Marriage is a fundamental institution in Indian Society. This institution plays a crucial role in structuring society by establishing family units, defining inheritance rights, and ensuring social stability. In India, marriage ceremonies commemorate the joining of two families as well as two people. It is a legally and socially recognized union between individuals, signifying commitment, companionship, and mutual responsibilities.
Divorce
Divorce means the legal ending of a marriage between partners. Although the word ‘divorce’ is not specifically defined in any law, it is generally understood as the legal dissolution of the marital relationship. The term comes from the Latin word ‘divortium,’ which means separation. It is also linked to the word ‘divortere,’ where ‘di’ means apart and ‘vertere’ means to turn in different directions.[1]
India, as a secular nation, allows people of all faiths (Hindus, Muslims, Sikhs, Christians, Parsis, Jews, Jains, and others) to freely practice their religion. Reflecting this principle, Indian law permits individuals to marry or seek divorce under their respective personal laws, leading to the enactment of statutes such as the Hindu Marriage Act (1955) the Divorce Act (1869) the Dissolution of Muslim Marriage Act, 1939, the Parsi Marriage and Divorce Act, 1936, and the Special Marriage Act, 1955.[2].
HINDU MARRIAGE ACT, 1955
Traditionally, Hindu marriage was considered a sacrament and union of two souls.[3] It was viewed as a religious duty and an indissoluble union for performing religious rites and procreation.[4]
Divorce has been explained through different legal and philosophical perspectives over time. One of the earliest approaches is the fault theory, also known as the theory of error or crime theory. It is based on the idea that a marriage may be dissolved if one spouse commits a wrong against the other, thereby giving the innocent spouse the right to seek divorce. Over the years, however, this rigid approach gave way to more flexible understandings. The mutual consent theory emphasized the voluntary nature of marriage, reasoning that if two individuals freely choose to marry, they should also be free to end that union by mutual agreement. Building further on the changing social and legal outlook, the irreparable breakdown theory emerged. This perspective focuses less on attributing fault and more on the reality of the relationship, suggesting that a marriage should be dissolved when the bond has broken down beyond repair and there is no reasonable possibility of the couple living together again. The Supreme Court
in Naveen Kohli v. Neelu Kohli, acknowledged this principle by holding that an irretrievable breakdown of marriage is in itself a sufficient ground for divorce, particularly in cases where cohabitation has become impossible.[5]
The Hindu Marriage Act, 1955 brought a major shift in the legal view of Hindu marriage, moving it from a purely sacramental bond to one that also recognizes the right to dissolve the union. Section 13 of the Act specifies the grounds for divorce, including adultery, cruelty (physical or mental), desertion, conversion to another religion, and mental disorder that makes cohabitation unreasonable. Earlier, leprosy and venereal disease were also grounds, but these have been omitted in line with social and medical progress.[6] Divorce may also be sought if a spouse renounces worldly life or is presumed dead after seven years of disappearance.
The Act further introduced divorce by mutual consent under Section 13B, allowing spouses who have lived separately for at least one year and mutually agree that the marriage has broken down to end their union amicably. This provision ensures a dignified and consensual exit where both parties accept the relationship has come to an end.
The Hindu Marriage Act, 1955 also provides certain special grounds on which a wife may seek divorce, offering her additional protection within the marital framework. [7]One such ground is bigamy, where a husband marries another woman during the subsistence of the first marriage. In Lily Thomas v. Union of India, the Court held that if a man contracts a second marriage without obtaining a valid divorce from his first wife, the second marriage will be considered void in law. Another ground arises when a wife has obtained a decree or order of maintenance against her husband, and the couple has not resumed cohabitation for at least one year thereafter. The law further recognizes the vulnerability of child marriages by allowing a woman who was married before the age of fifteen to repudiate the marriage before turning eighteen. These provisions collectively aim to strengthen the legal rights of women, ensuring they are not bound by unjust or oppressive marital circumstances.
Under Hindu law, divorced women are entitled to several important rights that safeguard their dignity and independence. They have the right to maintenance, as provided under Section 125 of the CrPC and Section 25 of the Hindu Marriage Act, which ensure financial support and permanent alimony where needed. The law also grants them the right to residence in the shared household, with alternative accommodation if required. Streedhan, including jewellery, money, and property given at the time of marriage, remains the woman’s absolute property. [8]The Supreme Court in Pratibha Rani v. Suraj Kumar [9]affirmed that it must be returned to her after divorce. Finally, both spouses are free to remarry once the marriage has been legally dissolved, without any restrictions.
Divorce under Muslim Law
According to Mohamaden Law, Marriage is a civil contract and not a sacrament.[10] It was held in the case of Abdul Kadir vs. Salima that marriage is a contract underlying a lifelong partnership based on mutual consent on the part of a man and woman.[11] According to Prophet Muhammad “Of all the lawful things, divorce is the most hated in the sight of Allah”.[12]
A marriage, under Muslim law, can come to an end either through the death of a spouse or by divorce. Divorce itself is broadly classified into extra-judicial and judicial forms.
One of the most well-known forms is divorce by the husband, commonly referred to as talaq. Derived from the Arabic term meaning “to release” or “to untie,” talaq in the legal sense refers to the repudiation of marriage.[13] Traditionally, Muslim law grants the husband a unilateral right to divorce his wife without the need to assign any reason, reflecting the distinctive nature of dissolution within this personal law framework.[14]
Divorce under Muslim law can also take place through mutual consent when both spouses agree that their marriage cannot continue. In Khula, the wife initiates the separation by offering compensation, such as returning the dower, in exchange for the husband’s consent, making the divorce irrevocable once accepted. In Mubarat, both parties mutually agree to part ways, with the proposal coming from either side and taking effect upon acceptance. Judicial divorce is another route, and while earlier a wife could seek it only on limited grounds like Lian or the husband’s impotency. The Dissolution of Muslim Marriage Act, 1939 broadened these grounds, giving women greater protection and access to relief through the courts.[15]
The Dissolution of Muslim Marriages Act, 1939 grants Muslim women the right to seek divorce on specific grounds that protect their dignity and interests. A wife may dissolve her marriage if her husband has been missing for four years, failed to provide maintenance for two years, been imprisoned for seven years or more, neglected his marital duties for three years without cause, or was impotent at the time of marriage and remains so. These provisions aim to safeguard women from neglect, abandonment, or marriages that have lost meaning.
The right to maintenance is equally important. A husband must provide financial support during marriage and after divorce. While Islamic law secures maintenance during the Iddat period, Section 125 of the Code of Criminal Procedure extends it further if the woman cannot maintain herself. The Supreme Court in Shamima Farooqui v. Shahid Khan clarified that maintenance is a fundamental right, meant to ensure a dignified life. [16]
Together, these laws balance religious principles with secular protection, ensuring women are not left helpless in cases of neglect or marital breakdown.
Christian Law
Divorce among Christians in India is governed by the Indian Divorce Act, 1869, which applies when at least one of the spouses is a Christian.
Section 10 of the Act lays down the grounds on which divorce may be sought, including adultery, conversion to another religion, unsoundness of mind for two years, suffering from a communicable venereal disease, or not being heard of for seven years or more.
Divorce may also be granted if a spouse has failed to comply with a decree for restitution of conjugal rights for two years, wilfully refused to consummate the marriage, deserted the petitioner for at least two years, or treated the other with cruelty. In addition, a wife may seek dissolution of marriage if her husband has been guilty of rape, sodomy, or bestiality. [17] The Act also provides financial protection, as Section 37 empowers the court to direct the husband to pay permanent alimony and maintenance to the wife, ensuring her reasonable support after divorce.
CONCLUSION
India’s legal system acknowledges the diversity of its people by providing personal laws for marriage and divorce under different religions. While these laws differ in procedure and grounds, their underlying purpose is to ensure fairness and justice when a marital relationship breaks down. Divorce is not merely the end of a union, it is also the beginning of a new chapter. By recognizing this, the law seeks to balance tradition with the realities of modern life. Provisions related to maintenance, alimony, and the right to remarry are crucial in helping both men and women move forward with dignity. The courts have repeatedly emphasized that maintenance is not an act of charity but a right that allows individuals to live with self-respect after separation. As society evolves, divorce is gradually shedding its stigma, with growing acceptance that personal happiness and well-being cannot be sacrificed for the sake of appearances or outdated notions of honour. A compassionate legal approach allows individuals to part ways when living together becomes impossible, while also safeguarding their rights and future security. In this sense, divorce laws not only dissolve a broken relationship but also provide the framework for people to rebuild their lives with hope, equality, and dignity.
Ardhra Benny
Third year law student
Army Institute of Law, Mohali
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