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 -

• 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 

• 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.

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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

Marriage under Muslim laws can be dissolved due to the death of the husband or the death of the wife or by way of divorce. The husband can remarry immediately after the wife's death. However, the widow must wait till the iddat period expires in order to marry. The two types of divorce categories are mentioned below: 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 more powerful as compared to the of wife.-

• 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 does not have the right to divorce on her own without husband's consent. However, she has the right to buy her divorce out from her husband, thereby dissolving marriage by delegation or Tafweez. She can resort to the method of Lian in case false charges are levied against wife for being unchaste or for adultry, since this amounts to character assassination, and therefore the wife has the right to seek divorce on such 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. According to the Act, for mutual divorce, the spouses can present a petition for dissolution on the ground that they have lived separately for 1 year or more and have mutually agreed to divorce. 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.
 

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How can a Lawyer help you?

It is important to hire an experienced divorce lawyer  in order to ensure that you are guided on the right path during the stressful times. It enables one to make informed decisions and also reduces the burden. A good lawyer takes care of all the documentation required in the court, and helps in avoiding delays and costly mistakes. LawRato's   Free Legal Advice  service is also helpful in guiding you to begin the journey of divorce. 

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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