Marriage in India is considered an important institution throughout its history. However, today Divorce or legal separation is also a reality in Modern India. There had been various enactments during last 200 years which have regulated marriage within Hindus. Infact, as of today, Hindus is a misnomer as it constitutes all people practicing Hindusism, Sikhism, Jainism, except people of faiths from Muslim, Christians, Parsis or Jews, are governed by Laws of Hindus in regards to marriage. From Hindu Remarriage Act, 1856 to Hindu Marriages Validity Act, 1949, there have been many modifications from time to time in various states. Ultimately, 1955 all modifications were codified and also modified to bring them in consonance with Article 15 of the newly formed Constitution of India.
But the people of faiths of Muslim, Parsi, Christrians and Jews remained governed by their pre-independence personal laws for marriage i.e. for Muslim: Muslim marriage is a contract under Muslim law; for Christian: Indian Christian Marriage Act 1872 and the Divorce Act 1869; for Parsi: Parsi Marriage and Divorce Act 1936.
Further, the Special Marriage Act 1954 applies to all persons of all religions. This is a secular legislation and parties from all religions, caste or community can elect to marry under it. A divorce / judicial separation would then be governed by the Special Marriage Act 1954.
Jurisdiction for marriage is governed by the principles of Civil Procedure Code, 1908.
• Where the marriage was solemnized.
• Where the respondent, at the time of the presentation of the petition, resides.
• Where the parties to the marriage last resided together.
• Where the wife resides on the date of presentation of the petition (if she is the petitioner).
• Where the petitioner resides at the time of the presentation of the petition, in a case where the respondent, at that time, either:
- resides outside the territories to which the acts extend; or
- has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him/her if he/she were alive.
In the landmark judgment in Y Narasimha Rao and others v Y Venkata Lakshmi and others (1991) 3 SCC 451, it was held that marriages that take place in India can only be dissolved under either the customary or statutory law in force in India.
Mutual Divorce:
There is no provision in Indian laws for no-fault divorce. However, if both parties agree to separate, they may apply for Mutual Consent Divorce. Divorce by mutual consent is recognised under the Hindu Marriage Act 1955, the Special Marriage Act 1954, the Parsi Marriage and Divorce Act 1939, the Dissolution of Muslim Marriage Act 1939, and under the Divorce Act 1869.
In Amardeep Singh v Harveen Kaur (2017) 8 SCC 746, the Supreme Court of India held that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under section 13B(2), it can do so after considering the following:
- The statutory period of six months specified in section 13B(2), in addition to the statutory period of one year under section 13B(1) of separation of parties is already over, before the first motion itself.
- All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 Code of Civil Procedure/section 23(2) of the Act/section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts.
- The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties.
- The waiting period will only prolong their agony.
Further, the period of six months mentioned in section 13B(2) is not mandatory but directory: it is open to the court to exercise its discretion based on the facts and circumstances of the case where there is no possibility of the parties resuming cohabitation and where there are chances of alternative rehabilitation.
Contested Divorce:
This type of divorce is based on fault theory. Here the petitioner to the suit will need to prove the fault of the respondent to be granted Divorce. What makes things worse, especially in Divorce proceedings, is the option to appeal against the order of grant of divorce as well as non grant of divorce. There are grounds of Divorce in each enactment.
Section 13 of the Hindu Marriage Act 1955 contains nine fault grounds of divorce and four addition grounds available only to the wife.
Section 2 of the Dissolution of Muslim Marriages Act 1939 contains nine fault grounds on which the wife alone can sue.
For Christians, subsection 10 of the Indian Divorce Act 1869 contains grounds of divorce.
The Parsi Marriage and Divorce Act 1936 contain ten fault grounds of divorce on which either spouse may seek divorce.
Section 27(1) of the Special Marriage Act 1954 contains ten fault grounds of divorce on which either spouse can seek divorce and two additional grounds only available to the wife.
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