How can a Hindu and a Muslim take divorce

A divorce is generally governed according to the personal laws in India. India being a multi-diverse country with people of different faith residing together, their traditional customs are generally governed according to their respective religion or personal law. Complications are expected to arise when people of different religions wish to get married or divorce .

In the event of a divorce between a Hindu and a Muslim couple, there are certain considerations involved, depending on what structure they got married in the first place. Whether they got married under their personal laws or it was a civil marriage i.e. under the Special Marriage Act, 1954.

Under the Special Marriage Act, 1954

If the marriage has been solemnized under provisions of the special marriage act, then for obtaining a divorce you will have to file for divorce in family court under Section 27 of the Special Marriage Act. It lays down certain grounds for divorce. Various grounds for obtaining a divorce are & ndash

• Having voluntary sexual intercourse with any person other than his or her spouse

• Desertion for a continuous period of not less than two years

• Undergoing imprisonment for seven years or more for an offense under IPC

• Treated petitioner with cruelty

• Incurable unsoundness of mind

The Act also provides the wife with certain special grounds on which she can get a divorce from her husband. They are & ndash

• The husband has been guilty of rape, sodomy, or bestiality

• In a suit under section 18 of the Hindu adoption and maintenance act or section 125 CrPC , a decree was passed and the wife has been living separately

You can also get a divorce with mutual consent under section 28 of the Special Marriage Act. A petition can be presented by both parties that they have been living separately for a period of one year or more and they jointly decide that the marriage should be dissolved.

If married under the personal law

If a Hindu and a Muslim couple have married either under Muslim law or Hindu, divorce proceedings will be governed by their personal law provisions only. In each case, either party converts to their respective spouse's religion.

Muslim law

Under Muslim Law, a marriage is dissolved either by the death of the husband or wife or by divorce. After the death of a wife, the husband may remarry immediately. But the widow cannot remarry before a certain specified period called Iddat expires. There are two categories of divorce under Muslim law: 1.) Extrajudicial divorce, and 2.) Judicial divorce Extrajudicial divorce

• By husband- talaaq, ila, and zihar

• By wife- talaaq-i-Hafeez, lian

• By mutual agreement

By Husband

Generally, both the parties to the marriage contract have a certain specific right, but the husband's rights in this respect are much greater than that of the wife. The husband can dissolve the marriage tie at his will. A divorce can also take place by mutual agreement. A Husband may divorce in the following manner -

• Talaaq: which is released from the marriage tie immediately or eventually

• Ila: where a husband of sound mind takes a vow that he will abstain from all relationships from his wife

• Zihar: where the husband sane and adult compares his wife to his mother or any other female within the prohibited degrees

By wife

A wife cannot divorce herself from her husband without his consent. She can, of course, purchase her divorce from her husband and can have the marriage dissolved by Tafweez (delegation) and Lian in case the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination, and the wife has got the right to ask for a divorce on these grounds.

Judicial Divorce

Marriage may also be dissolved by judicial decree under the Dissolution of Muslim Marriage Act, 1939, on the following grounds.

Hindu law

Divorce under Hindu law is governed by Hindu Marriage Act , 1955 and Divorce Act, 1936. Hindu Marriage Act, 1955 has set forth certain grounds for divorce such as adultery, cruelty, conversion, desertion, mental disorder, leprosy, etc. You can also get a divorce with mutual consent under the Hindu Marriage Act, 1955, which states that - A petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to marriage together, 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. A wife can file for divorce if her husband is found guilty of rape, sodomy, or bestiality. Similarly, if the marriage whether consummated or not was solemnized before she attained the age of 15 years and the wife wants to file for divorce, she can do so.

How can a Lawyer help you?

Divorce is a stressful time for everyone involved. Hiring an attorney to complete a divorce is one way to reduce the stress of the divorce. While the attorney will need to gather information from you regarding the case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced divorce attorney can give you expert advice on how to handle your divorce owing to his years of experience in handling such cases. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers. A divorce lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he can avoid delay and get the divorce completed as quickly as possible.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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