Whether such a provision that is available to Hindus, Parsis and Christians under the Special Marriage Act, 1954, is available to Muslims?
The Muslims, like other religions, are entitled to divorce by mutual consent of spouses if they fail to carry out marital obligations. The divorce could be granted on the ground that the couple ‘cannot live together and carry out the wish of Allah in carrying out their matrimonial obligations’.
No-fault divorce is allowed in Muslim societies, although normally only with the consent of the husband. A wife seeking divorce is normally required to give one of several specific justifications (see below). Islam discourages divorce.
If the man seeks divorce or was divorced, he has to cover the expenses of his ex-wife feeding his child and expenses of the child until the child is two years old (that is if the child is under two years old). The child is still the child of the couple despite of the divorce.
If it is the wife who seeks divorce, she must go to a court. She must provide evidence of ill treatment, inability to sustain her financially, sexual impotence on the part of the husband, her dislike of his looks, etc. The husband may be given time to fix the problem, but if he fails, the appointed judge will divorce the couple if the couple still wish to be divorced.
However, question that arises and worth consideration if Islamic jurisprudence had any provision to dissolve such failed marriages through mutual consent. "From the holy Quranic verse and teachings and doings of Prophet Muhammed, views of Islamic scholars and judicial decisions, we learnt that, even before 14 century years, Islam had allowed an end to a meaningless marriage -- a marriage on mere paper or by fiction -- by mutual consent of spouses."
Hence, where "it is a clear case of irretrievable breakdown of nikaah (marriage) and the parties categorically states that they do not wish to live together and wish to put an end to their marriage". The Islamic injunctions with respect to marital obligations permit separation when the spouses are not able to carry out the injunctions.
Author: Ajit Kumar, Advocate
Friday, February 8, 2008
Thursday, February 7, 2008
Divorce and Family Laws in India
Divorce
In India, there are various Laws which govern the principle of Divorce like Hindu Marriage Act-1955, Special Marriage Act-1956, Indian Divorce Act, Christian Marriage Act, etc. These laws basically deals with various aspects of divorce and most importantly laid down the grounds on which divorce can be sought by the spouses against each other. Under Indian Laws, divorce is generally divided in to two parts
1) Mutual Consent Divorce: In this case, Husband and Wife present the petition for divorce after reaching to the agreement and consensus. In such cases, terms and conditions for divorce are mutually decided between the husband and wife.
2) Contested Divorce: In such cases either of the spouses can file a petition for the dissolution of marriage amongst the grounds available to him/her under the law applicable to them and the petitioner (one who files the petition/case has to prove his case). On successfully proving the charges and grounds, divorce decree is granted by the Court.
Annulment Of Marriage:
A petition for the annulment of marriage is moved on certain grounds specified in various matrimonial laws. Once a petitioner is successfully proving its case, marriage is declared null and void. Resultantly, the court considers that the marriage has not taken place at all and the tag of the 'divorcee' is not attached. Annulment of marriage is very important in the scheme of matrimonial laws as there is no point in carrying the burden of divorce in cases where marriage has been solemnized on the strength of fraud or where the marriage is solemnized despite the fact that the responding spouse was already married.
Restitution Of Conjugal Rights:
It is another important remedy provided by law to the spouses. In cases, where one party leave the company and society of the other spouse, then a case for restitution of conjugal rights can be filed in the Court. The Court directs the defaulting spouse to join the company of the other spouse unless there is a strong reason justifying such withdrawal. This remedy is often used strategically in fighting matrimonial cases.
Maintenance:
This is an integral part of all matrimonial proceedings. Application for maintenance can be moved by either of the spouse who does not have the sufficient means to maintain him/her self. Maintenance can also be classified in to two parts:
1) Interim Maintenance: Such maintenance is provided during the pendency of the case in the court. The underlying idea behind giving such maintenance is that one party should not loose and stand on a weaker footing at the time of contesting case. Quantum of such maintenance is dependant on variety of factor but most important aspect is the status of the parties prior to the filing of the case and the income/salary of the spouse against whom such maintenance is claimed. Court always tries to bring both the party at equal platform and footing.
2) Permanent Maintenance: It is awarded at the time when whole case is finally decided. It could be periodical or monthly depends upon the facts and circumstances of the case.
Children Custody:
In divorce proceedings, the most complex and emotionally drenching issue is that of child custody. Children, young and at times infant have to bear the pain for no fault of theirs. Due to the extreme emotional attachment, both parents want to keep the custody of the children. In Indian set-up, such question is decided by the court of Guardian and Wards. Welfare of the children is the paramount consideration before the Court while deciding the question as to who is entitled to have the custody of children. Custody of children can be divided in to three parts:
1) Permanent Custody: After determining all issues, Court grants permanent custody of children/s to one of the party.
2) Interim Custody : During the pendancy of the case and otherwise, court can grant interim custody to one of the spouse. It is also possible that Court grants interim custody of children to the other parent at the times of vacations, holidays etc.
3) Visitation Rights: Every parent has inalienable right to meet and see his/her children. Even after winning the case of custody of children by one parent, other parent can not be denied the right to meet and see his/her children. In disposing of such cases, Court awards reasonable visitation right to the other parents and fix up the time and days for the meeting with his/ her children so that the emotional ties are not broken between the child and the other parent.
Criminal Proceedings:
Presently, matrimonial cases are not confined within the realm of civil and family laws. Such cases can have criminal character too. Generally, wherever there is a cruelty exercised by the husband or his relative upon the wife in regard to the demand of dowry, a criminal case under section 498A of IPC is registered against the husband and the other relatives who were causing such cruelty or whose name is mentioned in the complaint by the wife. Along with this a case under section 406 of IPC is registered for criminal breach of trust beside other provision of IPC and Dowry Prohibitions Act.
In such cases, at the first instance, husband and his relatives have to apply for the interim protection, anticipatory bail and regular bail, etc.
In India, there are various Laws which govern the principle of Divorce like Hindu Marriage Act-1955, Special Marriage Act-1956, Indian Divorce Act, Christian Marriage Act, etc. These laws basically deals with various aspects of divorce and most importantly laid down the grounds on which divorce can be sought by the spouses against each other. Under Indian Laws, divorce is generally divided in to two parts
1) Mutual Consent Divorce: In this case, Husband and Wife present the petition for divorce after reaching to the agreement and consensus. In such cases, terms and conditions for divorce are mutually decided between the husband and wife.
2) Contested Divorce: In such cases either of the spouses can file a petition for the dissolution of marriage amongst the grounds available to him/her under the law applicable to them and the petitioner (one who files the petition/case has to prove his case). On successfully proving the charges and grounds, divorce decree is granted by the Court.
Annulment Of Marriage:
A petition for the annulment of marriage is moved on certain grounds specified in various matrimonial laws. Once a petitioner is successfully proving its case, marriage is declared null and void. Resultantly, the court considers that the marriage has not taken place at all and the tag of the 'divorcee' is not attached. Annulment of marriage is very important in the scheme of matrimonial laws as there is no point in carrying the burden of divorce in cases where marriage has been solemnized on the strength of fraud or where the marriage is solemnized despite the fact that the responding spouse was already married.
Restitution Of Conjugal Rights:
It is another important remedy provided by law to the spouses. In cases, where one party leave the company and society of the other spouse, then a case for restitution of conjugal rights can be filed in the Court. The Court directs the defaulting spouse to join the company of the other spouse unless there is a strong reason justifying such withdrawal. This remedy is often used strategically in fighting matrimonial cases.
Maintenance:
This is an integral part of all matrimonial proceedings. Application for maintenance can be moved by either of the spouse who does not have the sufficient means to maintain him/her self. Maintenance can also be classified in to two parts:
1) Interim Maintenance: Such maintenance is provided during the pendency of the case in the court. The underlying idea behind giving such maintenance is that one party should not loose and stand on a weaker footing at the time of contesting case. Quantum of such maintenance is dependant on variety of factor but most important aspect is the status of the parties prior to the filing of the case and the income/salary of the spouse against whom such maintenance is claimed. Court always tries to bring both the party at equal platform and footing.
2) Permanent Maintenance: It is awarded at the time when whole case is finally decided. It could be periodical or monthly depends upon the facts and circumstances of the case.
Children Custody:
In divorce proceedings, the most complex and emotionally drenching issue is that of child custody. Children, young and at times infant have to bear the pain for no fault of theirs. Due to the extreme emotional attachment, both parents want to keep the custody of the children. In Indian set-up, such question is decided by the court of Guardian and Wards. Welfare of the children is the paramount consideration before the Court while deciding the question as to who is entitled to have the custody of children. Custody of children can be divided in to three parts:
1) Permanent Custody: After determining all issues, Court grants permanent custody of children/s to one of the party.
2) Interim Custody : During the pendancy of the case and otherwise, court can grant interim custody to one of the spouse. It is also possible that Court grants interim custody of children to the other parent at the times of vacations, holidays etc.
3) Visitation Rights: Every parent has inalienable right to meet and see his/her children. Even after winning the case of custody of children by one parent, other parent can not be denied the right to meet and see his/her children. In disposing of such cases, Court awards reasonable visitation right to the other parents and fix up the time and days for the meeting with his/ her children so that the emotional ties are not broken between the child and the other parent.
Criminal Proceedings:
Presently, matrimonial cases are not confined within the realm of civil and family laws. Such cases can have criminal character too. Generally, wherever there is a cruelty exercised by the husband or his relative upon the wife in regard to the demand of dowry, a criminal case under section 498A of IPC is registered against the husband and the other relatives who were causing such cruelty or whose name is mentioned in the complaint by the wife. Along with this a case under section 406 of IPC is registered for criminal breach of trust beside other provision of IPC and Dowry Prohibitions Act.
In such cases, at the first instance, husband and his relatives have to apply for the interim protection, anticipatory bail and regular bail, etc.
Divorce Lawyers
NULLITY OF MARRIAGE AND DIVORCE
Hindu Marriage Act 1955
Section 11 - Void marriages :- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.
Section 12 - Voidable marriages :- Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
a. that the marriage has not been consummated owing to the impotence of the respondent; or
b. that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
c. that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
d. that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
Notwithstanding any contained in sub-section (1), no petition for annulling a marriage:-
a. On the ground specified in clause (c) of sub-section (1) shall be entertained if:-
i. the petition is presented more than one year after the force had ceased to operate
or, as the case may be, the fraud had been discovered; or
ii. the petitioner has, with his or her full consent, lived with the other party to
the marriage as husband or wife after the force had ceased to operate or, as the case
may be, the fraud had been discovered;
b. on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied:-
i. that the petitioner was at the time of the marriage ignorant of the facts alleged;
ii. that proceedings have been instituted in the case of a marriage solemnized before
the commencement of this Act within one year of such commencement and in the
case of marriages solemnized after such commencement within one year from the
date of the marriage; and
iii. that marital intercourse with the consent of the petitioner has not taken place since
the discovery by the petitioner of the existence of the said ground.
Section 13 - Divorce :-
1. Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
i. has, after the solemnization of the marriage, had voluntary sexual intercourse with
any person other than his or her spouse; or
ii. has, after the solemnization of the marriage, treated the petitioner with cruelty; or
iii. has deserted the petitioner for a continues period of not less than two years
immediately preceding the presentation of the petition; or the passing of a decree for
restitution of conjugal rights in a proceeding to which they were parties.
2. A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground;
i. in the case of any marriage solemnized before the commencement of this Act,
that the husband had married again before such commencement or that any
other wife of the husband married before such commencement was alive at the
time of the solemnization of the marriage of the petitioner;
Provided that in either case the other wife is alive at the time of the presentation of
the petition; o
ii. that the husband has, since the solemnization of the marriage, been guilty of
rape, sodomy or bestiality; or
iii. that in a suit under section 18 of the Hindu Adoption sand Maintenance Act,
1956(78 of 1956), or in a proceeding under section 125 of the Code of Criminal
Procedure , 1973 (2 of 1974) (or under the corresponding section 488 of the Code
of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be,
has been passed against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since the passing of such
decree or order, cohabitation between the parties has not been resumed for one
year or upwards;
iv. that her marriage (whether consummated or not) was solemnized before she
attained the age of fifteen years and she has repudiated the marriage after
attaining the age of eighteen years.
Explanation:- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) act, 1976 (68 of 1976).
Section 13B - Divorce by mutual consent :-
1. Subject to the provisions of this Act a petition for dissolution of marriage by decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the marriage Laws (Amendment) Act 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
2. On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
Section 24 - Maintenance pendent life and expenses of proceedings :- Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to be court to be reasonable.
Section 25 - Permanent alimony and maintenance :-
1. Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to he respondent’s own income and other property, if any, the income and other property of the applicant the conduct of the parties and other circumstances of the case it may seem to the court to be jest and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
2. If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
3. If the court is satisfied that the party in whose favour an order has been made under this section has re-married or if, such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.
Hindu Marriage Act 1955
Section 11 - Void marriages :- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.
Section 12 - Voidable marriages :- Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
a. that the marriage has not been consummated owing to the impotence of the respondent; or
b. that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
c. that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
d. that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
Notwithstanding any contained in sub-section (1), no petition for annulling a marriage:-
a. On the ground specified in clause (c) of sub-section (1) shall be entertained if:-
i. the petition is presented more than one year after the force had ceased to operate
or, as the case may be, the fraud had been discovered; or
ii. the petitioner has, with his or her full consent, lived with the other party to
the marriage as husband or wife after the force had ceased to operate or, as the case
may be, the fraud had been discovered;
b. on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied:-
i. that the petitioner was at the time of the marriage ignorant of the facts alleged;
ii. that proceedings have been instituted in the case of a marriage solemnized before
the commencement of this Act within one year of such commencement and in the
case of marriages solemnized after such commencement within one year from the
date of the marriage; and
iii. that marital intercourse with the consent of the petitioner has not taken place since
the discovery by the petitioner of the existence of the said ground.
Section 13 - Divorce :-
1. Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
i. has, after the solemnization of the marriage, had voluntary sexual intercourse with
any person other than his or her spouse; or
ii. has, after the solemnization of the marriage, treated the petitioner with cruelty; or
iii. has deserted the petitioner for a continues period of not less than two years
immediately preceding the presentation of the petition; or the passing of a decree for
restitution of conjugal rights in a proceeding to which they were parties.
2. A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground;
i. in the case of any marriage solemnized before the commencement of this Act,
that the husband had married again before such commencement or that any
other wife of the husband married before such commencement was alive at the
time of the solemnization of the marriage of the petitioner;
Provided that in either case the other wife is alive at the time of the presentation of
the petition; o
ii. that the husband has, since the solemnization of the marriage, been guilty of
rape, sodomy or bestiality; or
iii. that in a suit under section 18 of the Hindu Adoption sand Maintenance Act,
1956(78 of 1956), or in a proceeding under section 125 of the Code of Criminal
Procedure , 1973 (2 of 1974) (or under the corresponding section 488 of the Code
of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be,
has been passed against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since the passing of such
decree or order, cohabitation between the parties has not been resumed for one
year or upwards;
iv. that her marriage (whether consummated or not) was solemnized before she
attained the age of fifteen years and she has repudiated the marriage after
attaining the age of eighteen years.
Explanation:- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) act, 1976 (68 of 1976).
Section 13B - Divorce by mutual consent :-
1. Subject to the provisions of this Act a petition for dissolution of marriage by decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the marriage Laws (Amendment) Act 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
2. On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
Section 24 - Maintenance pendent life and expenses of proceedings :- Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to be court to be reasonable.
Section 25 - Permanent alimony and maintenance :-
1. Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to he respondent’s own income and other property, if any, the income and other property of the applicant the conduct of the parties and other circumstances of the case it may seem to the court to be jest and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
2. If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
3. If the court is satisfied that the party in whose favour an order has been made under this section has re-married or if, such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.
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