The divorce law in India does not bind anyone to file a divorce first. But do men have any rights in divorce? Are they equal to women?
Divorce results from an unhealthy relationship between spouses. In a diversified country like India, major communities operate on their personal laws to deal with the procedure of divorce. But the rights of women and men are not the same when it comes to divorce.
The rights of a man in divorce in India differ community-wise because they adhere to their specific law. Some of these laws are codified into legislation, while some still refer to their age-old customs.
Like any other law, divorce laws are dynamic; they can be recreated and amended to meet the current needs of people. So, what are the contemporary rights of a man in divorce in India? Do they differ from that of a woman, or are they the same for both?
What is a Divorce?
Divorce means ‘legally ending a marital bond’ or the ‘dissolution of marriage’.
Divorce among Hindus (including Sikhs, Buddhists, and Jains) is done in three ways—by either party, wife, or by mutual consent.
1. Divorce by either party
Either husband or wife can file a petition for divorce on the ground of cruelty, desertion, unsound mind, venereal disease, conversion, renunciation, or deemed to be dead, and many more.
2. Divorce by wife
The wife can file for divorce against the husband on the grounds of bigamy, rape, sodomy, or bestiality
3. Divorce by mutual consent
Both parties can together decide to dissolve their marriages, and they can do so by applying for divorce through mutual consent.
Divorce among Muslims is done in two ways—Extra Judicial and Judicial.
1. Extra Judicial Divorce
It is governed by customs and includes three sub-categories
- Divorce by wife
- Divorce by husband
- Divorce by mutual consent
These sub-categories contain various methods followed by different sects within the Muslim community. Some of them exist in India some do not. However, all these methods are recognised in many places of the world.
2. Judicial Divorce
The Muslim Personal Law (Shariat) Application Act of 1937 and the Dissolution of Muslim Marriage Act of 1939 govern judicial divorce.
Divorce among Christians and for Special Marriages
For such communities, the divorce is filed on the grounds mentioned above in ‘Divorce among Hindus’ except ‘conversion’.
Divorce Laws in India
- Section 13 of the Hindu Marriage Act, 1955 governs divorce in Hindus, Sikhs, Buddhists, and Jains;
- Section 2 of the Dissolution of Muslim Marriage Act, 1939 partially governs divorce in the Muslim community;
- Section 10 of the Indian Divorce Act of 1869 governs divorce in Christians;
- Section 27 of the Special Marriage Act, 1954 governs the divorce for interfaith couples;
- Their customs and traditions govern divorce in tribal communities.
Different sets of rules govern the divorce procedure of communities, so the rights of a man in divorce in India also vary.
What are the Rights of a Man in Divorce in India?
Divorce Rights of a Man in Hindu Personal Law
Men have fewer grounds than women. Men are provided with rights under Sections 13(1), 13(1A), and 13B, while along with these grounds, women are provided with their rights under Section 13(2) also.
After the dissolution of marriage, Section 25 of the Hindu Marriage Act of 1955 describes maintenance. It provides for paying maintenance by the husband to wife and not the other way round.
If the wife files for divorce against her husband on any of these grounds mentioned, the burden of proof will lie on the wife and not the husband.
Divorce Rights of a Man in Muslim Personal Law
Men have almost all the rights to file for a divorce. Except in the Dissolution of Muslim Marriage Act of 1939, women do not have any independent rights to take divorce from their husbands.
All kinds of Talaq present give men the autonomy to either allow or disallow their wives to get a divorce.
‘Talaq-i-Tafweed’ is given by the wife to the husband, but prior permission of the husband is required.
In the ‘Khula’ form of divorce, the wife initiates the procedure for divorce, but the divorce is only complete when her husband agrees.
Divorce Rights of a Man in Christian Personal Law
Men and women enjoy equal rights, except that the wife alone can file for divorce on the grounds of rape, bestiality, and sodomy.
Divorce Rights as per the Special Marriage Act, 1954
The divorce provisions resemble that of the Hindu Marriage Act of 1955. Thus the rights of men and women are the same under it.
Factors Forming Grounds for Divorce
There are some general grounds for divorce. They affect the rights of a man in divorce in India are as follows-
- Cruelty: Inhumane treatment of spouse, not treating the spouse adequately, applying measures below accepted human behaviour. It may be mental cruelty, physical cruelty, or both.
- Desertion: Leaving the spouse without adequate reason or any reason at all. It also includes living with the spouse but not interacting or cohabiting with them for two years.
- Unsound Mind: When one spouse becomes unsound and cannot give logical statements and judgments.
- Venereal Disease: Diseases that are communicable and hence threaten the other spouse.
- Renunciation: When one of the spouses renounces the world by entering any religious order.
- Is Deemed Dead: When one of the spouses does not get heard of being alive for a continuous period of seven years or more.
- No Restitution of Conjugal Rights: When one of the spouses does not perform the conjugal rights for one continuous period of one year or more.
- No Cohabitation: There has been no cohabitation between the spouses for one year or more.
The rights of a man in divorce in India are somewhat less than that of women except for the Muslim Personal laws where men dominate the will of their wives when it comes to divorce as per their customs.
The Dissolution of Muslim Marriage Act of 1939 has diluted the dominant position of men regarding divorce among Muslims. The advent of legislation in Personal Laws has weakened the traditionally established male domination. Thus, these statutes have cut down arbitrariness from the hold of men.