New Delhi: Wedding festivities in India come in diverse hues — and so do the legal frameworks governing a couple’s divorce, where faith informs the law. But this is now up for debate again, with the Law Commission calling for views on a Uniform Civil Code (UCC) to govern personal practices such as marriage, divorce, and maintenance.
The topic is a fraught one. Ever since the 22nd Law Commission issued its public notice in June, asking the citizens and religious bodies to send in their opinions on the matter within 30 days, there has been major resistance from some quarters.
While some critics have claimed that bringing up the matter is an attempt by the ruling BJP to polarise the electorate ahead of the 2024 Lok Sabha elections, others have said that it violates religious freedom.
Prime Minister Narendra Modi, on the other hand, is a staunch advocate of the UCC, even making a pitch for it at a rally in poll-bound Madhya Pradesh earlier this month. Indeed, the UCC has for long been a mainstay of BJP’s political agenda, albeit one that is yet to be realised, unlike the construction of the Ram temple in Ayodhya, the ban on instant triple talaq, and the abrogation of Article 370 in Jammu & Kashmir.
Now, however, there seems to be some more movement on the UCC front. For instance, a panel constituted by the BJP-ruled government in Uttarakhand has reportedly completed its draft proposal for a UCC in the state.
The Uniform Civil Code (UCC) is mentioned in Chapter IV of the Indian Constitution, which contains the Directive Principles of State Policy (DPSP). These principles act as guidelines for the government when creating new laws. However, unlike the provisions in the Fundamental Rights chapter, citizens do not have the legal authority to compel the state to adhere to the DPSP.
Currently, India’s diverse personal practices vary based on religious affiliations and community backgrounds. As the UCC continues to fuel intense discussions, ThePrint examines various aspects of personal laws, some of which could be subsumed if the UCC is implemented.
In this first installment of a two-part series, here are some of the legal frameworks governing divorce and maintenance for Hindus, Muslims, Christians, and Parsis.
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How do I divorce thee? Let me count the ways…
From the saat pheras to nikah, religion holds significant sway over marriages in India, shaping the ceremonies and rituals. While the registration of marriages is essential for legal recognition, the absence of registration does not invalidate the union.
Consequently, in cases of separation, couples must pursue legal remedies. Here, too, there is diversity. Divorce procedures are guided by community-specific legislations, which outline the circumstances under which a court can grant divorce to a couple.
Hindus, Sikhs, Buddhists, and Jains: Under the Hindu Marriage Act, 1955 (HMA) a couple that marries per the community’s rituals can move the court for divorce on the grounds of either adultery, cruelty, desertion, religious conversion, mental disorder, leprosy, venereal disease, “renunciation” of worldly attachments, “not heard alive” for a period of seven years, or no resumption of co-habitation after a court order of separation.
The Act includes Sikhs, Buddhists, and Jains under the definition of a “Hindu”.
The law lists out extra grounds in case a wife wants divorce. These grounds are if a husband has engaged in an act of rape, bestiality, or sodomy; in case the husband marries another woman; if the wife was married before of the age of 15 and renounces marriage before she attains 18 years of age; if there is no co-habitation or one year; and if the husband neglects a court judgement of maintenance awarded to his wife.
Muslims: Amongst Muslims, a husband can unilaterally divorce his wife by repudiating the marriage without giving any reason. Simply pronouncing the word “talaq” to indicate his intention to dissolve the marriage is considered sufficient.
However, the two Muslim sects – Sunni and Shia – follow separate procedures for talaq. While Sunni law says a “talaq” may be oral or in writing, in Shias it must be pronounced orally, in the presence of two witnesses, except where the husband is unable to speak.
In contrast, a wife cannot divorce her husband of her own accord. A Muslim wife draws this right through the Dissolution of Muslim Marriages Act, 1939. The grounds that entitle her to obtain divorce are if the husband is missing for four years; if the husband has neglected or has failed to provide for her maintenance for two years; if a husband has been sentenced to imprisonment for seven years or more; if the husband has failed to perform his marital obligations for three years or more; if the husband was impotent at the time of marriage; or if he suffers from leprosy or a virulent venereal disease.
A Muslim woman can also ask for divorce if she is married by “her father or other guardian” before she attained the age of 15 years, or repudiated the marriage before turning 18. This ground is available if the marriage has not been consummated.
A wife wanting divorce on the ground of cruelty should be able to establish one or more of several conditions — that her husband habitually assaults her, associates with women of “ill-repute”, leads an “infamous life”, attempts to force her to lead an immoral life, disposes of her property or prevents her exercising her legal rights over it, obstructs her in the observance of her religious profession of practice, or if he does not treat her equitably with his other wives, in accordance with the Quran.
In case a husband levels false charges of unchastity or adultery against his wife, then the latter has the right to ask for divorce on this ground as well.
The Dissolution of Muslim Marriages Act, 1939 does not allow a wife to ask for divorce on the ground that the husband neglects her or if she lives separately without any reasonable excuse.
Christians: Another colonial-era law — the Indian Divorce Act, 1869 — regulates divorce proceedings for Christians in India. Amended in 2001, after various courts nudged for it, the Act allows filing for divorce on the grounds of adultery, cruelty, desertion, and religious conversion. Such a petition should be supported by evidence, which could include affidavits from witnesses, letters, or other documents that prove that a spouse has been unfaithful or meted out mistreatment.
The Act lays a lot of emphasis on adultery and warrants the petitioner to make an adulterer or adulteress a co-respondent in the divorce petition, unless excused by the court. It also says that the court shall not be bound to pronounce a divorce decree if it finds that the petitioner has been guilty of adultery or has deserted the spouse willingly.
However, if conjugal cohabitation has been resumed or continued after one spouse has committed adultery, it is no longer grounds for divorce. The Indian Divorce Act frowns upon “collusive petitions” filed for divorce and empowers courts to reject such suits. Broadly, this refers to a divorce petition where both parties act in concert to mislead or deceive the court in some way.
Parsis: The Parsi Marriage and Divorce Act, 1936 requires registration of a divorce decree.
Only three grounds of divorce are prescribed in the law. They are non-consummation of marriage for a year due to the deliberate failure of the spouse, mental illness or unsound mind at the time of marriage and on the date of filing of the petition, and the wife’s pregnancy at the time of marriage by someone other than the husband.
The third ground can be invoked within two years of the wedding date, and only if no intercourse has taken place between the couple after the husband learnt about the wife’s pregnancy.
A notable aspect of Parsi law is the establishment of matrimonial courts specifically dedicated to handling divorce proceedings within the community. Additionally, delegates appointed by the state government, who are members of the Parsi community themselves, contribute to the adjudication process of divorce cases.
What about divorce by mutual consent?
The option of mutual consent divorce is permissible under all personal laws. However, the procedure and the mandatory separation period required before filing of such a petition vary from community to community.
Hindu and Parsi couples can move a mutual consent divorce petition a year after living separately, while for Christians this period is two years. While a Parsi couple cannot file such a petition within a year of getting married, there is no such bar for Hindus.
Unlike Hindu law, which requires a six-month cooling-off period between the filing of the first and second motion in a divorce case, no such waiting time is mandated for Parsis.
In the case of mutual consent divorce among Muslims, there are two procedures: khula and mubarat. In khula, the wife initiates the divorce by making an offer, which the husband accepts. In mubarat, both parties agree to mutually free each other from the marriage.
In both khula and mubarat, the wife relinquishes either her entire or a portion of her dower (money or property given by her husband at the time of marriage).
Following a divorce, a Muslim woman must observe a period of chastity called iddat for three months before she can remarry.
Avenues for maintenance
The provisions regarding maintenance vary across different personal laws. However, there is also a secular law in Section 125 of the Criminal Procedure Code (CrPc), under which maintenance can be claimed by the wife, children and parents.
As far as personal laws go, a Hindu woman can seek maintenance under the Hindu Adoption and Maintenance Act (HAMA), 1956 as well as the Hindu Marriage Act (HMA).
While HAMA is specific to wives, the HMA allows a husband to ask for maintenance from his wife in case he is incapable of supporting himself.
Under HAMA, a husband is obligated to provide maintenance to his married wife throughout her lifetime, even if she is living separately but not divorced.
However, a divorced wife is excluded from the definition of “wife” for maintenance purposes. HAMA also grants maintenance rights to dependents such as widowed daughters or daughters-in-law, stepmothers, and minor “legitimate” or “illegitimate” children.
Maintenance provisions under HMA differ. Under this law, either the husband or the wife can claim maintenance, although the parameters for deciding it are gender-specific.
It is worth noting that various progressive judgements by courts have extended maintenance rights to a second wife, albeit in exceptional circumstances such as misrepresentation by the husband regarding his first marriage.
Christian and Parsi women are entitled to similar maintenance rights as Hindu women under their respective personal laws. Both the Indian Divorce Act and the Parsi Marriage and Divorce Act contain provisions that grant maintenance, alimony pending litigation, and a permanent maintenance amount.
Under Muslim Personal Law, on the other hand, a husband who divorces his wife is obligated to provide maintenance only during the period of iddat. In common practice, maintenance typically covers the wife’s food expenses. Usually, the payment of dower has been considered sufficient for maintaining a divorced wife.
However, Muslim personal law has evolved through various court cases, leading to the recognition that reasonable and fair maintenance should be paid to women within the iddat period. Courts have emphasised that dower is a symbolic gesture of respect for the wife and cannot be construed as maintenance. They have further clarified that the maintenance amount should be sufficient to support the wife for her entire life.
This is the first of a two-part series on how the UCC could affect personal laws across religions.
(Edited by Asavari Singh)
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