaq
- Triple pronouncement of divorce made in a period of tuhr, either in one
sentence or in three sentences.
- A single irrevocable pronouncement of divorce made in a period of tuhr.
- A 'fatwa' has been pronounced that Indian Muslims should not take
recourse to this form of divorce.
- Talaq-ul-biddat in any form is not recognised among the Shias.
Sometimes, the words used in the pronouncement of talaq are not clear, such as
when husband says to his wife, I give up all relations with you and shall have
no connection of any sort with you, or I have released you from being my
wife. In these cases, the divorce will be implied if intention to divorce is
The Shias do not recognized implied and contingent divorce.
Delegated Talaq or Talaq-i-tafweez
It is recognised among both the Shias and the Sunnis. Muslim husband has the
right to delegate his power of talaq on his wife or on any other person. When
the power is delegated to the wife under a pre-marriage or post-marriage
agreement, it is not revocable.
Constructive Divorce-Ila and Zihar
It has become obsolete in India. In Ila, husband swears that he will have
nothing to do with his wife and abstains from her society for a period of four
In Zihar, husband expressing his dissatisfaction with his wife by comparing her
with the back of her mother or any other woman within the degrees of prohibited
relationship, the wife has right to refuse cohabitation with him.
Formalities of Talaq
No schools of Sunnis prescribe any formalities for talaq. But the Shias insist
that divorce must be pronounced orally and in the presence of two competent
witnesses, and the specific formula of divorce must be pronounced.
Theories of Divorce
In early Roman law, marriage and divorce were essentially private acts of the
parties. Whenever two persons wanted to marry they could do so, and whenever
they wanted to put their marriage as under, they were equally free to do so. No
formalities or intervention of an agency was necessary for either party. With
the lofty ideals of liberty and equality of the Industrial Revolution sweeping
England and the Continent of Europe, it no longer remained possible to regard
marriage as indissoluble. Later, with the emergence of the offence or guilt,
theories of divorce emerged, which are described below:
Fault Theory of Divorce
Initially, adultery was the only ground for divorce. In adultery, a certain
amount of criminality is considered to be involved. Later on, cruelty and
desertion were added as ground for divorce. The Indian Divorce Act, 1869, which
applies only to Christian marriages, was modeled on the Matrimonial Causes Act,
1857 that provides adultery as the only ground for divorce. The fault theory is
also the basis for divorce under the Parsi Marriage and Divorce Acts, 1936-88,
as many grounds for divorce are recognised, and practically all the matrimonial
bars have been enacted. Divorce was based only on the fault theory under Hindu
Marriage Act, 1955. The consent theory and breakdown theory were introduced
Consent Theory of Divorce
The free-violation concept of marriage, if taken to its logical end, implies
that the parties should have the same freedom of divorce as they have of
marriage. If marriage is a contract based on mutual consent of the parties, the
marriage should also be dissoluble by mutual consent of the parties without
showing any cause. Many a time, people enter into transactions and later on want
to get out of them. Similarly, parties may enter into a marriage and may later
on want to get out of it. This theory is recognised under the Hindu Marriage
Act, the Special Marriage Act, Parsi Marriage and Divorce Act and Muslim Law and
Divorce Act, 2001.
Under Muslim law, divorce by mutual consent is recognised in two forms
Khul means to put off
. In law, it means laying down by a husband of his
right and authority over his wife for an exchange.
In mubbaraat, aversion is mutual i.e. both parties desire dissolution
of marriage. Mubbaraat denotes the act of freeing one another mutually, and the
proposal for divorce may emanate from either spouse.
Breakdown Theory of Divorce
It is obvious that both the fault theory and consent theory failed to provide
adequate solution to the problem of the deadlocked wedlocks. A search for new
basis of divorce, was inevitable. In Gollins V. Gollins, and William V.William
, the courts said that the purpose of divorce law was not to punish the
guilty spouse but to protect the innocent spouse.
In the modern laws of the world, the irretrievable breakdown of marriage theory
of divorce has three versions:
- The law lays down that if a marriage has broken down irretrievably, it
should be dissolved. The fact of the breakdown of the marriage is left for
the determination of the court.
- The legislature lays down the criterion of breakdown. Once the criterion
is satisfied, the courts ordinarily have no option but to dissolve the
marriage. The Divorce Law Reforms Act, 1973, lays down that if the parties
have lived separate and apart for a period of five years is considered to be
sufficient indication of irretrievable breakdown of marriage.
- The criterion is of non-resumption of cohabitation after a decree of
judicial separation or non-compliance to a decree of restitution of conjugal
rights for certain duration. In either case, either spouse may sue for
While introducing the breakdown principle in Hindu matrimonial law, Parliament
overlooked the fact that the structure of divorce was based on fault theory,
with the result that Section 23 came for interpretation, the courts could not
get over the dichotomy of guilt and innocence, and held that the petitioner
could get relief only if it was established that he was innocent.
Recognition of Foreign Decrees in India on Marriage and Divorce
Presently in India, foreign divorce decrees have become very common. If they get
divorce, either one or both parties may approach authorities in India to make
mandatory changes in the legal documents like passport etc. Recently in India,
rules related to change or deletion of the name of a spouse have become very
difficult. Now, the name of a spouse can be removed from the passport of the
other spouse only if the foreign divorce decree has been first recognised by an
Efficacy of Foreign Decree of Divorce
The Hindu couple residing in a foreign land who are governed by the matrimonial
laws in force at that place, the decree of divorce granted by the foreign court
should be valid when Section 1 of Hindu Marriage Act, 1955 reads together.
According to Hindu rights in India, Hindu married couples who are settled in
foreign are mainly required by law to process divorce proceedings only as per
the act. The main grounds exclude the scope of granting divorce on any other
The following grounds are mentioned in the Hindu Marriage Act, 1955:
- Petitioner has been treated with cruelty;
- Petitioner has been deserted;
- Respondent has ceased to be a Hindu;
- Respondent has been of an incurable unsound mind.
In India, the Supreme Court in Y. Narasimha Rao and Ors V.Y. Venkata Lakshmi and
Anr, 1991 case
, observed that if a foreign judgment has not been given on the
merits of the case, the courts in India will not recognized such a judgment. A
judgment is said to be on the merits, when taking all the relevant evidence, he
checks all the related aspects and then implying his mind to find the truth or
falsity of the case, the Judge decides the case one way or the other.
Section 13 of Civil Procedure Code deals with the foreign judgment when it is
inconclusive in nature. It shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties or between parties under whom they or
any of them litigating under the heads, except:
- It has not been pronounced by a court of competent jurisdiction;
- It is not given on the merits of the case;
- When it has been obtained by fraud;
- When it oppose the natural justice.
If the foreign judgment not complies with the mentioned conditions, then it is
not legally effective and binding.