Under the Indian personal laws- divorce by mutual consent is recognised under the Hindu Marriage Act 1955, the Special Marriage Act 1954, the Parsi Marriage and Divorce Act 1939, the Dissolution of Muslim Marriage Act 1939, and now also under the Divorce Act 1869.
Section 13B of the Hindu Marriage Act 1955 - provides for divorce by mutual consent where the parties have been separated for a period of one year. Thereafter, the first motion for mutual divorce must be filed and presented. After a period of between six months and 18 months, the parties must present the second motion. The court will record the parties' statements to ensure that the divorce is being obtained of free will and only then will it grant the decree of divorce.
Divorce under Islamic law - Under Islamic law, divorce is classified into three categories:
Under Islamic law, only the husband can pronounce talak on his wife, not vice versa. However, the husband can delegate this power to the wife or any third person by an agreement. This is known as divorce by delegation (talak-e-tafweez).
Divorce by the husband. There are three types of Talaq:
Talaq-e-ahsan. This is a single pronouncement of talaq by the husband, followed by a period of abstinence (iddat). The duration of the iddat is 90 days or three menstrual cycles (where the wife is menstruating). Alternatively, the period of iddat is of three lunar months (in case, the wife is not menstruating). If the couple resumes cohabitation or intimacy, within the period of iddat, the pronouncement of divorce is treated as having been revoked. Therefore, talaq-e-ahsan is revocable. Conversely, if there is no resumption of cohabitation or intimacy, during the period of iddat, the divorce becomes final and irrevocable after the expiry of the iddat period. It is considered irrevocable because the couple is forbidden to resume marital relationship thereafter, unless they contract a fresh nikah (marriage) with a fresh mahr (that is, a mandatory payment, in the form of money or possessions, paid or promised to be paid, by the groom or by the groom's father, to the bride, at the time of marriage, which legally becomes her property). However, on the third pronouncement of the talaq, the couple cannot remarry, unless the wife first marries someone else, and only after her marriage with other person has been dissolved (either through talaq (divorce) or death) can the couple remarry. Among Muslims, talaq-e-ahsan is regarded as the most "proper" form of divorce.
Talaq-e-hasan. This is pronounced in the same manner as talaq-e-ahsan (see above). However, instead of a single pronouncement there are three successive pronouncements. After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. The same procedure must be followed after the expiry of the first month (during which marital ties have not been resumed). Talaq is then pronounced again: after the second pronouncement of talaq, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is important to note that the first and the second pronouncements can only be revoked by the husband. If he does so (either expressly or by resuming conjugal relations) the talaq pronounced by the husband becomes ineffective, as if no talaq had been expressed. However, if a third talaq is pronounced, it becomes irrevocable. Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third tuhr (period of purity), as soon as the third declaration is made, the talaq becomes irrevocable, and the marriage stands dissolved, after which the wife must observe the required iddat (the period after divorce, during which a woman cannot remarry: its purpose is to ensure that the male parent of any offspring can be clearly identified). After the third iddat, the husband and wife cannot remarry, unless the wife first marries someone else, and only after her marriage with another person has been dissolved (either through divorce or death), can the couple remarry.
The distinction between talaq-e-ashan and talaq-e-hasan is that, in the former, there is a single pronouncement of talaq followed by abstinence during the period of iddat, whereas, in the latter there are three pronouncements of talaq, interspersed with abstinence.
Talaq-e-biddat. The third type of talaq is talaq-e-biddat. This is effected by one definitive pronouncement of talaq (such as, "I talaq you irrevocably" or three simultaneous pronouncements, like "talaq, talaq, talaq", uttered at the same time, simultaneously. In talaq-e-biddat, divorce is then effective from this point onwards. Unlike the other two categories of talaq, the instant talaq is irrevocable the very moment it is pronounced. The Supreme Court in a recent landmark decision by five judges in the case of Shayara Bano vs Union of India (2017) 9SCC 1 (with a majority of 3:2) held that the act of divorce by a Muslim man by way of uttering the words talak three times is unconstitutional and illegal. It was held that triple talaq "is not integral to religious practice and violates constitutional morality".
Divorce by the wife- The Dissolution of Muslim Marriages Act 1939 sets out the grounds on which a Muslim woman can seek dissolution of marriage. Section 2 of the Act provides for grounds for decree for dissolution of marriage, namely that the:
Whereabouts of the husband has not been known for a period of four years. (However, any decree passed based on this ground cannot take effect until six months have passed since making the decree, and if the husband appears (either in person or through an authorised agent) within this period, and satisfies the court that he is prepared to perform his conjugal duties, the court will aside the decree.)
Husband has neglected or has failed to provide for her maintenance for a period of two years.
Husband has been sentenced to imprisonment for a period of seven years or upwards. (However, no decree can be passed until the sentence has become final.)
Husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.
Husband was impotent at the time of the marriage and continues to be so. (However, before passing a decree on this ground, the court will, on application by the husband, make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the court within such period, no decree will be passed based on this ground.)
Husband has been insane for a period of two years or is suffering from leprosy or virulent venereal disease.
Wife, having been given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18 years.
Marriage has not been consummated.
Husband treats the wife with cruelty, for example, the husband:
habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment;
associates with women of evil repute or leads an infamous life;
attempts to force her to lead an immoral life;
disposes of her property or prevents her exercising her legal rights over it;
obstructs her in the observance of her religious profession or practice;
if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran; or
carries out any other ground recognised as valid for the dissolution of marriages under Muslim law.