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DIVORCE IN INDIA

The Law

All major religions have their own laws which govern divorces within their own community, and separate regulations exist regarding divorce in interfaith marriages.

Hindus, including Buddhists, Sikhs and Jains, are governed by the Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939, which provides the grounds on which women can obtain a divorce, and the uncodified civil law. Civil marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1956 .Other community specific legislation includes the Native Converts' Marriage Dissolution Act, 1866 that allows a Hindu to appeal for a divorce if a spouse converts to Christianity.

Grounds for Divorce

In most Western nations, there are approximately 16 distinct reasons for which divorces are granted. In India, however, only five main reasons are generally accepted as sufficient grounds for divorce.

Adultery. While no formal definition of adultery exists, it does have "a fairly established meaning in matrimonial law", namely "the voluntary sexual intercourse of a married man or woman with a person other than the offender's wife or husband". While the law considers it valid grounds for either sex, adulterous women are "judged more harshly" than men.

The various religious regulations are not unanimous on this issue. The law regarding Hindus allows divorce to be granted on the grounds of infidelity of either husband or wife. The Christian law, however, would traditionally not have granted a divorce to a woman solely on the grounds of adultery. She would have had to prove another violation, such as cruelty .A recent Bombay High Court decision "recognised cruelty and desertion as independent grounds for the dissolution of a Christian marriage," striking down a section of the law that allowed for an unconstitutional distinction between the sexes.

Desertion. The three main components of desertion are the "disruption of cohabitation, absence of just or reasonable cause and their combination throughout three years" before the abandoned spouse may petition for a divorce. There also must be an obvious intent on the part of the offending spouse to remain permanently apart from the other. This statute also applies to cases in which a spouse has been heard from for at least seven years .

Cruelty. As with adultery, "the definition of the type of behavior that constitutes cruelty varies according to the gender of the petitioner" of the divorce. "Despite the fact that cruelty is often equally available to husbands and wives, the way in which the law is interpreted and applied suggests that women and men are evaluated by rather different standards" .This category includes both physical and mental abuse and neglect.

A court decision made in early May 1997 made cruelty sufficient grounds for a Christian woman to obtain a; previously, the law required both adultery and cruelty to be proven. The national Indian Christian community seems to have embraced this judgment.

Impotency. This refers to the physical inability of the couple to consummate the marriage or the refusal by one spouse to do so. Some cases have established that sterility can be construed to mean non-consummation if the other partner is not aware of the condition before the marriage.

Chronic Disease. Both mental and physical illnesses are included in this category, as well as sexually transmitted diseases. Not all religions recognize identical diseases as grounds for divorce. Christians and Parsis do not allow divorce for a sexually transmitted disease or leprosy while the other communities do.

Divorce under Muslim law

Muslims are governed by their personal laws under which "Nikah" (i.e. marriage) is a contract and may be permanent or temporary and permits a man 4 wives if he treats all of them equally. To have a valid "Nikah" under the Muslim Law, presence of a Qazi (Priest) is not necessary. Merely a proposal in the presence and hearing of two sane males or one sane male and two sane female adults, all Muslims and acceptance of the said proposals at the same time constitute a valid Nikah under the Muslim Personal Law. A husband can divorce his wife without any reasons merely by pronouncing thrice the word "Talak". However for a Muslim woman to obtain divorce certain conditions are necessary.

 
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