COMPARATIVE STUDY OF GROUNDS OF

DIVORCE UNDER HINDU LAW AND

MUSLIM LAW

A petition for divorce can be presented by both the parties to marriage on any pf
the following conditions-

1-ADULTERY
Either party to the marriage may present petition for divorce under cl. (i) of sub-sec. (1) of s.
13, on the ground of adultery of the respondent. The expression 'living in adultery' used in old
s. 13(I)(i) meant a continuous course of adulterous life as distinguished from one or two
lapses from virtue. It would not be in consonance with the expectation of the Legislature to
put excessively restricted and excessively delineated development upon the words 'is living'
(old) cl. (i) of sub-sec. (1) of s. 13 of the Act. Then again, obviously too free a development
should likewise not be put on these words. For pulling in the operation of these words, it
would not be sufficient if the life partner was living in infidelity at some point before, yet had
withdrawn from such life for an obvious span stretching out to the documenting of the
request. It is impractical to set out a rigid control about it since the choice of every case must
rely on its own legitimacy. Be that as it may, plainly to invoke the use of (old) cl. (i) of sub-
sec. (1) of s. 13. By using the words 'is living in adultery' the Legislature did not intend to
make such living co-extensive with the filing of the petition. The identical expression of
'living in adultery' is to be found in s. 488(4) the Code of Criminal Procedure (old) and in s.
125(4) of the Code of Criminal Procedure (new). This expression implies that a single lapse
from virtue even true will not suffice, and it must be shown that the respondent actually was
living in adultery with someone else at the time of the application. Living in adultery is
different from failing to lead a chaste life.
2-CRUELTY
After the Marriage Laws (Amendment) Act 1976, cruelty has been made a ground for divorce
as well as judicial separation. Prior to that amendment it was only a ground for judicial
separation and not for divorce.
Mental cruelty in s.13(l)(ia) can be broadly defined as the conduct which inflicts upon the
other party such mental pain and suffering as would make it not possible for that party to live
with the other. In other words, mental cruelty must be of such a nature that the parties cannot
reasonably be expected to live together. The situation must be such that the wronged party
cannot reasonably be asked to put up with the other party. It is not necessary to prove that
mental cruelty is such as to cause injury to the health of the petitioner. While arriving to such
conclusion, regard must be had the social status, educational level of the parties, the society
they move in, the possibility or otherwise of the parties ever living together in case they are
already living apart and all other relevant facts and circumstances. What is cruelty in one case
may not amount to cruelty in another case.14 In that case allegations were made by the wife
in her written statement and question put by her counsel to her husband that he and all the
members of his family were lunatic etc. .

In the absence of a positive act of cruelty a party is not entitled to obtain a decree of divorce.

3-DESERTION
Desertion as a ground for divorce has been added to s.13 by the Marriage Laws (Amendment)
Act 1976. Previously, it was only a ground for judicial separation. Now desertion is a ground
for both judicial separation and divorce.

NEW PHENOMENON OF NRI RELATED DESERTION. Many non-resident Indians (NRI)

come to India to marry girls who are also aspirants to migrate from India by this marriage
relation. It is often seen that some NRIs marry local girls, enjoy them and return to the
foreign countries with vague hopes behind that their wives would be taken after completion
of official formalities. But all those hopes are never materialized. Sometimes they receive
papers in India in the form of foreign divorce decree. In the Punjab it is said that the NRI
matrimonial frauds account for at least one-fifth of women related complaints to Punjab
State Women's Commission.

To check this menace the Centre should make laws that any marriage between an Indian
bride and an NRI solemnized in India cannot be dissolved by any foreign court without
application of the law under which they got married . There should also be law for
cancellation of their passports where NRIs are found to be perpetrators of such frauds.

4-CONVERSION
A Hindu marriage may be dissolved by a decree of divorce on the ground that the respondent
has ceased to be a Hindu by conversion to another religion. According to ancient Hindu Law
a marriage was not ipso facto dissolved by conversion of one of the parties to the marriage.
Thus the statement of objects and reasons of the Bill laid down that a change in religion was
not inconsistent with the continuance of conjugal love and it should therefore not be
permissible for a party to the marriage to get a divorce by changing his or her religion. The
right to get a divorce under this law is therefore given to the party who continued to be
Hindu. A somewhat similar right is given to a person changing his religion for Christianity
under the Native Convert's Marriage Dissolution Act 1866.Though s. 13(1)(ii) confers
expressly right on a spouse to present a petition for divorce against the other spouse who has
changed his or her religion after the solemnization of marriage, but the apostate can also file a
petition for dissolution of marriage after he or she has ceased to be a Hindu under the Hindu
Marriage Act provided he or she is able to establish the ground for it. Mere professing or
theoretical allegiance to a religion other than a Hindu religion does not mean conversion for
the purpose of this provision. There must be voluntary relinquishment of Hindu religion by
the respondent and formal ceremonial conversion to another religion so as to attract this
provision for the purpose of divorce.

5-UNSOUNDNESS OF MIND
Prior to the Marriage Laws (Amendment) Act 1976, a petition for divorce might be presented
by a spouse on the ground (a) that the respondent had been incurably of unsound mind, and
(b) that the respondent had been so for a continuous period of not less than three years
immediately before the filing of the petition. By the Marriage Laws (Amendment) Act 1976,
the period of duration of unsoundness of mind has been omitted and elaborative clarifications
have been made. The expression 'incurably of unsound mind' cannot be so widely interpreted
as to cover feeble-minded person or persons of dull intellect who understand the nature and
consequences of their acts and are able, therefore, to control themselves and their affairs and
their reactions in the normal way. Where this ground is taken for dissolution of marriage, the
said ground must be proved by cogent and clear evidence beyond reasonable doubt so as to
satisfy the court. Eccentricities do not constitute psychopathic disorder or any other kind of
mental disorder.

It is not yet settled by medical science whether schizophrenia is curable disease or not. But
paranoid schizophrenia has been held to be indicative of unsoundness of

mind. After the amendment of s.13 by the Marriage Laws (Amendment) Act 1976, the
expression 'mental disorder' includes schizophrenia. Unsoundness of mind is now a ground
for both divorce and judicial separation without any distinction.

For attracting s. l3(1)(iii) either of the two conditions is to be fulfilled. First, the respondent
has been incurably of unsound mind. Secondly, the respondent has been suffering
continuously or intermittently from mental disorder of such a kind and to such an extent that
the petitioner cannot reasonably by expected to live with the respondent. So far as the second
condition is concerned, the petitioner will have to prove two elements, namely, mental
disorder and at the same time that the disease must be of such a kind and to such an extent
that the petitioner cannot reasonably be expected to live with the respondent. So, proof of one
element is insufficient to grant a decree.2 In case of schizophrenia as a mental disorder it is
not necessary to show that it existed at or before the marriage for divorce.

The context in which the ideas of unsoundness of "mind" and "mental disorder" occur in the
section as grounds for divorce require the assessment of the degree of the "mental disorder".
Its degree must be such as that the aggrieved Spouse cannot be reasonably expected to live
with the other. All mental abnormalities are not recognized as grounds for grant of decree.
"Schizophrenia" is said to be difficult mental affliction. It is said to be insidious in its onset
and has hereditary predisposing factor. It is characterized by the shallowness of emotions and
is marked by a detachment from reality. It is a varying degrees and manifestations. Not all
schizophrenics are characterized by the same intensity of the disease. The mere branding of a
person as schizophrenic will not suffice. For purposes of s. 13(l)(iii) "schizophrenia" is what
schizophrenia does. Thus, the appeal by the husband for divorce on the ground of
schizophrenia of the wife could not succeed.

Over sensitiveness of the mind or character cannot be equated with insanity or automatism.
Epileptic insanity is a sign of unsoundness of mind.

When the wife intelligibly answers the query of the court, it cannot be said that she suffers
from any mental disorder.

6- LEPROSY
A petition for divorce may be presented by either party to the marriage on the ground that the
respondent has been suffering from a virulent and incurable leprosy. Old cl. (iv) of s. 13(1)
did not require that before such a petition was presented the marriage existed for more than
three years and that it was only then it was possible for anyone of the spouses to file an
application for dissolution of marriage on that ground.? Virulent means malignant or
venomous.8 The onus to prove the ingredients of cl. (iv) of s. 13(1) is on the petitioner. When
it is not disputed that the respondent has been suffering from leprosy, the onus is on the
petitioner to establish that the leprosy is virulent and incurable.

'Virulent' in the context of s. 13(I)(iv) is not a medical term The decisions of the different
High Courts and the Privy Council where the word 'virulent' has been used for interpreting
the Hindu Law on the subject have used it to describe the leprosy of the most serious and
aggravated type. This does not therefore give sure and reliable guide in interpreting the word
'virulent'. The dictionary meaning of the word 'virulent' is malignant and infectious.
Lepromatus leprosy is a malignant, contagious and incurable form of disease. If it be true that
suI phone drugs have m"ade leprosy of all types curable, there would be no point in the
Legislature making a provision in this Act which will entitle a spouse to a decree of divorce.
A spouse cannot be compelled to live with the other spouse who is suffering from an
aggravated form of leprosy and who can give the petitioner and children leprosy almost any
moment in their daily life. Thus the Legislature by a statute has given an aggrieved spouse a
way of relief.

7-VENEREAL DISEASE .
Venereal disease in a communicable form is a ground for obtaining a decree for dissolution
of marriage. This ground affords also a ground for obtaining a decree for judicial separation.
Syphilis, gonorrhea or soft chancre are recognized as venereal diseases under the (English)
Venereal Diseases Act 1917.

8-RENUNCIATION OF THE WORLD

A decree for divorce may be obtained on a petition presented by a spouse on the ground that
the respondent has renounced the world by entering any religious order. This clause consists
of two components. First, the respondent must have renounced the worldly affairs, and
secondly, the respondent has thereafter entered into a religious order recognized by Hindu
religion. Such entry requires some ceremonial performance or observance of certain
formalities. Renouncement of the world by entering any religious order must be absolute. It
amounts to civil death and has the effect of excluding a person from inheritance and right to
partition.But persons merely wearing saffron-coloured clothes know as sadhus or bairagis and
who enjoy a married life cannot be said to have renounced the world and entered a religious
order. Similarly, the mere holding by a man of certain religious opinions or professions does
not amount to civil death.

9-PRESUMPTIVE DEATH
A divorce may be granted on the ground that the respondent 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
it, had that party been alive. This is a legal presumption of death which is based on English
law of evidence. The presumption is drawn by reason of the fact that if the person were
living, the person would probably have communicated with some of his or her friends and
relatives. The legal presumption is different from presumption under ancient Hindu law,
according to which twelve years must have elapsed before a person was presumed to be dead.
This presumption under the provision of law is not rigid and death may even be presumed
before lapse of seven years from proof of special circumstances. This presumption may also
be rebutted where a person is not heard of for a period of seven years by reason of special
circumstances, such as absconding on a charge of murder. A decree nisi will be resounded
where the respondent is proved to be alive before the decree made absolute. The onus of
proving the absence of the respondent for the statutory period without being heard of as alive
lies on the petitioner. The standard of proof for this purpose is laid down in s. 23 of the Act.
The petitioner is required to give particulars relating to the last date of cohabitation, the date
and place last seen the respondent and steps taken to trace the respondent. Evidence as to
reasonable inquiry or search about the respondent is necessary to be adduced by the
petitioner. But the onus of proving that the respondent is alive lies on the person who pleads
so.

10-NON RESUMPTION OF COHABITATION AFTER

THE DECREE OF JUDICIAL SEPRATION
By sub-sec. (IA) of s.13 either spouse may present a petition for divorce on the ground that
there has not been any resumption of cohabitation of the parties to the marriage for a period
not less than one year after the passing of a decree for judicial separation. Resumption of
cohabitation means living together in conjugal relationship. But this means is narrow and as
such it should not be applied to all cases irrespective of their special and surrounding
circumstances. The meaning of this expression therefore depends upon the intention of the
parties, and there may be resumption of cohabitation even where the parties do not live under
the same roof of matrimonial home. If there is sexual intercourse of the parties to the
marriage, it is no doubt a good ground to presume the resumption of cohabitation, but that is
not the conclusive evidence for this purpose. The birth of a child from an isolated act of
sexual intercourse does not mean resumption of cohabitation. There may be resumption of
cohabitation without having sexual intercourse. The court will grant a decree for divorce on
the ground provided in sub sec. (1A) of s.13 in the absence of any bar laid down in s. 23 of
the Act. In a proceeding for divorce, a decree of judicial separation cannot be challenged on
the ground of lack of jurisdiction of the court in the previous proceedings.
The statutory period of one year (previously two years) laid down in this provision will be
operative from the date of the judgment of the District Court and with the lapse of this period
the High Court in Letters Patent appeal may pass a decree for divorce under s. 13( 1 A) of the
Act. But where a decree for judicial separation is passed by the High Court in appeal, period
of one year (previously two years) will commence from the date of the decree in appeal But
where an appeal is preferred against the decree and the decree confirmed by dismissing the
appeal, the period of one year (previously two years) will run from the date of the original
decree.

MHAMMEDAN LAW

There are two categories of divorce under the Muslim law:

1.) Extra judicial divorce

2.) Judicial divorce

The category of extra judicial divorce can be further subdivided into three types, namely,

(a). By husband- talaq, ila, and zihar.

(b). By wife- talaq-i-tafweez, lian.
(c). By mutual agreement- khula and mubarat.

The second category is the right of the wife to give divorce under the Dissolution of Muslim
Marriages Act 1939.

Talaq
Talaaq in its primitive sense means dismission. In its literal meaning, it means “setting free”,
“letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from
the bondage of marriage and not from any other bondage. In legal sense it means dissolution
of marriage by husband using appropriate words. In other words talaaq is repudiation of
marriage by the husband in accordance with the procedure laid down by the law. The
following verse is in support of the husband’s authority to pronounce unilateral divorce is
often cited: “Men are maintainers of women, because Allah has made some of them to excel
others and because they spend out of their property (on their maintenance and dower) . When
the husband exercises his right to pronounce divorce, technically this is known as talaaq. The
most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and the
Shias recognize it differing only in some details. In Muslim world, so widespread has been
the talaaq that even the Imams practiced it . The absolute power of a Muslim husband of
divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a
jest or in a state of intoxication, and without recourse to the court, and even in the absence of
the wife, is recognized in modern India. All that is necessary is that the husband should
pronounce talaaq; how he does it, when he does it, or in what he does it is not very essential.
In Hannefa v. Pathummal, Khalid, J. termed this as “monstrosity”

Conditions for a valid talaq-

1- Capacity- Every Muslim husband of sound mind, who has attained the age of
puberty, is competent to pronounce talaaq. It is not necessary for him to give any reason for
his pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq
by a minor or of a person of unsound mind is void and ineffective. However, if a husband is
lunatic then talaaq pronounced by him during “lucid interval” is valid. The guardian cannot
pronounce talaaq on behalf of a minor husband. When insane husband has no guardian, the
Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.

2-Free Consent- Except under Hanafi law, the consent of the husband in
pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced under
compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is valid and
dissolves the marriage.Involuntary intoxication: Talaaq pronounced under forced or
involuntary intoxication is void even under the Hanafi law.
Shia law: Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced
under compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and
ineffective.
3-Formalities- According to Sunni law, a talaaq, may be oral or in writing. It may be
simply uttered by the husband or he may write a Talaaqnama. No specific formula or use of
any particular word is required to constitute a valid talaaq. Any expression which clearly
indicates the husband’s desire to break the marriage is sufficient. It need not be made in the
presence of the witnesses.

According to Shias, talaaq, must be pronounced orally, except where the husband is unable to
speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law.
Here talaaq must be pronounced in the presence of two witnesses.

4- Express words- The words of talaaq must clearly indicate the husband’s
intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then
it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.

5-Express Talaq-When clear and unequivocal words, such as “I have divorced thee”
are uttered, the divorce is express. The express talaaq, falls into two categories:

(a). Talaq-i-sunnat
(b). Talaq-i-biddat

Talaq-i-sunnat has two forms:

(i). Talaq-i-ahasan (Most approved)

(ii). Talaq-i-hasan (Less approved).

Talaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.

Talaq-i-ahasan
It consists of a single pronouncement of divorce made in the period of tuhr (purity, between
two menstruations), or at any time, if the wife is free from menstruation, followed by
abstinence from sexual intercourse during the period if iddat. The requirement that the
pronouncement be made during a period of tuhr applies only to oral divorce and does not
apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has
passed the age of menstruation or the parties have been away from each other for a long time,
or when the marriage has not been consummated. The advantage of this form is that divorce
can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless
divorce can be prevented. The revocation may effected expressly or impliedly. Thus, if before
the completion of iddat, the husband resumes cohabitation with his wife or says “I have
retained thee” the divorce is revoked. Resumption of sexual intercourse before the
completion of period of iddat also results in the revocation of divorce. The Raad-ul-Muhtar
puts it thus: “It is proper and right to observe this form, for human nature is apt to be mislead
and to lead astray the mind far to perceive faults which may not exist and to commit mistakes
of which one is certain to feel ashamed afterwards”

Talaq-i-hasan
In this the husband is required to pronounce the formula of talaaq three time during three
successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it
may be made after the interval of a month or thirty days between the successive
pronouncements. When the last pronouncement is made, the talaaq, becomes final and
irrevocable. It is necessary that each of the three pronouncements should be made at a time
when no intercourse has taken place during the period of tuhr. Example: W, a wife, is having
her period of purity and no sexual intercourse has taken place. At this time, her husband, H,
pronounces talaaq, on her. This is the first pronouncement by express words. Then again,
when she enters the next period of purity, and before he indulges in sexual intercourse, he
makes the second pronouncement. He again revokes it. Again when the wife enters her third
period of purity and before any intercourse takes place H pronounces the third
pronouncement. The moment H makes this third pronouncement, the marriage stands
dissolved irrevocably, irrespective of iddat.

Talaq-i-Biddat
It came into vogue during the second century of Islam. It has two forms: (i) the triple
declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the
other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr
or even otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is
condemned. It is considered heretical, because of its irrevocability.