(..7 A..)

MATRIMONIAL REMEDIES[1].

(Divorce)[2]

QUESTION BANK.

1. 1. Explain in detail divorce by mutual consent.

Q.2. Discuss the modes of customary dissolution of marriage.

Q.3. Discuss modes of ‘talak’ under Muslim Law.

Q.4. What are the grounds of divorce provided by law?

Q.5. What is ‘divorce by mutual consent’? State the procedure.

SHORT NOTES.

1. Divorce by mutual consent.
2. Divorce by wife.
3. Option of puberty.
4. Illa and Zihar.
5. Cruelty.

SYNOPSIS.

1. INTRODUCTION.
2. DIVORCE-

 III      Customary dissolution of marriage under Muslim Law. (Non-judicial

      dissolution of marriage).

Classification of divorce-

1. A) Divorce by Husband (Unilateral divorce)-

1) Talak-

      Modes of Talak-

1. a) Talak-ul-Sunnat-
2. i) Ahasan (most approved mode of talak)-
3. ii) Hasan (Good mode of Talak).-
4. b) Talak-ul-Biddat (Disapproved mode of talak).

2) Illa (Vow of Continence)-

3) Zihar-

1. B) Divorce by wife – Talak-E- Tafweez-
2. C) Divorce by mutual consent-
3. Khula (Divorce at the request of wife).

2) Mubarat (Divorce by mutual agreement or mutual release)-

1. Customary Divorce under Hindu Law.
2. Judicial Divorce.

(1). Before Passing of Dissolution of Muslim Marriage Act 1939.

1. a) Impotency of the husband.
2. b) Lian (False charge of adultery)
3. c) Fask.
4. d) Option of puberty (Khyr-ul-bulugh).

(2). After Passing of Dissolution of Muslim Marriage Act 1939.

1. Absence of Husband. .
2. Failure to maintain.
3. Imprisonment of husband.
4. Failure to perform marital obligation.
5. Impotency of Husband.
6. Insanity, leprosy or venereal disease.
7. Option of puberty (discussed above).
8. Cruelty of husband.
9. Grounds recognised by Muslim Law.

Note-

1. Judicial resolution of marital conflicts– (Grounds of judicial divorce)-
2. Adultery.
3. Desertion.
4. Cruelty.
5. Insanity.
6. Leprosy.
7. Venereal Diseases.
8. Apostasy.
9. Presumption of death.
10. Seven Years Imprisonment.
11. Renunciation of world.
12. Rape, Sodomy and Bestiality.
13. Divorce by mutual consent.
14. a) Divorce by Mutual consent under- the Hindu Marriage Act, Special Marriage Act, Parsi Marriage and Divorce Act-
15. b) Divorce by Mutual consent under- the Muslim Law.
16. Khula (Divorce at the request of wife).
17. Mubarat (Divorce by mutual agreement or mutual release)-

I.        INTRODUCTION.

                     Marital problems are found to be in every society. Therefore, societies have found some remedies to solve these problems through their customs. Modern laws have also made a considerable contribution to resolving these matrimonial crises. The law applies different remedies for different family problems to resolve them. Thus,-

1. a) Dissolution of marriage (divorce)[3]
2. b) Nullity of marriage[4].
3. c) Restitution of conjugal rights[5], and
4. d) Judicial separation of marital life[6]are some of the remedies adopted by the courts in modern times. These remedies are provided if a family dispute is of a particular type (i.e. cruelty, desertion, adultery, etc.). Therefore, we will discuss these remedies and the laws (Personal or general) that provide them.

II.      DIVORCE:-

                    Divorce is traditionally recognised under Muslim Law. However, even in some Castes of Hindus, customary[7] divorce was recognised. Therefore, we will discuss the customary form of divorce (i.e., non-judicial divorce) and the divorce obtained through the courts (i.e., under different enactments).

III. Customary dissolution of marriage under Muslim Law. (Non-judicial dissolution of marriage):-

                    Islam is the first religion which has expressly recognised the termination of a marriage by way of divorce. The provisions of divorce in other religions are of recent origin. However, the Prophet Mohammad recognised frequent divorce as the most hateful.

Classification of Divorce:-

                    Under Muslim Law, marriage is dissolved either-  (i) by the death of the husband or wife or (ii) by divorce. After the death of either party, the marriage gets automatically dissolved, and the surviving spouse gets the right of re-marriage. However, in this topic, we are concerned with the dissolution of marriage by divorce and not by death.

Chart Showing Dissolution of Muslim Marriage by Divorce-

By Husband (i.e. Unilateral Divorce)[8]	By Wife	By Mutual Consent	By Judicial Decree under Dissolution of Muslim Marriage Act, 1939.
1) Talak. a)Talak-ul-Sunnat. i)Talak-a-Hasan ii) Talak- Hasan. b) Talak-ul-Biddat. 2) Illa. 3) Zihar.	Talak-E-Tafwiz	1) Khula. 2) Mubarat	1) Lian. 2) Fask.

A) Divorce by Husband (Unilateral Divorce):-

                    A husband can unilaterally take divorce from his wife in the following ways-

1) Talak:-

                    Talak is the exercise of the absolute power of pronouncing unilateral[9] divorce on his wife by the husband. The concept of Talak puts the Mohammedan husband in a dominating position over his wife for two reasons-

Firstly– he can divorce his wife at his own pleasure, with or without cause.

Secondly– he can have as many as four wives at a time.

Capacity for talak:-

                    Under Shia Law, every Muslim husband of (i) sound mind and (ii) who has attained the age of puberty is competent to pronounce talak, provided talak is not pronounced in any form of compulsion or duress[10] etc., and should be pronounced orally in the presence of at least two witnesses unless the husband cannot speak. But under the Sunni Law talak pronounced under compulsion or intoxication or fraud is also effective.

                    Talak may be effected orally or in a written document called ‘talak-nama’.

In D. Pathan v. R. Pathan

[2002 BLR 50].

Held– It is not necessary for the validity of talak by the husband that the wife should be present. The husband can even give talak when he is on death bed so as to exclude the wife from inheritance in his property.

Modes of Talak[11]:-

                    A talak may be effected in any of the following modes-

a) Talak-ul-Sunnat:-

                    It is a talak, which is effected in accordance with the traditions of the Prophet. It is further divided into-

i) Ahasan (most approved mode of talak):-

                    Talak pronounced in Ahasan form, is the very best kind of talak. This Talak has the following requirements-

1. a) the husband should pronounce ‘talak’ in a single sentence, e.g. “I have divorced thee (you)”.
2. b) the pronouncement of divorce should be in the state of purity (i.e. Tuhar. Tuhar is a period when a woman is free from her menstrual course).
3. c) he should abstain from sexual intercourse for the period of iddat.

                    The pronouncement made in the Ahasan form is revocable before the completion of iddat. After the expiration of iddat, the divorce becomes irrevocable.

ii) Hasan (Good mode of Talak):-

                    Requirements of this talak are-

1. a) there should be three successive pronouncements[12] of the talak (Such as “ I have divorced thee (you)” at each period of Tuhar. First pronouncement at the first tuhar, second pronouncement at the second tuhar, and third at the third tuhar.
2. b) In the case of a non-menstruating wife, the pronouncement should be made at successive intervals of 30 days.
3. c) no sexual intercourse is to be made during these three periods of tuhar.

                    This divorce becomes irrevocable after the last pronouncement.

b) Talak-ul-Biddat (Disapproved mode of talak):-

                    It is a sinful form of divorce. It is recognised only in Sunni Law. Requirements of this form of talak are-

1. i) Three pronouncements made during a single Tuhar, either in one sentence, e.g. ‘I divorce thee thrice’, or in separate sentences, e.g. ‘I divorce thee, I divorce thee, I divorce thee’.
2. ii) A single pronouncement made during a Tuhar clearly indicating an intention irrevocable to dissolve the marriage, e.g. “I divorce thee irrevocably”.

                    It becomes irrevocable immediately when it is pronounced irrespective of iddat.

2) Illa (Vow of Continence):-

                    Where a husband who has attained majority and is of a sound mind swears by God that he will not have sexual intercourse with his wife and leaves the wife to observe iddat, he is said to make illa.

                    Where the husband, having made illa, abstains from intercourse with his wife for four months, the marriage is dissolved with the same legal results as if the husband had pronounced irrevocable divorce.

3) Zihar:-

                    If the husband (who is sane and adult) compares his wife to his mother or any other female within a prohibited degree, the wife has the right to refuse herself to him until he has performed penance[13]. In default of penance, the wife can apply for a judicial divorce.

B) Divorce by wife – Talak-E- Tafweez:-

                    A husband may either give talak to his wife or delegate this power of giving talak to a third party or even to his wife. Such a delegation of power is called ‘tafweez’. An agreement made either before or after marriage providing that the wife would be at liberty to divorce herself from her husband under certain specified conditions, such as in case the husband marries a second wife or fails to maintain her for a specified period, is valid. This talak is therefore called ‘contingent talak’. But such delegation of power of divorce does not deprive the husband of pronouncing talak.

C) Divorce by mutual consent[14]:-

1. Khula (Divorce at the request of wife):-

                    Marriage may be dissolved with the consent and at the wife’s request if she gives or agrees to give consideration to the husband for her release from the marriage tie. Such dissolution of marriage is called Khula (i.e. to separate). Khula becomes irrevocable when the husband accepts the proposal made by the wife of separation.

Essentials of Khula:-

                    Following are some of the requirements of Khula-

1. i) There should be an offer from the wife.
2. ii) Her offer should be accepted with consideration for the release.

iii) The offer must be accepted by the husband.

2) Mubarat (Divorce by mutual agreement or mutual release):-

                    Mubarat signifies a mutual discharge[15] from the marriage claims. In mubarat, the aversion is mutual, and both sides desire separation. Hence, it involves an element of mutual consent. In this form of divorce, the proposal may be made either by the wife or husband. When the proposal is accepted, divorce becomes irrevocable, and iddat is necessary.

IV.       Customary Divorce under Hindu Law[16]:-

                    The concept of divorce is alien to Hindu Law. But, in many castes of Hindus, we may find a customary form of divorce. This customary form of divorce is even recognised by S. 29 of the Hindu Marriage Act, 1955. Thus, the customary form of divorce is in addition to that provided under the Hindu Marriage Act. However, we may not find any universal rule for divorce among different castes. Under customary law, divorce may be obtained through the ‘gram panchayat’, ‘caste tribunal’ or ‘caste panchayat’ by way of a private act of parties, orally or in writing, such as ‘tyaga-patra’ or ‘farkat-nama’. Customary divorce is given on the grounds of renunciation, abandonment or repudiation, immorality, unchastity, adultery or conversion[17]. In some cases based on matriarchal systems, such as Marumakkattayam or Aliyasantana, customs regarding the dissolution of marriage are prevalent. These have been given the shape of the law and kept outside of the interference by the Hindu Marriage Act.

V.       Judicial Divorce[18]:-

(1). Before the Passing of the Dissolution of Muslim Marriage Act 1939.

                    Before the Passing of the Dissolution of Muslim Marriage Act 1939 (hereinafter called ‘the Act’), the wife could apply to a court for dissolution of marriage on the following grounds-

a) Impotency of the husband[19]:-

b) Lian  (False charge of adultery)[20]:-

                    Where a husband charges his wife with adultery, and the charge is false, the wife is entitled to sue for and obtain a divorce.

In Zafar Husan V.  Ummat,-ur-Rahman[21]

Facts- In this case, the wife of the plaintiff alleged that her husband had stated before several persons that she had illicit intercourse with her brother and imputed fornication to her. It was argued on behalf of the husband that the law of lian had no place in Mohammedan Law and, therefore, should not be considered. This argument was rejected.

Held– In this case, the Allahabad High Court, for the first time, recognised the doctrine of Lian. It was held that a Muslim wife is entitled to bring a suit for divorce against her husband and obtain a decree on the ground that the latter falsely charged her with adultery.

c) Fask[22]:-

                    Fask means the cancellation, abolition, or annulment of marriage. A wife can approach the Quazi to dissolve her marriage if the husband does not give her proper treatment. If, after examining both parties, Quazi comes to the conclusion that both parties cannot live as a husband and wife, he would terminate the marriage. Muslim wives could apply under this ground for the dissolution of their marriage before coming into force the Act.

d) Option of puberty (Khyr-ul-bulugh)[23] :-

                    ‘Option of puberty is a right of a minor married boy or girl (whose marriage has been contracted through a guardian), to repudiate[24] or confirm the marriage on attaining puberty[25]. The Dissolution of Muslim Marriage Act of 1939 gives this right to minor women. Before passing this Act, the ‘option of puberty’ was available to her, but (along with the following grounds) she had to prove that her father or guardian had acted negligently or wickedly. But after the passing of the Act, she has to prove-

1. The marriage took place before she attained fifteen years.
2. She repudiated the marriage before attaining the age of 18 years. And
3. The marriage has not been consumed. In other words, no sexual intercourse has taken place between them.

                        To be valid, a court should confirm such repudiation. A male also has the ‘right of puberty’. He can ratify marriage or repudiate it by express declaration. By paying dower or cohabitation, he can ratify marriage.

(2). After the Passing of the Dissolution of Muslim Marriage Act 1939.

          The Act has provided the following grounds for divorce on which Muslim women can pray for the dissolution of their marriage. Viz.

(i). Absence of Husband:-

          If the husband’s whereabouts are unknown for four years, a woman married under Muslim Law is entitled to obtain a decree for the dissolution of her marriage.

(ii). Failure to maintain:-

          If the husband has neglected or has failed to provide for her maintenance for a period of two years, a married Muslim Woman can obtain a decree for a divorce.

(iii). Imprisonment of husband:-

          If the husband has been sentenced to imprisonment for a period of seven years or upward, the wife is entitled to a decree of a court dissolving her marriage.

(iv). Failure to perform marital obligation[26]:-

                    If the husband has failed to perform his marital obligations without reasonable cause for three years, the wife can get her marriage dissolved by decree.

5. Impotency of Husband[27]:-

          If the husband was impotent at the time of marriage and continues to be so, the wife is entitled to judicial divorce for the dissolution of her marriage.

6. Insanity, leprosy or venereal disease[28]:-

          If the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease, the wife may claim judicial divorce.

7. Option of puberty (discussed above):-

8. Cruelty by the husband[29]:-

          Judicial divorce may also be claimed by a Muslim wife if the husband treats her with cruelty.

In Muhammad Latheef V. Nishath

AIR 2004 Ker. 22.

Facts- In this case, a wife has filed a petition for divorce on the grounds of mental cruelty by her husband. During the subsistence of the marriage, he had performed another marriage. He had a child with his second wife. According to the husband, he can have as many as four wives since he is a Muslim. He was willing to cohabit with his first wife while continuing his second marriage.

Held- Kerala High Court ordered divorce on the ground of cruelty to wife. The court further observed that “though bigamy is permitted under Muslim Law under certain circumstances, he cannot justify his second marriage saying that he can have more than one wife and that he will treat both wives equally.

9. Grounds recognised by Muslim Law:-

                    The wife is also entitled to a decree dissolving her marriage on any ground recognised by Muslim Law as divorce. This clause covers the divorce of Ila, Zihar, Khula, Mubarat, etc.

Notes-

1.       Judicial resolution of marital conflicts- (Grounds of judicial divorce):-

                    Above are the grounds of judicial divorce under Muslim law, but different laws have recently been passed to provide different matrimonial remedies, such as divorce, Judicial separation, restitution of conjugal rights, nullity of marriage, etc., to the Hindus, Christians, Parsis, Jews etc. The Hindu Marriage Act, 1955; The Special Marriage Act, 1954; and Dissolution of Muslim Marriage Act, 1939. Parsi Marriage and Divorce Act of 1936 and the Indian Divorce Act of 1869 are some of the laws providing different types of matrimonial relief. These Acts provide remedies on different types of fault grounds such as adultery, apostasy, bigamy, bigamy with adultery, marriage with another woman, desertion, etc. Thus, these are the grounds recognised by the different laws applicable to Hindus, Muslims, Christians, Jews and Parsis. We will discuss these grounds and for what relief they are available-

1) Adultery[30]:-

          Adultery means “consensual[31] sexual intercourse between a married person and a person (whether married or unmarried) of the opposite sex not being the other’s spouse”. In other words, the extra-marital relation[32] of one of the spouses is guilty of adultery.

Adultery is grounds for divorce under all personal laws.                              

In Subramma v. Saraswati[33]

The court observed that -“if an unrelated person is found along with a young wife, after midnight in her bedroom in actual physical contact unless there is some explanation forthcoming for that, which is compatible with an innocent interpretation, the inference that a court of law can draw must be that two were committing an act of adultery together”.

                    The burden of proof that the other spouse has committed adultery lies on him, who alleges so. He has to prove the adultery of others beyond reasonable doubt.

2. Desertion[34]:-

                    Desertion is based on the rejection or repudiation by one party of all the obligations of marriage. Special Marriage Act defines “desertion” as “desertion of the petitioner by the other party to the marriage without any reasonable cause and the consent or against the wishes of such party, and includes willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions”. Traditionally ‘desertion’ means ‘abandonment of the one spouse by the other without any reasonable cause and the consent of the other”.

In Dharm Pal V. Pushpa Devi.

(AIR 2006 P & H 59)

Facts- The husband had filed suit for divorce on the grounds of desertion for 20 years and cruelty by the wife.

Held- Complete abandonment of marriage by wife entitles husband to divorce.

                    Under most personal laws, desertion is recognised as the ground of divorce and judicial separation. Under the Hindu Marriage Act, the Special Marriage Act, and Parsi Marriage and Divorce Act, desertion as a ground for divorce and separation should not be less than two years continuously. But under the Indian Divorce Act, ‘desertion’ simpliciter for two years is not a ground for divorce unless it couples with adultery. In other words, a husband’s desertion continuously for two years coupled with adultery is to be proved to claim divorce under the Indian Divorce Act. Similarly, ‘desertion’ is not a ground of divorce available to the wife under Muslim Law. Still, she can apply for a divorce if ‘the husband has failed to perform marital obligations for more than three years.

                    In desertion, actual abandonment of the marital home is essential. Mere intention to abandon without abandoning actually does not constitute desertion.

                    However, the desertion may come to an end in the following cases- viz-

(i) by the resumption of cohabitation, (ii) when separation is with consent, (iii) by an offer to return by deserting spouse, (iv) by supervening event (i.e. staying separately if consented by the other spouse).

                    The burden of proving ‘desertion’ is on the petitioner, who alleges desertion of the other spouse.

3. Cruelty:-

          According to Muslim Marriage Act, 1939, a husband treats a wife cruelly, which means-

(a)      habitually assaults her or makes her life miserable by cruelty of conduct even if
such conduct does not amount to physical ill-treatment, or

(b)      associates with women of evil repute or leads an infamous life[35], or

(c)      attempts to force her to lead an immoral life[36], or

(d)      disposes of her property or prevents her from exercising her legal right over it, or

(e)       obstructs her in observance of her religious profession or practice, or

(f)       He will not treat her equitably if he has more wives than one.

                    Under the Hindu Marriage Act, Special Marriage Act, and Parsi Marriage and Divorce Act, cruelty is a ground for judicial separation and divorce. However, under the Indian Divorce Act, cruelty is only a ground for judicial separation. Cruelty simpliciter is not grounds for divorce unless it is coupled with the husband’s adultery.

                    Cruelty is a ground available to a wife and not to a husband to get judicial separation or divorce. Such cruelty may be physical or mental.

Instances of Cruelty:-

1. False accusation of adultery or unchastity by husband[37].
2. Demand for dowry.
3. Persistent refusal to have marital intercourse[38].
4. Willful refusal of sexual intercourse and impotency[39].
5. Causing injury to private parts.
6. Excessive Drunkness.
7. False criminal charge.

          Prosecution of a spouse by the other of a false criminal charge amounts to cruelty[40].

8. Refusal to have children.
9. Birth of an illegitimate child[41].
10. Threat to commit suicide[42].

          When one spouse threatens another of committing cruelty in order to coerce that other spouse, it amounts to cruelty.

11. Verbal abuse and insults using filthy and abusive language[43].
12. Husband residing with the third woman.

          Cruelty is to be proved by the petitioner. But it is not necessary for the cruelty to be proved beyond reasonable doubt. It may be proved by showing the balance of probability.

4. Insanity:-

          Under the Indian Divorce Act, insanity is neither grounds for divorce nor judicial separation. But under the Muslim Marriage Act, a husband’s two years of insanity is grounds for a wife’s seeking divorce. However, under the Hindu Marriage Act, the Special Marriage Act, and the Parsi Marriage and Divorce Act, insanity is added as a ground for judicial separation and divorce. But the ‘insanity’ must be pleaded as a ground should be of a particular type, i.e. he should be incurably unsound.

5. Leprosy[44]:-

                    Under the Hindu Marriage Act, Special Marriage Act, and Dissolution of Muslim Marriage Act, leprosy can be pleaded as the ground for judicial separation or divorce. However, under the Parsi Marriage and Divorce Act and the Indian Divorce Act, leprosy is neither grounds for divorce nor judicial separation. No period for leprosy to be grounds for divorce is mentioned, but under the Hindu Marriage Act, leprosy should be incurable and virulent.

6. Venereal Diseases[45]:-

                    In most of the matrimonial laws in India, we find the grounds that ‘venereal disease’ is recognised both for divorce and judicial separation. However, under the Indian Divorce Act, venereal disease is not a ground for judicial separation or divorce. Under the Hindu Marriage Act and the Special Marriage Act, ‘venereal disease’ to be grounds for divorce or judicial separation should be ‘communicable’. Whereas, under the Dissolution of Muslim Marriage Act, the disease should be ‘virulent’.

In Mr X V. Hospital[46]

The court granted divorce to the wife when the husband was found to have been infected by HIV.

7. Apostasy / Conversion:-

                    Apostasy or conversion is grounds for divorce and judicial separation in most personal laws in India. However, it is not ground under the Special Marriage Act because the Act was made to protect inter-caste marriages. Under the Indian Divorce Act, conversion is not grounds for divorce unless it is coupled with bigamy.

8. Presumption of death[47]:-

                    According to all personal laws, it is a settled rule that death dissolves the marriage. However, in some cases, there may not be positive proof showing when the death has happened. In such a case, death is presumed, and the spouse can get himself released from the marital bond through court. Under the Hindu Marriage Act and the Special Marriage Act, the person is presumed to have died if he has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it had that person been alive. However, under the Dissolution of Muslim Marriage Act, the presumption of death is after four years.

9. Seven Years Imprisonment:-

                    Seven or more years’ imprisonment is a ground for divorce and judicial separation under the Special Marriage Act, Dissolution of Muslim Marriage Act, and the Parsi Marriage and Divorce Act. However, under Hindu and Christian law, it is neither a ground for Divorce nor for judicial separation.

10. Renunciation of world[48]:-

                    Renunciation of the world means taking of sanyas. Sanyasa is the fourth and last ashrama of the Hindu. Therefore, the person is presumed to have civilly died in a renunciation of the world. Hence, it is available for both judicial separations and divorce under Hindu law only and not any other personal law.

11. Rape, Sodomy and Bestiality[49]:-

                    Rape, sodomy and bestiality are the special grounds on which the wife alone can sue for divorce under Hindu Marriage Act, the Special Marriage Act and the Indian Divorce Act. The offence of rape is punishable under S. 375 of the IPC, and sodomy and bestiality are called ‘unnatural offences’ under IPC and made punishable under S. 377 of IPC.

 

2. Divorce by Mutual Consent[50]:-

                    Divorce by mutual consent is recognised under the Hindu Marriage Act, Special Marriage Act, Parsi Marriage and Divorce Act and Muslim law.

A) Divorce by Mutual consent under the Hindu Marriage Act, Special Marriage Act, Parsi Marriage and Divorce Act:-

               The provisions for divorce by mutual consent are identical under the Hindu Marriage Act, Special Marriage Act, and Parsi Marriage and Divorce Act. Following are the requirements of divorce by mutual consent under these various Act’s-

1. Petition for the dissolution of marriage by mutual consent is to be filed by both spouses[51].
2. Such petition is to be presented to the District Court[52].
3. That they have been living separately for a period of one year or more[53].
4. That they are not able to live together[54].
5. That they have mutually agreed to dissolve their marriage[55].
6. That the Court can declare the marriage dissolved on the motion of both parties after six months from the presentation of the petition.

In Sonali Chandak V. NIL

2008 (1) All MR 227

Issue:-          Can a statutory period of six months for dissolving the marriage by mutual consent is essential?

Held: A statutory period of six months can be waived in certain circumstances.

In Roopa V. Prabhakar[56]

The Court Held that after the presentation of the petition, the parties are required to wait for a period of six months but not for eighteen months or more. After the expiry of the period of six months, the parties should move a motion in the court that a decree of divorce dissolving their marriage be passed. The parties during the period are free to withdraw their petition. If the parties want to continue their marriage, they are given adequate opportunity to do so. In case no motion is made within the period of eighteen months after the presentation of the petition, the petition shall stand dismissed automatically.

                    In the petition for divorce by mutual consent, only the grounds mentioned in the Act for divorce can be pleaded.

b)       Divorce by Mutual consent under the Muslim Law:-

                    Two types of divorce are recognised by customary Muslim law, one of which is divorce by mutual consent. Viz.

1. Khula (Divorce at the request of wife):-

                    Marriage may be dissolved with the consent and at the wife’s request if she gives or agrees to give consideration to the husband for her release from the marriage tie. Such dissolution of marriage is called Khula (i.e. to separate). Khula becomes irrevocable when the husband accepts the proposal made by the wife of separation.

Essentials of Khula:-

                    Following are some of the requirements of Khula-

1. i) There should be an offer from the wife.
2. ii) Her offer should be accepted with consideration for the release.

iii) The offer must be accepted by the husband.

2) Mubarat (Divorce by mutual agreement or mutual release):-

                    Mubarat signifies a mutual discharge from the marriage claims. In mubarat the aversion is mutual, and both sides desire separation. Hence, it involves an element of mutual consent. In this form of divorce, the proposal may be made either by the wife or husband. Divorce becomes irrevocable when the proposal is accepted, and iddat is necessary.

*****

[1] वैवाहिक वादातील उपाय  [वैवाहिक उपाय]

[2] घटस्फोट

[3] घटस्फोट

[4] कायदेषिरदृश्टया लग्न रद्दबातल असणे s[विवाह की शून्यता]

[5] वैवाहिक हक्काची पुर्नस्थापना [वैवाहिक अधिकारों की बहाली]

[6] वैवाहिक जीवनाची कायदेषिर विभक्तता [वैवाहिक जीवन का न्यायिक पृथक्करण]

[7] परंपरागत [प्रथागत]

[8] एकतर्फा [एकतरफा तलाक]

[9] उच्चारणे, एकतर्फा

[10] जबरदस्ती [विवशता या दबाव विवशता या दबाव]

[11] घटस्फोटाचे मार्ग [तलाक के तरीके]

[12] सलग तीन वेळा उच्चारण [लगातार तीन घोषणाएँ]

[13] पश्चाताप  [पछतावा]

[14] एकमेकांचा संमतीने घटस्फोट [आपसी सहमति]

[15] परस्पर मुक्तता  [पारस्परिक निर्वहन]

[16] हिदू कायदयानुसार पारंपारिक घटस्फोट [हिंदू कानून के तहत प्रथागत तलाक]

[17] संन्यास सोडून जाणे, अनैतिक, अपावित्र्य, व्यभिचार, धर्मांतर

[18] न्यायालयामार्फत घटस्फोट [न्यायिक तलाक]

[19] नपुंसकता (नव-याची) [पति की नपुंसकता]

[20] व्यभिचाराचा आरोप/चारित्र्यावर संषय [व्यभिचार का झूठा आरोप]

[21] AIR 1919 All. 182.

[22] विवाह रद्द करणे [ रद्दीकरण या उन्मूलन, या विवाह का विलोपन]

[23] वयात आल्यानंतर करावयाची निवड [यौवन का विकल्प]

[24] रद्द [परित्याग करना]

[25] Puberty is the age wherein a girl or boy becomes physically capable of having sexual intercourse, after secession of minority. The Muslim male or female is capable to perform marriage only after attaining puberty. But their marriage in minority may be performed. Such marriage for validity requires the consent of guardian of the minor. The consent of minor’s guardian is treated as the consent of minor till attainment of puberty. On attaining puberty they get ‘right of puberty’.

[26] वैवाहिक कर्तव्याचे पालन करण्यास अपयश [वैवाहिक दायित्व निभाने में विफलता]

[27] नव-याची नपुंसकता [पति की नपुंसकता]

[28] वेडसरपणा, महारोग, असाध्य आजार, संसर्गजन्य [पागलपन, कोढ़ या यौन रोग]

[29] नव-याकडून छळ [पति द्वारा क्रूरता]

[30] व्यभिचार  [व्यभिचार]

[31] परस्पर संमतीने s [सह संवेदी]

[32] विवाहबाहय संबंध [विवाहेतर संबंध]

[33] 1966 MLJ 263.

[34] सोडून देणे [परित्याग]

[35] कुप्रसिध्द स्त्री संगत किंवा कुप्रसिध्द जीवन जगणे (अनैतिक वर्तनास भाग पाडण्याचा प्रयत्न) [दुष्ट प्रतिष्ठा की महिलाओं के साथ संबंध या बदनाम जीवन व्यतीत करता है]

[36]  [उसे अनैतिक जीवन जीने के लिए मजबूर करने का प्रयास करता है]

[37] In Saptmi V. Jagdish ILR (1970) Cal. 266.

Court Held that – the act is cruel if the husband constantly called the wife a prostitute, a girl on street and the like when she was nothing of the kind.

[38] Held in – Jyotish V. Meera, AIR 1970 Cal. 266.

[39]   In Rita v. Balkrishan Nqhawan, (AIR 1973 Del. 200)

 Delhi High Court observed,-that  ‘the law is well settled that if either of the parties to a marriage being of healthy physical capacity refuses to have sexual intercourse, the same would amount to cruelty entitling the other to divorce. In our opinion it would make no difference in law whether denial of intercourse is the result of sexual weakness of respondent disabling him from having sexual union with the appellant or it is because of any willful refusal by respondent.’ This view has been confirmed by the Supreme Court holding that willful refusal to perform marital obligation amounts to cruelty.

[40] In Kalpana v. Surendra ( AIR 1985 All. 253).

 Facts– the wife lodged report against the husband and his relations for offences under S. 307 and 406. of IPC as well as under S. 4, of the Dowry Prohibition Act, with the result that cases were registered against the husband and his other relations and warrants were issued and they had to obtain bail from the court. But ultimately these turned out to be false cases.

 The Allahabad High Court held– that this amounted to cruelty.

[41] अनौरस मुलाचा जन्म In Madan Lal V. Sudesh Kumar ( AIR 1985 All 253).

Court held that– birth of a child within six months of marriage amounted to cruelty.

[42] आत्महत्या करण्याची धमकी

[43] शिव्या देणे किंवा शिवीगाळ भाषेचा वापर [गंदी और अपमानजनक भाषा का उपयोग करते हुए मौखिक दुर्व्यवहार और अपमान]

[44] महारोग

[45] संसर्गजन्य रोग [यौन रोग]

[46] AIR 199 SC 295.

[47] मृत्यू गृहीत धरणे [मृत्यु का अनुमान]

[48] संन्यास घेणे [संसार का त्याग]

[49] बलात्कार/अनैसर्गिक अपराध [बलात्कार, लौंडेबाज़ी और पाशविकता]

[50] परस्पर समतीने घटस्फोट [आपसी सहमति]

[51] परस्पर संमतीने घटस्फोटाच याचिका दोघांनी दाखल केली पाहिजे [आपसी सहमति से विवाह विच्छेद की याचिका दोनों पति-पत्नी द्वारा दायर की जानी है]

[52] याचिका जिल्हा न्यायालयात [ऐसी याचिका जिला न्यायालय में प्रस्तुत की जानी है]

[53] एक वर्शे अलग राहत असावेत  [एक वर्ष या उससे अधिक की अवधि के लिए अलग रहना]

[54] ते एकत्र राहू षकणार नाहीत [साथ नहीं रह पाते हैं]

[55] घटस्फोटाचा निर्णय हा परस्पर संमतीने  [पारस्परिक रूप से अपनी शादी को भंग करने के लिए सहमत हुए]

[56] 1994 Kant. 12.