Marriage, Divorce and Maintenance under various Personal Laws- I
Nov. 09, 2023 • Abhinav Raizada
Marriage, divorce, and maintenance are intricate threads woven into the fabric of human relationships. They shape the contours of our personal lives and, in many ways, define our societal structures. Understanding the legal landscape is paramount when it comes to these vital aspects of our lives. Each society, guided by its unique set of values and beliefs, has established personal laws that govern the intricacies of marriage, divorce, and the financial responsibilities that ensue.
In this blog, we embark on a journey through the labyrinthine realm of personal laws, exploring the multifaceted dimensions of marriage, divorce, and maintenance. We will delve into the diverse legal frameworks that exist across different cultures and jurisdictions, shedding light on the rights and obligations of individuals entwined in the complex web of matrimonial relationships.
Concept and Definition
For Hindus, marriage is a sacrosanct (sacramental) union. It is also a social institution. Indian society is predominantly patriarchal. Marriages in India are between two families rather than two individuals. Marriage is the legal union of a couple as spouses. The basic elements of marriage are:
- The parties’ legal ability to marry each other,
- Mutual consent of the parties and
- A marriage contract is required by law.
Section 5 of the Hindu Marriage Act (hereafter HMA),1955.
- Solemnized between two Hindus.
- Neither party has a spouse living at the time of marriage. Any marriage that appears to be non-observance of Section 11 of the HMA, 1955, is to be treated as null, and void 
- At the time of marriage, neither party is incapable of giving valid consent and both are of sound mind.
- Capable of giving valid consent, has been suffering from a mental disorder as to be unfit for marriage and procreation of children.
- Not subject to recurrent attacks of insanity.
- 21 years for males and 18 years for females at the time of marriage. The Court held that the HMA, 1955 does not have a provision that will allow minor children to avoid marriage after attaining majority thereby declaring marriages in contravention of the third condition as voidable.
- Parties are not within degrees of prohibited relationship unless custom or usage.
- Parties are not sapindas of each other unless custom or usage governing each of them permits marriage between two. [ Parties are in a Sapinda relationship if they have a common ancestor within three generations on the mother's side of the family, or within five generations from father's side of the family.]
In Hindu culture, divorce was not known for centuries. However, in the last few years, this concept has been accepted. The Hindu divorce is governed by the HMA,1955. Divorce can be filed by either of the parties or by mutual consent.
Grounds for divorce by either party (Section 13(1))-
- Incurable unsoundness of mind
- Venereal disease
- Presumption of death
Section 13(1A) states two additional grounds for divorce:
- Non-compliance with a decree of judicial separation
- Non-compliance with a decree of restitution of conjugal rights
Section 13(2) states additional grounds for the wife to seek divorce:
- Husband already had a wife at the time of his marriage
- Husband guilty of rape, sodomy, or bestiality
- Husband failed to honor the maintenance order given to the wife by the court and there has been no cohabitation for a year
- If she was married before the age of fifteen years (puberty).
Divorce by Mutual Consent (Section 13B)- By filing a joint petition on the ground that both parties are living separately for one year or more.
The HMA,1955, and Hindu Adoption and Maintenance Act, 1956 initially dealt with the provisions of granting maintenance. Apart from this the Code of Criminal Procedure, 1973 also has provisions relating to maintenance. The HMA applies specifically to individuals who are Hindus including Sikh, Jains, and Buddhists, and persons who come under the ambit of Section 2. Also, children whose either of a parent a Hindu, Sikh, Jain, or Buddhist and are brought up under the same religion will be considered a Hindu and will be entitled to maintenance. Under old Hindu law, a Hindu male was under an obligation to maintain the following persons:
- His wife,
- Unmarried daughter,
- Legitimate sons,
- Illegitimate sons, and
- Aged parents.
Section 24 of HMA, 1955 (Maintenance of wife or husband)
As per this section, not only the wife but also the husband is entitled to claim maintenance pendente lite on showing that she/he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability, he is handicapped to earn and support his livelihood. The Supreme Court observed that the objective of granting maintenance is to ensure that the dependant spouse is not reduced to destitution, and not a punishment to the other spouse.
Section 25 - Permanent alimony and maintenance
Any court with authority under this legislation has the power to, either when issuing a judgment or subsequently upon request by either the wife or husband, direct the respondent to provide financial support and maintenance to the applicant. This financial support can take the form of a lump sum or regular payments, which should not extend beyond the lifetime of the applicant. The court will consider the income and assets of both parties, their behavior, and other relevant circumstances to determine a just amount. If necessary, the court can secure these payments with a claim on the respondent's property. If the court later becomes aware of changes in the circumstances of either party after issuing an order as per subsection (1), it can, at the request of either party, adjust, modify, or cancel the original order in a manner that it deems fair.
Furthermore, if the court finds that the party who received an order under this section has remarried or, in the case of a wife, has not maintained chastity, or in the case of a husband, has engaged in extramarital sexual relations, it can, at the request of the other party, modify, amend, or rescind the order in a manner the court deems just. (It's important to note that the court has ruled that an order for permanent alimony can only be granted when issuing a substantive decree.)"
Hindu Adoption and Maintenance Act, 1956
According to Section 3(b) of the Act of 1956, “Maintenance” includes-
- in all cases, provision for food, clothing, residence, education, and medical attendance and treatment;
- In the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage;
Section 18 (Maintenance of wife) -
By the provisions of this section, a Hindu wife, regardless of whether she was married before or after the enactment of this Act, has the right to receive maintenance from her husband during her lifetime. She has the right to live separately from her husband without losing her entitlement to maintenance under the following circumstances:
- Desertion by husband- meaning he abandoned her without reasonable cause and without her consent, or against her will, or has willfully neglected her.
- Cruelty by husband- that she reasonably fears it would be harmful or injurious to live with him.
- If her husband has another living wife.
- If her husband maintains a concubine in the same household where his wife resides or cohabits with a concubine elsewhere.
- Conversion- If her husband has renounced Hinduism by converting to another religion.
- Any other justifiable reasons for living separately.
Section 125 of the Code of Criminal Procedure, 1973
It provides for the maintenance of:
- wife who is unable to support herself.
- children - legitimate or illegitimate minor child, whether married or not, who is incapable of self-support, or, his legitimate or illegitimate child (excluding married daughters) who has reached adulthood but is unable to maintain themselves due to physical or mental disability or injury.
- His parents who cannot support themselves.
The term "wife" also encompasses a woman who has been divorced by her husband or has obtained a divorce and has not entered into a subsequent marriage. To pay the wife maintenance, the husband must have enough money to sustain her after their divorce, and the wife cannot be an adulterous cohabitee or live apart from her husband for no good reason.
Concept and Definition
Mohammedan law regards marriage as a civil contract. It can persist until the death of one of the parties. It can also be dissolved before that time. For Muslims, marriage or Nikah is a ‘solemn pact’ or ‘mithaq-e-ghalid’ between a man and woman soliciting each other’s life companionship which in law takes the form of a contract of aqd. There are several rituals to be followed during the Muslim marriage including the Nikah, Fatiha, and Mahar/dower.
- Sound mind
- Puberty (completion of 15 years)
- Free consent
- Offer and acceptance- made at one meeting
- In the presence of an adult witness (2 males or 1 female)
- Absence of any impediments(absolute or relative prohibitions)
Muslim divorce can be mainly classified into the following headings:
- By the act of parties
- By judicial process
- By the operation of law
- Other methods
Talaq by the husband:
When clear and unequivocal words, such as “I have divorced thee” are uttered the divorce is expressed. The express talaq falls into two categories
- Talaq-ul-ahasan - It is the most approved and most proper form of Talaq, where the pronouncement of talaq is during the Tuhr, i.e., is the period of purity between two consecutive menstrual courses.
- Talaaq-i-hasan - It is an approved form or proper form of talaq that consists of three successive pronouncements of talaq during the three consecutive tuhrs.
- Talaaq-i-biddat (Irrevocable talaq) - There are two forms under this disapproved mode of Talaq. They are triple declaration/talaq and single irrevocable declaration. In the triple declaration, three pronouncements are made in a single tuhr to constitute a divorce. In a single irrevocable declaration, a single pronouncement is made during tuhr indicating an intention to render talaq irrevocable (talaq-ul-bain). All these pronouncements are made orally and the presence of the wife is not necessary at the place of pronouncement. But to take effect, it should be brought to her knowledge.
Talaq by wife:
Talaq-ul-tafwid is an arrangement (or a delegation of power to the wife) made between the parties to a marriage, whereby the wife should be at liberty to divorce herself from the marriage in specified contingencies.
By agreement or by mutual consent:
Khula - It is a form of divorce with the consent of both parties. Here, the wife has to make the proposal to which the husband has to agree. The wife agrees to pay a consideration for her release from the marriage.
Mubara'at - It is the dissolution of marriage by a mutual agreement between both parties who wish to have a separation from the marriage. Here the proposal can be made by either the husband or the wife.
By judicial process:
Under Muslim law, a wife does not have an absolute right to get a divorce from her husband. But these situations were later changed. In some exceptional cases, the wife can get a divorce from the judge, or the Kazi by way of faskh. The principle of Muslim law was later adopted in the Dissolution of Muslim Marriages Act of 1939.
Section 2 of the Dissolution of Muslim Marriage Act, 1939-
A woman married under Muslim law has the right to seek the dissolution of her marriage based on one or more of the following reasons:
- The whereabouts of her husband have been unknown for four years.
- The husband has neglected or failed to provide for her maintenance for two years.
- The husband has been sentenced to imprisonment for seven years or more.
- The husband has unjustifiably failed to fulfill his marital duties for three years.
- The husband was impotent at the time of marriage and remains so.
- The husband has been suffering from insanity for two years or has contracted a severe venereal disease.
- she was married by her father or guardian before the age of fifteen and repudiated the marriage before reaching eighteen.
- The husband treats her cruelly, which includes - habitually subjecting her to assaults or emotional cruelty, associating her with women engaged in immoral behavior/dishonorable lifestyle, compelling her to engage in immoral behavior, disposing of her property, preventing her from exercising her legal rights over it, obstructing her from practicing her religious beliefs, failing to treat her fairly as per the Quranic injunctions if he has multiple wives, or any other reason recognized as valid for the dissolution of marriages under Muslim law.
By operation of law:
The death of the husband is a valid ground for the wife to get a divorce from the marriage. Alternatively, if the husband changes his religion, it stands as an immediate dissolution of marriage.
By other methods:
- Ila - It is a kind of constructive divorce by the husband, where he takes a vow of abstinence from sexual intercourse for four months. After this period marriage is dissolved irrevocably.
- Zihar - It is also a form of constructive divorce. Here the husband engages in an unlawful comparison of his wife where he compares his wife to any female relations in the prohibited degrees of relationship, for example, his mother.
- Li'an - It means imprecation. Imputation of unchastity against a married woman is taken seriously by the Quran. So if a husband raises a false allegation of adultery against the wife, she is entitled to claim divorce on this ground.
Section 125 of CrPC provides for maintenance to divorced wives irrespective of their religion.
It stated that after divorce if the wife is not able to maintain herself she is entitled to maintenance from her husband until she gets married again. This provision applies to Muslim women who are not entitled to the maintenance after the period of Iddat. This creates liability over the husband to provide maintenance to the wife even after the period of Iddat. Interim maintenance and expenses of litigation are also included here (should be given under 60 days from the date of service of notice). It is a secular provision governing maintenance laws across all personal laws.
Shah Bano vs Muhammad Ahmad Khan
- The appellant was an advocate by profession and was married to the respondent in 1932. Out of the wedlock, three sons and 2 daughters were born.
- The respondent was hurled out of her matrimonial home by the appellant. After which the respondent filed for maintenance in a court of the magistrate.
- Subsequently, the appellant divorced the respondent and denied her maintenance on the assertion, that as respondent ceases to be her wife, she cannot claim maintenance.
- The Magistrate ordered the appellant to pay rupees 25 per month as maintenance and the respondent filed for revision in the High Court.
- The High Court Increased the amount to rupees 125 per month in favour of the respondent aggrieved from this the appellant filed the present appeal.
- Whether Muslim women entitled to maintenance under section 125 of CrPC?
- Whether Mehar/Dower be deemed as a “sum payable on divorce”?
JUDGEMENT AND DECISION:
The bench while delivering the judgement upheld the decision of the High Court and directed the appellant to pay rupees 10,000 as the cost of appeal in favor of the respondent.
 Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav 1988 SCR (2) 809
 Section 5(3), Hindu Marriage Act, 1955
 Hindu Marriage Act, 1955
 Rajnesh v. Neha (2020) 11 SCC 507
 Badri Prasad vs. Urmila Mahobiya AIR 2001 MP 106
 Aqil Ahmed, Mohammedan Law 113 (Central Law Agency, Prayagraj, 27th edn., 2021)
 AIR 1985 SC 945
Disclaimer: The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog, or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organizations, governments, or institutions.
About the Author: Abhinav Raizada is a fourth-year BA.LL.B student at the Faculty of Law, The Maharaja SayajiRao University of Baroda, Vadodara.