Shree.
( Advocate.)
01 April 2008
Under the Hindu Marriage Act, 1955 the spouses, who desire a divorce by mutual consent, have to present a joint petition in the court which has an appropriate jurisdiction. The parties, presenting such a petition, must claim with proof that:
they have been living separately for a period of one year;
they have not been able to live together;
they have mutually agreed that marriages should be dissolved.
Once the petition for Divorce by mutual consent is filed, the Court gives the parties 6 months' times to reconsider. The Court may pass a decree of divorce after a period of 6 months from the date of presentation of the petition and not later than 18 months after the date of presentation, incase the petition is not withdrawn.
IN muslim law:
He may pronounce talaq orally, as long as the words used by him are unambiguous and express his definite intention. Such talaq takes effect immediately. He can also write it out (talaqnama) in which he expresses his intention or records the oral talaq, which need not necessarily be registered. The talaqnama also takes effect immediately.
However, if the man is a Shia, he must pronounce it orally, unless he is physically incapable of doing so. He must also keep in mind that he has to pronounce it in Arabic.
Delegation of power to divorce (tufweez): Ordinarily the husband alone can give talaq to his wife. However, a husband may delegate the power to give talaq to the wife or even a third person. This 'delegated power' is operative only on the existence of certain circumstances which must be reasonable and consistent with the principles of Muslim law. If the circumstances that are mentioned exist, the wife is at liberty to divorce her husband. Such authority, if delegated for a temporary period, is considered irrevocable. On the other hand, if it is delegated permanently, it is revocable.
Khula and Mubarat: A Khula is a form of divorce with the consent and at the initiative of the wife. The wife gives or agrees to give a consideration to the husband for her release from the marriage tie. E.g. relieving the husband from payment of mahr to the wife may be a consideration. However, non-payment of consideration will not invalidate such a divorce.
When both husband and wife want to end the marriage they can do so by mutual consent. Such a transaction is known as mubarat.
Delegation of power to divorce (tufweez): Ordinarily the husband alone can give talaq to his wife. However, a husband may delegate the power to give talaq to the wife or even a third person. This 'delegated power' is operative only on the existence of certain circumstances which must be reasonable and consistent with the principles of Muslim law. If the circumstances that are mentioned exist, the wife is at liberty to divorce her husband. Such authority, if delegated for a temporary period, is considered irrevocable. On the other hand, if it is delegated permanently, it is revocable.
