Introduction:
According to the Canon law, the marriage is a conjugal union of a man and woman which arises only from the free consent of each spouse. It’s in human nature to procure care and attention. One must need someone’s love, care and affection also want to give it back. In ancient India, marriages were believed to be like a bridge between two families and individuals who completes each other by taking vows and performing ceremonies according to their customs and religions. Marriages or often say weddings are believed to be very auspicious days of an individual’s life. India being diverse in its culture, religions, festivals follow different and various ways to marry in different religions.
According to Hindu Marriage
Hinduism is a vast culture. It is difficult to explain the word “Hindu”. The religion is very diverse and multifaceted. The Hindus conceived for their marriages as a holy and a sacramental tie and not a contractual union. For Hindu, marriage is ordained as necessary sacrament so that the son could give rise to their future generation or in layman language to continue their “vansh”. The Shastrakars believed that once the unmarried women given in a marriage should preserve her chastity as much after as before her husband’s death.
Under Hindu custom, marriage is considered as sacred and they have thus relation by blessings of God. They believed that ‘jodis’ are made in heaven. Hindu believed that separation of couples is an offence and thus the question of living separately did not arise in olden days. Once married, then it will last until the end of life.
Among Hindus, marriage is a necessary ritual to do. It is believed that a man is incomplete without a woman or a woman completes a man. A wife is the source of purushastra, not only dharma, artha, kama but also for moksha. Wives are given the supreme importance in their man’s life throughout ups and downs. Without a wife, a husband could not even complete many of the tasks or sacrifices of his life. Hindu weddings not only unite the souls of two people but also connect them with emotional, mental and physical commitments. The most core essential of a Hindu marriage is nevertheless –panigrahan, saptpadi, kanyadan in which it is believed that giving away a daughter, along with holding hands near the fire to signify union and taking 7 steps together. According to Hindus, marriage is not dissolvable. Thus Divorce was an out of question. But later due to coercion in marriage lead do divorces.[1]
Condition for Hindu marriage
According to section5 of Hindu marriage, a marriage may be solemnized between any two Hindus, if the
(i) Neither party has a spouse living at the time of marriage;
(ii) At the time of marriage neither party
(a) Is capable of giving a valid consent to it in the consequences of unsound mind;
(b) Though capable of giving valid consent, has been suffering from mental disorder or such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) Has been subject to recurrent attacks of insanity
(iii) The bridegroom has completed the age of 21 and the bride, the age of 18 at the time of marriage;
(iv) The parties are not within the degrees of prohibited relationships unless the customs or usage governing each of them permits marriage between the two.[2]
Grounds of Divorce as per laws
Divorce means to end the marriage by the dissolution of marital relations. The parties will no longer be husband and wife. Divorce was not an option neither opted in older times. They have to accept the flaws and to live with it. The Hindu marriage act, 1955 originally based divorce on the faulty theory and enshrined a nice fault found in section 13(1) on which either husband or wife could sue for divorce and 2 fault grounds in section 13(2) on which wife could sue for divorce.
In 1964, by an amendment, clause(viii) and (ix) of section 13(1) were recast in the form of 13(1,A) thus recognizing two grounds of breakdown of a marriage. The 1976 amendment act inserted two additional fault grounds of divorce for wife and a new section 13 B(divorce by mutual consent).
Grounds of Divorce could be:
- Adultery
It might be legal in other countries but the fact is it is illegal in India under Hindu marriage act. Adultery is considered to be an essential element for seeking a divorce. It means having consensual and voluntary intercourse between a person who is married and another person of the opposite sex. Even in bigamy if any of the partners have intercourse with second wife or husband considered to becomes under adultery.
Case MALLIKA V. RAJENDRAN
- Desertion
It means the abandonment of one partner to the other one without any reasonable justification or without his/her consent. Desertion is not a ground of divorce but a wife can sue for divorce if the husband fails to perform without reasonable cause his marital obligations for the period of time.
In the case of LACHHMAN V. MEENA, was a husband’s petition for judicial separation on the ground of wife’s desertion. In this case, the couple was not able to adjust in the Hindu joint family.
- Cruelty
It includes mental and physical torture. Physical cruelty means that one spouse tortures the other one by damaging their body, to injure them. Mental cruelty can be defined as the lack of kindness towards another partner.
There are many more grounds on which a person can claim or seek divorce such as insanity, leprosy, venereal disease, etc.[4]
Maintenance Under Hindu Law/ Maintenance of Wife
In family law, the maintenance is considered as the support or alimony from the partner after divorce on valid grounds until the other partner gets married to someone. Or if the husband is ready to cohabit with his wife then, in that case, the right to get maintenance is defeated. Even if the wife is not seeking for divorce or any restitution or any other matrimonial relief she can claim maintenance from her husband. The adoption and maintenance act of 1956 may predict certain situations in which it becomes impossible for to continue to reside or to cohabit with the husband and she might not want to break the matrimonial relations with her husband for the sake of her children or society. Under s24 of Hindu marriage, the act says that anyone from the husband and wife can claim for maintenance meanwhile. The basis for the claim of maintenance should be that either of them should be dependent on the other and have no source of income. The maintenance is payable from the date of presentation of the victim till the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the needs of the victim. Maintenance as “provision for food, clothing, residence, education, and medical attendance and treatment” are essentials which are necessary to provide.
Grounds for Award of Maintenance
Only upon proving that at least one of the grounds mentioned under the Act, exists in the favour of the wife, maintenance is granted. These grounds are as follows:-
- The husband has desolate her or has neglected her purposely;
- The husband has behaved with her with cruelty;
- The husband is suffering from a poisonous form of leprosy/venereal diseases or any other infectious disease like HIV aids etc;
- The husband has any other wife living or done bigamy;
- The husband keeps the mistress in the same house as the wife resides or he habitually resides with the prostitute elsewhere;
- he husband has ceased to a Hindu by conversion to any other religion;
- Any other reason justifying her separate living; [5]
- A wife can claim maintenance under Domestic Violence. WIFE can claim monetary relief under section 20 of the Domestic Violence act under CrPC s125. An amount of 16500 rupees was allotted by the trial court to be paid by the husband to the wife as maintenance in 2003.
Muslim Marriage Act
Marriage: Muslims from the starting they have considered their marriage as a contract.
Muslim marriages are considered to be or their marriages have been defined as a contract to legalize sexual intercourse and procreation of children. It’s not a sacrament but a contract and done with a certain recitation of QURAN. A Muslim marriage is a polygamous marriage. This religion allows a man to marry to four wives. Muslim laws provide simple laws for marriage. It is necessary to give a proposal to the opposite party for acceptance to enter into the contract. If the proposal is made in one meeting and the acceptance is made in a second meeting it would not be a valid contract marriage. There should be the presence of two major male witnesses or one major male witness or two major female witnesses to agree with the acceptance of the proposal. The Shia law does not require the presence of any witness for the acceptance of the contract.
Muslim wedding needs or requires proposal- “ilab” from one party and acceptance “qubul” from the other party. This should be done within a sitting or meeting. Both the parties need to be legal in terms of the law that means they must be above 18 years of age and sane or with the fit mind. The girl should not belong to the lower class. The consent of both the parties should be free and free from any undue influence, coercion, mistake, fraud etc.
Divorce Under Muslim Law
The breakdown of marriage can be done in 2 ways, that are EXTRA JUDICIAL AND JUDICIAL DIVORCE.
1. Dissolution of Marriage by divorce if the marriage was valid and consummated;
The duration of Iddat is three month.
The marriage should be dissolved through ila, Zihar or under the Dissolution of Muslim Marriage Act, 1939.
If the woman is carrying a baby, the period of Iddat extends until the delivery or abortion of the baby. If there was no sexual intercourse between the husband and the wife, the woman is not required to observe Iddat.
2. Divorce of marriage by the death of the husband,
If the marriage was validated, the period of Iddat extends up to 4 months & 10 days despite the fact whether the marriage was consummated or not.
3. Death of husband during divorce
If the husband dies during the time of divorce, the wife has to start a new Iddat of 4 months & 10 days from the date of death of her husband.
4. Commencement of Iddat
The period of Iddat starts from the date of divorce or death and not from the date of the wife receiving notice of the same. Thus, if the wife receives the notice of such even after the specified period of Iddat has expired.
Under Shia law, Iddat need not be observed if the wife is past the childbearing age or if she has not even reached puberty. Valid Retirement refers to when a couple spends time together in private and there is no moral, social or legal restriction in their intercourse.
According to Sunni law, a valid retirement raises the presumption of the consummation of the marriage. Shia law does not recognise the concept of valid retirement.
Maintenance
A divorced Muslim woman is entitled to fair provision and maintenance from her husband, and it should be paid within the period of iddah.
The wife has a right to get maintenance from her husband, neglecting the fact that she has a means for survival. Also, the marriage contract may specify the amount of special allowances by the husband, and in the presence of these, it becomes the duty of the former husband to pay these to the wife. Such allowances are called kharcha-e-pandan, guzara, mewa khore, etc. This can be claimed as a right from the petitioner wife.
The Mohd. Ahmad Khan vs. Shah Bano Begum & Ors. (Commonly known as the Shah Bano Case )
In this case, there was a man named Mohd. Ahmad who was married to Shah Bano in 1932 and have 5 children, two daughters and three sons. In 1978 Shah Bano filed a case against her husband seeking maintenance after talaq given by him. Her husband asked her to go and find a new residence three years before, after a prolonged period of her living with Khan and his second wife. His husband was a lawyer and claimed that under Muslim law maintenance act and Muslim personal law (Shariat) that the former husband would be liable to pay maintenance only till the time till iddat that is until she would marry to someone else or until the death of the husband. The period of iddat if nearly three months, if a woman is pregnant the time period extends till the birth of a child.
After the deep and detailed discussion over CrPC 1973 would apply to each and every citizen of India despite the fact that a person belongs to any religion. Finally, the Supreme Court delivered a judgment favouring maintenance given to an aggrieved divorced non-Muslim woman.
Later she withdrew the maintenance claim she filed for.
Important fact of Section 125 of code of criminal procedure, 1973
The Code of Criminal Procedure under section 125, stated that the maintenance of wife/wives, children, parents.
1] If any person having sufficient means and still neglects to maintain;
(a) His former wife who is unable to maintain herself,
(b) His legitimate or illegitimate minor child,
if married or not,
unable to maintain themselves, or
(c) his legitimate or illegitimate child (not being a married daughter) who is a major, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
A Magistrate, upon proof of such refusal, order such person to make a monthly allowance for the maintenance of his former wife or child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause
(b) to make such allowance, until she attains her majority if the Magistrate is satisfied that the husband of such minor female child if married, is not possessed of sufficient means.
Conclusion
Thus, relationships are like a rose with thorns. It will only continue to give joy only if it has both. Everyone has to face good and difficult times in their relationships but if there will only be thorns in it would be better to throw it away. Similarly, if two of them only have difficulties in a relationship they should end it better to suffer. Every person in this entire universe has a right to live their life with all the happiness and their own choices. One should live their life with whole freedom and self-made decisions. Happy the person is, happier the life would be.
References:
[1] DIWAN & DIWAN ,2009 EDITION
[2] MARRIAGE AND DIVORCE LAWS, BAREACT,2019
[3]Grounds for Divorce under The Hindu Marriage Act, 1955 https://blog.ipleaders.in/grounds-divorce-the-hindu-marriage-act/
[4]MAINTENANCE UNDER HINDU LAW https://www.thedivorcelawfirm.in/pdf/Maintenance-for-wife-and-children.pdf
[5] DIWAN & DIWAN,2009 EDITION
[6] MAINTENANCE UNDER MUSLIM LAW https://www.thedivorcelawfirm.in/pdf/Maintenance-for-wife-and-children.pdf
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