One of the more controversial divorce laws in India has been changed. India’s lower house of parliament has approved a bill making the Muslim practice of instant divorce, known as “triple talaq”, illegal and punishable with up to three years imprisonment. MPs voted a few months after India’s Supreme Court struck down the practice as unconstitutional.
Most of the 170 million Muslims in India are Sunnis governed by Muslim personal law for family matters and disputes.
Those divorce laws include allowing men to divorce their wives by simply uttering the Arabic word “talaq,” or divorce, three times — and not necessarily consecutively, but at any time, and by any medium, including telephone, text message or social media post.
Several opposition parties criticised Prime Minister Narendra Modi’s government for not discussing the legislation with them before it was introduced to Parliament.
The approved bill will now go to the upper house for approval before it becomes law.
More than 20 Muslim countries, including neighbouring Pakistan and Bangladesh, have banned the practice.
But in India, the practice continued with the protection of laws that allow Muslim, Christian and Hindu communities to follow religious law in matters like marriage, divorce, inheritance and adoption.
Since India is a land of varied religious communities having their own divorce laws, the divorce procedure to 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. The Muslim, Christian and Parsi communities on the other hand, have their own laws governing marriage and divorce.
Divorce with Mutual Consent
Mutual consent means that both the parties agree for peaceful separation. Mutual consent divorce is a simple way of coming out of the marriage and dissolving it legally. The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage.
They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife.
After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court.
During this period of 6 months when the petition is pending in the court, any of the partners is fully entitled to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent. In such circumstances, the court grants no divorce decree.
There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950.
Contested Divorce Laws
In case of a contested divorce, there are specific grounds on which the petition can be made.
Cruelty may be physical or mental cruelty.
In India, a man that commits adultery can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.
One spouse deserting the other without reasonable cause (cruelty, for example) is reason for divorce and should have lasted at least two continuous years.
Divorce can be sought by a spouse if the other spouse converts to another religion.
If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought. If the mental illness is to such an extent that the normal duties of married life cannot be performed.
Presumption of Death
If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.
In Australia, no-fault divorce is the norm. Before a divorce can be granted, you need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible, however, to live together in the same home and still be regarded as separated.
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