Judicial Separation and Divorce
Author: Prabhuti Mandhyan. LCD
- Meaning: It implies a period of separation where parties get separated for a period of time, to introspect their relationship, to get some space and time so as to find solutions of their troubled marriage, to justify or to correct long back tradition saying that marriages are done not to get separated, every way, every solution is to be taken in consideration before separation, before the divorce, before breaking up this permanent and sacred bond of marriage so that divorce would be a way least taken and not for each and every commencing problems of marriage
- The legal aspect of Judicial Separation: Section 10 of the Hindu Marriage Act 1955 states judicial separation as either party whether solemnized before or after the commencement of the Hindu Marriage Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section(2) of section 13 thereof, as grounds on which a petition for divorce might have been presented. Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied with the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so. In Muslim law judicial separation is not defined in the Muslim marriage act 1939 or Muslim (women protection of rights on Marriage act 1986) it comes into practice as is interpreted by Courts timely.
- Grounds for Judicial Separation
Judicial separation is not specifically defined in Muslim law but in Ms. Jordan Diengdeh v S.S.Chopra apex court observed that grounds for divorce under Section 2 of the Dissolution of Muslim Marriage Act shall be taken as grounds for judicial separation, they are as follows:
- Where the husband is absent and does not know where the husband is for the last 4 years.
- The husband failed to provide maintenance from the last two years
- Where the husband is imprisoned for seven years or more
- Where the husband fails to perform marital obligations between families
- Where the husband was impotent at the time of marriage and continues to be so
- If the husband is insane from the last two years and suffering from leprosy or venereal disease.
- If she got married before completion of 15 years and has not consummated till completion of 18 years of age.
- If the husband treated her with cruelty.
It is a legal dissolution of a marriage by a court through a decree of divorce. Couples can file a petition for mutual divorce (both parties mutually agree on getting a divorce) or a contested divorce (one party seeks a divorce without the consent of the other) and in both cases, the court must be convinced with no chance of reconciliation between the parties. A contested divorce can be sought on the grounds of cruelty, desertion, adultery, conversion, mental disorder, communicable disease, renunciation of the world, or presumption of death, by/of one of the parties. In Muslim divorce law is covered by the Dissolution of Muslim marriage act 1939 which lays down other several grounds on the basis of which a Muslim wife may get her divorce decree passed by order of the court.
- Divorce Laws under Muslim law
- Modes of talaq- Talaq under Muslim law-Divorce under Muslim law is governed bu personal law alike Hindu law. There are two broad categories of Talaq under Muslim law.
- Extra-Judicial Divorce or Divorce under Muslim Personal Law
- Judicial Divorce or Talaq under Statutory Law.
Types of Divorce:
Judicial Divorce and Extra Judicial Divorce
(a) Extra Judicial Divorce or Divorce under Muslim personal Law– is divided as-
- Firstly by Husband-Talaq-Ul-Sunnat, Talaq-Ul-Biddat, Ila and Zihar,
- Secondly by Wife-Talaq-i-Tafweez, Lian
- Thirdly by mutual agreement-Mubarat,Khula
Talaq by husband: Where Talaq- ul- Sunnat is revocable divorce as it does not become final at once there is a possibility of compromise between parties. It is divided into two forms-
- Talaq -e- Ahasan is a single pronouncement of divorce made in the period of tuhr (purity, between two mensuration ) or when the wife is free from mensuration, and no sexual intercourse during the time of iddat, pronouncement be made during the time of tuhr applies only to oral divorce does not apply to talaq in writing, this form of divorce can be revoked at any time before completion of a period of iddat.
- Talaq-e-Hasan is when husband pronounces talaq three times in three tuhrs, wife has crossed the age of mensuration then an announcement will be made after an interval of 30 days between successive pronouncement, the last pronouncement is made talaq become final and irrevocable.
Talaq-e-Biddat is a disapproved mode of divorce it becomes effective when words are pronounced and no way of reconciliation is there. Ila is a form of divorce where the husband takes an oath not to have sexual intercourse with the wife for a period of 4 months and after four months marriage gets dissolved irrevocably Zihar is when the husband compares his wife to a woman within his prohibited relationship e.g, mother or sister, etc. The husband would from them treat or give her position like his mother or sister. Then the husband does not cohabit with his wife for four months. Upon the expiry of the said period, Zihar is complete. The wife can go to court to get a judicial divorce, may ask the court to grant a decree of restitution of Conjugal Rights if the Husband wants to revoke Zihar then the wife can not seek Judicial Divorce within a said period and the husband can do so if he observes fast for 2 months, provides food to 60 people or frees a slave. This type of talk has been banned by the Honourable SC of India recently.
- Divorce by wife: includes Talaq-i-Tafweez which is known as a delegated form of divorce and recognized among both Shias and Sunnis where Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily, or permanently. A permanent delegation of power is revocable but a temporary delegation of power is not. Any agreement made either before or after the marriage providing that the wife would be at the liberty to divorce herself under certain specified conditions is valid provided the conditions are reasonable and not opposed to public policy. Lian is a form where husband level false charges of unchastity or adultery on wife, when the husband does character assassination of wife then she can claim divorce on this ground.
- The mutual agreement means mutual discharge of rights, obligations, claims of marriage where husband and wife mutually decide to get separated. There are two forms of mutual agreement Khula and Mubarat. In Khula compensation is given by a wife to the husband to dissolve connubal union and when a husband gives consent it becomes irrevocable, consideration in form of dower or property is not condition precedent here. In Mubarat both parties agree for divorce, in Sunnis when parties agree all rights and obligations come to an end. In Shia, laws are stringent though where both parties must find marital relation to be cumbersome, they insist that proper form to be followed unless it would not result in Talaq. Mubarat is irrevocable in both Shias and Sunnis.
- Judicial Divorce is when courts grant a divorce on basis of Statutory laws, under the dissolution of the Muslim marriage act 1939 which was introduced by Qazi Mohammad Ahmad Kazmi which became law on 17th March 1939. Whereunder Section 2 of the Dissolution of Muslim marriage act wife will be entitled to get a decree of divorce on basis of the following grounds:
- That whereabouts of the husband is not been known for four years, the wife can file a petition of divorce under this section along with this Section 3 is also taken in consideration where the wife has to give the name and address of the legal heirs of the husband and gather information from them if they have any information about his husband and after expiry of six months court grants decree, if husband appears within 6 months then marriage would not stand dissolved.
- If the husband has neglected to grant maintenance
- for two years, if the husband neglects then she can file a divorce but it also depends on the wife’s obligations if she starts living separately without a reasonable excuse then she cannot claim divorce on this ground.
- That husband is sentenced for imprisonment for seven years or upwards and if his appeal is dismissed or expired as a decree granted by the court then this can be taken as the ground of divorce by a husband.
- That husband has failed to perform his marital obligations without reasonable excuse for three years, where marital obligations include if the husband is impotent and continues so then the wife can file a divorce on this ground, the husband has to prove his potency within 1 year after giving application for it. If the husband is insane and suffering from leprosy or venereal disease and it remains for two years after the presentation of the suit, but it does not apply to insanity which is not curable.
- If women repudiated marriage as she was given by his guardian at age of 15 years and till 18 years of age she has not consummated with her husband.
- That husband treated wife with cruelty, it includes ill-treatment, forcing to lead immoral and infamous life, has more than 1 wife and does not treat her equitably, obstructs her in religious practice, etc.
Conditions for valid talaq:
- Capacity-Every Muslim husband who has attained the age of puberty is competent to pronounce talaq, Husband who is minor his guardian cannot pronounce talaq on behalf of him. Some jurists also consider that talaq pronounced against an insane wife or minor is void or ineffective.
- Free consent: The consent of the husband must be free from coercion, fraud, misrepresentation it should be free and if includes fraud, coercion, etc then would be considered void in Hanafi law.
Formalities: In Sunni law talaq may be oral or in writing, no particular word is required to constitute talaq but it should be expressed by the husband that he wants to dissolve the marriage, it need not be made in presence of a witness. In Shia law talaq must be pronounced expressed except the husband is not able to speak, it must be pronounced in presence of two competent witnesses (two adult male who has attained the age of puberty or one male and one female in absence of one male can be substituted), specific Arabic words in specific formulae are used to pronounce talaq.
- Express words: The words of the husband must indicate the clear intention of the husband for the dissolution of marriage and it should be express.
- Presence of wife: The presence of wife during pronouncement of talaq is necessary, the name of the wife must be specifically referred to in the pronouncement if the husband has more than one wife then he must pronounce the name of the wife against whom he is pronouncing talaq.
- Notice of talaq: Talaq becomes effective when it was pronounced not when the wife came to know about it.
- Conditional and Stringent talaq: In Sunni law talaq may either be absolute9i.e unconditional) or subject to condition or contingent. It becomes effective only upon fulfillment of the condition of the happening of future events, however, condition must be un-Islamic. In Shia law contingent or conditional talaq is void and ineffective.
Nurjahan v Kazim Ali – Calcutta High Court held that where the wife hurts the feelings of her husband with her behavior and the husband hits back an allegation of infidelity against her and what the husband says in response if this behavior of her wife cannot be used by the wife as the false charge of adultery and no divorce is to be granted under Lian.
Aboobaker v Mamu koya- The husband used to compel the wife to put on a sari and see pictures in cinema. the wife refused to do so because according to her belief this was against the Islamic way of life, Kerela High court held that this conduct of the husband does not amount to cruelty as a mere departure from standards of orthodox behavior would not constitute un-Islamic behavior.
Syed Ziauddin v. Parvez Sultan Parvez Sultana was a science graduate and wanted to take admission in a college for medical studies, She needed money for her studies Syed Ziauddin promised to give her money provided she married him, Later she divorced for non-fulfillment of promise on part of the husband, court granted a divorce on the ground of cruelty.
Md. Khan v Shahmai under a prenuptial agreement, a husband, who was a Khana Damad, said to pay a certain amount of marriage expenses incurred by the father-in-law during leaving the house and confers a power to pronounce divorce in his wife, the husband left his father-in-law house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce as an exercise of the power delegated to her. Delegation of power may be made even in the post-marriage agreements(where agreement is stipulated). Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy. During the time of contingency whether power is exercised or not, it depends upon the wife to choose to exercise it, happening off contingent event does not automatically result in divorce.
Name: Prabhuti Mandhyan
Institute: Law College Dehradun (Faculty of Uttaranchal University)