Automatic Divorce In India: Fact Or Myth

Coverage of this Article

KEY TAKEAWAYS

-Void Marriages are not legal right from the very start and result in eventual separation as they are not backed by the Law.

INTRODUCTION

-The impression of marriage varies among individuals because of the diversity of their religion. 

SECTION 13 OF THE HINDU MARRIAGE ACT

-Under this Section, change of religion of one of the spouses becomes a ground for divorce as it is a matrimonial offence. 

SECTION 11 OF THE HINDU MARRIAGE ACT

-Under Section 11, a marriage made after the commencement of this Act, which contravenes cause (i), (iv), and (v) of Section 5 of this Act, becomes void. 

SECTION 12 OF THE HINDU MARRIAGE ACT

-Section 12 of the Act deals with voidable marriages. The marriage can be declared void at the option of either of the parties to the marriage. 

SPECIAL MARRIAGE ACT, 1954

-Section 25 of the Special Marriage Act deals with voidable marriages. 

PARSI MARRIAGE AND DIVORCE ACT, 1936

-Section 30 in the Parsi Marriage and Divorce Act, 1936 lays down provisions for nullifying a marriage. According to this Section, if the consummation of marriage becomes impossible as a result of natural causes, it is deemed voidable at the option of one of the parties to the marriage.

INDIAN DIVORCE ACT, 1869

-According to Section 18 of the Divorce Act, 1869, a petition to declare the marriage as null and void may be made by either the husband or wife to the High Court or the District Court.

OTHER GROUNDS FOR DIVORCE

-HINDU MARRIAGE ACT: There are other grounds upon which marriage may be dissolved upon the filing of a petition for divorce by one of the parties to the marriage.

IMPORTANT CASES

-MITTAL RAMESH PANCHAL AND ANOTHER V. NIL [Civil Application No. 300/2013]: Held that there is no provision for automatic dissolution marriage under Hindu Law. The dissolution of marriage under custom is only one of the modes of dissolving marriage under law. Marriage, in general, can only be dissolved according to the provisions in the Hindu Marriage Act. No provision in Hindu Law gives either party the right to automatic divorce.

INSTANT DIVORCES IN ISLAM

-In Islam, there are three types of divorces. They are Talaq-e-Ahsan, Talaq-e-Hasan and Talaq-e-Biddat. Talaq-e-Ahsan is the best method of dissolving a marriage in Islam.

CONCLUSION

-The Supreme Court as of late consented to investigate two public interest litigations that are related to the lawful reasons for separation, alimony and divorce settlement.

KEY TAKEAWAYS

• There is no such thing as ‘automatic divorce’.
• A petition for divorce needs to be filed by parties to the marriage.
• However, there exists the concept of Void and Voidable Marriages.
• Void Marriages are not legal right from the very start and result in eventual separation as they are not backed by the Law.
• Voidable Marriages can be instantly annulled by the Court once a petition is filed by one of the parties to the marriage.
• This article will talk about conditions where divorce becomes inevitable and can be obtained upon filing of a petition.

INTRODUCTION

The impression of marriage varies among individuals because of the diversity of their religion. Vedas have defined Hindu Marriages as a constant association till time everlasting. Under Muslim Law, marriage is treated as a common contract where an offer is proposed and accepted by the parties. Because of the variety of religions in India, individuals are permitted to perform marriage according to their own personal laws. Notwithstanding, with the passage of time and social mindfulness, different enactments have been passed by the Government to make the present-day divorce strategy in India simpler and effective. One must note that a petition for divorce always needs to be filed on specific grounds mentioned in various Marriage and Divorce Laws. There is no such thing as ‘automatic divorces’. However, in certain cases, the said marriage is void-ab-initio or voidable at the option of one of the parties. In such cases, the marriage is said to be annulled. Now, it must be taken into account that annulment and divorce are not the same even though the effect of both is similar, that is, separation of the spouses.

SECTION 13 OF THE HINDU MARRIAGE ACT

Under this Section, change of religion of one of the spouses becomes a ground for divorce as it is a matrimonial offence. However, the marriage would not stand dissolved simply because of the conversion. In Lily Thomas V. Union of India, it was held that automatic dissolution of marriage does not take place simply because of the conversion and it only serves as a ground for filing divorce.

SECTION 11 OF THE HINDU MARRIAGE ACT

Under Section 11, a marriage made after the commencement of this Act, which contravenes cause (i), (iv), and (v) of Section 5 of this Act, becomes void. If either party to the marriage has a living spouse at the time of marriage; or their relationship is prohibited unless otherwise permitted by custom and tradition; or the parties are sapindas of each other; then the marriage is declared as void. Any marriage which is not in consonance with the relevant clauses of Section 5 of the HMA is void ipso jure. It automatically becomes null and void. The parties are free to treat their marriage as void without expecting a formal declaration from the Court.

SECTION 12 OF THE HINDU MARRIAGE ACT

Section 12 of the Act deals with voidable marriages. The marriage can be declared void at the option of either of the parties to the marriage. A marriage can be declared null and void if any party to the marriage is not capable of consenting to it due to an unsound mind; or the marriage has not been consummated due to impotency; or either party suffers from mental disorders that make them unfit for marriage and the procreation of a child; or either party frequently experiences fits of insanity; or the consent to the marriage was obtained by coercion or fraud; or if the respondent was pregnant by some other person other than the petitioner at the time of marriage.

SPECIAL MARRIAGE ACT, 1954

Section 25 of the Special Marriage Act deals with voidable marriages. After the commencement of this Act, any marriage in which the respondent wishes to not consummate the marriage; or was pregnant by some person other than the petitioner; or the consent was obtained through fraud and misrepresentation; can be declared voidable and separation of the parties can take place.

PARSI MARRIAGE AND DIVORCE ACT, 1936

Section 30 in the Parsi Marriage and Divorce Act, 1936 lays down provisions for nullifying a marriage. According to this Section, if the consummation of marriage becomes impossible as a result of natural causes, it is deemed voidable at the option of one of the parties to the marriage.

INDIAN DIVORCE ACT, 1869

According to Section 18 of the Divorce Act, 1869, a petition to declare the marriage as null and void may be made by either the husband or wife to the High Court or the District Court. Additionally, Section 19 of this Act lays down the grounds for which a decree of nullity can be passed. A marriage can be annulled if parties to the marriage are bound by prohibited degrees of natural or legal consanguinity or affinity; or due to impotence or lunacy of the respondent at the time of marriage and legal proceeding; or either person was a lunatic at the time of marriage; or either party had a living spouse at the time of the second marriage.

OTHER GROUNDS FOR DIVORCE

● HINDU MARRIAGE ACT: There are other grounds upon which marriage may be dissolved upon the filing of a petition for divorce by one of the parties to the marriage. Dissolution of marriage can take place if there is sexual intercourse with another person after the solemnization of marriage; or treated the spouse with cruelty; or deserted the petitioner for a continuous period of not less than 2 years before the initiation of divorce proceedings; or changed their religion; or is suffering from an unsound mind or mental disorder; or is suffering from a communicable disease; or has renounced the world; or has not been heard as being alive for a period of seven or more years.

● SPECIAL MARRIAGE ACT, 1954: Section 27 of this Act provides grounds for divorce. As per this Section, a marriage can be dissolved if the respondent has performed sexual intercourse with another person; or has deserted the petitioner for a continuous period of not less than 2 years before the initiation of divorce proceedings; or has been sentenced to imprisonment for seven or more years; or has treated the petitioner with cruelty; or is of unsound mind; or has a venereal or communicable disease; or is suffering from leprosy; or has not been heard of being alive for a period of seven or more years.

● PARSI MARRIAGE AND DIVORCE ACT, 1936: Under Section 23 of this Act, a party to a marriage can file a suit against the other party if the defendant has converted to another religion; or the defendant has deserted the spouse for at least two years; or the defendant has committed bigamy or fornication or rape or any unnatural offence; or has caused grievous hurt to the plaintiff; or compelled the wife to enter ino prostitution; or infected her with a venereal disease; or has been sentenced to imprisonment of 7 years or more; or if the marriage has not been consummated due to wilful refusal of the defendant; or if the defendant is of unsound mind; or if the the defendant was pregnant at the time of marriage by a person other than the spouse.

● INDIAN DIVORCE (AMENDMENT) ACT, 2001: As per Section 10A (1), a petition for dissolving the marriage can be filed on the following grounds, that is, if both the parties are living separately for two or more years; or if they are unable to live together; or if they have mutually agreed to the dissolution of their marriage. Sub-Section 2 of this Section also mentions that if the petition is not withdrawn within six months of the date of institution, the Court is to pass the decree of dissolution of marriage.

IMPORTANT CASES

● V. SARAVANKUMAR V. M. PARAMESHWARI [C.M.A. (MD) No. 152/2012]: Held that on filing a petition for mutual consent, grant of divorce is not automatic.

● MITTAL RAMESH PANCHAL AND ANOTHER V. NIL [Civil Application No. 300/2013]: Held that there is no provision for automatic dissolution marriage under Hindu Law. The dissolution of marriage under custom is only one of the modes of dissolving marriage under law. Marriage, in general, can only be dissolved according to the provisions in the Hindu Marriage Act. No provision in Hindu Law gives either party the right to automatic divorce.

● C. ARUL MANIKANDAN V. T. ARCHANA [C.M.A. No. 1172/2017]: Held that the decree of divorce cannot be granted automatically. Even in divorce petitions filed under Section 13 B of the Hindu Marriage Act, the grant of divorce is not automatic even though both parties opted for divorce by mutual consent.

● SMT. PURNIMA GUPTA V. AJIT KUMAR GUPTA [First Appeal No. 403/2006]: In this case, the couple had applied for divorce within 2 to 3 years of marriage yet the suit remained pending for 10 to 12 years. It was held that not living together for quite a long period of time was not a valid ground for divorce given in Section 13 of the Hindu Marriage Act.

● MITEN V. UNION OF INDIA [W.P. No. 2412/2007]: Held that any provision in Hindu Law by itself was not operating as a dissolution of the marriage nor does it give the parties to the marriage the automatic right to divorce.

● MRS. NEENA BHATNAGAR V. MR. BHASKAR MANI [M.F.A. No. 6862/2009]: The Court gets to pass the decree of divorce six months after the date of filing of the petition. The parties may withdraw their petition in the meantime. However, if the petition is not withdrawn, the passing of the decree of divorce is not automatic.

● NITABEN V. DHIRENDRA CHANDRAKANT SHUKLA[First Appeal No. 278/1982]: Held that the conversion of a Hindu wife to Islam does not dissolve her marriage with her husband. In case this conversion takes place in a country where Islam is not there primary religion, after 3 months of the adoption of Islam by one of the spouses, the marriage is automatically dissolved.

● MADAN MOHAN BEHL V. VEENA RANI [C.R. No. 508/83]: Held that change of religion was a ground for divorce under Section 13 of the Hindu Marriage Act but it does not result in automatic dissolution of the marriage.

INSTANT DIVORCES IN ISLAM

In Islam, there are three types of divorces. They are Talaq-e-Ahsan, Talaq-e-Hasan and Talaq-e-Biddat. Talaq-e-Ahsan is the best method of dissolving a marriage in Islam. 'Ahsan' signifies best or generally legitimate. Under Talaq-e-Ahsan, the spouse should articulate the intention of separation in a single sentence when the wife is in a condition of 'virtue', that is, not discharging or menstruating. The spouse needs to observe a period of iddat, which is a time of waiting and restraint from sexual activities, after talaq is pronounced. The iddat period is a three month course for menstruating ladies and if there should be an occurrence of pregnancy in ladies, till the hour of delivery. If the couple resumes cohabitation or intimacy, within the period of iddat, the pronouncement of divorce is treated as having been revoked. Therefore, ‘talaq-e-ahsan’ is revocable. Conversely, if there is no resumption of cohabitation or intimacy, during the period of ‘iddat’, then the divorce becomes final and irrevocable, after the expiry of the iddat period.

Under Talaq-e-Hasan, which is a 'legitimate' approach to separation however not comparable to Ahsan, the spouse articulates talaq multiple times spread over three months.After the first declaration of separation, if there is resumption of dwelling together within a time period of one month, the pronouncement of separation is treated as having been denied. The qualification between 'talaq-e-ahsan' and 'talaq-e-hasan' is, that in the previous there is a single proclamation of 'talaq' followed by restraint during the time of 'iddat', though, in the latter there are three declarations of 'talaq', along with abstinence. Talaq-e-biddat, which was prohibited by the Supreme Court in August, is viewed as unfortunate and 'corrupt' in Islam, yet thought to be significant under Sharia law. This sort of instant separation isn't the standard inside Islam.

CONCLUSION

The Supreme Court as of late consented to investigate two public interest litigations that are related to the lawful reasons for separation, alimony and divorce settlement. The petitions plead that these grounds be made uniform across all religions. Personal laws generally oversee separation between couples in India. These include Hindu, Muslim, Parsi and Christian laws. The Special Marriage Act, 1956, oversees divorces in interfaith relationships. Personal laws accommodate two kinds of separation: separate by mutual consent, and one-sided separation. Separation by mutual consent is likewise the least difficult way of ending a marriage. In the event of a contested divorce, notwithstanding, all laws list certain grounds. The most common grounds include adultery, desertion, insanity, conversion, renunciation, cruelty, venereal disease, and presumption of death. A person can opt for a divorce if they are able to prove to the court that their spouse was at fault in any of these ways. This basically proves that there is no scope of an ‘automatic divorce’. A divorce petition has to be filed in a Court. One cannot assume that a divorce is automatically granted to him or her without an application for the same.