Can husband file for divorce under Special Marriage act when in abroad

758 votes

nder Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. In Islam, divorce is considered as an exception to the status of marriage.

Under the “Shariah” law in India there are three forms of Express divorce- Ahsaan Talaq, Hasan Talaq (both are forms of Talaq-ul-sunnat) and Triple Talaq (Talaq-ul-biddat).

A single pronouncement of Talaq (‘I divorce you’) is made by the husband during wife’s menstruation free time (called Tuhr). In another form of express divorce- Hasan Talaq, the Husband is required to make three pronouncements during consecutive menstruation free period of his wife. Divorce becomes effective after the third declaration if it has not been revoked earlier. And the most popular form of Talaq is instant ‘Triple Talaq’ or (Talaq-ul-biddat). it is also the most controversial.



Talaq-ul-Bidaat (Irrevocable)


This Talaq is also known as Talaq-ul-Bain. The most distinctive feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.


What is the validity of Talaq -ul- Bidaat?


There has been Numerous court judgements which have established that Triple Talaq is invalid and have set some definite requirements for its validity.

In Masroor Ahmed v. State (NCT of Delhi) [2008 (103) DRJ 137 (Del.), Triple Talaq was held to be one revocable Talaq meaning that the divorce can be revoked at any time before the completion of a waiting period of 90 days (called Iddat) after which the marriage is dissolved. Talaq must be for a reasonable cause. (Talaq given in anger is not valid).

In Riaz Fatima v Mohd. Sharif [(2007) DMC 26], evidence must be given by the husband of the reasons that has compelled him to seek divorce. A proof that talaq was proclaimed thrice in the presence of witnesses or in the letter must be provided and an attempt of reconciliation has been made. There has to be proof of payment of meher (dowry) amount and observance of iddat (the period of waiting by a woman after divorce or the spouse’s death before she can marry again).


Why is talaq - ul - bidaat followed in India?


While many Muslim countries have amended their legal strictures in terms of divorce procedure, India, as far as this practice is concerned, continues to be stuck in the medieval age by continuing to uphold provisions of the archaic Muslim Personal Law (Shariat) Application Act 1937.

Although there have been wave of debates, petitions and uproar over the constitutional validity of this mode of Talaaq, the archaic law continues to persist in India due to country's rules protecting Muslim, Christian and Hindu communities following religious law.

India being a Hindu majority nation has to assure the Muslim community that it is not doing injustice with them. And in order to appease the Muslim community, Indian political leadership refrains from taking a risk of involving their personal laws. The frequent communal riots are example of sensitivity of the personal laws in India. Furthermore, any attempt to trifle with these laws is met with ferocious opposition from religious boards like All India Muslim Personal Board and other Authorities, who support that there is no scope of change in the triple talaq system. Their contention is that the abolition of triple talaq would be contrary to the teachings of the Quran; second, that men are more capable of making decisions; third, that polygamy, although not desirable, is Islamic and that it actually helps rather than hurts women; and fourth, that the Supreme Court does not have the right to intervene in religious law.
Also, you can ask for divorce under Section 27 of Special Marriage Act, which states

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent— 2[(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); 3[***]
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or 4[(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.—In this clause,—
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or
(f) has been suffering from venereal disease in a communicable form]; or
(g) has 5[***] been suffering from leprosy, the disease not having been contacted from the petitioner; or
(h) 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 the respondent if the respondent had been alive; 6[***] 7[Explanation.—In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;] 8[***] 9[***] 7[(1A) A wife may also present a petition for divorce to the district court on the ground,—
(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
(ii) that in a suit under section 18 of the Hindu Adoptions and 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.] 10[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

Advocate Siddhant Sharma LawRato

647 votes

Though marriage was solemnised under the provisions of special marriage Act the divorce must be under the said Act. If the husband is in abroad then then he is permitted to file divorce here in India .

Advocate Durga Prasad Jena LawRato