Matrimonial Litigation

Introduction :

The institution of marriage is at the core of all kinds of human societies that are part of civilization, and it is the foundation. The family is a fundamental pillar of every human civilization. Marriage is the adhesive that binds it all together. The success of a marriage is ultimately related to the health of culture, its inhabitants, and their offspring. But the breaking of marriages can be very devastating for families. Marital dissolution can have significant consequences for both men and women. The breakup of marriage creates significant disturbances to the family unit. This insecurity may be scary, especially for youngsters, and it can have long-term consequences for them. Many are unsure how to handle circumstances in which one parent disparages the other or when the parents quarrel about everything right in front of them. These events may have a detrimental impact on the children's personalities, making it difficult for them to find a mate in the future. There are various ways people in a marriage can be dissolved in Hindu and Muslim Law.

Comparative Study of Hindu Law of Separation and Muslim Law of Separation

Hindu Law of Separation - A Hindu couple can separate in two ways; Judicial Separation and Divorce.

1. Judicial Separation- It is regarded as a lighter evil than divorce since it allows for reconciliation. A judicial separation decree does not result in the dissolution of the wedlock but instead suspends matrimonial rights and obligations for the duration of the decree; the spouses continue to be man and wife but are not compelled to remain together, and neither party is free to remarry. Judicial Separation is provided for in Section 10 of the Hindu Marriage Act,1955. The reasons for judicial separation are the same as the reasons for divorce. If a decree for judicial separation has been issued, the court may withdraw it on the petition of either party if it deems it just and reasonable to do so. Section 13 (1A) (ii) states that if parties have not resumed cohabitation for one year after a judicial separation decision, either party may seek divorce.

2. Divorce- Divorce was not recognized under Hindu law except where permitted by custom. Divorce is not favored or encouraged under the Act, and it is only allowed on specific serious specified grounds. One year has been set aside to allow maximum opportunities for mutual adjustment following a judicial separation decree. Similarly, one year should have passed between the date of marriage and the filing of a divorce petition. A marriage can only be dissolved if one of the spouses is found guilty of acts and behavior that undermine the very basis of marriage. As a result, the "Guilty Theory of Divorce" emerged.

1. Guilty or Faulty Theory - The Guilty Theory, on the one hand, indicates a guilty person. Still, on the other, it denotes that the other party is innocent, i.e., not a party to or liable for the conduct of the accused. As a result, if one party condones the guilty party's actions, no divorce can be granted. Divorce will also be denied if cruelty is provoked. The barriers to matrimonial relief evolved in this manner. Recognizing grounds such as insanity and epilepsy resulted in the designating of the guilt theory as the fault theory. If even one of the parties has a flaw, whether it is a conscious or providential flaw, the marriage may be annulled.

2. Free Divorce or Consent Theory - According to this theory, the parties to a marriage have the same freedom to end it as they do to enter it. The freedom to marry implies the freedom to divorce. Divorce by mutual consent creates a strong incentive for a hasty and ill-considered divorce. Divorce is impossible to obtain because it requires the agreement of both the parties and if one of the parties refuses to consent, then divorce is impossible to get.

3. Breakdown Theory - This notion embodies the current divorce theory. The court's recognition of the idea that the objective of the divorce law was not to penalize the guilty but to safeguard the innocent spouse marked a significant shift in policy2. If a marriage is irreparably damaged, it should be ended without further research into the causes of the breakdown and without assigning blame to either partner. Even if one of the participants to the marriage does not want it, such a marriage should be dissolved. The empty shell is to be demolished with the utmost impartiality and the least amount of bitterness, grief, and disgrace.

Muslim Law of Separation :

Men are maintainers of women, because Allah has made some of them excel others and because they spend out of their property (on their maintenance and dower). Although matrimony is a civil contract in Muslim law, the husband often enjoys unique privileges and the wife endures equivalent disabilities. Because of polygamy and the inequity of divorce law, the wife is at the mercy of her husband. Talak might be stated, inferred, contingent, constructive, or delegated among Sunnis. Only the express and delegated talak are recognized by Shias.

1. Express Divorce: Divorce is declared when clear and unequivocal words are uttered.It may be talak-us-sunna (authorized and revocable) or talak-ul- biddat (unauthorized and irrevocable).
2. Implied and Contingent Divorce: The talak is known as contingent when a husband declares divorce in order for it to take effect on the occurrence of a future event. When the wife insisted on going to her father's house despite her husband's desires and the husband told her she had to get amounted to an implied divorce.
3. Delegated Divorce (Talak-I-Tafweez): A divorce in which a husband delegates his divorce rights to his wife or a third party. The delegation might be made during the marriage ceremony in the Nikahnama or at a later date.
4. Constructive Divorce: In Ila, the husband swears not to have sexual relations with his wife. Following this pledge, if the husband has abstained from sexual intercourse for four months and there is no consummation, the marriage breaks entirely after the fourth month.
5. Divorce at Wife’s Instance: Khula is a divorce method in which a woman can divorce her husband by returning the dower or whatever else she got from him or without producing anything, as agreed upon by the spouse.
6. Divorce by Mutual Consent: The aspect of Mubarat is that both partners want to divorce. As a result, the proposal may come from either side. Both the husband and wife are relieved to be rid of each other.

Conclusion: Effects of Divorce

After divorce, both spouses have the right to remarry. The cohabitation becomes unlawful. The divorcing couple is no longer required to live together and must live separately. The spouses are no longer forced to accommodate one another; nonetheless, the husband is obligated to pay the wife's form maintenance if she cannot afford her home circumstances on her own. Before a divorce decree is obtained, the husband and wife share joint custody of the children born out of their marriage. However, after the divorce or during the divorce proceedings, the spouses may also file for a child custody petition to obtain sole or shared custody of the children born out of their marriage. Before choosing which parent will have custody of the kid, the court considers the facts and circumstances. Divorce is a highly terrible sector in someone's life because it disrupts the entire existence of two people, and it is made even more traumatic if they have children. Furthermore, when the parents are embroiled in bitter legal fights, the children's best interests are sometimes overlooked.