NATIONAL LAW INSTITUTUNIVERSITY,

BHOPAL

PROJECT – FAMILY LAW I

COMPARISION BETWEEN MUTUAL CONSENT

DIVORCE UNDER HINDU LAWS AND MUSLIM
MARRIAGE LAWS

Guided by: - Submitted by:-

Ms. Debshree Sarkar Jhalak Shah

Rollno.2014BALLB101
 ACKNOWLEDGEMENT

I am most humbly grateful to our faculty of Family Law I, Prof. Debshree Sarkar
for giving me the opportunity to work on issue of “mutual consent divorce under hindu laws
and muslim marriage laws”.

It has indeed increased my interest in the subject manifold and has honed my skills of
research generally and specifically relating to constitutional law. I am also grateful to the
efficient library staff who guided me all the while with books and references. I am obliged
and overwhelmed by their effort in making this project a success. I would also like to forward
my gratitude to the staff of the computer lab.
 TABLE OF CONTENTS

ACKNOWLEDGEMENT.........................................................................................................2
TABLE OF CONTENTS...........................................................................................................3
INTRODUCTION......................................................................................................................4
RESEARCH OBJECTIVES......................................................................................................5
STATEMENT OF PROBLEM..................................................................................................5
HYPOTHESIS...........................................................................................................................5
RESEARCH METHODOLGY..................................................................................................6
FOCUS OF STUDY..................................................................................................................6
RESEARCH QUESTIONS........................................................................................................6
MUTUAL CONSENT DIVORCE............................................................................................7
MUTUAL CONSENT DIVORCE UNDER HINDU MARRIAGE ACT, 1955......................8
SEC 13B. DIVORCE BY MUTUAL CONSENT.....................................................................9
MUTUAL CONSENT UNDER MUSLIMS LAW.................................................................11
DEVELOPMENT OF DIVORCE LAWS UNDER THE TWO RELIGIONS.......................14
CONCLUSION........................................................................................................................16
BIBLIOGRAPHY....................................................................................................................17
 INTRODUCTION

Divorce (or the dissolution of marriage) is the termination of a marital union, the cancelling
and/or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the
bonds of matrimony between a married couple under the rule of law of the particular country
and/or state.

Marriage is a social institution. There is a social interest in its protection and preservation.
But sometimes it is not possible for the parties to continue with their marriage. As a
consequence, concept of divorce came into being.

Divorce is the termination of a marital union. It results in the cessation of matrimonial tie
between husband and wife. The status of husband and wife ceases after divorce. The concept
of divorce has evolved in the form of different theories.

There are different laws of divorce for different religion. Hindus(which includes Sikh, Jain,
Buddhist) are governed by Hindu Marriage Act,1955.Christians are governed by Indian
Divorce Act-1869 & The Indian Christian Marriage Act,1872.Muslims are governed by
Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim
Women(Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The
Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage
Act, 1954.

A cursory reading of the entire gamut of Indian Laws regarding Divorce makes it clear
broadly that the Divorce can be obtained by two ways:

 Divorce by Mutual Consent

 Contested Divorce
-MUTUAL CONSENT DIVORCE

RESEARCH OBJECTIVES

1. Examine the concept of divorce and specifically mutual consent divorce and its
formalities and legal effects.
2. Differentiate between Hindu law and Muslim law on the basis of mutual consent
divorce.
3. Analyse the laws relating to mutual consent divorce under Hindu law and Muslim
law.
4. Examine the developments in divorce laws under the Hindu law and Muslim law.

STATEMENT OF PROBLEM

In India, Muslim laws and Hindu laws are very different in the matter of divorce and stand as
a big hurdle in the way of application of uniform civil code.

HYPOTHESIS

Muslim laws are more stringent in the matters of divorce when compared to Hindu laws.
-MUTUAL CONSENT DIVORCE

RESEARCH METHODOLGY

The data has collected from secondary sources using the doctrine method of data collection
and further personal analysis of data is done to draw various conclusions and further find
practically workeable solutions to the problems present.

FOCUS OF STUDY

The project aims to study only the mutual consent of divorce and not the other forms of
divorce and other theories related to divorce. Mutual consent divorce is studied under the
Hindu Marriage Act, 1955 that governs the Hindu laws of marriage and the Muslim laws.

RESEARCH QUESTIONS

1. What is the concept of mutual concept divorce?

2. What led to the emergence of the mutual consent divorce theory?
3. How is it dealt under Hindu and Muslim laws?
4. What all developments have taken place in this practice of divorce?
-MUTUAL CONSENT DIVORCE

MUTUAL CONSENT DIVORCE

Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it
legally. Important requirement is the mutual consent of the husband & wife.

There are two aspects on which Husband & Wife have to reach to consensus:

5. The alimony or maintenance issues. As per Law there is no minimum or maximum limit
of maintenance. It could be any figure or no figure.
6. Next important consideration is the Child Custody. This can also be worked out
effectively between the parties. Child Custody in Mutual Consent Divorce can be shared
or joint or exclusive depending upon the understanding of the spouses.

Duration of Divorce in Mutual Consent varies from one month to six months or more from
States to States and as per the High Court directions.

The theory of divorce by mutual consent originated due to the loopholes in the fault theory of
divorce. The biggest drawback of the fault theory has been the presumption that there is one
innocent party and one guilty party. Sometimes, husband and wife are not able to live
together and there is no fault of either of them. In that case both of them are left with no
remedy. Thus, a new theory had to be evolved where marriage could be dissolved by mutual
consent of both the husband and the wife where they are not able to live together. Divorce by
mutual consent means that the law recognizes the situation where parties can also obtain
divorce by mutual consent. But mutual consent alone will not automatically terminate the
relationship. It is essential to obtain a decree of the court.

Criticism of the mutual consent theory

1. Divorce becomes too easy.

2. Divorce becomes too difficult.

Suggested safeguards

1. Introduction of quick essential “cooling off” period.

It is the judicial mechanism to stall the divorce for some time.
2. Recounselling is ordered by the judge within the cooling off period.
-MUTUAL CONSENT DIVORCE

MUTUAL CONSENT DIVORCE UNDER HINDU MARRIAGE

ACT, 1955

India is a land of varied religious communities having their own marriage laws, the divorce
procedure too varies, according to the community of the couple seeking divorce . All Hindus
as well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955.

A Hindu marriage cannot be dissolved by compromise or consent except to the extent

expressly permitted under section 13B of the Hindu Marriage Act, 1955.

Insertion of Section 13B in the Hindu Marriage Act was made perhaps as a response to an
overwhelming demand in society for such a provision.

The felt necessities of our changing society require that there should be no insistence on the
maintenance of a marriage which has broken down and thus a marriage in which parties
cannot live together should be dissolved.

The provision was not made originally in the HMA. It was inserted by the Marriage Laws
(Amendment) Act, 1976. But it should not be considered that divorce by mutual consent was
unknown to Hindu law. It was permitted by the Travancore Ezaha Act, 1925, the Travancore
Act,1925, the Cochin Nayar Act, 1938 and the Cochin Marumakkatyam Nayar Act, 1938.

The provision is both retrospective and prospective from the commencement of the Hindu
Marriage (Amendment) Act,1976. Hence parties to a marriage whether solemnized before or
after that amending Act can avail themselves of this provision.
-MUTUAL CONSENT DIVORCE

SEC 13B. DIVORCE BY MUTUAL CONSENT

(1) Subject to the provisions of this Act:

A petition for dissolution of marriage by a decree of DIVORCE may be presented to the
district court by both the parties to a marriage together, whether such marriage was
solemnized before or after the commencement of the Marriage Laws (Amendment) Act,
1976, (68 of 1976.) on the ground that they have been living separately for a period of
one year or more, that they have not been able to live together and that they have mutually
agreed that the marriage should be dissolved.

(2) On the motion of both the parties:

The parties made no earlier than six months after the date of the presentation of the petition
referred to in sub-section (1) and not later than eighteen months after the said date, if the
petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing
the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized
and that the averments in the petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the decree.

However, not all estranged couples agree on the desirability, grounds or the conditions of
divorce. In such cases, one party files for divorce in the court, but the other contests it. This
forms the case for the filing of a contested divorce.

A mention must be made in the petition that the parties have not been able to live together
and have been living separately for a period of at least one year. This period is mandatory.
Therefore, no application for divorce by mutual consent can be filed within a period of one
year from the date of marriage.

Petition under section 13B must also mention that the parties have mutually agreed that
marriage should be dissolved. This statement is also mandatory. The petition under section
13B should be filed only after both the parties appreciating their circumstances come to the
conclusion that they cannot live together as husband-wife.

This conclusion must be arrived at independently by both the parties to the marriage and
without any coercion of pressure. The decision to get the divorce should be only theirs and
the application cannot be filed if one of the parties is not ready for divorce or if the parties are
filing the application on someone else’ instigation.
-MUTUAL CONSENT DIVORCE

A petition for mutual divorce once presented before the Court of District Judge is taken up
on the motion of the parties only after a period of six months has expired from the date when
the petition was first presented before the Court.

For instance, if the petition was presented on 01/01/2013, it will be taken up by the Court on
the motion of the parties made after the expiry of at least six months.Therefore, the parties
can move their motion for the taking up of their petition only on 02/07/2013 and not earlier.
However it is to be remembered that this motion should be made after six months from the
date of presentation of the petition but before the expiry of 18 months from the said date,
i.e. the date of presentation. Hence in the above example as has already been stated, the
parties can move a motion for taking up of their petition only on or after 02/07/2013 but this
motion must be made before the expiry of 18 months from the date of presentation, i.e. before
01/07/2014.

The Court has to be satisfied that the parties cannot live together as husband-wife and also
that the petition is filed only as per the prescribed time and that both the parties have filed the
petition voluntarily with their respective free consents and not under any fraud, coercion,
undue influence or force and only after fully understanding the implication.

Once the Court arrives at this satisfaction, decree of divorce under section 13B shall be
passed in favour of the parties. The Supreme Court has held that mutual consent must
continue till divorce decree is passed and revocation of consent by either of the parties at any
time before the decree is passed is fatal to the proceedings.1

MUTUAL CONSENT UNDER MUSLIMS LAW

1
Smt. Sureshta Devi vs Om Prakash AIR 1992 SC 1904
-MUTUAL CONSENT DIVORCE

Mubaraat means “release”, which puts an end to matrimonial rights. The word Mubaraa
means an act of freeing one from another mutually. It is a mutual discharge from marriage
tie2. It is a divorce by mutual consent of the husband and wife. The formalities for Mubaraat
are the same as in the case of khula. The aversion in Mubaraat is mutual and the proposal for
divorce may emanate from either the husband or the wife. Under Shia law, the parties con
dissolve their marriage by way of Mubaraa if it is impossible for them to continue.

Where a marriage terminates by act of parties, the dissolution is called divorce. Under
Muslim law, the divorce may take place by the act of parties themselves or through a decree
of the court of law. In Islam, divorce is considered as an exception to the status of marriage.
The prophet declared that among the things which have been permitted by law, divorce is the
worst.

The Gauhati High Court in Musst. Rebun Nessa v. Musstt. Bibi Ayesha & others, it has been
observed that the correct law of Talaq as ordained by the Holy Quran is that (i) Talaq must be
for a reasonable cause; (ii) that it must be preceded by an attempt of reconciliation between
the husband and the wife by two arbiters, one from the wife’s family and the other from the
husband. If an attempt fails, talaq may be effected.

The dissolution of marriage may be either by the act of husband or by act of the wife. A
husband may divorce his wife by repudiating the marriage without giving any reason.
Pronouncement of such words which signify his intention to disown the wife is sufficient;
generally, this is done by talaq. But he may divorce the wife also by ila and zihar which differ
from a talaq only in form not in substance.

A wife cannot divorce her husband of her own accord. She can divorce the husband only
where husband has delegated such right to her or under an agreement. Under an agreement, a
wife may divorce her husband either by Khula or Mubaraat. Before passing of the
Dissolution of Muslim Marriage Act 1939, a Muslim wife had no right to seek divorce except
on the ground of false charge of adultery by the husband (lian), Insanity or impotency of
husband.

But the Dissolution of Muslim Marriage Act, 1939 now lays down several other grounds on
the basis of any one of which, a Muslim wife may get her marriage dissolved by an order of
the court. Islam provides a modern concept of divorce by mutual consent. Today, this is

2
Hedaya, Vol. I, Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, Central Law Publications, Allahabad
-MUTUAL CONSENT DIVORCE

known as the break-down theory of divorce. The modern concept of break-down theory of
divorce does not want the court to go into the causes of break-down of marriage.

But the Dissolution of Muslim Marriage Act, 1939 now lays down several other grounds on
the basis of any one of which, a Muslim wife may get her marriage dissolved by an order of
the court. Islam provides a modern concept of divorce by mutual consent. Today, this is
known as the break-down theory of divorce. The modern concept of break-down theory of
divorce does not want the court to go into the causes of break-down of marriage.

To enter in to Mubaraat, both the parties must be of sound mind and have attained
puberty.

Formalities:
Under Sunni law, no particular form is required. But mutual agreement must be made at the
same meeting and the word “Mubaraat” must be clearly expressed in the proposal202 and if
ambiguous expressions are used, intention must be proved.203

But under Shia law, proper form is required. Mubaraat must be expressed in Arabic language
and the expression “Mubaraat” must be clearly expressed.

Mutual agreement must be made at the same meeting in presence of two witnesses under Shia
law. If the husband were to say to his wife, “I have discharged you from the obligation of
marriage for such a sum, and you are separate from me”, the marriage would be dissolved. In
this form, since both the parties are equally interested in the dissolution of marriage, no party
is legally required to compensate the other by giving some consideration.

Under Sunni law, when the parties enter into a “Mubaraat”, all mutual rights and obligations
come to an end; but under Shia law, it requires that, if both the parties bona fide find the
marital relationship to be irksome, then only, a marriage stands dissolved. The wife may
agree to pay to her husband, some compensation. When the husband receives compensation
from the wife, the divorce is Bian, and even when it is without compensation and
(consequently) rajai (reversible) at the option of the husband, if during the wife’s iddat, he
were to accept from her a compensation, the separation would be equally Bian. The payment
of compensation is not the essential condition for divorce. Immediately on the completion of
divorce by way of Mubaraat, the parties must be separated, even if the wife has not paid
compensation. A wife, who has obtained a release from the marital tie by Khula or Mubaraat,
is entitled to maintenance during her iddat period.
-MUTUAL CONSENT DIVORCE

Legal effects of Khula and Mubaraat:

1. Under Hanafi and Ismaili School, the dissolution of marriage on a Khul or Mubaraat has
the same effect as a single divorce after it has become irrevocable. The parties cannot resume
sexual intercourse until and unless a fresh marriage was arranged between them.

2. Under Shia law, when the Khula is effected, the husband has no power of revocation.
However, the wife is at liberty to re-claim the consideration during the iddat period. Under
such circumstances, the husband can revoke the Khul at his option.

3. The wife is required to observe iddat and is also entitled to be maintained by the husband
during the period of iddat.

4. After completion of Khula or Mubaraat, the marriage dissolves and cohabitation between
the parties becomes unlawful. If the consideration in Khula is not the release of wife’s dower,
the wife is entitled to get her dower.

DEVELOPMENT OF DIVORCE LAWS UNDER THE TWO

RELIGIONS

In 1937, India, as a colony of Great Britain, allowed Muslims to follow Islamic family law.
The Muslim Personal Law (Shariat) Application Act of 1937 had two effects. The first was to
give Muslims religious autonomy; they could observe the family laws of their own religion
without ramification. The second effect was to empower Muslim husbands at the expense of
their Muslim wives. India, with the Shariat Act alone, allowed a husband to divorce his wife
-MUTUAL CONSENT DIVORCE

at the mere pronouncement of the word talaq, but Islam granted a wife that right only if her
husband delegated it to her. This left Muslim wives with limited means of escaping abusive
or otherwise harmful marriages.

The Dissolution of Muslim Marriages Act of 1939 changed that. The DMMA gave Muslim
wives the legal means for obtaining divorces. It also lists the grounds upon which Muslim
wives can file for divorce. By 1940, Muslim husbands had the right to divorce by talaq and
lian, and wives could resort to faskh. While not granting wives the same talaq rights as
husbands, the DMMA certainly closed the gap between the two spouses.

Meanwhile, Hindus had no national form of divorce at all. The Indian Parliament gave
Hindus the statutory right to divorce in 1955. The HMA, unlike the DMMA, empowers both
wives and husbands. It puts both spouses on the same level and applies only to Hindus and
other enumerated religious groups.

First impression would dictate that the existence of two sets of family laws in India would
create a legal nightmare. It is interesting, considering the strife-ridden past of the Hindus and
Muslims, that the DMMA closely resembles the HMA. India enacted the DMMA eight years
before gaining independence in 1947 from Great Britain and enacted the HMA eight years
after independence. Clearly, British control over India in 1939 influenced passage of the
DMMA, but India was independent when it passed the HMA in 1955. Nevertheless, Great
Britain, while not having actual control over India in 1955, had already left its mark there,
and its colonization may have influenced the Hindu family law system. The exposure to
Western notions of divorce impacted India just when it was about to create its own system of
government. In a sense, it is not surprising that Hindus and Muslims in India share concepts
of when marriages should no longer continue; a common experience of colonization helped
imbibe those concepts. It appears that, although the laws appear to be non-secular because of
the Shariat Act, the family law system of India actually is secular. Despite the similarities,
though, there are differences.

The most obvious difference between the systems is the Muslim husband's right of talaq.
Because this right stems from the Qur'an, an Islamic text, the Hindus do not share it. Another
difference is the ground for divorce based upon criminal behaviour, in which the DMMA is
broader than the HMA. While Islamic law grants a divorce if the husband is sentenced for
any crime, Hindu law grants a divorce only in cases where the respondent is guilty of a sexual
-MUTUAL CONSENT DIVORCE

crime. One possible explanation is that Great Britain had "liberal" views toward divorce, and
the DMMA, as a product of British India, also had “liberal” provisions for divorce.
Consequently, the independent and socially conservative that enacted the HMA sought to
limit the grounds for divorce based upon criminal behaviour.

CONCLUSION

Thus, divorce under the Hindu Marriage Act, 1955(HMA) and The Dissolution of Muslim
Marriages Act, 1939 (DDMA) are very different. Though they are similar in one sense that
they break-up a marriage, however, they are different in their procedures and formalities that
need to be followed. While the Muslim marriage has two types of mutual consent divorce,
under the Hindu Marriage Act, there is only a mutual consent divorce.
-MUTUAL CONSENT DIVORCE

It would be interesting to see what effect a uniform civil code would have upon these laws
and on India. The biggest result would be that either Muslims would give up the right of talaq
or Hindus would be given such a right. Both seem equally unlikely in light of the pervasive
religious underpinnings of Hindu and Islamic society. The claim that a uniform civil code is a
means to oppressing the Muslim minority is one that both Muslim husbands and wives could
make. Muslim husbands could allege that losing the right of talaq is an affront to their
cultural traditions and their “status” as husbands. Muslims wives could argue only that their
tradition will suffer; a uniform code would empower Muslim wives by making them less
susceptible to such an informal method of divorce as talaq. If husbands are given a power to
divorce under the DMMA as their wives are, so that the DMMA and HMA both apply to
husbands and wives, it is difficult to see what objection Muslims would have. The argument
comes back to talaq being a Qur'an-ordained tradition. Perhaps the real issue is what place
ancient tradition should have in a world governed by modern rules.

BIBLIOGRAPHY

WEBSITES:

www.indialawyers.wordpress.com

www.lawteacher.net

BOOKS:
-MUTUAL CONSENT DIVORCE

Qureshi, M.A, Muslim Law, Volume 1,2 nd ed.2002, Central Law Publications,
Allahabad