is a tumultuous experience looked down upon by Indian society. It
is a very necessary tool to separate oneself from spousal trauma, or to mutually
separate from their spouse. A woman has to know her legal rights and options in
the legal system to help protect herself from something that was meant to be a
Divorce Laws in India
India being a secular nation, numerous religions are practiced in the
subcontinent, we have different Acts prescribed for most religions. Hindus,
Jains and Buddhists are governed under the thumb of the Hindu Marriage Act of
1955, and Muslims by the Dissolution of Muslim Marriages Act, 1939 and other
acts specified for Parsis and Christians. Couples belonging to different
communities and other secular cases can seek restitution under the Special
Marriage Act, 1956.
Before ending the husband-and-wife relationship, one spouse may initiate the
process of giving the other spouse legal notice of divorce. They are called
Types of Divorce Petitions:They can be categorically classified into 3 divisions:
- Divorce by Mutual Consent
When both spouses have decided that the best decision for them is to split
apart, they can proceed on mutual grounds. It is the simplest way to dissolve
the marriage. The husband and wife have to come to an agreement on 3 points,
Alimony or Maintenance:
Alimony or Maintenance is the financial support that a court orders a person to
provide to their spouse during separation or after divorce.
The parties will decide amongst themselves whether the wife needs the alimony
and if so, they need to come to an agreement on how much she would need. There
is no limiting amount for alimony, it could be any number or none at all.
Custody of Child/Children:
Depending on the mutual understanding between the spouses it could be a joint or
exclusive custody system, the court will take into account who can be the best
parent for the child, the mother doesn't automatically get custody, and
usually monetary capabilities aren't taken into consideration, but The
Guardian and Wards Act of 1890 states that if the child is younger than 5 years
of age the mother has superior rights. At the age of 9 the child's consent
will be taken into consideration, and at 18 the custody passes to the father.
When it comes to legal guardianship in Muslim Law, in Hanafi (Sunni school of
Law or fiqh), Hizanat is given entirely to the mother, only if she is physically
and mentally fit to care for the child.
This involves movable and immovable assets, it doesn't have to be evenly split
just has to be agreed upon by both parties, but currently no woman has the right
to their husband's property after the lapsing of The Marriage Laws Amendment
- Contested Divorce
Any party can, on certain grounds, present a request before the Court to
dissolve the marriage. Legislation of various communities has defined various
grounds for claiming a divorce.
- Void Marriages
Void Marriages are considered void ab initio since its conception. By using
this, parties can annul their marriage and it comes under section 11 of the
Hindu Marriage Act, it is called Batil in Muslim Law.
At the time of marriage or before marriage a woman is given gifts or property,
is not considered as dowry because it was given on voluntary basis, not due to
coercion. The wife can do anything she wants with her Streedhan, a woman's
rights to Streedhan are guarded under Section 27 of the Hindu Marriage Act, 1955
and Section 14 of the Hindu Succession Act, 1956.
There are special grounds that only pertain to women for protection by the law,
to contest a marriage.
Grounds for Divorce for WomenUnder the Hindu Marriage Act
Any Hindu, Jain or Buddhist can seek annulment under section 13 of the Hindu
Marriage Act, 1955. Section 13(1) contains grounds that both parties can attest
to file for divorce such as Adultery, Cruelty, Conversion, Desertion,
Unsoundness of mind, leprosy, venereal disease, renunciation, and presumption of
death. Section 13(2) are special grounds that only a wife can place against
If the husband has another spouse alive at the same time of the marriage, the
union is null and void and the wife can claim divorce under section 13(2) of the
Hindu Marriage Act, 1955.
- Rape, Sodomy, Bestiality
If the husband forces his wife into sexual intercourse or unnatural
circumstances, she can claim divorce against him under sec 13(2) of the Hindu
Marriage Act and rape is a serious charge under section 375 of the IPC. If found
guilty, the wife has the right to disenfranchise her spouse.
If the husband has inter-species relations, with an animal this is considered
bestiality and the wife can file charges under Section 13(2)(ii) but the burden
of the proof lies on the wife.
- Before Attainment of Puberty
In the case of child marriage, if the wife was older than 15 and younger than 18
when she was wedded, she can file for annulment within this time frame or by
repudiation it can be spoken, implied or written.
In the case of child marriage different courts hold different opinions in
accordance to this act and particular section, it varies from circumstance to
Divorce under Muslim Law
A judicial Talaq that allows the wife to take action against the husband on the
basis of only one ground, €śadultery€ť. If the husband of sound mind tries to
slander the wife on adulterous charges or questioned the paternity of the child,
and once these charges have been proven false, the wife can file suit for
divorce in court but, if the husband then accepts his charges were false in
court after the evidences have been presented to him, the suit will be
If the husband delegates his power to assert Talaq to his wife, this enables the
wife to file for divorce in the court of Law. This can happen during or after
getting married, the husband can refute his delegatory powers whenever he likes.
This is practiced by Sunnis and Shias alike.
In Accordance with the Dissolution of Muslim Marriages Act, 1939
The Dissolution of Muslim Marriages Act of 1939, was slated to add in provisions
to help Muslim women file for divorce under Muslim Law it is called statutory
Talaq. Section 2 of the Act provides grounds for dissolvement.
There is a list of acts/omissions that allows the woman to divorce her husband.
This List isn't a set defined list and can be added upon by the courts to see
through justice for the woman as a progressive motion.
A few common acts or omissions that could allow a woman to be divorced are:
- The whereabouts of the husband are unknown for 4 years or more
- When the husband hasn't performed his marital duties for 3 years due to
- When the husband treats his spouse with cruelty.
- If the husband was imprisoned for more than 7 years.
- When husband neglects maintenance for his wife for 2 years.
Social Education for women on marital rights should be spread across the country
at the grassroots level so that society will break away from the stigma that
surrounds divorce in both the rural and urban areas. The Indian legislative
system should continue to be progressive and help curb spousal abuse that still
occurs in India at an alarming rate. We as a society need to help women be able
to face these situations without the fear of what their relatives or neighbours
think, the day that happens India has progressed one step further towards true