INTRODUCTION

Divorce as per law orders for disclosure of marriage, it is nothing but stopping all the marital responsibilities between the husband and wife. It divides the responsibility over custody of their own children and if any joint property is present, and it also considers if any alimony is present and other matters if present. There are many meanings and importance given to the term divorce in many acts like in the Hindu Marriage Act, 1955, The Indian Divorce Act,1869 and in Islam they have the procedure grounds etc as per their laws. Divorce is a very important aspect covered in the Indian law system where the term “DIVORCE” is given a very wide scope because of the scope the term is being broadened and for changes in society, any married couple can seek a divorce based on their religion and also on the grounds as per the act they are following and they belong to.

PROS AND CONS OF DIVORCE

Divorce may have emotional, social and financial dependence on each other in one or the other way but if the marriage leads to any sort of unhealthy or unhappy relationship between the spouse it may lead to divorce when the marriage is causing any sort of issues to the spouse rather thinking about the universal thoughts which might arise the spouse should what they wish to nut divorce should not be the solutions for all sorts of problems which might arise in day to day activities it is required to take their time, mind space etc and come to a conclusion.

Pros of Divorce

1. Emotional relief and freedom: When the spouse is continuously causing mental trauma in the person it may lead to illness which might be mentally tough but it may lead to mental disaster and the reason behind it is the person who is causing so at this point of time divorce is one of the ground for divorce which amounts to cruelty and when the court grants divorce under this provision the innocent spouse may have the relief and stay happy.
2. A better life: When the spouse wakes up with the same issue in their day-to-day activities of life their life is filled up with mess either the issue must be solved or the action must be taken strictly and legally when the issue is solved in a court of law since it is quite a serious issue the spouse who is been suffering will absolutely lead happy and better life since they have that peace of mind.
3. Better surroundings for their children: Since the marital issues are between the spouse and it is because of them, whatever the child’s age it will absolutely harm the child’s mental peace and might as well lead to physical harm by the child when the court has granted a divorce and the custody of the child is decided either by the mother or the father it is based on the child’s welfare as well as for their good and the child will definitely suffer to see their parents fighting every day in front of them will lead to mental illness in the kids.

Cons of Divorce

1. Emotional breakdown: when the spouse decides to live separately knowing the consequences after their divorce will have to change their life since they are supposed to be independent because they are separated from their partners they will have some emotional heartbreak and might also regret their decision either in relation to the divorce or also why they chose the partner who turned out to be so evil so they will regret and also will have an emotional rollercoaster ride.
2. Financial burden: since the spouses are living separately now they will have to look after themselves as well as the child if present so this will lead to living expenses which are the most basic amenities required for living so when the spouse decides to divorce the legal costs for their separation might be lawyer fees, court fees etc to be paid this will lead financial burden in them and again when they will have to divide the assets they will have to go legally for it will definitely occur for costs which may be fees etc.
3. Impact on children and health: as told earlier whatever the age of the child this will definitely harm the child’s health because of the conflicts that arose with the child’s parents itself this will affect them very badly and also since the child is suffering or even for the stress the spouse might be going under will lead to health disaster in any which ways. It is required to take considerations about everything before deciding on such aspects.
4. SIGNIFICANCE OF DIVORCE
5. As told in the pros and cons it is understood how badly it might affect and also in a positive way it is required to see into the aspects before deciding or coming to a conclusion which may later be regretted in life. There are many kinds of significance to be dealt with; few are personal significance, legal significance, social significance, psychological significance, financial significance, religious and cultural significance.

Divorce under Hindu Marriage Act,1955

In Hindu law, divorce is ruled by the Hindu Marriage Act, of 1955. HMA Act gives laws and regulations for marriages between Hindus, Buddhists, Jains and Sikhs and also to people who have converted to any of the religions mentioned above.

Grounds for divorce under HMA

The act specifies the grounds on which either party can seek a divorce. These include:

1. Cruelty: The person involved in marriage harms the other spouse either physically or mentally which results in unbearable situations in the relationship.
2. Adultery: Where the married person is involved in voluntary sexual intercourse with someone else who is outside their marriage.
3. Desertion: Where one person leaves the other person in a marriage for more than two years without any reason.
4. Conversion: If the spouse converts to any other religion the other spouse can file for divorce.
5. Unsoundness of mind: When the spouse does not act or make decisions as per sound mind despite knowing the consequences might occur in a negative way that might affect the relationship between them
6. Communicable diseases: Any of the spouses who have a disease which is going to spread like skin disease or any venereal disease might lead to one of the grounds for divorce.
7. Renunciation of the world: If one person leaves the country for any reason might be a monk or anything as such.
8. Not consummating the marriage: If the relationship between the married couples is not consummated, or if there is no physical relationship between the marriage either way any of the couples denies might lead to divorce from the other spouse.
9. Ceasing the marriage for more than a year: Where the spouse has not lived together for more than a year the marriage can lead to divorce.

TYPES OF DIVORCE

1. Mutual consent divorce: If the married couple doesn’t agree to live together where they want to mutually break their marriage the couples can file for divorce under section 13B of HMA. The court filing will give divorce after a six-month waiting period also it might reduce in a few of the cases.
2. Consented divorce: When one spouse in the marriage does not accept the divorce the spouse who wants a divorce the spouse who wants a divorce can file a petition if the court agrees and feels it is apt and can grant for divorce.

PROCEDURE

1. Filing the petition: One spouse or both of them whereas in cases of mutual consent divorce should file for a suit in a family court or district court speaking out their grounds for divorce
2. Hearing the judgement: The court sees the divorce and hearing will be held from both parties and later may give orders relating to alimony, child custody, and division of property.
3. Decree of divorce: If the court is pleased it will grant for decree of divorce if the spouse agrees to divorce on a mutual basis it may go for six months if only the party agrees to it, the process might exceed.

Case law under HMA

A Landmark judgment case under the HMA in relation to divorce is K.SRINIVAS RAO V. D.A. DEEPA (2013).

This case gave significant evidence for mental cruelty as a ground for divorce under section 13 (1) (ia) of the HMA.

COURT: SC

• YEAR: (2013)
• ISSUE: whether the false accusation by wife to husband regarding extramarital affairs which is false and false allegations in relation to character might lead to mental cruelty and is a ground for divorce.

Judgement

The SC said that the term violence not only means physical but also mental violence in relation to abuse or verbal terms which may cause psychological issues in the spouse and might cause mental illness and this kind of illness might lead to mental disaster. The court held that mental cruelty is defined under section 13 (1)(ia) of HMA which says even the absence of physical violence might cause cruelty. It may include verbal abuse or any accusation which seems to be false and some undue stress can lead to unbearable situations in the marriage.

Mental cruelty is defined under section 13(1) (is). As told includes falsies allegations and abusing violence and causing emotional harm to other persons existing in the marriage.

The judgement gave a wide scope to understanding the term mental cruelty which leads to psychological issues which not only physical violence but also mental violence.

The decision reinforced the breakdown about marriage as it might lead to emotional harm to the spouse and is a ground for granting a divorce.

This case is a landmark decision and is a precedent in the understanding of the term mental cruelty under the law and how courts decide the case related to it and such cases should be filed to family courts and district courts.

DIVORCE UNDER ISLAMIC LAW

Under Islamic law, the Quran and Hadith preside over the principles of divorce, it also gives a legal framework for other countries which had adopted Sharia law. There are 7 modes of divorce under Islamic law, each specifies the statute and line of action for these types. The significant forms of divorce under Islamic law include Talaq, Khula and Faskh.

1. Talaq

One of the most common forms of divorce under Islamic law is talaq, in this form of divorce husband pronounces talaq to the wife. There are two key forms under talaq.

1. Talaq Ahsan: this is the most approved form and simplest form of divorce. In this process the husband must pronounce "Talaq" once during the period of the (that is when the wife is not menstruating) then comes the iddat period (waiting period) of three consecutive menstrual cycles, and while this period is going on the wife shouldn't remarry. The husband can revoke by an express or implied way if not revoked the divorce during the iddat period then the divorce is said to be final and the couples are separated from each other.
2. Talaq Hasan: This form of divorce this form of talaq is not as purest form of talaq ahsan. This is also a good form of divorce. Here the husband pronounces "talaq" to the wife three times over three consecutive Thursdays ( over three menstrual cycles). And here the waiting period is between the three pronunciations of talaq during thur. If not revoked with implied or expressed from within the three talaq or before the 3rd talaq it is considered to be the final form of divorce.
3. Talaq-i-Bid'ah: An irregular and non-advisable form of divorce. Here the husband pronounces talaq three times in one sitting. This is a morally wrong form of talaq in Islamic jurisprudence and is banned in many countries recently it was held unconstitutional in India in the case of Shayara Bano v. UOI where triple talaq was criminalized. Under Muslim Women ( Protection of Rights On Divorce) Act of 1986 made this illegal and punishable. Nevertheless, this form of divorce is still conventional in some countries.
4. Revocation: A husband can revoke the divorce pronunciation in Ahsan and Hasan from during the period of iddat if not revoked it's considered final whereas in the case of Talaq-i-Bid'ah the divorce cannot be revoked.

2. Khula (Divorce by wife)

In this form, the wife imitates the divorce, where she opts for dissolution of marriage. If a woman feels that she can no longer stay with her husband she can seek divorce which is allowed under Islamic law. The key factor of this form of divorce is in order to initiate divorce women must compensate the husband (giving back dower or mahr) which must be mutually agreeable. The divorce can be final only if the husband is on board. If not it may lead to a dispute where court intervention would become necessary.

Important takeaway of khula:

A woman seeking khula must apply for Shariah court or any Islamic legal body or legal instructions in some countries.

Here the wife need not wait for the husband's consent for the finalisation of divorce but it involves legal hearing and court intervention.

3. Faskh (Annulment of Marriage)

In this form of divorce, the court or any Islamic authority announces a marriage on the basis of valid and specific grounds and pronounces the marriage invalid. Unlike talaq and Faskh which is unilateral proceedings in which one is done from the husband's side and the other other wife's side here the annulment or marriage is based on the mutuality of the couple.

It is typically a court-driven process, where based on special and valid grounds the judge would issue a ruling. The wife does not need the husband's consent or the husband does not need to pronounce talaq for Faskh.

4. Talqq-e-Tafweez (Delegation of divorce)

Here the husband delegates his power of pronouncing divorce to his wife. In this form the husband gives full authority to divorce herself from her husband if a certain event happens where the marriage becomes untenable. This must usually be specified in the marriage contract during the time of marriage.

5. Islamic Divorce procedure in practice

Iddat: this is the waiting period after the pronunciation of Divorce (whether Talaq,Khula or Faskh). Here the wife is supposed to undergo the waiting period. Generally the waiting period constitutes three months or three menstrual cycles if the wife is not pregnant. This waiting period is done mainly for the purpose of reconsideration between couples and no confusion about the pregnancy of a potential child.

In the course of iddat the woman cannot remarry, and the husband must continue to provide the wife with a living until the divorce is not finalized.

6. Right to Maintenance and Alimony

Maintenance plays a vital role in Islamic law where the husband is supposed to maintain his wife during the period of iddat, even if the divorce is initiated by the wife. The husband is required to maintain his children if there are any after the divorce whereas after iddat he is no longer responsible for maintaining her.

7. The role of Sharia courts

These courts usually deal with the Islamic family matters such as divorce etc.. in other countries (for example, in countries like Pakistan, Saudi Arabia, Iran etc..) in India these cases are usually administered through Islamic boards through personal law and handled separately from civil law courts.

8. Key legal challenges

Triple talaq: This was prohibited in case the of Shayara Bano v Union of India by the supreme court in 2017 and later on criminalized in the Muslim Women (Protection of Rights on Divorce) Act in 2019.

Women's rights in divorce are debatable, specifically in terms of monetary security of divorced women, her maintenance and child custody etc...

Muslim major countries have proposed some reforms to protect the interest of divorced women which have made major changes in women's rights.

Indian Divorce Act, 1869

The Indian Divorce Act, of 1869, rules for the dissolution of marriages for Christians. The Act was made for the Christian community in India, and it provides grounds and methods to file for divorce.

1. Provisions under the Indian Divorce Act, 1869: Grounds for Divorce (Section 10) Under the Indian Divorce Act,

• Adultery
• Cruelty
• Desertion
• Conversion
• Mental Disorder
• Venereal Disease
• No Consummation of Marriage

2. Procedure for Divorce

• The divorce petition can be filed by either the husband or wife in a district court or family court which has jurisdiction over the matter.
• Joint Petition: ( mutual consent) Section 10A of the Act.
• Separation Period: the divorce in this procedure can happen only if the spouses have lived separately for more than one year before filing for divorce.

3. Decree of Divorce

• After the petition is filed the court will examine the evidence and check for the grounds for divorce if the court finds it apt and it is necessary to grant divorce the court will grant for decree of divorce.
• Decree Nisi: the court may give the first issue for a decree nisi which is known as provisional decree of divorce and allows for a waiting period which may roughly be 6 months before the divorce may become absolute this is given typically to see that this waiting period may be given if the court can convince the marriage and see that if it can be repaired
• Decree Absolute: after the nisi decree which is the waiting period can grant for final divorce and issue the decree absolute

4. Maintenance and Alimony

If the spouse is dependent on the other spouse and wants maintenance or alimony the spouse has to prove to the court that they are financially dependent on the spouse and the court will examine the maintenance based on both the spouse's situation and grant for alimony

5. Custody of Children

When the custody of children arises should be examined that the child’s future and welfare must be seen where usually the younger child’s custody is given to the mother but also the courts can grant joint custody where the custody can be given to the father as well it is based on the children’s interest.

6. Judicial Separation (Section 22)

This is nothing but when the spouse does not want to dissolve the marriage completely but wants to live separately and also seek relief while living apart from the other spouse.

LIMITATION OF INDIAN DIVORCE ACT

The Act says that this act will apply to only Christians and does not apply to individuals who are from other religious communities. Other communities (such as Hindus, Muslims, Sikhs, etc.) are governed by their respective personal laws.

CONCLUSION

Though divorce is a negative concept, divorce can turn into a fresh start for both partners where they’ll start a new life and this might result in a happy lifestyle and mental peace as well as managing their life well. In case they have children the custody of the children must be taken into consideration as well based on the children's interest. Henceforth divorce has both pros and cons and must be utilised in a better way.

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