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How can a Hindu and a Muslim take divorce

November 20, 2018
By Advocate Chikirsha Mohanty



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 religion 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 marriage has been solemnized under provisions of special marriage act, then for obtaining a divorce you will have to file for divorce in family court under Section 27 of 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 provide 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 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 religion.
 

Muslim law

Under the 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 the 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 husbands right 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 relationship from his wife

  • Zihar: where 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, under 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 a 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 want to file for divorce, she can do so.



 

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These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.

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